Resolution 186-1983 1;
-�' Lucien C. Proby, TIFF! Courit
RESOLUTION NO. 186 -1983.
RESOLUTION AUTHORIZING THE CHAIRMAN OF THE BOARD OF
COUNTY COMMISSIONERS OF MONROE COUNTY, FLORIDA, TO
EXECUTE AN AGREEMENT FOR PURCHASE OF IBM MACHINE,
AN INSTALLMENT PAYMENT AGREEMENT (STATE AND LOCAL
GOVERNMENT) AND SUPPLEMENT TO AGREEMENT FOR IBM
LICENSED PROGRAMS BY AND BETWEEN INTERNATIONAL
BUSINESS MACHINES CORPORATION AND MONROE COUNTY,
FLORIDA;:. FOR THE PURCHASE OF ONE (1) IBM DISPLAY-
WRITER AND RELATED EQUIPMENT AND PROGRAMS FOR THE
COUNTY ATTORNEY' S' OFFICE. . .
BE IT RESOLVED BY THE BOARD OF COUNTY COMMISSIONERS OFMONROE
COUNTY, FLORIDA, as follows :
That the Mayor and Chairman of the Board of County Commis-
sioners of Monroe County, Florida, is hereby authorized to execute
an Agreement for Purchase of IBM Machine, and Installment .Payment
Agreement (State and Local Government) and Supplement to Agreement
for IBM Licensed Programs by and between International Business
Machines Corporation and Monroe County, Florida, a copy of same
being attached hereto, for the purchase of one (1) IBM Display-
writer and related equipment and programs for the County Attorney' s
Office.
Passed and adopted by the Board of County Commissioners of
Monroe County, Florida, at a regular meeting of said Board held
on the 10th day of June, A.D. 1983.
BOARD OF COUNTY COMMISSIONERS
OF MONROE COUNTY, FLORIDA
(1 By
r/Chairman
(Seal) ("27
Attest: R LP W ME.,E., CLERK
9-i-Nkkei- • ) P6au b e
Clerk '
APPROVED AS TO FORM-
AND AL SUFFICIENCY.'
BY I -
Attorneys Office
i- c
At11111.
STATE OF FLORIDA
' CONTRACT FOR INSTALLMET SALE AND PURCHASE
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This Contract; made and entered into by and between /tibNAle. e,t, '
6 'iv7/ /5777o, W /
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hereinafter referred to as Buyer, and ' //c— �,r m
hereinafter referred to as Seller, this /0 daY of
y -WC 19 --
WITNESSETH, that whereas Seller offers the Equipment described below for sale
to Buyer and whereas Buyer desires to acquire said Equipment
. by purchase
from Seller, ,
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NOW THEREFORE, for and in recognition ' of the good and valuable consideration
to be exchanged between the parties as hereinafter provided , Seller hereby
agrees' to sell to Buyer and Buyer hereby agrees to purchase from Seller the
C Equipment described below in accord with '
the following terms and conditions.
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Buyer is an Entity of State Government;. or 'an Entity of Local Government
which is a Political Subdivision of State.
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EQU, PMENT: Each unit of the Equipment contemplated to be1sold and purchased
.under this- Contract .shall be separately identified and each shall be referred
to as a Commercial 'Unit. The. phrase ."Connnercial; Unit" shall be defined as
provided in Section 672. 105(6) , Florida Statutes. This Contract including
all attachments hereto constitutes. the sole Contract between Seller and Buyer
for the sale and
purchase of the .Equipment described belovi. All purchase
orders relating to the subject Commercial Unit(s) of Equipment issued by
Bu
yer shall supplement this Contract toHthe extent that the terms of such)
C purchase order are not inconsistent '
with the terms of this contract.
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*DESCRIPTION ! NUMBER OF
OF EQUIPMENT COMMERCIAL UNITS
• UNIT PP,ICE
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*Definitions of Equipment descriptions are attached hereto in Exhibit A, which
is incorporated herein for all purposes.
FPRICE: The price for each Commercial Unit(s) of Equipment shall be .
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separately stated and shall include cost bf delivery F.O.B. Buyer' s
. designated place ,of installation and shall include cost of- installation ;
and Seller' s warranty. , � .
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1 . List Price
2. Less Credits SI,�SS3•$O
(I a. Equity Credit '
b. Trade-In Allowance (Equipment . S _Q
3. Cash Sale Price (Line 1 less Line 2 (a + b) ) S
4. Equipment Placement Charges and Appropriate $ 3 •3• o
Rigging Charges ' $ /744 oo
- '.5. Total Cash Sale Price (Line 3 + Line 4)
6. Cash Down Payment (Optional ) $
a. Down Payment (Optional )
b. Equipment Placement Charges (Same as Line 4) $ 7 .o 0
c. Total Cash Down .Payment -
.7. Cash Price (Principal ) Balance (Line 5 less 6c) $
8. Interest ! •eO 3 2 o
9. Time Balance (Line` 7 and 8 $
. 10. Time Sale, Price (Line 9 + 6c) $ SS• o
o
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Note: There shall be no additional charges due Seller by a Buyer
for Taxes of any f;ind, . Insurance Premiums, .Official Fees or Delivery
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• costs. ,
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PAYMENT:
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Buyer promises toipay the total cash down payment in full , if applicable
within. thirty (30) days of delivery and installation in good working order
in !accordance with then current Seller installation and start up specifi-
cations applicable to each Commercial. Unit purchased hereunder. The total
• balance due for purchase of each Commercial Unit of the Equipment shall be
paid in accordance, with Exhibit B (Payment Schedule) which is incorporated
herein for all purposes. Not withstanding any claim or dispute which may
hereafter arise between Buyer and Seller, Buyer will make all payments
required under this contract when due Buyer hereby covenants to take such
actions as are necessary under the Laws of Florida to plan 'and budget for
receipt of a sufficient 'appropriation of funds to discharge its obligations
to make all payments required under this contract when due.
TITLE '
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Title and ownership of each commercial Unit of the Equipment and any and
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. all ,replacements, substitutions and repairs thereto,. shall pass to Buyer
upon acceptance of the installation as, certified in the Receipt Certificate
(Exhibit" C) , attached and made a part hereof. The Equipment shall remain
personal property and shall not become real property. Buyer will not
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' suffer or permit any lien or encumbrance of any, kind against the Equipment.
As title holder and owner of each Commercial Unit of thelEquipment acquired
hereunder, Buyer shall pay when due any and all ; taxes, asessments , franchise
fees, levies, or other governmental charges lawfully levied against any
such Commercial Unit of the Equipment or its use. Buye
r shall timely
contest the levy of any tax, assessment, franchise fee , levy, or other
governmental charge deemed by. Buyer to be unlawfully levied. It is hereby
acknowledged between the parties' hereto that Buyer considers itself a
• non-taxable entity and not usually and customarily subject to the imposition
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of any tax, assessment, franchise fee; levy or other governmental charge
levied for Buyer' s ownership or use of any Commercial Unit of the. Equipment.
WARRAuTI ES: • ,
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Seller warrants each Commercial Unit to the extent specified in the attached
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Exhibit D which is incorporated herein for all .pu.rposes and which constitutes
. Seller's currently published warranty applicable, to each such Commercial Unit.
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INSURANCE:
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If Buyer is covered under a program of self-insurance, Buyer shall provide
' Seller with a letter from its insuring authority-evidencing the existence
of a continuing self-insurance program insuring the full insurable value of
each Commercial Unit of the Equipment against loss from those fire and other
' hazards which are customarily insured by extended coverage, pursuant to
Section 284.01 of the Florida Statutes, during. the term of this Contract.
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• In such event Buyer shall provide a minimum of ten (10) days ' written • 1 , •
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notice to Seller of any change or cancellation of said self-insurance
program. In the event said self-insurance program is unavailable or
terminated, Buyer agrees to procure and maintain with a carrier authorized
to do business in Florida and acceptable to Seller, which acceptance •
shall not be unreasonably withheld, fire, theft, and extended coverage '
insurance on the Equipment, insuring the full insurable value against
risk of loss or damage, and providing for a minimum of ten (10) days ' '
written notice of change or cancellation to Seller. Buyer shall provide
Seller with Copies of certificates of the insurance carrier or carriers
evidencing such insurance coverage.' This Contract does not provide for
or require insurance coverage for bodily injury and property damage to ,
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others.
DEFAULT:
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Time is. of the essence hereof and .if Buyer shall fail to pay when due any;
installment, or otherwise fail to observe, keep or perform any provision
of this Contract required to be observed, kept, or performed, then Buyer
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. shall be deemed to be in default with respect .to the purchase of each
Commercial Unit of Equipment directly affected by such failure and unless'
Buyer causes such default to be cured within thirty (30) days after receipt
of written notice thereof from Seller, at the expiration of such notice
period the balance of all installment payments due or which will become
due hereunder with respect to the purchase of each such Commercial Unit of
h,
equipment, less unearned interest, shall immediately become due and payable.
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If any of the foregoing occurs, Seller 'shall have all the rights and
remedies of default under Florida; Law, except that Seller shall not (7
be entitled to recover any indirect or consequential damages or loss
resulting 'from Buyer failing to pay an installment to become due with
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respect to any Commercial Unit ,of, Equipment so affected after such
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default has occurred. Should Seller elect to take possession of such
.
Equipment, Buyer shall within sixty (60) days from receipt lof such •
written notice sell , lease or otherwise attempt to dispose for fair
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consideration, which in no event shall be less than the balance of all '
installment payments due or to become due hereunder, each Commercial Unit,
of Equipment so affected, and from the proceeds thereof pay' all remaining ,
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sums , less unearned interest thereon, due Seller under the terms of this '
Contract. In such event, should Buyer fail to so dispose of any Commercial
Unit of Equipment so affected within said sixty (60) day period; Seller .
shall thereupon be entitled to have possession and remove such Equipment
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and. Buyer shall thereupon deliver to Seller unencumbered title thereto..
In the- latter event'Buyer agrees, •at Seller' s prior written. request, to
assemble each Commercial Unit of Equipment so affected and 'make same
available to Seller at the place where each such Commercial' Unit of .
Equipment was installed.
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If Se ler shall fail to transfer to Buyer good and marketable title, free
of liens or encumbrance of any kind whatsoever, for any Commercial Unit of
the Equipment purchased under this Contract, or if Seller shall repudiate .
performance under this Contract, o'r if" Seller shall otherwise fail to
observe, keep, or perform any provision of this Contract required to be
' observed, kept or performed, then Seller shall be 'in default with respect
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only to such Commercial Unit(s) which are directly affected by the default
(7 • or failure of Seller and unless Seller causes such default to be cured
within thirty (30) days after receipt of written notice thereof from
Buyer,' Buyer shall thereupon be possessed of all the rights and remedies
.
of a Buyer in due course .Under the provisions' of the Florida Uniform l
Qommercial Code with respect to the Commercial Unit(s ) directly affected
y such default .of .Seller. The foregoing rights and remedies of Buyer may
be exercised without impairing Buyer's interest in and title to any Commercial
Unit of the Equipment acquired under this Contract and without limitation to
or waiver of any other rights 'or remedies available to Buyer by law.
USE AND LOCATION OF EQUIPMENT: •
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Each Commercial Unit of the Equipment shall be kept at 'its installation
address and shall not be moved without Buyer
Cproviding prior written
notice' thereof to Seller. Buyer shall not use or deal With any Commercial
Unit o.f the Equipment in any manner Which is inconsistent with' the terns
of this Contract, any policy of insurance referred to herein, or any
applicable laws , codes , ordinances and regulations. Buyer shall not allow
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any Commercial Unit of Equipment to be misused, abused, or wasted, or allowed
to deteriorate, except for ordinary wear and tear resulting from its intended
use. Seller shall have the right to inspect any Commercial Unit of the
Equipment at any reasonable time, wherever located. Ifi.any Commercial 'Unit
of the Equipment shall be substantially destroyed or shall be damaged beyond
repair due to any
,� cause whatsoever, except as a result Of any negligent or
willful act or omission attributable to Seller; Seller shall have the right,
upon thirty (30)) days ' prior written notice, to recover from buyer the I
Cbalance of installment pa:ments due or which will . become; due hereunder with
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respect to the purchase of each such Commercial Unit of the Equipment ,
less unearned interest, to the extent that funds are available. Buyer
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will take actions reasonably 'necessary to attempt .to secure subsequent
appropriations to pay said remaining unpaid balance, less unearned
interest. Buyer shall bear all risk of loss or damage; to the Equipment,
except as a result of any negligent or willfUl act or omission attributable
• to Seller.
.
PREPAYMENT:
• At any time during the term .of this Contract,' Buyer shall be entitled -to
fully satisfy all of its obligations with respect to each Commercial Unit
of the Equipment purchased under this Contract upon making payment to '
Seller of the balance of all installments due or which will become due
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hereunder with respect to each such Commercial Unit of Equipment, by i
paying the amount of remaining principle shown in the Prepayment column `
shown in Exhibit B, less any interest then unearned ; provided , however!,
that .an administrative fee of fifty ;(55O) dollars shalljbe charged buyer
by Seller on any such prepayment made' within twelve (12) months from the
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effective date hereof.
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ASSIGNMENT:
Buyer shall give Seller not less than thirty (30) days ':'prior written i
notice of any proposed resale, ' lease, or assignment df any Commercial
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Unit of the Equipnent. acquired 'during ' the term' of this Contract or any ;
assignment hereof. Such noticd shall identify' each Commercial Unit of ;
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. ' the Equipment to be resold, leased orassigned, and the date upon which
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such sale, lease, or assignment is to be effective. If any Commercial
Unit of the Equipment is to be resold, leased, or assigned, Buyer, at •
Seller's option, will pay to Seller within' thirty (30) days from the
effective date thereof, the total unpaid balance of installments .due or
' which will become due hereunder, with respect to each such Commercial
Unit of Equipment less any interest then unearned.
Seller may assign any part or all of its interests under', this Contract
. upon prior written notice to Buyer and, in the event of such assignment,
Buyer shall thereafter perform all the promises provided in this Contract
• to be performed by Buyer to such assignee or transferee. , However, no such
assignment or transfer shall impair Seller' s obligation to provide Buyer
with the performance provided in this' Contract and, in tfie event of any •
such assignment or transfer Buyer' s rights to assert any 'claim or defenses
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it may have under this contract shall not be impaired as against Seller,
its assignee or transferee.
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NOTICES:
•
• It/is agreed that thirty (30) calendar days shall constitute reasonable ,
notice for the exercise of any right held by•either party to this contract.
