1991B1- FINANCE CONTRACTUAL OBLIGATIONS
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ORDINANCE APPROVING AND AUTHORIZING THE
EXECUTION AND DELIVERY OF "CITY OF SCHERTZ,
TEXAS PUBLIC PROPERTY FINANCE CONTRACTUAL
OBLIGATIONS, SERIES 1991" ; SPECIFYING THE
TERMS OF SUCH CONTRACTUAL OBLIGATIONS; MAKING
PROVISIONS FOR THE PAYMENT THEREOF; AND
RESOLVING OTHER MATTERS INCIDENT AND RELATED
TO THE EXECUTION, PERFORMANCE, AND PAYMENT OF
SUCH CONTRACTUAL OBLIGATIONS, INCLUDING THE
APPROVAL AND EXECUTION OF AN ESCROW DEPOSIT
AGREEMENT FOR THE ACQUISITION OF PROPERTY;
AUTHORIZING THE DISTRIBUTION OF A LIMITED
OFFERING MEMORANDUM RELATING TO THE SALE OF
THE CONTRACTUAL OBLIGATIONS; AND DECLARING AN
EMERGENCY
WHEREAS, pursuant to Texas Revised Civil Statutes
Annotated, Local Government Code, Subchapter A of Chapter 27l
(the Public property Finance Act) (the "Act"), the Ci ty Counci 1
(the "Council") of the City of Schertz, Texas (the "City") is
authorized and empowered to execute, perform, and make payments
under contracts with any person for the use, acquisition, or
purchase of personal property; and
WHEREAS, in accordance with the provisions of the Act, the
Council hereby finds and determines that the acquisition, use,
or purchase of certain items of personal property identified in
Exhibit A attached hereto, or such other personal property,
appliances, equipment, furnishings, or interests therein,
considered by the Council to be necessary, useful, and/or
appropriate for purposes of the City, should be financed under
and pursuant to one or more contracts to be executed,
performed, and made on the terms and in the form hereinafter
prescribed; and
WHEREAS, the City has lawfully available and unencumbered
funds to pay a portion of the costs of the personal property
identified in Exhibit A and to pay the costs of issuing the
Contracts (hereinafter defined); and
WHEREAS, to provide funds at the earliest possible date
for the acquisition, use, or purchase of such personal property
for the immediate preservation of the public peace, property,
health, and safety and providing for the usual daily operation
of a municipal department, this Council hereby finds and
declares this Ordinance to be an emergency measure; now,
therefore,
BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF SCHERTZ,
TEXAS THAT:
SECTION l: Contract Authorization - Contract Amount -
Erooerty Identification. Contractual obligations, aggregating
in amount $125,000 (the "Aggregate Contract Amount") and
entitled "City of Schertz, Texas Public Property Finance
Contractual Obligations, Series 1991" (the "Contractual
Obligations" or "Contracts") shall be and are hereby authorized
to be executed and delivered with the Initial Contracting Party
(identified in Section l4), and the assigns thereof, to finance
the use or the purchase or other acquisition of personal
property identified in Exhibit A attached hereto and
incorporated herein by reference as a part of this Ordinance
for all purposes, or such other personal property, appliances,
equipment, furnishings, or interests therein, considered by the
Council to be necessary, useful, and/or appropriate for
purposes of the City (the "Property"); all in accordance with
and pursuant to authority conferred by the laws of the State of
Texas, particularly the Act.
SECTION 2: Fully Reaistered Form Contract Date-
Authorized Amounts-Installment PaYments-Interest Rates. The
Contracts shall be made, executed, and delivered in fully
registered form, bear a date of February l, 1991 (the "Contract
Date"), and, except for the Initial Contract authorized in
Section 7, shall be in authorized amounts of $5,000 or any
integral multiple thereof (not to exceed an Installment Amount
as hereinafter defined), and the Aggregate Contract Amount
shall be payable in annual installments (the "Installment
Amounts") on February 1 in the amounts, and interest shall
accrue on such Installment Amounts at per annum rate(s), as
follows:
Installment Interest
Payment Date Amount ($) Rate (\)
1992 25,000 7.25
1993 30,000 7.25
1994 35,000 7.25
1995 35,000 7.25
Interest on the unpaid Installment Amounts shall accrue
from the Contract Date (calculated on the basis of a 360-day
year of twelve 30-day months), and such interest shall be
payable on February 1 and August 1 in each year. commencing
February 1, 1992.
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SECTION 3: Terms of pavment-pavina Aaent/Reaistrar.
The Installment Amounts on each Contract and the interest
thereon shall be payable only to the registered contracting
party or person (hereinafter called the "Contracting Party")
appearing on the registration and transfer books (the "Contract
Register") maintained by the paying Agent/Registrar, and such
Installment Amounts and the interest payable thereon shall be
payable in coin or currency of the United States of America
which at the time of payment is legal tender for the payment of
public and private debts and without exchange or collection
charges to the Contracting Party.
The selection and appointment of First City,
Texas--Austin, N.A., Austin, Texas to serve as Paying
Agent/Registrar for the Contracts is hereby approved and
confirmed. The City covenants to maintain and provide a Paying
Agent/Registrar at all times until the Contracts are paid and
discharged, and any successor Paying Agent/Registrar shall be a
bank, trust company, financial institution, or other entity
qualified to perform the duties and services of paying
Agent/Registrar. Upon any change in the paying Agent/Registrar
for the Contracts, the City agrees to promptly cause a written
notice thereof to be sent to each Contracting Party by United
States Mail, first-class postage prepaid, which notice shall
also give the address of the new paying Agent/Registrar.
The Insta llment Amounts sha II be payable when due only
upon the presentation and surrender of the Contracts to the
principal office of the Paying Agent/Registrar. Interest on
the Installment Amounts shall be paid to the Contracting
Parties which appear in the Contract Register at the close of
business on the Record Date (the fifteenth day of the month
next preceding each interest payment date) and shall be paid by
the paying Agent/Registrar (i) by check sent united States
Mail, first-class postage prepaid, to the address of the
Contracting Party recorded in the Contract Register or (ii) by
such other method, acceptable to the Paying Agent/Registrar,
requested by, and at the risk and expense of, the Contracting
Party. If the date for the payment of an Installment Amount or
interest thereon shall be a Saturday, Sunday, a legal holiday,
or a day when banking institutions in the city where the Paying
Agent/Registrar is located are authorized by law or executive
order to close, then the date for such payment shall be the
next succeeding day which is not such a day, and payment on
such date shall have the same force and effect as if made on
the original date payment was due.
In the event of a nonpayment of interest on a scheduled
payment date, and for thirty (30) days thereafter, a new record
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date for such interest payment (a "Special Record Date") will
be established by the Paying Agent/Registrar, if and when funds
for the payment of such interest have been received. Notice of
the Special Record Date and of the scheduled payment date of
the past due interest (which shall be fifteen (15) days after
the Special Record Date) shall be sent at least five (5)
business days prior to the Special Record Date by united States
Mail, first-class postage prepaid, to the address of each
Contracting Party appearing on the Contract Register at the
close of business on the last business day next preceding the
date of mailing of such notice.
SECTION 4: Prepavment of Installment Amounts. The
Contractual Obligations are not subject to redemption prior to
the scheduled payment date for the Installment Amount.
SECTION 5: Assianment Reaistration Transfer
Exchanae of Contracts. A Contract Register relating to the
registration, payment, and assignment and transfer or exchange
of the Contracts shall at all times be kept and maintained on
behalf of the City at the principal office of the Paying
Agent/Registrar, as provided herein and in accordance with the
provisions of a Paying Agent/Registrar Agreement in
substantially the form of Exhibit B and such further rules and
regulations as the paying Agent/Registrar and the City may
prescribe. The Paying Agent/Registrar shall obtain, record,
and maintain in the Contract Register the name and address of
every Contracting Party to a Contract executed and delivered
under and pursuant to the provisions of this Ordinance, or if
appropriate, the nominee thereof. Any Contract may be
assigned, transferred, or exchanged for Contracts of other
authorized amounts bearing the same interest rate by the
Contracting Party, in person or by his duly authorized agent,
upon surrender of such Contract to the Paying Agent/Registrar
for cancellation, accompanied by a written instrument of
assignment and transfer or request for exchange duly executed
by the contracting Party or by his duly authorized agent, in
form satisfactory to the Paying Agent/Registrar.
Any Contract to be assigned and transferred shall be
surrendered to the Paying Agent/Registrar at its principal
office, and, upon its receipt and cancellation, the Paying
Agent/Registrar shall register and deliver, in the name of the
designated assignee or transferee, one or more new Contracts of
authorized amounts and, except for the assignment and transfer
of the Initial Contract by the Initial Contracting Party,
having the same Payment Date and of a like Installment Amount
as the Contract or Contracts surrendered for assignment and
transfer.
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Contracts may be exchanged for Contracts of other
authorized amounts and, excluding the exchange of the Initial
Contract governed by Section 7, having the same Payment Date,
bearing the same rate of interest, and of like aggregate
Installment Amount as the Contracts surrendered for exchange,
upon surrender of the Contracts to be exchanged to the Paying
Agent/Registrar at its principal office. Whenever any
Contracts are surrendered for exchange, the Paying
Agent/Registrar shall register and deliver new Contracts to the
Contracting Party requesting the exchange.
When a Contract has been duly assigned and transferred or
exchanged, the new Contract or Contracts registered in such
assignment and transfer or exchange shall be delivered to the
Contracting Party at the principal office of the Paying
Agent/Registrar or sent by United States Mail, first-class,
postage prepaid to the Contracting Party, and, upon the
registration and delivery thereof, such Contracts shall be the
valid obligations of the City, evidencing the same obligation
to pay, and entitled to the same benefits under this Ordinance,
as the Contracts surrendered in such assignment and transfer or
exchange.
All transfers or exchanges of Contracts pursuant to this
Section shall be made without expense or service charge to the
Contracting Party, except as otherwise herein provided, except
that the Paying Agent/Registrar shall require payment by the
Contracting Party requesting such transfer or exchange of any
tax or other governmenta 1 charges requi red to be paid wi th
respect to such transfer or exchange.
Contracts cancelled by reason of an exchange or transfer
pursuant to the provisions hereof are hereby defined to be
"Predecessor Contracts", evidencing all or a portion, as the
case may be, of the same Obligation to pay evidenced by the new
Contract or Contracts registered and delivered in the exchange
or transfer therefor. Additionally, the term "Predecessor
Contracts" shall include any mutilated, lost, destroyed, or
stolen Contract for which a replacement Contract has been
registered and delivered in lieu thereof pursuant to the
provisions of Section IO, and such new replacement Contract
shall be deemed to evidence the same obligation as the
mutilated, lost, destroyed, or stolen Contract.
SECTION 6: Execution - Reaist~~~i~n. The Contracts
shall be executed on behalf of the City by the Mayor or Mayor
Pro Tern, wi th the sea 1 of the Ci ty reproduced 0 r impressed
thereon and countersigned by the City Secretary. The signature
of such officers on the Contracts may be manual or facsimile.
Contracts bearing the manual or facsimile signatures of the
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persons holding such offices on the Contract Date shall be
deemed to be duly executed on behalf of the City,
notwithstanding a change in persons holding such offices at the
time of delivery of the Contracts to the Initial Contracting
Pa rty and wi th respect to Cant r acts delivered in subsequent
assignments and transfers or exchanges.
No Contract shall be entitled to any right or benefit
under this Ordinance, or be valid or obligatory for any
purpose, unless the registration certificate appearing on the
Contracts to be signed by the Comptroller of Public Accounts of
the State of Texas (substantially in the form provided in
section 8C) and/or the Paying Agent/Registrar (substantially in
the form provided in Section 8D) as the case may be, are
manually executed by an authorized officer, employee, or
representative of the Comptroller of Public Accounts and/or the
paying Agent/Registrar, and such registration certificate,
either or both, upon any Contract when duly executed by the
Comptroller of Public Accounts and/or the Paying
Agent/Registrar, as the case may be, shall be conclusive
evidence, and the only evidence, that such Contract has been
duly certified, registered, and delivered.
SECTION 7: Initial Contract. The Contracts herein
authorized may be initially executed and delivered as a single
fully-registered Contract in the Aggregate Contract Amount with
Installment Amounts to become due and payable as provided in
Section 2 and numbered T-l and registered in the name of the
Initial Contracting Party or the designee thereof. Such single
fully registered Contract shall be submitted to the Office of
the Attorney General of the State of Texas for approval,
certified and registered by the Office of the Comptroller of
Public Accounts of the State of Texas, and delivered to the
Initial Contracting Party. Any time after the delivery of such
single fully-registered Contract, the paying Agent/Registrar
shall cancel such Obligation and exchange therefor Contracts of
authorized amounts and in Installment Amounts with Payment
Dates and bearing applicable interest rates for transfer and
delivery to the Contracting Parties named at the addresses
identified therefor; all pursuant to and in accordance with
such written instructions from the Initial Contracting Party
and such other information and documentation as the Paying
Agent/Registrar may reasonably require.
SECTION 8: Forms. A. Forms GenerallY. The
Contracts, the Registration Certificate of the Comptroller of
Public Accounts of the State of Texas, the Registration
Certificate of Paying Agent/Registrar, and the form of
Assignment to be printed on the Contracts shall be
substantially in the forms set forth in this Section with such
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appropriate insertions, omissions, substitutions, and other
variations as are permitted or required by this Ordinance and
may have such letters, numbers, or other marks of
identification and such legends and endorsements (including any
reproduction of an opinion of counsel) thereon as may,
consistently herewith, be determined by the officers executing
and delivering such Contracts as evidenced by their execution.
The Contracts shall be printed, lithographed, or engraved
or produced in any other similar manner, all as determined by
the officers executing such Contracts as evidenced by their
execution, but the single fully registered Obligation
authorized in Section 7 may be typewritten, photocopied, or
otherwise reproduced.
B.
General Contract Form.
REGISTERED
NO. __
REGISTERED
$
united States of America
State of Texas
Counties of Guadalupe, Comal, and Bexar
CITY OF SCHERTZ, TEXAS
PUBLIC PROPERTY FINANCE CONTRACTUAL OBLIGATION
SERIES 1991
Contract Date: Interest Rate:
February l, 1991
Payment Date:
CUSIP NO:
Contracting Party:
Installment Amount:
DOLLARS
The City of Schertz, Texas (the "City"), a body corporate
and a political subdivision in the Counties of Guadalupe,
Comal, and Bexar, State of Texas, hereby agrees and promises to
pay to the order of the Contracting Party named above, or the
registered assigns thereof, the Installment Amount hereinabove
stated on the Payment Date specified above (or so much thereof
as shall not have been prepaid prior to such Payment Date) and
to pay interest on such unpaid Installment Amount from the
Contract Date at the per annum rate of interest specified above
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computed on the basis of a 360-day year of twelve 30-day
months; such interest being payable on February 1 and August 1
in each year, commencing February 1, 1991. The Installment
Amount is payable on the Payment Date noted above to the
Contracting Party upon presentation and surrender of this
Contract at the principal office of the paying Agent/Registrar
executing the registration certificate appearing hereon, or its
successor. Interest is payable to the Contracting Party of
this obligation (or one or more Predecessor Contracts, as
defined in the Ordinance hereinafter referenced) who appears on
the "Contract Register" maintained by the Paying
Agent/Registrar at the close of business on the "Record Date",
which is the fifteenth day of the month next preceding each
interest payment date, and interest shall be paid by the Paying
Agent/Registrar by check sent by United States Mail,
first-class postage prepaid, to the address of such Contracting
Party recorded in the Contract Register or by such other
method, acceptable to the Paying Agent/Registrar, requested by,
and at the risk and expense of, the Contracting Party. The
Installment Amount of this Contract and interest thereon shall
be paid without exchange or collection charges to the
Contracting Party and in any coin or currency of the United
States of America which at the time of payment is legal tender
for the payment of public and private debts.
This Contract is one of a number of contracts aggregating
in amount $l25,OOO (the "Contracts"), executed and delivered to
finance the acquisition, use, or purchase of personal property,
under and in strict conformity with the laws of the State of
Texas, particularly the Public Property Finance Act (Texas
Revised Civil Statutes Annotated, Local Government Code,
Subchapter A of Chapter 271) and pursuant to an Ordinance
adopted by the City Council of the City (the "Ordinance").
This Contract is an obligation of the City payable from
the pledged proceeds of an ad valorem tax levied, within the
limitations prescribed by law, upon all taxable property in the
City and, until disbursed for the acquisition of Property,
amounts held in a special escrow account created and to be
maintained under and pursuant to an Escrow Deposit Agreement,
dated January l5, 1991 (the "Escrow Deposit Agreement") between
the City and Schertz Bank & Trust, Schertz, Texas. Reference
is hereby made to the Ordinance, a copy of which is on file in
the principal office of the Paying Agent/Registrar, and to all
of the provisions of which the Contracting Party by the
acceptance hereof hereby agrees, for definitions of terms; the
description of and the nature and extent of the taxes pledged
for the payment of the Contracts; the provisions of the Escrow
Deposit Agreement relating to the receipt, safekeeping, and
disbursement of funds for the acquisition of the Property; the
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terms and conditions relating to the assignment and transfer of
this Contract; the conditions upon which the Ordinance may be
amended or supplemented with or without the consent of the
Contracting Parties; the rights, duties, and obligations of the
City and the Paying Agent/Registrar; the terms and provisions
upon which this Contract may be discharged at or prior to its
Payment Date, and the obligation evidenced by the Contracts
cease to exist as an obligation of the City; and for other
terms and provisions contained therein. Capitalized terms used
herein have the meanings assigned in the Ordinance.
This Contract, subject to certain limitations contained in
the Ordinance, may be assigned and transferred on the Contract
Register only upon its presentation and surrender at the
principal office of the paying Agent/Registrar, with the
Assignment hereon duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to the Paying
Agent/Registrar duly executed by, the registered party hereof,
or his duly authorized agent. When a transfer on the Contract
Register occurs, one or more new fully registered Contracts
with the same Payment Date, in authorized amounts, bearing the
same rate of interest, and of the same Installment Amount will
be delivered by the Paying Agent/Registrar to the designated
assignee or assignees.
The City and the Paying Agent/Registrar, and any agent of
either, shall treat the registered party whose name appears on
the Contract Register (i) on the Record Date as the Contracting
Party entitled to payment of interest hereon, (ii) on the date
of surrender of this Contract as the Contracting Party entitled
to payment of the Installment Amounts on the Payment Date, and
(iii) on any date as the Contracting Party to notify for all
other purposes, and neither the City nor the Paying
Agent/Registrar, or any agent of either, shall be affected by
notice to the contrary. In the event of nonpayment of interest
on a scheduled payment date and for thirty (30) days
thereafter, a new record date for such interest payment (a
"Special Record Date") will be established by the paying
Agent/Registrar, if and when funds for the payment of such
interest have been received. Notice of the Special Record Date
and of the scheduled payment date of the past due interest
(which shall be fifteen (15) days after the Special Record
Date) shall be sent at least five (5) business days prior to
the Special Record Date by United States Mail, first-class
postage prepaid, to the address of each Contracting Party
appearing on the Contract Register at the close of business on
the last business day next preceding the date of mailing of
such notice.
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It is hereby certified, recited, represented, and declared
that the City is a body corporate and a political subdivision
duly organized and legally existing under and by virtue of the
laws of the State of Texas; that the execution and delivery of
the Contracts is duly authorized by law; that all acts,
conditions, and things required to exist and be done precedent
to and in the execution and delivery of the Contracts to render
the same lawful and va lid obligat ions of the Ci ty have been
properly done, have happened, and have been performed in
regular and due time, form, and manner as required by the laws
of the State of Texas and the Ordinance; and that due provision
has been made for the payment of the Contracts and interest
thereon as aforestated. In case any provision in this Contract
shall be invalid, illegal, or unenforceable, the validity,
legality, and enforceability of the remaining provisions shall
not in any way be affected or impaired thereby. The terms and
provisions of this Contract and the Ordinance shall be
construed in accordance with and shall be governed by the laws
of the State of Texas.
IN WITNESS WHEREOF,
caused this Contract to
seal of the City as of the
the City Council of the city has
be duly executed under the official
Contract Date.
CITY OF SCHERTZ, TEXAS
ATTEST:
Mayor
City Secretary
(SEAL)
[The remainder of this page intentionally left blank.]
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C.
*Form of Reaistration Certificate of Comptroller
of Public Accounts to appear on Sinale Fullv
Reaistered Contract delivered to Initial Contractor.
REGISTRATION CERTIFICATE OF
COMPTROLLER OF PUBLIC ACCOUNTS
THE STATE OF TEXAS
(
(
(
(
REGISTER NO.
OFFICE OF THE COMPTROLLER
OF PUBLIC ACCOUNTS
I HEREBY CERTIFY that this Contract has been examined,
certified as to validity, and approved by the Attorney General
of the State of Texas and duly registered by the Comptroller of
Public Accounts of the State of Texas.
WITNESS
my
signature
and
seal
of
office
this
Comptroller of Public Accounts
of the State of Texas
(SEAL)
*NOTE TO PRINTER:
Omit on Printed Contracts
D.
Form of Certificate of pavina Aaent/Reaistrar to
appear on Contracts.
REGISTRATION CERTIFICATE OF PAYING AGENT/REGISTRAR
This Contract has been duly delivered and registered under
the provisions of the within-mentioned Ordinance; the contract
or contracts initially executed and delivered by the City have
been approved by the Attorney General of the State of Texas and
registered by the Comptroller of Public Accounts, as shown by
the records of the paying Agent/Registrar.
FIRST CITY, TEXAS--AUSTIN, N.A.,
Austin, Texas,
as Paying Agent/Registrar
Registration Date:
By ~_
Authorized Signature
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E.
Form of Assiqnment.
ASSIGNMENT
FOR
assigns,
address,
VALUE RECEIVED
and transfers
and zip code of
the undersigned hereby sells,
to (Print or typewrite name,
transferee:) . . . . . . . . . . . . . . . . . . . . .
........................................................... .
........................................................... .
(Social Security or other identifying number: .............
........................) the within Contract and all rights
thereunder, and hereby irrevocably constitutes and appoints
........................................................... .
attorney to transfer the within Contract on the books kept
for registration thereof, with full power of substitution in
the premises.
DATED:
................. .
............................... .
......................... .
NOTICE: The signature on this
assignment must correspond with
the name of the registered party
as it appears on the f ace of the
within Contract in every
particular.
Signature guaranteed:
F. The Initial Contract shall be in the form set forth in
paraqraph B of this Section. except that the form of the
sinqle fullv reqistered Initial Contract shall be modified
as follows:
(i)
immediately under the headings "Interest Rate
and "Payment Date " shall both be omitted;
"
(ii) Paragraph one shall read as follows:
Contracting Party:
Contract Amount:
Dollars
The City of Schertz, Texas (the "City"), a body corporate
and a political subdivision in the Counties of Guadalupe,
Comal, and Bexar, State of Texas, hereby agrees and promises to
pay to the order of the Contracting Party named above, or the
registered assigns thereof, the Contract Amount hereinabove
stated on the Payment Dates and in Installment Amounts in
accordance with the following schedule:
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PAYMENT DATE
INSTALLMENT
AMOUNT ($)
INTEREST
RATE (\)
(Information to be inserted from
schedule in section 2).
(or so much of an Installment Amount as shall not have been
prepaid) and to pay interest on such unpaid Installment Amounts
from the Contract Date at the per annum rates of interest
specified above computed on the basis of a 360-day year of
twelve 3D-day months; such interest being payable on February 1
and August I in each year, commencing February l, 1992. The
Installment Amounts are payable on the Payment Dates noted
above to the Contracting Party named above or the assigns
thereof, upon the presentation and surrender of this
obligation, at the principal office of First City,
Texas--Austin, N.A., Austin, Texas (the "Paying
Agent/Registrar"). Interest is payable to the Contracting
Party whose name appears on the "Contract Register" maintained
by the Paying Agent/Registrar at the close of business on the
"Record Date", which is the fifteenth day of the month next
preceding each interest payment date, and interest shall be
paid by the paying Agent/Registrar by check sent united States
Mail, first-class postage prepaid, to the address of the
Contracting Party recorded in the Contract Register or by such
other method, acceptable to the paying Agent/Registrar,
requested by, and at the risk and expense of, the Contracting
Party. The Installment Amounts of this Contract and interest
thereon shall be paid without exchange or collection charges to
the Contracting Party and in any coin or currency of the United
States of America which at the time of payment is legal tender
for the payment of public and private debts.
SECTION 9: Levv of Taxes. To provide for the payment
of the Installment Amounts to become due and payable and the
payment of the interest thereon, there is hereby levied, and
there shall be annually assessed and collected in due time,
form, and manner, a tax on all taxable property in the City,
within the limitations prescribed by law, and such tax hereby
levied on each one hundred dollars' valuation of taxable
property in the City shall be at a rate from year to year as
will be ample and sufficient to provide funds each year to pay
(i) the Installment Amounts to become due and payable or an
amount equal to 2% of the Aggregate Contract Amount (whichever
is the greater) and (ii) the accrued interest on the
Installment Amounts to become due and payable, full allowance
being made for delinquencies and costs of collection. Full,
complete, and accurate books and records relating to the
receipt and disbursement of taxes levied, assessed, and
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collected for and on account of the Contracts shall be kept and
maintained by the City at all times while the Contracts are
outstanding, and the taxes collected annually for the payment
of the Contracts shall be deposited to the credit of a "l9
Contracts Fund" (the "Sinking Fund") maintained on the records
of the City and at an official depository of the city's funds;
and such tax hereby levied, and to be assessed and collected
annually, is hereby pledged to the payment of the Contracts.
Proper officers of the City are hereby authorized and
directed to cause to be transferred to the paying Agent/
Registrar, from funds on deposit in the Sinking Fund, amounts
sufficient to fully pay and discharge promptly each Installment
Amount and interest on the Contracts as the same accrues or
becomes due and payable; such transfer of funds to be made in
such manner as will cause collected funds to be deposited with
the Paying Agent/Registrar on or before each Payment Date and
each interest payment date for the Contracts.
SECTION 10: Mutilated Destroved Lost and Stolen
Contracts. In case a Contract shall be mutilated, or
destroyed, lost, or stolen, the Paying Agent/Registrar may
execute and deliver a replacement Contract of like form and
tenor, and in the same authorized amount and bearing a number
not contemporaneously outstanding, in exchange and substitution
for such mutilated Contract, or in lieu of and in substitution
for such destroyed, lost, or stolen Contract, only after (i)
the filing by the Contracting Party with the Paying
Agent/Registrar of evidence satisfactory to the Paying
Agent/Registrar of the destruction, loss, or theft of such
Contract, and of the authenticity of the ownership thereof and
(ii) the furnishing to the Paying Agent/Registrar of
indemnification in an amount satisfactory to hold the City and
the Paying Agent/Registrar harmless. All expenses and charges
associated with such indemnity and with the preparation,
execution, and delivery of a replacement Contract shall be
borne by the Contracting Party of the Contract mutilated, or
destroyed, lost, or stolen.
Every replacement Contract issued pursuant to this Section
shall be a valid and binding obligation and shall be entitled
to all the benefits of this Ordinance equally and ratably with
all other Outstanding Contracts; notwithstanding the
enforceability of payment by anyone of the destroyed, lost, or
stolen Contracts.
SECTION ll: Satisfaction of Obligation of City. If the
City shall payor cause to be paid, or there shall otherwise be
paid to the Contracting Parties, the Installment Amounts,
together with the accrued interest thereon, at the times and in
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4759Z
the manner stipulated in this Ordinance,
taxes levied under this Ordinance
agreements, and other obligations of
Contracting Parties shall thereupon cease,
discharged and satisfied.
then the pledge of
and all covenants,
the City to the
terminate, and be
The Contracts shall be deemed to have been paid within the
meaning and with the effect expressed above in this Section
when (i) money sufficient to pay in full the Installment
Amounts as the same shall become due and payable on the Payment
Dates, together with all interest due thereon, shall have been
irrevocably deposited with and held in trust by the paying
Agent/Registrar, or an authorized escrow agent, or
(ii) Government Securities shall have been irrevocably
deposited in trust with the Paying Agent/Registrar, or an
authorized escrow agent, which Government Securities have been
certified by an independent accounting firm to mature as to
principal and interest in such amounts and at such times as
will insure the availability, without reinvestment, of
suf f icient money, together wi th any money depos i ted therewi th,
if any, to pay when due the Insta llment Amounts and accrued
interest on and prior to each payment Date therefore. The City
covenants that no deposit of money or Government Securities
will be made under this Section and no use made of any such
deposit which would cause the Contracts to be treated as
"arbitrage obligations" within the meaning of section l4B of
the Internal Revenue Code of 19B6, as amended, or regulations
adopted pursuant thereto.
Any money so deposited with the paying Agent/ Registrar,
or an authorized escrow agent, and all income from Government
Securities held in trust by the paying Agent/Registrar, or an
authorized escrow agent, pursuant to this Section which is in
excess of the amounts required for the payment of the Contracts
in accordance with the defeasance provisions sha II be remi tted
to the City or deposited as directed by the City.
Notwithstanding the above and foregoing, any remittance of
funds from the Paying Agent/Registrar to the City shall be
subject to any applicable unclaimed property laws of the State
of Texas.
The term "Government Securities", as used herein, means
direct obligations of, or obligations the principal of and
interest on which are unconditionally guaranteed by, the united
States of America, which are non-callable prior to the
respective Payment Dates, as the case may be, for the Contracts
and may be united States Treasury Obligations such as the State
and Local Government Series and may be in book-entry form.
-l5-
4759Z
SECTION l2: Ordinance a Contract - Amendments
Outstandinq Contracts. This Ordinance shall constitute an
agreement with the Contracting Parties from time to time, be
binding on the City, and shall not be amended or repealed by
the City so long as any of the Contracts remain Outstanding
except as permitted in this section. The City may, without the
consent of or notice to any Contracting Parties, from time to
time and at any time, amend this Ordinance in any manner not
detrimental to the interests of the Contracting Parties,
including the curing of any ambiguity, inconsistency, or formal
defect or omission herein. In addition, the City may, with the
consent of Contracting Parties to Contracts which are
outstanding and represent 5l% or more of the aggregate
Installment Amounts affected thereby, amend, add to, or rescind
any of the provisions of this Ordinance; provided that, without
the consent of Contracting Parties of all Contracts which are
outstanding, no such amendment, addition, or rescission shall
(l) extend the time or times of payment of the Installment
Amounts and interest on the Contracts, reduce the Installment
Amounts or the rate of interest thereon, or in any other way
modify the terms of payment of the Contracts, (2) give any
preference to any Contract over any other Contract, or
(3) reduce the aggregate Installment Amount of Contracts
required to be held for consent to any such amendment,
addition, or rescission.
The term "Outstanding" when used in this Ordinance wi th
respect to Contracts means, as of the date of determination,
all Contracts theretofore delivered and registered under this
Ordinance, except:
(l) those Contracts cancelled or delivered to
the Paying Agent/Registrar for cancellation;
(2) those Contracts for which the
Installment Amounts and all interest payable
thereon has been paid or is deemed to be fully
paid in accordance with the provisions of
Section 11; and
(3) those mutilated, destroyed, lost, or
stolen Contracts for which replacement Obligations
have been registered and delivered in lieu thereof
as provided in section lO.
SECTION 13: Covenants to Maintain Tax-Exempt Status.
A. Definitions. When used in this Section, the following
terms have the following meanings:
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4759Z
"Code" means the Internal Revenue Code of 1986, as
amended by all legislation, if any, effective on or before
the Closing Date.
"Computation Date" has
Temporary negulations Section
the meaning
1.14B-BT(b) (1).
set
forth
in
"Gross Proceeds. when used with respect to the
Contracts or any other issue of Obligations of the City,
means original proceeds, amounts received (including
repayments of principal) as a result of investing the
original proceeds of the issue, transferred proceeds,
sinking fund proceeds, amounts invested in a reasonably
required reserve or replacement fund, securities or
obligations pledged by the City as security for payment of
debt service on the Contracts or such other issue, and any
other amounts used to pay debt service on the Contracts or
such other issue, together wi th earnings f rom the
investment of the foregoing.
"Investment Property. means
(l) a share of stock in a corporation or a right to
subscribe for or to receive such a share,
(2) any indebtedness, evidence thereof, or
Obligation, including without limitation united States
Treasury bonds, notes, and bills (whether or not of State
and Local Government Series) and bank deposits, (whether or
not certificated or interest bearing or made pursuant to a
depository contract),
(3)
payment
City, or
any annuity contract, or
contract acquired to fund an
any other deferred
Obligation of the
(4) any other property held for investment,
but excluding Tax-Exempt Obligations.
"Issue Price" means the aggregate initial offering
price of each Payment Date of the Contracts to the public,
at or below which a substantial amount of each Payment Date
of the Contracts were sold to the public, including accrued
interest and premium or discount, if any. For purposes of
this definition, the term .public. does not include (a) the
Initial Contracting Party, (b) members of the syndicate, if
any, managed by the Initial Contracting Party, or (c) any
bondhouses, brokers, dealers, and similar persons or
organizations acting in the capacity of underwriters or
wholesalers.
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4759Z
"Net Proceeds" means the original
Contracts, less amounts deposited to
required reserve or replacement fund.
proceeds of the
any reasonably
"Nonpurpose Investment" means any Investment in which
Gross Proceeds of the Contracts are invested and which is
not acquired to carry out the governmental purposes of the
Contracts.
"Purchase Price" of any Investment Property means
(1)
di rectly
therefor,
if a United states Treasury obligation acquired
from the united States Treasury, the amount paid
(2) if a certificate of deposit issued
commercial bank, the bona fide bid price quoted by a
who maintains an active secondary market in
certificates of deposit, and
by a
dealer
such
(3) otherwise, generally the mean of the bid price
and the offered price therefor on an established market on
the day on which such Investment Property is purchased or
contracted for or, if there are no bid prices and offered
prices on such date, on the first day preceding such date
for which there are bid prices and offered prices.
"Rebatable Arbitrage" has the meaning set forth in
Temporary Regulation section l.l48-2T.
"Temporary Regulations" mean Temporary
Regulations Sections l.l48, l.l49, and l.l50 as
shall be amended or promulgated as final
Regulations effective as of the closing date
Contracts (the "Closing Date").
Treasury
the same
Treasury
for the
"Tax-Exempt Obligations" mean (i) obligations the
interest on which is excludable from the gross income of
any owner thereof under section 103 of the Code and is not
an item of tax preference under section 57 of the Code,
including any beneficial interest in a trust, the assets of
which consist exclusively of such Obligations, but
excluding shares in any mutual fund which is invested in
such obligations, unless such fund is a qualified regulated
investment company, and (ii) one-day certificates of
indebtedness issued by the united states Treasury pursuant
to the Demand Depos i t State and Loca 1 Government Ser ies
Program.
-18-
4759Z
"Yield" of
(l) any Investment Property has the meaning set
forth in Temporary Regulation Section l.l48-2T, and
(2) the Contracts has the meaning set forth in
Temporary Regulation Section l.l48-3T.
B. Not to Cause Interest to Become Taxable. The Ci ty
shall not use, permit the use of, or omit to use Gross Proceeds
or any other amounts (or any property the acquisition,
construction, or improvement of which is to be financed
directly or indirectly with Gross proceeds) in a manner which,
if made or omitted, respectively, would cause the interest on
any Contract to become includable ln the gross income, as
defined in section 6l of the Code, of the owner thereof for
federal income tax purposes. Without limiting the generality
of the foregoing, unless and until the City shall have received
a written opinion of counsel nationally recognized in the field
of municipal bond law to the effect that failure to comply with
such covenant will not adversely affect the exemption from
federal income tax of the interest on any Contract, the City
shall comply with each of the specific covenants in this
Section.
C. No Private Use or Private Pavments. Except as
permitted by section l4l of the Code and the regulations and
rulings thereunder, the City shall, at all times prior to the
last Payment Date of the Contracts,
(I) exclusively own, operate, and possess all
property the acquisition, construction, or improvement of
which is to be financed directly or indirectly with Gross
Proceeds and not use or permit the use of Gross Proceeds or
any property acquired, constructed, or improved with Gross
Proceeds in any activity carried on by any person or entity
other than a state or local government, unless such use is
solely as a member of the general public, or
(2) not directly or indirectly impose or accept any
cha rge or other payment for use of Gross Proceeds or any
property the acquisition, construction, or improvement of
which is to be financed directly or indirectly with Gross
Proceeds, other than charges or other payments merely as a
member of the general public or interest earned on
investments acquired with Gross Proceeds pending
application for their intended purposes, either or both.
D.
section
No Private Loan.
l4l of the Code
Except to
and the
the extent
regulations
permi tted by
and rulings
-19-
4759Z
thereunder, the City sha II not use Gross Proceeds to make or
finance loans to any person or entity other than a state or
local government. For purposes of the foregoing covenant,
Gross Proceeds are considered to be "loaned" to a person or
entity if (l) property acquired, constructed, or improved with
Gross Proceeds is sold or leased to such person or entity in a
transaction which creates a debt for federal income tax
purposes, (2) capacity in or service from such property is
committed to such person or entity under a take-or-pay, output,
or similar contract or arrangement, or (3) indirect benefits,
or burdens and benefits of ownership, of Gross Proceeds or any
property acquired, constructed, or improved with Gross Proceeds
are otherwise transferred in a transaction which is the
economic equivalent of a loan.
E. Not to Invest at Hiaher Yield. Except to the extent
permitted by section l48 of the Code and the regulations and
rulings thereunder, the City shall not, at any time prior to
the final Payment Date of the Contracts, directly or indirectly
invest Gross Proceeds in any Investment Property (or use Gross
Proceeds to replace money so invested), if as a result of such
investment the Yield from the Closing Date of all Investment
Property acquired with Gross Proceeds (or with money replaced
thereby) whether then held or previously disposed of, exceeds
the Yield of the Contracts.
F. Not FederallY Guaranteed. Except to the extent
permitted by section l49(b) of the Code and the regulations and
rulings thereunder, the City shall not take or omit to take any
action which would cause the Contracts to be federally
guaranteed within the meaning of section l49(b) of the Code and
the regulations and rulings thereunder.
G. Information Report. The City shall timely
information required by section 149(e) of the Code
Secretary of the Treasury on such form and in such
such Secretary may prescribe.
file the
wi th the
place as
H. Rebate of Arbitraae Profits. Except
otherwise provided in section l48(f) of the
regulations and rulings thereunder or except to
City complies with Subsection J. of this Section:
to the extent
Code and the
the extent the
(l) The City shall account for all Gross Proceeds
(inc luding a II receipts, expendi tures, and investments
thereof) on its books of account separately and apart from
all other funds (and receipts, expenditures, and
investments thereof) and shall retain all records of such
accounting for at least six years after the day on which
the last outstanding Contract is discharged. The City may,
-20-
4759Z
however, to the extent permitted by law, commingle Gross
Proceeds of the Cont racts wi th other money of the Ci ty,
provided that the City separately accounts for each receipt
and expenditure of Gross Proceeds and the obligations
acquired therewith.
(2) Not less frequently than each Computation Date,
the City shall calculate or cause to be calculated by a
nationally recognized accounting, financial advisory firm,
or financial institution, in accordance with rules set
forth in section l48(f) of the Code and the regulations,
Temporary Regulations, and rulings thereunder, the
Rebatable Arbitrage. The City shall maintain such
calculations with the official transcript of the
proceedings relating to the issuance of the Contracts until
six years after the final Computation Date.
(3) As additional consideration for the purchase of
the Contracts by the Initial Contracting Party and the loan
of the money represented thereby, and in order to induce
such purchase by measures designed to insure the
eXCludability of the interest thereon from the gross income
of the owners thereof for federal income tax purposes, the
City shall pay to the United States out of the Sinking Fund
or its general fund, as permitted by applicable statute,
regulation, or opinion of the Attorney General of the State
of Texas, the amount described in paragraph (2) above, at
the times, in the installments, to the place, in the
manner, and accompanied by such forms or other information
as is or may be required by section l48(f) of the Code and
the regulations and rulings thereunder.
(4) The City shall exercise reasonable diligence to
assure that no errors are made in the calculations required
by paragraph (2) and, if such error is made, to discover
and promptly to correct such error within a reasonable
amount of time thereafter, including payment to the United
States of any Correction Amount as described in Temporary
Regulation Section 1.l48-lT(c)(2), including any penalty
related thereto.
I. Not to Divert Arbitraoe Profits. Except to the extent
permitted by section 148 of the Code and the regulations and
rulings thereunder, the City shall not, at any time prior to
the earlier of the Payment Date or final payment of the
Contracts enter into any transaction that reduces the amount
required to be paid to the united States pursuant to
Subsection H. of this Section because such transaction results
in a smaller profit or a larger loss than would have resulted
if the transaction had been at arm's length and had the Yield
of the Contracts not been relevant to either party.
-2l-
4759Z
J. No Rebate ReauLr...e.d.
covenants and duties imposed
if
The City need not comply with the
by the provisions of Subsection H.
(I) the City is a governmental unit with general
taxing powers;
(2) 95% of the Net Proceeds of the
income from the investment thereof will
governmental activities of the City;
Contracts and all
be used for the
(3) the aggregate face amount of all debt obligations
issued or expected to be issued by the City or any
subordinate entity in the calendar year in which the
Contracts are issued (including the Contracts but excluding
obligations to be redeemed with proceedS of the Contracts
within 90 days after the date on which the Contracts are to
be issued) is not reasonably expected to exceed $5,000,000;
and
(4) the City otherwise satisfies the requirements
of paragraph (4) (c) of section l4B(f) of the Code and the
regulations and rulings thereunder.
K. Oualified Tax-Exempt
designates the Contracts as
for purposes of section 265(b)
Obliaations. The
qual ified tax-exempt
of the Code.
City hereby
obI igat ions
SECTION l4: CQ1:I.t.ractina Partv Escrow Deposll
Aareement. The Contracts herein authorized shall be initially
executed and delivered to Rauscher Pierce Refsnes, Inc. (the
"Initial Contracting Party") against payment of the Aggregate
Contract Amount plus accrued interest thereon from the Contract
Date to the date of payment of such Aggregate Contract Amount.
