HomeMy WebLinkAboutCity of Tamarac Resolution R-97-202Temp Reso# 7931
August 26, 1997
Page 1
CITY OF TAMARAC, FLORIDA
RESOLUTION NO. R-97- 20A
A RESOLUTION OF THE CITY COMMISSION
OF THE CITY OF TAMARAC, FLORIDA,
AUTHORIZING THE APPROPRIATE CITY
OFFICIALS TO EXECUTE AN AGREEMENT
BETWEEN THE CITY OF TAMARAC AND
INTERNATIONAL BUSINESS MACHINES (IBM)
FOR FIVE (5) YEARS EXTENDED
MAINTENANCE OF THE NEW IBM AS/400
CENTRAL COMPUTER SYSTEM, AT A TOTAL
COST OF $22,936.86; PROVIDING FOR
CONFLICTS; PROVIDING FOR
SEVERABILITY; AND PROVIDING FOR AN
EFFECTIVE DATE.
WHEREAS, the City Commission approved the acquisition of a new Municipal
Information System from HTE, Inc. on April 9, 1997; and
WHEREAS, although the City purchased the hardware from HTE, Inc., IBM requires
that hardware maintenance agreements are executed with IBM; and
WHEREAS, the five (5) years extended maintenance service cost is discounted by
29% and can be canceled by a six (6) month notice without any penalties; and
WHEREAS, it is the recommendation of the Director of Management Information
Services to execute the five (5) year extended maintenance agreement and all of its
attachments attached hereto as Exhibit 1; and
WHEREAS, the funding for this maintenance agreement is available in the MIS
budget; and
WHEREAS, the City Commission of the City of Tamarac, Florida deems it to be in
the best interests of the citizens and residents of the City of Tamarac to execute the five
(5) year extended maintenance agreement and all of its attachments.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COMMISSION OF THE CITY OF
TAMARAC, FLORIDA:
1
1
1
Temp Reso# 7931
August 26, 1997
Page 2
SECTION 1: The foregoing "WHEREAS" clauses are hereby ratified and
confirmed as being true and correct and is hereby made a specific part of this Resolution.
SECTION 2: The appropriate City Officials ARE HEREBY AUTHORIZED to
execute a five (5) year extended maintenance agreement with IBM for a total cost of
$22,936.86.
SECTION 3; All resolutions or parts of resolutions in conflict herewith are
hereby repealed to the extent of such conflict.
SECTION 4: If any clause, section, other part or application of this Resolution
is held by any court of competent jurisdiction to be unconstitutional or invalid, in part or
application, it shall not affect the validity of the remaining portions or applications of this
Resolution.
SECTION 5: This Resolution shall become effective immediately upon its
passage and adoption.
PASSED, ADOPTED AND APPROVED this /D day of ,�;._ , 1997.
ATTEST:
CAROL A. EVANS
CITY CLERK
I HEREBY CERTIFY that I
have approved this
RESOLUTION as to form..
CITY ATTORN
(Jcslp-z��v
JOE SCHREIBER
MAYOR
RECORD OF COMMISSION
MAYOR SCHREIBER ,
DIST 1:
COMM. M°KAYE
DIST 2:
V/M MISHKIN
DIST 3:
COMM. SULTANOF
DIST 4:
COMM. ROBERTS
Customer Agreement
•
•
•
Signature Page for Attachments
The following Attachments to the IBM Customer Agreement contain additional terms. Copies of the
Attachments which you select (by marking the appropriate space below) are included with this page.
Products
Entry End User/390 License
(Z125-4379-03)
Licensed Program Support
(Z125-3920-05)
Multiple Operating System -
PR/SM Charge Option (Z125-4866.02)
Parallel Sysplex License Charges
(Z125-5205-02)
Rental of IBM Machines (Z125-8301-02)
Trade -Ins (Z125-4134-03)
Trial or Loan of Products (Z125-4135-06)
Support Family Services
IBM Support Family Services
(Z125-5160-13)
AS/400 (Z125-5161-09)
AIX (Z125-5162-12)
Networking (Z125-5163-03)
Personal Systems (Z125-5164-08)
Store Systems (Z125-5471-01)
System/390 (Z125-5165-04)
Continuing Support Services
Business Recovery Services
(Z125-8306-05)
End User Support Services
(Z125-4301-02)
On-line and Other Services
IBMLink Services (Z125-4555-05)
Multiple Vendor Services (Z125-4150-04)
Options
Annual Billing for Programs
(Z125-5420-00)
Central Facility Maintenance Service
Option (Z125-3333-05)
yes CSO and MRSO Options (Z125-3927-08)
Estimated Billing Option (Z125-4116-07)
Miscellaneous
Special Projects (Z125-4855-01)
State & Local Government
(Z125-4205-05)
By signing below for our respective Enterprises, each of us agrees to the terms of the IBM Customer
Agreement and the included Attachments. Once signed, any reproduction of this page or an
Attachment made by reliable means (for example, photocopy or facsimile) is considered an original.
Agreed to: (Enterprise name)
City of Tamarac
By
By 1 't- S, �
Authorized signature
Robert S. Noe, Jr.
Name (Fype o pr�irr
Date: September 10, 1997
Enterprise number: 8725033
Enterprise address:
City of Tamarac
7525 NW 88th Ave
Tamarac, FI 33321-2401
Agreed to:
Internat nal Business Machines Corporation
By
Authorized signature
/Me (type or print):
Date:
IBM Customer Agreement number: HQ12291
IBM address:
3200 Windy Hill Rd.
Atlanta, GA 30339
After signing, please return a copy of this page to the "IBM address" shown above.