•
All notices or other comniunications 'required or; permitted to be given
pursuant to this Contract and by law shall be in writing.,and shall be
valid and sufficient if delivered by hand• or dispatched through the U.S. •
Postal Service by Registered or Certified first-class snail , Return Receipt
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Requested, postage prepaid to the address(es) set forth first herein , or
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such other addresses as either party slhall notify the other in writing. C
No additional notice need be given to the installation address(es) . Notices
dispatched through the U.S. Postal Service by Registered' or Certified .
first-class mail , Return Receipt Requested shall be given upon the date'
. received by addressee, as indicated in the executed Return Receipt. . •
In the event any notice, which has been dispatched in accordance with this
paragraph, is refused acceptance of delivery by the party to whom addressed,
notice shall be deemed to have been given as of the date of the first
attempt by the U. S. Postal Service to'ideliver same.
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GENERAL: •
No delay or omission to exercise any right, power or remedy accruing to ,
Seller or Buyer upon breach or default by either party under this Contract C
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. shall impair any such right, power, or remedy of Seller or Buyer; nor
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shall any such delay or omission be construed as a waiver of any such
breach or default,. or any similar breach or default thereafter occurring;
nor shall any .waiver of a single breach or default be deemed a waiver of
any such subsequent breach or default. All waivers must be in writing. ' •
. This Contract shall be deemed to have been executed and entered into within
the State of Florida and any dispute arising hereunder shall be governed
by the laws of Florida. Any provision of this Contract in violation of
the laws of the State of Florida shall be ineffective to the extent of such
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violation, without invalidating.' the remaining provisions of this Contract.
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The Section headings used herein are for convenience only and shall
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( have no significance in the interpretation of this Contract.
If delivery of the Equipment is not Made at the time of, the execution
of this Contract, Seller may insert the serial number and other marks
used by Seller to identify the Equipment on this Contract.
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FUNDING:
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Buyer, as an entity of Government, is subject to the a
ppropriation of
funds by its legislative body in an amount sufficient to allow continuation
of its performance in accordance with the terms and conditions of this
• Contract for each and every fiscal year following the fiscal year in
' which this Contract is executed and entered • into and for which this Contract
shall remain in effect. Buyer shall , upon receipt of notice that sufficient
(I ' ' funds are not available to continue its full and faithful performance under
this Contract, provide prompt written notice to Seller of such event and
effective thirty (30) days after the giving of ,such notice, or upon the'
expiration of the period of time for which funds were appropriated, whichever
occurs first, be. thereafter released of all further obligations in any way
related to such Equipment. In such event, Buyer shall within sixty (60)
. 11
days thereafter sell , lease, or' otherai se dispose for fair consideration, '
which in no event shall be less than the balance of all installment payments
due or which will become due hereunder, each Commercial Unit(s) of the
Equipment so affected and from the proceeds thereof pay to Seller all
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remaining sums due under the terms of this Contract, pursuant to Exhibit B,
less any interest then unearned; or return to Seller, atlBuyer' s expense, .
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{ '. each Commercial Unit(s) of the Equipment so affected, . as follows:
(i ) Buyer shall deliver unencumbered title of the Equipment to Seller,
(7
and (ii) the Equipment returned to Seller shall be in a ood condition,
reasonable wear and tear excepted.
. In the event Buyer returns any of the Equipment for failure of appropriations,
eller shall retain all sums paid by Buyer under this Contract with respect
;to such Equipment. -However, if during such sixty (60) day period Buyer
arranges to transfer its duties and obligations to Seller .under this Contract
to another agehcy in the State of Florida orhocal governmental agency in
the State of Florida capable of demonstrating' the capacity to continue the
Contract, the termination of Buyer' s obligations as aforesaid shall be null
and infeffective. Seller shall not be liable: for any costs or expenses
. j resulting from such transfer of duties and obligations.'
.
Thereafter, the successor agency shall be responsible for performing a'11 .
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the obligations of Buyer described in this Contract.
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-SELLER OR ASSIGNEE LIABLE FOR OWN ACTS. The Buyer expressly recognizes
that Seller or its Assignee shall not be held liable to: Purchaser except
for the acts or omissions of their respective officers, employees , or
agents, and shall not be otherwise liable to Purchaser for damages sustained
by Purchaser as a result of Purchaser' s use or possession of. the Equipment.
DISCLAIMER OF WARRANTIES BY ASSIGNEE. Assignee is not a manufacturer Of
the Equipment or a Dealer in similar Equipment, does not inspect the
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Equipment prior to delivery to ;Purchaser and has not made and does not •
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make any representation, warranty, or covenant, expressed or imp-, ied,
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with respect to the Equipment. The Seller shall remain directly liable
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to Purchaser under its warranty. Buyer shall look directly to Seller in
the event of any claim for breach of such warranty. ' '
ENTIRE CONTRACT:
This Contract for Installment Sale and Purchase constitutes one contract
between Buyer and Seller with reference to the purchase of each Commercial
• Unit of the Equipment described above, which contractl supersedes any -and
all prior written. or oral agreements. There are no covenants , conditions,
Or agreements between the parties except as set forthlin this Contract.
This Contract may only be amended b'y a written instrument executed by both
parties.
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EXHIBIT A _
SCHEDULE OF EQUIPMENT
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. CThe Equipment is as follows:
. • i
; PURCHASE NET
MACHINE/MODEL SERIAL N0. DESCRIPTION PURCHA
PRICE ACCRUALS PRICE
02 A5ie.-0 y • .14A-/Ye/Y.1,47/9e be,d ;3:792-S0
joy Itg ..sG•v4 Scufs%•✓ , i
. ' G.3 e/ 7 be'-ft ArskA-7)r' i/Jeir j /9e2. 0 0
bd..FC Act-vs-try
S2IR/�90 1- 4os' /te,�Tr`� 27 740.00
i 7P' �f/E�`�' rs % 9/.o o
1 • 7ff7 /9,e,,4,-/-12 ,�, e.4/y a®9.00 .
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A Ti e.✓ 6,4 cf . 7 . o 0
D S n/.t� � � � 'i/
:Buyer hereby certifies that the description of the personal property
. henceforth above constitutes an accurate account of the Equipment covered
by this Contract.
Buyer
By:
. Title:
• Date.
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EXHIBIT B C ! • .
PAYMENT SCHEDULE
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Loves-J//9�o.cNf
THE BUYER IS ' � �D � �d`u�/TY 1
• • THE PURCHASE PRICE IS $ /1/72?-41-O .; •
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THE FIRST PAYMENT IS DUE / /
. SUCCEEDING PAYMENTS ARE DUE MONTHLY THEREAFTER. •
AMOUNT 1 . AMOUNT
• PAYMENT AMOUNT OF ; CREDITED CREDITED PREPAY•IENT
DATE PAYMENT TO INTEREST TO PRINCIPAL SCHED LE
S: $ • $
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/i70,e7;2.47,0,✓ C,�!sfj v Le
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I TOTALS •
$ $
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.EXHIBIT C
RECEIPT CE?TITIC/1TE •
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The undersigned Seller represents to Buyer that the Equipment has been
delivered and installed in good working order in accordance with new-current
Seller installation and start-up specifications applicable to each Commercial
Unit purchased hereunder. j
The undersigned Buyer under that certain Contract dated
19 -------------
, entered into for the purpose of providing financing for Equipment
having an original value in the amount of S
hereby
acknowledges receipt in good conditilon of all the Equipment described in said
Contract this day� of i , • , 19i .
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Buyer
By:
Title:
Date:
Seller •
By:
Title.
. Date:
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EXHIBIT D
1.11
SELLER' S WARRANTY/INCORPORATION OF CONTRACTS
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The following provisions , and the attached or ref ,renced IBM
Agreements and/or State Contracts ,;
- are Exhibit D and are incorporated in and made a hart of tflis contract.
1 . The fourth sentence of the Section entitled , "Eauipment" , on .
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page 1 of the State of Florida Contract for Installment Sale and Purchase :
(herein Installment Sale Contract) , is amended by substituting the following
• sentence: '"Purchase orders relating to the subject Commercial Unit(s)
of Equipment issued by the Buyer may supplement this Contract to the
extent that the• purchase order incorporates the terms of a contract
• signed by Buyer and Seller. "
• 1. The Pay
ment Schedule (Exhibit' B) will be prepared; in .purchase
Cof installed equipment situations With the understanding and agreement
that the required down payment' must be included with the contract for •
the purchase of installed equipment to be effective.
. 3. The Limitation of Remedy Section attached hereto is incorporated : .
in -1this Exhibit D. As such, it amends the following language: the '
language on page 7 of the Installment Sale Contract in the Section
entitled, "Default" , which begins with the words , " . . •buyer shall
thereupon be, possessed:. ." and runs to the end of the Section; and the
Section entitled, "Seller or Ass'i onee Liable' for OWn Acts" , ''on pane 12
of the Installment Sale Contract: The Section entitled, "Li'mitation
of Remedies" , in the' Agreement fo"r Purchase of IBM ;Machines 'which is
attached as part of the Exhibit D is replaced by the Limitation of
Remedy Section attached hereto.
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ATTACHMENT TO EXHIBIT D
LIMITATION OF REMEDIES 1 1
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IBM' s entire liability and the State' s exclusive remedy shall be as follows :
In all situations involving performance or non-performance of machines
'or programming furnished under this Agreement, the State' s remedy is
(a) the adjustment or repair of the machine or replacement of its parts
by IBM, or, at IBM' s option, .replacement of the machine or correction
of programming errors, or '(b) if, after repeated efforts , IBM is unable
to install .the machine or 'a replacement machine, model upgrade or 'feature
in good working order, or to restore it to good working order, or to make
programming operate, all as warranted, the State shall be entitled to
recover actual damages to the limits set forth in this Special Condition.
For any other claim concerning performance or non-performance by IBM
pursuant to, or in any other way related to the subject matter of, this
Agreement or any order under this Agreement, the State shall be entitled
to recover actual damages to the limits set forth in this Special Condition.
IBM' s liability for damaaes to the State for any cause whatsoever,' and
regardless of the form Of .action, whether :in contract or in tort including
• negligence, shall be limited to the greater of S100,000 or the purcnase
price stated herein for the specific machines that caused the damages or
that •are the subject matter of or are directly related to the cause of
action. The foregoing limitation of liability will ; not apply to (a) the
payment 'of cost and damage awards referred to in the Special Condition
entitled "Patent and Copyright Indemnity," or to (b) claims for reprocurement
costs or the cost of cover pursuant to Department of General Services
• General Regulation 13A. 1 .06 (4) entitled "Default" (effective date 2-26-30) , C
or to (c) claims for personal injury or damage to real or personal property
caused by IBri' s tortious conduct.
! IBM shall hold and save the State harmless: for anyand all suits and judcments
against the State for personal injury or damage to real or personal property
• caused by IBM' s tortious conduct in the• perforrnince of this Agreement provided
that (a) the State promptly notifies IBi•1 in writing :of any claim, and (b) IBM
shall be given the Opportunity; 'at its option, to participate and associate
. with the State in the control , defense and' trial of any claim and any related
settlement negotiations and, provided further, that with respect to any claim,
. i ,, or portion thereof, for which IBh1 agrees at the initiation of such : claim that
IBM shall save and hold the State harmless', IBM shall have the sole control
of the defense, trial and any related settlement negotiations , and (c) the
State fully cooperates with IBi•1 in the defense of any claim.
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In no event, however, will IBM beliable' for (a) any damages caused by the
State' s failure to perform- the State' s responsibilities , or for (b) any lost
profits or other consequential damages, even if IBM has been advised of the
possibility of such damages , or for (c) any claim against the State by any
other party, except as provided in the hold harmless provision of the preceding
paragraph of this Special Condition and except as provided in the Special
Condition and except as provided in the Special Condition entitled , "Patent and
Copyright .Indemnity" , or for (d) any damages caused .by performance or non-
perforamnce .of machines or programming located outside the United States or
Puerto Rico.
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EXHIBIT D --
Page Two
4.1 It is the intent; of the parties that the language in
the Section entitled, "Fundina" , means that the Buyer has a failure
of funding out only at its fiscal year anniversary. , In addition,
' the parties agree that the Buyerjl right to a sixty day period in
which to dispose of the equipment', in the "Funding" and "Default"
Sections, applies only to disposal to other units of the State of
Florida government, by sale or assumption of the installment sale;
and that no productive use of the equipment will be made during ,
.
that period without payment:
.
•
•
•
-19- :
NOTICE TO BUYER
c
1 . Do not sign contract before you read it or if it contains any blank paces .
2. You are entitled to an exact copy of the contract you sign.
3. Under the law you have the right to pay' due and under certain circumstances avoid ithef n payment of fthe addit fullt amount
interest. ional
.
BUYER ACKNOWLEDGES RECEIPT OF A TRUE COPY HEREOF
REFERRED TO. AND THE AGREEMENT HEREIN
IN WITNESS WHEREOF, the; Parti es• hereto have caused this Agreement to be
executed by their respective representatives hereunto duly authorized all as
of the day and year first above written.
' 4 ,
(SEAL)
Buyer
ATTEST:
9Vg-e-,44— //4
RALPH V. INIIITE, CLERK
By: ',0, 47
0). Ll .0 . Ti : c,•h o r+v1AN,
. (SEAL)
. t----.),Y 4'/CA.'/:'/- l•'i---/
Seller .
ATTEST:
j
By: 1
Title: '
.
•
•
•
• -20- .
/ ;
•
International Business Machines Corporation Monk, New York 10504
• •
Agreement for IBM Licensed Programs
• Name and Address of Customer. • Agreement No.:
•
altSs ///�/9M� ei, c f" •
IBM Branch'Office No.: ���
‘&2"7L �-r AS - ��, r l
/ Customer No.: 10/Zy 7 9 (i)
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IBM Branch Office Addre s: �
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International Business Machines Corporation (IBM) and the Customer agree that, when this Agreement is signed by the
Customer and accepted by IBM, the following terms and conditions will apply to any IBM licensed program materials
offered under this Agreement when ordered by the Customer and the order is accepted as provided herein. Under these
terms and conditions, IBM will 1) furnish licensed programs to the Customer, 2) furnish licensed optional materials in
' support of such licensed programs, 3)grant the Customer a nontransferable and nonexclusive license in the United States
• and Puerto Rico to use the licensed program materials, and 4) provide program services, all as described herein. The
Customer agrees with respect to the.licensed programs to accept the responsibility for 1) their selection to achieve the
Customer's intended results, 2) their installation,3) their use,and 4)the results obtained therefrom.The Customer also has
.the responsibility.for the selection and use of,and results obtained from,any other programs, programming, equipment or
services used with the licensed programs.
Specific licensed' program materials may be ordered under this Agreement by 1) a Supplement to this Agreement
• (Supplement) signed by the Customer, 2) a written order, specifying the licensed program materials and the designated
machine, signed by the Customer, or 3) such other ordering procedure as shall be designated by IBM for the specific
licensed program materials.IBM will accept any such order under this Agreement by providing the Customer a Supplement
specifying the supplemental terms applicable to such licensed program materials. Upon receipt of the Supplement by the
Customer, IBM shall thereby grant a nontransferable and nonexclusive license in the United States and Puerto Rico for
• licensed program materials shall be granted subject to the terms and conditions of this Agreement. Use of the licensed
program materials or the first payment of charges due hereunder, whichever first occurs following receipt of the
. _ Supplement, will constitute the Customer's acceptance of the supplemental terms specified in the Supplement.