Immediately following the delivery of the Contracts to the
Initial Contracting Party and in consideration of the
advancement of the Aggregate Contract Amount for the
acquisition or purchase of the Property by the Initial
Contracting Party, the Aggregate Contract Amount shall be
deposited in an escrow fund for safekeeping and disbursement in
accordance wi th the provisions of the "Escrow Depos it
Agreement" (the "Agreement") between the City and Schertz
Bank & Trust, Schertz, Texas (the "Escrow Agent"), attached
hereto as Exhibit C and incorporated herein by reference as a
part of this Ordinance for all purposes, and such Agreement in
substantially the form and substance attached hereto, together
with such changes or revisions as may be necessary to provide
for the safekeeping of such funds and the disposition thereof
-22-
4759Z
for the purchase or acquisition of the Property identified in
Exhibit A, is hereby approved and authorized to be executed by
the Mayor and City Secretary for and on behalf of the City and
as the act and deed of this City Council; and such Agreement as
executed by said officials shall be deemed approved by the
council and constitute the Agreement herein approved. The
accrued interest received from the Initial Contracting Party
shall be deposited to the credit of the Sinking Fund and
expended to pay the initial interest payment on the Contracts.
SECTION 15: Control and Custody of Records and Contract
Documents. The Mayor of the City shall be and is hereby
authorized to take and have charge and control of all necessary
orders, records, proceedings, including the Contracts, pending
the investigation and approval of such documents by the
Attorney General of the State of Texas, the registration of the
Contracts by the Comptroller of Public Accounts and their
delivery to the Initial Contracting Party.
Furthermore, the Mayor, the City Secretary, and the City
Manager, anyone or more of said officials, are hereby
authorized and directed to furnish and execute such documents
and certifications relating to the City and the execution and
delivery of the Contracts, including certifications as to
facts, estimates, circumstances and reasonable expectations
pertaining to the use, expenditure and investment of the
proceeds thereof, as may be necessary for the approval of the
Attorney General, the registration by the Comptroller of Public
Accounts and the delivery of the Contracts to the Initial
Contracting Party, and, together with the City'S financial
advisor, bond counsel, and the Paying Agent/Registrar, make the
necessary arrangements for the delivery of such obligations to
the Initial Contracting Party.
SECTION 16: Limited Offerina Memorandum. The City
Council ratifies and confirms its prior approval of the form
and content of the Limited Offering Memorandum prepared in the
initial offering and sale of the Contracts and hereby approves
the form and content of any addenda, supplement, or amendment
thereto. The use of such Limited Offering Memorandum in the
reoffering of the Contracts by the Initial Contracting Party is
hereby approved and authorized. The proper officials of the
City are hereby authorized to execute and deliver a certificate
pertaining to such Limited Offering Memorandum as prescribed
therein, dated as of the date of payment for and delivery of
the Contracts.
SECTION 17: N~ices to Contractina Parties Waiver.
Wherever this Ordinance provides for notice to Contracting
Parties of any event, such notice shall be sufficiently given
-23-
4759Z
(unless otherwise herein expressly provided) if in writing and
sent by United States Mail, first-class postage prepaid, to the
address of each Contracting Party appearing in the Contract
Register at the close of business on the business day next
preceding the mailing of such notice.
In any case in which notice to Contracting Parties is
given by mail, neither the failure to mail such notice to any
particular Contracting Party, nor any defect in any notice so
mailed, shall affect the sufficiency of such notice with
respect to all other Contracts. Whenever this Ordinance
provides for notice in any manner, such notice may be waived in
writing by the Contracting Party entitled to receive such
notice, either before or after the event with respect to which
such notice is given, and such waiver shall be the equivalent
of such notice. Waivers of notice by a Contracting Party shall
be filed with the Paying Agent/Registrar, but such filing shall
not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
SECTION 18: Benefits of Ordinance. Nothing in this
Ordinance, expressed or implied, is intended or shall be
construed to confer upon any person other than the Ci ty, the
Paying Agent/Registrar, and the Contracting Parties any right,
remedy, or claim, legal or equitable, under or by reason of
this Ordinance or any provision hereof, this Ordinance and all
its provisions being intended to be and being for the sole and
exclusive benefit of the City, the Paying Agent/Registrar, and
the Contracting Parties.
SECTION 19: Inconsistent Provisions. All ordinances,
orders, or resolutions, or parts thereof, which are in conflict
or inconsistent with any provision of this Ordinance are hereby
repea led to the extent of such conf lict, and the provis ions of
this Ordinance shall be and remain controlling as to the
matters contained herein.
SECTION 20: Governina Law. This Ordinance and the
Contracts authorized to be executed and delivered hereunder
shall be construed and enforced in accordance with the laws of
the State of Texas and the United States of America.
SECTION
herein are
construction
21: Effect of
for convenience
hereof.
Headinas.
only and
The
shall
Section headings
not affect the
SECTION 22: Construction of Terms.
the context of this Ordinance, words of
shall be considered to include the plural,
number shall be considered to include the
If appropriate in
the singular number
words of the plural
singular, and words
-24-
4759Z
of the masculine, feminine, or neuter gender shall be
considered to include the other genders.
SECTION 23: ~verability. If any provlslon of this
Ordinance or the application thereof to any circumstance shall
be held to be invalid, the remainder of this Ordinance and the
application thereof to other circumstances shall nevertheless
be valid, and the Council hereby declares that this Ordinance
would have been enacted without such invalid provision.
SECTION 24: Public Meetino. It is officially found,
determined, and declared that the meeting at which this
Ordinance is adopted was open to the public, and public notice
of the time, place, and subject matter of the public business
to be considered at such meeting, including this Ordinance, was
given, all as required by Article 6252-17, Vernon's Texas Civil
Statutes, as amended.
SECTION 25: Incorooration of Preamble Recitals. The
recitals contained in the preamble hereof are hereby found to
be true, and such recitals are hereby made a part of this
Ordinance for all purposes and are adopted as a part of the
judgment and findings of the City Council of the City.
SECTION 26: Emeroency. The public importance of this
measure and the fact that the Contracts must be delivered as
soon as possible to provide funds for the Property identified
in Exhibit A constitutes and creates an emergency for the
immediate preservation of the public peace, health, and safety
or for the usual daily operation of a municipal department
constitutes and creates an emergency and an urgent public
necessity requiring the suspension of the Charter provision
that no ordinance be passed on the date it is introduced, and
such Charter provision is accordingly suspended and this
Ordinance is declared to be an emergency measure, and shall
take effect and be in full force immediately from and after its
passage on the date shown below.
[The remainder of this page intentionally left blank.]
-25-
4759Z
PASSED AND ADOPTED, this 15th day of January, 1991.
CITY OF SCHERTZ,
ATTEST:
City Secretary
(City Seal)
Exhibit A - property (Contracts)
Exhibit B - Paying Agent/Registrar Agreement
Exhibit C - Escrow Deposit Agreement
-26-
4759Z
4759Z
EXHIBIT A
[IBM/CPS Data Processing Equipment Contract]
-27-
-.-
~'iiiiii...r'
. . - -- ..
. - --
- --
~-
- ~-
'--'.i. p.. -; Systems, Inc.
February 8, J991
Mr. Steve Simmonson
City of Sherlz
P. O. Drawer 1
Shertz, Texas 78154
Dear Mr. Simmonson
Thank you for the recent order which the City of Shertz placed for
computer equipment and software from CPS Systems, Inc. CPS takes
pride in p:uJViding highly reliable equipment to satisfy your
requirements. In addition to our quality products, CPS pledges a
company commitment of continued support.
I have enclosed a copy of the accepted contract for your files.
It is a pleasure doing business with you. I f you have any
questions or need additional information, please feel free to call.
Sincerely
. jp/\,"t) ,E Ct1j
Gary Day .
Account Manaqer
~. 'I
GD/bg
Enclosure
5y17
3400 Carlisle, Suite 500, Dallas, TX 75204 (214)855-5277
CPS Systems, Inc.
NOTICE OF INSTALLATION
SALES ORDER NUMBER
20i~lj .""1":"",
INSTALLATION CONTACT
OF
CUSTOMER NAME
CITY OF SCHEPT:"
STREET ADORESS
['lOr) SCHERTZ
CITY
SCHERT::
ZIP CODe
7815tt
PHONE NUMBER
INSTALLATION DATE
ITEM
NUMBER
SERIAL
NUMBER
DESCRIPTION
[IS.:::H7St3
:'33 ~1B HAFm 0 I SV
MSU002
2 BAY CABINET
SCSI TEPMINATOP
COMMENTS
CPS Systems. Inc.
Accepted by:
SCHEPT:?
Inltalling Location
I
j
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....'"
.,j
.-J
I
I
I
I
,
The hardware, softwar~. and/or related produc. whose
descriptions and item numbers appear above have been
installed and are ready to use. CUSTOMER accep~. de-
livery of these pursuen,t to the terms and condItIOns
of the appropriate AGREEMENT between CPS and the
CUSTOMER.
C I TV OF '3CHEF:T::
Company...,? ....~ _ '_.' /; .
:/ >9 [f,.. ,>_:;~<(:~..........r...._
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Client: City of Schertz
P. O. Dra_r 1
Schertz, TX 78164
Contract Number: 200173-TX98
Contract Date: 01/23191
Today'. Date: 06113/91
TRAINING SUMMARY
1'.#:~P1i~P~@I\1~~~~~(~.i~1
Contrap_d
irainlli
$4,500.00
rlyC,"-,,,,,_
. . el Houri .......la~
$65.00
..-
Hours Rate Amount
Contract 100.00 45.00 4,500.00
Charged 104.50 45.00 4,702.60
Available (4.50) 45.00 (202.60\
Additional 65.00
TRAINING DETAIL
Hours Hours Amoun1
Date Trainer Ap Iication Client Staff Spent Char ed Rate Char ed
I 03108191 !BObby Dow Basic LIE PO 3.50 3.50 45.00 157.50
Mun Cour1 Mun Court 3.60 3.60 46.00 157.60
I O~1<I" I""H' "",.d IPD&MC I I I
LIE & MIC 6.50 6.50 45.00 I 292.50 I
Mindy Simmons Work on System 1.50 .00 45.00 .00
Utility Billing Util Dept 6.50 6.50 45.00 292.50
03116191 Laureen Barnard Basic LIE PD 8.00 8.00 45.00 360.00 I
Mindy Simmons General Ledger Accounting 4.00 4.00 45.00 180.00
I Accounts Payable Accounting 1.50 1.50 45.00 I 67.50
I
I SysoplCIISecurity 1.00 1.00 45.00 46.00
I 04104/91 Phillip Kerr System OVerview Tax Collections 6.00 6.00 45.00 270.00
04/11/91 !Laureen Barnard IBasiC LIE IPD 11.00 11.00 45.00 496.00
I I
05/06/91 Mindy Simmons UB;Balancing UtilDept 7.60 7.60 46.00 337.50
05107/91 Mindy Simmons UB:Balanclng UtilDept 8.00 8.00 46.00 360.00
05/08/91 Mindy Simmons UB;Processing UtilDept 7.50 7.50 45.00 337.50
05/09/91 Mindy Simmons UB:Billing IUtilDept 8.00 8.00 46.00 360.00
!GLlAP I I
06/22/91 Mindy Simmons Accounting 7.60 7.60 46.00 337.60
06/23/91 Mindy Simmons GLlAP/RM Accntng/Util 3.50 3.60 45.00 167.60
06/24/91 Laureen Barnard Data Entry Assist PD 8.00 .00 45.00 .00
06/28191 Laureen Barnard Data Entry Assist PD 8.00 .00 45.00 .00 I
OS/29/91 Laureen Barnard Mun Court Mun Court 7.00 7.00 45.00 315.00 I
05/31191 Laureen Barnard Mun Court Mun Court 4.00 4.00 45.00 I 180.00 I
I I
I
I
Totals:
122.00
104.60
$4,702.50
-'-
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~..=. p..~ ys ems, nc.
June 13, 1991
Mr. Steve Simmonson
City of Schertz
P. O. Drawer 1
Schertz, TX 78154
Re: Training time summary
Dear Steve:
Enclosed is a summary sheet that shows each of the training and/or work sessions
that various CPS personnel have spent with the city of Schertz.
Please note that only 104i of the 122 hours spent on-site have been charged
against the contract amount of 100 hours. Training hours in excess of the number
of hours provided at discounted rates in the contract are normally charged at the
normal CPS rate, which is currently $65.00 per hour.
Since it has already been billed, the 4i hours in excess of the 100 contract
hours will remain at the $~5.00/ho~r rate. However, training time that is
scheduled for next week -- 18t and 19t wi 11 be charged at the standard $65 rate.
If you have any questions, please do not hesitate to call me.
~~"
Glen A. Bradshaw ~
Product Manager
Cities/Accounting
Enclosure
2800 Armory Road, Wichita Falls, TX 76302 (817)761-1626
0p~
\.......-~ ~J
CPS SYSTEMS, INe.
3400 Carliste, Suite 500
Dallas, TX 75204
NUMBER 200173-TX08
1/23/91
AGREEMENT
This Agreement is made by and between CPS SYSTEMS, INC., a Texas corporation, tocated at 2800 Armory Road,
Wichita Falls, Texas 76302, U.S.A., hereinafter referred to as CPS. and
City of Schertz
and hereinafter referred to as CUSTOMER OR LICENSEE.
1bis Agreement supercedes all previous communications, representations, or agreements, either oral or written, between
CPS and CUSTOMER. No representations or statements of any kind made by any representative of CPS, which are not
stated berein, sball be binding on CPS. Any modifications or additions to any provision of this Agreement must be agree
to in writing by a duly-authorized officer of CPS.
Bill To:
City of Schertz
P. O. Drawer 1
Schertz. Texa~ 7R154
Pbone Number: (Ii 1 ?) fi'iR_7477
P. O. Number,
Tax Exempt Number:
Ship To:
City of Schertz
P. O. Drawer 1
Schertz. Texas 78154
Pbone Number, (512) 658-7477
Installation Contact: ~tpvP Simmnn<:nn
NOTICE TO CUSTOMER:
NOTICE TO CPS:
President
CPS SYSTEMS, INe.
3400 Cartisle, Suite 500
Dallas, TX 75204
CPS Liaison:
Gary Oay
Atto:
City of Schertz
P. O. Drawer 1
Schertz, Texas 78154
CUSTOMER Liaison:
Steve Simmonson
IN WITNESS WHEREOF, this Agreement is effective upon the date signed below by an officer of CPS. By signing
below, CUSTOMER aclcnowledges that CUSTOMER has read, understands, and agrees to be bound by the terms and
conditions of this Agreement including subsequent pages and all attached EXHIBITS.
Accepted By: Accepted By:
CPS SYSTEMS INC.
(CPS)
yton O. Callaway
Title: sident and CEO
Date Signed: Y7 ,f; / f C; I
REOTALS
1. CPS licenses and sublicenses certain computer software; hereinafter referred to as the CPS Software or the Sublicense(
Software and collectively referred to as the Licensed Software.
2. CPS provides certain computer hardware and related products; hereinafter referred to as the Hardware and/or tlte
Retated Products.
3. CPS provides certain related services.
4. CUSTOMER desires to acquire certain Hardware and/or Related Products; and/or CUSTOMER desires to obtain,
pursuant to a license, Licensed Software; and/or CUSTOMER desires CPS to provide related services.
\g--
By:
By:
Page I
IN CONSIDERATION OF the tenn~ and conditionr<: of thi~ Agreement. and other good and valuable consideration. the premises contained herein,
the receipt and mfficiency of which is hereby acknowledged. the partje~ hereto agree a~ fol1ow~:
ARTICLE 1- GENERAL TERMS AND CONDITIONS
1. DEFINTIlONS. Unless the context otherwi~ provider<:. for aU purpo~es of thi~ Agreement and all Addenda hereto. the following terms defined
have the meaning therein specified.
A. APPUCA TION SOFI'W ARE. Software that is problem oriented and in the cn$.(: of commercial activities may provide data control and
management over accounts payable. accounts receivable. payroU. general ledger. budgeting. fmancinl planning. and lOventory.
B. BACKUP. A systematic and regular procedure where copies are made on magnetic media of computer programs and/or data files for
archive or reconstructive purposes.
C. CENTRAL PROCESSING UNIT (CPU). A unit of the computer that includes circuits controlling the interpretation and execution of
instructions.
O. CPS HOLIDAYS. New Years Day. Memorial Day. Independence Day. Lttbor Day. Thank.-'I;giving Day. Friday after Thanksgiving Day,
Christmas Eve and Christmas.
E. DATA. A representation of facts. concepts or instructions in a formalized manner, mitable for communication. interpretation, or processing
by humans or by automatic means.
F. DATA BASE. A set of data, part or the whole of another set of data, and consisting of at least one me. that is sufficient for a given purpose
or for a given data processing system.
G. DOCUMENTATION. A collection of information that provide~ specifications, features. checklist, or operating procedwes of software.
H. FILE. An organized collection of data directed toward a specific purpo~e.
L HARDWARE. Physical equipment used in data processing. as opposed to computer programs, procedures, rules. and associated
documentation (software).
J. OBJEcr CODE. Machine level program output from compilation or assembly of source code.
K.. OPERA TIN'G SYSlEM SOFTWARE. Software. normally supplied by equipment manufacturers, that controls the execution of computer
programs and that may provide scheduling. debugging, inpllt.OUtput control. computer system re~ource accounting, compilation, assembly,
storage auignment. data management and related services.
L. PERIPHERAL EQUIPMENT. The input/output units and auxiliary units attached to the CPU such as printers, magnetic tape units,
converters, tape readers.visual display terminals. and floppy disk drives.
M. REMOTE SITE. A location of peripheral equipment sufficiently far removed from the CPU so as to require a telephone or other
common..carrier communications link.
N. SERVICE BUREAU. A commercial enterprise that processes d.1.ta for other~.
O. SOFTWARE. Computer programs. procedures. rules, and possibly associated documentation conccmed with the operation of a data
processing conlputer system andgen,etally diyided into two c3,tegorie!'l, operating systems and apptication ~ftwaIe.
P. SOURCE CODE. Compute(l'togram, before compilatioo or ,,",,,,mbly.
Q. TABLE. An arranged collection of data in which each item is uniquely identified by a label or position relative to other items.
R. lELECOMMUNICAnoN SERVICES. Services provided by CPS using telecommunication equipment and standard telephone lines,
hereinafter referred to as TCS Services.
S. TIME AND MATERIALS BASIS. Charges for services that are not included under ..~f<lndard coverage of this Agreement and are
available at the current CPs rates.
T. TIME~SHARIN'G SERVICE. A commercial enterprise that selllll computer system resources via remote I/O devices in a time-sharing mode
of operation that enable.."Itwo or more usern to execute computer programs concurrently.
U. WORKSTATION. A configuration of computer equipment designed for use by one person at a time. 'This may have a terminal cOMected
to a computer or it may be a stand~alone system with locnl processing capability. Worhtation may also be known 805 visual display tenninal
(VDT) Ot cathode ray blbe (CRT).
2. ASSIGNMENT. CUSTOMER may assign this Agreement in whole or in part only with the prior written consent of CPS. CPS may assign this
Agreement upon notice to CUSTOMER.
3. CONFIDENTIAL lNFORMA TION. The parties hereto agree that all proprietary infonnation disclosed by the other during performance oethi.
Agreement. and identified as proprietary, shall be held in confidence and u~ed only in perfonnance of this Agreement. Each party will exen::ise the
highest standard of care to protect the other's proprietary data from unauthorized discto:<lOres. If such data i:'l public Iy available, already in one party's
possession or known, or is thereafter rightfully and lawfuUy obtained by one party from l'Iources other than the other party, there shall be no restriction
in its use.
4. WAIVER. Any waiver by either party of any provision of this AgR:ement shill not imply a subsequent waiver of that or any other provision.
S. NOTICE. Any notices or demands required to be given herein shall be given to the parties in writing. and by certified mail at the addresses
specified herein, or to such other addresses a~ the parties may hereinafter substitute by written notice given in the manner prescribed in this section.
6. ENTIRE AGREEMENT. It is expresl\:ly agreed that this: Agreement embodies the entire agreement of the parties in relation to the subject matter
of this Agreement, and that there is no other oral or written agreement or understanding between the parties at the time of execution of this Agreement.
A. This Agreement cannot be modified except by the written agreement of all parties hereto. CUSTOMER further agrees that only an officer
of CPS has the authority to obligate CPS and that CUSTOMER. in entering into thil\: Agreement. has: not relied on any representations, other
than those expressly contained in this Agreement.
B. CUSTOMER and CPS further agree that all. if any, purchase ordet'!'!: or similar documents that pUlpOlt to vary or add to the terms and
conditions of this Agreement shall be null and void and "hall not vary or add to the tenns and conditions of thiR Agreement.
7. GOVERNING LAW. The parties agree that this Agreement shall be governed by the laws of the State of Texas. Except to the extent that the
provisions of this Agreement are clearly inconsistent therewith. this Agreement will be governed by the Uniform Commercial Code of the State of
Texas. To the extent that there is to be a delivery or performance of service5 under this Agreement. !luch services will be deemed. "goods" within
the definition of such Uniform Commercial Code except when deeming :<lOch services as "goods" would result in a clearly unreasonable interpretation.
S. LEGAL CONSTRUCITON. In case anyone or more of the provillliom: contained in this Agreement lIhaU for any rea.wn be held to be invalid.
illegal, or onenfon:eable in any re"J"'Ct. ,uch invalidity, illegality. or unenforceability ,hall not affect aoy other provision. thereof. and in this
Agreement shall be construed. 85 if such invalid. illegal. or unenforceable contained herein. '.
Page 2
9. BINDING EFFECI'. TIlls Agreement ~hall enure to the benefit of and bind the parties hereto. their successors and assigns.
10. AUTHORITY. Each party hereby warrants and represents that their re~pective signature~ ~et forth herein have been and are on the date oCtbis
Agreement duly authorized by all necessary and appropriate corporate or legislative action to execute this Agreement.
11. SEcnON HEADll'lGS. All section headings contained herein are for convenience or reference only and are not intended to define or limit
the scope of any provision of this Agreement.
12. EXPENSES FOR ENFORCEMENf. In the event either party is required to employ an attorney to enforce the provisions of this Agreement
or is required to commence legal proceedings to enforce the provisions thereof. the prevailing party shall be entitled to recover from the other,
reasonableattomey's fees andcourtcostsincurredin connection with such enforcement. including. but not limited to. collection agency fees:. attorney
litigation fees. suit fees and costs of investigation and litigation.
13. FORCE MAJEURE. Neither party hereto shall be in default by reason of any failure of it~ performance under this Agreement if such failure
results. whether directly or indirectly. from fire. explo!>ion. strike. freight embargo. act of God. or of the public enemy, war. civil disturbance, act
of any government, de jure or de facto, or agency or official thereof, labor !>hortage. tran"!'ortation contingencie!>, unusually severe weather, default
of manufacturer or a supplier as subcontractor. quarantine, restriction. epidemic, or catastrophe.
14. SOLICITATION OF EMPLOYEES. Neither CPS nor CUSTOMER shall. during the term of this Agreement nor for a period of one year
following its tennination, solicit for employment nor employ, whether as an employee or independent contractor, any person who is or has been
employed by the other during the tenn of this Agreement.
15. TAXES. CUSTOMER shall pay all taxes arising out of this Agreement, except for taxes based upon the net income of CPS. If CUSTOMER
is a tax exempt entity. CUSTOMER shall provide CPS with written proof of such status.
16. EXHIBITS. All Exhibits: described in this Agreement are attached hereto, incorporated herein, and made a part of this Agreement for all
purposes.
17. MISSPELLINGS. Misspelling of one or more word~ in thi" Agreement !>hall not invalidate this Agreement. Such misspelled words shall be
read so as to have the meaning apparently intended by the parties.
18. EFFECIlVE DATE. This Agreement is effective upon the date !>igned by an officer of CPS.
19. OTHER SERVICES. If CPS agrees to provide any other !>ervices for CUSTOMER. CUSTOMER and CPS agree that the term!> and conditions
of such are governed by this Agreement and at the rate!> li!>ted in Exhibit A. Such rates ~ ~uhject to change without notice.
20. SERVICE RELATED EXPE,~. CUSTOMER is respon!>ibJe for all expennes: not specified a!> heing CPS' responsibility. Such expenses
include, but are not limited to, travel, tran9'ortation. food, lodging, long di!>tance telephone charge!>, and media costs incurred by CPS in its
performance of this Agreement. Travel related expense!> are chargeable from the CPS facility in which the !>ervicing employee originates.
21. INDEPENDENT CONTRACTORS. CPS may engage independent contractors to perform all or part of CPS' obligations under this Agreement.
22. DELIVERY. Delivery shall be defined as F.O.B. destination at CUSTOMER'S premi!Oes or when CUSTOMER take..o; possession of the items
to be delivered, whichever occurs first. CPS shall prepay the shipping and tramnt insurance charge!> for the itemJII delivered, and CUSTOMER agrees
to reimburse CPS for such charges.
23. RISK OF LOSS. Risk of loss shall pass to CUSTOMER upon delivery.
24. INSURANCE. CPS shall inmre the Hardware against los!>, de!>tIUction. and theft until delivery. CUSTOMER agrees to provide adequate" All
Risk" insurance to cover the Hardware while on CUSTOMER's premises until CUSTOMER'!Ii; payment in full. CUSTOMER further agrees to hold
harmle!lls and indemnify CPS against any and all losses arilring out of the Hardware after delivery and before CUSTOMER's payment in full.
25. SECURITY INTEREST. CPS shall retain a security intere!>t in all Hardware. Related Products and in any proceeds for as long as CUSTOMER
owes CPS any monies under this Agreement. CUSTOMER agrees to execute such document as may be nece!>sary to protect CPS' security interest.
26. PAYMENT. All amounto; payable to CPS are due and payable in United States dollars at CPS' offices in Wichita Falls, Texas, U.S.A. All
amounts not paid when due shall bear interest at the rate of one and one-half percent per month or the highe!>t rate aUowed by law whichever is less.
27. LIAISON BElWEEN CPS AND CUSTOMER. CPS and CUSTOMER hereby designate the individuals named herein as Liaisons, who shall
have the duty of acting as points of contact with personnel of CPS and CUSTOMER re~ctively. CUSTOMER' 5 Unison shall have the authority
to accept and coordinate the delivery of goods and .!lervice!ll provided by CPS. Either party may change its Liai~on upon notice to the other party.
28. CUSTOMER DELAYS, IT CUSTOMER delays CPS' performance. CPS !>hall be excused from perfonnance for an amount of time
commensurate with the delay from performance for an amount of time greater than the delay cau!>ed by CUSTOMER. Such delays by CUSTOMER
that may cau.o;e CPS to delay performance include, but are not limited to, the following:
A. CUSTOMER's failure to adequately prepare CUSTOMER's premise!> for installation of the Hardware prior to the scheduled delivery date.
B. CUSTOMER's failure to order fonns or !>upplie!> in a timely manner.
C. CUSTOMER's inadequacy in converting CUSTOMER's data for u!>e by the CPS Software including. but not limited. to, the following:
(I) Failute to have prep"'"" mlch data in the form and formal teque,ted by CPS:
(2) Failure to have prepared such data on or before the date tilpeCified by CPS;
(3) FaUure to have verified such data for accuracy; and.
(4) Submission of enuneous data to CPS.
D. CUSTOMER's failute to have adequately established lhe appropriate files for the CPS Softwatc.
E. CUSTOMER's failute to have adequately constructed the lables specified by CPS for the CPS Softwate.
F. CUSTOMER's failure to have completely prepared the Hardware's inlrtallation !>ite prior to the Hardware's actual delivery including, but
not limited. to, failwe to have all electrical wode: and cable installation completed.
Page 3
29. NON~DISCLOSURE OF TERMS. Except when required otherwise by law. CUSTOMER agrees not to disclose the terms and conditions of
Ihi. Agreement.
30. INJUNCTIVE RELIEF. CUSTOMER agrees that all Licensed Software provided pursuant to this Agreement is unique. If CUSTOMER
breaches this Agreement, then in addition to mch other remedies as are available to CPS. CPS may obtain injunctive relief. This Section shall not
be deemed to in any way limit such remedies as may be availahle to CPS at law or equity.
31. LIMITATION OF LIABn..fIY. All warranties in this Agreement are mlbject to the following provisions:
A. ALL WARRANTIES INTHIS AGREEMENT ARE IN LIEU OF ALL OTIlER W ARRANfIES. EXPRESS OR IMPLIED. INCLUDING.
BUT NOT LIMITED TO TIlE IMPLIED WARRANTIES OF MERCHANTABlLITY AND FITNESS FOR A PARTICULAR PURPOSE.
UNLESS EXPRESSLY WARRANTED HEREIN. ALL GOODS AND SERVICES PROVIDED BY CPS PURSUANT TO THIS
AGREEMENT ARE FURNISHED ON AN "AS IS" BASIS.
B. CPS SHALL NOT BE LIABLE FOR FAILURE TO PROVIDE. ORDELA YS INPROVIDING. SERVICES UNDER THIS AGREEMENT
IF DUE TO ANY CAUSE BEYOND CPS' REASONABLE CONTROL.
C. CUSTOMEREXPRESSL Y ASSUMES ALL RESPONSffilLITY FOR TIlE SELECIlON AND USE OF TIlE HARDW ARE. LICENSED
SOFIWARE, AND PRODUCfS. CUSTOMER EXPRESSLY AGREES TO VERIFY lHE RESULTS OF ITS USE OFlHE HARDWARE,
LICENSED SOFIW ARE. AND RELATED PRODUCTS AND SERVICES.
D. CUSTOMER IS SOLEI.. Y RESPONSffiLE FOR CREATING DAILY BACKUP, AND VERIFYING VALIDITY OF BACKUPS. IN
NO EVENT SHALL CPS BE RESPONSffiLE FOR lHE LOSS OR DESTRUCIlON OF DATA.
E. CUSTOMER UNDERSTANDS AND AGREES lHE COMPLEXITY OFlHE COMPUTER SOFIW ARE PROVIDED IS SUCH TIlAT
IT MAY HAVE INHERENT DEFECTS. LATENT OR MANIFEST. CPS SHALL USE ITS BEST EFFORTS TO CORRECf SUCH
DEFECTS, IF ANY, IN ACCORDANCE wrrn lHE LIMITED WARRANTY GRANTED IN ARTICLE II, SECIlON 17 EN1TILED
"LIMITED WARRANTY".
F. CUSTOMER UNDERSTANDS AND AGREES TIlAT IT TAKES SOLE RESPONSffiILITY FOR USING lHE GOODS AND
SERVICES PROVIDED BY CPS wrrn GOODS AND SERVICES NOT PROVIDED BY CPS.
G. CPS SHALL NOT BE UABLE FOR ANY INCIDENTAL. SPECIAL OR CONSEQUENTIAL DAMAGES OF ANY NATURE
WHATSOEVER, SUCH AS. BUT NOT LIMITED TO. LOSS OF ANTICIPATED PROFITS. OR OTIffiR ECONOMIC LOSS IN
CONNECIlON wrrn. OR ARISING OUT OFlHE EXISTENCE OFlHE FURNISHING. FUNCIlONING. OR CUSTOMER'S USE OF
ANY SERVICES OR GOODS PROVIDED IN THIS AGREEMENT. CPS WILL NOT BE LIABLE FOR DAMAGES AS INDICATED
ABOVE. EVEN IF CPS HAS BEEN ADVISED OF TIlE POSSffilLITY OF SUCH DAMAGES.
H. IN NO EVENT SHALL CPS BE LIABLE FOR ANY AMOUNT IN EXCESS OF TIlE MONIES PAID BY CUSTOMER TO CPS
PURSUANT TO THIS AGREEMENT.
1 NO ACIlON. REGARDLESS OF ITS FORM. ARISING OUT OF TRANSACIlONS OCCURRING tiNDER OR CONTEMPLATED
BY lHIS AGREEMENT. MAYBE BROUGHT BY EITHER PARTY MORE lHAN TWO YEARS AFfER lHE CAUSE OF ACIlON
HAS ACCRUED.
32. TERM. This Agreement sh811 remain in effect for one (1) year from the Effective Date of this Agreement and shall automatically renew for
subsequent one year terms unless either party gives the other party at lea~ thirty (30) days written notice of its intent not to renew. Upon termination
and receipt of Licensed Software by CPS. CPS shall refund to Licensee any prepaid prorated fees excluding the Initial License Fee (LF).
33. TERMINATION. This Agreement may be terminated upon written notice in accordance with the following:
A. Either party may terminate in the event of bankruptcy. insolvency. and/or an assignment for the benefit of creditors of or by either party.
B. In the event CUSTOMER fails to perform in accordance with the terms and conditions of this Agreement including, but not limited to all
addenda hereto; is so notified by CPS; and fails to cure such failure within thirty days following notice, CPS may terminate this Agreement
upon written notice.
C. Termination of this Agreement terminates a11licenses. if any. granted punruant to this Agreement.
D. Upon termination of this Agreement CUSTOMER shall return all Licensed Software immediately to CPS.
E. All non-disclosure, non-competition. and confidentiality provisions of this Agreement shall survive its termination.
ARTICLE 11- SOFTWARE LICENSE
1. UCFNSED SOFTWARE. CPS agrees to provide LICENSEE with the CPS Software and/or Sublicensed Software collectively refer to as the
Licen!iled Software listed in Exhibit B. CPS Software is applications software developed and owned by CPS. Sublicensed Software is application
and/or operating system software owned and supplied by a third party vendor.
A. LICENSEE may subsequently order additional Licensed Software from CPS by requesting mlCh additional licensed Softwate from CPS
and executing the copy of a SOFtWARE LICENSE ADDENDUM that CPS sendl'l to confmn LICENSEE's request and returning such
Addendwn to CPS.
B. At no additional charge, CPS shall provide LICENSEE with a minimum of one set of documentation for the Licensed Software. All
documentation I;"rovided to LICENSEE including, but not limited to, user manuals for the Licensed Software, shall be deemed to be included
within the defmltion of the Licensed Software. Additional copies of the documentation available for an additional charge.
2. SOFIW ARE ENVIRONMENT. In order for the Licensed Software to function correctly. liCENSEE must provide a hardware and software
environment in accordance with CPS specifications. Such environment includes, but is not limited to. U!ile of the appropriate operating system at
the version and release levels specified by CPS.
3. SOFIW ARE INSTALLATION DATE. A. ",""ified herein, CPS or LICENSEE ,hall in,tall the Licensed Software.
A. If CPS installs the Licensed Software. the date on which CPS load~ the CPS Software on the LICENSEE' s CPU shall hereinafter be referred
to as the Software Installation Date.
B. If LICENSEE installs the Licensed Software. then Ihe date of delivery to LICENSEE ,hall be deemed to be tbe Software Installation Date.
4. LICENSE FEES. LICENSEE agrees to pay the INITIAL LICENSE FEE (ILF) and the MONTHLY LICENSE FEE (MLF) for the CPS Software
and LICENSEE agrees to pay the Initial Licen8e Fee (ll..F) for the SublicenRed Software specified herein.
5. INITIAL LICENSE FEE. LICENSEE agrre. to pay the INITIAL LICENSE FEE (lLF) for the Licensed Software in acc.OMance with the
following:
Page 4
A. Upon execution of this Agreement, LICENSEE agrees to pay the down payment amollnt specified in Exhibit B.
B. LICENSEE agrees to pay the balance of the INTI1AL LICENSE FEE (ll..F) specified herein within thirty (30) days after Software Installatioo
Date.
6. MONTIll.. Y LICENSE FEE. In accordance with the tenn, and conditions of this Agreement. CPS ,hall provide LICENSEE with updates,
enhancements, and program corrections for the CPS Software ~ified in thi!O Agreement. LICENSEE agrees to pay the MONn-n..Y LICENSE
FEE (MLF) in accordance with this Section.
A. UCEl'lSEE agrees to pay the first MON11-!L Y LICENSE FEE (MLF) within thirty (30) days after the Software Installation Date of the
CPS Software. Subsequent MONTHLY LICENSE FEE (MLF) paymenr~ are due on the same day of subsequent months as the original Software
Installation Date.
B. After this Agreement has been in effect for ooe year. CPS may change the MONTIll.. Y LICENSE FEE (MLF) upon thirty (30) days written
notice.
C. Upon termination of this Agreement for any reason, LICENSEE's right to use and pos!Oess the CPS Software shall immediately cease and
LICENSEE shall immediately return the CPS Software and it!O documentation to CPS.
D. If LICENSEE fails to pay the MON'TIll... Y UCENSE FEE (MLF) when due, CPS may terminate this Agreement in accordance with Article
L Section 33 entitled '~ATION".
E. Sublicensed Software is not subject to MLF: however, should the vendor of Sublicensed Software provide any updates, enhancements, or
corrections, CPS may at its sole discretion make !Ouch available at additional cost to the LICENSEE.
7. PROGRAM CORRECTIONS. Program Corrections are de-fined as changes to the CPS Software necessitated by its failure to meet published
specifications. CPS shall provide Program Corrections in accoro.'U1ce with the following:
A. CPS shall provide reasonable analysis and programming serviceI'! to correct documented errnrs which in CPS opinion are caused by a defect
in an unaltered version of the CPS Software.
B. If LICENSEE notifies CPS that there is !Ouch an error and CPS invemigation reveal~ that the error is due to some cause other than a malfunction
of the CPS Software, then LICENSEE agrees to compensate CPS for its efforts at CPS' then standard rates.
(1) Such other causes that may cause errors include. hut are not limited to, hardware malfunctions, erroneous data, errors caused by
LICENSEE's personnel, and errors caused by means not within the reasonable control of CPS.
(2) H LICENSEE has not acquired the TCS Services. then before CPS will provide services pursuant to this Section, UCENSEE shall
provide CPS with written documentation, as specified at the time by CPS. of the suspected errors.
8. UPDATES. An Update is defmed as a change made to the CPS Software for one Ot more of the following reasons:
A. A change in the CPS SoftW3I'9 'p specific'ations initiated by CPS.
B. Installation of a Program Correction.
C. A change nece.qsitatedby legislative change!O to LICENSEE's State Statutes or by procedural changes directed by other State agencies
having policy or procedUJ'8i control over the LICENSEE's operntions.. LICENSEE will provide CPS notification of such changes and a.c;sist
in intetpretation and defilJition.lt is the LICENSEE'~ re:o;pon!Oibility to notify CPS of legislative changes and that the changes are defined well
enough to insure the software modification!O could be performed by CPS and not require continual changes. It is CPS' intent to provide certain
legislative changes which are ~reed upon by CPS and LICENSEE that will not have an impact on CPS to the extent that it will adveI'llely affect
CPS' customer support and pnor commitments to its customers, or create a financial burden beyond the intent and pricing structure of this
Agreement. Provisions to the contrary notwithstanding, the provision of an Update pursuant to this Paragraph and whether to charge LICENSEE
for providing such Update shall be a CPS' sole discretion. Legi$lative change!O that require the following are not included as Updates under
thi~ Agreement.
(1) Legislative changes to the application software that would not provide the same sub!Otantial function!O a!O the previous software packages.
(2) Legislative changes that would require a major rewrite of the CPS application !Ooftware package.
(3) Legislative changes that would not be deemed appropriate by the majority of the CPS customers in that state because:
(a) Excessive computer I'e-~ources are required to accommodate the change~.
(b) The changes could be perfonned in a more simplified and/or economical manner.
(4) Legislative changes where a reasonable amount of time is not provided for CPS to make such legi,qlative changes during regular business
hours.
9. ENHANCEMENTS. An Enhancement i~ defmed as an improvement to he CPS Software. Such improvement includes, but is not limited to,
adding a function, adding a report. adding a CRT input fonnat, and adding a program. From time to time CPS, in its sole discretion. may choose
to make Enhancements for the CPS Software. If CPS does make such Enhancements. CPS shall provide them to LICENSEE annually in accordance
with the Article II. Section 3 entitled "SOFIW ARE INST ALLA nON DATE".
A. UCENSEE acknowledges that the Enhancements may not function with the particular configuration of hardware and software possessed
by UCENSEE and that in orderto function, the Enhancement!O may require additional hardware and software at an additional cost to UCENSEE.
B. UCENSEE also acknowledges that the Enhancements when in use may utilize more system resource~ than the CPS Software currently
installed. Such additional system resources include, but are not limited to, additional auxiliary storage, additional memory. and additional use
of the CPU.
10. INSTALLA nON OF UPDATES. ENHANCEMENTS AND CORRECTIONS. If LICENSEE has acquired the TCS Services, theo CPS shan
install the Enhancements, Updates, and Cotrections upon LICENSEE'!O computer symem. If LICENSEE has nol acquired the TCS Services, cPS
shall install !OUch Enhancements on a Time and Material~ Basis.
11. CPS SOFIW ARE OWNERSHIP. LICENSEE agrees that CPS claim!O exclusive ownership of the CPS Software.
A. UCENSEE agrees that LICENSEE acquires neither ownep;hip nor any other interest in the CPS Software. except for the right to use and
possess the CPS Software in accordance with the terms and conditions of this Agreement.
B. All rights not expressly granted to LICENSEE are retained by CPS.
12. SUBLICENSED SOFIW ARE OWNERSHIP. UCENSEE agrees that the owne",hip of the Sublicensed Software is retained hy the third party
vendor.
Page 5
A. LICENSEE agrees that LICENSEE acquires neither ownership nor any other interest in the Sublicensed Software, except for the right to
use and possess the Sublicensed Software in accordance with the terms and conditions of this Agreement.
B. All rights not expressly granted to UCENSEE are retained by the third party vendor or CPS.
C. UCENSEE agrees to execute any third party vendor license agreements or related documents required by such vendor.
13. SOFTWARE UCENSE. CPS hereby grants to UCENSEE a non-exclusive and non-transferable license for the use and possession of the
Licensed Software for a term of one year.
A. LICENSEE shill use the Ucensed Software only upon the computer hardware and at the location where such software is first installed.
Such computer hardware shall be hereinafter referred to as the Designated Configuration. If the Designated Configuration is malfunctioning,
LICENSEE may temporarily transfer the Licensed Software to an alternate computer hardware in the same location. H use of the Ucensed
Software on such alternate computer hardware exceed"! thirty days, LICENSEE shall so notify CPS.
B. LICENSEE's use of the Licensed Software is limited to use with the Designated Configurntion including. but not limited to, the maximum
number of workstations specified in Exhibit B.
(1) UCENSEE may Use the Licensed Software with computer hardware other than the Designated Hardware only with CPS express, written
consent and only after paying CPS, CPS' then current License Fee for the additional computer hardware.
(2) There lilhall be no additional License Fee for adding workstations identical to those in the Demgnated Configuration, provided the
maximum number of workstations specified is not exceeded.
C, The Licensed Software is provided in object code fonnat only. LICENSEE agrees not to modify, reverse engineer, reconstitute, de- compile,
and/or disassemble the Ucensed Software. UCENSEE expressly agrees that the license granted herein gives it no rights whatsoever to the
Licensed Software in source code fonnat.