Any terms which this Agreement states are to be specified by IBM for a licensed program and/or related licensed optional
materials will be stated in the Supplement for that licensed program.
DEFINITIONS : • . i TERM '
The term"licensed program"in this Agreement shall mean a licensed data This Agreement is effective from the date on which it is accepted by IBM
processing program consisting of a series of instructions or statements in and will remain in effect until terminated by the Customer upon one month's
machine readable form, and/or any licensed data base consisting of a (written notice,or by IBM as set forth in this section.This Agreement may be
systematized collection of data in machine readable form,and any related terminated by the Customer only when all licensed program materials
licensed materials such as. but not limited to,flow charts,logic diagrams, licensed hereunder are discontinued and all licensed program materials
• • and listings provided for use in connection with the licensed data have been returned or destroyed. ,
processing program.
The term"licensed optional materials"in this Agreement shall mean any Licenses granted under this Agreement may be discontinued by the
machine readable or printed material not included in the licensed program Customer upon one month's written notice,except that,during the testing
. and which is designated by IBM as available under license to Customers '' period,the Customer may discontinue any license at any time upon written
who have licensed the program to which such optional materials relate. notice effective immediately.
The term "licensed program materials" in this Agreement shall means IBM:may discontinue any license or terminate this Agreement upon •
both the licensed program and the licensed optional materials as defined written notice effective immediately if the Customer tails to comply with any
above. of the terms and conditions of this Agreement
The.term "restricted materials" in this Agreement shall mean any
. licensed program materials which are labeled "Restricted Materials of Notice of discontinuance of:any or all licenses shall not be considered
IBM." notice of termination of this Agreement unless specifically stated.
The term"use"in this Agreement shall mean copying any portion of the
licensed program materials into a machine and/or transmitting them to a . Notice of discontinuance of any licensed program shall be notice of
machine for processing of the machine instructions, statements or data discontinuance of the license and of all licensed program materials
contained in such materials. : !obtained in connection therewith.
THE ADDITIONAL TERMS AND CONDITIONS ON PAGES 2 THROUGH 4 ARE PART OFTHIS 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 AND ITS APPLICABLE SUPPLEMENTS ARE THE COMPLETE AND EXCLUSIVE STATEMENT OF THE
AGREEMENT BETWEEN THE PARTIES, EXCEPT AS PROVIDED IN THE SECTION ENTITLED "IBM EDUCATION COURSES."SUPERSEDING ALL
PROPOSALS OR PRIOR AGREEMENTS, ORAL OR WRITTEN,AND ALL OTHER COMMUNICATIONS BETWEEN THE PARTIES RELATING TO THE
- • . SUBJECT MATTER OF THIS AGREEMENT. •
n ! r �ct Accepted by. r ,, A/A9 Cf /t/—f.- . /fJ / / /y �/j"
International'Business Machines Corporation
•
. COBy auma zec q^azure 9y tP� a,yn .
- k°d;i ii La� e (0 .1 n-�3
Name iTvoe a a•,nt) Data Na ,7 car?unit V !fin .0�I 1 ADate
Z125-3358-0 W.: "t'tl (. N•:n p•+o all communtianona 10 IBM al na Branco Omc@ unleaa elOwS to MO co Pry. , ., ,.r �_,1J v ; I.
•
:. ...,.
. �. • R+
LICENSE (Basic License)may be obtained for a DSLO charge.When ordering additional
Each licens6 granted under this Agreement authorizes the Customer to: licenses for such a licensed program,the Customer must designate whether
a) use the licensed program materials in machine readable form on the an additional Basic or DSLO License is requested.For each DSLO License,the
machine or machines(hereinafter referred to as"machine")designated in Customer will:
an applicable Supplement for such licensed program materials and in 1) copy those licensed program materials previously distributed in machine
conjunction therewith to store the licensed program materials in.transmit readable form to the Customer by IBM under the Basic License and use
them through, or display them on, units associated with such designated such copies on the machine designated in the Supplement:
machine; 2) provide problem documentation to IBM through the location of the Basic
• b) utilize the licensed program materials in printed form in support of the use License;
of the licensed program;and/or 3) at IBM's request,recreate any problems at the location of the Basic License,
' c) copy or translate the licensed program materials in machine readable form if Local Service or Local Assistance as specified by IBM is available for the
into any machine readable or printed form to provide sufficient copies to Basic License; and
support the Customer's use of the licensed program as authorized under 4) distribute to, install and test on the DSLO designated machine any new
• this Agreement. Licensed program materials provided by IBM in printed release, correction or bypass provided by IBM to the Basic License
form,microfiche or other non-machine readable form may not be copied. designated machine.
Additional copies maybe obtained under license from IBM at the charges Program services and the warrant
y,g g if any,for the licensed program will be
then in effect provided for DSLO Licenses only through the Basic License location and there
' With respect to restricted materials. the authorizations granted under the will be no testing period for the DSLO Licenses.
' preceding paragrapns•of this section are limited solely to the following Unless the Custumer designates another Basic License,notice of discontin-
• purposes: uance of a Basic License shall be notice of discontinuance of all DSLO
• a) making modifications to the Customer's products and/or programs so that licenses for that Basic License.
' they will function with the licensed programs to which the restricted
• materials apply; CHARGES
b) making modifications, subject to the.provisions of the section entitled The charges applicable to each licensed program will be specified by IBM and
"Permission to Modify,"to the licensed programs to which the restricted will consist of a one-time charge,an upgrade charge,periodic charges,and
materials apply;and/or any initial charge and/or any process charge.
c) assisting the Customer in problem determination,problem source identifi- Periodic charges,which may be monthly,quarterly,semi-annual or annual,
cation and/or problem resolution activities associated with the use of the will continue until the licensed program is discontinued.However,for certain
licensed programs to which the restricted materials apply. licensed programs.IBM may specify a consecutive number of payments after
A separate license is required for each machine on which any licensed which further periodic charges will be waived.
program materials will be used,except as provided in the subsections entitled For certain licensed programs,IBM may designate one or more replacement
"Temporary License Transfer.""Installation License"and"Location License." licensed programs.When a licensed program is discontinued and replaced by
For any licensed program that is a data base, the license granted in this the Customer with an IBM designated replacement licensed program an
section is further limited to permit access to such data base exclusively by the upgrade charge as specified by IBM will apply.
Customer.Except as provided in the section entitled"Protection and Security Licensed optional materials may be subject to a charge as specified by IBM.
of Licensed Program Materials."the Customer shall not make or permit any Any additional charges for program services for licensed programs will beat
manner of access to any form of such data base,or part thereof.for the purpose IBM's then applicable hourly service rates and minimum charges and such
of making available to any other person any data contained in such data base. services will be provided under the terms and conditions of this Agreement
The Customer shall not use, print, copy, translate or display the licensed unless provided under separate written agreement signed by the Customer
program materials, in whole or in part, unless expressly authorized in this and IBM.
Agreement. Commencement and Invoicing of Charges
The Customer shall not reverse assemble or reverse compile the licensed Periodic charges will commence on the day,Monday through Friday,following
programs in whole or in part. I the end of the testing
period,or 10 days after shipment of the licensed program
Temporary License Transfer • by IBM if there is no testing period,except as set forth below in this subsection.
The Customer is authorized to transfer the license to and use the licensed Monthly charges fora partial month's use will be prorated based on a tnirry-day
program materials on: r month. Other periodic charges will not be prorated and are not refundable in
1) a backup machine when the designated machine or an associated unit whole or in part. Periodic charges will be invoiced in advance.
required for use of the licensed program is temporarily inoperable until Unless otherwise specified by IBM, one-time charges, initial charges,
operable status is restored and processing on the backup machine is up
grade charges and licensed optional materials charges will be due on the
completed;or day.Monday through Friday,following the end of the testing period,or 10 days
2) another machine for assembly or compilation of the licensed program after shipment of the licensed program materials by IBM if there is no testing
materials if the designated machine and its associated units do not provide period or if such period has expired, except as set forth below in this
the configuration required for assembly or compilation. subsection.
Installation License For additional licenses for which the Customer has made copies pursuant to
When IBM specifies "Installation License Applies" the Customer is also the subsection entitled"Additional Licenses"and for'which there is no testing
• authorized to use the licensed program materials on any other machine in the period, periodic charges will commence and other charges will be due upon
same installation as the designated machine.For purposes of this Agreement, the Effective Date for Additional License designated in the Supplement.
"same installation" shall mean a single room or contiguous rooms unless Process charges will be due upon receipt by the Customer of the licensed
otherwise agreed to in writing by IBM. I program materials to which such charges apply and are not refundable even if
Location License 1 the Customer discontinues the licensed program prior to or during the testing
When IBM specifies "Location License Applies" the Customer is also +period.>
Payment will be made as stated in the invoice.
authorized to use the licensed program materials on any other machine in the
same location as the designated machine. For purposes of this Agreement. Applicable Taxes
'same location"shall mean a single physical Customer location designated by In addition to the charges due under this Agreement,the Customer agrees to
tingle mailing address and contained within a single building unless pay amounts equal to any taxes resulting from this Agreement,or any activities
;•-erwise agreed to in writingbyIBM.
j hereunder,exclusive of taxes based on IBM's net income.
_ ,inge in 0esignated Machine I Price Changes
',.., Customer may notify IBM of the Customer's intention to change the Periodic charges are subject to change by IBM upon three months'written
,:sinnation ci the machine on which licensed program materials are to be notice to the Customer.Any changes in periodic charges become effective on
used. ine ch.inge of designation will be effective upon the date set forth in the
the firstday the Period which commences on or alter the effective date form enttleu "Confirmation of Change in Designated Machine" furnished to specified in the notice.
the.Customer by IBM. i ! Initial charges.one-time charges,process or upgradeoharges,and charges
Additional Licenses • for licensed optional materials are subject to change without prior notice
Each additional license for licensed program materials already licensed by the except that sucn charges shall not be increased if, prior to the date of the
Customer under this Agreement must be ordered as described herein. notice, 1) the licensed program materials had been shipped by IBM.or 2)the
For additional licenses, in lieu of distribution from IBM,'the Customer may Customer had copied licensed program materials pursuant to the subsection
elect to copy those licensed program materials previously distributed to that entitled"Additional Licenses."In addition,if the Customer's written order was
Customer by IBM in machine readable form. The Customer may make sucn received by IBM prior to the announcement of such increase in charges,such
copy upon receipt of a Supplement issued by IBM which designates the charges shall not be increased if, within one month after the date of notice.
Effective Date for Additional License requested by the Customer. The testing shipment of the licensed program materials occurs or the Customer copies
period.if any, for such additional license will commence on the Effective Date licensed program materials pursuant to the subsection entitled "Additional
for Additional License.Permission to copy granted in this subsection does not Licenses." . . . . . . . .._. .. . _- -.-....-..._
apply!n.Iiconcod prp am-material-3.pco.,sad-by-lBM-+r4-pr+riva-lorm----11-eherges--are-,nereasraforany i.cenoed p,og,am,,,ato,aa.tr.L,uscuinrr
For certain licensed programs. IBM may offer the Distributed Systems may discontinue them in accordance with the provisions of tnis Agreement:
License Option(OSLO) under wnich licenses in addition to the initial license otherwise,the new charges will become effective.
Page 2 of 4
SHIPMENT Support Center is established for a license program and a problem occurs
• The Estimated Shipment Date for licensed programs will be specified by IBM. which the Customer believes is related to the use of a licensed program,the
'However,IBM does no.t represent or warrant that Such shipment date will be, Customer will contact the Support Center and will perform appropriate
met. problem definition activities and remedial actions, as prescribed by the
IBM will notify the Customer of the type of program storage media required Support Center.prior to any dispatch of an IBM representative.IBM also offers
for shipment. Unless returnable or disposable media are used, the program other services through Support Centers with or without charge,as applicable.
storage media must be provided by the Customer or ordered from IBM at the Local Service—When Local Service is specified and a problem occurs
applicable charge.Except when otherwise specified by IBM,licensed program which the Customer determines is caused by the use of a licensed program
materials will be shipped to the Customer without shipping charge.Any special and the diagnosis of the IBM representative indicates the problem is caused by
shipment requested by the Customer will be at Customer expense. a defect in the unaltered portion of a current release of the licensed program.
the IBM representative will perform the following problem resolution activities:
LICENSED PROGRAM TESTING • 1) attempt to correct or bypass the defect by providing the Customer with
For each licensed program IBM will specify the testing period,if any,during correction information issued by Central Service, if available:or
which the licensed program will be made available for nonproductive use.The 2) submit documentation to Central Service,if specified as availaole:and,in
• purpose of the testing period is to permit the Customer to determine whether any event
the licensed program functions selected by the Customer operate together and 3) if the licensed program is inoperable,make a reasonable attempt to resolve
to assist the Customer in determining whether the licensed program meets the the problem oy applying a local fix or providing a bypass.
Customer's requirements.The testing period will begin 10 days after shipment Local Assistance—When Local Assistance is specified and the Customer
oof the the licensed
program
e grae eydIBM or on the Effective Date for Additional License, encounters a problem,wnicn the Customer's diagnosis indicates is caused by
a defect in the unaltered portion of a current release of the licensed program.
The Customer may discontinue the licensed program,upon written notice the Customer may request IBM assistance in resolving the problem. Such
effective immediately, at any time during the testing period, in which event assistance,if requested,will be provided by an IBM representative and may be
periodic charges. one-time charges, initial charges, upgrade charges and subject to the availability of personnel. This assistance may include, but not
licensed optional materials charges will not be due.However,process charges extend beyond, the following problem resolution activities:
will be payable.Unless such notice of discontinuance is given,the Customer 1) attempting to correct or bypass the defect by providing the Customer with
will be deemed,at the end of the testing period,to have decided to retain the correction information issued by Central Service. if available; or
licensed program under the provisions of this Agreement. 2) assisting the Customer with preparing documentation for submission to
In the event that the licensed program is used for productive purposes Central Service, if specified as available:and, in any event
during the testing period,the Customer will notify IBM and the testing period 3) if the licensed program is inoperable, making a reasonable attempt to
will be deemed to have ended as of the date upon which the Customer resolve the problem by applying a local fix or providing a bypass.
commences productive use. Program Services Duration
Subsequent releases, if any, of a licensed program which have the same For each licensed program the types of program service provided will be
program number will be made available to the Customer for productive use specified as available:
•
and/or test on the designated machine while the Customer continues
productive use of a previous release on that machine and pays applicable 1) until discontinued ed calendarb IBM with a minimum of six months written notice:or
charges therefor..The Customer has the right to decide whether to install any 2) untilr ga designated date; or
such releases or continue use of a previous release having given due regard to 3) during the testing numbereriod; or
the provisions of the section entitled "Program Services." 4) for a designateddiscontinues of months for each license. In the event the
In the event of discontinuance of a licensed program and subsequent forCustomer a licensed program and subsequently reorders it
reordering of the same licensed program for the same installation(or location, License the same ins) theselation (oriclocation, when IBM has specified "Location
the
when IBM has specified"Location License Applies"),there will be no testing mber Applies"),fmonths
the service suchhtion then in effect ou ly provided.
by the
period for the subsequent license. number of months for which service was previously prov ded.
When a subsequent release of a licensed program wnich has the same
RISK OF LOSS • program number becomes available,IBM may discontinue program services
If licensed program materials are lost or damaged during shipment from IBM, for any or all prior releases by notice effective on the date stated therein.
. IBM will replace such licensed program materials and program storage media For any licensed program,IBM snail have the right to cnarge for any of the
at no additional charge to the Customer. • foregoing program services to the extent they are not specified as provided
If licensed program materials are lost or damaged while in the possession of without additional charge.Other types of program services may be specified
the Customer, IBM will replace such licensed program materials at the by IBM.
applicable charges, if any, for processing, distribution, and/or program IBM shall also have the right to charg"e for any additional effort which results
storage media. from providing program services for an altered licensed program or for a
EARLY SHIPMENT OF LICENSED PRINTED MATERIALS -release which is not current.
When the Customer has received a Supplement issued by IBM for a generally IBM does not guarantee service results or represent or warrant that all errors
available licensed program,licensed program materials which are provided by or program defects will be corrected.
IBM in printed form will,upon Customer request,be shipped to the Customer PERMISSION TO MODIFY i
• up to six months prior to shipment of the machine readable portion of the The Customer may modify any licensed program materials in machine
licensed program materials. The licensed printed materials, thus provided, readable form and/or merge such materials into,other program material to
may,not be copied in any form for any purpose. form an updated work for the Customer's own use; provided that, upon
If the Customer does not requesi that the machine readable portion of the discontinuance of the licensed program, the licensed program materials will
licensed program materials be shipped within six months following the date of be completely removed from the updated work and dealt with under this
shipment of the licensed printed materials, the Customer will discontinue the Agreement as if permission to modify or merge had never been granted.Any
license and return or destroy the printed materials. portion of the licensed program materials included in such an updated work
. The charge for early shipment of licensed printed-materials will consist of will continue to be subject to all terms of this Agreement.
any applicable process charges. , •PROTECTION AND SECURITY OF LICENSED PROGRAM MATERIALS
Program services, if any, will not be provided prior to shipment of the The Customer will take appropriate action, by instruction, agreement or
machine readable portion of the licensed program materials. ; otherwise, with any persons permitted access to licensed program materials
PROGRAM SERVICES so as to enable the Customer to satisfy the Customer's obligation under this
For each licensed program, IBM will specifythe Agreement.
types and durations of All copies of licensed program materials provided by IBM or made by the
program services,if any,to be provided without additional charge for a current Customer including translations or compilations or partial copies within
release of the licensed program. Program services will commence at the modifications. derivative works, and updated works are the property of IBM
beginning of the licensed program testing period or.if there is no testing period and may not be distributed by the Customer to any other persons.including
for that license,when periodic charges commence or other charges are due. other licensees of the licensed program,without IBM's prior written consent.
Program services
Specified Operating wiIEnv l be ronmlent.ect to the provisions of the section entitled The Customer will reproduce and include the cooyrignt notice on any such
copies made by the Customer in accordance with the copyright instructions
Types of Service provided by IBM.
Central Service—When Central Service is specified one or more service The Customer will maintain records of the number and location of ail copies
locations will be designated which will accept documentation, in a format" of licensed program materials and will notify IBM in writing if the original or any
prescribed by IBM, indicating that a problem is caused by a defect in the copy of the licensed program materials will be kept at an installation (or
licensed program. Central Service will respond to a defect in the unaltered location,when IBM has specified"Location License Applies")other than that of
portion of a current release of the licensed program by issuing: defect the machine designated in the applicable Supplement.
correction information such as correction documentation,corrected code.or The Customer will insure,prior to disposing of any media.that any licensed
notice of availability of corrected code: or a restriction or a bypass. Unless program materials contained thereon have been erasea.or otherwise de-
Local Service is also specified for the licensed program,the Customer will be stroyed.
responsible for the preparation and submission of documentation to Central The Customer will not provide or otherwise make ava iable any licensed
Service, program materials in any form without IBM's prior writte consent except to
IBM may also establish a center(Support Center)to provide the Customer Customer employees or lBM employees,or to other perso s during me period
with •lelepnone assistance in problem diagnosis and resolution. When a such other persons are on the Customer s premises,for p rposes specifically
i
Page 3 01 4
related(0 the Customer's authorized use of the licensed program. the claim provided that IBM ma Td Rf—icipate in the defense and/or
LICENSED PROGRAM SPECIFICATIONS agrees to any settlement of such c i -. ,
Fru each licensed program which is warranted.IBM will publish,at the time that The Customer agrees to allow IBM. at IBM's option and expense.it such•
licensed program becomes generally available,a document entitled"Licensed claim has occurred or in IBM's judgment is likely to occur,to procure me right
Program Specifications." Such Licensed Program Specifications may be for the Customer to continue using the licensed program materials or to
updated by IBM from time to time and such updates may constitute a change in replace or to modify them so that they become non-infringing:and.if neither of
specifications. the foregoing alternatives is available on terms which are reasonable in IBM's
WARRANTY judgmentupon written reouest.the Customer wilt return the licensed program
Each Licensed program which is specified in the Supplement as warranted will materials to IBM:and,for licensed programs whose total charges are luny paid.
conform,when shipped to the Customer,to the Licensed Program Specilica- the Customer may receive a credit as established by IBM.
Lions which are In effect for that licensed program at that time.provided the IBM shall have no obligation with respect to any such claim based upon the
licensed program is properly used in a Specified Operating Environment.If the Customer s mOdifi0atiOn of the licensed program materials or their COmbina-
Customer believes there is a defect in a licensed program such that it does not lion,operation or use with data or programs not furnished by IBM or in other
meet its Licensed Program Specifications.the Customer must notify IBM while Than the Specified Operating Environment This section states IBM's entire
program services are available for the program.IBM does not warrant that the obligation l0 the Customer regarding:nlringemenl or the like.
functions contained In a licensed program will meet the Customer's require- LIMITATION OF REMEDIES
merits or will operate in the combinations which may be selected for use by the IBM's entire liability and the Customer's exclusive remedy shall be as follows:
Customer,or that the operation of the licensed program will be uninterrupted In all situations involving performance or nonperformance of licensed
Or error free or that all program defects will be corrected. programs furnished under this Agreement. the Customers remedy is I)the
All other licensed programs will be distributed on an"As Is"basis without correction by IBM of licensed program defects.or 2)if,after repeated efforts.
warranty of any kind either express or implied. IBM is unable to make the licensed program operate as warranted. the
THE FOREGOING WARRANTIES ARE IN LIEU OF ALL OTHER WAR- Customer shall be entitled to recover actual damages to the limits set forth in
PANTIES.EXPRESS OR IMPLIED,INCLUDING.BUT NOT LIMITED TO,THE this section.
IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A For any other claim concerning performance or nonperformance by IBM
PARTICULAR PURPOSE. pursuant to,or in any other way related to.the subject matter of this Agreement
SPECIFIED OPERATING ENVIRONMENT and any Supplement hereto.the Customer shall be entitled to recover actual
Each licensed program is designed to operate on one or more IBM machine damages to the limits set forth in this section.
types and. in most instances. in conjunction with other IBM equipment and IBM's liability for damages to the Customer for any cause whatsoever,and
regardless of the form of action, whether in contract or in tort including
programs.The Licensed Program Specifications for each warranted licensed
program will state the environment in which the licensed program is designed negligence.shall be limited to the greater of 525 000 or the one-time charge
to operate.For licensed programs distributed on an"As Is"basis.the Specified paid or, or any charges which would be due for twelve months use of. the
Operating Environment will be stated in a notice of availability of the licensed licensed program that caused the damages or that is the subject matter of,or is
directly related to.the cause of action Such charges shall be those in effect
program. when the cause Of action arose antl shall include any initial or process charges
Program services for a licensed program used in other than a Specified paid to IBM. This limitation of liability will not apply to claims for copyright
Operating Environment are subject to limitations occasioned by the differ- ;nlringementto IBM. or for personal ilia r or damage to real or tangible personal
ences between the Specified Operating Environment and the Customer's property caused by IBM's negligence.
operating environment and by Me extent of the local IBM representatives In no event will IBM be liable for any damages arising from performance or
knowledge of the Customer's equipment and programs. Such program nonperformance of the licensed program during the licensed program testing
services will be subject to the following conditions:
1) When performing Local Service or Local Assistance. IBM's obligation is period or for any damages caused by the Customers failure to perform the
limited to having the local IBM representative apply a reasonable effort to Customer's responsibilities. or IOr any lost O'Oiits. lost savings or other
consequential damages.even if IBM has been advised of the possibility of such
provide program services as described in the applicable portion of the:
section entitled"Program Services."Furthermore.the local IBM represen- damages.or for any claim against the Customer by any other parry.except as
tative will only be expected to operate a machine designated in the provided in the section entitled "Patents and Copyrights."
Supplement if it was marketed or manufactured by IBM.IBM will have the IBM EDUCATION COURSES
right to charge for any additional effort required to perform these program The Customer agrees that all of the terms and conditions applicable to
services. restricted materials contained in this Agreement shall be incorporated into the
2) Central Service will only respond to defects which will occur when Central Agreement between the Customer and IBM entitled"Terms and Conaitions for
Service operates the licensed program in a Specified Operating Environ- IBM Classes and Education Materials'and apply to materials. regardless of
ment form,labeled-Restricted Materials of IBM"when distributed to the Customer in
RETURN OR DESTRUCTION OF LICENSED PROGRAM MATERIALS conjunction with an IBM Education Course.
Within one month atter the date of discontinuance of any license granted ADDITIONAL PRODUCTS AND SERVICES
hereunder.unless the requirement is waived by IBM.the Customer will furnish In addition to the licensed program materials and program services provided
to IBM a completed form entitled"IBM Licensed Program Certificate of Return under this Agreement IBM offers other products and services at separate
or Destruction"certifying that through the Customer's best effort,and to the charges under applicable written IBM agreements. IBM and the Customer
best of the Customer's knowledge.the original and all copies of the licensed agree that such products and services cannot be the subject of an oral
program materials received from IBM or made in connection with such license agreement
have been returned to IBM or destroyed. This requirement will apply to all GENERAL
copies in any form including translations or compilations or partial copies This Agreement is not assignable:none of the licenses granted hereunder nor
within modifications,derivative works.and updated works,whether partial or any of the licensed program materials or copies thereof may be sublicensed.
Complete.and whether or not modified or merged into other program materials assigned or transferred by the Customer without the prior written consent of
as authorized herein.However,upon prior written authorization from IBM.the IBM.Any attempt t0 sublicense.assign or transfer any of the rights.duties or
Customer may retain a copy for archival purposes only. obligations under this Agreement is void.
The requirement to return or destroy wilt apply to a licensed data base:it will Licensed program materials furnished under this Agreement are to be used
not apply to individual pieces of data obtained by the Customer from such data only on machines located in the United States and Puerto Rico.
base and which constitute a minor portion of such data base. The terms of this Agreement may be modified by IBM upon three months'
When the Customer has licensed a new version of a licensed program, written notice to the Customer,except that any modifications of the terms and
which carries a different program number,and discontinues the prior version. conditions which relate specifically to termination of this Agreement or
the Customer may retain the prior version of the licensed program for a period discontinuance of licenses granted under this Agreement as provided in the
not to exceed three months following its date of discontinuance.to be used section entitled"Term"stall be effective only as to licensed program materials
only if a defect in the new version prevents its use. During this period.the designated in a Supplement issued by IBM after the date of such notice.
Customer will pay only the applicable charges for the new version of the Modifications shall become effective unless the Customer terminates this
licensed program.Within one month following this three-month period.unless Agreement or discontinues any applicable licenses before the effective date
the reouirement is waived by IBM.the Customer will furnish IBM a completed thereof.Otherwise.the Agreement or any Supplement can only be modified by
form entitled"IBM Licensed Program Certificate of Return or Destruction"for a written agreement duly signed by persons authorized to sign agreements on
the prior version as set forth above. behalf of the Customer and IBM.and variance from or addition to the terms aria
PATENTS AND COPYRIGHTS conditions of this Agreement and any Supplement in any Customer purchase
IBM will,at its expense.defend the Customer against any claim that licensed order or other written notification wail be of no effect.
program materials supplied hereunder infringe a catent or copyright in the IBM is not responsible for failure to fulfill its Obligations under this Agreement
United States or Puerto Rico and.subject to the limitation of liability set forth in due to causes beyond its control
the section entitled"Limitation of Remedies."IBM will pay all costs,damages No action.regardless of form.arising out of this Agreement may be brought
and attorneys fees that a court finally awards as a result of such claim. To by either party 1 j in the case of an action arising out of breach of the provisions
ouatify for such defense and payment,the Customer must: of the section entitled"Protection and Security of Licensed Program Materi•
1) give IBM prompt written notice of any such claim:and als."more than six years after such cause of action has arisen,2)in the case Of
2) allow IBM to control.and fully cooperate with IBM in.the defense and all an action for nonpayment.more than two years from the date the last payment
related settlement negotiations. However,if the damages attributable to a was due. or 3) in the case of any other action.more than Iwo years after the
claim of infringement of a patent in the United States or Puerto Rico may cause of action has arisen.
exceee' ' `''•N thg C.i.c••im.-•••'av ei'-'•0 defend against The Agreement will be onverned by the laws of the State 0f New York.
Page 4 of 4
International Business Machines Corporation Armonk, New Y..rk 10504 Supplement to Agreement for IBM Licensed Progr:ms
• Reference Refers ce
Name and Address of Customer: IBM Branch Office Address: IBM Branch Office No.: Customer No.: Agreement No.: . Amendm t No:
I.
The following Licensed Program Materials are hereby made subject to the referenced Agreement for IBM Licensed Programs:I
Date Prepared:
See the reverse side for
i
clarification of column headings. j
. o
N
o g
Estimated S S y d i
. Licensed Program/ Designated Machine Type/Duration Shipment Date ° o ; . " . E.- m :I t5®
Features/ Type/Serial or of or Effective Date for E m s o ^ T c m S o A c. a t E..;
v. Optional Materials Description Plant Order Number Program Service Additional License Charges F n o 0 0 ° c .5i rr f p p g s t��a zc�o �m ill °
•
.. -• %, ...14.72327-71---;e, 171 . -----4-: /eilek. ' . i' 776-70 O . . • ! 'I
, , . . 4:i'
d )
. . A. /z72,5 _ec .