D. UCENSEE may not copy the Licensed Software, except that LICENSEE may make three copies of the Ucensed Software for the sole
purposes of backup and provided that LICENSEE gives notice to CPS of the location of all. if any, of such backup copies stored other than
upon LICENSEE's premises.
E. LICENSEE agrees that CPS may enter UCENSEE' s business premises during regular business hours to determine LICENSEE's compliance
with this Section.
F. LICENSEE shall not use the Licensed Software in service bureau, time ~haring. and/or remote site operations without the express written
consent of CPS and payment of additional fees to CPS.
G. Without CPS express. written consent, LICENSEE shall not modify the Ucensed Software nor shall LICENSEE use any means other than
the Licensed Software to modify the mes uliled by the Licensed Software.
H. Provisions to the contrary notwith~anding. if this Agreement is tenninated. the Licen~e granted herein shaH immediately terminate.
14. TRANSFERS. Except as explici!ly provjded'f()~ i.ll this Agreem~nt",LICENSEE agrees that it Sh.11l neither attempt nor actually sell. give, lend,
lease, convey, transfer, license, pt:Qyiae, diminish, copy. nor in any other manner alienate any of its rights in the Licensed Software, whether or not
eVer modified.
15. PROPERTY RIGHTS. The parties agree that the Licensed Software including, but not limited to, programs in source and/or object code fonnat,
systems designs, applications, routines, techniques. ideas, fonnulae, and/or know-how utilized and/or developed by CPS are and shall remain the
exclusive property of CPS. LICENSEE agrees that the CPS Software contains CPS' trade secrets. cPS shall retain all copyright interests in the
CPS Software. whether published or unpublished. All, if any. modifications made to the Licensed Software by CPS ~hall be the exclusive property
of CPS and such modifications shall be deemed to be included within the definition of Licensed Software.
16. NON~DISCLOSURE. UCENSEE agrees not to disclose the CPS Software. LICENSEE further agrees that the CPS Soflwarecontains valuable
property of CPS. that LICENSEE shan keep the CPS Software confidential. and that LICENSEE shan not remove such proprietllI}' notices as CPS
may choose to place on the CPS Software.
A. UCENSEE agzu:s to inform all ofLICENSEE.s employees who have access to the CPS Software as to the provisions of this Section. B.
LICENSEE agrees to limit the access of the Licensed Software to those employees who in the course of their employment need access to the
CPS Software.
c. UCENSEE agrees not to pennit any independent contractor, including. but not limited to consultants. any access to the CPS Software
without such independent contractor fl1'St executing CPS. then standard non-disclosure/non-competitive agreement and returning to CPS an
executed copy. CPS shall provide LICENSEE a copy of such agreement upon request.
D. LICENSEE agrees that it will use its best efforts to insure that all of LICENSEE's employees who will review the documentation and/or
receive CPS training shall firnt execute CPS' then standard non-disclosure/non-competitive agreement and return to CPS an executed copy.
CPS shall provide LICENSEE a copy of such agreement upon request.
17. COVENANT NOT TO COMPElE. LICENSEE agrees that for as long as the Agreement remains in effect and for a period of two years
fonowing its termination, LICENSEE shall not compete with CPS in the business of providing to others software that performs function~ similar to
the CPS Software.
18. LIMITED WARRANTY. CPS makes the following limited warranty:
A. The CPS Software shall function in substantial accordance with its specifications for one year after the Software Installation Date.
LICENSEE agrees that the CPS Software is of such complexity that it may have defects, inherent, latent and/or manifest: and that as CPS' sole
liability and UCENSEE's sole remedy, CPS shall provide rea~onab]e programming services to correct documented errors which in CPS'
opinion are caused. by a defect in an unalteIed version of the CPS Software.
B. If LICENSEE notifies CPS that there is such an enor and cps. investigation reveals that the error lS due to Some cause other than a
malfunction of the CPS Software, then LICENSEE agrees to compensate CPS for its efforts at CPS' then standard consulting rates. Such other
causes that may cause errors include, but are not limited to. hardware malfunctions, use of supplies not recommended by CPS, erroneous data.
errors caused by LICENSEE.s per~onnel. and erroT5 caused by means not within the reasonable control of CPS.
19. FORMS QUALITY. The CPS Software has been designed to print using specific fonns that LICENSEE may porchase from CPS: hereinafter
referred to as the CPS Forms. If LICENSEE chooses not to use the CPS Forms of forms that are identical to the CPS Fonns, UCENSEE does so
at its own risk.
Page 6
ARTICLE 11I- HARDWARE SALES
1. HARDWARE PURCHASE. CPS agrees to sell and CUSTOfo..1ER agrees to buy the Hardware listed in Exhibit C. CUSTOMER may subsequently
order additional Hardware from CPS by requesting additional Hardware from CPS. executing the copy of a HARDWARE SALES ADDENDUM
that CPS sends to confinn CUSTOMER', reque't. and returning such addendum to CPS.
2. OPERATING SYSTEM SOFIW ARE. If operating 'Y,tem ,oftware is to be provided by CPS. CPS ,hall provide such software to CUSTOMER
pursuant to the tenns and conditions of this Agreement, Article IT.
3. ESTIMATED HARDWARE DELIVERY DATE. Unlel'ls otherwi~ agreed upon by CPS and CUSTOMER. the date of the Hardware's delivery
is approximate. CPS shall notify CUSTOMER of the scheduled delivery date.
4. INSTALLATION AND SITE PREPARATION. The CUSTOMER agree' to prepare the Hardware' s installation site prior to the delivery of the
Hardware and CPS agrees to install the Hardware in accoronnce with the following:
A. CPS shall provide CUSTOMER with a copy of all relevant site preparation specifications.
B. CUSTOMER shall prepare the installation site in accordance with the site specifications.
C. Unless otherwi!l:e specified in this Agreement. CUSTOMER shall furnish all necessary labor and shall assume full responsibility for
unpacking the Hardware and placing the Hardware in position at the site.
D. Unless otherwise specified in this Agreement. CUSTOMER shall furnish all necessary lahor and materials to install all associated electrical
lines. peripheral equipment. cables. and cables ends.
E. If this Agreement provides for Hardware installation by cps. then CPS shall provide CUSTOMER with a copy of all relevant environmental
specifications for the Hardware. CUSTOMER agrees to maintain the site and operate the Hardware in accordance with such environmental
specifications including. but not limited to. the electrical power. temperature. and humidity specifications. CUSTOMER expressly assumes
all responsibility for rroviding all equipment neces..~ary. if any. for regulating and/or conditioning the electrical power.
F. If CPS is to instal the Hardware. then the Hardware Installation Date shall be defined as the day CPS delivers the Hardware.
(1) However. if the CUSTOMER fails to accept delivery when offered. the date such offer of deliver is tendered shall be deemed as the
Hardware Installation Date.
(2) CUSTOMER agrees to compensate CPS. at CPS' then standard rates. for all time and materials expended because of CUSTOMER's
delays in preparing the hardware site and/or because of the unavailability of the hardware site.
G. If CUSTOMER is to install the Hardware. then the Hardware In!';tallation Date shall be defined as the date of delivery.
5. PRICE. For the purchase of the Hardware., qJSTOMER agrees to pay th~ total amount ~cified in Exhibit C.
6. PAYMENT. CUSTOMER agtlees to pay for the Hardware in accordance with the followlng:
A. Upon execution of this Agreement. CUSTOMER agrees to pay the down payment amount specified in Exhibit C.
B. CUSTOMER agrees to pay the balance of the total amount specified in Exhibit C within ten (10) days of the hardware installation date.
7. TIfLE. Title to the Hardware shall pass from CPS to CUSTOMER upon payment in full by CUSTOMER to CPS in accordance with this
Agreement.
8. LIMITED WARRANTY. CPS makes the following limited warranty:
A. Corrunencing upon the Hardware Installation Date and for the warranty period specified herein. CPS shall. at no charge to CUSTOMER
for parts or labor, repair or replace any component of the Hardware that fails to perform in accordance with its manufacturer's specifications:
provided. however. that:
(1) Such failure is due to a defect in worlcrnanship or materials: and
(2) CUSTOMER iofonns CPS in writing duting the warranty period of such failure: and
(3) Unless otherwise stated in this Agreement. if the Hardware is located more than fifty miles from the nearest CPS Service Office.
CUSTOMER agrees to pay CPS. at CPS' then standard rates for travel time. transportation. meals. and lodging ex('Cnses for CPS' traveling
to and from the Hardware's location: or CUSTOMER may. at CUSTOMER's sole expense and risk of loss. delIver the Hardware to and
retrieve the Hardware from the nearest CPS Service Office: and
(4) The Hardware has not been affected by flre. accident. abuse. or neglect. nor has the Hardware been subjected to unusual physical stress
or electrical stress including hut not limited to lightning or high voltage surges. nor has the Hardware been operated in an envuonment other
than as specified in the site environmental specifications, nor has anyone other than CPS performed maintenance on the Hardware: and
(5) CUSTOMER has performed CUSTOMER's preventive maintenance duties as specified by the Hardware manufacturer. and
(6) CUSTOMER has used the Hardware only with such supplies as are recommended by CPS.
B. The location and availability of warranty service for an item of Hardware shall be determined by the category to which such item of hardware
belongs.
(1) The Limited Warranty categories. hereinafter referred to as Warranty Gasses. are defined as follows:
(a) Warranty Class 1: H the Limited Warranty is specified CLIlI Warranty Clal'ls 1. then CPS shall perform warranty services at the
Hardware's location. H in CPS' sole opinion. warranty service shall prevent the item of Hardware from being ~rable for more than
twenty-four hours. CPS shall make its best efforts to loan CUSTOMER a similar item of computer hardware until the inoperable item
of hardwme is repaired. Provisions to the contrary notwithstanding. CPS shall have no obligation to loan computer hardware to
CUSTOMER. if CPS does not poSSCR8 computer hardware suitable to loan to CUSTOMER or if the Hardware is malfunctioning due
to an event of force majeure including. but not limited to. lightning.
(b) Warranty Class 2: If the Limited Warranty i~ specified as Warranty aa..~s 2, then CUSTOMER must transport the item of hardware
to the closest CPS Service Office to obtain warranty service. CUSTOMER shall bear all costs of such transportation including. but
not limited to, shipping and insurance charge:ll a<; well as the risk of loss. Service~ performed pumJant to Wananty aass 2 shall be
perfonned as scheduled by CPS in its sole di.",retion.
(c) Warranty Class 3: Iftbe Limited Warranty is specified as Warranty Class 3. then CPS provides such item of Hardware "AS IS"
without warranty from CPS. and CPS will pass through any and all available warranties from original equipment manufacturer to
Page 7
CUSTOMER.
(d) If an item of Hardware has no Warranty Oass specified. then such item of Hardware is provided by CPS "AS IS" and without
warranty.
(2) Wananty services are available 8:00 a.m. to 5:00 p.m.. Monday through Friday, Central Time. excluding CPS holidays. If CUSTOMER
requests and CPS agrees to perform any warranty services outside such hourn of service, CUSTOMER agrees to pay CPS for the work:
performed. at CPS' then standard rates for time and expenl'lcs. except that there shall be no charge for parts.
(3) CPS does not provide a loan of computer hardware for items of Hardware ~ified as Warranty Class 2, Warranty Class 3, or where
no warranty class is specified.
C. The Limited Warranty described in this Section is CUSTOMER'!il exclusive remedy and CPS' sole liability arising out of the Hardware.
D. All returned parts and/or whole units replaced by CPS punmant to this Section shall become the property of CPS. CPS may Use new or like
new parts and/or whole units in fulfilling the obligations of this Section.
E. If no warranty period is specified herein and a Warranty Oass is specified. then the warranty period for the purposes of this Section shall
be deemed to be thirty days and shall commence upon the Hardware Ins.tallation Date.
F. In fulfilling the obligations of this Section. cPS may loan CUSTOMER various hardware components while CUSTOMER's components
are repaired. CPS shall retain title to such loaned hardware components and have rights to remove such components at the sole discretion of
CPS.
ARTICLE IV - HARDWARE MAINTENANCE
1. HARDWARE MAINTENANCE. In accordance with the terms and conditions of this Agreement. CPS agrees to provide preventive and remedial
maintenance for the Hardware specified as listed in Exhibit D. CUSTOMER agrees to execute any third party maintenance agreements or related
documents by vendor if a third party maintenance vendor is noted in Exhibit D.
A. Pzeventive maintenance is scheduled hardware maintenance the purpose of which is to evaluate and test the mechanical. electrical. and
electronic functions and components of hardware to identify. correct. adjust. repair. and/or prevent malfunctions.
B. Remedial maintenance is unscheduled hardware maintenance the purpose of which is to evaluate and test the mechanical, electrical, and
electronic functions and components of hardware to identify. correct. adjust. repair. and/or prevent malfunctions.
C. Standard Coverage shall be defmed as the period during the hours of 8:00 a.m. to 5:00 p.m.. Monday through Friday. Central TlDle. excluding
CPS holidays.
D. Special Coverage shall be defined as all time other than during the period of Standard Coverage.
E. During the period of Standard Coverage. and at a mutually agreeable time. CPS shall perform preventive maintenance for such items of the
Hardware that in CPS' sole opinion requires preventive maintenance.
F. During the period of Standard Coverage. and at a mutually agreeable time. CPS shall perform remedial maintenance for such items of the
Hardware that fail to perform in, ~~oroance wilh their spedftcations:.
G. All. if any. hardware m~tenance performed during the period of Special Coverage shall be perfonned at an additional charge to
CUSTOMER. The chargesfor maintenance perfol111ed during the period of Special Coverage shall be at CPS' then standard rates.
H. In order to perform preventive and remedial maintenance CPS may. in its sole discretion. loan, repair or replace parts and/or cntin: units of
the Hardware. CPS may use new or reconditioned partlt and/or units to replace tho~ removed.
1 In fulfilling the obligations of this Article. CPS may loan CUSTOMER various hardware components while CUSTOMER's components
are repaired. CPS shall retain title to such loaned hardware components and have the rights to remove such components at the sole discretion
of CPS.
2. MAINTENANCE LIMTI' A nONS. CPS shall not be re~nsible for any maintenance services required because of one or more of the
following reasons:
A. CUSTOMER's failure to maintain the location of the Hardware in accordance with the site environmental specifications.
B. Failure of electrical power or air copditioning.
C. Ere, flood, accident or other hazard. neglect. abuse. or misuse.
D. Maintenance services pedol111ed by someone other than CPS. including. but not limited to. maintenance services performed or attempted
by CUSTOMER.
E. Hardware that has been modified without CPS' express. written consent.
F. CUSTOMER's failure to allow CPS timely access to the Hardware.
G. CUSTOMER's use of supplies and other expendables not meeting the Hardware manufacturer's specifications for supplies and expendables.
H. Maintenance services required because of software.
1 Maintenance services required because of local union requirements or a change in the law including, but not limited to, local ordinances and
zoning.
J. Maintenance service.'ll required because the Hardware is moved.
K. Maintenance services required because the Hardware is inter-connected to computer hardware or related equipment not specified in this
Agreement.
3. MAINTENANCE EXCLUSIONS. The maintenance services provided by CPS do not include any of the following services:
A. Replacement or refurbishment of an entire unit of the Hardware which in CPS' reasonable opinion is not repairable due to wear or the
completion of its useful life.
B. Installation or provisions. if any, of supplies. forms or accessories.
C. Painting or re-fmishing the Hardware.
D. Electrical or mechanical work external to the Hardware.
E. Preventive or remedial maintenance of any equipment not specified in this Agreement.
F. Installation or removal of the Hardware or any unit of the Hardware.
G. Diagnosis of software problems.
H. Programming.
4. PERFORMANCE OF ADOmONAL SERVICES. At CPS' i'lOle discretion, CPS !';hall perfonn maintenance services on a time and materims
basis at CPS' then standard rates in the following circwnstances.
A. If CUSTOMER requests and if cPS. in its sole discretion. agrees to perfonn maintenance :qervices when maintenance is required for reasons
described in Section 2 of this Article entitled "MAINTENANCE LIMIT A nONS".
B. If CUSTOMER requests and if CPS. in its sole discretion, agrees to perform any of the services described in Section 3 of this Article entitled
Page 8
"MAlNTENANCE EXCLUSIONS".
C. IT CUSTOMER requests and if CPS, in its sole discretion, agrees to perfonn any service nol otherwise provided ror in this Agreement.
5. ACCESS TO HARDWARE. Except for Hardware dermed as a portable terminal. CUSTOMER shall give CPS thirty days notice before moving
the Hardware.
A. CUSTOMER shall provide CPS with unhindered acc..' to the Hardware.
B. Pursuant to CPS' performance under this Agreement. at no charge to CPS. nnd within a mumally agreeable distance from the Hardware,
CUSTOMER shall provide CPS with adequate working ~ace. storage space. and utilities including but not limited to. heat. light.
air-conditioning. electrical power, and electrical ClUtlets.
C. H the Hardware is moved. CPS reserves the right to increase the monthly or annual charges specified in this Agreement. CUSTOMER
agrees to pay CPS for such increased charges.
6. ADDmONAL HARDWARE. CPS is under no obligation to perform maintenance for any computer hardware or related equipment that is not
specified in this Agreement.
A. If CUSTOMER desires CPS to perform maintenance for any computer hardware or related equipment not specified in this Agreement, CPS,
in its sole discretion, shall do so for an additional monthly or annual charge. as relevant.
B. CPS, by virtue of its agreement to perform maintenance for computer hardware or related equipment that is not ~fied in this Agreement,
shall not be deemed to have made any representations or warranties concerning such computer hardware or related equipment.
7. FEES AND PAYMENT. CUSTOMER agrees to pay the monthly or annual fee as specified in Exhibit D and in accordance with the following:
A. If the fee is monthly, the fWlt payment is due within ten (10) days of the Hardware Maintenance Commencement Date specified in Exhibit
D. Subsequent payments are due on the same day of subsequent months an the Hardware Maintenance Commencement Date.
B. If the maintenance fee is annual, then within ten (10) days of Hardware Maintenance Commencement Date CUSTOMER agrees to pay
CPS nll of the one-time charges and the annual fee. Thereafter. the Hardware Maintenance fee is due on the anniversary date of the Hardware
Maintenance Commencement Date.
C. After the initial one year period of this Agreement. CPS may adjust Hardware Maintenance rates after giving at least thirty (30) days written
notice to the CUSTOMER.
8. DEPOT MAIN1ENANCE. The following will apply to all equipment in this Agreement designated as Depot Maintenance items.
A. Depot Maintenance is remedial maintenance performed on equipment which ha~ heen delivered or ~ent to the designated CPS office by the
CUSTOMER.
B. The CUSTOMER will properly package-and ship or deliver t~ equipment to CPS Md will pay any ~"ociated shipping. handling or insurance
expenses involved. The CUST9MER will assume an respon~ihiliryfor itemili damaged in trnnJ;it.
C. CPS will package and slUythe repaired or replaced equipment back to the CUSTOMER and CPS will bear all shipping and insurance costs
associated with this shipment.
D. The CUSTOMER will re-inMall repaired or replaced equipment. If CPS is required to as"ist in this re.instaUation. CPS will charge the then
current rates for this assislance.
E. If CPS is required by the CUSTOMER to perlorm remedial or preventative maintenance at the CUSTOMER site, CPS will charge the
CUSTOMER the then current rates for travel time and expen~s. There will be no labor or parts charge for the actual repair unless the sections
on Maintenance Limitations or Maintenance Exclusions apply.
ARTICLE V - SOFTWARE SERVICE
1. SOFIW ARE SERVICE. In accordance ~ththe terms and conditions of this Agreement. cPS agrees to provide either aient AssiMance Service
or Software Maintenance Service as indicated in Exhibit E. Client Assistance Service and Software Maintenance Service are described in Section
4 and Section 5 respectively of this Article.
2. SOFTWARE COVERED. This Agreement ,hall apply to all Licensed Software listed in Exhibit E. IT LICENSEE acquires additional Ucensed
Software, such software shall upon its Software Installation Date become subject to this Agreement if coverage for such software is available. The
annual or monthly service fees for such additional Licensed Software shall be added. alii relevant. to the annual or monthly fees already charged to
LICENSEE.
3. FEES AND PAYMENT. For the services provided herein. LICENSEE agrees to pay the monthly or annual service fee as specified in this
Agreement in accordance with the following:
A. If the service fee is monthly. the first payment is due within thirty (30) days of Software Service Commencement Date specified in Exhibit
E. Subsequent monthly fee payments are due on the same day of mlh~quent months.
B. If the 5ervice fee is annual, then within thirty (30) days of Software Service Commencement Date CUSTOMER agrees to pay CPS all of
the one-time charges and the annual fee. Thereafter. the annual fee is due on the anniversary date of the Software Installation Date.
e. After this agreement has been in effect for one year. CPS may adJust the monthly service fee and the annual service fee upon thirty (30)
days written notice.
4. CLIENT ASSISTANCE. CPS shall provide Telephone Assistance in accordance with the following for the Licensed Software listed in Exhibit
E.
A. TELEPHONE ASSISTANCE. Telephone Assistance is a service of CPS in which LICENSEE may telephone CPS for consultation
concerning the Ucensed Software. The standard period. of Telephone Assistance is 8 a.m. to 5 p.m., Central Time, Monday through Friday,
excluding CPS holidays.
(1) During the standard period of Telephone Assistance, CPS shall be available to provide assistance to UCENSEE by telephone. Such
assistance consists of answering LICENSEE's questions concerning u~ of the Licensed Software.
(2) Calls initiated by CUSTOMER to CPS 1-800 assistance line will be covered. by CPS.
(3) CUSTOMER is responsible for all long distance call, initiated by CUSTOMER excluding those calls made to CPS' 1-800 assistance
line. CPS shall not provide any Telephone Assistance during CPS holidays. ,
(4) CPS shall provide Telephone Assistance in times outside the stand'lrd period of Telephone Assistance in accordance with the Emergency
Page 9
Plan specified in this Agreement.
B. E:MERGENCY PLAN. The Emergency Plan describes the periods. in addition to CPS' standard period of Telephone Assistance, during
which CPS will be available to LICENSEE foe Telephone Ass.is.tance for emergency software problems at additional fees.
(1) Emergency Plan A: 8 a.m. to midnight Monday through Friday. e:ltcept CPS holidays.
(2) Emergency Plan B: 8 a.m. to 5 p.m.. every day, except CPS holidays.
(3) Emergency Plan C: 8 a.m. to midnight. every day. except CPS holidays.
(4) Emergency Plan D: twenty four hours a day, every day, except CPS holidays.
(5) Unless otherwise agreed to in writing. all times referred to in this Agreement refer to Centml Time.
(6) Emergency Plan selected is lChown in Exhibit E. Should no Emergency Plnn he specified, then no extended period coverage under
Emergency Plan is included in this Agreement.
C. EXCLUSIONS. The following ,ervices are <pecifically excluded from the ha,i, "CLIENT ASSISTANCE" ,ervice. These services are
available at additional cost.
(1) Responding to problems caused by hardware.
(2) Providing anyon-site assistance.
(3) Responding to problems caused by erroneous dala.
(4) Responding to the problems. questions, and/or malfunctions concerning changes made to the Licensed Software by non-CPS personnel.
(5) Responding to problems caused by software other than the CPS Software and/or the Sublicensed Software.
(6) Making modifications to the Ucensed Software.
(7) Performing hardware maintenance or hardware diagnostics.
(8) Providing telecommunication services.
(9) Installing the CPS Software or the Sublicensed Software where Licensee has not acquired a modem for TCS Services.
(t 0) Performing operator training.
(11) Responding to problems caused by UCENSEE'S failure to allow CPS access to LICENSEE'S computer system.
(12) Responding to problems caused by accident, neglect. flee, misuse. or any other cause not within the reasonable control of CPS.
(13) Any other services perfonned by CPS and not otherwise provided for in this Article.
5. SOPI'W ARE MAINTENANCE. CPS shall provide LICENSEE with 3...'\;sistance for the CPS Software and Sublicensed Software specified in
Exhibit E in accordance with the following:
A. CPS shall provide Telephone Assistance in accordance with this Article.
B. CPS shall provide assistance with f1l~ restructuring at appr~priate interval,,\; to be detennined by, CPS.
C. CPS shall provide on-site a~i.'\;tance wnC!:n ~esSary at the sole d.Lc;ctetion of CPS.
D. CPS shall allow a 50% discount on scheduled classroom training for advanced continuing education.
E. CPS shall provide teci1PiCal. software assistance necessary due to hardware malfunctions except when caused by accident, neglect. fIre.
misuse, or any other cause,not within the reasonable control ofCPS.
F. CPS shall provide T(:S Services. In order for LICENSEE to use the TCS Services, LICENSEE mum: have first acquired a modem nod a
standard telephone line. If LICENSEE ha."! the necessary equipment. then CPS shall perfoml the following services.
(1) When CPS distributes Enhancements. Updates, or Corrections, CPS shall install such Enhancemenb, Upd:ues, or Corrections by means
of a telecommunications connection to CPS.
(2) CPS is responsible for all TCS long distance charges incurred when providing assistance to the CPS Software.
G. EXCLUSIONS. The following services are lpCCifically excluded from the basic "SOFTWARE MAINTENANCE" service. These services are
available at additional cost.
(1) Responding to the problems, quet'ltions, and/or malfunctiont'l concerning changes made to the Licensed Software by non-CPS personnel.
(2) Responding to problems caused by software other than the CPS Software and/or the Sublicensed Software.
(3) Making modifications to the Licensed Software.
(4) Performing hardware maintenance or hardware diagnostics.
(S) Performing operator training.
(6) Installing the CPS Software or the Sublicensed Software where UCENSEE has not acquired a modem for TCS Services.
(7) Responding to problems caused by LICENSEE'S failure to allow CPS acces.o; to LICENSEE'S computer system.
(8) Responding to problems caused by accident, neglect, fue. misuse, or any other cause not within the reasonable control of cPS.
(9) Any other services perfonned by CPS and not otheIWit'le provided for in this Article.
ARTICLE VI- HARDWARE RENTAL
1. COMPU'IER HARDWARE RENTAL. CPS agru. to rent to CUSTOMER the Hardware described in Exhibit F. CUSTOMER may
subsequently order additional Hardware from CPS by requesting additional Hardware from CPS, executing the HARDWARE RENTAL
ADDENDUM that CPS sends to confIrm CUSTOMER' s request, and returning a copy of the executed addendum to CPS.
2. ESTIMATED HARDWARE DELIVERY DA lB. Unle.. otherwise agreed upon by CPS and CUSTOMER. the date of the Hardware's delivery
is approximate. CPS ,hall notify CUSTOMER of the scheduled delivery date.
3. INST ALLA nON AND SITE PREPARA nON. Refer to Article III. Section 4 entitled "INST ALLA nON AND SITE PREPARA noN".
4. FEES AND PA YMENr. For the rental of the Hardware, CUSTOMER agree!'! to pay the monthly or annual rental amount as specified in this
Agreement in accordance with the following:
A. Upon execution of thit'l Agreement, CUSTOMER shall pay CPS a deposit equal to two months rent. Such deposit shall be returned to
CUSTOMER when the Hardware is returned to CPS at the expiration of the rental term. CUSTOMER agrees not to attempt to use such deposit
for rental payments in lieu of actually making rental payments. ,
B. !flhe rental amount is monthly. then CUSTOMER agree. to pay the fIrst month's rent and all one-time charge. within ten (to) days of the
Hardware Installation Date. Subsequent rental payments are due on the same day of ,ubsequent months as the Hardware Installation Date.
C. H the rental amount is annual, then CUSTOMER agree!ll to pay all of the one-time charges upon execution of this Agreement. The annual
Page 10
rental amount is due and payable within ten (10) day~ following the Hardware lnstallation D3te and thereafter on or before the anniversary of the
Hardware Installation Date.
5. ADDmONAL REQUIREMENTS. CUSTOMER further agrees as followN:
A. CUSTOMER shall not move the Hardware from the location where it is in1'l.talled without the express, written con~nt of CPS.
B. CUSTOMER shall keep the Hardware free and clear of alllevies,lienl'l, and encumbrances, except those created by thill Agreemmt.
C. CUSTOMER shall u~ the Hardware carefully. in a lawful manner, and comply with any directives concerning the safety and use of the
Hardware imposed by CPS' insurer.
D. CUSTo.MER shall not make any alterations or additions to the Hardware.
E. CUSTOMER shall not remove or efface any labels or other markings that indicate CPS' ownership of the Hardware.
F. CUSTOMER shall not represent that it is the owner of the Hardware.
G. CUSTOMER assumes complete responsibility for providing competent personnel capable of operating the Hardware.
6. DEFAULT. H CUSTOMER breache1'l. any of the tennl'l and conditi('lns of this Agreement. then CPS may terminate this Agreement upon notice
and proceed in accordance with the following:
A. CPS, during business hours, may enter CUSTOMER's premises. repossess, and remove the Hardware at CUSTOMER's expense: and/nr,
B. CPS may declare all payments remaining under this Agreement to be due and payable. whereby all such payments shall become immediately
due and payable; and/or,
C. CPS may sell or lease the Hardware for the account of CUSTOMER and hold CUSTOMER liable for the difference between the remaining
payments under this Agreement and the amount received by CPS through such sale or lease of the Hardware; and/or,
D. CPS may exercise any other remedy available allaw or in equity.
E. CUSTOMER shall neither attempt nor actually transfer or in any way whatsoever alienate any of its rights under this Agreement without
the express. written consent of CPS.
7. RENTAL TERM. The rental term shall be determined by the CUSTOMER's selection of an annual payment or monthly payment of rent in
accordance with the following:
A. If CUSTOMER elected to pay rent annually, then the first term of this Agreement shall expire upon the fIrst anniversary of the Hardware
Installation Date. The term shall automatically renew for additional one year terms unless either party gives written notice to the other party
of its intent not to renew at least ninety days (90) in advance.
B. If CUSTOMER elected to pay rent monthly. then the initial term of this Agreement shall expire one year after the Hardware Installation
Date. Thereafter, thi....; Agreement shall remain in effect month to month and may be terminated by either party upon ninety days (90) written
notice to the other party.
8. TERMINATION. Upon termination 6f this Agreement, CUSTOMER shall immediately surrender possel'lsion ('If the Hardware to CPS. CPS
may enter CUSTOMER 's premise~ to repol'lsess the Hardware. CPS shall remove the Hardware. Within ten (10) days after removal oithe Hardware,
CUSTOMER shall pay CPS the ~atnount identified in this Agreement as the Hardware Removal Charge.
9. INDEMNIFICATION. CUSTOMER shall indemnify and hold CPS harmless for all losses. damages. and expenses suffered by CPS from claims
against CPS and/or CUSTOMER by entities not a party to this Agreement where such claims arise out of CUSTOrvIER's use of the Hardware.
10. TITLE. Title to the HardW$e shall remain in CPS. The Hardw~ is: the personal property of CPS. and for the purposes of this Agreement the
Hardware shall be deemed to be tbe personal property of CPS notwithstanding that all or part of the Hardware may become physically attached or
affIxed to real property during the term of this Agreement.
11. INSURANCE. Upon delivery of the Hardware to CUSTOMER':o! location, CUSTOMER shall bear the risk of loss of the Hardware.
CUSTOMER shall maintain "all risk" insurance coverage for the Hardware in the amount at least equal to what CPS informs the CUSTOMER is
the retail value of the Hardware. CUSTOMER shall make CPS the beneficiary of such insurance. CUSTOMER shall furnish CPS with proof of
such insurance before delivery of the Hardware.
12. MAlNTENANCE. CPS shall provide maintenance for tbe Hardware pUflnIant to Article IV - HARDWARE MAlNTENANCE.
t3. LIMITATION OF LlABILTIY. THE HARDWARE IS PROVIDED "AS IS": AND CPS MAKES NO WARRANTIES CONCERNING THE
HARDWARE. CPS EXPRESSL YDISCLAIMS ALL OTHER WARRANTIES. EXPRESSED OR IMPLIED INCLUDING, BUfNOTLlMITED
TO. THE IMPLIED WARRANTIES OR MERCHANTABILI1Y AND FITNESS FOR A PARTICULAR PURPOSE.
ARTICLE VII .. TRAINING
1. CPS TRAINING. CPS agrees to provide CUSTOMER with the CPS Training as described in Exhibit G.
A. CUSTOMER may sub~quently order additional CPS Training from CPS by requesting such additional CPS Training from CPS and
executing the copy of the TRAINING ADDENDUM that CPS sends to confirm CUSTOMER' s request.
B. The CPS training shall consist of a fIXed-fee CPS clas~room course or training on a time and materials basi!ll. Training will be conducted
on-site or at a CPS facility as designated in Exhibit G.
C. All materials provided to CUSTOMER including. but not limited to user manuals for the CPS Software, shan be defined as CPS Training
Materials.
2. M.AXIMUM NUMBER OF SI'UDENTS. Certain elements of the CPS Trnining are de~gned to train a limited number of students at a time. If
there is a maximum number of students for an element of the CPS training, the maximum number for such element is specified in Exhibit G.
A. IT more ofCUSTOMER's employees choo~ to attend the CPS Training than are ~ified in this Agreement, cPS either shall charge an
additional charge for every such additional student at CPS' then current rates or CPS. in its sole discretion, may refuse to train such additional
students until a time mutually agreeable to CUSTOMER and CPS.
B. CPS recommends that CUSTOMER purchase CPS Training in all applications of the CPS Software and the Sublicensed Software for at
least two of CUSTOMER's personnel.
3. PREREQUISfIES. CUSTOMER agrees that tbe CPS Training is not intended to train CUSTOMER. s personnel in their job skills. CPS Training
Page 11
is intended to provide the basic skills necesl;ary to operate the CPS Software and the Sublicensed Software.
A. aJSTOMER represents that those of its personnel who are to receive CPS Training are competent and have the necessary skills to penorm
such duties as CUSTOMER may assign them.
B. Each of CUSTOMER's personnel must execute and provide to CPS. CPS' then standard non-disclosure/non--competition agreement prior
to the commencement of cPS Training for such person.
C. If CUSTOMER requests that training occur at CUSTOMER' s site, then CUSTOMER must provide training facilities and computer resources
in accordance with CPS' instruction!! and specifications.
4. FEES AND PAYMENT. CUSTOMER agrees to pay CPS the tott\l amount due as stated in this Agreement in accordance with this Section.
A. If the trmning is fixed fee. then
(1) Upon execution of this Agreement. CUSTOMER agrees to pay CPS the down payment amount specified in Exhibit G.
(2) Upon completion of the training specified herein. CUSTOMER agree$ to pay CPS the balance of the fixed-fee amount specified in
Exhibit G.
B. H the training is on a time and materials ba.~is. then once each month. CPS shall invoice CUSTOMER for the time and materials charges.
C. CUSTOMER also agrees to reimburse CPS for all travel and related expenses arising out of CPS' training of CUSTOMER. Such expenses
include, but are not limited to timc in transit, transportation. lodging. and meals.
D. CUSTOMER shall bear all associated travel and related expenses of its employees. Such expenses include. but are not limited to
transportation. lodging. and meals.
5. PROPERTY RIGHI'S. CUSTOMER agrees that the CPS Training Materials are and shall remain the exclusive property of CPS. CPS shall
retain all copyright interests in the CPS course materials. whether published or unpublished. CUSTOMER agrees that the CPS Training Materials
contains trade secrets of CPS.
6. NON-DISCLOSURE. CUSTOMER agrees not to disclose the CPS Training Materials. to keep the CPS Training Materials confidential. and
to not remove such proprietary notices as CPS may choo!iC to place on the CPS Training Materials.
A. CUSTOMER agrees to infonn all of CUSTOMER's employees who have access to the CPS Training Materials as to the provisions of this
Section.
B. CUSTOMER agrees not to permit any independent contractor including. but not limited to consultants. any access to the CPS Training
Materials without CPS' express. written consent and without such independent contractor's first executing CPS' then standard
non-di~lo!'lure/non-competition agreement and retuming to CPS an executed copy. CPS !';hnll provide CUSTOMER a copy of such agreement
upon request.
7. UMITATIONOFLIABILITY. dSMAKES NO WARRANTIES CONCERNING THE CPS TRAINING MATERIALS OR THE SERVICES
PROVIDED PURSUANT TO UlIS AGREEMENT. CPS PROVIDES THE CPS TRAINING MATERIALS "AS IS." CPS EXPRESSLY
DISCLAIMS ALL01HER WARRANTIES. EXPRESS OR IMPLIED INCLUDING. BUT NOT LIMITED TO. THEIMPLlED WARRANfIES
OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PllRPOSE.
ARTICLE VIII - FORMS AND SUPPLIES
1. PURCHASE OP PRODUcrs. CPS agrees to sell and CUSTOMER agrees to buy the products listed in Exhibit H, and hereinafter referred to
3l'l the CPS Products. CUSTOMER may subsequently order additional CPSProducts by requesting additional CPS Products from cps. executing
the copy of a FORMS AND SuPPLIES SALES ADDENDUM that CPS send, to confirm CUSTOMER'S request. and returning such addendum
toCPS.
2. ESTIMATED PRODUcrs DELIVERY DATE. Unless otherwise agreed upon by CPS and CUSTOMER. the date of the CPS Products' delivery
is approximate.
3. INSTALLATION. Unless othetwise agreed to in writing. CUSTOMER shall install the CPS Product!!.
4. PRICE. For the purchase of the CPS Products. CUSTOMER agrees to pny the total amount specified in Exhibit H.
5. PAYMENT. CUSTOMER agrees to pay for the CPS Products in accordance with the following:
A. Upon execution of this Agreement. CUSTOMER agrees to pay the down payment amount specified in Exhibit H.
B. Within ten days of delivery of the CPS Products, CUSTOMER agrees to pay the balance of the total amount specified in Exhibit H.
6. 1TI1..E. TItle to the CPS Products shall pass from CPS to CUSTOMER upon payment in full by CUSTOMER to CPS in accordance with this
Agreement.
7. UMrrED W ARRANIY. CPS hereby grants a Limited Warrnnty for the CPS Productlll in accordance with this Section.
A. Commencing upon the delivery of the CPS Products and for thirty daY!I: thereafter. CPS shall. at no charge to CUSTOMER, repair or replace
any item of the CPS Products that fails to perform in accordance with its manufacturer':q specifications: provided, however. that:
(1) Such failure is due to a defect in workmanship or materials: and
(2) CUSTOMER informs CPS in writing during the wamtnty period of such failure: and
(3) The CPS Products have not been effected by fire. accident, abune, or neglect. nor have the CPS Products been subjected to unusual
physical stress.
B. CUSTOMER must deliver the defective CPS Products to the designated CPS location for warranty service. CUSTOMER shall bear all
C08ts of such transportation including, but not limited to, shipping and insurance charges as well as the risk of loss. .
C. The Umited Warranty described in this Section is CUSTOMER'S exclu,ive remedy and CPS' sole liability arising out of the CPS Products.
Page 12
8. LIMITATION OF UABILTIY. EXCEPT FOR TIlE LIMITED WARRANTY SPECIFIED IN TIlE SECTION ENTITI..ED "LIMITED
WARRANTY", CPS MAKES NO WARRANTIES CONCERNlNG TIlE CPS PRODUCTS. CPS EXPRESSLY DISCLAIMS ALL OTIlER
WARRANTIES. EXPRESS OR IMPLIED INCLUDING, BUT NOT LIMITED TO. TIlE IMPLIED WARRANTIES OF MERCHANTABILITY
AND FITNESS FOR A PARTICULAR PURPOSE.
Page 13
EXHmIT A - OTHER SERVICES
CUSTOMER CITY OF SCHERTZ
AGREEMENT 200173- TX08
DESCRIPTION OF SERVICES
EXTENDED
PRICE
CONVERSION
$3,500.00
TOTAL OTHER SERVICES
TAX
TOTAL AMOUNT DUE
DOWN PAYMENT
BALANCE CURRENTLY DUE
$3.500.00
EXEMPT
$3,500.00
0.00
$3,500.00
CURRENT STANDARD RATES (SUBJECT TO CHANGE WITHOUT NOTICE):
Programming $95.00 per hour
Consulting $120.00 per hour
Conversion $95.00 per hour
Operator Training $65.00 per hour
Telephone Support $95.00 per hour
Travel Expense $0.50 per mile
Meals and Lodging $75.00 per day
EXHIBIT B - LICENSED SOFTWARE
CUSTOMER CITY OF SCHERTZ
AGREEMENT 200173- TX08
AUTHORIZED
# WORKSTATIONS
LICENSE FEES
INITIAL MONTHLY
ITEM NO DESCRIPTION
100440
100450
100010
100080
100050
10040
100260
700370
700300
909150
5601-259
TOTAL LICENSE FEES FOR THE FOLLOWING APPLICATIONS:
$37,990.00 $906.00
UTILITY BILLING
INTEGRATED UTILITY COLLECTIONS
GENERAL LEDGER
TAX BILLING AND COLLECTIONS
ACCOUNTS PAYABLE
PAYROLL
ROUTE MANAGEMENT
BASIC LAW ENFORCEMENT SYSTEM
MUNICIPAL COURT
PC TERMINAL EMULATOR"
AIX VS COBOL RUNTIME"
48
48
48
48
48
48
48
48
48
1
48
. Initial License Fee includes 12 months of MLF and MeA.