.., — 0,725 - . .
\.)
s/ : _ - ... -. -.-
•
•
•
i ,
• NOTE: THE ADDITIONAL TERMS AND CONDITIONS, AS SET FORTH ON THE REVERSE SIDE, ARE EFFECTIVE ONLY IF TWO CONDITIONS ARE MET: 1) TI:IE•
• REFERENCED AGREEMENT FOR IBM LICENSED PROGRAMS IS ACCEPTED BY IBM PRIOR TO FEBRUARY 8, 1983; AND 2) THE RESTRICTED MATERIALS COLUMN
ABOVE IS MARKED "YES." IF SO, THIS SUPPLEMENT MUST BE SIGNED BY THE CUSTOMER AND IBM. SUCH ADDITIONAL TERMS AND CONDITIONS ARE AL., 0
' • INCORPORATED IN THE REFERENCED AGREEMENT ACCEPTED BY IBM ON OR AFTER FEBRUARY 8, 1983.
THE CUSTOMER ACKNOWLEDGES THAT THE CUSTOMER HAS READ THE REFERENCED AGREEMENT, REFERENCED . ' • •
I
AMENDMENT,AND THIS SUPPLEMENT,UNDERSTANDS THEM,AND AGREES TO : BOUND BY THEIR TERMS ND CONDITIONS.
Accepted by.
- S e r-- _' / -6 r,' •. P/Y
International Business Machines Corporatloti- _"-- _- - - _-- --
• ustomer
By B 411P1V
. .
Authorized Signature . a--�M �_�etur -. e note above. I•
e . y.r. . . , - r �.- �a � 101 . . l
Page of /
2125-3J59-0 Name(type a Print) • Onto Na .r a Pr:• - (�,, PiZell{k,
'• UM 025 PRT(0I/83) - Please send all communicahona to IBM al ifs Branch Office unless advisad I.6 conhary. ,- -- ,• .,•• .. .. .. .. .. . .. .. .
I. ".i llll\il::l _ Ill,1(-'l ll.)l ,IICC IJJI IIVM JGV IIVIV i. ili( ., :,at-Il iit:LU IJIVI-I ill-,Ei t)i'i•_1 111_r:1i P.1,I rii=:dUh1VIJ INANbt-tH
` 2. AFTER TYPING EACH SECTION,DONS FROM SECTION I ONLY. OF THE SIGNATURE APPEARS LEGIBLY ON THE REMAINING COPIES.
3. .LEAVE CARBONS IN SECTION 2 IN ALL SIGNATURES AFFIXED.
CUSTOMER'S NAME MUST AGREE,SECTIONS 1 AND2. 111111
i .
Internationa Business Machines Corporation Armonk, New York
10504
•
. Agreement for Purchase of IBM Machines
Branch Office Address: clS /9�/�rme,/,; l .G� Agreement No.:
�G2�L � <<� •
7 /`/�I ' Branch Office No.:�,3j r
•
Name and Address of Customer: Customer No.: ec,/ ,1 79 CO)
•
. Ar� 'eE v / g Av AtP4,-t-/ii-
•
• ...,WO / ,fi�� � e5 % .
. . ice`/ GJLSij /,1•
• 3,30 �o
International Business Machines Corporation (IBM) and the Customer agree that the following terms and conditions will apply'to any Customer
written order accepted by IBM for the purchase under this'Agreement of iBM machines,features,model conversions,machine elements or accessories. •
Under these terms and conditions, as described herein, iBM will 1)sell machines(including their features)to the Customer,2)furnish, as available,
programming and programming services,3)sell features and model conversions to the Customer for installation or reinstallation on an IBM machine'
designated by type and serial number,4)sell machine elements and accessories to the Customer,and 5)provide warranty service,as applicable.
1 The term "Machines"will be used herein to refer to machines and/or their features,model conversions,machine elements and accessories unless
• the context requires individual reference. Machines are those on-order to be installed,as described herein,or which are installed under an iBM lease
or rental agreement with the Customer.Features include additions.and removals.Model conversions include upgrades and downgrades.
The Customer agrees to accept the Machines, programming;programming services and warranty service under the terms and conditions of this
Agreement.The Customer further agrees,with respect to the Machines and programming,to accept responsibility for 1)their selection to achieve the
Customer's intended results,2)their use,and 3)the'results obtained therefrom.The Customer also has the responsibility for the selection and use of,
and results obtained from,any other equipment,programs or services used with the Machines and programming.
Specific Machines become subject to this Agreement when.a Supplement to Agreement for Purchase of IBM Machines(Supplement)is signed by
• the Customer and IBM.The Supplement must be signed by the Customer and received by iBM on or before the Date of Installation for on-order
Machines or the Effective Date of Purchase for installed Machines.
PRICES AND PAYMENT . SHIPMENT
Prices for each Machine will be stated in the Supplement and do not IBM will schedule each on-order Machine in accordance with IBM's
include any applicable destination charges or taxes.Payment in full for applicable shipment sequence, confirm the Customer's schedule in
each on-order Machine shall he due on the Date of Installation and,for writing and amend it as necessary. Prior to shipment, IBM will make
installed Machines, on the Effective Date of Purchase; unless an IBM reasonable accommodation to a delay requested by the Customer.
Installment Payment Agreement has been signed by iBM and the ' By agreement between IBM and the,Customer, changes in the con-
Customer: • . figuration of Machines may be made prior to the date of shipment.
•
TAXES DESTINATION CHARGES
In addition to the prices stated in the Supplement, the Customer
Destination charges for each on-order Machine from a designated
agrees to pay amounts equal to any taxes resulting from this
. Agreement,or any activities hereunder,exclusive of taxe's based on net iBM location, and any rigging charges,will be paid by the Customer in
accordance with IBM's then current shipping and billing practices.
income. The Customer shall bear any personal property •taxes
assessable on on-order Machines on or after delivery to the carrier or, The Customer will prepay charges for shipping Repair Center
for installed Machines,on or after the Effective Date of Purchase. Service Machines to an IBM Repair Center. IBM will prepay return
shipping charges from the IBM Repair Center to locations within the
TITLE . United States and Puerto Rico.
Provided the. Supplement is signed by iBM, title passes to the PRICE PROTECTION PERIOD
Customer 1)for each on-order Machine.on the date of shipment from
_IBM or the date of receipt of the Supplement by IBM,a hichever is later, Prices for on-order Machines shall be IBM's generally available prices
and 2)for each installed Machine,on the Effective Date of Purchase. and shall he subject to all price increases, except that increases
effective during the three months immediately prior to the date of
• SF.CURITYINTT'REST Machine shipment shall not he applicable if the Customer's written
•IBM reserves a purchase money security interest in each Machine, order was received by IBM prior to the announcement of the price
This interest will be satisfied by payment in full hereunder or under an• increase. In the event that a price increase is applicable to any such
IBM Installment Payment Agreement and, where applicable, by the
Machine, the Customer may cancel the order for that Machine upon
written' to IBM within one month of notification of the price
return to IBM by the Customer of parts in respect to feature additions or
model conversions that involve the removal of parts which become the increase;otherwise.,the higher price shall be effective.
property of IBM. A copy of this Agreement and/or the applicable If IBM's generally available price for any on-order Machine upon the
Supplement may be filed in order to perfect IBM's security interest. Date of Installation shall be lower than the price for such Machine
stated in the applicable Supplement, the Customer shall have the
. RISK.OF LOSS OR DAMAGE . benefit of such lower price.The term "IBM's generally available price"
• does not include prices for sales of Machines under•terms and
During the period on-order Machines are in transit or in possession conditions other than those in this Agreement.
of the Customer,up to and including the Date of Installation, IBM and Prices for installed Machines stated in the applicable Supplement
its insurers,if any,relieve the Customer of responsibility for all risks of are subject to change up' to and including the Efl'r1-Iivl• Day of
loss of or damage to the Machines except for loss or damage caused by Purchase, subject to any limitations described in ar,'I ' '
nuclear reaction; nuclear radiation or radioactive contamination for IBM agreement. '
which the Customer is legally liable. Thereafter, all risks of loss of or
damage to such Machines shall be on the Customer. PROGRAMMING
All risks of loss of or damage to installed Machines shall he on the •
Customer after the Effective Date of Purchase. The term "programming" as used in this Agreement shall mean
in addition, the Customer is responsible for all risks of loss of or such programming as IBM may make generally available, without
d.,,, ,. It--- r,,7,, ;,, MM•,•lri; . ,b ,' .1 ' '. _ it•I, ,t, L,. M-1-- , . ,fir 1, ,!.,rL,! I„ 0,,- C,
. I�. I•., Ir I1c1r1171rr
11111
•
•
or that the Machines' operation pursuant•to a current release and Copyrights," or to claims for personal injury or damage to real
modification-level of any programming supplied by iBM infringes a U.S. property or tangible personal property caused by IBM's negligence.
patent, and IBM will pay resulting costs, damages and attorney's fees In no event will IBM be liable for any damages caused by the
finally awarded,provided that: Customer's failure to perform the Customer's responsibilities, or for
a)the Customer promptly notifies iBM in writing of the claim;and • any lost profits or savings or other consequential damages,regardless
b)IntI has sole-control of the defense and all related settlement of the form of action, whether in contract or in tort including
negotiations. negligence, even if IBM has been advised of the possibility of such
IBM's obligation under this Section is conditioned on the damages, or for any claim against the Customer by any other party,
Customer's agreement that if the Machines, or the operation thereof, except as provided in the Section entitled "Patents and Copyrights,"
or programming,becomes, or in IBM's opinion is likely to become, the or for any damages caused by performance or non-performance of
subject of such a claim, the Customer will permit IBM,at its option and Machines or programming located outside the United States or Puerto
expense,either to procure the right for the Customer to continue using . Rico,nor will IBM be liable for loss of funds contained in,dispensed by
the Machines or programming or to replace or modify the same so that or associated with,any Machine under this Agreement.
they become non-infringing;and if neither of the foregoing alternatives .
is available on terms which are reasonable in IBM's judgment; the GENERAL .
Customer will return the Machines or programming on written request This Agreement is not assignable without the prior ivritten consent
by iBM. IBM agrees to grant the Customer a credit for returned of IBM.Any attempt to assign any of the rights,duties or obligations of
Machines as depreciated. The depreciation shall be an equal amount this Agreement without such consent is void.
per year over the life of the Machines as established by iBM. IBM may, upon written notice, modify the terms and conditions of
IBM has no liability for any claim based upon the combination, • this Agreement.Any such modification will apply on the effective date
• operation or use of any.Machines or programming supplied hereunder specified in the notice to all Supplements which are signed by the
with equipment or data not supplied by IBM,or based upon alteration of Customer and iBM on or after the date of notice. Otherwise, this
the Machines or modification of any programming supplied hereunder. Agreement can only be modified"by a written agreement duly signed by
IBM has no liability for any claim based upon the combination, persons authorized to sign agreements on behalf of the Customer and
operation or use of any Machines or programming supplied hereunder of iBM,and variance from or addition to the terms and conditions of
with any program other than or in addition to programming supplied this Agreement in any order or other written notification from the
. by iBM if such claim would have been avoided by use of another . Customer will be of no effect.
program whether or not capable of achieving the same results. If any provision or-provisions of this Agreement shall be held to be
• The foregoing states the entire obligation of-iBM with respect to invalid,' illegal or unenforceable, the validity, legality and enforce-
infringement of patents and copyrights. ability of the remaining provisions shall not in any way be affected or
LIMITATION OF REMEDIES impaired thereby.
IBM is not responsible for failure to fulfill its obligations under this
IBM's entire liability and the Customer's'exclusive remedy shall be Agreement due to causes beyond its control or to provide any services
as follows: hereunder for Machines or programming located outside the United
In all situations involving performance or• non-performance of States or Puerto Rico.
Machines or programming furnished under this Agreement,. the No action, regardless of form,arising out of this Agreement may be
Customer's remedy is 1) the adjustment or repair of the Machine or . brought by either party more than two years after the cause of-action
replacement of its parts by IBM,or, at IBM's option,replacement of the has arisen,or,in the case of an action for non-payment,more than two
Machine, or correction of programming errors, or 2)if, after repeated years from the date the last payment was due.
efforts, IBM is unable to install the Machine or a replacement Machine This Agreement is governed by the laws of the State of New York.
in good working order, or to restore it to good working order, or to THE CUSTOMER ACKNOWLEDGES THAT THE
make programming operate, all.as warranted, the Customer shall he CUSTOMER HAS READ THIS AGREEMENT, UNDER-
entitled to recover actual damages to the limits set forth in this Section. STANDS IT, AND AGREES TO BE BOUND BY ITS TERMS
For any other claim concerning performance or non-performance by AND CONDITIONS.FURTHER,THE CUSTOMER AGREES
IBM pursuant to, or in any other way related to the subject matter of, THAT THIS AGREEMENT, TOGETHER WITH ANY
this Agreement or any order under this Agreement,the Customer shall OTHER APPLICABLE IBM AGREEMENTS, CERTIFICA-
be entitled to recover actual damages to the limits set forth in this TIONS, AMENDMENTS AND SUPPLEMENTS AND ANY
Section. EXHIBITS OR ATTACHMENTS THERETO, REFEREN-
IBM's liability for damages to the Customer for any cause CING THIS AGREEMENT OR EXPRESSLY MADE A PART
whatsoever,and regardless of the form of action,whether in contract or HEREOF THAT ARE DULY SIGNED BY THE PARTIES
in tort including negligence,shall be limited to the greater of$100,000 WILL BE THE COMPLETE AND EXCLUSIVE STATEMENT
or the purchase price stated in the applicable Supplement for the OF THE AGREEMENT BETWEEN THE PARTIES,SUPER-
specific Machines that caused the damages or that are the subject SEDING ALL PROPOSALS OR PRiOR AGREEMENTS,
matter of, or are directly related to, the cause of action.The foregoing ORAL OR \VRITTEN, AND ALL OTHER COMMUNICA-
. limitation of liability will not apply to the payment of costs, damages •TIONS BETWEEN THE PARTIES RELATING TO THE
and att'orney's fees referred to in the Section entitled "Patents and SUBJECT MATTER OF TiIIs AGREEMENT.
Received by IBM at
Branch Office Name/Number
By • . •
Manager's Signature •
•
Manager's Name(Type or Print) • Date -•
.
•
Accepted by: �L/
•
International Business Machines Corporation i �6it ,e d'd^��•
'�'• :!:ter..
Bya:l
Authorized Signature Authorized Signature
1. :',f,AlIAI E f,EC ION:i 1 AND.i i il' I. 10143, 1 .:.i •,:r. •,,:;I:Fii.I U 0111.:'.,'i•..i:in,, ; .:: ,'1;;:I.ii III( t,i,HRON rRANSFER OF
2. AFTER TYPING EACH SECTION,DBONs FROM SECTIONS 1 AND2 ONLY. THE SIGNATURE APPEARS LEGIBLY ON THE REMAINING COPIES.
3.• LEAVE CARBONS IN SECTION 3 I L ALL SIGNATURES AFFIXED. • IIIIII
CUSTOMER'S NAME MUST AGREE,SECTIONS 1 AND 3.