.. Sublicensed Software
TOTAL INITIAL LICENSE FEES $37,990.00
TOTAL MONTHLY LICENSE FEES $906.00
OTHER CHARGES:
TELECOMMUNICATION SERVICES $0.00
INSTALLATION CHARGE $100.00
TOTAL $38,090.00
TAX EXEMPT EXEMPT
TOTAL FEES DUE $38,090.00
DOWN PAYMENT 0.00
BALANCE OF FEES DUE $38,090.00 $906.00
EXHIBIT C - PURCHASED HARDWARE
CUSTOMER CITY OF SCHERlZ
AGREEMENT
200173- TX08
WARRANTY EXTENDED
ITEM NO DESCRIPfION CLASS QTY PRICE PRICE
TOTAL HARDWARE COST FOR FOllOWING ITEMS: $33,621.00
COM2400 MICROCOM 2400 BAUD (ASYNC) 1 4
6400 64 PORT ASYNC CONTROllER 3 1
2955 16 PORT ASYNC ADAPTER EIA 232 3 3
PTR8920 8920 PRINTER 1 1
ICHCD01 INDIANA CASH DRAWER 1 3
ICHSP01 EATON SLIP PRINTER 2 2
HHN14C HANDHELD INTERFACE 1 1
HHN128 NORAND HANDHELD COMPUTER 1 2
UPSOO01 UNINTERRUPTIBlE POWER SUPPLY 1 1
PENRll ALXV.3.2SA MODEM 1 2
PENRIL VCX100 8 PORT ~UX 1 2
~. 4
CON0200 EIA CONNECTORS 1 90
CONADPT MMJ TO FlS-232 ADAPTERS 1 45
PATCH flANEL 1 1
PLATES 1 45
TOTAL HARDWARE
$33,621.00
WARRANTY CLASSES:
CLASS 1: ON-SITE
CLASS 2: CPS DEPOT
CLASS 3: MANUFAC'fURER'S
WARRANTY PERIOD:
90
DAYS
OTHER CHARGES:
DISTRIBUTION
INST ALLA TION
CABLE ENDS (32)
OTHER CHARGES TOTAL
TOTAL HARDWARE AND OTHER CHARGES
TAX
DISCOUNT
TOTAL AMOUNT DUE
DOWN PAYMENT
BALANCE CURRENTLY DUE
430.00
1,250.00
800.00
$2,480.00
$36,101.00
EXEMPT
(4,831.00)
$31,270.00
0.00
$31 ,270.00
~
~J
EXHIBIT D - HARDWARE MAINTENANCE
I CUSTOMER CITY OF SCHERTZ
AGREEMENT
200173- TXD8
,
1TBM NO
DIlSCRIPl'ION
QTY
MONTIlLY
CHARGE
,
TOTAL HARDWARE MAINTENANCE COST FOR FOLLOWING ITEMS:
$138.00
ICHCDOl
CASH DRAWER MASTER KIT
3
ICHSPOl
SLIP VALIDATION PRINTER
2
HHN128
NORAND HANDHELD COMPUTER
2
_r
-p'
..,U
,,--"" -.... ....- - _.- ~
JIt'4l\dllk""
"'....a
Ill'll
'.'11
TOTAL MONTIlLY CHARGE
or
IF PAID ANNUALLY
10% DISCOUNT
TOTAL ANNUALLY
$138.00
$1,656.00
(166.00)
$1,490.00
COMMENCEMENT DATE:
1 DAY Al'TI!R WARRANTY I!XPIIlAT1ON
or
ANNUALLY
PAYMENT TERMS:
(please check one only)
MONTm.y
-
,
EXHIBIT E - SOFTWARE SERVICE
I CUSTOMER. CITY OF SCHERTZ
,
AGREEMENT 200173-TXOS
CLIBNT ASSISTANCE
x
SOFrWARE MAINTENANCE
,
ITEM NO
DESClUPTION
BASE
FEE
EMEllGENCY
PLAN
FEE
TOTAL
MONTHLY
FEE
$244.00
. Emergency Plan not ~~uw>~
,
,
-'
100440
100450
100010
100080
100050
100040
100260
700370
700300
)
,
,
)
,
-
)
TOTAL CLIENT ASSISTANCE FEE FOR THE FOLLOWING APPLICATIONS:
UTILITY BILLING
INTEGRATED UTILITY COLLECTIONS
GENERAL LEDGER
TAX BILLING AND COLLECTIONS
ACCOUNTS PAYABLE
PAYROLL "".._"
....." ~'.U1 ..'....-
ROUTE YlllNl'GEMENT'.iI'l
BASIC"'94FORCEM~T
MUNliiIJ!Tii COURT
TOTAL MONTHLY CHARGE
$244.00
or
IF PAID ANNUALLY
$2,928.00
COMMENCEMENT DATE:
Software Installation Date
PAYMENT TERMS:
(Please check one only)
MONTHLY
or
ANNUALLY
D
,
EXHIBIT F - HARDWARE RENTAL
I CUSTOMER CITY OF SCHERTZ
AGREEMENT
200173- TX08
,
lTBM NO
DESCRIPl'ION
QTY
MONTHLY
RENTAL
,
NONE RENTED UNDER THIS AGREEMENT
'\
'\
$0.00
-.
AliIIJ:
"W;....r~
'\
TOTALMO~~'
or
IF PAID4mUAtIAf,
,lfIr ,'!lUll,
$0.00
,
HARDWARE LOCATION:
'\
PAYMENT TERMS:
(please check one only)
MONTHLY
or
ANNUALLY
'\
-
'\
ONE TIME CHARGES:
SHIPPING
INSTALLATION
HARDWARE REMOVAL CHARGES
ONE TIME CHARGES TOTAL
TAX
BALANCE CURRENTLY DUE
EXEMPT
,
-
,
EXHIBIT G - TRAINING
I CUSTOMER CITY OF SCHERTZ
AGREEMENT 200173- TX08
,
DESCRIPTION
MAXIMUM
NO STUDENTS
FIXED
FEE
,
,
100 HOURS OF TRAINING ON THE FOLLOWING APPLICATIONS: $4.500.00
,
UTILITY BILLING 3
INTEGRATED UTILITY COLLECTIONS 3
GENERAL LEDGER 3
TAX BILLING AND COLLECTIONS 3
ACCOUNTS PAYABLE 3
PAYROLL 3
ROUTE MANAGEMENT 3
BASIC LAW ENFORCEMENT SYSTEM 3
MUNICIPAL COURT 3
PC TeRMINAL EMULATOR 3
,
,
fl
-
#....'
"c....J: '\....;Jf-
,
TOTAL FIXED mUll $
U/f'l
LOCATIcJIf{;1 Crr}; OF S*Z
~<i-i!lJl.. ~ 0.'7
TIME AND MA~1l RATES:
ESTIMATED HOURS: RATE PER HOUR:$
ESTIMATED TOTAL TRAINING COST:
+ :',Z,' liiA
$4.500.00
$4.500.00
00 HER CHARGES:
0.00
0,00
0.00
$0.00
,
OTHER CHARGES TOTAL
,
TOTAL
TAX
TOTAL AMOUNT DUE
DOWN PAYMENT
BALANCE CURRENTLY DUE
$4,500.00
EXEMPT
$4,500.00
0.00
$4,500.00
,
,
,
-
~
EXHIBIT H - FORMS AND SUPPLIES
~
I CUSTOMER CITY OF SCHERTZ
lTBM NO
DBSCRIPl'ION
QTY
EXTENDED
PRICE PRICE
AGREEMENT 200173- TX08
NONE PURCHASED UNDER THIS AGREEMENT
'.
-
,
'.
~-
_I
'.
',,,.,
'.
TOTAL
OTHER CHARGES:
DISTRIBUTION
TOTAL
OTHER CHARGES TOTAL
TAX
TOTAL AMOUNT DUE
DOWN PAYMENT
BALANCE CURRENTLY DUE
--~
$0.00
0.00
0.00
0.00
$0.00
$0.00
EXEMPT
$0.00
0.00
$0.00
-
STEVE SIMONSON
ASST. OTY MANAGER
PlANNJNG COORDINATOR
February I, 1991
Rick Alvarez
International Business Machines Corporation
300 Convent
Suite 1000
San Antonio, Texas 78205-0000
Re: RISC 6000-320
Dear Rick,
As you
meeting
our new
know, the City Council in
on January IS, 1991 approved
computer and software system.
their regularly scheduled
the bid of IBM and CPS for
Obviously our people
hardware so we may
requesting delivery
possible date.
are
begin
of the
excited and anX10US
our training. To
RISe 6000-320 at
to receive the
this end I am
your earliest
If you requ1re any additional information, please do not hesitate
to call me.
Sincerely,
i~~
Steve Simonson
Asst. City Manager
~A-
SS/na
rj'D)
~"'" 9;
I rr Y
'1' "1
. l-
I
ftix
:s c In
--rLJ
:")0
'G,1 &,cf
International Business Machine :orporation
Non-IBM Machine/Program
Order Agreement
Armonk, New YOrk~
Name and Address of Customer: IBM Branch Office Address:
IBM Branch Office No.: T56
CITY OF SCHERTZ
1400 Schertz Parkway
Schertz, TX 78154-1634
300 Convent
Su ite 1000
San Antonio, TX 78205
Customer No.: 1792834
Date Prepared:
Ship-to Name and Address of Customer:
Name and Address of Vendor:'
CITY OF SCHERTZ
1400 Schertz Parkway
Schertz, TX 781S4-1634
UNIPLEX
150 West Carpenter Freeway
Irving, TX 75039
Date of Vendor Price List:
"IBM
Machine/Program
Number" Name of Vendor Machine/Program
Requested
Ship Date
Quantity
Estimated
Unit
Price/Charge
$ ,
Estimated
Discount
Percent
(if applicable)
%
1 Enter only the Machines/Programs of one Vendor on this Order Agreement.
2 The Vendor will invoice the applicable Price/Charge, less any applicable Discount, plus any taxes,
transportation charges according to the agreement between the Vendor and the Customer.
''"\.'
i',l
finance charges and
THE TERMS AND CONDITIONS ON PAGE TWO ARE PART OF THIS ORDER AGREEMENT. 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 AGREEMENT IS THE COMPLETE AND EXCLUSIVE STATEMENT
OF THE AGREEMENT BETWEEN THE CUSTOMER AND IBM, SUPERSEDING ALL PROPOSALS OR PRIOR AGREEMENTS, ORAL
OR WRITTEN, AND ALL OTHER COMMUNICATIONS BETWEEN THE PARTIES RELATING TO NON.IBM MACHINES/PROGRAMS
WHICH ARE THE SUBJECT OF THIS ORDER AGREEMENT.
Accepted by:
~:'."
By X .. /1A:
ho?ized Signature
---
~ _yr'f(
Nanle (Tyf'<? or F'rifl:1
Da1"
Zi2';j'J79.01 I)/~?
Paqe 1 of 2
IBM is authorized to take orders for certain non-IBM Macl,ines/Programs offered for use
with IBM machines. Such Machines/Programs are limited 10 those IBM assigns an "IBM
Machine/Program Number." IBM will forward this Order Agreement. signed by the
Customer, to the Vendor.
The Customer has 1) signed the Vendor's agreement for the Machine/Program, and 2)
provided signed copies of it for IBM to forward to the Vendor. If the Vendor accepts such
agreement, the Vendor will return an accepted copy to the Customer and provide the
ordered Machine/Program.
No obligation, with respect to non.IBM Machines/Programs, will arise until the Vendor
accepts the applicable agreement. All obligations wilh respect to non.IBM
Machines/Programs will be in accordance with such agreement.
The Customer understands that:
1. claims or statements contained in Vendor marketing materials, whether or not pre-
sented by IBM, are the Vendor's responsibility;
2. any Warranties with respect to non-IBM Machines/Programs, are those made by the
Vendor. IBM MAKES NO SUCH WARRANTIES, EXPRESS OR IMPLIED, INCLUDING,
BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE;
3. IBM has no obligations with respect to non-IBM Machines/Programs. The Customer
is responsible to contact the Vendor directly on any question concerning such
Machine/Program;
4. IBM cannot compel the Vendor to act on this Order Agreement or accept the appli-
cable Vendor agreement. The Vendor's decision on both matters will be final; and
5. IBM is not responsible for, nor does IBM guarantee, the Vendor's or Customer's
performance under the applicable Vendor agreement.
21251079-018/89 P'-'';l'' 2 of 2
\
END USER UCENSE AGREEMENT
~
'J1ae a" ~ evtlopc,lIle IOfrwllt, 0Ile uetlllllllltl,llld Ill)' UIOdaced documellllOOll U wdl U m)' aacl all clerl.-.lI_ lbe~or
("IIae Ioh_i II rupplitd. to )'OU. tile Uctlll... tmder ibis Ii_ 6'om UalplC:llDlCJI'Idoa S)'Ilellll. 1IIc. 150 Wesl CarpcDlcr
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AD CIGp7'IlSbJ aacl Olhcr JmID_II proJlCII)' nibil ill tile Soflwllft 11ft _4 IIlsoI'lllcl)' by Ualplc:l or odler av\borlzed UClCIISOft
10 Ualpln IIllS tbt U-. 811)' 0ClI1oad die Sohan iDlo . ~ or . tbt Sol'lovlR ID III)' mWlCt wI\bOll! tile uptelS
~ orUalple:l 00 tile ttftn. . out below. III CCItlSldcralloo 0{ lbe lIc:aIIC r. <<Oln4poD41DJ to lbe appllcablc 11_. Calt,ory,
)'00 .. PIll'" · eoo-adllllva, IIOtl-ftIIsI'mblr (empI . lei fonb iD Secdoo Sncl below) Ib-. dwiIIJ tile ItIlIl Dr Illls
A.. ral. . .. lbt object oodt 9tIIloo of lbe IOflwllt 00 lbt IiDJIc _puler wbIc!l1l tlDdcr ,our COlIlI'OIIlIcl .;lbiIl tbt lIser
Ilmltadaa, 1110)'. UtIblisbed by lbe Ualplu 11_ by _amplll)'lD, tblI Soflwllt; tlIld to mate ODe cop)' of U;c &et:w;.r; (lr.rt
- of tbt _1lI111U1I1lld uacda1ed d_lllatloa) IOleI)' lor ..curil)' bactup pmpolC' provIdtd lbat JOlI reprodllClC all cop)'riJbI
1IOIf-. ~ Je,.1Ids IlId 10'01 00 lilt bld:up cop)' aDd ma.IIlIIlD III ICC\ftII ftCOId of tbt locaUoo ollbe bactup cop)' IlId
..,.. wtllalD,... ~
I. mNDmONS OPUS!. YOlI.., lICIt (J) _ IIle
Soh.. Of Ill)' 1'11'I tIlenol 0lI a CCIIDJ'Ultr of . type, RleJOlY
. lor . DuIIIb.t of.II Olbct 1balI\bat for ..b1c!l dIIa 11_
..... pIIllad; (Z) illite ccplu olllle Soh-IN UC8pt ODe cop)'
lot .~lt) Mcbp purpo_ ID a=oidaIIot wttb tills
oAr-"" 0) mitt copies olllle Sof'rtoolR _ lIl&IIlIal 01
aD)' NfOClo'*d doauIIeIlIIlIcc; (4) Jolll. ftIIC. uslJll. laue,
IUbll-. ..rar 01 Olbtrwlst prcMdt, altatCllll=aII)' or
GCbe,., tile .oftwatt or lIll1 eopy or pan of illo tIIyllllt elIe
acIpl. aprudy aDd IpeC:ilIc:aII)' lellorlll below ID Seedoa
Snn; (5) a1ler Of .dlpl tile .oflwan by dceomplllDJ It or
1Ib,",_ (6) _ove 10)' copyrlJbt DOCloe, tndealIIt,
leltDd,qo or produCll Idetll1!QllOll or lbc Soflwlft Of tile
~ ClIlp)': Of (7) ""'rill IIlpacu, dIsaaellIbI.. ftVClR
tJIIlal* .ta IIl1 way duoc5e lbt .oh-m ta ordct to derive
ID)' IDlIlCt CIOdt.
2. IO-tl4 Y LIMI'TllD W A.UANI'Y. For a period of 90
cla)'. ftollI Ibt cIalt 00 wbleb )'OU ftocl", tile Soflwan.
UlIlplu. YijD, If )'ou dlJco_c: IIlCl lIodty thllpla of III)'
1D.1aial pb)'llell defectlD tile medi. 00 wbieb !be .o/l'wm 1$
nc:onk4, repl- lilt clt{~., media free of charae prD\'icicd
dial lOll I'tlUl'll (potI.paJd) to Uclplu lilt dtte=llva tlltelia
IlIlIq four OIlIlt aDd adws &ad ecdoalll& . CCIp)' of tbIs
lJ_ AJIWllltDt. '1'be SlO-4ay "'&mIll)' .ba.1.I llCIl appl)' III
cbc CYelIllbll tile Softwan media Is l~ l1l' It oltll or bat beta
danlqed by a=dclcal.llIlsux.lltaJe=, Of tmautboriz.ecl .. or
IIIlll1l!4'alIoo. Yoar 101. ftmedy ill tbt _Ill or In)' c1ereas III
lbt SoftwtJt " IilIIIIed to repllCiClllCDl of \bI tncdillllldtt IIlis
fOday~.
S. DlSa.uMD OF WoUMNrY. !XCEPT AS EX.
PRESSLY n.OVIDED AJlOVE. UNIPLEX AND 0THEll.
A1.TrHOJUZm UCENSOJlS TO UJol'IJ>UX MAKE NO
IlEPRESEm'AnONS Ok WAk!VJmES WHE'1'Hn EX.
PRESS 01 IMJ'lJEt) ~y ST4'IV1'E Ok 011ml.W1S~)
JW.A.TtNG TO THE PE>>OJl.MA.NCE, QUA1JTY. MIl.
CHANTAJlIUTY Oil mmss POR ,.. 114""'''.,! .A.Jt
Pl.lJ!J>OSE OF THE SOFTWARE Oil OTHUWlSE AND
AU. SUO{ REPUSENTAnONS Oil WA.IlMN'JUS AU
HElWly SPECD'ICAlJ.Y DlSa..AIMEP Ah'tl EX.
Q,utIEIl.
YOU ALOm AU ABLE TO tlEm-MINE WHElHU
THE SOl"l"WAU W1LL MEn YOtm ~QUIR~
AND THE ~ IUSK AS TO tts PUFOR.MA.~CE IS
WITlf YOI) AND, EXCEPT TO THE EXTENT Pllovmm
IN SEcnON. TWO ABOVE, SHOULD THE SO"",'AAI
PRO~ DmCTtVI YOU ALONE t.n.lST ASSUME ntE
EN'I1lU! COST OF All. NEC!.SS4JlY SEJl.V101Na. RE-
PAIR Ok COM!CI10N ANI) AJ('( INClDENrAL Oll
CONSEQUENllAl, DAMAOES.
4. 1.>>'<<1'4 nON or LLUIUn". IN NO EV!NT WILL
nm 11llMS AND CONl>mONS ON THE Jl.BVEP.SB SID! AQ PMT 0' nus AOIUlllM!lNT
ANP IY SIGNING BELOW YOV AaNOWlJll:)OB THAT YOU H4 VB lEAD TRIM.
Aceept" III' Ippro,..d u rA
., Ualplu lDle~oe S)'IlCmI.&
lit
.1'_
\..- olsM..>
Pltfm~wfo~:
Na....:
TIlle::
AtJdrtu!fJr Fn,,"41 Nencu.'
t1Qjprtl1nl~'11lli(\!l SYJWll1,IIIc.
1$0 West CL'l=lel Prec....y
lMDa. 'IX 75039
CITY OF SCHERTZ
r-f"' ". ....'- oIU-;-'
111 )( ~~)/VYI 'i'J-yv'
I......... ........>
1'1tlUt '1Pt /ht /olk/t.itt,.'
N.....:
TItI.:
DIl.: .:2 _ Ji" -'7' /
Addrm for F01'Wl41 Netic,::
lAnn Crhprt7 DArkw~v
(rhoY+7 TY 7R1S4_1h~4
----
~ OJl At1mOIUZl!D UCE>lSOJtS TO UNIPlRX
BE UUUl POx (1) DIRECT. (2) INPIlU!CT, (3)
SPlCVJ.. (4) INcmENTAl, OR (~) CONSEQUENn.u.
IlAMAOES (!NO-WINO LOSS 01 PROms OR
>>USImSS) MSUl..TtNG fROM ANY J)EPECT 4NDlOk
USE 0' THE SOP'lW AU EVEN IF UNIPLEX OR ANY
SUCl IHm'r HAS BEEN APV1SED OF lHE
POSSDlnm 0' SUCl DAMAOE 'MiEl1Wl DUE TO
tlNIJ'1.EIC'S OJ. ANY 0lHER SUCH ENnTY's
mOUOINC2, BREACH OP CONTMcr, JoUsupu.
SI!NI'.u10N, OJ. 0llimtWlS!.
NOT'WI'nISTANDINO THE ABOVE. IF tlmJU! SHOUIb
AJUSIi ANY LlABD..n'Y ON THE PAAY OF llNIP1.U OR
ANY OJH!R SUQf ENmY BY REASON OF tHE
1JaHStNO Ol US1! 01' lH! SOFIW4U Ol onmt.
WlSE.. ~,t>l1E TO l.1NIPUX's OJ. ANY 0THEIl
SUOl !HmY's NEGUO!NCE, llR.EACI OF CON-
nACf,M1SJ.VJU!SENTAnON OJ. OmERWISE. SUOl
UUn.zry SHAU \JNI)EJt NO aJtCUMSTANCES
'WHATSOEVER 1!XCE!D THE mCE PAID BY YOU
1"01t THE UCENSE TO USE nas SOFTW41tE OR AT
nm ELEenOH 01 UNIPLEX. lH! COST OF UP4!k
OR UPUQMENT OJ'lH!DmC"IIVESOFTWARE.
"oalbaD illdemnlt,r Ulllpln IDd ctbet IIltbori=d Ullemors
to IJDlplu ..&last all dalnlJ by IblrI! panies (0Iber lb&D
dalln. alle.. wet! by Ibe $ohm. as tupplied. olalblrd
,any'a U.s. or C'Mlldian lllteUe~al Jm:>ptny riebts) &risl.Ds
Irom pouelllon Of "'t 01 Ibe Som,...... by )'011 Of b)' lllyoQe
mloIlt Mill )'Cll.Il--=.
S, 1DM. TIiI UctllM Acmmect btcomll etl'eclive foilell
bolb p&IlJea!lave ,;pd above. 'lbe liotllM I!'IDled Ulldulhil
Apemelll IIlaIICCnnlllale lIIlom.dca1ly lI)'ou 1ft ill bR~
01 or lall to comply with any IClIIl or c:oodiuOll be~lD. Vpoo
IUCb le/llllDallo.ll you mllll cleMy all c:gpiu 01 Ibe Som,.Ift,
compleCCly purre tbt .om,.m from any I)'lIem, IDd eeniIy to
Vll.iplu IIlIl lbey ha\>! beta 10 dertroyed. Vpoll aucb
IrnIIlNlIClII ycu ...ut DOl be .lllltJed 10 Ill)' IIIwld oIlD)'
11I-11 or .r COIlIldemlOllptJd by you.
t. lJPI)A'm !'OUCY. Valpln lIlay ill tlt JOlt cllJcftllOD
advile )'011 olllld ~.e 10 lleellM 7011I' _ 01 $oflwm
tlpdal. aad...", Rle.ue.s allbt \beo eN!>llsbed prices lot
~eIl Soflwll'l llpda.CI IDd _ rtIeuu. 1D order 10 be 110\
td 01 auell apcIalU Illd _ IlIeU". )01\ _ complete an..
",Cum !be Custcmcr lleaJrtl1Iuoo Card to Valplu. Az1y ",ell
vpcIalU Illd _ "'ltuca ...w be lleeaJOd IUbjea to IIle rema
.s coadid_ of IbU AFftmtlll or ID .....melll pro.lded by
VDipI~ Yoa 1ft DOl CDdlltd 10 "eeM uy IIlppOn or
lIlIlDtcolllCII from Ualplu 1IIlder lllU Almllllllt; IUppOrt IlId
lIIIillIemIlCIt, jf 1IrJ, mtlll be eddrt.ued by a .para'.
........
,. GmQAL, 'tb.b ApttlIllDl II IOlalooll ., aod
UlIClpl'1ltd ill ~ willi tbt b... 01 Tau IDd )'OU
qlW 10 aubmll 10 \be DOHlI:l:JllSive ~adlcllOll ollbe TulS
COllIU. By IIJ1llaI tbov., )'011 acblo..lcdl' IIlaI 7011 ...ut havt
lad tblI ApetDltll, .". 10 be ~ by Jta laflIJ IDd
ClOCldi1iOlll aod tpC IIlaI II it \be _plclC aod udusi.e
IIIIetI1Ct1t oIlltt 4Jmme1ll __a )'OU aod Ulllplel whicb
IllpCnedu ID)' lICber Pf'VIOItI propoql or 1I'ftllI1llt. 'Il'bcl!ler
mJ or wrillCQ, ftlaIilll lO tbe IllbJel1l Illllle: of tbis
A~
Az1y repraelllallons, fIIodi/lctllODl or Il!Icndtltenu 10 this
Acmmeot shall be 01110 10I'Ce lIIlIen cODlaillecl irl . '"lltlfll
melllOftDclUlll llped by III .\IIbori:ed O~eer 01 Ulllpln.
Ulllplu'. IlImetma III'ftICDlad\>!J m DOl apnll 01 Vaiplu
able to biDd Ulllplex 10 illY 11I=11 III'ftItDlIl.lOllJ, lIlocl-
UlcadOllJ or ll!Ietldmelltl. Ellber plfty'. lallll1't or delly ill
tnlOtcUl. Ill)' prvYialll:l bettOl ff'iIl DOl wa/vt ltlat plll)"a
rigllu: If Ill)' I'""'lrioo 01 IIliI AJMmCllIIJ lolllld iavllicl or
UDe!lfor=&ble f'W7\l"'" to Illy juclicl&l de~ or otbe!'l'ise,
UlliplCll .baII he", Ibe opIloll of I!l!lIillatlll& tbIa ApemClll
IIpOll w;rtneo 1I0lict 10 l.loeatcc,
Ulllrlu IIII)' aIIIp or lnllIlu hi riJlnr Illd obti,otl_ lIlldcr
I!liJ Aveemelll wit!lout YOIll' prior COlUe:lt, You 11I1)' lnllSIu
to Illolber pany all 01 your flahta IIIlder tIlla APWlllCDl but
oaJy lllbe pany 10 wbom you h/lJler I\IC.b ri&bu apeea ill
1CI.1:lCt ill lrtlli.ll. provldad 10 UlIlplel 10 1be lemII IDd
CODditlollS 01 till. APClnCllI aod tOtnplecc. IIld IttIIms .
Customer lle~tlOll Card whf~b IllaIl be lna4t lYaII&ble b)'
Ulllplel llpOll tequell. N~lIb1tllldiD. the 10rt.oilla, )'OIl
Illty DOl lfWIer YOIll' rilblJ IIllder 1IllJ Apl!CItlCltl 10 a petiOlI
or Illdly Joca:td ill Ill)' eouray ill "'bl=ll ~11iIlI eopyriJ/ll$
II't DOC tIlf~le. Az1y J'II1POftICI II'IllIler ueept as
pro.lcled lot berdll aba!I be IIU!J Illd ftict
u..s. OOVERNMENT JW'rAlC1'E:llllmm LEGEND
VIt,IupIic#rI"n. Of diJclo_, hy W O""m""~1l1 is nd>j~CI rc rtnrl~riclll U Iff ',,/TIt 1ft n.hpizf6lfaph ((J(/I(/I} of drt Rilhrl in
r.t:lul/ut D6111 tJMCtmlplll4r S,*"""" CIaWJI tll DFARS 2J2.227.701J.
.
~ 01/22.-90
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PURCHASE CONFIRMATION
International Business Machines Corporation
300 Convent
Suite 1000
San Antonio, TX 78205-0000
(512)554-6300
December 19, 1990
Purchasing Department
City of Schertz
City Offices
1400 Schertz Parkway
Schertz, TX 78154-1634
lJear Sir:
Enclosed is the Supplement to Agreement for Purchase of IBM Machines for
the purchase of your on-~rder machines. Payment in full is due on the Date
of Installation for each machine shown on the Supplement.
If you desire maintenance service under an IBM Warranty Option, if avail-
able, and/or IBM Maintenance Agreement service for the machines, please
enter on the Supplement your selection of the Type of Service desired from
those shown as being available, initial the order block at the bottom of
the Supplement and retllrn one copy of each page of the Supplement to IBM.
If you have any questions regarding this transaction, please contact our
office.
Sincerely,
lW~(l M~Jg"ZJ
Deborah A. Swanson
AIR Administrator
US Marketing & Services
DAS/ADG
Enclosure
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International Business Machines Corporation
300 Convent Street
San Antonio, TX 78205
512/554.6300
January 29, t 991
M.. Steve Simonson
CITY OF SCHERTZ
City Offices
1400 Schertz Parkway
Schertz, rx 78154-1634
Dear Mr. Simonson:
En(;losed are your copIes of the executed IBM Agreement5. Please
retain these documents In your~ fjles.
If you have any questions concernirlg these agreements please
feel free to ealt me at 512-554~6595, and I will be glad to
assist you with any questions.
Thank you for doing business with IBM.
Sincerely,
\~
My,-na G. Meckel
Customer Contracts Representative
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SystemPlan™
~
International Business Machines Corporation (IBM) is pleased to offer our Customer (you) IBM System Plan.
IBM developed System Plan to make it easier for us to do business together.
You may select the offerings you desire by marking the appropriate spaces on this selection page and then
sign once. IBM will then accept this System Plan by signing below and will return to you the signed original of
this~age. Nothing more is required. You may order IBM products and selected services whenever you wish.
~Of the following Agreements and Amendments
:::(unless selectively designated by marking below for individual offerings)
~
Purchase Terms
Agreement for Purchase of IBM
Machines (Z120-2892-04)
~
License Terms
Agreement for IBM Licensed
Programs (Z125-3358-02)
Distribution Amendment to ALP
(Z125-B295-00)
I BM Program License Agreement -
Extended Provisions (Z125-8296-00)
~
Discount Terms
~
[iJ
~
Payment Terms
Agreement for Rental of IBM
Machines (Z125-8301-00) -,-
Maintenance Services
IBM Maintenance Agreement
(Z125-3275-02)
M A Financial Options
Extended Maintenance Option
Amendment (Z125-4140-02)
Mid-Range Systems
'Amendment (Z125-4035-01)
"
~
The parties acknowledge that they have read the agreements and am~~gnated by your mark and
included herewith, understand them, and agree to be bound by their terms and conditions. The information in
parentheses above indicates the current version number for each IBM offering. Any reproduction of this
selection page by reliable means and any facsimile of the IBM Agreements and Amendments which you
selected wlli be considered originals of these documents.
Volume Procurement Amendment for
Machines and Programs
(Z125-39BO-03)
Accepted by:
Internalional Business Machines Corporation
Armonk, New York 10504
By
~ .~
. ~ ~..e,,'~
Autl10riled!lig~
Name (type or print): Adri an Rodri guez
Date: Dec. 19, 199D
Agreement number: TS6 -D884
IBM Branch Office number:
TS6
3DD Convent
Su i te 1000
San Antonio,
TX 78205
IBM Branch Office address:
Z 125-8300-02 10/90
Customer nam :
By
Autl10riledsignature
Name (type or print): Steve Simonson
Date: Dec. 1990
Customer number:
Customer address:
1792834
City Offices
1400 Schertz
Schertz, TX
Parkway
78154-1634
TM Trademark of International BusIness Machines Corporation
--- -
----
- - ---
;: - -g::~ SystemPlan™
Agreement for Purchase of IBM Machines (PA)
~
You and IBM agree that the following terms and conditions apply to Machines you purchase under this Agree-
ment.
TABLE OF CONTENTS
Section
Title
Associated Contract Documents
Definitions
Prices and Payment
Price Protection Period
Destination Charges
Taxes
Tille
Security Interest
Shipment
Risk of Loss or Damage
Purchase of Installed Machines
Installation
Warranties
Licensed Internal Code
Patents and Copyrights
Export
Limitation of Remedies
Non-IBM Equipment
General
1
2
3
4
5
6
7
6
9
10
11
12
13
14
15
16
17
16
19
1. ASSOCIATED CONTRACT DOCUMENTS
Contract documents associated with this Agree-
ment include Supplements and may include the
Agreement for Lease or Rental of IBM Machines
(LRA) or the Agreement for Rental of IBM Machines
(RA).
An individual Machine becomes subject to this
Agreement when IBM accepts your written order for
purchase or your order for purchase under another
IBM-designated procedure. IBM will accept your
order by issuing a Supplement, or other documenta-
tion designated by IBM (Supplement). Such Supple-
ment contains specific terms applicable to the
Machine. Installation of an on-order Machine or
payment of the Purchase Price for an on-order or
installed Machine (or the initial payment under an
IBM installment agreement), whichever occurs first
after your receipt of a Supplement, will constitute
your acceptance of that Supplement. In place of
either form of acceptance, jf requested by you or IBM,
the parties will sign a Supplement.
2. DEFINITIONS
The term "Machines" means IBM machines and/or
their features. model conversions, machine elements
and accessories. The term ~Machines~ also means
selected non-IBM equipment, including non-IBM
machines and their features, except as otherwise
described in Section 18.
The term "programming" means certain machine-
readable materials and other related materials which
IBM may make generally available without separate
charge under this Agreement. Programming includes
system control programming, maintenance aids and
other instructions or statements, but does not include
Licensed Internal Code described in Seclion 14. IBM
will furnish such programming upon request.
The term "programming service" means service
which IBM may make generally available, without
separate charge, for programming.
Z120-2892-049/89
3. PRICES AND PAYMENT
IBM will specify the Purchase Price for each
Machine in a Supplement. Payment in full for each
on-order Machine is due on its Date of Installation. as
defined in Section 12. Payment in full for each
installed Machine is due on its Effective Date of Pur-
chase, as defined in Section 11. However, if an IBM
installment agreement applies, it governs the
payment dates.
4. PRICE PROTECTION PERIOD
Each on-order Machine's Purchase Price will be
IBM's generally available single unit purchase price.
Such Price will be subject to any price increase.
However, such increase will not apply if 1) IBM
receives your order before the announcement date of
the increase and 2) the Machine's date of shipment is
a) before the date of the announcement or b) up to
three months after the date of the announcement. If
a price increase does apply to a Machine, you may
cancel your order by notifying IBM in writing one
month following IBM's notice to you. Otherwise, the
increased price will apply.
If IBM's generally available single unit purchase
price on the Date of Installation of an on-order
Machine is lower than the Purchase Price, IBM will
invoice you the lower price.
Each installed Machine's Purchase Price is subject
to change up to and including its Effective Date of
Purchase. However, any increase in Price will not
apply if the Effective Date of Purchase is up to three
months after the announcement of such increase. In
addition, any price increase limitations described in
the applicable IBM lease or rental agreement will
apply.
5. DESTINATION CHARGES
IBM will pay destination charges for each on-order
Machine from the IBM-designated location. These
charges are in accordance with IBM's then current
shipping practices. You will pay any rigging charges.
6. TAXES
You will pay amounts equal to any taxes resulting
from this Agreement, or any activities under this
Agreement, exclusive of taxes based on IBM's net
income. You are responsible for personal property
taxes for each on-order Machine on and after its
delivery to the carrier at the IBM-designated location.
7. TITLE
Provided you accept a Supplement, title to each
Machine will pass to you. Title to each on.order
Machine will pass on the later of 1) such Machine's
date of shipment from the IBM-designated location or
2) the date IBM receives your order for the Machine's
purchase. Title to each installed Machine passes to
you on its Effective Dale of Purchase.
8. SECURITY INTEREST
IBM reserves a purchase money security interest
in each Machine. Payment in full will satisfy such
interest. In addition, you will satisfy such interest in a
Page 1 of 5
feature addition or model conversion which involves
the removal of parts which become IBM's property by
returning such parts 10 IBM. You agree to sign appro-
priate documentation to permit IBM to perfect IBM's
purchase money security interest.
9, SHIPMENT
IBM will confirm the Estimated Shipment Date of
each Machine and may amend it as necessary. IBM
will make reasonable accomodation if you request a
delay in shipment.
10. RISK OF LOSS OR DAMAGE
During the period an on-order Machine is in transit
or in your possession, up to and including its Date of
Installation, IBM relieves you of responsibility for risk
of loss of, or damage to, that Machine. Such relief
does not include 1055 or damage caused by nuclear
reaction, nuclear radiation or radioactive contam-
ination, for which you are legally liable, while a
Machine is at your location up to and including its
Date of Installation. After an on-order Machine's Date
of Installation or installed Machine's Effective Date of
Purchase, you have responsibility for all risk of loss
of, or damage to, such Machine.
During the Warranty Period for a Machine,
however, IBM is responsible for risk of loss of, or
damage to, Machines 1) due to IBM's negligence, 2)
when title has passed to IBM, 3) while in IBM's pos-
session, or 4) during shipment from IBM to you. Such
shipment will be by an IBM-selected carrier whose
charges I BM prepays.
11. PURCHASE OF INSTALLED MACHINES
The Purchase Price for an installed Machine is
exclusive of any charges which are, or become, due
under an IBM lease or rental agreement. The Effec.
tive Date of Purchase for the Machine will be the later
of the first day of the Quotation Month or the day on
which IBM receives payment required under Section
3. Such payment must be no later than the last day
of the Quotation Month.
12. INSTALLATION
Each Machine will be installed by IBM (non-CSU
Machine) or set up by you (CSU Machine). Whenever
the Date of Installation would occur on a Saturday or
Sunday, IBM will postpone such Date 10 the following
Monday.
You will provide a suitable environment for each
Machine as specified by IBM. You also will furnish all
labor required for unpacking and placing each on-
order Machine in the desired location, except as oth-
erwise specified by IBM. Packaging materials, if any,
become your property.
IBM will sell features and model conversions only
for installation on a machine designated by serial
number in a Supplement. You represent that you are
the owner of such machine. If you are not the owner,
you represent that you have the owner's authority to
have the feature or model conversion installed on the
owner's machine.
Installation by IBM
IBM will install non.CSU machines, features and
model conversions.
The Date of Installation for a non.CSU machine,
feature or model conversion is the day following the
day IBM installs it under this or another IBM agree-
ment. How~ver, if an on-order machine is 1) avail-
able for delivery and you delay such delivery or 2)
delivered and you a) fail to provide a suitable installa-
tion environment or b) delay installation, the
machine's Date of Installation is the day following the
day of such availability or delivery. If you delay
Z120-2692.049/69
installation of a non-CSU feature or model conversion
more than one month from the later of its Estimated
Shipment Date or actual date of shipment from IBM,
its Date of Installation will be the day one month fol-
lowing such later date, except as otherwise provided
in the following paragraph.
18M's installation of certain non-CSU features and
model - conversions involves the removal of parts
which become the property of IBM (Net Upgrade).
IBM will specify such Upgrade in a Supplement. In no
event will IBM's access for such installation be
delayed by more than one month follOWing the later of
the Net Upgrade's Estimated Shipment Date or actual
date of shipment. If you fail to provide IBM such
access, you will return the Net Upgrade to IBM with
shipping charges prepaid.
IBM will notify you of the Date of Installation of
each non-CSU machine, feature and model conver-
sion.
Customer Set. Up
You will set up a Machine which IBM specifies in a
Supplement as 'Customer Set-Up' (CSU) by following
instructions furnished by IBM.
The Date of Installation of a CSU machine is the
day following Ihe last day of its CSU allowance period
specified in the Supplement. Such period commences
on the day following the day you receive the CSU
machine at your location. Such period does not
include Saturdays or Sundays. However, when IBM
delivers a CSU machine with and for attachment to a
non-CSU machine, the Date of Inslallation of the CSU
machine will be the day following the later of 1) the
last day of the CSU allowance period or 2) the date
such non-CSU machine is installed.
The Date of Installation of a CSU feature, model
conversion, machine element or accessory will be the
day one month following the later of its Estimated
Shipment Date or actual date of shipment from IBM.
13. WARRANTIES
Each Machine purchased under this Agreement will
be 1) newly manufactured by or for IBM from new and
serviceable used parts which are equivalent to new in
performance in the Machine, 2) assembled by or for
IBM from serviceable used parts, 3) a Machine which
has been previously installed, or 4) a Machine pres-
ently installed with you.
IBM warrants that each Machine, on its Date of
Installation, will be in good working order and will
conform to IBM's official published specifications.
Such specifications are available upon request.
The Warranty Period of each on-order Machine will
commence on its Date of Installation. The Warranty
Period of each installed machine, model upgrade and
feature addition will be deemed to have commenced
on its Date of Installation and continue from its Effec-
tive Date of Purchase for any remainder of such
Period. If a Machine's Warranty Period expires on a
Friday or Saturday, IBM will extend it so that its last
day will be the following Sunday. IBM will specify the
Warranty Period in a Supplement.
IBM SELLS AN INSTALLED MACHINE, PURCHASED
AFTER ITS WARRANTY PERIOD HAS EXPIRED, ON AN
'AS IS' BASIS.
Service and Parts Warranty
IBM will provide warranty service under one of the
Types of Service described in the subsection entitled
"'Types of Service," IBM will specify, in a Supplement,
the Type of Service for each Machine during its War-
ranty Period, There is no charge for warranty service
except as set forth in the subsection entitled 'Addi-
tional Charges: For certain Machines, IBM offers
Warranty Options under an IBM maintenance agree-
ment.
Page 2 of 5
During the Warranty Period, IBM will control and
install engineering changes IBM determines to be
applicable to Machines. You may elect to have only
18M-designated mandatory engineering changes
installed on Machines. In such case, you must
provide notice to 18M. IBM will confirm such notice in
writing.
IBM will have full, free and safe access to
Machines to provide On-Site services.
You will determine when a machine or machine
element requires warranty service following proce-
dures provided by 18M. IBM reserves the right to
verify that a machine or machine element is failing
before providing warranty service, and, if applicable,
is acceptable for exchange.
You agree to remove and control any funds from a
Machine before IBM begins service, and to replace. or
reload, funds in a Machine following service.
You agree to remove or protect all programming,
programs, data and removable storage media con-
tained in Machines presented for service.
Repair
Under a Repair Type of Service, IBM will provide
remedial maintenance to keep Machines in, or restore
them to, good working order. Such Service may
include preventive maintenance as IBM determines
necessary. Repair Types of Service may include
lubrication, adjustments and replacement of parts as
IBM determines necessary. IBM will install parts on
an exchange basis. Such parts may be new or used
parts. Replaced parts become IBM's property.
Exchange
Under an Exchange Type of Service, IBM will
provide an exchange machine. Such machine may
not be new but will be in good working order. You
will acquire title to it at the'time of exchange. IBM
will acquire title to the failing machine at the time of
exchange. You agree to ensure that a failing machine
is free of any encumbrances at the time you present
it to IBM.
You agree to remove all features, non-18M parts,
options, alterations and attachments before pre-
senting a failing machine or machine element for
exchange. You give up all rights to any such items
not removed. You will not present such machine or
machine element for exchange which is defaced,
altered, in need of repair not included in warranty
service, or damaged beyond repair. If IBM deter-
mines that such machine or machine element is in
such condition, IBM will nullify the exchange. In such
case, each party will return to the other the machine
or machine element in its possession.
Hours of Warranty Service
The Hours of Warranty Service for IBM On-Site
Repair and IBM On-Site Exchange Types of Service
are 24 hours a day, seven days a week, unless IBM
specifies otherwise in the applicable Supplement. The
Hours of Warranty Service for Customer On-Site
Exchange, Customer Carry-In Repair and Customer
Carry-In Exchange Types of Service are the normal
business hours of the 18M-designated location.
Types of Service
IBM On-Site Repair (lOR)
IBM will provide warranty service for the failing
Machine at your location.