International Business Machines Corporation • Armonk, New York 10504
•
Installment Payment Agreement
(State and Local Government.) .
•
Branch Office Address/ . Agreement No.: .
p�•�,a /////4/Wgieg d?"2-L/---
/J pi/./ 3,4 /63r AP/4' Branch Office No.: 6 °
('� •
(` Z Customer No.: /G%,,F / LLJ)
•
Name and Address of Customer •
. ,�`fe /see LO �v%{/v d/ 1cf,/ //024/E' .
,21-6 e2‘1/1/4 „ --e .-g-r- • .
. 1%//�/z,=s p/�, . .
33
c` •
This Installment Payment Agreement supplements and amends Agreement No. ,dated
• 19 ,between International Business Machines Corporation(IBM)and the above-named Customer with respect to the following
IBM machines and/or their model upgrades and features(hereinafter called machines)referred to in said Agreement:
Type Model/Feature. Description . .Quantity Unit Price Amount
..�CP0 /91 • (6`�* dKe/16 / '/f / . "/ed- va
3eo , .5" 2i�i._ i
i�/s�� �//b� 2` / . �‘ Q�,�
e 330 �� �i�/�7/z'4CiG%' rLyesP.92h I 3. p Q
‘,3de/a, ;. d1i.IL /rk 7 I •l boa ®o
,5- /y��9Q/ 9 W,-,,4t/4/i2-Te7 / 7�50 c
/',2G % 7 i A f4 1 J v/icy /k j-�f� f • �_g-�•O 0
'7�C.`O 0 -- ;7cL7 744 /)£-/aI!.'Nb(L-1 I / s-a•-&a
, )e)0 %9 7 'At-1,✓72-- dg...6'/ • /
TOTAL. / /s?3,•3- e Q
Terms and Conditions
f/ '
1. Cash Price(if this were a cash sale) • $ / (� r�g,j• .2j
2. Cash Down Payment 1 8 008' %'
3. Unpaid Cash Price(Item 1 minus Item 2) $ /33 c 3�-6 3
4. Time Price Differential(Finance Charge on Item 3).Time,P�rrice Differential consists of , / -y
'interest at an annual interest rate of %/Gd $ `f?/' l 7 •
5. Contract Time Balance(Sum of Items 3 and 4) $. /e L7 A�• a2c
6. State and Local Taxes,if Applicable(Computed on Cash Price from Line 1) • $
7. Total Cash Payment(Sum of Items 2 and 6) •
8. Total Time Sale Price(Sum of Items 5 and 7) •$ /Vl7,Y,..>7•6 7
r
1111111
The Customer promises to pay in full the Total Cash Payment con- Customer's Covenants
sisting of the Down Payment and State and Local Taxes(if applicable) •
(a)upon the Date of Installation of the machines or(b)with respect to The Customer agrees that: (a) it will not create, assume, or volun-
installed machines, on the Effective Date of Purchase, and to pay the tarily suffer to exist,without giving IBM at least 15 calendar days prior
Contract Time Balance in consecutive Periodic Payments including written notice, any mortgage, pledge, encumbrance, security interest,
Finance Charge for the Fiscal Periods as set forth below: lien or charge of any kind upon the machines,or any of them;(b)it will
keep the machines in good repair and operating condition; (c) it will
PAYMENT PLAN I pay promptly all taxes and other charges when levied or assessed upon
• the machines,or their operation or use,or upon IBM in connection with
Periodic Payment Finance Charge this Installment Payment Agreement (exclusive of taxes based on net
Fiscal (Annual) (Included in income);and(d)it will promptly satisfy all liens against the machines.
Period (Biennial) Payment) The Customer further agrees to procure and maintain fire insurance
with extended coverage against loss, theft,damage to or destruction of
the machines for the full insurable value thereof for the duration of this 1 •
Installment Payment Agreement, the policy for such insurance being
endorsed to show loss payable to IBM and assigns as respective interests
2 may appear. Upon request a certificate of such insurance will be fur-
- nished to IBM or assigns. Any proceeds received directly by IBM under
such insurance shall be credited to the payment required from the
t 3 Customer pursuant to the Section entitled"Destruction of Machines."
4 Destruction of Machines
•
In the event that any.of the machines shall be lost,stolen,irreparably
5 damaged or destroyed or otherwise rendered permanently unfit for use
from any cause whatsoever(such occurrences being hereinafter called
Casualty Occurrences) prior to the payment in full of the Total Time
6 Sale Price,to the extent permitted by law the Customer shall promptly
• pay to IBM a sum equal to the aggregate Casualty Value of such
PAYMENT PLAN II machines.Any money so paid shall be applied,on the installment date
•
next following receipt by IBM of such payment, to reduce installments
Total Finance thereafter falling due so that such installments represent only the
Periodic Payment , Charge for payments due for the remaining machines.
(Total of Monthly Fiscal Period The Casualty Value of each machine suffering a Casualty Oc-
Fiscal Payments for Monthly (Included in currence shall be the sum of the balances of Unpaid Cash Price and
Period Fiscal Period) Payment Payments) Time Price Differential unpaid at the time of such Casualty Oc-
currence and attributed to such machine,such Time Price Differential
1 7e q.), .,2j / being adjusted by IBM to reflect the shorter payment period.
(� Defaults
2 / 0/7F;�7) //lD,Z 7 Any one or more of the following are events of default: (a) the
Customer shall fail to pay in full any sum payable by the Customer
3 when due hereunder following IBM's written notice of such failure, ex-
"7��, r� / cept as provided for in the Section entitled "Funding"; (b) the
�� � Customer shall fail to obtain insurance as required in this Installment
4 1 d+I 72.2 IIII Payment Agreement;(c)the Customer shall,for more than 30 days after
/ • ‘gt,. ‘ IBM shall have demanded in writing performance or observance thereof,
fail to comply with any other term of this Installment Payment
5 / 02 7GP-S //G r' Agreement;(d)any insolvency proceedings of any character,voluntary
�` e‹, or involuntary,shall be instituted by or against the Customer;or(e)the
6 ? 72 g� !/j ' "J '� C�i• Customer shall make an assignment for the benefit of creditors.
Remedies
The Periodic Payment for Period 1 is due on the first business day If an event of default shall have occurred, IBM or assigns may, to the
of the month following the Date of Installation or the Effective Date extent permitted by law:(1)recover the balance of amounts due hereun-
of Purchase, and the Periodic Payments for Periods 2 through der; (2) enter any premises where the machines may be and take
are due on the first business day of each succeeding Fiscal possession of them, or render them unusable, and retain all prior
Period. If Payment Plan I has been chosen,payments must be made in payments as partial compensation for their use and depreciation;(3)if
full on the due dates. If Payment Plan II has been chosen, payments Customer has failed to keep the machines in good repair and operating
must be made in equal consecutive monthly installments beginning on condition,restore the machines to good repair and operating condition
the due dates and continuing on the corresponding day of each month at Customer's expense for actual time and materials expended by IBM
of the Fiscal Period until fully paid. Payments include Finance.Charge at IBM's then current charges; (4) sell the machines, after at least 15
in the appropriate amount indicated above. days' notice before the date of any intended public sale or the date af-
The Customer having been offered the choice of purchasing at the ter which any private sale or other disposition of the mtchines is to be
foregoing Cash Price(plus applicable State and Local Taxes)or at the made, with or without the machines at the sale, at which sale IBM or
Total Time Sale Price has elected to purchase at such Total Time Sale assigns may purchase the machines;(5)incur reasonable attorneys'fees
Price. and legal expenses in exercising any of its rights and r.m,•rlii'>, upon
The Customer may at any time pay in advance the full amount due default which the Customer agrees to pay;ami' . •
hereunder and the Time Price Differential will be adjusted by IBM to remedy permitted by law or in equity.
reflect the shorter payment period. Waiver of any default shall not be a .+aiw r,,r ,J:., ,.,.rc,: -.r .,
All remittances are to be made to the IBM Branch.Office address IBM's rights hereunder are cumulative and not alternative.
listed herein.
• Funding
Assignments
Since the Customer intends to request the annrnnriatinn of funds
•
•
•
In the event that funds are not appropriated as provided above and General
the Customer is unable to make further payments due under this In- ,If the Unit Price for any machine is adjusted as provided for in the
stallment Payment Agreement beyond the end of the then current Agreement referred to herein, the payments herein agreed to be paid
Fiscal Period, IBM will,within'a reasonable time after the end of such shall be adjusted and this Installment Payment Agreement shall be
Period,enter.and take the machines from Customer's premises and will amended accordingly.
retain all sums previously paid by Customer to IBM as partial con- The terms and conditions of this Installment Payment Agreement
pensation for machine use and depreciation; provided, however, that shall prevail notwithstanding any variance with the terms and con-
upon Customer's request, Customer may, prior to such repossession, ditions of the Agreement referred to herein.
• retain the machines during a reasonable period agreed to by IBM at a Should this Installment Payment Agreement and/or the Agreement
monthly charge designated by IBM,beginning on the first day following referred to herein be held by the courts to be invalid or unenforceable,
the last Fiscal Period for which payment has been made hereunder. in whole or in part,the parties agree that the machines shall be deemed
to have been installed pursuant to the terms and conditions of IBM's
Security Interest and Location of Machines• Agreement for Lease or Rental of IBM Machines and its State and
Local Government Lease Plan Amendment at IBM's applicable Lease
To secure the payment of the Total Time Sale Price, IBM reserves a Plan Monthly Charges, commencing with the Date of Installation or
purchase money security interest in each of the machines and the Effective Date of Purchase of the machines.For the period prior to
Customer hereby grants a security interest in any substitutions, such holding, IBM shall credit to the applicable Lease Plan Monthly
replacements and additions thereto and the proceeds thereof.A copy of Charges the amounts paid by the Customer to IBM under the In-
this Installment Payment Agreement may be filed with appropriate stallment Payment Agreement and amounts paid by the Customer for
•authorities at any time after signature by the Customer as a financing maintenance,property taxes and insurance.Any excess credits shall be
statement in order to perfect IBM's security interest. Such filing does refunded to the Customer, and any deficiency shall be due to IBM;but
not constitute acceptance of this Installment Payment Agreement by in no event shall any amount be due to IBM in excess of funds ap-
IBM.The Customer also shall execute from time to time, alone or with propriated.
IBM, any financing statements or other documents and do such other •
act or acts considered by IBM to be necessary or desirable to perfect or This Installment Payment Agreement and the Agreement
protect the security interests hereby created. The machines shall referred to herein constitute a single Agreement and the com-
remain personal property,not become part of the freehold,and be kept plete and exclusive statement of the agreement between the
at: Customer and IBM, which supersedes all proposals or prior
• agreements,oral or written,and all other communications be-
• tween the parties relating to the subject matter of this
Agreement. The Customer acknowledges that Customer has
read this Agreement,understands it,agrees to be bound by its
(street address) terms and conditions, and by Customer's signature below
acknowledges that Customer is legally authorized to enter into
,(city) (county) (state) this Agreement.The Customer acknowledges receipt of a true
where IBM may inspect them at any reasonable time. copy hereof and of the Agreement referred to herein.
•
•
•
•
Received by IBM at
Branch Office Name/Number
By •
Manager's Signature
Manager's Name(Type or Print) Date
Accepted by:
International Business Machines Corporation
Customer
By By 4
A„�h.aizrd Signature Authorized Signature
International Business Machines Corporation Armonk, New York 10504 • Supplement to Agreement for IBM Licensed Progr-ms'
Reference Refer. ce
Name and Address of Customer: IBM Branch Office Address: IBM Branch Office No.: Customer No.: Agreement No.: Amendm t No -.
•
The following Licensed Program Materials are hereby made subject to the referenced Agreement for IBM Licensed Programs: Date Prepared: j
•
.. •See the reverse side for
' clarification of column headings.
. 0 —
J
N Y
N 0 o V
•
Estimated ` > o o zI $ ^z
Licensed Program/ Designated Machine Type/Duration Shipment Date v S u. v z o
Features/ Type/Serial or of A
Optional Materials • Descriptionor Effective Date for Charges o= o = > a m rn g E i n m
p Plant Order Number Program Service Additional License t , ^ o o t
o �1i� �'� 0 0 II
oo - 52.E �� � �i�d�i2 2 ' o�S 0 () \k• ) • . ,
•
•
•
•
•
•
•
NOTE: THE ADDITIONAL TERMS AND CONDITIONS, AS SET FORTH ON THE REVERSE SIDE, ARE EFFECTIVE ONLY IF TWO CONDITIONS ARE MET: 1) T),iE
REFERENCED AGREEMENT FOR IBM LICENSED PROGRAMS IS ACCEPTED BY IBM PRIOR TO FEBRUARY 8, 1983; AND'2) THE RESTRICTED MATERIALS COLUM
ABOVE IS MARKED "YES." IF SO, THIS SUPPLEMENT MUST BE SIGNED BY THE CUSTOMER AND IBM. SUCH ADDITIONAL TERMS AND CONDITIONS ARE ALS
INCORPORATED IN THE REFERENCED AGREEMENT ACCEPTED BY IBM ON OR AFTER FEBRUARY 8, 1983. it
THE CUSTOMER ACKNOWLEDGES THAT THE CUSTOMER 'HAS READ THE REFERENCED AGREEMENT, REFERENCED •
• AMENDMENT,AND THIS SUPPLEMENT,UNDERSTANDS THEM,AND AGREES�/ TO B BOUND BY THEIR TE%, ,(eAr7\
ND CONDITIONS.
Accepted 6y. ,/p g f- ./ / /�
International Business Machines Corporation �N e C 0�✓�� (�i'lJ�j TERMS
ustomer
By BI) •
-
Authorized Signature Authorized Signature See note above.
Pa; of / l
•
z1:. " Name(Type or Print) Date
Name(Type or Print) Dale
Um :. . ,!01/83) l
Please send all communications to IBM at its Branch Office unless advised to the contrary. • .
. international Business M chines Corporation rmonk, New York 10504
Agreement for IBM Licensed Programs - •
Name and Address of Customer. / Agreement No.: , ''• '
.,j$5 47/`41'1444 &, 6 �r . IBM Branch Office No.: 4.?..)