IBM On-Site Exchange (IOE)
IBM will deliver the exchange Machine to your
location, connect it and verify its operation. IBM
will remove the failing Machine from your location.
Customer On-Site Exchange (COE)
IBM will have an exchange Machine delivered to
your location. You will connect the exchange
Z120-2892-049/89
Machine and verify its operation. You agree to
follow 18M's instructions for shipping the failing
Machine to IBM. Such shipment will be at IBM's
expense.
Customer Carry-In Repair (CCR)
You will deliver the failing Machine to an
18M-designated location. Following any necessary
repairs, you will pick up the Machine, connect it
and verify its operation.
Customer Carry-In Exchange (CCE)
You will deliver the failing Machine to an
IBM-designated location. You will pick up the
exchange Machine, connect it and verify its opera-
tion.
CCRICCE
In place of the delivery and pickup described
under the CCR and CCE Types of Service, you may
ship the failing Machine, prepaid, to an IBM
location designated to receive such shipment.
Such shipment will be in the original shipping con-
tainer or equivalent. IBM's return shipment to you,
within the United States or Puerto Rico, will be at
no charge.
Additional Charges
IBM will invoice you for travel expense associated
with warranty service only when the Machine's
location is inaccessible to the IBM service represen-
tative by both private automobile and scheduled
public transportation.
IBM will invoice you for travel time and waiting
time for warranty service provided outside the Hours
of Warranty Service.
If you and IBM agree, IBM will provide On-Site
service for selected Machines, in place of the Type of
Service then in effect, for a per incident charge.
Additional Provisions/Features and Model Conversions
IBM's warranty for each feature addition or model
upgrade requires that the machine for which you
ordered such addition or upgrade must:
a) be at a proper engineering-change level, as IBM
determines;
b) be the specific serial-numbered machine desig-
nated in the Supplement; and
c) have only additions or upgrades obtained from
IBM specifically for that serial-numbered
machine.
If these conditions are not met, IBM will attempt to
install a non-CSU feature addition or model upgrade
on the machine. If such installation attempt results in
a correctly functioning machine, IBM's warranty will
apply. If such installation attempt results in an incor-
rectly functioning machine, IBM will, upon your
request, remove the addition or upgrade and restore
the machine to its prior condition.
For a feature removal, model downgrade or rein-
stallation of a previously purchased feature or model
conversion, a three-month parts warranty will apply to
any additional parts supplied by IBM.
Additional Provisions/Machine Elements and Accesso-
ries
Machine elements separately purchased as
spares and accessories have a three-month Warranty
Period. To obtain warranty service, you will ship the
machine element or accessory, prepaid, to the IBM
location designated to receive such shipment. IBM
will repair or exchange such element or accessory
and pay return charges within the United States or
Puerto Rico.
Services for Additional Charge During Warranty
Period
The services for additional charge described in
this subsection are not warranty services. If any of
Page 3 of 5
the following services are available and IBM provides
them under this Agreement, there will be additional
charges. IBM will invoice you, as applicable, IBM's
then generally available 1) hourly service rates and
minimum charges for service time, travel time and
waiting time, 2) parts and material prices, and 3)
charges for travel and shipping expense.
Services for additional charge include, but are not
limited to:
a) repair of Machine damage, replacement of parts
or increase in service time caused by-
1) failure to continually maintain a suitable envi-
ronment as prescribed by IBM;
2) accident, disaster, transportation, vandalism,
misuse or abuse;
3) another product or device not under IBM
warranty or an IBM agreement which
includes maintenance service;
4) service of the Machine by other than IBM; or
5) a non-IBM modification, when repairs are
made within the first three.month period fol-
lowing such modification;
b) repair of Machine damage, replacement of
maintenance parts (due to other than normal
wear) or repetitive service calls caused by use
of, inadequate use of, or failure to use, supplies;
c) inspection of a Machine, including inspection of
an altered Machine;
d) replacement or addition of maintenance parts
and increase in service time associated with
IBM's installation of an engineering change.
This applies when such change is required due
to model conversion or feature change activity
not done by IBM;
e) rearrangement or relocation of Machines and
provision of necessary materials; and
f) replacement of a part not provided by IBM for a
Machine. IBM will only replace such a part with
a directly interchangeable IBM maintenance
part.
Other Warranty Provisions and Exclusions
The warranties under this Agreement apply in
place of any conflicting statement of limited warranty
included with a Machine shipment. However, if a
Machine is subject to federal or state consumer war-
ranty laws, the IBM Statement of Limited Warranty
included with such Machine will apply.
The warranties under this Agreement do not
include:
a) furnishing supplies;
b) painting or refinishing Machines or furnishing
material for them;
c) electrical work external to Machines;
d) installation, maintenance or removal of alter-
ations or attachments to Machines; or
e) any service which is impractical for IBM to
render because of such alterations or attach-
ments.
IBM does not warrant uninterrupted or error-free
operation of the Machines or programming or that
IBM will correct all programming errors.
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.
14. LICENSED INTERNAL CODE
IBM owns copyrights in Licensed Internal Code
(Code). IBM owns all copies of Code, including all
copies made from them. Code is an integral part of,
and is required by, specified Machines (Specific
Machines) and executes below the external user
interface. IBM will identify each Specific Machine in a
Supplement. If you are the owner or the rightful
possessor of a Specific Machine, IBM grants you a
2120-2892-04 9189
license to use the Code provided as part of. or in
conjunction with, that Specific Machine.
Each license authorizes you:
a) to execute the Code to enable the Specific
Machine to perform in accordance with IBM's
official published specifications (specifications);
b) to Illake a backup or archival copy of the Code
unless one is provided by 18M. You may use
this copy only to replace the original on the
Specific Machine; and
c) to execute and display the Code as necessary to
maintain the Specific Machine.
You may not:
a) otherwise copy, display, adapt, modify or
electronically distribute the Code except as may
be authorized in the specifications;
b) reverse assemble, reverse compile, decode or
translate the Code; or
c) sublicense, assign or lease the Code.
You will include the copyright notice(s) and any
legend(s) on each authorized copy.
You may transfer possession of the Code to
another party only with the transfer of the Specific
Machine. Your license is discontinued when you are
no longer an owner or a rightful possessor of the
Specific Machine. In addition, the terms and
conditions of this Section apply to Code you acquire
from another party.
15. PATENTS AND COPYRIGHTS
IBM will, at its expense, defend you against any
claim that any Machine or programming furnished
under this Agreement infringes a patent or copyright
in the United States or Puerto Rico. 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, you must 1) give I BM 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.
You agree that if the operation of Machines or
programming becomes, or IBM believes is likely to
become, the subject of such a claim, you will permit
18M, at its option and expense, either to secure the
right for you to continue using the Machines or
programming or to replace or modify them so that
they become noninfringing. However, if neither of the
foregoing alternatives is available on terms which are
reasonable in 18M's judgment, you will return the
Machines or programming upon 18M's written
request. IBM agrees to grant you a credit for
returned Machines as depreciated. The depreciation
shall be an equal amount per year over the life of the
Machines as IBM establishes.
IBM shall have no obligation with respect to any
such claim based upon your modification of Machines
or programming or their combination, operation or
use with apparatus, data or programs not furnished
by IBM.
This Section states IBM's entire obligation to you
regarding infringement or the like.
16, EXPORT
You are responsible to secure all necessary United
States Government licenses, permits, clearances and
approvals required to export any Machine or
programming IBM furnishes under this Agreement.
17, LIMITATION OF REMEDIES
IBM's entire liability and your exclusive remedy
are set forth in this Section.
In all situations involving performance or nonper-
formance of Machines or programming furnished
under this Agreement, your remedy is IBM's adjust~
ment or repair of the Machine or replacement of its
parts or correction of programming errors. IBM may,
Page 4 of 5
as an alternative, replace the Machine. If, after
repealed efforls, IBM is unable 10 install the Machine,
or a replacement Machine, in good working order, or
to restore it to good working order, or correct pro-
gramming errors, all as warranted, you are entitled to
recover actual damages to the limits set forth in this
Section. For any other claim concerning IBM's per-
formance or nonperformance under, or related in any
other way to, this Agreement or any order under it,
you are entitled to recover actual damages to the
limits set forth in this Section.
IBM's liability for actual damages from any cause
whatsoever will be limited to the greater of 1)
$100,000 or 2) the Purchase Prices specified in a
Supplement for the individual Machines that caused
the damages or that are the subject matter of, or are
directly related to, the cause of action. This limitation
will apply, except as otherwise stated in this Section,
regardless of the form of action, whether in contract
or in tort, including negligence. This limitation will not
apply to the payment of costs, damages and
attorney's. fees referred to in Section 15. This
limitation will not apply to claims by you for bodily
injury or damage to real property or tangible personal
property for which IBM is legally liable.
In no event will IBM be liable for any lost profits,
lost savings, incidental damages, or other economic
consequential damages, even if IBM has been
advised of the possibility of such damages. In
addition, IBM will not be liable for any damages
claimed by you based on any third party claim.
However, the exclusions described in this paragraph
will not apply to the payment of costs, damages and
attorney's fees referred to in Section 15.
IBM is not liable for any damages caused by
performance or nonperformance of Machines or
'programming located outside the United States or
Puerto Rico. In no event will IBM be liable for any
damages caused by your failure to perform your
responsibilities. IBM is not liable for loss of funds
contained in, dispensed by, or associated with, any
Machine.
18. NON-IBM EQUIPMENT
The following subsections of this Section replace
Sections 3, 12, 13, and 15 respectively in their entirety
in respect to Machines which are non-IBM equipment.
Prices and Payment
IBM will specify the Purchase Price for non-IBM
equipment in a Supplement exclusive of applicable
taxes. Payment in full for such equipment is due upon
your receipt of IBM's invoice unless otherwise
provided for in an IBM installment agreement.
Installation
You will provide a suitable installation environment
with facilities as prescribed by the other
manufacturer. You are responsible to arrange for
installation. IBM is not responsible for such
installation or for any installation by such
manufacturer.
2120-2892-04 9/89
Warranties
IBM SELLS NON-IBM EQUIPMENT ON AN 'AS IS-
BASIS. HOWEVER, THE MANUFACTURER'S WAR-
RANTY, IF ANY, APPLIES, AND YOU MUST DEAL
WITH THE MANUFACTURER ON SUCH MATTERS.
Patents and Copyrights
IBM shall not have any liability regarding patent or
copyright infringement for non-IBM equipment.
19. GENERAL
You may not assign this Agreement or any
Machines to other than an IBM affiliate without IBM's
prior written consent. Any attempt to assign any
rights, duties or obligations of this Agreement, or
assign any Machines, without such consent is void.
You are responsible for selecting Machines and
programming, using them, and obtaining results from
them. Such programming must be properly used on
an IBM Machine of the type IBM designates.
You agree to comply with the provisions of any
applicable End User Certification.
IBM may provide services described in this
Agreement by using IBM-selected independent
contractors.
IBM may modify the terms of this Agreement by
giving you written notice. Any such modification will
apply, as of the effective date specified in the notice,
to any order for purchase which IBM accepts on or
after the date of notice. Otherwise, this Agreement
may be modified only by a written agreement signed
by you and IBM. Any terms and conditions varying
from this Agreement in any order or written
notification from you are void.
IBM is not responsible for failure to fulfill its
obligations under this Agreement due to causes
beyond its control. In addition, IBM is not responsible
to provide any services under this Agreement for
Machines or programming located outside the United
States or Puerto Rico.
Neither party may bring an action, regardless of
form, arising out of this Agreement more than two
years after the cause of action arose. IBM may not
bring an action for nonpayment more than two years
after the date the last payment was due.
If you do not pay a Purchase Price due under this
Agreement and IBM repossesses a Machine as
provided by law, you agree to pay all costs and
expenses of repossession. including reasonable
attorney's fees.
The laws of the State of New York govern this
Agreement.
You and IBM agree that the complete and
exclusive statement of the agreement between the
parties relating to this subject shall consist of the IBM
SystemPlan selection page and 1) this Agreement and
its Supplements and 2) any other applicable IBM
Agreements, Amendments, Supplements, Exhibits,
Certifications and IBM Statements of Limited
Warranty, including those effective in the future. 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.
Page 5 of 5
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SystemPlan™
Agreement for IBM licensed Programs (ALP)
~
You and IBM agree that the following terms and conditions will apply to any IBM program .lice~sed under this
Agreement (Program). This is a license agreement and not an agreement for sale. IBM retains tllle to the copy
of the Program and any copy made from it.
When an individual Program becomes subject to this Agreement, IBM will grant you a nontransferable and
nonexclusive license in the United States and Puerto Rico for the Program. You may not transfer the Program
without IBM's written consent.
TABLE OF CONTENTS
Section Title
1 Associated. Contract Documents
2 Definitions
3 License
4 Charges
S Program Testing
6 Shipment and Risk of Loss or Damage
7 Machine Readable Documentation
8 Program Services
9 Protection and Security
10 Limited Warranty
11 Discontinuance of Licenses
12 Patents and Copyrights
13 Limitation of Remedies
14 General
1. ASSOCIATED CONTRACT DOCUMENTS
An individual Program becomes subject to this
Agreement when IBM accepts your order by 1) ship-
ping you the Program or 2) providing you a Supple-
'ment to this Agreement or other IBM-designated
documentation (Supplement), whichever occurs first.
IBM will specify supplemental terms for a Program
in a Supplement and in either the Licensed Program
Specifications (LPS) or the notice of availability. You
will accept such terms following receipt of these docu-
ments by your use of the Program or your payment
for it, whichever occurs first.
For each warranted Program, IBM will provide an
LPS. IBM may update such LPS from time to time.
For variable charge Programs, IBM provides
Exhibits which list either IBM machines or non-IBM
machines by group. Such Exhibit may contain other
terms and conditions related to such Programs. IBM
will specify, in a Supplement, the applicable group as
a feature of such Program. IBM may issue revised
Exhibits, from time to time, replacing the corre-
sponding Exhibit. A revised Exhibit will become effec-
live on the date designated in the Exhibit.
2. DEFINITIONS
The term "Program"' means 1) machine readable
instructions or statements, 2) any machine readable
data base, and/or 3) any machine readable or printed
related materials, including documentation and
listings. This term includes all copies of such
Program, including portions of such Program. Pro-
grams are copyrighted.
The term "restricted materials" means those
portions of a Program which are labeled "Restricted
Materials of IBM."
The term "use,. relating to the machine.readable
portion of a Program, means copying any portion of
the Program into a machine for processing, transmit-
ting it to a machine for processing, and performing
such processing. .
The term .Designated Machine" means the
machine, specified in a Supplement, on which you use
the Program for processing.
Z125~3358~02 (9/89)
The term "group" means the machine group of the
Designated Machine.
The term "variable charge Programs" means those
Programs whose charges vary based on the group of
the Designated Machine. Variable charges include
processor-based charges, graduated charges and
such other charges as IBM may designate.
The term .Specified Operating Environment'"
means the IBM machine type(s) and other IBM equip-
ment and programs for which a Program is designed.
For warranted Programs, it is described in the LPS.
For "'AS IS'" Programs, it is described in the Program's
notice of availability.
3. LICENSE
Each license granted authorizes you to:
a) use the Program's machine readable portion on
the Designated Machine;
b) store the Program in, transmit it through, and
display it on, machines associated with the Des~
ignated Machine;
c) modify the Program and/or merge it into
another program to form an adaptation for your
own use, subject to Section 11. Any portion of
the Program included in such adaptation is
subject to this Agreement;
d) utilize the Program's printed portion in support
of your authorized use of the Program; and/or
e) copy or translate the Program's machine read-
able portion into any machine readable or
printed form to provide sufficient copies to
support your authorized use, storage and mod-
ification of the Program.
You may not copy Programs which IBM provides in
printed form, microfiche or other non-machine read-
able form.
A separate license is required for each Designated
Machine on which you use any Program, except as
provided in this Section.
You will not reverse assemble or reverse compile
Programs.
For restricted materials, the authorization
described in this Section is limited solely to the fol-
lowing purposes:
a) making modifications to your products and/or
programs 50 that they will function with the Pro-
grams which contain restricted materials;
b) making modifications to the Programs which
contain restricted materials, subject to Section
11; and/or
c) assisting you in problem determination, problem
source identification and/or problem resolution
activities associated with the use of the Pro-
grams which contain restricted materials.
These provisions also apply to restricted materials
distributed to you for an IBM Education Course.
Designated Machine
You will notify IBM of a change in the Designated
Machine and the dale of such change. Such date is
lhe effective date of the change in charges.
You are authorized to perform the following activ-
Page 1 0' 4
ities on machines other than the Designated Machine.
You may:
a) use the Program on a backup machine when the
Designated Machine is temporarily inoperable.
This authorization continues until the Desig-
nated Machine is operable and you complete
processing on the backup machine;
b) assemble or compile the Program on another
machine if the Designated Machine and its asso-
ciated machines cannot assemble or compile
the Program;
c) use a Program with an Installation License on
any other machine in the same installation as
the Designated Machine. The term "same
installation" means a single room or contiguous
rooms; andlor
d) use a Program with a Location License on any
other machine in the same location as the Des-
ignated Machine. The term "same location"
means a single building designated by a single
mailing address.
Subsequent Releases
IBM will make a subsequent Program release avail-
able to you for your use on the Designated Machine
while you continue productive use of a previous
release on that Machine. However, Program services
may not be available for previous releases. A subse-
quent Program release has the same program
number as the previous Program release.
Usage License
IBM specifies a usage restriction for selected Pro-
grams. A separate license or an additional feature is
required for use of the Program which exceeds the
usage restriction.
Additional License Copies and OSLO Licenses
For Programs for which you are licensed, in lieu of
distribution from IBM, you may order an Additional
License Copy of a Program for a charge. Such Copy
will be deemed to be a copy of a Program under this
Agreement. For each Additional License Copy
ordered, IBM will authorize you to make a single copy
of the Program's machine readable material.
You may make an Additional License Copy only
upon receipt of a Supplement specifying the number
of such Copies for which you are authorized. IBM will
specify the Effective Date of the Additional License
Copy on the Supplement.
For certain Programs, you may obtain a Distributed
System license Option (OSLO) license, in addition to
the original license (Basic License), for a OSLO
charge. A OSLO License will be deemed to be an
Additional license Copy, except where otherwise
specified. For each OSLO License, unless otherwise
specified by IBM, you wilL
a) copy the Program's machine readable portion
and use such copy on the OSLO Designated
Machine;
b) provide problem documenl<ltion to IBM (rom the
Basic License's location;
c) distribute to, and install on, the OSLO Desig-
nated Machine any new release, correction or
bypass which IBM provides to the Basic License
Designated Machine; and
d) receive Program services and the warranty, if
any, only through the Basic License location.
You will designate a new Bask License to replace
a discontinued Basic License.
4. CHARGES
For each Program, IBM will specify the applicable
charges. Such charges may be t) one-time charges,
2) upgrade charges, 3) periodic charges and any
initial charges, andlor 4) process charges.
Z125~3358~02 (9/89)
For certain Programs, IBM may designate a
replacement Program. When you replace a discon-
tinued Program, upgrade charges may apply to the
replacement Program. You may obtain the replace-
ment Program before discontinuing the replaced
Program as specified by IBM.
For variable charge Programs, you will pay
charges based on the applicable group. When you
change or upgrade the Designated Machine to a
machine in a group with higher charges, group
upgrade charges or applicable periodic charges will
apply. When you change or downgrade the Desig-
nated Machine to a machine in a group with lower
charges, the periodic charges applicable to such
lower group will apply. However, IBM will not adjust
or refund anyone-time, initial, process or upgrade
charges due or previously paid for the variable
charge Program. You will notify IBM of such changes
and their date. Such date is the effective date of the
change in charges. If you license a variable charge
Program for use on a Designated Machine not listed
in an Exhibit, the charges for the group with the
highest charges apply.
For variable charge Programs, if IBM reassigns a
Designated Machine in a revised Exhibit to a group
with higher charges, applicable existing licenses will
be reassigned to such group. Any resulting increase
will not apply to one-time, upgrade, initial or process
charges due or paid prior to the reassignment. In all
other cases, any resulting increase in charges will be
determined as described in the subsection entitled
"'Increases in Charges" of this Section.
For variable charge Programs, if IBM reassigns a
Designated Machine to a group with lower charges,
the lower one~time charges will apply only to Pro-
grams whose charges are not yet due. Lower vari-
able periodic charges will become effective on the
date of the revised Exhibit. IBM will not adjust or
refund any charges due or previously paid.
For variable charge Programs, on IBM's written
request, you will certify in writing the Programs' Des-
ignated Machines.
Commencement and Invoicing of Charges
For a Program or Additional License Copy with a
testing period, periodic charges will commence and
one-time, initial and upgrade charges will be due on
the day, Monday through Friday, following the end of
the testing period. For a Program without a testing
period, periodic charges will commence and one-time,
initial and upgrade charges will be due on the day,
Monday through Friday, 10 days after IBM ships the
Program. For an Additional License Copy with no
testing period, periOdic charges will commence and
other charges will be due upon the Effective Date for
such Copy.
Process charges are due when invoiced and are
not refundable.
IBM will prorate monthly charges based on a
3D-day month. Except as otherwise specified by IBM,
other periodic charges will not be prorated and are
not refundable. IBM will invoice periodic charges in
advance.
You will make payment as stated in the invoice.
Increases In Charges
IBM may increase periodic charges by giving you
three months' written notice to be effective on the
first day of the applicable period on or after the effec-
tive date specified in the notice.
Initial, one-time, process and upgrade charges are
subject to any increase effective immediately.
However, such increase will not apply if 1) IBM
received your order before the announcement date of
the increase and 2) the date IBM shipped the
Program, the Effective Date of the Additional License
Copy, or the date of the group upgrade for a variable
charge Program is before the date of announcement
Page 2 of 4
or up to three months after the date of announce-
ment.
Taxes
You will pay amounts equal to any taxes resulting
from this Agreement, or any activities under this
Agreement, exclusive of taxes based on IBM's net
income.
5. PROGRAM TESTING
IBM may specify a testing period in the LPS.
During the testing period, IBM will make the Program
or Additional license Copy available for nonproduc-
tive use to determine if it meets your requirements.
The testing period for a Program will begin on the day
following 10 days after IBM ships the Program. The
testing Period of the Additional License Copy, if any,
begins on the Effective Date of the Additional License
Copy. There will be no testing period for OSLO
licenses, unless otherwise specified by IBM.
During the testing period, you may discontinue any
license upon written notice effective immediately. In
such event, charges will not be due. IBM will credit
any charges, other than process charges, previously
invoiced and paid.
You will notify IBM if you use the Program or Addi-
tional license Copy for productive purposes during
the testing period. The testing period will end as of
the day you began productive use.
6. SHIPMENT AND RISK OF LOSS OR DAMAGE
IBM will specify the estimated shipment date of
each Program. Either party may change it as neces-
sary.
If a Program is lost or damaged during shipment
from IBM, IBM will replace the Program and its
storage media at no additional charge. If a Program
is lost or damaged while in your possession, IBM will
replace the Program at the applicable charges, if any,
for processing, distribution and/or storage media.
7. MACHINE READABLE DOCUMENTATION
IBM may make available machine readable doc-
umentation which may include IBM-designated "L,'"
"'G" and "S'" manuals. IBM may provide such doc-
umentation as a feature of the Program. Such doc-
umentation is subject to Section 3 and any additional
licensing terms in the LPS.
8. PROGRAM SERVICES
IBM will specify the Program services, if any, which
IBM will provide without additional charge for a
current release of a Program.
If IBM specifies Central Service, you must submit
problem documentation to IBM~designated service
locations. Central Service will respond to a defect in
the unaltered portion of a current release of the
Program by issuing a) defect correction information,
b) a restriction, or c) a bypass. Central Service will
respond only fa defects which occur when Central
Service operates the Program in a Specified Oper-
ating Environment.
IBM may also establish a Support Center to
provide you with assistance in problem diagnosis and
resolution for certain Programs.
For each version of a Program, IBM will specify
that Program Service, if any, will be available 1) until
IB~ disco~tinues it upon six months' written notice, 2)
unlll a deSignated date, or 3) for a designated number
of months.
When a subsequent Program release becomes
available, IBM may discontinue Program services for
any or all previous releases.
IBM does not guarantee service results or that IBM
will correct all Program defects.
Z125-3358-02 (9/89)
9. PROTECTION AND SECURITY
You will take appropriate action, by instruction,
agreement or otherwise, with any persons permitted
access to any Program, to satisfy your obligations
under this Agreement.
You may not distribute any Program to any other
persons, including other licensees, without IBM's
written consent
You will reproduce and include the copyright
notices and any other legend on any copies of the
Program you make by following IBM's copyright
instructions.
You will maintain records of the number and
location of all copies of the Program. You will notify
IBM in writing if the original or any copy of the
Program will be kept at premises other than that of
the Designated Machine.
You will insure, before disposing of any media, that
any Program contained on it has been erased or
destroyed.
For purposes specifically related to your use of the
Program, you may make the Program available to 1)
your employees or IBM's employees or 2) other
persons a) during the period they are on your prem~
ises or b) whom you authorize to have remote access
to the Program. You may not make the Program in
any form available to any other persons without IBM's
written consent.
Only you, your employees and IBM's employees
may access any Program that is a data base. You
may not make any data in the data base available to
any other person.
10. WARRANTY
Each warranted Program will conform, when IBM
ships it, to the Program specifications in the LPS.
This warranty applies only if the Program is properly
used in a Specified Operating Environment. While
Program services are available, you may inform IBM
if you believe a Program does not meet its Program
specifications. IBM will provide Program services, as
described in Section 8. IBM does not warrant that the
func~ions contained in a Program will meet your
reqUirements. The Program may not operate in the
combinations which you may select for use. The
operation of the Program may not be uninterrupted or
error free.
IBM WILL DISTRIBUTE ALL OTHER PROGRAMS ON
AN 'AS IS' BASIS.
THE FOREGOING WARRANTIES ARE IN PLACE OF
ALL OTHER WARRANTIES, EXPRESS OR IMPLIED
INCLUDING, BUT NOT LIMITED TO, THE IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS
FOR A PARTICULAR PURPOSE.
11. DISCONTINUANCE OF LICENSES
IBM may discontinue any license upon written
notice effective immediately if you fail to comply with
the terms and conditions of this Agreement.
Except as specified in Section 5, you may discon-
tinue a license upon one month's written notice.
Within one month following the discontinuance of a
license, you must destroy all applicable copies of the
Program. However, upon IBM's written authorization
you may retain a copy for archival purposes only:
You must also remove the Program from any adapta-
tion into which it is merged. You are not required,
however, to destroy the individual pieces of data you
obtained from a data base and which constitute a
minor portion of such data base.
When you license a new version of a Program
which carries a different Program number than lh~
previous version, and discontinue the previous
version, you may retain the previous version of the
Program without charge for up to three months fol-
Page 3 of 4
lowing its date of discontinuance. You may use the
previous version only if a defect in the new version
prevents its use.
After the discontinuance of any license, upon IBM's
written request, you will certify that you have fully
complied with this Section.
12. PATENTS AND COPYRIGHTS
IBM will, at its expense, defend you against any
claim that any Program furnished under this Agree-
ment infringes a patent or copyright in the United
States or Puerto Rico. 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, you 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.
You agree that if the operation of a Program
becomes, or IBM believes is likely to become, the
subject of such a claim, you will permit IBM, at its
option and expense, either to secure the right for you
to continue using the Program or to replace or modify
it so that it becomes noninfringing, However, if
neither of the foregoing alternatives is available on
terms which are reasonable in IBM's judgment, you
will return the Program upon IBM's written request.
IBM will grant you a credit for a Program whose total
charges are fully paid.
IBM shall have no obligation with respect to any
such claim based upon your modification of a
Program or its combination, operation or use with
apparatus, data or programs not furnished by IBM or
in other than the Specified Operating Environment.
This Section states IBM's entire obligation to you
regarding infringement or the like.
13. LIMITATION OF REMEDIES
IBM's entire liability and your exclusive remedy
shall be as set forth in this Section.
In all situations involving performance or nonper-
formance of warranted Programs, IBM will attempt to
make the Program operate as warranted. If, after
repeated efforts, IBM does not provide such a
remedy, you shall be entitled to recover actual
damages to the limits set forth in this Section. For
any olher claim concerning performance or nonper-
formance by IBM pursuant to, or in any other way
related to, the subject matter of this Agreement, you
shall be entitled to recover actual damages to the
limits set forth in this Section.
IBM's liability for actual damages from any cause
whatsoever will be limited to the greater of 1)
$100,000 or 2) the one-time charge paid for, or any
charges which would be due for 12 months' use of,
the individual 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 upgrade, initial or process charges paid to
IBM. This limitation will apply, except as otherwise
stated in this Section, regardless of the form of
action, whether in contract or in tort, including
negligence. This limitation will not apply to the
payment of costs, damages and attorney's fees
referred to in Section 12. In addition, this limitation
will not apply to claims by you for bodily injury or
damage to real property or tangible personal property
for which IBM is legally liable.
In no event will IBM be liable for any damages
arising from performance or nonperformance of the
Program during the Program testing periOd or for any
damages caused by your failure to perform your
responsibilities. In addition, IBM will not be liable for
any lost profits, lost savings, incidental damages, or
other economic consequential damages, even if IBM
2125-3358-02 (9/89)
has been advised of the possibility of such damages.
Further, IBM will not be liable for any damages
claimed by you based on any third party claim.
However, the exclusions described in this paragraph
will not apply to the payment of costs, damages and
attorney's fees referred to in Section 12.
The limitation of remedies described in this Section
also applies to any developer of a Program supplied
to IBM. IBM's and its developer's limitations of reme-
dies are not cumulative. Such developer is an
intended beneficiary of this Section.
14. GENERAL
You may not sublicense any license. You may not
assign this Agreement. Any attempt to sublicense,
assign or transfer any of the rights, duties or obli-
gations under this Agreement is void.
You are responsible for selecting Programs, their
installation, their use, and the results obtained from
them. You are also responsible for the results
obtained from any other programs, programming,
equipment or services used with the Programs.
You may terminate this Agreement upon one
month's written notice. You may terminate this
Agreement only when all licenses are discontinued
and you have returned or destroyed all Programs.
Either party may terminate this Agreement for
failure of the other party to comply with its terms and
conditions.
IBM may modify the terms of this Agreement by
giving you three months' written notice. However,
any modifications of the terms and conditions which
relate specifically to termination of this Agreement or
discontinuance of licenses as provided in this Section
and in Section 11 shall be effective only for licenses
granted after the date of such notice. Modifications
shall become effective unless you terminate this
Agreement or discontinue any applicable licenses
before the effective date of the notice. Otherwise,
this Agreement may be modified only by a written
agreement signed by you and IBM. Any terms and
conditions varying from this Agreement in any order
or written notification from you are void.
IBM is not responsible for failure to fulfill its obli-
gations under this Agreement due to causes beyond
its control.
For an action arising out of breach of the pro-
visions of Section 9, IBM may not bring an action,
regardless of form, arising out of this Agreement
more than four years after such cause of action
arose. For an action for nonpayment (including
underpayment), IBM may not bring an action, regard-
less of form, arising out of this Agreement more than
two years from the date the last payment was due. or
was discovered by IBM to be due, whichever is later.
Neither party may bring any other action, regardless
of form, arising out of this Agreement, more than two
years after the cause of action arose.
If there is a connict between terms and conditions
those of the Exhibit prevail over those of this Agree~
ment. Except as modified by the Exhibit, the terms of
this Agreement remain in full force and effect.
The laws of the State of New York govern this
Agreement.
You and IBM agree that the complete and exclu-
sive statement of the agreement between the parties
relating to this subject shall consist of the IBM
SystemPlan selection page and 1) this Agreement and
Its Supplements, 2) licensed Program Specifications
or notices of availability, as applicable, 3) its Exhibits,
and 4) any other applicable IBM Agreements, Amend-
ments, Supplements, Addenda and Exhibits, including
those effective In the future, This statement of the
Agreement supersedes all proposals or other prior
agreements, oral or written, and all other communi.
cations between the parties relating to this subject,
Page 4 of 4
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:: - -::5"'f~ SystemPlan™
~
Distribution Amendment to Agreement for IBM licensed Programs (DA)
You and IBM agree that the terms and conditions of this Amendment amend the Agreement for IBM Licensed
Programs (ALP). Under this Amendment, IBM will authorize you to copy a specified portion of a selected Program
(Distributed Feature), designated by IBM, and distribute it for use on a machine other than the Program's Desig-
nated Machine.
1. ASSOCIATED CONTRACT DOCUMENTS
A Distributed Feature becomes subject to this
Amendment when IBM accepts your order by author-
izing you to make a copy. as described in this Amend-
ment. The authorization will be by invoice or other
IBM-designated documentation (Authorization). The
date of the Authorization is the Effective Date of the
Distributed Feature.
2. DISTRIBUTED FEATURES
You may order a Distributed Feature for a charge,
as specified by IBM. Such Feature will be deemed to
be a portion of a Program under the ALP, except as
provided under this Amendment. For each Distrib-
uted Feature ordered, IBM will authorize'you to make
a single copy of such Feature and its printed doc-
umentation, if any. You may distribute such Feature
to, and use it on, a machine other than the Program's
Designated Machine. However, you may use a Dis-
tributed Feature on only one machine at a time. The
requirement to designate a machine does not apply to
a Distributed Feature. You are not required to notify
IBM of the location of each Distributed Feature.
You may not transfer a Distributed Feature to any
third party. You may, however, distribute such
Feature as described in Section 6. Such distribution
is not deemed to be a transfer.
You may make a copy of the Distributed Feature
only upon receipt of an Authorization specifying the
number of such Features for which you are author-
ized.
The Distributed Feature has no warranty or war-
ranty period beyond that of its Program.
For a Distributed Feature with a one-time charge, if
you discontinue and SUbsequently relicense the same
Program, IBM will reauthorize you, without charge, to
use your previously authorized number of such Dis-
tributed Feature. If you discontinue a Program and
subsequently license another Program which replaces
the discontinued Program. there may be an upgrade
charge for reauthorization of the use of the applicable
Distributed Feature.
The provisions in the ALP regarding increases in
charges applicable to Additional License Copies apply
to Distributed Features.
3. LICENSE DESIGNATION
A Distributed Feature which is under this Amend-
ment may become a Program or Distributed Feature
under the IBM Program License Agreement
Extended Provisions (EP/PLA). The conversion from
this Amendment to the EP/PLA will occur when:
1) you use a Distributed Feature as a stand.alone
Program; or
2) you change the Distributed Feature's associated
Program to one subject lo the EP/PLA.
2125-8295-00 (9/89)
In either event, you must have previously accepted
the EP/PLA.
4. PROGRAM TESTING
For a Program with a testing period, you will be
entitled to a testing period for the first copy of each
Distributed Feature of such Program you obtain,
unless IBM specifies otherwise.
A Distributed Feature has the same testing period
duration as its Program. Such testing period will
begin on the Effective Date of the Distributed Feature.
5. PROGRAM SERVICES
IBM will provide service, if any, for a Distributed
Feature 1) through its Program's localion or 2) only
through its Program's Basic License location, if Hs
Program is licensed under OSLO.
6. PROTECTION AND SECURITY
You will reproduce and include the copyright
notices and any other legend on any copies of a Dis-
tributed Feature or its documentation by following
IBM's copyright instructions.
You will maintain records sufficient to demonstrate
compliance with this Amendment.
A copy of the Distributed Feature may be made
only 1) by you or 2) by another person on your behalf
while on your premises.
For purposes specifically related to your use of its
Program, you may distribute a Distributed Feature to
1) your employees and/or 2) other persons a) during
the period they are on your premises or b) whom you
permit to have possession of the Distributed Feature
for the sole purpose of remotely accessing its
Program. You may not distribute such Feature, in any
form, to any other persons without IBM's written
consent.
7. GENERAL
If there is a conflict between terms and conditions
those of this Amendment prevail over those of th~
ALP. Except as modified by this Amendment, the
terms and conditions of the ALP remain in full force
and effect.
You and IBM agree that the complete and exclu-
sive statement 01 the agreement between the parties
relating to this subject shall consist of the IBM
System Plan selection page and 1) this Amendment, 2)
the ALP and its Supplement, 3) Licensed Program
Specifications or notices of availability, as applicable,
and 4) any other applicable IBM Agreements, Amend-
ments, Supplements, Addenda and Exhibits, Including
those effective in the future. This statement of the
agreement supersedes all proposals or other prior
agreements, oral or written, and all other communi-
cations between the parties relating to this subject.
--- -
----
- - ---
;; - -~'f~ SystemPlan™
IBM Program License Agreement - Extended Provisions (EP/PLA)
You and IBM agree that these extended provisions amend the included IBM Program License Agreement (collec.
lively referred to as EP/PLA). Under this EP/PLA, IBM grants you a license for original copies of a Program and
the right to make Additional License Copies and/or copies of specified portions of a Program (Distributed Fea-
tures).
1. ASSOCIATED CONTRACT DOCUMENTS
An individual Program becomes subject to this
EP/PLA when IBM accepts your order under this
EP/PLA by 1) shipping you the Program or 2) author-
izing you to make a copy as described in this EP/PLA.
The authorization will be by invoice or other
IBM-designated documentation (Authorization). The
date you receive the Program or the date of the
Authorization, whichever occurs first, is the Effective
Date of your license for an original copy. The date of
the Authorization is the Effective Date of the Addi-
tional License Copy or Distributed Feature, as appli-
cable. Upon such Effective Date, IBM will grant you a
nonexclusive license in the United States and Puerto
Rico for the Program.
2. DEFINITION
The term "'use,'" relating to the machine-readable
portion of a Program, means copying any portion of
the Program into a machine for processing, transmit-
ting it to a machine for processing, and performing
such processing.
3. LICENSE
A Program subject to periodic charges is not
transferable. Except as otherwise specified in Section
9, you may discontinue such Programs only on one
month's notice.
Transfer and distribution provisions for Additional
License Copies or Distributed Features are contained
in Sections 4 and 5, respectively.
4. ADDITIONAL LICENSES
For selected Programs, in lieu of distribution from
IBM, you may order an Additional License Copy for a
charge. Such Copy will be deemed to be a copy of
the Program under the IBM Program License Agree-
ment (PLA), except as provided under this EP/PLA.
For each Additional License Copy ordered, IBM will
authorize you to make a single copy of the Program's
machine readable materials and printed documenta-
tion. Prior to ordering an Additional License Copy,
you will acquire at least one program package for
each such Program. A "'program package'" consists of
the media on which the original copy of the Program
is recorded, documentation and other associated
materials. An Additional License Copy may be made
only from a Program you obtained from IBM, an IBM
Authorized Dealer for such Program, or any other IBM
approved supplier for such Program.
You may not transfer or distribute an Additional
License Copy to any third party. If you transfer the
original copy of a Program, as specified in the PLA,
you may not transfer and need not destroy your Addi-
tional License Copies. These extended provisions
may not be transferred to such third party.
You may make an Additional License Copy only
upon receipt of an Authorization specifying the
number of such Copies ror which you are authorized.
An Additional License Copy may be a copy 1) eleo-
tronically distributed to a machine, 2) recorded on
portable media, or 3) made by any other means.
The warranty for an Additional License Copy is
described in the Statement of Limited Warranty
shipped with the Program.
Z12S-8296-00 (9/89)
5. DISTRIBUTED FEATURES
For selected Programs, you may order a Distrib.
uted Feature for a charge, as specified by IBM. Such
Feature will be deemed to be a portion of a Program
under the PLA, except as provided in this EP/PLA. For
each Distributed Feature ordered, IBM will authorize
you to make a single copy of such Feature and its
printed documentation, if any. You may distribute
such Feature to, and use it on, a machine other than
that on which you are using the Program.
You may not transfer a Distributed Feature to any
third party. You may, however, distribute such
Feature as described in Section 11. Such distribution
is not deemed to be a transfer.
You may make a copy of a Distributed Feature only
upon receipt of an Authorization specifying the
number of such Features for which you are author-
ized.
The Distributed Feature has no warranty or war-
ranty period beyond that of its Program.
For a Distributed Feature with a one-time charge, if
you discontinue and subsequently relicense the same
Program, IBM will reauthorize you, without charge, to
use your previously authorized number of copies of
such Distributed Feature. If you discontinue a
Program and subsequently license another Program
which replaces the discontinued Program, there may
be an upgrade charge for reauthorization of the use
of the applicable Distributed Feature.
6. LICENSE DESIGNATION
A Program or a Distributed Feature which is under
this EP/PLA may become a Distributed Feature under
the Agreement for IBM Licensed Programs (ALP) and
its Distribution Amendment (DA). The conversion
(rom this EP/PLA to the ALP and its DA will occur
when you change the Distributed Feature's associated
Program to one subject to the ALP. In such event,
you must have previously accepted the ALP and its
DA.
7. CHARGES
For each Program, IBM will specify the applicable
charges in the invoice. Such charges may be one-
time, upgrade andlor periOdic charges. You will make
payment as specified in the invoice.
For selected Programs, IBM may designate a
replacement Program. When you replace a discon-
tinued Program, upgrade charges may apply to the
replacement Program. You may obtain the replace-
ment Program before discontinuing the replaced
Program as specified by IBM.
Increases in Charges
IBM may increase periodic charges by giving you
three months' written notice to be effective on the
effective date specified in the notice.
One-time and upgrade charges are subject to any
price increase effective immediately. However, such
increase will not apply if 1) IBM received your order
before the announcement of the increase and 2) the
date IBM shipped the Program or the Effective Date of
the Additional License Copy or Distributed Feature is
before the date of announcement or up 10 three
months after the date of the announcement.
Page 1 or 3
Taxes
You will pay amounts equal to any taxes resulting
from this EP/PLA, or any activities under this EPIPLA,
exclusive of taxes based on IBM's net income.
8. PROGRAM RELEASES
IBM may provide a subsequent release for a
Program at no additional charge. Such subsequent
release of the Program must have the same Program
number as the previous release. Otherwise, there
may be a charge. You may use the subsequent
release and the previous release of the Program only
on the same machine.
9. PROGRAM TESTING
IBM may specify a testing period during which,
upon your request, IBM will make the Program avail-
able for nonproductive Use to determine if it meets
your requirements. You will be entitled to a testing
period for 1) up to three copies of a Program, which
may be originals or Additional License Copies, and 2)
the first copy of a each Distributed Feature of each
Program you obtain, unless specified otherwise in the
Program's License Information (L1). IBM will specify
the testing period duration for a Program in the L1,
Such duration will also apply to an Additional License
Copy and a Distributed Feature. The testing period
will begin on 1) the day following 10 days after IBM
ships Ihe Program to you or 2) the Effective Date of
the Additional License Copy or Distributed Feature.