G�02�9� �� ���5/ /_/ r Customer No.: Iai�j7 J ��J
-52a/3G
IBM Branch Office Address:
International Business Machines Corporation (IBM) and the Customer agree that, when this Agreement is signed by the
Customer and accepted,by IBM, the following terms and conditions will apply.to any IBM licensed program materials
offered under this Agreement when ordered by the Customer and the order is accepted as provided herein. Under these
terms and conditions, IBM will 1) furnish licensed programs to the Customer, 2) furnish licensed optional materials in
support of such licensed programs,3)grant the Customer a nontransferable and nonexclusive license in the United States
and Puerto Rico to use the licensed program materials, and -4) provide program services. all as described herein. The
Customer agrees with respect to the.licensed programs to accept the responsibility for 1) their selection to achieve the
Customer's intended results,2) their installation,3) their use,and 4)the results obtained therefrom.The Customer also has
the responsibility for the selection and use of,and results obtained from,any other programs, programming, equipment or
. services used with the licensed programs.
Specific licensed' prograrri materials may be ordered under this Agreement by 1) a Supplement to this Agreement
(Supplement) signed by the Customer, 2) a written order, specifying the licensed program materials and the designated
machine, signed by the Customer, or 3) such other ordering procedure as shall be designated by IBM for the specific
• licensed program materials. IBM will accept any such order underthis Agreement by providing the Customer a Supplement
specifying the supplemental terms applicable to such licensed program materials. Upon receipt of the Supplement by the
Customer, IBM shall thereby grant a nontransferable and nonexclusive license in the United States'and Puerto Rico for
licensed program materials shall be granted subject to the terms and conditions of this Agreement. Use of the licensed
program materials or the first payment of charges due hereunder, whichever first occurs following receipt of the
'Supplement, will constitute the Customer's acceptance of the supplemental terms specified in the Supplement
Any terms which this Agreement states are to'be specified by IBM for a licensed program and/or related licensed optional
materials will be stated in the Supplement for that licensed program.
DEFINITIONS TERM. '
The term"licensed program"in this Agreement shall mean a licensed data This Agreement is effective from the date on which it is accepted by IBM
processing program consisting of a series of instructions or statements in . and will remain in effect until terminated by the Customer upon one montn's
machine'readable form, and/or any licensed data base consisting of a _ written notice,or by IBM as set forth in this section.This Agreement may be
systematized collection of data in machine readable form,and any related terminated by the Customer only when all lice[lsed program materials
licensed materials such as, but not limited to,flow charts,logic diagrams licensed hereunder are discontinued and all licensed program materials
and listings provided •for use in connection with the licensed data •have been returned or destroyed. •
processing program.
The term"licensed optional materials"in this Agreement shall mean any Licenses granted under this Agreement may be discontinued by the
. machine readable or printed material not included in the licensed program Customer upon one month's written notice,except that during the testing
and which is designated by IBM as available under license to Customers period,the Customer may discontinue any license at any time upon written
who have licensed the program to which such'optional materials relate. notice effective immediately.
The term "licen'sed program materials" in this Agreement shall mean; IBM:may discontinue any license or terminate this Agreement upon
both the licensed program and the licensed optional materials as defined written notice effective immediately if the Customer fails to comply with any-
above. of the terms and conditions of this Agreement
• The term "restricted materials" in this Agreement shall mean any
licensed program materials which are labeled "Restricted Materials of Notice of discontinuance of any or all licenses shall not be considered
IBM." notice of termination of this Agreement unless specifically stated.
Thb term"use"in this Agreement shall mean copying any portion of the
licensed program materials into a macnine and/or transmitting them to a Notice of discontinuance of any licensed program snail be notice of
_ machine'for processing of the machine instructions, statements or data discontinuance of the license and of all licensed program materials
contained in sucn materials. obtained in•connection therewith.
THE ADDITIONAL TERMS AND CONDITIONS ON PAGES 2 THROUGH 4 ARE PART OF THIS 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 AND ITS APPLICABLE SUPPLEMENTS ARE THE COMPLETE AND EXCLUSIVE STATEMENT OF THE
AGREEMENT BETWEEN THE PARTIES, EXCEPT AS PROVIDED IN THE SECTION ENTITLED"IBM EDUCATION COURSES."SUPERSEDING ALL
PROPOSALS OR PRIOR AGREEMENTS, ORAL OR WRITTEN,AND ALL OTHER COMMUNICATIONS BETWEEN THE PARTIES RELATING TO THE
SUBJECT MATTER OF THIS AGREEMENT.
Acceotea bv: ',VAC f c, � C,,,f �r ff02
• Interncoational Business Machines Corporation Customer
• t�Py BY
- -Aumon zec 9;nature • suu,or,cc, i•.;•.c s
Name tTvoe or Print) .0ate Name aycccr Pnnq. • Oats
' Z125-3358-0 W.: . -':'i _ a,.•_. ..-rid aft cornmun,cat,ons to IBM at its Brancn Office unless advtseo to me contrary.' ::
•
• • LICENSE • (Basic License)may be obtained for a DS c rge.When ordering additional
Each licenee.granted under this Agreement authorizes the Customer to: licenses for such a licensed program,the Customer must designate whether
a) 'use the licensed program materials in machine readable form on the an additional Basic or DSLO License is requested.For eacn DSLO License,the
machine or machines(hereinafter referred to as"machine")designated in Customer will: •
an applicable Supplement for such licensed program materials and in 1) copy those licensed program materials previously distributed in machine
conjunction therewith to store the licensed program materials in.transmit readable form to the Customer by IBM under the Basic License and use
them through,or display them on, units associated with such designated such copies on the machine designated in the Supplement;
machine; . 2) provide problem documentation to IBM through the location of the Basic
b) utilize the licensed program materials in printed form in support of the use License: .
of the licensed program;and/or 3) at IBM's request,recreate any problems at the location of the Basic License.
c) copy or translate the licensed program materials in machine readable form if Local Service or Local Assistance as specified by IBM is available for the
into any machine readable or printed form to provide sufficient copies to Basic License;and .
support the Customer's use of the licensed program as authorized under 4) distribute to, install and test on the DSLO designated machine any new •
this Agreement. Licensed program materials provided by IBM in printed release, correction or bypass provided by IBM to the Basic License
form, microfiche or other non-machine readable form may not be copied. designated machine.
Additional copies may be obtained under license from IBM at the charges Program services and the warranty,if any,for the licensed program will be
then in effect. provided for DSLO Licenses only through the Basic License location and there
With respect to restricted materials. the authorizations granted under the will be no testing period for the DSLO Licenses.
prece':ing paragraphs'of this section are limited solely to the following Unless the Custumer designates another Basic License,notice of discontin-
purposes: uance of a Basic License shall be notice of discontinuance of all DSLO
a) making modifications to the Customer's products and/or programs so that licenses for that Basic License.
they will function with the licensed programs to which the restricted
materials apply; CHARGES
b) making modifications, subject to the provisions of the section entitled The charges applicable to each licensed program will be specified by IBM and
"Permission to Modify,"to the licensed programs to whicn the restricted will Consist of a one-time charge,an upgrade charge,periodic charges,and
materials apply; and/or any initial charge and/or any process charge.
c) assisting the Customer in problem determination,problem source identifi- Periodic charges,which may be monthly,quarterly,semi-annual or annual.
cation and/or problem resolution activities associated with the use of the will continue until the licensed program is discontinued.However.for certain
licensed programs to which the restricted materials apply. licensed programs,IBM may specify a consecutive number of payments after
t A separate license is'required for each machine on which any licensed which further periodic charges will be waived.
program materials will be used,except as provided in the subsections entitled For certain licensed programs.IBM may designate one or more replacement
"Temporary License Transfer.""Installation License"and"Location License.' licensed programs.When a licensed program is discontinued and replaced by
For any licensed program that is a data base, the license granted in this the Customer with an IBM designated replacement licensed program an
section is further limited to permit access to such data base exclusively by the upgrade charge as specified by IBM will apply.
Customer.Except as provided in the section entitled"Protection and Security • Licensed optional materials may be subject to a charge as specified by IBM.
of Licensed Program Materials,"the Customer shall not make or permit any Any additional charges for program services for licensed programs will be at
manner of access to any form of such data base,or part thereof,for the purpose IBM's then applicable hourly service rates and minimum charges and such
of making available to any other person any data contained in such data base. services will be provided under the terms and conditions of this Agreement
The Customer shall not use, print, copy, translate or display the licensed unless provided under separate written agreement signed by the Customer
program materials, in whole or in part, unless expressly authorized in this and IBM. •
Agreement Commencement and Invoicing of Charges •
. The Customer shall not reverse assemble or reverse compile the licensed Periodic charges will commence on the day.Monday through Friday,following
programs in whole or in part. • the end of the testing period,or 10 days after shipment of the licensed program
Temporary License Transfer by IBM if there is no testing period,except as set forth below in this subsection.
The Customer is authorized to transfer the license to and use the licensed Monthly charges for a partial month's use will be prorated based on a thirty-day
program materials on:. month.Other periodic charges will not be prorated and are not refundable in
1) a backup machine when the designated machine or an associated unit whole or in part. Periodic charges will be invoiced in advance.
required for use of the licensed program is temporarily inoperable until • Unless otherwise specified by IBM, one-time charges, initial charges.
. operable status is restored and processing on the backup machine is upgrade charges and licensed optional materials charges will be due on the
• completed;or day.Monday through Friday,following the end of the testing period,or 10 days
2) another machine for'assembly or compilation of the licensed program after shipment of the licensed program materials by IBM if there is no testing
materials if the designated machine and its associated units do not provide period or if such period has expired. except as set forth below in this
the configuration required for assembly or compilation. subsection. •
Installation License For additional licenses for which the Customer has made copies pursuant to
When IBM specifies "Installation License Applies" the Customer is also the subsection entitled"Additional Licenses"and for'which there is no testing
authorized to use the licensed program materials on any other machine in the period, periodic charges will commence and other charges will be due upon
same installation as the designated machine.For purposes of this Agreement, the Effective Date for Additional License designated in the Supplement.
"same installation" shall mean a single room or contiguous rooms unless Process charges will be due upon receipt by the Customer of the licensed
otherwise agreed to in writing by IBM. program materials to which such charges apply and are not refundable even if
Location License the Customer discontinues the licensed program prior to or during the testing
*period. -
When IBM specifies "Location License Applies" the Customer is also Payment will be made as stated in the invoice.
authorized to use the licensed program materials on any other machine in the
same location as the designated machine. For purposes of this Agreement, Applicable Taxes
"same location"shdll mean a single Ohysical Customer location designated by In addition to the charges due under this Agreement,the Customer agrees to
single mailing address and contained within a single building unless pay amounts equal to any taxes resulting from this Agreement,or any activities
—erwise agreed to in writing by IBM. hereunder,exclusive of taxes based on IBM's net income.
-_'•.:tnge in Designated Machine Price Changes
•
'.Custom=r may notify IBM of the Customer's intention to change the Periodic charges are subject to change by IBM upon three months'written
;id ation .i the machine on which licensed program materials are to be notice to the Customer.Any changes in periodic charges become effective on
used. •ne change of designation will be effective upon the date set forth in the the.first day of the Period which commences on or after the effective date
form entitled "Confirmation of Change in•Designated Machine"furnished to specified in the notice.
the Customer by IBM. Initial charges,one-time charges.process or upgrade charges.and charges
Additional Licenses • for licensed optional materials are subject to change without prior notice
Each additional license for licensed program materials already licensed by the except that such charges shall not be increased if, prior to the date of the
Customer under this Agreement must be ordered as described herein. notice. 1)the licensed program materials had been shipped by IBM.or 2)the
For additional licenses,in lieu of distribution from IBM; the Customer may Customer had copied licensed program materials pursuant to the subsection
elect to copy those licensed program materials previously distributed to that entitled"Additional Licenses."In addition,if the Customer's written order was
Customer by IBM in machine readable form. The Customer may make sucn received by IBM prior to the announcement of such increase in charges.such
copy upon receipt of a Supplement issued by IBM which designates the charges shall not be increased if. within one month after the date of notice.
Effective Date for Additional License requested by the Customer. The testing snipment of the licensed program materials occurs or the C:,;;a :-�n,es
period.if any, for such additional license will commence on the Effective Date licensed program materials pursuant to the suosecii r; :- '
for Additional License.Permission to.copy granted in this subsection does not Licenses." .. _. -f `.
apply toiiconco.i pragr_am.materials a-form----If-charges-are-incre-ased for-any-Ircerises-c ..-• - . - -
For certain licensed programs, 'IBM may offer the Distributed Systems may discontinue them in accordance with the provisions of :r„:; .: .;:,enient•
License Option (DSLO) under which licenses in addition to the initial license otherwise,the new charges will become effective.
e •; 2 of 4
•
at SHIPMENT • Support Center is established for program and a problem occurs
'' The Estimated Shipment Date for licensed programs will be specified by IBM. which the Customer believes is ree use of a licensed program,the
' However, IBM does not represent or warrant that such shipment date will be Customer will contact the Support Center and will perform appropriate
• met. problem definition activities and remedial actions, as prescribed by the
' IBM will notify the Customer of the type of program storage media required Support Center.prior to any dispatch of an IBM representative.IBM also offers
for shipment. Unless returnable or disposable media are used, the program other services through Support Centers with or without charge,as applicable,
storage media must be provided by the Customer or ordered from IBM at the Local Service—When Local Service is specified and a problem occurs
applicable charge.Except when otherwise specified by IBM,licensed program. which the Customer determines is caused by the use of a licensed program
materials will be shipped to the Customer without shipping charge.Any special and the diagnosis of the IBM representative indicates the problem is caused by
shipment requested by the Customer will be at Customer expense. a defect in the unaltered portion of a current release of the licensed program.
the IBM representative will perform the following problem resolution activities:
LICENSED PROGRAM TESTING 1) attempt to correct or bypass the defect by providing the Customer with
For each licensed program IBM will specify the testing period,if any,during correction information issued by Central Service, if available:or
which the licensed program will be made available for nonproductive use.The 2) submit documentation to Central Service,if specified as availabie:and,in
purpose of the testing period is to permit the Customer to determine whether any event
the licensed program functions selected by the Customer operate together and 3) if the licensed program is inoperable,make a reasonable attempt to resolve
to assist the Customer in determining whether the licensed program meets the the problem by applying a local fix or providing a bypass.