During the testing period, you may discontinue any
license upon written notice effective immediately. In
such event, charges will not be due. IBM will credit
any charges previously invoiced and paid.
You will notify IBM if you use the Program, Addi-
tional license Copy or Distributed Feature for produc-
tive purposes during its testing period. The testing
period will end as of the day you begin productive
use.
10. PROGRAM SERVICES
IBM will specify the Program Services, if any,
which IBM will provide without additional charge for a
Program and the method of providing such services.
You may be required to submit documentation of a
defect in a Program to an IBM~designated location.
IBM will also specify that Program Service, if any,
will be available 1) until IBM discontinues it upon six
months' written notice, 2) until a designated date, or
3) for a designated number of months.
IBM will provide service only for the unaltered
portion of the current release of a Program. IBM
does not guarantee service results or that IBM will
correct all Program defects.
IBM will provide service, if any, for a Distributed
Feature only through its Program's location.
11. PROTECTION AND SECURITY
You will reproduce and include the copyright
notices and any other legend on any copies of a
Program, including Additional License Copies and Dis.
tributed Features, and its documentation by following
IBM's copyright instructions specified in the L1.
You will maintain records sufficient to demonstrate
compliance with this EP/PLA.
An Additional License Copy and/or a copy of the
Distributed Feature may be made only 1) by you or 2)
by another person on your behalf while on your prem-
ises.
For purposes specifically related to your use of its
Program, you may distribute a Distributed Feature to
1) your employees and/or 2) other persons a) during
the period they are on your premises or b) whom you
permit to have possession of the Distributed Feature
for the sole purpose of remotely accessing its
Program. You may not distribute such Feature, in any
form, to any other persons without IBM's written
consent.
2125-8296.00 (9/89)
12. PATENTS AND COPYRIGHTS
IBM will, at its expense, defend you against any
claim that any Program furnished under this EP/PLA
infringes a patent or copyright in the United States or
Puerto Rico. In such event, 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, you 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.
You agree that if the operation of a Program
becomes, or IBM believes is likely to become, the
subject of such a claim, you will permit IBM, at its
option and expense, either to secure the right for you
to continue using the Program or to replace or modify
it so that it becomes noninfringing. However, if
neither of the foregoing alternatives is available on
terms which are reasonable in IBM's judgment, you
will return the Program upon IBM's written request.
IBM will grant you a credit for a Program whose total
charges are fully paid.
IBM shall have no obligation with respect to any
such claim based upon your modificalion of a
Program or its combination, operation or use with
apparatus, data or programs not furnished by IBM.
The limitation or exclusion of any claim as
described in Section entitled "Limitation of Remedies"
of the included PLA does not apply to costs, damages
and attorney's fees described in this Section.
This Section states IBM's entire obligation to you
regarding infringement or the like.
13. GENERAL
Any PLA shipped with a Program subject to this
EPIPLA shall be of no effect.
For warranted Programs shipped without a State-
ment of Limited Warranty in their L1, IBM will provide
such Statement upon your request.
Either party may terminate this EP/PLA for failure
of the other party to comply with its terms and condi-
tions.
You may terminate this EP/PLA upon one month's
written notice provided all licenses are discontinued
and you have destroyed all copies of the Programs or
portions of the Programs.
IBM may modify the terms of this EP/PLA by giving
you three months' written notice. However, any mod-
ifications of the terms and conditions which relate
specifically to termination of this EP/PLA or discontin-
uance of licenses shall be effective only for licenses
granted after the date of such notice. Modifications
shall become effective unless you terminate this
EP/PLA or discontinue any applicable licenses before
the effective date of the notice. Otherwise this
Agreement may be modified only by a written ~gree-
ment signed by you and 18M. Any terms and condi.
tions varying from this EP/PLA in any order or written
notification from you are void.
If there is a connict between terms and conditions,
these extended provisions prevail over those of the
included PLA. Except as modified by these extended
provisions, the terms and conditions of the included
PLA remain in full force and effect.
You and IBM agree that the complete and exclu-
sive statement of the agreement between the parties
relating to this subject shall consist of the IBM
SystemPlan selection page and 1) this EP/PLA, 2) the
License Information, 3) any other applicable IBM
Agreements, Amendments, Addenda, and Exhibits,
including those effective In the future. This statement
of the agreement supersedes all proposals or other
prior agreements, oral or written, and all other com-
munications between the parties relating to this
subject.
Page 2 or 3
Inf!!rnational Business Machines Corporation
IBM Program License Agreement
This is a license agreement and not an agreement for sale. TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND
IBM owns or has licensed from the owner, cOPYrights In the FITNESS FOR A PARTICULAR PURPOSE.
Program. 'You obtain no rights other than the license granted Some states do not allow the exclusion of implied warran-
you by this Agreement. Title to the copy of the Program, and ties, so the above exclusion may not apply to you.
any copy made from it, is retained by IBM. IBM licenses your LIMITATION OF REMEDIES
use of the Program in the United States and Puerto RIco. You IBM's entire liability and your exclusive remedy shall be as
assume all responsibility for the selection of the Program to follows:
achieve your intended results and for the installation of, use 1) IBM will provide the warranty described in IBM's State-
of, and results obtained from, the Program. ment of Limited Warranty. If IBM does not replace
The Section in the documentation entitled "'License Informa- defective media or, if applicable, make the Program
tion'" contains additional information concerning the Program operate as warranted or replace the Program with a
and any related Program Services. functionally equivalent Program, all as warranted, you
LICENSE may terminate your license. If you do so within three
You may: months of obtaining the Program from IBM, an IBM
1) use the Program on only one machine at anyone. time, Authorized Dealer or an IBM approved supplier for this
unless permission to use it on more than one machine at Program, IBM will refund your money upon the return of
anyone time is granted in the License Information all your copies of the Program.
(Authorized Use); 2) For any claim arising out of 18M's limited warranty, or
2) make a copy of the Program for backup or modification for any other claim whatsoever related to the subject
purposes only in support of your Authorized Use. matter of this Agreement, IBM's liability for actual
However, Programs marked "'Copy Protected'" limit damages, regardless of the form of the action, shall ~e
copying; . . limited to the greater of 1) $25,000 or 2) the money paid
3) modify the Program and/or merge It mto another to IBM, an IBM Authorized Dealer or an IBM approved
program only in support of your Authorized Use; and supplier for the license for the Program that caused the
4) transfer possession of copies of the Program to another damages or that is the subject matter of, or is directly
party by transferring a copy of the IBM Program License related to, the cause of action. This limitation will not
Agreement, the License Information, and all other doc- apply to claims for bodily injury. or dam~ges to r~al or
umentation along with at least one complete, unaltered tangible personal property for which IBM IS legally liable.
copy of the Program. You must, at the same time, either 3) In no event will IBM be liable for any lost profits, lost
transfer to such other party or destroy all your other savings, or any incidental damages or other economic
copies of the Program, including. modified copies or consequential damages, even if IBM, an IBM Authorized
portions of the Program merged mto other programs. Dealer or an IBM approved supplier has been advised of
Such transfer of possession terminates your license from the possibility of such damages, or for any damages
IBM. Such other party shall be licensed under the terms claimed by you based on any third party claim.
of this Agreement, upon acceptance of this Agreement The limitation of remedies described in this Section also
by its initial use of the Program. .. applies to any developer of a Program supplied to IBM. 18M's
You shall reproduce and include the copYright notlce(s) on all and the developer's limitations of remedies are not cumula-
such copies of the Program, in whole or in part. tive. Such developer is an intended beneficiary of this
You shall not: Section.
1) use, copy, modify, merge, or transfer copies of the Some states do not allow the limitation or exclusion of inci-
Program except as provided in this Agreement; dental or consequential damages so the above limitation or
2) reverse assemble or reverse compile the Program; exclusion may not apply to you.
and/or GENERAL
3) sublicense, rent, lease, or assign the Program or any You may rerminate your license at any time by destroying
copy thereof. all your copies of the Program or as otherwise described in
LIMITED WARRANTY this Agreement.
Warranty details and limitations are described in IBM's IBM may terminate your license if you fail to comply with
Statement of limited Warranty which is available upon request the terms and conditions of this Agreement. Upon such termi-
from IBM, an IBM Authorized Dealer or an IBM approved sup- nation, you agree to destroy all your copies of the Program.
plier and is also contained in the License lnformati?n. IBM Any attempt to sublicense, rent. lease or assign, or except
provides a three-month limited warranty on the media for all as expressly provided herein, to transfer any copy of the
Programs. For selected Programs. as indicated on the outside Program is void.
of the package, a limited warranty on the Program is available. You agree that you are responsible for payment of any
The applicable Warranty Period, specified in IBM's St~tement taxes, including personal property taxes, resulting from this
of limited Warranty, is measured from the date of delivery to Agreement.
the original user as evidenced by a receipt. No action, regardless of form, arising out of this Agree-
Certain Programs, as indicated on the outside of the ment may be brought by either party more than two years
package, are not warranted and are provided "AS IS." after the cause of action has arisen except for breach of the
SUCH WARRANTIES ARE IN LIEU OF ALL OTHER WARRAN- provisions of the Section entitled "License. in which event four
TIES, EXPRESS 0'1 IMPLIED, INCLUDING, BUT NOT LIMITED years shall apply.
The laws of the State of New York govern this Agreement.
Armonk, New York 10504
Z125.8296.00 (9/89)
Page 3 of 3
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SystemPlan™
1.1
Volume Procurement Amendment for Machines and Programs (VPA)
You and IBM agree to the terms and conditions of this Amendment under which IBM will grant volume discounts
to you based on your volume commitments. This VPA amends 1) the Agreement for Purchase of IBM Machines
(PA), 2) the Agreement for IBM Licensed Programs (ALP), and 3) the IBM Program License Agreement - Extended
Provisions (EP/PLA). This VPA also applies to IBM-distributed programs which do not bear the IBM Trademark
and are not subject to the ALP or EP/PLA (Non-IBM programs).
1. ASSOCIATED CONTRACT DOCUMENTS
Contract documents ~ associated with this VPA
include Addenda and Exhibits and may include the
Agreement for Lease or Rental of IBM Machines
(LRA) or the Agreement for Rental of IBM Machines
(RA).
You and IBM will sign, from time to time, initial and
revised Addenda specifying 1) Contract Period Com-
mencement Dates and Durations, 2) applicable
Exhibits, 3) Committed Categories, and 4) Total Quan-
tity of Products by Category. This information for
each Committed Category represents a "Volume Com-
mitment." An Addendum may also contain additional
and/or revised terms and conditions. A revised
Addendum has the same Contract Period Commence-
ment Date as its initial Addendum.
IBM may issue, from time to time, revised Exhibits.
IBM may offer a revised Exhibit and any related terms
and conditions to you in place of the then effective
Exhibit for an existing Volume Commitment. The
revised Exhibit will become the then effective Exhibit
on its effective date unless it is or may be unfavor-
able to you. If so, the revised Exhibit will become
effective, on a date IBM specifies, only if you accept it
in writing. Only one Exhibit at a time can be in effect
for a Volume Commitment. These provisions will also
apply to any revised ALP Exhibit for variable charges
for ALP programs in a Volume Commitment.
After an Addendum is signed, individual products
under a Volume Commitment become subject to this
VPA when rBM accepts your order under the PA, ALP
or EP/PLA, as applicable. IBM will designate order
and acceptance procedures for Non-IBM programs.
2. DEFINITIONS
The term .machines. means on.order machines,
including features installed before shipment, and pur-
chase of installed machines.
The term "programs" means ALP programs, PLA
programs and Non-IBM programs. ALP and PLA pro-
grams include features shipped with a program, Addi-
tional License Copies, and Distributed Features. Such
programs are subject 10 the ALP or EP/PLA, as appli-
cable.
The term "products" me::tns machines and lor pro-
grams listed as Eligible Machines or Eligible Programs
in VPA Exhibits. If IBM lists an Eligible Machine only
by its machine type, only models of that machine type
available as of the applicable Receipt Date are Eli-
gible Machines, except for subsequently added
models as described in Section 9.
The term "Receipt Date" means the date IBM
receives the initial Addendum for a Volume Commit-
ment, signed by you, provided IBM accepts it.
The terms "single unit price or charge," .single unit
purchase price,. and "single unit one-time charge'"
mean IBM's generally available purchase price for a
machine or one-time charge for a program, as appli~
cable, prior to the application of any discounts.
The term "products acquired during a Contract
Period" and the term "products subject to this VPA.
mean:
Z125-3nRO-039/89
a) on-order machines which IBM ships before or
during the Contract Period. The Date of Installa-
tion and payment to IBM for these machines
must occur during or after the Contract Period;
b} purchase of installed machines with an Effective
Date of Purchase during the Contract Period;
and
c) programs which IBM ships or, for Additional
License Copies and Distributed Features, pro-
grams which you order before or during the
Contract Period. The one-time charge for these
programs must become due and payment to
IBM must occur during or after the Contract
Period.
You may acquire an individual product under only one
Volume Commitment.
3. CONTRACT PERIOD
You agree to acquire the Total Quantity of Products
by Category during the specified Contract Period for
each Volume Commitment. The Contract Period Com-
mencement Date must be within three months fol-
lowing the initial Addendum's Receipt Date. The
available Contract Period Durations are listed in the
Exhibit. If a Contract Period expires on other than a
Friday, IBM will extend it so that the last day will be
on the following Friday.
You may request an increased Contract Period
Duration, subject to IBM's approval. The increased
Contract Period Duration must be one of those listed
as available in the then current Exhibit. If approved
by IBM, you and IBM will sign a revised Addendum.
You must increase your Total Quantity of Products by
Category so that the applicable Discount Percent is at
least equal to the previously applicable Discount
Percent.
4. VOLUME DISCOUNTS
For each product acquired during a Contract
Period, you will pay the single unit price or charge
generally in effect on the Receipt Date (SUbject to
increase in accordance with the proviSions of Section
7) less the amount derived by multiplying such single
unit price or charge by the applicable Discount
Percent. The applicable Discount Percents in the
Exhibit will be determined by the Total Quantity of
Products by Category and the Contract Period Dura-
tion of the Volume Commitment. If IBM decreases the
single unit price or charge, IBM will determine the
product's price or charge as provided in Section 7.
For each purchase of installed machine acquired
during a Contract Period, however, you will pay the
net purchase option price, determined in accordance
with the PA and LRA or RA, less the amount derived
by multiplying such net purchase option price by the
applicable Discount Percent. However, this dis-
counted purchase price will not be less than 50% of
the purchase price used to determine such net pur-
chase option price.
Each "Dependent Category' lisled in an Exhibit will
have a designated "Controlling Category." The Dis-
count Percent and associated terms and conditions,
which apply to products in a Controlling Category
specified as a Committed Category, also apply to all
Page 1 of 3
products in its Dependent Categories, unless IBM
specifies otherwise in an Exhibit. However,
Dependent Category products are not added together
with Controlling Category products to determine the
applicable Discount Percent.
Discounts do not apply to accessories or to field
installed model conversions, machine features or
program features other than Distributed Features.
Upgrades of installed programs do not count
toward the Total Quantity of Products by Category.
Discounts do not apply to Upgrade Charges.
A product you acquire under any other volume pro-
curement amendment or other discount offering with
IBM will not count towards a Total Quantity of Pro-
ducts by Category under this Amendment. The dis-
count or allowance for a product under another
amendment or offering will not be added to the dis-
count under this Amendment.
5. ADDITIONAL QUANTITIES
During a Contract Period, you may acquire pro-
ducts within a Committed Category in addition to the
Total Quantity of Products for the Category specified
in the Addendum (Additional Quantities).
Additional Quantities, when added to the Total
Quantity of Products by Category, may qualify you for
a greater Discount Percent. To receive the greater
Discount Percent, you must sign a revised Addendum.
The greater Discount Percent will apply only to each
product acquired during a Contract Period, whose
Date of Installation, Effective Date of Purchase, or
date the one-time charge becomes due, as applicable,
is on or after the date IBM receives this revised
Addendum, provided IBM accepts it.
6. SHIPMENT SCHEDULE
You agree to order the Total Quantity of Products
by Category for a Volume Commitment in sufficient
time to acquire the products during the Contract
Period.
IBM may defer, as necessary, the estimated ship-
ment dates IBM assigns to any or all of the products.
If IBM defers such date for a product by more than
one month, you may cancel it upon written notice to
IBM. Such notice must be 1) within two months after
the date of IBM's written notice to you of the deferral
or 2) before the newly assigned estimated shipment
date, whichever is earlier.
If, because of IBM's deferment, IBM does not ship
products within the Contract Period, IBM will extend
the Contract Period only for these products. IBM will
extend the Contract Period until IBM ships these pro-
ducts or you cancel them as provided in this Section.
7. PRICE PROTECTION
Upper Limit
For each year of a Contract Period, there will be a
maximum single unit price or charge (Upper Limit) for
each product within the Committed Category and its
Dependent Categories. The first year begins on the
Contract Period Commencement Date. Subsequent
years begin on each anniversary of such Commence-
ment Date.
IBM will calculate the Upper Limit for each year by
increasing the single unit price or charge generally in
effect for a product on the Receipt Date by an amount
derived by multiplying such single unit price or
charge by the Upper Limit Percent specified for that
year in the Addendum. If a product was not included
in the Exhibit on the Receipt Date, the single unit
price or charge to be used for these calculations will
be the single unit price or charge generally in effect
on the date a revised Exhibit containing such product
becomes effective for a Volume Commitment.
Increase In Prices/Charges
Between the Receipt Date and the end or the Con-
tract Period, IBM may increase the generally avail-
Z125-3980-039/69
able single unit price or charge. In such case, the
price or charge, applicable to a machine or program
upon its date of shipment, or to a program on its
Effective Date, will be the lowest of 1} the single unit
price or charge then generally in effect, 2) the single
unit price or charge determined in accordance with
the provisions of the PA, ALP or EP/PLA, as appli-
cable, or 3) the Upper Umit in effect for the year of
the Contract Period in which its date of shipment or
Effective Date occurs.
For purchase of installed machines, the Section
entitled "Price Protection Period" in the PA and the
Section entitled "Purt:hase Option'" in the LRA or RA
will apply.
Decrease in Prices/Charges
Between the Receipt Date and the end of the Con-
tract Period, IBM may lower the generally available
single unit purchase price (lower price) for a machine
and/or the generally available single unit one-time
charge (lower charge) for a program. For any such
machine for which the Date of Installation is on or
after the effective date of such lower price, and for
any such program whose one-time charge becomes
due on or after the effective date of such lower
charge, you may elect the related Discount Percent, if
any, then generally in effect. However, you must
agree, in writing, to accept any additional or revised
terms and conditions associated with such Discount
Percent. Such Discount Percent will then be applied
against the lower price or charge. In any event, you
may elect to receive the lesser of 1) the lower price
or charge without any discount or 2) the discounted
price or charge available under the Volume Commit-
ment immediately before the price or charge
decrease.
8. END USER CERTIFICATION
Unless IBM specifies otherwise in the Exhibit, you
represent that you are acquiring the products for use
within your own business enterprise, within the United
States and Puerto Rico, and not for remarketing. You
understand that IBM is providing the volume dis-
counts under this Amendment in reliance on your rep-
resentation,
9. PRODUCT INCLUSION
IBM will notify you by issuing a revised Exhibit, or
by other written notification, if IBM adds machine
types, machine models or programs to those included
in the Exhibit for the Committed Category of a Volume
Commitment or its Dependent Categories. IBM will
fulfill orders for such newly announced products
SUbject to availability.
IBM will notify you in writing if IBM withdraws from
marketing machine types, machine models or pro-
grams included in the Exhibit for the Committed Cate-
gory of a Volume Commitment or its Dependent
Categories. Orders for such types, models or pro-
grams which you placed and IBM accepted before the
date of notice of withdrawal will be unaffected by such
notice. During the remainder of the Contract Period,
IBM's acceptance of orders for the withdrawn types,
models or programs will be subject to availability and
under the conditions described in the notice.
10. ADJUSTMENT CHARGES
If, at the end of the Contract Period, you have
failed to acquire the Minimum Ouantity in the Com-
mitted Category in the then effective Addendum and
Exhibit, you agree to pay applicable Adjustment
Charges. Adjustment charges will be calculated for
products acquired during a Contract Period from IBM
in the Commilled Category and its Dependent Catego-
ries. The Minimum Quantity of Eligible Machines or
Eligible Programs for the applicable Contract Period
Duration is listed in the Exhibit. This Minimum Quan.
tity corresponds to the Discount Percent(s) in effect
Page 2 of 3
for a Committed Category. IBM will calculate Adjust-
ment Charges as described in ~he rollowing sub-
sections, as applicable.
You may cancel products which IBM defers by
more than one month under the provisions of Section
6. In such event, the number of such cancelled pro-
ducts in the Committed Category of a Volume Com-
mitment will be added to the number of products
acquired in that Category to determine if Adjustment
Charges are applicable.
IBM will invoice Adjustment Charges at the end of
the Contract Period. They will be due and payable as
IBM speci fies in the invoice.
Calculations Not Using Adjustment Charge Factors
The following steps for calculating Adjustment
Charges apply to products for which an Adjustment
Charge Factor is not specified in the Exhibit. These
steps also apply to all purchase of installed machines.
If the number of products acquired in the Com-
mitted Category is less than the Minimum Quantity
but is sufficient to qualify for a lesser Discount
Percent, the Adjustment Charge for each product
acquired from IBM will be the difference between the
discounted price or charge IBM invoiced you and the
discounted price or charge you earned. IBM will
determine the discounted price or charge you earned
by applying such lesser Discount Percent to the single
unit price or charge or net purchase option price, as
applicable, used to derive such original discounted
price or charge. For purchase of installed machines,
this calculation is subject to the limitations described
in Section 4.
If the number of products acquired in the Com-
mitted Category is insufficient to qualify for any dis-
count, the Adjustment Charge for each product
acquired from IBM will be the difference between 1)
the discounted price or charge IBM invoiced you and
2) the single unit price or charge that would have
been due under the PA, ALP or EP/PLA, as applicable.
For purchase of installed machines, the difference will
be derived by using the net purchase option price
determined in accordance with the PA and LRA or RA.
For Non-IBM programs, the difference will be derive:d
by using the single unit one-time charge generally In
effect when such Non-IBM program was shipped.
Calculations Using Adjustment Charge Factors
The following steps for calculating Adjustment
Charges apply to products for which an Adjustment
Charge Factor is specified in the Exhibit.
If the number of products acquired in the Com-
mitted Category is less than the Minimum Quantity
but is sufficient to qualify for a lesser Discount
Percent, the Adjustment Charge for each product
acquired from IBM will be derived by 1) subtracting
the Discount Percent you earned from the Discount
Percent you received and 2) multiplying the difference
so derived, converted to its whole number (e.g. 2%
becomes 2), by the applicable Adjustment Charge
Factor.
If the number of products acquired in the Com-
mitted Category is insufficient 10 qualify for any dis-
count, the Adjustment Charge (or each product
acquired (rom IBM will be derived by multiplying the
Discount Percent you received (or such product, con.
verted to its whole number (e.g. 6% becomes 6), by
the applicable Adjustment Charge Factor.
11. CUSTOMER FULFILLMENT OPTION
IBM will count toward the Total Quantity of Pro-
ducts by Category certain products, designated in an
Exhibit, which you obtain within the Contract Period
from selected IBM Authorized Dealers or IBM Author.
ized Distributors for such products. Adjustment
Charges do not apply to such products. Sales by such
Dealer or Dislributor to you will be under the Dealer's
or Distributor's terms and conditions. Products you
obtain (rom the Dealer or Distributor but return will
2125-3960-039/69
not be subject to this Section. Each machine subject
to this Section must be newly manufactured by or for
IBM and must not have been previously placed in
service. The End User Certification in Section 8
applies.
For each product subject to this Section, you will
complete and return to IBM an IBM-supplied Certir-
ication within the time limits specified in the Certif.
icate.
12. NON.IBM PROGRAMS
For each Non-IBM program that IBM distributes,
the terms and conditions of the program supplier or
publisher are passed to you through IBM. Such terms
and conditions will be shipped with such program. A
program supplier or publisher is a non-IBM supplier
or publisher who has authorized IBM to remarket its
programs.
IBM PROVIDES NON-IBM PROGRAMS "AS IS."
Non-IBM suppliers or publishers, however, may
provide warranties for their programs.
13. GENERAL
You may not assign this Amendment without IBM's
prior written consent. Any attempt to assign any of its
rights, duties or obligations without IBM's consent is
void.
If this Amendment is modified by an International
Volume Procurement Agreement (IVPA) and its IVPA
Addendum, you agree that the IVPA Addendum,
signed by you, the Enterprise Coordinator and IBM,
will be deemed an Addendum to this VPA. In addi-
tion, you represent that you understand that the
Enterprise Coordinator may elect to exempt you (rom
your obligation to sign the associated IVPA
Addendum. In such case, you agree that such
Addendum, signed by the Enterprise Coordinator and
IBM, will be deemed an Addendum to this VPA.
IBM may modify the terms and conditions of this
Amendment by giving you written notice. Any such
modification will apply on the effective date specified
in the notice 1) to all Volume Commitments for which
the Addendum's Receipt Date is on or after the date
of notice and 2) to all existing Volume Commitments
unless the modification is or may be unfavorable to
you. If so, you must accept the modification in writing
for it to affect an existing Volume Commitment. Oth-
erwise, this Amendment may be modified only by a
written agreement signed by you and IBM. Any terms
and conditions varying from this Amendment in any
order or written notification from you are void.
Section 1 describes modifications to Addenda and
Exhibits.
Either party may terminate this Amendment by
written notice to the other party to be erfective upon
completion of all existing Volume Commitments.
If there is a conflict between terms and conditions,
those of this VPA and its Addenda and Exhibits prevail
over those of the applicable Agreement(s). The terms
and conditions of the Addenda and Exhibits prevail
over those of this VPA. The terms and conditions of
Exhibit(s) prevail over those of the Addendum. Except
as modified by this VPA and its associated contract
documents, the terms and conditions of the PA, ALP,
EP/PLA, LRA and RA, as applicable, remain in full
force and effect.
You and IBM agree that the complete and exclu-
sive statement of the agreement between the parties
relating to this SUbject shall consist of the IBM
SystemPlan selection page and 1) this VPA and 2) any
applicable IBM Agreements and their Supplements,
Amendments, Addenda, Exhibits and Certifications,
including those effective In the future. This statement
of the agreement supersedes all proposals or other
prior agreements, oral or written, and all other com-
munications between the parties relating to this
subject.
Page 3 of 3
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:: - -~g SystemPlan™
Agreement for Rental of IBM Machines (RA)
~
1. ASSOCIATED CONTRACT DOCUMENTS
You and IBM agree that the following terms and conditions apply to Machines you rent under this Agreement.
Contract documents associated with this RA
include Supplements and may include the Agreement
for lease or Rental of IBM Machines (lRA).
An individual Machine becomes subject to this
Agreement when IBM accepts your written order for
rental or your order for rental under another
IBM-designated procedure. IBM will accept your
order for the rental of a Machine by issuing a Supple-
ment or other documentation designated by IBM (Sup-
plement). Such Supplement contains specific terms
applicable to the Machine. Installation of an on-order
Machine or payment of the first invoice for Monthly
Rental Charges for an on-order or installed Machine,
whichever occurs first after your receipt of a Supple-
ment, will constitute your acceptance of that Supple~
ment.
2. DEFINITIONS
The term "'Machines'" means ISM machines andlor
their features, model conversions and machine ele-
ments.
The term "'programming'" means certain machine-
readable materials and other related materials which
IBM may make generally available without separate
charge under this Agreement. Programming includes
system control programming, maintenance aids and
other instructions or statements, but does not include
Licensed Internal Code described in Section 15.
The term "'programming service'" means service
which IBM may make generally available, without
separate charge, for programming_
The term "'alteration'" means any change made to
an IBM Machine which deviates from IBM's physical,
mechanical, electrical or electronic design whether or
not additional devices or parts are used.
The term "'attachment'" means any non-IBM pro-
ducts or devices, not under an IBM maintenance
agreement. interconnected to an IBM Machine.
3. SHIPMENT
IBM will confirm the Estimated Shipment Date of
each Machine and may amend it as necessary. IBM
will make reasonable accomodation if you request a
delay in shipment.
4. INSTAllATION
Each Machine will be inslalled by IBM or set up by
you. You will set up a Machine which IBM specifies in
a Supplement as 'Customer Set-Up- (CSU) by fol-
lowing instructions furnished by IBM.
You will provide a suitable environment for each
Machine as specified by IBM. You also will furnish all
labor required for unpacking and placing each
Machine in the desired location, except as otherwise
specified by IBM.
Date of Installation
The Date of Installation for a Machine IBM installs
is the day following the day IBM installs it.
The Date of Installation for a CSU Machine is the
day following the last day of its CSU allowance period
specified in a Supplement. Such period commence.s
on the day following the day you receive the CSU
machine at your location. Such period does not
include Salurdays or Sundays. However, when IBM
delivers a CSU machine with and for attachment to a
non-CSU machine, the Date of Installation of the CSU
2125-6301-009/69
machine will be the later of 1) the last day of the CSU
allowance period or 2) the date such non-CSU
machine is installed.
IBM will consider a CSU feature or model conver-
sion installed one month following the later of its Esti-
maled Shipment Date or actual date of shipment from
IBM.
Whenever the Date of Installation would occur on a
Saturday or Sunday, IBM will postpone such Date to
the following Monday.
5. CHARGES
You agree to pay charges for each Machine con-
sisting of 1) a Monthly Rental Charge and 2) a
Monthly Use Charge for a Usage Plan Machine. For
these charges, you are entitled to 1) use of the
Machines and 2) availability of maintenance service
for the Machines.
IBM determines the Monthly Use Charge by multi-
plying the amount of processing by a Usage Plan
Machine by the applicabie Monthly Use Charge
Rate(s). Such processing is measured by an IBM
meter. You agree to promptly submit to IBM the
meter reading for each Usage Plan Machine. Such
reading will be as of the close of the last workday of
the invoice period to which the Monthly Use Charge
applies or upon withdrawal of a Machine from this
Agreement.
Monthly charges begin on the Commencement
Date. The Commencement Date for an on-order
Machine is its Date of Installation. The Commence-
ment Date for an installed Machine being converted
to rental under this Agreement is the day following its
Expiration Date under LRA.
Increases in Monthly Charges
IBM may increase the Monthly Rental Charge or
Monlhly Use Charge Rate(s) by giving you three
months' written notice. You may, upon one month's
written notice, discontinue any Machine included in
IBM's notice on the effective date of the increase.
Otherwise, the new Charge and Rate(s) will become
effective on the date specified.
Destination Charges
IBM will pay destination charges for each Machine,
both from and to IBM-designated locations. These
charges are in accordance with IBM's then current
shipping practices. You will pay any rigging charges.
You will furnish all labor for unpacking and packing
except as IBM otherwise specifies or when performed
at an IBM-designated location.
Taxes
You will pay amounts equal to any taxes resulting
from this Agreement or any activities under this
Agreement, exclusive of property taxes and taxes
based on IBM's net income.
6. INVOICING AND PAYMENT
IBM will invoice you Monthly Rental Charges in
advance as of the first of each month. IBM will
invoice you Monthly Use Charges in the month fol-
lowing the monlh to which they apply. IBM will
invoice you all other charges when or after they are
incurred. IBM will prorate monthly charges, when
applicable, based on a 30-day month.
Payment of monthly charges will be made within 30
days after the date of an invoice. Payment of all
other charges will be as IBM specifies in an invoice.
Page 1 of 3
7. RISK OF LOSS OR DAMAGE
During the period a Machine is in transit or in your
possession, IBM relieves you of responsibility for risk
of loss of, or damage to, that Machine. Such relief
does not include loss or damage 1) caused by nuclear
reaction. nuclear radiation or radioactive contam-
ination for which you are legally liable while a
Machine is at your location or 2) as described in
Section 9.
8. MAINTENANCE SERVICE
IBM will provide maintenance service, as required,
by repairing or exchanging a Machine under the
Types of Service specified in a Supplement.
IBM will have full, free and safe access to
Machines to provide IBM On-Site Types of Services.
You will determine when a Machine requires main-
tenance service following procedures provided by
IBM. IBM reserves the right to verify that a Machine
is failing before providing maintenance service and, if
applicable, is acceptable for exchange. You will
remove or protect all programming, programs, data
and removable storage media contained in failing
Machines presented for service.
You agree to remove and control funds from a
Machine before IBM begins service, and to replace, or
reload, funds in a Machine following service.
You agree to remove all non-IBM parts, options,
alterations and attachments before presenting a
failing Machine for exchange. You give up all rights
to any such items not removed.
Hours of Maintenance Service
The Hours of Maintenance Service for IBM On-Site
Types of Service are 24 hours a day, seven days a
week, unless IBM specifies otherwise in a Supple-
ment. The Hours of Maintenance Service for Cus.
tamer On-Site Exchange and Customer Carry-In
Repair Types of Service are the normal business
hours of the 18M-designated location.
Additional Charges
IBM will invoice you for travel expense associated
with maintenance service only when the Machine's
location is inaccessible to the IBM service represen-
tative by both private automobile and scheduled
public transportation.
IBM will invoice you for travel time and waiting
time for maintenance service provided outside the
Hours of Maintenance Service.
If you and IBM agree, IBM will provide On-Site
service for selected Machines, in place of the Type of
Service then in effect, for a per incident charge.
9. SERVICES FOR ADDITIONAL CHARGE
The services for additional charge described in this
Section are not maintenance services. If any of the
following services are available and IBM provides
them under this Agreement, there will be additional
charges. IBM will invoice you, as applicable, IBM's
Ihen generally available 1) hourly service rates and
minimum charges for service time, travel time and
waiting time, 2) parts and material prices, and 3)
charges for travel and shipping expense.
Services for additional charge include:
a) repair of Machine damage caused by alterations
and attachments, misuse or vandalism'
b) repair of Machine damage, replac~ment of
maintenance parts (due to other than normal
wear), or repetitive service calls caused by the
use of, inadequate use of, or failure to use sup-
~- .
c) service for accessories;
d) inspection of Machines, including inspection of
an altered Machine; and
e) rearrangement or relocation of machines and
provision of necessary materials.
Z125-8301-00 9/89
If a Machine is damaged beyond repair as a result of
causes described in this paragraph, you will pay for
the loss resulting from such damage.
10. MACHINE MODIFICATIONS
Upon your request, IBM will make field-install able
feature changes or model conversions to a machine
installed under this Agreement. IBM will specify the
affected machine and applicable Charges and Rates
in a Supplement.
11. ALTERATIONS AND ATTACHMENTS
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.
You will remove any alteration or attachment and
restore the Machine to its unaltered condition before
its return to IBM or upon IBM's notice to you that the
alteration or attachment creates a safety hazard or
renders maintenance of the Machine impractical.
12. PURCHASE OPTION
You may purchase a Machine, installed under this
Agreement, under the Agreement for Purchase of IBM
Machines. Upon your request, IBM will quote the
then applicable purchase price for the machine,
including its model upgrades and features. Such
quote may be for the then current calendar month or
for either of the two following calendar months.
13. DISCONTINUANCE NOTICE
Subject to the subsection entitled '"Increases in
Monthly Charges'" of Section 5 and Section 17, you
may discontinue an installed processor complex unit
upon three months' written notice. You may discon-
tinue any other installed machine or field.removable
feature or have IBM effect a field-removable model
downgrade upon one month's written notice.
14. WARRANTIES
IBM warrants that each Machine, on its Date of
Installation, will be in good working order and will
conform to IBM's official published specifications.
Thereafter, IBM will provide maintenance service for
the Machine. IBM will furnish the specifications upon
request.
IBM does not warrant uninterrupted or error-free
operation of the Machines or programming or that
IBM will correct all programming errors.
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.
15. LICENSED INTERNAL CODE
IBM owns copyrights in Licensed Internal Code
(Code). IBM owns all copies of Code, including all
copies made from them. Code is an integral part of,
and !s required by, specified Machines (Specific
Machines) and executes below the external user inter-
face. IBM will identify each Specific Machine in a
Supplement. While you are the rightful possessor of a
Specific Machine, IBM grants you a license to use the
Code provided as part of, or in conjunction with, that
Specific Machine.
Each license authorizes you:
a) to execute the Code to enable the Specific
Machine to perform in accordance with IBM's
official published specifications (specifications);
b) to make a backup or archival copy of the Code
unless one is provided by IBM. You may use
this copy only to replace the original on the
Specific Machine; and
c) to execute and display the Code as necessary to
maintain the Specific Machine.
Page 2 of 3
You may not:
a) otherwise copy, display, adapt, modify or elec-
tronically distribute the Code except as may be
authorized in the specifications:
b) reverse assemble, reverse compile, decode or
translate the Code; or
c) sublicense, assign or lease the Code.
You will include the copyright notice(s) and any
legend(s) on each authorized copy.
Your license is discontinued when you are no
longer the rightful possessor of the Specific Machine.
16. PATENTS AND COPYRIGHTS
IBM will, at its expense, defend you against any
claim that any Machine or programming furnished
under this Agreement infringes a patent or copyright
in the United States or Puerto Rico. IBM will pay all
costs, damages and attor-nay's fees that a court finally
awards as a result of such claim. To qualify for such
defense and payment, you 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.
You agree that if the operation of Machines or pro-
gramming becomes, or IBM believes is likely to
become, the subject of such a claim, you will permit
IBM, at its option and expense, either to secure the
right for you to continue using the Machines or pro-
gramming or to replace or modify them so that they
become noninfringing. However, if neither of the fore-
going alternatives is available on terms which are
reasonable in IBM's judgment, you will return the
Machines or programming upon IBM's written
request. You will pay only those charges which were
payable prior to the date of such return.
IBM shall have no obligation with respect to any
such claim based upon your modification of Machines
or programming or their combination, operation or
use with apparatus, data or programs not furnished
by IBM.
This Section states IBM's entire obligation to you
regarding infringement or the like.
17. LIMITATION OF REMEDIES
IBM's entire liability and your exclusive remedy
are set forth in thi s Section.
In all situations involving performance or nonper-
formance of Machines or programming furnished
under this Agreement, your remedy is IBM's adjust-
ment or repair of the Machine or replacement of its
parts or correction of programming errors. IBM may,
as an alternative, replace the Machine. If, after
repeated eHorts, IBM is unable to install the Machine,
or a replacement Machine, in good working order, or
to restore it to good working order, or correct pro-
gramming errors, all as warranted, you are entitled to
recover actual damages to the limits set forth in this
Section. For any other claim concerning IBM's per-
formance or nonperformance under, or related in any
other way 10, this Agreement or any order under it,
you are entitled to recover actual damages to the
limits set forth in this Section.
18M's liability for actual damages from any cause
whatsoever will be limited to the greater of 1)
$100,000 or 2) an amount equal to 12 months' rental
charges for the individual Machines 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 such Machines when the
cause of action arose. This limitation will apply,
except as otherwise stated in this Section, regardless
of the form of action, whether in contract or in tort,
including negligence. This limitation will not apply to
the payment of costs, damages and attorney's fees
referred to in Section 16. This limitation will not apply
to claims by you for bodily injury or damage to real or
Z125-8301-00 9/89
tangible personal property for which IBM is legally
liable.
In no event will IBM be liable for any lost profits,
lost savings, incidental damages, or other economic
consequential damages, even if IBM has been
advised of the possibility of such damages. In addi-
tion, IBM will not be liable for any damages claimed
by you based on any third party claim. However, the
exclusions described in this paragraph will not apply
to the payment of costs, damages and attorney's fees
referred to in Section 16.
In no event will IBM be liable for any damages
caused by your failure to perform your responsibil-
ities. IBM is not liable for loss of funds contained in,
dispensed by, or associated with, any Machine.
18. GENERAL
You may not assign this Agreement without the
prior written consent of IBM. You may not sublet.
assign or transfer any of the Machines or assign or
transfer any of your rights, duties or obligations
without the prior written consent of 18M. Any attempt
to sublet, assign or transfer any of the Machines or
your 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 or Puerto Rico. You agree
to keep IBM informed of each Machine's location.
Each Machine is IBM's property and IBM may remove
it at any time after the Machine's discontinuance.
You are responsible for selecting Machines and
programming, using them, and obtaining results from
them. Such programming must be properly used on
an IBM machine of a type IBM designates.
IBM may provide services described in this Agree-
ment by using 18M-selected independent contractors.
You may discontinue a Machine at any time for
IBM's failure to comply with any of the terms and con-
ditions of this Agreement applicable to such Machine.
IBM may, by giving you three months' written
notice, discontinue a Machine. IBM may discontinue
a Machine at any time, by giving you written notice,
for your failure to comply with the terms and condi-
tions of this Agreement applicable to such Machine.
Either party may terminate this Agreement upon
one month's written notice following the discontin-
uance of all Machines and fulfillment of all obligations
under this Agreement.
IBM may, by giving you three months' written
notice, modify the terms and conditions of this Agree-
ment. Any such modification will apply as of the
effective date specified in the notice. Otherwise, this
Agreement may be modified only by a written agree-
ment signed by you and IBM. Any terms and condi-
tions varying from this Agreement in any order or
written notification from you are void.
IBM is not responsible for failure to fulfill its obli-
gations under this Agreement due to causes beyond
its control.
Neither party may bring an action, regardless of
form, arising out of this Agreement more than two
years after the cause of action arose. IBM may not
bring an action for nonpayment more than two years
after the date the last payment was due.
The laws of the State of New York govern this
Agreement.
You and IBM agree that the complete and exclu-
sive statement of the agreement between the parties
relating to this subject shall consist of the IBM
SystemPlan selection page and 1) this Agreement and
its Supplements and 2) any other applicable IBM
Agreements, Amendments and Supplements,
including those effective In the future. This statement
of the agreement supersedes all proposals or other
prior agreements, oral or written, and all other com-
munications between the parties relating to this
subject.
PAge 3 of 3
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;; - -,g~;. ServicePlansM
Maintenance Services
[j]
IBM Maintenance Agreement (MA)
You and IBM agree that the following terms and conditions will apply to maintenance service provided by IBM
for Machines under this Agreement. The term -Machines' means IBM machines andlor their fealures, model
conversions and machine elements. The term "'Machines'" also means selected non-IBM equipment, including
non-IBM machines or features.