Customer's requirements.The testing period will begin 10 days after shipment Local Assistance—When Local Assistance is specified and the Customer
of the licensed program by IBM or on the Effective Date for Additional License, encounters a problem,which the Customer's diagnosis indicate's is caused by
unless otherwise specified. a defect in the unaltered portion of a current release of the licensed program,
The Customer may discontinue the licensed program,upon written notice the Customer may request IBM assistance.in.resolving the problem. Such
effective immediately, at any time during the testing period, in which event assistance,if requested,will be provided by an IBM representative and may be
• periodic charges. one-time charges, initial charges, upgrade charges and subject to the availability of personnel. This assistance may include, but not
licensed optional materials charges will,not be due.However,process charges extend beyond. the following problem resolution activities:
will be payable.Unless such notice of discontinuance is given,the Customer 1) attempting to correct or bypass the defect by'providing the Customer with
will be deemed,at the end of the testing period,to have decided to retain the correction information issued by Central Service. if available:or
licensed program under the provisions of this Agreement. 2).assisting the Customer with preparing documentation for submission to
In the event that the licensed program is used for productive purposes Central Service, if specified as available:and. in any event
during the testing period,the Customer will notify IBM and the testing period 3) if the licensed program is inoperable. making a reasonable attempt to
will be deemed to have ended as of the date upon which the Customer resolve the problem by applying a local fix or providing a bypass.
commences productive use. • • Program Services Duration
I Subsequent releases, if any, of a licensed program which have the same For each licensed program the types of program service provided will be
program number will be made available to the Customer for productive use specified as available:
'and/or test on the designated machine while the Customer continues
productive use of a previous release on that machine and pays.applicable 2) until discontinuedn calendarb IBM with a minimum of six months written notice:or
charges therefor.The Customer has the right to decide whether to install any 2} until a designated date;or
such releases or continue use of a previous release having given due regard to 3) during the tnatingriod; or
4) for a designateded •
nu number of months for each license. In the event the
the provisions of the section entitled "Program Services.' Customer discontinues a licensed program and subsequently reorders it
In the event of discontinuance of a licensed program and subsequent for the same installation (or location, when IBM has specified "Location
reordering of the same licensed program for the same installation(or location, License Applies"),the service duration then in effect will be reduced by the
' when IBM has specified"Location License Applies"),there will be no testing number of months for which such service was previously provided.
period for the subsequent license. When a subsequent release of a licensed program wnich has the same
• RISK OF LOSS • program number becomes available,IBM may discontinue program services
If licensed program materials are lost or damaged during shipment from IBM, for any or all prior releases by notice effective on the date stated therein.
IBM will replace such licensed program materials and program storage media For any licensed program,IBM shall have the right to cnarge for any of the
at no additional charge to the Customer. foregoing program services to the extent they are not specified as provided
If licensed program materials are lost or damaged while in the possession of without additional charge.Other types of program services may be specified
the Customer, IBM will replace sudh licensed program materials at •the by IBM.
applicable charges, if any, for processing, distribution, and/or program IBM shall also have the right to charge for any additional effort which results
storage media. from providing program services for an altered licensed program or for a
•
•
EARLY SHIPMENT OF LICENSED PRINTED MATERIALS -release which is not current.
When the Customer has received a Supplement issued by IBM for a generally IBM does not guarantee service results or represent or warrant that all errors
available licensed program,licensed program materials which are provided by or program defects will be corrected.
IBM in printed form will,upon Customer request,be shipped to the Customer PERMISSION TO MODIFY i
up to six months prior to shipment of the machine readable portion of the The Customer may modify any licensed program materials in machine
licensed program materials. The licensed printed materials, thus provided, readable form and/or merge such materials into,other program material to
may not be copied in any form for any purpose. form an updated work for the Customer's own use: provided that, upon
If the Customer does not request that the machine readable portion of the discontinuance of the licensed program, the licensed program materials will
licensed program materials be shipped within six months following the date of be completely removed from the updated work and dealt with under this
shipment of the licensed printed materials,the Customer will discontinue the Agreement as if permission to modify or merge had never been granted.Any
license and return or destroy the printed materials. portion of the licensed program materials included in such an updated work
The charge for early shipment of licensed printed materials will consist of will continue to be subject to all terms of this Agreement.
any applicable process charges. PROTECTION AND SECURITY OF LICENSED PROGRAM MATERIALS
Program services, if any, will not be provided prior to shipment of the The Customer will take appropriate action, by instruction, agreement or
machine readable portion.of the licensed program materials. . otherwise, with any persons permitted access to licensed program materials
PROGRAM SERVICES • • •
so as to enable the Customer to satisfy the Customer's obligation under this
For each licensed program. IBM will specify the types and durations of Agreement.All copies of licensed program materials provided by IBM or made by the
program-services,if any,to be provided without additional charge fora current Customer including translations or compilations or partial copies within
release of the licensed program. Program services will commence at the modifications. derivative works, and updated works are the property of IBM
beginning of the licensed program testing period or,if there is no testing period and may not be distributed by the Customer to any other persons,including
• for that license,when periodic charges commence or other charges are due. other licensees of the licensed program,without IBM's oor written consent.
Program servi on
or will be subject to the provisions of the section entitled The Customer will reproduce and include the copyrignt notice on any such
"Specified Operating Environment." copies made by the Customer in accordance with the copyright instructions
Types of Service • • provided by IBM.
Central Service—When Central Service is specified one or more service The Customer will maintain records of the number and location of all copies
locations will be designated which will accept documentation, in a format of licensed program materials and will notify IBM in writing if the original or any
prescribed by IBM, indicating that a problem is caused by a defect in the copy of the licensed program materials will be kept at an installation (or
licensed program. Central Service will respond to a defect in the unaltered location,when IBM has specified"Location License Applies-}other than that of
portion of a current release of the licensed program by issuing: defect the machine designated in the applicable Supplement.
correction information such as correction documentation,corrected code.or. The Customer will insure,prior to disposing of any media.that any licensed
notice of availability of corrected code: or a restriction or a bypass. Unless program materials contained thereon have oeen erased or otherwise de-
Local Service is also specified for the licensed program,the Customer will be stroyed.
responsible for the preparation and submission of documentation to Central The Customer will not provide or otherwise r.;::1.,• ; : ,,
Service. program materials in-any form Nithout tBf., ; „i•,,- :. s
IBM may also establish a center(Support Center)to provide the Customer Customer employees or IBM employees.of ;o o:i c. ,c..;,,:.: ,;,,,'.' .
with telephone assistance in problem diagnosis and resolution. When a- such other persons are on the Customer s premises.for purposes s::,cilic.ai,;
Page 3of4
•
related to the Customer's authoriz.the licensed program. ' the claim provided that IBM may illillipate in the defense and/or ""
i
;UCENStD PROGRAM SPECIFICATIONS agrees to any settlement of such
The Customer agrees to allow IBM, at IBM's option and expense. if such•
For each licensed program which is warranted,IBM will publish,at fled' time that claim has occurred or in IBM's judgment is likely to occur,to procure the right
licensed program becomes generally available,a gram Specifications
document entitled"Licensed for the Customer to continue using the licensed program materials or to
Program Specifications:" Such Licensed Program Specifications may be
updated by IBM from time to time and such updates may constitute a change in replace or to modify them so that they become non-infringing:and,if neither of
specifications. . the foregoing alternatives is available on terms which are reasonable in IBM's
WARRANTY judgment,upon written request,the Customer will return the licensea program
materials to IBM;and,for licensed programs whose total charges are fully paid.
Each licensed program.which is specified in the Supplement as warranted will
conform.when shipped to the Customer,to the Licensed Program Specifica- the Customer may receive a credit as established by IBM.
IBM shall have no obligation with respect to any such claim based upon the
tions which are in effect for that licensed program at that time, provided the 'Customer's modification of the licensed program materials or their combina-
licensed program is properly used in a Specified Operating Environment If the tion,operation or use with data or programs not furnished by IBM or in other
• Customer believes there is a defect in a licensed program such that it does not than the Specified Operating Environment. This section states IBM's entire.
meet its Licensed Program Specifications,the Customer must notify IBM while obligation to the Customer regarding infringement or the like.
program services are available for the program.IBM does not warrant that the
functions contained in a licensed program will meet the Customer's require- LIMITATION OF REMEDIES
ments or will operate in'the combinations which may be selected tor use by the IBM's entire liability and the Customer's exclusive remedy shall be as follows:.
Customer,or that the operation of the licensed program will be uninterrupted In all situations involving performance or nonperformance of licensed
or error tree or that all program defects will be corrected. programs furnished under this Agreement the Customer's remedy is 1) the
All other licensed programs will be distributed on an"As Is"basis without correction'by IBM of licensed program aefects.or 2)if,after repeated efforts.
warranty of any kind either express or implied.. • IBM 'is unable to make the licensed program operate as warranted, the
THE FOREGOING WARRANTIES ARE IN LIEU OF ALL OTHER WAR- Customer shall be entitled.to recover actual damages to the limits set forth in
RANTIES,EXPRESS OR IMPLIED,INCLUDING,BUT NOT.LIMITED TO,THE this section.
IMPLIED WARRANTIES OF. MERCHANTABILITY AND FITNESS FOR A For any other claim concerning performance or nonperformance by IBM
PARTICULAR PURPOSE. . pursuant to,or in any other way related to.the subject matter of this Agreement
SPECIFIED OPERATING ENVIRONMENT and any Supplement hereto,the Customer shall be entitled to recover actual
damages to the limits set forth in this section.
Each licensed program is designed to operate on one or more IBM machine IBM's liability for damages to the Customer for any cause whatsoever,and
types and, in most instances, in conjunction with other IBM equipment and •
regardless of the form of action, whether in contractor in tort including
programs.The Licensed Program Specifications for each warranted licensed negligence.shall be limited to the greater of S25.000 or the one-time charge
-program will state the environment in which the licensed program is designed paid for, or any charges which would be due for twelve months' use of, the
1 to operate.For licensed programs distributed on an"As Is"basis,the Specified licensed program that caused the damages or that is the sublect matter of,or is
Operating Environment will be stated in a notice of availability of the licensed directly related to, the cause of.action.Such charges shall be those in effect
program. when the cause of action arose and shall include any initial or process charges
Program services for a.licensed program used in other than a Specified• paid to IBM. This limitation of liability will not apply to claims for copyright
Operating Environment are subject to limitations •occasioned by the.differ- infringement or for personal injury or damage to real or tangible personal
ences between the Specified Operating Environment and the Customer's property caused by IBM's negligence..
operating environment and by the extent of the local IBM representative's In no event will IBM be liable for any damages arising from performance or
knowledge of the Customer's equipment and programs. Such program nonperformance of the licensed program during the licensed program testing
services will be subject to the following conditions: period_or for any damages caused by the Customer's failure to perform the
1) When performing Local Service or Local Assistance, IBM's obligation.is Customer's responsibilities, or for any lost profits, lost savings or other
• limited to having the local IBM representative apply a reasonable effort to consequential damages.even if IBM has been advised of the possibility of such
provide program services as described in the applicable portion of the damages,or for any claim against the Customer by any otner party,except as
' section entitled"Program Services."Furthermore,the local IBM represen- provided in the section entitled "Patents and Copyrights."
tative will only. be expected to operate a machine designated in the
-Supplement if it was marketed or manufactured by IBM.IBM will have the IBM EDUCATION COURSES
• - right to charge for any additional effort required to perform these program The Customer agrees that all of the terms and conditions applicable to
services. restricted materials contained in this Agreement shall be incorporated into the
2) Central Service will only respond to defects which will occur when Central Agreement between the Customer and IBM entitled"Terms and Conditions for
Service operates the licensed program;in a Specified Operating Environ- IBM Classes and Education Materials"and apply to materials, regardless of
ment • form,labeled"Restricted Materials of IBM"when distributed to the Customer in
RETURN OR DESTRUCTION OF LICENSED PROGRAM MATERIALS conjunction with an IBM Education Course. .
Within one month after the date of discontinuance of any license granted ADDITIONAL PRODUCTS AND SERVICES
hereunder,unless the requirement is waived by IBM,the Customer will furnish' 'In addition to the licensed program materials and program services provided
to IBM a completed form entitled"IBM Licensed Program Certificate of Return under this Agreement, IBM offers other products and services at separate
or Destruction" certifying that through the Customer's best effort,and to the charges under applicable written IBM agreements. IBM and the Customer
best of the Customer's knowledge,the original and all copies of the licensed agree that such products and services cannot be the subject of an oral
'program materials received from IBM or made in connection with such license agreement
have been returned to IBM or destroyed. This requirement will apply to all GENERAL '
copies in any•form including translations or compilations or partial copies This Agreement is not assignable:none of the licenses granted hereunder nor
within modifications,derivative works,and updated works,whether partial or any of the licensed program materials or copies thereof may be sublicensed,
complete.and whether or not modified or merged into other program materials assigned or transferred by the Customer without the prior written consent of
as authorized herein.However,upon prior written authorization from IBM,the IBM.Any attempt to sublicense,assign or transfer any of the rights,duties or
Customer may retain a copy for archival purposes only. obligations under this Agreement is void.
The requirement to return or destroy will apply to a licensed data base;it will Licensed program materials furnished under this Agreement are to be used
not apply to individual pieces of data obtained by the Customer from such data only on machines located in the United States and Puerto Rico.
base and which constitute a minor portion of such data base. . The terms of this Agreement may be modified by IBM upon three months'
When the'.Customer has licensed a new version of a licensed program, written notice to the Customer,except that any modifications of the terms and
which carries a different program number,and discontinues the prior version, conditions which relate specifically to termination of this Agreement or
the Customer may retain the prior version of the licensed program for a period discontinuance of licenses granted under this Agreement as provided in the
not to exceed three months following its date of discontinuance,to be used section entitled"Term"shall be effective only as to licensed program materials
Only if a defect in the new version prevents its use. During this period,the . designated in a Supplement issued by IBM after•the date of such notice.
Customer will pay only the applicable charges for the new version of the Modifications shall become effective unless the Customer terminates this
licensed program.Within one month following this three-month period.unless Agreement or discontinues any applicable licenses before the effective date
the requirement is waived by IBM.the Customer will furnish IBM a completed thereof.Otherwise,the Agreement or any Supplement can only be modified by
. form entitled"IBM Licensed Program Certificate of Return or.Destruction"for a written agreement duly signed by persons authorized to sign agreements on
the prior version as set forth above.. behalf of the Customer and IBM,and variance from or addition to the terms and
PATENTS AND COPYRIGHTS . conditions of this Agreement and any Supplement in any Customer purchase
• IBM will,at its expense,defend the Customer against any claim that licensed order or other written notification will be of no effect.
program materials supplied hereunder infringe a patent or copyright in the IBM is not responsible for failure to fulfill its obligations under this Agreement
United States or Puerto Rico and,subject to the limitation of liability set forth in due to causes beyond its control.
the section entitled"Limitation of Remedies,"IBM will pay all costs,damages No action,regardless of form.arising out of this Agreement may be brought
and attorneys tees that a court finally awards as a result of such claim. To by either Party 1)in the case of an action arising out of breach of the provisions
qualify for such defense and payment,the Customer must: of the section entitled "Protection and Security of Licensed Pmma•.r-. ,tan-
1) give IBM prompt written notice of any such claim; and als,"more than six years after such cause of action ha,,,. •
2) allow IBM to control,and fully cooperate with•IBM in,the defense and all an action for nonpayment,more than rwo years If;;:,. ' .
related settlement.negotiations. However. if the damages attributable to a was due,or 3) in the case of any other ac:uon,r',.„:J.,. —::,•,• .., .
claim of infringement of a patent in the United States or Puerto Rico may cause of action has arisen.
• exceed su•_i'i lintitau:.n of li,: i!'N,the Cu5fnmer rray el-c+to defend against The Agreement will be governed by the laws of the State of New York.
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