Table of Contents
Section
1
2
3
4
5
6
Tille
Associated Contract Documents
Coverage
Maintenance Service
Charges
Invoicing and Payment
Services for Additional Charge and
Exclusions
Term and Withdrawal
7
General Terms and Conditions
8
9
10
11
12
Taxes
Risk of Loss
Limitation of Remedies
Disclaimer of Warranties
General
1. Associated Contract Documents
IBM will issue Supplements to this Agreement
(Supplement).
IBM will specify in the Supplement the Machines
covered, the applicable charges and rates, the
Effective Dates, and Types of Service.
2. Coverage
An individual Machine becomes subject to this
Agreement on the date you request. subject to 18M's
acceptance of your request. With respect to
Machines designated by IBM as "Customer Set-Up"
(CSU), you certify that as of Ihe requested date for
maintenance coverage under this Agreement such
Machines arc in good working order. With respect to
non.CSU Machines. IBM reserves the right to inspect
such Machines for Maintenance Agreement
acceptability within one month following your
requested date of coverage. CSU machines which
are not in good working order at the time coverage
commences, and non-CSU machines which are
deemed not acceptable for Maintenance Agreement
coverage as a result of inspection, are subject to
disqualification by IBM.
Upon disqualification of a Machine from coverage,
you may elect to have IBM bring the Machine to
Maintenance Agreement acceptable condition at
IBM's then applicable rates and terms. Alternatively,
you may elect to revoke your request for coverag"e
and IBM will refund any monies paid by you under
this Agreement for such Machine.
Coverage under this Agreement is for Machines
located within the United Stales or Puerto Rico.
MA Z125-3275-02 1/89
Periods of Maintenance Service
The period of maintenance service for IBM
On-Site Repair and IBM On-Site Exchange Types of
Service is 24 hours a day, seven days a week, unless
IBM specifies otherwise in the applicable Supplement.
The Period of Maintenance Service for Customer
On-Site Exchange and Customer Carry-In Repair
Types of Service is the normal business hours of the
IBM-designated location.
Warranty Option
For certain Machines, you may select a Warranty
Option which will provide an enhanced Type of
Service in place of that Type specified by IBM for
your Machine. You may select an available Warranty
Option at any time before a Machine's Warranty
Period expires. Warranty Option service will be
provided under the terms and conditions of this
Agreement.
After a Machine's Warranty Option expires, IBM
will provide maintenance service under the same
Type of Service you selected for such Option. IBM's
then current maintenance charges will apply for such
service.
For an IBM Machine with a Warranty Period of
one year or less, a selected Warranty Option expires
one year from the date such Period began. For an
IBM Machine with a Warranty Period greater than one
year, a selected Warranty Option expires at the end of
such Period.
3. Maintenance Service
IBM Responsibilities
IBM will provide maintenance service for a
Machine under one of the Types of Service described
in the subsection entitled lypes of Service.... IBM will
provide maintenance service for failing Machines, as
required, by repairing or exchanging such Machine
under the Type of Service you select from those
available for a Machine. You may subsequently
select another available Type of Service to be
effective upon 15 days' notice to IBM.
IBM will control and install engineering changes
IBM determines to be applicable to Machines at times
mutually agreed 10 by you and IBM.
Repair
Under a repair Type of Service, IBM will provide
remedial maintenance to keep Machines in, or restore
them 10, good working order. Such service may
include preventive maintenance as IBM determines
necessary. Repair Types of Service may include
lubrication, adjustment and replacement of
Page 1 of 4
maintenance parts as IBM determines necessary.
IBM will install maintenance parts on an exchange
basis. Such parts may be new or used parts.
Replaced parts become IBM's property.
Exchange
Under an exchange Type of Service, IBM will
provide an exchange machine. Exchange Types of
Service are available only for your entire IBM
machine. machine element. or non-IBM machine. An
exchange machine may not be new but will be in good
working order. You will acquire title to it at the time
of exchange. IBM will acquire title to the failing
Machine at the time of exchange. You agree to
ensure that a failing Machine is free of any
encumbrances at the time you present it to IBM.
IBM reserves the right to verify that a Machine is
acceptable for exchange. Machines which are
defaced. altered or damaged beyond repair are not
acceptable for exchange.
Your Responsibilities
You agree to provide a suitable environment for
Machines as specified by IBM. You will provide IBM
full, free and safe access to Machines so that IBM
may provide On-Site services. You agree to inform
IBM of changes in a Machine's location. You agree to
determine that a Machine requires maintenance
service before requesting such service.
You agree to backup, remove. protect. and
restore. as applicable, programs, data and removable
storage media contained in failing Machines
presented for service.
You agree to remove all features. parts, options,
alterations and attachments which are not subject to
this Agreement before presenting a failing Machine
for exchange.
You agree to remove and control any funds from
a Machine before IBM begins service, and to replace.
or reload, funds in a Machine following service.
Types 01 Service
IBM On-Site Repair (lOR)
IBM will provide mainten<lnce service for the
failing Machine at your location.
IBM On-Site Exchange (IDE)
IBM will deliver the exchange Machine to your
location, connect it and verify ils operation. IBM will
remove the failing Machine from yotlr location.
Customer On-Site Exchange (COE)
IBM will have an exchange Machine delivered to
your location. You will connect the exchange Machine
and verify its operation. You agree to follow IBM's
inslructions for shipping the failing Machine to IBM.
Such shipment will be at IBM's expense.
MA Z125-3275-02 1/89
Customer Carry-In Repair (CCR)
You will deliver the entire IBM machine, machine
element, or entire non-IBM machine 10 an
IBM-designated location. Following any necessary
repairs or exchange, you will pick up the Machine or
machine element, connect it and verify its operation.
In place of such delivery and pickup, you may
ship the entire IBM Machine or machine element.
prepaid, to an IBM location designated to receive
such shipment Such shipment will be in the original
shipping container or equivalent. IBM's shipment to
you. within the United States or Puerto Rico. will be at
no charge.
A machine and its features must be under the
same Type of Service.
4. Charges
You agree to pay maintenance charges for each
Machine consisting of 1) a Minimum Maintenance
Charge or Warranty Oplion Charge and 2) an
Additional Maintenance Charge for a Usage Plan
Machine. IBM will specify, the applicable charges and
additional charge rates in the Supplement.
You agree to promptly submit to IBM the meter
reading for each Usage Plan Machine. Such reading
will be as of the close of the last workday of the
invoice period to which the Minimum Maintenance
Charge applies or upon machine withdrawal.
IBM will invoice you for travel expense associated
with maintenance service only when the Machine's
location is inaccessible to the IBM service
representative by both private automobile and
scheduled public transportation.
IBM will invoice you for service time, including
travel time and waiting time, for maintenance service
provided outside the Period of Maintenance Service.
A change in a Machine's Type of Service will
result in an adjustment to maintenance charges. IBM
will provide an upgrade to an On.Site Type of Service
on a per incident basis for selected Machines. A
change in a Machine's specifications may result in an
adjustment to maintenance charges.
IBM may increase maintenance charges by
providing you three months' written notice. The
increased charges will become effective on the first
day of the first invoice period which begins on or after
the effective date specified in the notice. In the event
of such increase. you may withdraw an affected
Machine from coverage as provided in Section 7.
IBM may change Hourly Service rates and
minimum charges without notice.
Page ~ of 4
5. Invoicing and Payment
IBM will invoice you a Minimum Maintenance
Charge in advance for each Machine for the
applicable invoice period. IBM will invoice you an
Additional Maintenance Charge following the period to
which it applies. IBM will invoice you all other
charges or credits when or after they are incurred or
earned.
IBM will prorate monthly charges, when
applicable, based on a thirty-day month.
You agree to pay maintenance charges within
thirty days after the date of an invoice. You are
entitled to a partial credit for paid charges upon
withdrawal of a Machine or termination of this
Agreement as described in Section 7. Payment of all
other charges will be as IBM specifies in an invoice.
6. Services for Additional Charge and
Exclusions
The services for additional charge described in
this Section are not maintenance services as
described in Section 3. Subject to availability of
resources, IBM provides services for additional
charge at your request. If you so request, IBM will
invoice you, as applicable, 18f.1's then generally
available 1) Hourly Service rates and minimum
charges for service time, travel time and waiting time,
2) parts and material prices, and 3) charges for travel
and shipping expense.
Services for additional charge include, but are not
limited to:
1. Repair of Machine damage, replacement of parts
or increase in service time caused by -
a. failure to continually maintain a suitable
environment as prescribed by IBM;
b. accident, disaster, transportation, vandalism,
misuse ar abuse;
c. anather product or device not under IBM
warranty ar an IBM agreement which includes
maintenance service;
d. service of the Machine by other than IBM; ar
e. a non-18M modification, when repairs are
made within the first three-month period
following such madification to a Machine
under maintenance coverage;
MA Z125-3275-02 1/89
2. Repair of Machine damage, replacement of
maintenance parts (due to ather than normal
wear) or repetitive service calls caused by the
use of, inadequate use of, or failure to use,
supplies;
3. Service for accessories;
4. Inspection of a Machine, including inspection of
an altered Machine;
5. Changes and repairs necessary to bring a
Machine to Maintenance Agreement acceptable
condition;
6. Rearrangement or relocation of Machines and
provision of necessary materials; and
7. Replacement of a part not provided by IBM for a
Machine. IBM will only replace such part with a
directly interchangeable IBM maintenance part.
The services provided under this Agreement do
not include:
1. furnishing supplies;
2. painting or refinishing Machines or furnishing
material therefor;
3. electrical work external to Machines;
4. replacement of parts which are not maintenance
parts; or
5. installation, maintenance, or removal of
alterations or attachments to Machines or any
service which is impractical for IBM to render
because of such alterations or attachments.
7. Term and Withdrawal
When this Agreement is signed by you and IBM, it
will continue indefinitely.
You may withdraw a Machine from this
Agreement upon one month's written notice to IBM.
Such withdrawal may be made after the Machine has
been under this Agreement a) six months or b) one
month provided it has been removed from your
location. In addition, you may withdraw a Machine,
following one month's written notice, on the effective
date of an increase in maintenance charges for the
Machine.
IBM may withdraw a Machine from this
Agreement. upon three months' written notice to you,
one year or more after maintenance service for such
Machine has commenced.
Either party may terminate this Agreement upon
one month's written notice following withdrawal of all
Machines and fulfillment of all obligations hereunder.
Page 3 of 4
General Terms and Conditions
8. Taxes
You agree to pay amounts equal to any taxes
resulting from this Agreement, or any activities
hereunder, e,:<clusive of taxes based upon IBM's net
income.
9. Risk of Loss
You are responsible for" risk of loss of, or damage
to, Machines during the period such Machines are in
transit to and (rom IBM. However, IBM is responsible
for risk of loss of, or damage to, 1) IBM-owned
Machines and 2) Machines not owned by IBM while in
IBM's possession or during shipment from IBM to you.
Such shipment will be by an IBM-selected carrier
whose charges IBM prepays. In addition, IBM will be
responsible for any loss or damage caused by IBM's
negligerlce.
10. Limitation of Remedies
IBM's entire liability and your exclusive remedy
are set forth in this Section.
IBM's liability for actual damages from any cause
whatsoever will be limited to the greater of
1) $100,000 or 2) an amount equal to 12 months'
maintenance 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
maintenance charges will be those in eUect for such
Machines when the cause of action arose. This
limitation will apply, except as otherwise stated in this
Section, regardless of the form of action, whether in
contract or in tort including negligence. This
limitation will not apply to claims by you for bodily
injury or damage to real property or tangible personal
property for which IBM is legally liable.
In no event will IBM be liable for any lost profits,
losl savings. incidental damages. or other economic
consequential damages, even jf IBM has been
advised of the possibility of such damages. In
addition. IBM will not be liable for any damages
claimed by you based on any third party claim.
In no e>vent will IBM be liable for any damages
caused by your failure to perform your
responsibilities. IBM is not liable for loss of funds
contained in, dispensed by, or associated with, any
Machine.
MA Z125-3275-02 1/89
11. Disclaimer of Warranties
THIS IS A SERVICE AGREEMENT, THERE ARE NO
IBM WARRANTIES, EXPRESS OR IMPLIED,
INCLUDING, BUT NOT LIMITED TO, THE IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS
FOR A PARTICULAR PURPOSE,
12. General
You may not assign this Agreement or remarket
service provided by IBM under this Agreement
without the specific written permission of IBM. Any
attempt to assign any of the rights, duties or
obligations of this Agreement without such consent is
void. IBM services may be provided by the use of
IBM.selected independent contractors. You represent
that you are either the owner of each Machine under
this Agreement or authorized by its owner to include
it under this Agreement.
IBM may modify the terms and conditions of this
Agreement on three months' written notice.
However, if such modification is unfavorable to you,
upon your written request IBM will delay the
modification for a Machine until after the initial six
months such Machine has been under this
Agreement. Otherwise, this Agreement may be
modified only by a written agreement signed by you
and IBM.
Any terms and conditions varying from this
Agreement in any order or written notification from
you are void.
IBM does not assure uninterrupted or error-free
operation of Machines. IBM is not responsible for
failure to fulfill its obligations under this Agreement
due to causes beyond its control.
Neither party may bring an action, regardless of
form, arising out of this Agreement more than two
years after the cause of action has arisen. IBM may
not bring an action for nonpayment more than two
years after the date the last payment was due.
The laws of the State of New York govern this
Agreement.
You and IBM agree that the complete and
exclusive statement of the agreement relating to this
subject shall consist of this Agreement and Its
applicable Amendments and Supplements, Including
those effective In the future. This statement of the
agreement supersedes all proposals or other
agreements, oral or written, and all other
communications between the parties relating to this
subject.
Page 4-of 4
--- -
----
- - ---
= - -:s"f~ ServicePlansM
Maintenance Agreement Financial Options
~~~
Mid-Range System Amendment (MRSA)
You and IBM agree to amend affected IBM MA(s) to adjust maintenance charges under that Agreement.
MRSA applies to Eligible Types of Service for each Designated Machine, as defined in Section 2.
1. Associated Contract Documents
Contract documents associated with this
Amendment include the Exhibit, the Customer
Management Control Procedures Exhibit (Procedures
Exhibit), and the Attachment.
The Exhibit specifies Eligible Machine Types,
Eligible Types of Service, and Discount Percents used
to determine the maintenance charge adjustments
under this Amendment.
The Procedures Exhibit specifies the procedures
which must be in place at the time of MRSA
qualification, and throughout the duration of a
Contract Period.
IBM will issue an Attachment to confirm the
Qualified Customer Location(s), Total Upper Limit
Percent, Contract Period Commencement and
Expiration Dates, and Applicable Procedures Exhibit.
IBM will issue revised Attachments as necessary.
IBM may, from time to time, issue revised
Exhibits to 1) add or delete Eligible Machine Types,
2) add or delete Eligible Types of Service, 3) revise
Discount Percents. and/or 4) amend any other terms
and conditions in the prior Exhibit. However, if such
revised Exhibit is unfavorable to you, and you notify
IBM in writing before its Effective Date, it will not
become effective during the then existing Contract
Period. Following such notice you may, at any time
during the Contract Period, request in writing that the
then generally available Exhibit be made effective. It
will become the applicable Exhibit on the later of its
Effective Date or the first day of the month following
IBM's receipt of such request.
2. Qualification and Coverage
The term .Designated Machine. means a Machine
1) of a Processor Type identified in the Exhibit
(Processor) or ;:lny Machine controlled by such
Processor and 2) listed in an MA Supplement for an
Eligible Type of Service listed in the Exhibit. Such
Processor must be at a Qualified Customer Location,
identified by Customer Number. However, a Machine,
for which your network coordinator controls requests
for maintenance service, may be a Designated
Machine even though it is not installed at a Qualified
Customer Location. The Procedures Exhibit describes
the role of the network coordinator.
A Machine will continue to be a Designated
Machine only so 10l\g as the applicable criteria remain
satisfied.
Upon your request for MRSA coverage, IBM will
provide you a Self-Review form. IBM will review the
information you provide to determine whether
applicable systems management procedures as
specified in the Procedllres Exhibit arc in place.
MRSA Z125-4035-01 1/89
IBM will determine which locations require your
self-review, and may, at its option, elect not to require
additional reviews.
For Machines placed under this Amendment IBM
will provide an upgrade to the available On-Site Type
of Service during the Warranty Period at no additional
charge.
3. Customer Responsibilities
You agree to provide IBM with the information
requested in the Self-Review form, or as otherwise
requested by IBM, to qualify for MRSA coverage.
You agree to follow the applicable procedures in
the Procedures Exhibit. You agree to provide IBM
with information regarding, and access to, your
facilities, upon reasonable request, so that IBM may
confirm your continued compliance with the
Procedures Exhibit. If you fail to follow the specified
procedures, IBM may terminate this Amendment or
withdraw affected Machines.
4. Contract Period
IBM will specify your selected Contract Period in
the Attachment. Such Period will apply to all
Designated Machines. If the Effective Date of the
initial Attachment is not later than the tenth day of a
month, the Commencement Date of the initial
Contract Period will be the first day of the following
month. If the Effective Date of such Attachment is
later than the tenth day of a month, the
Commencement Date will be the first day of the
second following month.
Designated Machines which become subject to
this Amendment following the Commencement Date
assume the unexpired portion of the existing Contract
Period.
Contract Period Renewal
Unless IBM otherwise notifies you at least three
months before the expiration of an existing Contract
Period, you may elect continued coverage for an
additional Contract Period. IBM will send you, at least
three months before the expiration of an existing
Period, an Attachment specifying the terms and
conditions for an additional Period. IBM will prepare
the renewal Attachment using the then applicable
Oualified Customer Locations and Contract Period
Duration. The generally available Exhibit as of the
Commencement Date of an additional Contract Period
shall be the applicable Exhibit for such Period.
An additional Contract Period will commence on
the day following the prior Conlract Period unless you
notify 18M, in writing, that you want to 1) terminate
this Amendment, 2) select a different, available
Page 1 of 2
Contract Period, or 3) remove a Qualified Customer
Location(s). You must provide such notice on or
before the expiration of the then existing Contract
Period. As a result of item (2) or (3), IBM will issue a
revised Attachment containing your requested
changes.
5. Withdrawal
Once you have initiated coverage for a Machine
under this Amendment, you may withdraw that
Machine from coverage under this Amendment and
the IBM MA only under the following conditions:
1. upon providing prior written notification to IBM -
a. a Machine subject to a three-year Contract
Period requires a three-month notice; and
b. a Machine subject to a five-year Contract
Period requires a six-month notice.
Withdrawal of a Machine without such notice will
result in a termination charge equal to one
month's maintenance charges for the withdrawn
Machine;
2. upon removal of the Machine from productive use
within your Qualified Customer Location(s);
3. in the event IBM removes a Machine as an
Eligible Machine from your Exhibit; or
4. upon the effective date of an increase in
maintenance charges or decrease in Discount
Percents, which would cumulatively increase your
adjusted maintenance charges for all Designated
Machines by more than the Total Upper Limit
Percent in any twelve-month period, or shorter
period within the first year, within a Contract
Period.
6. Charges
IBM will adjust your maintenance charges for
Designated Machines using the Discount Percents
listed in the applicable Exhibit.
IBM will determine adjusted maintenance charges
by 1) multiplying the applicable maintenance charges
for each Designated Machine by the applicable
MRSA Z125-4035-01 1/89
Discount Percent specified in the Exhibit for such
Machine and 2) subtracting the results from such
maintenance charges. If a Designated Machine is
subject to an annual charge, IBM will prorate that
charge for the portion of the annual period which is
within a Contract Period. IBM will issue you a credit
for any adjustment that is due. If such Machine is
made subject to this Amendment on any day other
than the Commencement Date or its anniversary, IBM
will prorate such charge so that it covers only the
period remaining up to the next such anniversary.
7. General
IBM may, upon three months' written notice to
you, modify the terms and conditions of this
Amendment andlor Procedures Exhibit. However, if
such modification is unfavorable to you, upon your
request, IBM will delay the effective date of the
modification to the Amendment or Procedures Exhibit
until the Commencement Date of the next Contract
Period. IBM will not increase the Total Upper Limit
Percent during a Contract Period.
Either party may terminate this Amendment upon
one month's written notice following withdrawal of all
Designated Machines and fulfillment of all obligations
under this Amendment.
In the event of conflict between this Amendment
and the IBM MA, the terms and conditions of this
Amendment will prevail. In the event of conflict
between this Amendment and its Attachment and
Exhibit, the terms and conditions of the Attachment
and Exhibit will prevail. All other terms and
conditions of the IBM MA remain in full force and
effect
You and IBM agree that the complete and
exclusive statement of the agreement relating to this
subject shall consist of the affected IBM MA(s), this
Amendment and applicable Exhibits, Attachments, and
Supplements, including those effective in the future.
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.
Page 2_012
--- -
----
- - ---
:: - -~'i'~ ServicePlansM
Maintenance Agreement Financial Options
~!~iij
Extended Maintenance Option Amendment (EMO)
You and IBM agree to amend affected IBM MA(s) under which IBM will provide maintenance service for an
Extended Term for selected Machines which include Machines which have not been previously installed or set up
(New Machines) and Machines which have been previously installed (Installed Machines). IBM will specify the
Machine(s) for which you have ordered this coverage in an EMO Supplement.
1. Associated Contract Documents
IBM will provide an Exhibit specifying the Machine
Types which are eligible for EMO. IBM may issue
revised Exhibits from time to time to add or delete
Machine Types. Such revised Exhibits will apply to
Machines you include under this Amendment on or
after the Effective Date of the revised Exhibit.
IBM will issue an EMO Supplement to confirm the
Extended Term, the Extended Term Start Date, the
EMO or Transfer Charges and Machines you have
selected for EMO coverage. The EMO Supplement
takes the place of the MA Supplement for a selected
Machine during its Extended Term.
2. Coverage
The Extended Terms for selected Machines will be
available from 24 to 60 months for commercial cus-
tomers, and from 12 to 60 months for state and local
government customers. IBM will inform you of the
Extended Terms which are available for a selected
Machine. The Extended Term Start Date for a
selected Machine will be 1) the Machine's Date of
Installation for a New Machine or 2) the date you
request the Extended Term to begin for an Installed
Machine, subject to IBM's acceptance. The Extended
Term will include the Machine's Warranty Period, if
applicable.
Each IBM feature and/or model upgr:1de installed
during an Extended Term is subject to this Amend-
ment. It will assume the remaining portion of the
Term and may require an additional EMO Charge.
IBM will notify you at least three month's prior to
the expiration of a Machine's Extended Term whether
the Machine is eligible for renewal under EMO.
Your coverage under the MA for a Machine, if
available, will continue at the conclusion of the
Extended Term of the EMO unless you notify IBM to
terminate such coverage.
3. Charges and Payment
You agree to pay the EMO Charge for each
selected Machine and for certain features and model
upgrades subsequently installed. The EMO Charge is
calculated using announced maintenance charges and
any adjustments for CSA, MRSA, or other discount
offerings in effect for a selected Machine on the
Extended Term Start Date for such Machine. EMO
Charges are not refundeble.
If your selected Machine's EMO or Transfer
Charge is based upon adjustments for CSA, MRSA, or
EMO Z125-4140-02 1O/02/90
any other discount offering, you agree to maintain
coverage for the Machine during its Extended Term
under such Amendment or offering.
IBM may increase the EMO Charge for a New
Machine before its Extended Term Start Date.
However, after IBM receives your order for EMO cov-
erage, IBM will not increase the EMO Charge for such
Machine unless IBM gives you written nolice at least
three months before the Machine's scheduled ship
date. In any event, you may cancel your order for
EMO coverage upon notice to IBM before shipment of
such Machine.
IBM may increase the EMO Charge for an
Installed Machine by providing you one month's
written notice prior to such Machine's Extended Term
Start Date. In any event, you may cancel your order
for EMO coverage upon notice to IBM before the
Extended Term Start Date.
If the EMO Charge is decreased on or before a
Machine's Extended Term Start Date, IBM will invoice
you the lower price.
IBM will invoice you an EMO Charge on or after
the Extended Term Start Date for a Machine.
Payment is due within 30 days after the date of the
invoice.
4. Transfer of Selected Machines
You may transfer coverage for the remainder of
the Extended Term for a selected Machine to another
party under the following conditions:
a. the transferee must maintain, throughout the
remainder of the Extended Term, coverage
under an IBM MA with a level of customer
obligation for the Machine which is equal to
or greater than that in effect at the time this
EMO coverage commenced; or, in the alterna-
tive, you may pay a Transfer Charge as desig-
nated by IBM:
b. the transferee signs, or has previously signed,
an EMO Amendment and the IBM MA; and
c. the transferee notifies IBM in writing of the
transfer, the location of the Machine, and
acceptance of coverage for the Machine
under such transferee's EMO Amendment and
MA.
5. General
Either party may terminate this Amendment upon
one month's notice following withdrawal of all
Machines or expiration of EMO coverage and fulfill-
ment of all obligations under this Amendment.
Page 1 of 2
IBM may, upon three months' written notice to
you, modify the terms and conditions of this Amend-
ment. However, if the modification is unfavorable to
you, upon your request, the modification shall apply
only to Machines subsequently added to coverage
under this Amendment on or after the effective date
of the modification.
If there is a conflict between this Amendment and
the IBM MA, the terms and conditions of this Amend-
ment will prevail. If there is a conflict between this
Amendment and its Supplement and Exhibit, the
terms and conditions of the EMO Supplement and
EMO Z125-4140-02 10/02/90
Exhibit will prevail. Otherwise, all terms and condi-
tions of the IBM MA remain in full force and effect.
You and IBM agree that the complete and exclu.
sive statement of the agreement relating to this
subject shall consist of the affected IBM MA(s), appli.
cable Agreements, Amendments, Exhibits, and Sup-
plements, Including those effective in the future. 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.
Page 2 of 2
&c- . //-;i). "// /' (/"
,--_/n/e-J'/IhrL.lu:)-na-t: ~-;.Ou.J[?U?4d- ./Pta,..c/?~?U4-- r::;;;m/,m-<~~)n
Office of the Sellior ViCl' Prt'~idt'llt (llld (~t'nera[ '\lall;q.:er
IBM Lnit('d Stat('.~
] 13:~ \Ve~l('h('ster AWlIUI', \Vhilt' Plains. '\Y !OMit
January 22, 1991
Dear Customer,
Thank you for doing business with us.
We are committed to providing you with the products, services,
and terms you want. Through surveys and discussions, you told
us we should be easier to do business with. You told us to
shorten and simplify our contracting process.
So, we took the terms from our most frequently used contracts
and combined them into a single contract called the IBM Customer
Agreement. Once you've read this new Agreement, I hope you'll
agree with us that it:
is shorter than anything we've had before;
is easy to read and understand;
covers all our major transactions in one
place; and
more accurately reflects the relationship
we try to create with all our customers.
We care what you think. If, at any time, you have any questions
or problems, or are not completely satisfied, please let us know.
Our goal is to do our best for you.
Sincerely,
h!l~
George H. Conrades
CITY-OF-SCHERTZ
-'~""
TEL:512-658-3204
IBM Customer Agreement
Signature Page for Attachments
Mar 10,93
9:21 No.001 P.05
RECEIVED MAR 2 6 1993
~
The following Attachments to the IBM Customer Agreement contain additional terms.
Caples of the Attachments whIch you seleel (by marking the approprlste space below) ere
included with this page.
Producls
ESlExpre.s Preload (Z12""oI&G2)
IBM Entry End U.er/370 License
(2125--4378-02)
Licensed Program Support
(ZI2H920004)
Trlsl or Loan of Produc:ls (Z125-4135001)
Rental of IBM Machine. (ZI2H30I-oI)
Trade-In. (1'_'3<-02)
Continuing Support Servl....
Bu.lne.. Recovery Services
(2'25-1306-04)
End User Support Services (2125-4301-01)
Nelwork Traffic Analysis Services
(Zl~11
Problem Management Productivily
Services (ZI~-Il2)
SystemXtra Services (212'~1
Sot\wareXcel Services (Zl~IlII-04)
IBM InlonnatIon Network MId otIlw hrvIcn
FASTServ\ce Servlcss (ll_'oOI I
IBM Information Network Services
(ZIlO-32ol2-04)
IBM Link Services 11,...",5 03)
Munlple Vendor Servtc:eI (ZI2HIfO.Ot)
Opllona
Central Faclllly Maintenance service
Option (1128 3333-05)
.L CSO and MRSO OPtlon~2W827"'))
Estlm.ted Billing Option (1'_"_1
Volume Malnlen.nce Option
(Zl2$-1771-o11)
Mlscellllll_s
Speclel Projects (lIas 1151001
Educational Allowance (2116-_1
IDNX" Licensed Intemal Cade
(Z'_'00I)
Slate & Local Govemment (ZI__)
. IDNX i. a regl.'ereel trademark 01 Network EqulP"*\1 T....noIogl... Inc.
By signing below for our respectlve Enterprises, esch of Ua agreeli to the lerms of the IBM
Cuslomer Agreemenl andlhe Included Attachments. Once signed. any reproduction of thle
page or an Attachment made by reliable meena (for example, photocopy or facsimile) I.
considered an original. .
Agreed 10: Agrwd IP;
Enl_l.. nama: f Schertz Intematlon.1 Bu.lne.. Machin.. Corporation
'Jill ,,-lIe l..'
_I.... ..-.
By
_"11(1 IIgl\II.....
R. Sweatt
Name (t$i~.J6iW;'''Jer
D.le: $//fJ
Enle,prl.. number: 7944059
Enl_prl.. ackI.....: 1400 Schertz Parkwl,)'
Schertz, TX 78154-U34
Iy
,... (type or prlnl~
DIIe: 3/111'73
11M CUlID_ Agr_llUmber: {u. ~Ol~~
11M 0IIce number: "GO
ISM 0llIce adcIteas:
IBM Corpora tf on
500 Convent St
San Antonio, TX
78205
.. .
Aft... signing, pl.... retum a 0ClpY 01 ~.,. loihalilcal.,IM OflIClIdd...... IIloWn ebova . . .>';
. . , . ,":' ,'. " "... ". ,....... ":'.... ,.:" ,". ,"""W,~'I olf..It!_:
Z12Sa4S'1'-G78192 (MKOO2\ i.,r,,'- '..' ~'..~nl.,_",
, . ..'.~ ...., ..,,:r...~.
\.
-
"'
mR 1121 '93 1219: 19
. . -'"""""': lLl t _ u~.....~
. ....". "'~''''',~~..,,~...... ~.. .HL"",:
S12 658 321214
PAllO .I2II2IS (
CITY-OF-SCHERTZ
TEL:512-6S8-3204
'B...
&a:!!'!: Customer Agreem~nt
Mid-Range System Option
Mar 10,93
9:21 No.001 P.04
TIre lerm. of the IBM CUIIO""" "greemenl (or .ny eql//.llenl'greemelll ligned by both ollll) .,.Iy /0 /his "m.c1lon.
Customer Self.lnltialization Review
TIle System Management Control Procedures Iilled In this lelf.lnlllall18tlon review will - when Implemented -
allow you to enjoy the benent. Of the IBM Mid-Range System Option to the IBM t;ustomer Agreement. I'laase take
a few minute. to complete It, then contact us and we'll do the relt
CII.tomer Management Control Procedllre.
Implementation
YeolNo DOl.
Do you h,vo procedure.
...bli.hed to report
problems wilhin your VI_ J:/fIu
orglnlnllon?
At. probllms recorded
e1_ on I problem log v1'~ ~
or In ~ online system'
Is the.. a cenlral point
..labll.hed lor
Informalion on Ihe
sIalus of .11 ,v"em Ind /'- #1
nelWOrk problem.?
Do you hIve procedu...
..Iabll.hed \0 manage ..JLf_ 4ft/
c:Iuonge.?
A..-r the IoIlDwlng Dnly If you ha.. . "o\work
I)/A-
Ate procedure. In place
fDr hOlldll"ll nelwork
...r problems and
que.lion.? _,_
I. . configuration
diagram IVIII.ble and
kept cur..nt?
_,-
customer
CUllo....r Nlma: City of Schertz
Cu.tomer Number: 1792834
Oat, lieIf.lnltializalion <;/')j I .
Review Completed: 1.
Cu.tomer Reviewer: AJ./ee l/u~fJ(1
Network Coordinator: fitd'lf'tI ~/""N$(1,J
Telephone Number:
Customer Addre..:
City of Schertz
1400 Schertz Parkway
Schertz, TX 78154-1634
Zt25-<1309.o2 Will
M'lR 10 '93 09:19
It/IpIementltl,,,,
y~ Dille
Do System ProIlfem
Oetormin.lkln
pmced..... apeclfy
ullllzlllDn of the IBM
provldecf tool. (programs
and guides) at the holl /' ,If. h'/
and,_llt..? ..L....'_ "', 7,
Do you u.. th. laM
Cull..... Aulllance
Group (CIIOI. II
'I'fIIlcebte, \0 eul.l you
Ill__,_ J. /IJI
Detarmllllllon? VI_ . ~
I,"ere I N81_
c:-.Iinll... c1aftned
within your orgonlzatlon
fat sV'~ and__
prabIoms? -1_
IBM OJfIw 300 Covlnt Street
San Antonio. TX 78205
MarfIeIIll/I Contact:
Tel...""'. N"'-: (512) 554-6300
",',.',,",
":~!)p, .
..~u.
"I ", ~ ~
.'~ tII1J ','".r-; , .J; ,.0.-.;" .~
512 658 3204 PAGE. 004
CITY-OF -SCHERTZ
TEL:512-658-3204
Mar 10,93
9:19 No.001 P.03
'1'- = -
.!:iim Customer Agreement
Supplement for CSO and MRSO Options
TM term. or the IBM ClIOIomer Agree_nl (or any ..,.,wa"'nt agrHmant aigned by I>ollt of uoj appry 10 IItIo "a_on.
Opllan ...Iected (check one):
IBM CUlIllI'IHlI' Agr_t number.:
_ eso ..l- URSO
Enterprl.. number.: 7g44059
~ number.: 1792834
Suppl._nt E_Iv. Date: 3/1/93
ReviMCI Supplement (y..rNo): NO
AppIlcabl. Proeodur.. Exhibit:
Exlt.Option Percent: 6'1'.
Available Cont,....
Period Dur allon
Terrnlnallon
PQtice required
Contr.~ Period
Duration:
s~
S/'/'J
"1' I';
3 year.
3 month.
Start Det.:
5 yea...
6 month.
lnc1 Da'.:
If \hi. I. a Revioed Supple""'n~ the S'art Oat. I. the Mm. dal. a. tI.1ed in th. Inlti.1 SUpplement ro. \he _.....1 Conlfacl
"-tloel.
Qu.1l11ed CustOlllW Localians
1792834
~rtz
1400 Schert~ Parkway
Schertz. TX 78154-1634
F", CSO, which
DJ_unl appl...
(System 01' Networkl
Cu&tomBr No.
. ,
%125-3929.03 111&1
".,..'",',.'
.......0lI...., ...., ~~';', ,0;,.'"
. '.,D1_
~-.
..~~"'.;..;.
-~:;.-:-i~~....:,..
.._.
:.,".~.,...,.-.'t.,"',
,- ,........",;... M'
f'I'lR 10 '93 09: 18
512 658 3204
PAGE. 003
----
----
- - ---
E - -::E~E: Customer Agreement
Attachment for CSO and MRSO Options
These terms are in addition to those of the IBM Customer Agreement and specifically supplement its
Maintenance Service Options terms. You accept these terms by signing the Signature Page for
Attachments or using, or making any payment for, the Options described below.
We provide two Options under which we will reduce Maintenance Services charges for eligible
Machines (called "Qualified Machines"), provided you follow the applicable systems management
procedures that we specify in a Procedures Exhibit. You may select either the Corporate Service
Option (called "CSO") for eligible large system environments or the Mid-Range System Option (called
"MRSO") for eligible mid-range system environments. Under these Options, we require that the
Qualified Machines be 1) under On-site type of service and 2) located at, or controlled through,
locations within your Enterprise which follow our systems management procedures (called "Qualified
Locations").
The contract period you select applies to all Machines under an Option. Machines which come under
an Option after a contract period has started will assume the remaining portion of that contract period.
Each of us agrees to notify the other (before the current contract period expires) if they do not intend to
renew an Option.
1. Our Responsibilities
We will:
1. confirm in a Supplement your start date, and selected Option and contract period;
2. provide On-site type of service for a Qualified Machine under warranty at no additional charge;
3. provide you a self-review form, for MRSO, to assist you in obtaining the information we need to
determine if a location is a Qualified Location. In order to determine if a location is a Qualified
Location for CSO, we may conduct on-site reviews. If we do so, we will inform you of any
applicable charges in advance; and
4. adjust your Maintenance Services charges for Qualified Machines using the applicable discount
percents (specified in an Exhibit). For a Qualified Machine subject to an annual charge, we will
adjust the charge only for that portion of the annual period which is within a contract period.
2. Your Responsibilities
Corporate Service Option
You agree that a Qualified Machine under CSO is one that meets the following criteria:
1. it is an eligible System Machine type, located at a Qualified Location; or
2. it is an eligible Network Machine type, controlled through a Qualified Location. You agree to
place requests for Maintenance Services only through the Qualified Location.
Eligible System and Network Machine types are specified in an Exhibit.
Zt25-3927-04 1/91
Page 1 of2
If we request, you agree to use' Programs provided by us for call placement and problem status
tracking for Qualified Machines in a network environment. We will provide these Programs at no
additional charge. You agree not to modify these Programs. On termination or expiration of
coverage, you agree to destroy your copies of the Programs.
Mid-Range System Option
You agree that a Qualified Machine under MRSO is one that meets the following criteria:
1. it is an eligible processor type located at a Qualified Location and is under warranty or
Maintenance Services; or
2. it is an eligible Machine type controlled by such processor and is either a) located at a
Qualified Location or b) one for which your network coordinator controls all requests for
Maintenance Services. We will describe the role of the network coordinator in a Procedures
Exhibit.
Eligible processor and Machine types are specified in an Exhibit.
3. Termination
You may terminate, without additional charge, coverage for a Machine only if:
1. you give us the required notice (specified in a Supplement);
2. you remove it from productive use within your Qualified Location; or
3. we remove it from eligibility.
Otherwise, you agree to pay one month's Maintenance Services charges for the Machine.
You may terminate either Option if a change in discount or Maintenance Services charges
increases your total adjusted charges by more than the specified exit-option percent in any
12-month period. Termination will occur on the effective date of the change. We will not increase
the exit-option percent during a contract period.
If you also wish to terminate Maintenance Services, you must do so under its terms.
ZI25-3927-041/91
Page 20f2
--- -
----
-' - ---
----
- - ---
- - - ---
---.-
---.-
Customer Agreement
Procedures Exhibit for Mid-Range System Option
Systems Management Control Procedures
The IBM Systems Management program has identified
several benefits to a customer that can result from sound
Information Systems (1/5) management control procedures.
Key benefits are:
improved service to end-users;
. shorter problem duration and reduced problem impact;
and
fewer crises.
As a result of studying customers who use effective liS
management control procedures to assist in reducing service
costs, IBM has developed a set of general guidelines and a
description of liS management processes that are keys to a
successful liS operation. These processes cover: a) man-
aging problems; b) managing changes; and c) managing
network operation. Each process is described below.
1. General
Before requesting Maintenance Services for MRSO Qual-
ified Machines, the Customer will ensure that:
1. operational problems have been corrected;
2. error recovery procedures have been followed;
3. failures are clearly identified and logged; and
4. Customer Problem Analysis and Resolution (CPAR) proce-
dures have been completed for Qualified Machines, as
applicable.
For Qualified Machines which are capable of attachment
to a telecommunications network, the Customer's network
coordinator will ensure that these activities are completed
prior to requesting Maintenance Services.
Each service that the liS function provides to the organ-
ization, of which it is a part, provides the context for
describing problems and changes related to that service. liS
has either established formal descriptions of levels of service
that it provides or has created end users' expectations
through its performance. These levels include, at a
minimum, timeliness, accuracy, reliability, and performance
for each production activity. Anything which reduces any
level of service within the production environment should be
corrected using a problem management process. Each
change should be controlled using an established change
management process.
Use of guides and Customer Problem Analysis and
Resolution (CPAR) procedures provided with IBM products in
the liS environment can assist in keeping levels of service
high. IBM Customer Assistance Groups (CAG) also have
been established, for certain machines, to provide customers
telephone access to information that will assist them with
problem analysis. The use of these tools (CPAR, guides and
CAG) by the customer is recommended to reduce service
costs and to therefore qualify the customer for an adjustment
to maintenance charges.
2. Managing Problems
The customer should establish and document a proce-
dure for the following problem elements;
Z125-4038-04 11/91
1. recording initial problem information;
2. gathering supporting documentation on each occurrence
of a problem;
3. assigning responsibility for problem determination and
ensuring that system problem determination procedures
have been followed using the available guides, programs,
and/or programming;
4. providing the information or documentation requested by
CAG personnel assisting in resolving the customer's prob-
lems; and
5. verification of problem resolution before prOblem closing.
Problem records should be available for examination.
Such records should include all aspects of the problem man.
agement elements, such as operations, environment, applica.
lions, equipment and licensed programs and programming.
Customer personnel responsible for managing problems
and placing calls to IBM are to have knowledge of available
problem determination tools and use these tools prior to
placing a call to IBM. Customer personnel should also work
with CAG personnel when necessary to further define prob-
lems. If the system has Remote Support Facility (RSF) capa-
bility, this capability should be utilized in accordance with
established RSF procedures. This includes interaction with
IBM Support Center (level 1) personnel when required.
3. Managing Changes
Every type of change to the system, no matter how
small, should be included in a change management process.
Customer..<Jocumented procedures should be established for
each type of change according to the complexity, risk and
possible impact. All changes are to be documented; complex
changes should have various levels of testing and manage-
ment approvals.
4. Managing Network Operation
Network operation must include procedures in addition to
those procedures described in the Sections entitled "Man-
aging Problems" and "Managing Changes." "Host"
resources, such as the telecommunications access method,
affect the delivery of service to the network users and should
be controlled under the same management structure as the
connected network.
An individual is to be designated as the network coordi.
nator. The network coordinator should have knowledge of
the applications that are run on the network and have avail.
able for use documented problem determination procedures.
Automated problem determination, configuration manage-
ment, and resource recovery tools should be available to be
used by the network coordinator, as appropriate. The
network coordinator should also ensure that CPAR proce.
dures, which apply to machine types in the network, are uti-
lized.
Changes to the network, and requests for service on the
network, should be monitored by the network coordinator. A
current configuration diagram including, but not limited to,
every point~to.point connection and specific identification of
each network resource should be available to the network
coordinator.
Page 1 of 1
--- -
----
- - ---
- --- Customer Agreement
- - ---
- - - ---
---..-
---"-
Exhibit for Mid-Range System Option
Exhibit No.: MRSQ-18 Effective Date: May 1, 1992
, This Machine is an eligible processor type as referred to in the Attachment for CSO and MRSO Options.
Machine Discount Percent Machine Discount Percent
Type Three Years Five Years Type Three Years Five Years
.3031 12 17 1520 22 27
'3032 12 17 1537 17 22
'3033 12 17 1538 15 20
'3081 12 17 1539 17 22
'3083 12 17 1543 12 17
.3084 12 17 1545 22 27
'3090 12 17 1546 15 20
'4321 12 17 1547 15 20
'4331 12 17 1548 22 27
'4341 12 17 1549 12 17
'4361 12 17 1550 12 17
'4381 12 17 1551 17 22
'4576 17 22 1552 17 22
'4578 12 17 1556 17 22
'4579 12 17 1560 15 20
'4593 12 17 1561 15 20
'5360 12 17 1575 17 22
'5362 12 17 1580 17 22
'5363 12 17 1581 12 17
'5364 12 17 1586 17 22
'5381 12 17 1593 12 17
'5382 12 17 1596 12 17
'7012 12 17 1597 12 17
'7013 12 17 1998 12 17
'7015 12 17 2380 12 17
'7016 12 17 2381 12 17
.8130 22 27 2390 12 17
'8140 22 27 2391 12 17
'8150 25 30 2456 17 22
'9021 12 17 2460 15 20
'9121 12 17 2711 15 20
'9221 12 17 2880 13 18
'9371 12 17 2914 12 17
.9373 12 17 2998 13 18
'9375 12 17 3036 13 18
'9377 12 17 3037 13 18
'9402 12 17 3038 13 18
'9404 12 17 3044 13 18
-9406 12 17 3080 13 18
1255 12 17 3082 13 18
1403 12 17 3087 13 18
1419 12 17 3088 13 18
1503 22 27 3089 13 18
1504 22 27 3092 12 17
1507 22 27 3097 12 17
1508 22 27 3117 12 17
1509 22 27 3118 12 17
1513 17 22 3119 12 17
1514 12 17 3151 17 22
1515 17 22 3161 17 22
1516 15 20 3162 17 22
1517 17 22 3163 17 22
Z 125-4056-18 5/92 Page 1 of 5
- -~._-- .---_._.._---~~.._-.- .'".__.~._._.- ~..._- ,........--...----...-
Machine Discount Percent Machine Discount Percent
Type Three Years Five Years Type Three Years Five Years
3164 17 22 3532 12 17
3172 23 28 3541 17 22
3174 22 27 3624 20 25
3178 17 22 3641 17 22
3179 17 22 3642 17 22
3180 17 22 3643 17 22
3191 17 22 3644 17 22
3192 17 22 3645 17 22
3194 17 22 3646 17 22
3196 17 22 3647 17 22
3197 17 22 3651 25 30
3203 12 17 3653 20 25
3205 12 17 3659 17 22
3206 17 22 3663 20 25
3215 12 17 3666 17 22
3216 12 17 3667 20 25
3251 17 22 3669 22 27
3255 17 22 3683 22 27
3258 17 22 3684 25 30
3262 12 17 3687 25 30
3268 12 17 3689 25 30
3271 25 30 3694 22 27
3272 25 30 3705 25 30
3274 25 30 3706 25 30
3275 25 30 3708 15 20
3276 22 27 3710 15 20
3277 20 25 3717 20 25
3278 20 25 3720 20 25
3279 17 22 3721 17 22
3284 12 17 3725 22 27
3287 12 17 3726 22 27
3289 12 17 3727 17 22
3290 17 22 3728 17 22
3295 17 22 3732 20 25
3299 12 17 3737 12 17
3310 13 18 3741 17 22
3350 I 13 18 3742 17 22
3363 17 22 3745 13 18
3370 13 18 3746 13 18
3375 13 18 3747 17 22
3380 I 13 18 3767 20 25
3390 13 18 3776 20 25
3410 13 18 3777 20 25
3411 13 18 3782 20 25
3420 13 18 3800 12 17
3422 13 18 3803 12 17
3430 13 18 3812 15 20
3471 12 17 3814 13 18
3472 12 17 3816 15 20
3476 12 17 3820 12 17
3477 12 17 3825 12 17
3480 13 18 3827 12 17
3490 13 18 3828 12 17
3505 12 17 3830 13 18
3510 17 22 3833 17 22
3511 17 22 3834 17 22
3525 12 17 3835 12 17
I Eligibility for 3350s, aU models. and 3380 models A04. AA4. and B04 is limited to those having continuous
Maintenance Services coverage at your Location which began December 31. 1990 or prior.
Eligibility for 3380 modeis AD4, AE4. BD4, and BE4 is limited to those having continuous Maintenance Services
coverage at your Location beginning December 31. 1992 or prior.
Z 125-4056-18 5/92
Page 2 of 5
Machine Discount Percent Machine Discount Percent
Type Three Years Five Years Type Three Years Five Years
3838 13 18 4702 17 22
3842 17 22 4704 15 20
3843 20 25 4707 12 17
3848 13 18 4708 17 22
3851 13 18 4710 17 22
3863 20 25 4712 12 17
3864 20 25 4715 17 22
3865 17 22 4717 12 17
3872 20 25 4718 12 17
3874 20 25 4720 15 20
3875 17 22 4721 12 17
3880 13 18 4722 12 17
3890 14 19 4730 25 30
3891 12 17 4732 12 17
3892 12 17 4753 17 22
3897 14 19 4754 17 22
3898 14 19 4860 17 22
3899 12 17 4863 17 22
3900 12 17 4865 17 22
3979 17 22 4869 12 17
3990 12 17 4941 12 17
3995 12 17 4950 17 22
4019 14 19 4952 20 25
4028 12 17 4953 20 25
4029 12 17 4954 20 25
4033 12 17 4955 22 27
4055 13 18 4956 20 25
4072 12 17 4959 20 25
4110 12 17 4962 20 25
4201 17 22 4963 20 25
4202 12 17 4964 20 25
4207 12 17 4965 20 25
4208 12 17 4966 20 25
4210 20 25 4967 20 25
4212 12 17 4968 20 25
4214 12 17 4969 20 25
4216 12 17 4971 20 25
4224 12 17 4973 12 17
4226 12 17 4974 12 17
4230 12 17 4975 12 17
4234 12 17 4978 20 25
4245 12 17 4979 20 25
4248 12 17 4980 20 25
4250 15 20 4982 20 25
4469 17 22 4987 20 25
4470 17 22 4990 20 25
4575 12 17 4993 20 25
4577 17 22 4994 20 25
4580 17 22 4995 25 30
4581 17 22 4996 20 25
4583 12 17 4997 20 25
4584 12 17 4999 20 25
4585 12 17 5031 20 25
4591 12 17 5083 20 25
4651 17 22 5084 12 17
4655 17 22 5085 17 22
4659 17 22 5086 17 22
4683 20 25 5087 20 25
4684 17 22 5088 22 27
4686 17 22 5140 20 25
4687 17 22 5144 17 22
4701 20 25 5145 17 22
ZI25-4056-185/92
Page 3 of 5
Machine Discount Percent Machine Discount Percent
Type Three Years Five Years Type Three Years Five Years
5150 25 30 5494 12 17
5151 t7 22 5525 20 25
5153 17 22 5531 22 27
5154 17 22 5532 17 22
5155 22 27 5577 17 22
5159 12 17 5810 15 20
5160 22 27 5811 15 20
5161 22 27 5812 15 20
5162 22 27 5821 15 20
5167 17 22 5822 15 20
5169 15 20 5841 17 22
5170 22 27 5842 15 20
5173 17 22 5853 15 20
5175 17 22 5865 15 20
5178 17 22 5866 15 20
5181 17 22 5868 15 20
5201 12 17 5869 15 20
5202 15 20 5998 12 17
5204 15 20 6091 20 25
5208 12 17 6093 20 25
5209 12 17 6094 17 22
5210 12 17 6095 17 22
5211 12 17 6097 20 25
5216 12 17 6098 17 22
5218 12 17 6150 15 20
5219 12 17 6151 15 20
5222 12 17 6152 17 22
5223 12 17 6153 15 20
5224 12 17 6154 15 20
5225 12 17 6155 15 20
5228 12 17 6158 15 20
5229 12 17 6157 15 20
5231 12 17 6180 15 20
5234 12 17 6182 12 17
5242 20 25 6185 12 17
5251 12 17 6186 12 17
5253 17 22 6187 12 17
5256 12 17 6192 15 20
5258 20 25 6252 12 17
5259 12 17 6262 12 17
5262 20 25 6360 17 22
5271 22 27 6361 17 22
5272 17 22 6580 17 22
5273 17 22 6611 20 25
5277 17 22 7010 12 17
5278 17 22 7011 12 17
5279 17 22 7171 17 22
5281 17 22 7202 12 17
5282 17 22 7203 12 17
5285 17 22 7204 12 17
5286 17 22 7207 12 17
5288 17 22 7208 12 17
5291 12 17 7210 12 17
5292 12 17 7235 12 17
5294 20 25 7245 12 17
5299 12 17 7246 12 17
5321 17 22 7361 17 22
5340 12 17 7371 15 20
5371 20 25 7372 15 20
5373 17 22 7374 17 22
5378 17 22 7375 17 22
5379 22 27 7436 17 22
5394 12 17 7463 17 22
ZI25-4056-185/92 Page 4 of 5
-...._._-_._~ --------------.
Machine Discount Percent Machine Discount Percent
Type Three Years Five Years Type Three Years Five Years
7480 22 27 8540 17 22
7481 17 22 8543 17 22
7494 12 17 8550 17 22
7525 12 17 8551 17 22
7526 12 17 8554 17 22
7527 12 17 8555 17 22
7531 22 27 8556 17 22
7532 22 27 8557 17 22
7534 17 22 8559 17 22
7537 17 22 8560 17 22
7541 17 22 8565 17 22
7542 17 22 8570 17 22
7544 17 22 8573 17 22
7546 17 22 8580 17 22
7552 22 27 8590 17 22
7561 17 22 8595 17 22
7562 17 22 8604 15 20
7568 22 27 8775 17 22
7690 12 17 8809 22 27
7771 13 18 8815 22 27
7775 13 18 9022 12 17
7820 10 15 9023 12 17
7855 15 20 9027 12 17
7861 12 17 9032 12 17
7866 15 20 9033 12 17
7868 12 17 9034 12 17
8101 17 22 9035 12 17
8102 17 22 9037 12 17
8209 12 17 9038 12 17
8218 12 17 9039 12 17
8219 12 17 9075 17 22
8220 12 17 9082 13 18
8228 12 17 9246 12 17
8230 12 17 9247 12 17
8232 23 28 9309 12 17
8450 17 22 9331 12 17
8470 17 22 9332 12 17
8471 17 22 9333 12 17
8503 15 20 9334 12 17
8504 15 20 9335 12 17
8506 20 25 9336 12 17
8507 20 25 9341 12 17
8508 20 25 9343 12 17
8512 15 20 9345 12 17
8513 15 20 9346 12 17
8514 15 20 9347 12 17
8515 15 20 9348 12 17
8516 15 20 9712 12 17
8517 15 20 9715 12 17
8518 15 20 9736 12 17
8525 17 22 9737 12 17
8530 17 22 9738 12 17
8535 17 22 9739 12 17
Z125-4056-185/92
Page 5 of 5
. ---------.---.-.---.-.-,,- -- ..._-_._-~- - -.----.---.---.---.,...-.-.---- ..---.------"-.--------- - --'-.."-.'--'---"-'-'---
----
----
- - - --
---
- - ---
- - - ---
-----
---.-
Announcement Leiter date: 24 September, 1996
Memorandum to: Current Licensees of IBM AIX/6000(R) Version 3.2
Program Number: 5756-030
Subject: Program Service Reclassification
This letter is notification fhat Program Services for the referenced Program, provided under the terms of the IBM
Customer Agreement, will be withdrawn effective 12/31/1997. At that fime Program Services will no longer be
provided.
For further information contact your IBM marketing representative and/or refer to Announcement Letter 996-245.
RECLAS13G5
-
-
-
-
--
Software Manufacturing Solutions
Customer Support
-- --
---
- - -...-
---
-,-
PO Box 1900
BOlllder, Colorado 80301-9191
1-800-879-2755
Dear Customer,
It is our pleasure to deliver your IBM order. IBM has the
following resources in place to assist you in obtaining all the
items you require:
Compare the attached Software Order Packing List to the contents
of this package. If there are any missing, damaged or
unusable items, please call IBM Software Manufacturing Solutions
at 1-800-879-2755 from 8:30 AM to 7:00 PM Eastern time
weekdays. If you prefer, you may fax your comments to us at
1-800-284-4721. Please include a copy of the packing list,
your name and phone number on the fax.
If you were expecting additional products or features in this
order, please contact your IBM Marketing Representative, IBM
Direct, or the organization that placed this order, to verify
that it was entered according to your instructions.
If you are having difficulty installing or using this product,
you may be entitled to supporting services. Please refer to the
documentation for this product. If you are unable to determine
your entitlement status, please contact the IBM Software
Support Center at 1-800-237-5511 for assistance in making this
determination.
If you would like to purchase additional products, please contact
IBM Direct at l-800-IBM-CALL (1-800-426-2255) from 8:00 AM
to 8:00 PM Eastern time, weekdays.
Quality and Customer Satisfaction
IBM Software Manufacturing Solutions
~
~
\j
a
----
----
- - - --
---
- - ---
- - - ---
---. -
___r_
IBM CORPORATION [SMSJ
C/O ARNOLO LOGISTICS
336 HEINZ STREET
HECHANICSBURGJ PA 17055
----
----
- - - --
---
- - ---
- - - ---
---. -
---,-
IBH CORPORATION (SHS)
C/O ARNOLO LOGISTICS
336 HEINZ STREET
HECH~NICSBURGJ PA 17055
CITY OF SCHERTZ
CITY OFFICES
1400 SCHERTZ PARKWAY
SCHERTZ TX 78154
CITY OF SCHERTZ
CITY OFFICES
1400 SCHERTZ PARKWAY
SCHERTZ TX 78154
SYS NUM
UNKNOWN
OR DELIVER TO DATA PROCESSING
ZONE 7 W15991840478154
II11111111111111111111111111111111111111111111111111111I11111111111111111111111111111
599184 DPK +FHZ3V 1792834
AREA
OR DELIVER TO DATA PROCESSING
ZONE 7 W15991840378154
1111111111111111111111111111111111111111111111111111111111111111111111111111111111111
599184 DPK +FHZ3V 1792834
AREA
SYS NUM
UNKNOWN
CITY OF SCHERTZ
CITY OFFICES
1400 SCHERTZ PARKWAY
SCHERTZ TX 78154
CITY OF SCHERTZ
CITY OFFICES
1400 SCHERTZ PARKWAY
SCHERTZ TX 78154
CUSTOMER NUMBER:
BRANCH OFFICE:
PACKAGE NUMBER:
MFG BATCH NO.:
1792B34
SNY
5991840
DPK
ORDER NUMBER:
PROOUCT NUMBER:
SERIAL NUMBER:
PSS DATE:
+FHZ3V
5756-030
00A1K3K
04/11/97
FEATURE
ORDERED
QTY
COMPONENT
COMPONENT DESCRIPTION
AUTOMATIC MAINTENANCE ORDER
THIS ORDER CONTAINS THE FOLLOWING:
PUBLICATION TOTAL = 1
TAPE TOTAL = 0
CARTRIDGE TOTAL = 0
DISKETTE TOTAL = 0
CD-ROM TOTAL = 0
VIDEOTAPE TOTAL = 0
ELECTRONIC TOTAL = 0
9001 001
RECLAS15G5
PUBLICATION SECTION
RECLASSIFICATION MEMO
MEDIA SECTION
QTY:
1
NOTE: * MARKED PUBLICATION IS AT CURRENT
LEVEL AND WAS PREVIOUSLY PROVIDED
AT NO COST FOR THIS LICENSE.
W20+FHZ5V
1111111111111111111111111111111111111111111111111111111
----
----
- - - --
---
- - ---
- - - ---
---. -
---.-
IBM CORPORATION ISMS)
C/O ARNOLD LOGISTICS
336 HEINZ STREET
HECHANICSBURG, PA 17055
CITY OF SCHERTZ
CITY OFFICES
1400 SCHERTZ PARKWAY
SCHERTZ TX 78154
OR DELIVER TO DATA PROCESSING AREA
ZONE 7 W15991840178154
I11I111111111111111111111111111111111111111111111111111111111111111111111111111111111
599184 DPK +FHZ3V 1792834
PSS DATE
04/11/97
CITY OF SCHERTZ
CITY OFFICES
1400 SCHERTZ PARKWAY
SCHERTZ TX 78154
CITY OF SCHERTZ
CITY OFFICES
1400 SCHERTZ PARKWAY
SCHERTZ TX 78154
CUSTOMER NUMBER:
BRANCH OFFICE:
1792834
SNY
PACKAGE NUMBER: 5991840
MFG BATCHR NO.: DPK
THIS SOFTWARE PACKAGE CONTAINS THE FOLLOWING:
ORDERS
CUMULATIVE
SERVICE
=
1 PUBLICATION TOTAL = 1
TAPE TOTAL = 0
CARTRIDGE TOTAL = 0
0 DISKETTE TOTAL = 0
CD-ROM TOTAL = 0
VIDEOTAPE TOTAL = 0
ELECTRONIC TOTAL = 0
PRODUCT DESCRIPTION
AIX 3.2.56
=
ORDER NUMBER
+FHZ3V
PRODUCT NUMBER
5756030
W2M+FHZ3V
"'
~-
A
....
I
CITY OF SCHERTZ
P.O.DRAWERI
SCHERTZ, TEXAS 78154
REQUEST FOR PURCHASE ORDER
DATE
June 25, 1991
ORDER FROM DELIVER TO FOR (DEPT.) DATE WANTED
IBM City of Schertz (Capital Outlay) June 28, 1991
Water Dept.
REQUESTED BY O~ ~A~:TURE
Steve Simonson, Asst. City M9r.
DESCRIPTION UNIT PRICE TOTAL PAICE
1 8530 E01 PS/2 Model 30 286 (EOl) 1,161.46
1 1205 SDLC Comm. Adapter 162.54
(Invoice #E470342 4-20-91) Sub-Total $1,324.00
3 3151 310 Model 1,422.00
(Invoice #E495714 S-31-9l) Sub- Total $1 ,422.00
Note: Return Check to Plannino DeDt.
PURCHASE ORDER TOTAL $2,746.00
CHARGE TO: CITY OF SCHERTZ
~
o VERBAL
o WRITTEN
ORDER PLACED BY
Steve Simonson
75422
APPROVED
~CA
BOOKKEEPER
CITY MANAGER
THIS FORM BECOMES A PURCHASE
ORDER ONLY WHEN SIGNED
BY THE CITY MANAQER
ACCOUNT NUMBER
DELIVER NO MATERIALS OR SUPPLIES
WITHOUT PURCHASE ORDER OR NUMBER
PURCHASE ORDER NUMBER, 0 2 2 73 6
.-
International Business Machines Corporation
-
"
Pt._ dirKt inqulri.. Md cot1'UpOl'ldeoc. 10'--
Invol~A Hurnbw
E4, 1342
...
lnvoi~ C
APR. 20--1991
Page Number
1
I
IBN CORPORATION
300 CONVENT
SAN ANTONIO IX 78205
......
(512) 554-6300
IBM Account Number
1792834-00
---
----
- ----
----
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- - - ---
--- --
---.-
Inll~lI.d"t
llllloiceto
CITY OF SCHERTZ
CITY OFFICES
1400 SCHERTZ PARKHAY
SCHERTZ,TX 78154-1634
CITY OF SCHERTZ
CITY OFFICES
1400 SCHERTZ PARKWAY
SCHERTZ,TX 78154-1634
Accounts Rile.
BranchOIf.
JGO
Customer Roi!ferenc:e
CERTIFIED ORIGINAl CDPY
BID
REBAR NUMBER 9513
PROCESSED OS/29/91
Pl..... r_it payments 10
PO BOX 660183
DALLAS TX 75266 .
Terms
PAYABLE UPON RECEIPT OF
IHVOICE
----------------------------------------------------------------------------------------------------------------
INVOICE FOR PURCHASED EQUIPNENT AND ONE TINE CHARGE PROGRANS
PRODUCT/NODEL/DESCRIPTrON IBN QTY.
SERIAL NUHBER ORDER.
CHARGE OR APPLICABLE
PURCHASE PRICE DrSCOUNT/ %
TAX NET ANOUNT
ANOUNT EXCLUDING T~ES
, (/
,/t
)1/:" /
419.~ 1f,.1 r1
CONTRACT NUNBER 0029696
8512 001 PS/2 COLOR DISPLAY
1089666 2NNHCH 1
666.00 247.00CR
~7%
SHIPPED 03/27/91
~
8530 EOl PS/2 NODEL 30 286 (E01)
9134718 2NnHCL
1
',845.00
1205 SDLe CONN. ADAPTER
15D1205
258.00
683.54CR
37%
95.46CR
',161.46
1
162.54
37%
SHIPPED 03/27/91
TOTALS
2,769.00
1,026.00CR
_1., 743 ~ O-O~
QUANTITY DISCOUNT APPLIED
~(I 0'
I, 3 "I .
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JUN 1 2 19~: /p
Original Copy
PAY THIS AMOUNT
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'rift iT l JIAI.nB.!'1
'.;.;.,.;., "'0'-'- ;:.~::.:::::.:::.:~~.:;:::::.:;:;:::.:.;
International Business Machines Corporation
-
.-.
Please direct inquiries and coi't-espandence 10
InvoiCl"numoef
Invoice dale
Phone
,
IBK SAN ANT HE" BUS
300 CllIIVENT
SAN ANTONIO n< 78Z05
31, 1991
E495714. MAY
IBM Account Numbef
---
----
- ----
- ---
- ----
- - - ---
--- --
---.-
(5UI 554-6300
Installed at
1792834-00/7
Invoicela
CITY OF SCHERTZ
CITY OFFICES
1400 SCHERTZ PARKHAY
SCHERTZ n< 78154-1634
CITY OF SCHERTZ
CITY OFFICES
1400 SCHERTZ PARKWAY
SCHERTZ TX 78154-1634
Customer reference
810 SIMONSON
:' <'_,~<, " " : ~'dyP1lents to
Terms
PAYMENT DUE UPON INSTALLATION
PO BOX 660183
DALLAS TX 75266
INVOICE FOR PURCHASED EQUIPMENT AND ONE TIME CHARGE PROGRAMS
~age number
I
1
PRODUCT/I1ODEL/DESCRIPTION IBK QTY. CHARGE OR APPLICABLE TAX NET AI1OI.tIT
3ERIAL IU1IlER ORDER' PURCHASE PRrCE DISCOlM'I Yo AI1OI.tIT EXCLUDING TAXES
CONTRACT NUMBER DD6Z4Z5
3151 310 3151 HOOEL 310 H/3 YR HARRAN
00OKYF6 ZTLSVC 1
678.00
Z04.0OCR
3OY.
Z04.0OCR
3OY.
Z04.00CR
3OY.
00DKYG5
ZTLSVO 1
678.00
678.00
00DKYT7
ZTLSVB 1
TOTALS
Z,034.00
6lZ.00CR
~JANTITY DISCOlM' APPLIED
~i~ 0 [Q)
.
870
474.00
474.00
474.00
1,4ZZ.00
Original Invoice
PLEASE PAY THIS AMOUNT
1,422.00
z.&45-(l(104.02(REV.10/901
-
...
CITY OF SCHERTZ
P.O. DRAWERI
SCHERTZ, TEXAS 78154
REQUEST FOR PURCHASE ORDER
DATE
April 23, 1991
ORDER FROM IlEUYER TO FOR (DEPT.) DATE WANTED
IBM City of Schertz Capital Outlay ) ASAP
(Computer Relate
RBlUElITED BY ("""'I _r _
Steve Simonson, Asst. City Mgr. { r~_'??~
PARTMENT HEAD'S SIGNATURE
IlEIC"PTlOIl UNIT PRICE TOTAL PAICE
Ma i nten an ce Agreement Service:
9 8sl2 PS/2 Color Disolav 10.00ea 90.00
3 8530 PS/2 Mod 30 286 40.00ea 120.00
1 8580 PS/2 Mod 80 20MHZ 160MB HF 40.00ea 40.00
(Invoice #4lM0907 4-12-91)
PURCHASE ORDER TOTAL $250.00
CHARGE TO: CITY OF SCHERTZ
o VEAllAL
o WRITTEN
Steve Simonson
OADEA PLACED BY
67422
APPROVED
~~:;;;/
-
CITY MANAGER
THIS FORM BECOMES A PURCHASE
ORDER ONl V WHEN SIGNED
IV THE CITY MANAGER
ACCOUNT NUM8ER
DELIVER NO MATERIALS OR SUPPLIES
WITHOUT PURCHASE ORDER OR NUMBER
PURCHASE ORDER NUMBER, 216 6 8
~
41M0907 ....
APR. 12, 1991
1
I
PIe.sedkecl6nquirieS.nd('~nc4!to
11!,'I SAN AIfTOO~
1507 LBJ FREEwlY
pnone DALLAS TX 75234
I",""':~' "" -. ~le'
lnvoicedl.le
Page n.;nt+
IBM Acc...'Unt Nu",~
(800 I 288-2793
h'l$UneJA
Im<<elCl
1792834-00
---
----
- - -'--
- ---
- - ---
- - - ---
-----
---.-
CITY OF SCHERTZ
CITY OFFICES
l~OO SCHERTZ PARKWAY
SCHERTZ TX 78154-1634
CITY OF SCHERTZ
CITY OFFICES
1400 SCHERTZ PARKWAY
SCHERTZ TX 78154-1634
C,;~:""'''' ..',<:".."....'"
,._" n:;',l\"'C"
T",'nls.
rAYABlE WITHIN 30 DAYS FROM
INVOICE DATE
PO BOX 660183
DAllAS TX 75266
INVOICE FOR MAINTENANCE AGREEMENT SERVICE
TYPEIDESCll. FROlI
l'tOOEl/SERIAL OATE
THRU
OATE QTY
CliARGES
HINlMUM AnONL
APPL. TAX NET All'JUHT
DISC.r1. AI10UHT EXCLIJIlIHG TAXES
8512 PS/2 COLOR DISPLAY
001 1120493 03/29/91 03/28192
001 1271202 04/04/91 04/03192
001 1271204 04104/91 04103192
001 1271207 04/04/91 04/03/9Z
001 1271208 04/04/91 04/03192
001 1271209 04/04/91 04/03192
001 1271212 04104/91 04/03/92
001 1280336 04/02191 04/01/92
001 1280337 04/02/91 04/01192
10.00
10.00
10.00
10.00
10.00
10.00
10.00
10.00
10.00
10.00
10.00
10.00
10.00
10.00
10.00
10.00
10.00
10.00
~~ lam '-1"
. -'.- ._~
8530 PS/2 HOD 30 286
E31 A581061 04102191 04/01/92
E31 A581091 04/02/91 04/01/92
E31 A581112 04/02191 04/01192
40.00
40.00
40.00
40.00
40.00
40.00
8580 PS/2 HOD 80 20lfiZ 160HB HF
161 23TW358 03/29/91 03/28192
40.00
40.00
TOTALS
250.00
250.00
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IBM HOW PROVIDES COVERAGE FOR NEARLY ALL OEM I/O AND ATTACHMENTS TO IBM PC'S
AND PS/2'S. CONTACT YOUR LOCAL IBM REPRESENTATIVE TO OBTAIN MAINTENANCE
AGREEMENT PROTECTION FOR ALL YOUR PERSONAL COMPUTERS.
8 705
Original Copy
PLEASE PAY THIS Ar~UNT
250.00
Z84O()lM.(i1(REV.1M:5t
. . ....
..
.-.
I
CITY OF SCHERTZ
P.o. DRAWERI
SCHERTZ, TEXAS 78154
REQUEST FOR PURCHASE ORDER
DATE
April 22, 1991
ORDER FADM DELIVER TO FOR (DEPT.) DATE WANTED
IBM City of Schertz See Below ASAP
REQUESTED BY r-.O 0
Steve Simonson, Asst. City M9r. A''t()'7 /
DEPARTMENT HEAD'S SIGNATURE
DESCRIPTION UNIT PRICE TOTAL PPlICE
(Invoice #E465325 4-11-91 )
1 nn1 n nn1 1 ".".. O..;nt".. 2 ,095.00
4 3lsl Model 310 474.00ea 1.896.00
2 3164 110 Asci i Color Display Station 1,022.00ea 2,044.00
Sub- Tota 1 $6,035.00
(Invoi ce #E465864 4-12-91)
4 8550 031 Model 50 Z 1,729.00ea 6,916.00
Sub- Total $6,916.00
PURCHASE ORDER TOTAL $12,951.00
CHARGE TO: CITY OF SCHERTZ
o VERBAL
o WRITTEN
ORDER PLACED BY Steve Simonson
Public Property Contractual
Obligation Escrow Fund City
of Schertz, Texas Seri es ,Jo9091ED
A~
BOOKKEEPER
CITY MANAGER
THIS FORM BECOMES A PURCHASE
ORDER ONLY WHEN SIGNED
BY THE CITY MANAGER
ACCOUNT NUMBER
DELIVER NO MATERIALS OR SUPPLIES
WITHOUT PURCHASE ORDER OR NUMBER
PURCHASE ORDER NUMBER, 216 6 6
~
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IBI1 SAN ANT NEW 8115
:!loa CONVENT
Ph<>'" SAN ANTOlllO TIC 78205
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---
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---.-
(512 J 554-6300
In$I.lIl.',lat
17921134-00/7
hwoiC:t'I{'
CITY OF SCHERTZ
CITY OFFICES
1400 SCHERTZ PARKWAY
SCHERTZ TX 78154-1634
CITY OF SCHERTZ
CITY OFFICES
1400 SCHERTZ PARKWAY
SCHERTZ TX 711154-1634
,-,,~:,""'<:" ,."<",.n,'"
BID AWARD
. .. :~'.1, "1<"-:" :.'
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PAYMENT DUE uroN lNSTALLATION
PO BOX 660183
DAllAS TX 75266
INVOICE FOR PURCHASED EQUIPMENT AND ONE TIME CHARGE PROGRAMS
PRODUCTIl1ODElIDESCRIPTIOH 1811 'lTY. CHARGE OR APPLICABLE TAX NET AI1OLt<T
SERIAL NUHBER ORDER I PURCHASE PRICE DISCOUNT/ 7- AHOUHT EXCLUDING TAXES
CONTRACT NUHSER 0060982
4019 001 lASER PRINTER
00G0579
2QYTPG 1
2,?94.00
899.00Cll
307-
2.095.00
CONTRACT NUHBER 0062425
3151 310 3151 ~El 310 M/3 YR WARRAN
OooDHD8 2QYTNS 1
678.00 204.00Cll 474.00
307-
678.00 204.00CR 474.00
307-
673.00 204. DOC!! 474.00
307-
678.00 ::044 o OCR 474.00
30Z
1.460.00 438.00CR 1,022.00
307-
1.460.CO 438.00CR 1,022.00
:lOZ
8.626.00 Z.591.00CR 6,035.00
00DDHD9
2tlYTHR 1
OODOHFl
2QITh'T 1
00D0HF2
2QYTNQ 1
3164 110 ASCII COLOR DrSPLAY STATION
0014438 2QYTNV 1
0014442
2QYTMl 1
TOTALS
IlUANTITY DISClUIT APPUED
U6
Original Copy
PLEASE PAY THIS AnoUHT
6.035.00
l.8(S.Q004.0t(AEV.tOi8'5I
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E465864
APR. 12. 1991
1
11.1I1 SAN ANT NEW BUS _
:<00 cotl~ENT
PM'" S":'l ANTONIO TX 78205
(S121 554-6300
1"~I.li,..,1 at
IBM A,'C\.'\,..lflt Nur-~
---
----
- ----
- ---
- - ---
- - - ---
--- --
---.-
lny",i".~elo
1792834-0017
CITY OF SCHERTZ
CITY OFFICES
l~OO SCHERTZ PARKWAY
SCHERTZ TX 78154-1634
CITY OF SCHERTZ
CITY OFFICES
1400 SCHERTZ PA~KWAY
SCHERTZ TX 78154-1634
~~"",:..,...<., ,<",',o'n,'"
SIMONSON
:-"..
. :.;."" .~..
Te,"'s
PAYt~NT DUE UPON INSTALLATION
PO BOX 660183
DALLAS TX 75266
INVOICE FOR PURCHASED EQUIPMENT AND ONE TIME CHARGE PROGRAMS
PilOOUCYII1OOEVOESCllIPTlON IBIf QTY. CHARGE (II( APPLICABLE Tll( NET IJ10ltlT
SERIAL HUMBER ORDER' PlJ:CHASE PRICE DISCOUNT! Z AI10UNT EXCLLOIHG TAXES
CONTRACT HUMBER 0029696
8S50 031 I100EL SO Z
7450380 2SHHI1V 1 2.745.00 1.016.0OCR
3T/.
SHIPPED 04/03/91
7450782 2SHf:t1X 1 2.745.00 1.016.0OCR
3T/.
SHIPPED 04/0./91
7451793 2SHIMl 1 2.745.00 1.016.00CR
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SHIPPED 04/03/91
7451873 2SHNlIY 1 2.745.00 1.016.0OCR
3T/.
5IIIPPED 04/03/91
roTAlS 10.980.00 A.064.0OCR
QUAlITITY OISCOLffi" APPLIED
1.n.9.-00
1,72.9.00
1,i29.00
1. iZ9.00
6,916.00
82
Original Copy
PLEASE PAY THIS AKOUHT
6,916.00
_1(REV."'"
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InvoN:t>o.:I..te
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MAR. 29. 1991'
2
1M SAN ANT HE"_.IS
300\. cONVENT
Ph."". SAN AHTOHIO TX 78Z05
E456848
tBM4...'couoIN..,-:><"
---
----
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(51Z I 554-6300
h'''I.l".';~1
1792834-00/7
1<1\'''......10
CITY OF SCHERTZ
CITY OFFIC~S
1400 SCHERTZ PARKWAY
SCHERTZ TX 78154-1614
CITY OF SCHERTZ
CITY OFFICES
1400 SCHERTZ PARKWAY
SCHERTZ TX 78154-1634
~.1I ,,~.' .. ,'. . ,"," ."', t'
BID AWARD
TO!m'"
PAYl1ENT DUE UFOO INSTALLAYIOH
PO BOX 660183
DALLAS TX 75266
INVOICE FOR PURCHASED EQUIPMENT AND ONE TIME CHARGE PROGRAMS
PROOUCTIl1OIlEUDESCRIPTIOH IIltt Qrr. CHARGE OR APPUC.l8LE TAX Hl:T AIt(U{T
SERIAL HUl1IlER ORDER' PUlCHA5E PRICE DISCOUlT/ 7. AI1OlM" EXCLLOIHG TAXES
COHlllACT HUl1&R OOZ9696 (COIITINUED I
851Z 001 pg,-Z COLOR DISPLAT
lZ71Z1Z
ZQYTP8 1
666.00
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419.00
SHIPPED 03.lZ6/91
TOTALS
S.5ZS..00
1.94Z.0OCR
3.586.00
~~rr DISCOUHT APPLIED
140
Original Copy
PLEASE PAY THIS A~UNT
3.586.00
zaewJ)C..()1(REV.1OI85t
.
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E456Mll MAR. 29. 1991"
Page "Ul1lbe,
1
IIllI'SAIl ANT Ik.~ 8U5
JOO'CONVENT
"",.", . SAN 'ANTONIO TX 78205
IBM Accl.,...n. Nu'-:-'>'
---
----
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-----
---.-
1":I~\~~~l' 554-6300
17921134-00/7
hwC'tClf't<,
CITY OF SCHERTZ
CITY OFFICES
1400 SCHERTZ PARKWAY
SCHERTZ TX 781S4-1634
CITY OF SCHERTZ
CITY OFFICES
1400 SCHERTZ PARKWAY
SCHERTZ TX 711154-1634
~"..":.""t" '..l,'r~'n,.'
BIO AWARD
. .".i, ''',''-:~'.
Tt'''n'~
PAYtlENT DUE lO'ON INSTALLATION
POBOX 6601113
DALLAS TX 75266
INVOICE FOR PURCHASED EQUIPMENT AND ONE TIME CHARGE PROGRAMS
PRODUCTIl1llDEl/DESCRIPTION IIllI 'lTY. CHARGE DR AP"LICABlE TAX NET AllDlM"
SERIAL NUI1IlER ORDER' PURCHASE PRICE DISCOUHT/ X AllDlM" EXCllllIHG TAXES
CONTRACT NUHBER 00066J7
5871 PC SOfTWARE: JOX CAP 2QYTPF
0957 DOS J.J r.. 9 1,233.00 J70.3OCR 862.70
6280060 u
30X
3255 REI10TE 5250 El1Ul PRCG Y2. 1 299.00 89.7OCR 209.30
92X0718
30X
5IIIP!'EIl 03/26/91
CONTRACT NUI1IlER 0029696
8512 001 PS/2 COlOR OISPLA Y
1271202 2'lY1llZ 1 666.00 247.00Ol 419.00
3T/.
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1271204 2QYnlT 1 666.00 247.0OCR 419.00
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5IIIPPEO 03/26/91
1271208 2QYTPC 1 666.00 2'17.0OCR 419.00
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5IIIPPED 03/26/91
1271209 2QYTPO 1 666.00 247.0OCR 419.00
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5IIIPPEO 03/26/91
139
CONTI NUED
Original Copy
~1(AEV.t0/85t
..
.
I
CITY OF SCHERTZ
P.o. DRAWERI
SCHERTZ, TEXAS 78154
REQUEST FOR PURCHASE ORDER
DATE
March 25,
1991
ORDER FROM DELIVER TO FOR (DEPT.) DATE WANTED
IBM Ci ty of Schertz See Below ASAP
REOUElTED IV ~/J ,\"
Steve Simonson, Asst. City Mgr. ........
DEPARTMENT Ha-Olg sr~NA'TURE
DElCRIPT10N UNIT PRICE TOTAL PRICE
1 IBM RISC 6000 Model 320 19,B14.00
1 IBM TaDe Drive Back-up Model 7207-001 1,516.00
11; IBM Terminal Model 3151-310 474.00 ea 7,584.00
(Invoice #E442478 3-5-91)
PURCHASE ORDER TOTAL $28,914.00
CHARGE TO: CITY OF SCHERTZ
o VERBAL
o WRlrrEN
ORDER PLACED BY
Steve Simonson
K{ ku~
ACCOUNT NUMBER
Public Property Contractual
Obligation Escrow Fund Ci~Q~EO
of Schertz. Tpxas Series 19Y1
IOOKKEEPEA
CITY MANAOER
THIS FORM BECOMES A PURCHASE
ORDER ONLY WHEN SIGNED
IY THE CITY MANAGER
DELIVER NO MATERIALS OR SUPPLIES
WITHOUT PURCHASE ORDER OR NUMBER
PURCHASE ORDER NUMBER: L 16 3 9
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Page nu~
. I8II SAN ANT !jUl BUS
." 300 CONVENT
Phone SAN ANTONIO . __ 78205
E442478_ MAR.
5. 1991
2
IBM Accourol N.......~
---
----
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= = ==--=
~-=-=-=':'=-
---'-
(512" 554-6300
Inslalledat
In...oicelo
1792834-00/7
CITY OF 5CHERTZ
CITY OFFICES
1400 SCHERTZ PARKWAY
SCHERTZ TX 78154-1634
CITY OF SCHERTZ
CITY OFFICES
1400 SCHERTZ PARKWAY
SCHERTZ TX 78154-1634
l'l,$:,'''','' ,.'."rnl',,"
SID
T~fms
PAYI1EtfT DUE l!I'ON ItI5TALLATION
PO SOX 660183
DALLAS TX 75266
INVOICE FOR PURCHASED EQUIPMENT AND ONE TIME CHARGE PROGRAMS
PROOUCT/l1ODEl./DESCRIPTION 1811 QTY. CHARGE OR APPUCA8LE TAX NET AI100Mr
SERIAL NUl1BER ORDER. PURCHASE PRICE DIsaurr/ Z AI10UNT EXCLlOlING TAXES
CONTRACT NUI1BER 0062425 (CONTINUED)
3151 310 31S1 I100EL 310 W/3 YR WARRAN
00CR~3 2N11G5X 1
678.00
204.00CR
30Z
204.00CR
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204.00CR
307.
474.00
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2Nl1GSW 1
678.00
474.00
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2N11GTP 1
678.00
474.00
TOTALS
38.915.00
la.GOl.OOCR
2:8.'114.00
QUANTITY DISCOUNT APPLIED
225
Original Copy
PLEASE PAY THIS AMOUNT
28,914.00
Z84S(OJ(.01(REV.10'851
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181\ SAN ANT NEW BUS
300 CONVENT
PhO". SAN ANTONIO TX 78205
(5121 554-6300
1",,:,IIl,..lill
CITY Of SCHERTZ
CITY OffICES
1400 SCHERTZ PARKWAY
SCHERTZ TX 78154-1634
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E442478 MAR.
5. 1991
1
IBM Acc0l..,1 Nu",~
---
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---.-
InvOICt'-IQ
1792834-00/7
CITY OF SCHERTZ
CITY OFFICES
1400 SCHERTZ PARKWAY
SCHERTZ TX 78154-1634
Terms
PAYMENT DUE UPON INSTALLATION
PO BOX 660183
DALLAS TX 75266
INVOICE FOR PURCHASED EQUIPMENT AND ONE TIME CHARGE PRGGRAMS
PROOUCTII1OOEVOESCRIPTION 181\ QTY. CHARGE Oil APPLICABLE TAX NET A~T
SERIAL NUl18ER OllOER# PURCHASE PRICE OISCOL>lT/ X AI10lRlT EXCUIIING TAXES
CONTRACT NUNBER 0048301
7012 320 'lIC' RIse SYSTEM/6000
0017742 2NItG5T 1
7207 001 l/4-INCH CART TAPE VRIVE
0018508 2N11GSV 1
CONTRACT NUl18ER 0062425
3151 310 3151 MODEL 310 Wl3 YR MARRAN
o 0CKVll3 2N11GTll 1
OOCKVNl 2N11GTC 1
OOCKVN2 2N!!GTB 1
OOCKVN3 2N11GSY 1
OOCKV!l4 2N11G51 1
OOCRHl\S 2N1fGTH 1
00CRHH6 2NI1GTJ 1
00CRHH7 2NI1GTG 1
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