Z125-4571-42 3197 (M K002)
Page 1 of 1
- c
Customer Agreement
Mid -Range System Option
F
e terms of the IBM Customer Agreement and its Attachment for CSO and MRSO Options (or any equivalent agreement signed
both of us) apply to this transaction.
Customer Self -Initialization Review
The System Management Control Procedures listed in this self -initialization review will -- when implemented --
allow you to enjoy the benefits of the IBM Mid -Range System Option to the IBM Customer Agreement. Please take
a few minutes to complete it, then contact us and we'll do the rest.
Customer Management Control Procedures
Do you have procedures
established to report
problems within your
organization?
Are problems recorded
either on a problem log
or in an online system?
Is there a central point
established for
information on the
status of all system and
6 etwork problems?
o you have procedures
established to manage
changes?
Implementation
Yes/No Date
/
Answer the following only If you have a network
Are procedures in place
for handling network
user problems and
questions?
Is a configuration
diagram available and
kept current?
Customer
Customer Name:
City of Tamarac
Customer Number: 8725033
Date Self -Initialization
Review Completed:
Customer Reviewer:
41twork Coordinator:
1ephone Number:
Customer Address:
/
7525 NW 88th Ave
Tamarac, FL 33321-2401
Do System Problem
Determination
procedures specify
utilization of the IBM
provided tools (programs
and guides) at the host
and remote sites?
Do you use the IBM
Customer Assistance
Group (CAG), if
applicable, to assist you
in Problem
Determination?
Is there a Network
Coordinator defined
within your organization
for system and network
problems?
IBM Office
Marketing Contact:
Telephone Number:
Implementation
Yes/No Date
Z125-4309-03 1/96
Supplement for Extended Maintenance Option
These terms are in addition to those of the IBM Attachment for Extended Maintenance Option and either the
IBM Customer Agreement, the IBM Agreement for Services, or the IBM Customer Agreement - Maintenance, as
applicable (or any equivalent agreement signed by both of us.
Customer name and address:
IBM Office address:
City of Tamarac
7525 NW 88th Ave.
Tamarac, FL 33321-2401
IBM Global Services
3200 Windy Hill Road
Atlanta, GA 30339
Agreement number:
Customer number:
Supplement date:
IBM Feature and/or
IBM Machine Type and
Model Changes
Customer
EMO/
Serial Number or
Added to this
Contract Period"
Obligation
Transfer
Plant Order Numbers
IBM Machine
Start/End bates
Level
Charge
9406/2008M
500
07/01/97 - 06/30/02
MRSO
$18,079.59
7208/W3286
234
07/01/97 - 06/30/02
MRSO
$4,647.59
3489/Y9348
V43
07/01/97 - 06/30/02
MRSO
$209.68
* Available Contract Periods: 12 - 60 months
When you purchase a new replacement Machine from us, or our authorized reseller, and order EMO for
it, we will provide a credit for the unused portion of the replaced Machine's EMO contract period if you
1) trade in the replaced Machine to us or 2) sell the replaced Machine to a third party without transferring
Maintenance Services and notify us of such sale within one month. We will apply the credit only to
charges you paid for the replacement Machine's current EMO contract period. No refunds will be given.
H012291
8725033
07/01/97
EMO
Credit—
Z125-4141-06 3/96 Page 1 of 1
. --= Customer Agreement
jupplement for CSO and MRSO Options
The terms of the IBM Customer Agreement and its Attachment for CSO and MRSO Options (or any equivalent agreement signed
by both of us) apply to this transaction.
Option selected (check one):
CSO X MRSO
Applicable Procedures Exhibit:
Exit -Option Percent: 5%
IBM Customer Agreement number:
HQ12291
Enterprise number:
8725033
Customer number:
8725033
Supplement Effective Date:
07/01/97
Revised Supplement (Yes/No):
N
Available Contract Termination Contract Period
Period Duration notice required"
Duration: 5
3 years 3 months
Start Date: 07/01 /97
5 years 6 months
End Date: 06/30/02
oemarketers should refer to the Attachment for CSO Option for the "Termination Notice Required
If this is a Revised Supplement, the Start Date is the same date as stated in the initial Supplement for the current Contract
Period.
Customer No.
8725033
Qualified Customer Locations
Location Address
7525 NW 88th Ave
Tamarac, FL 33321-2401
For CSO, which
Discount applies
(System or Network)
Z125-3929-05 2/96 Page: 1 of 1
Attachment for Extended Maintenance Option
These terms are in addition to those of either the IBM Customer Agreement, the IBM Agreement for Services,
the IBM Customer Agreement - Maintenance, or any equivalent agreement signed by both of us. You accept
these terms by signing this Attachment or by using, or making any payment for, the offering described below.
You may order the Extended Maintenance Option (called the "EMO") for certain Machines. Linder EMO, we
adjust your Maintenance Services charges based on your prepayment of those charges during an available
contract period. We calculate the EMO charge for a Machine using the announced Maintenance Services
charges and any applicable discounts in effect for the Machine when coverage begins. EMO charges are not
refundable after coverage has started for the Machine.
We specify the eligible Machine types and available contract periods. We will inform you periodically of any
changes. A change applies only to Machines you add under EMO on or after the effective date of the change.
We will list, in a supplement, the Machines covered and the dates of coverage.
You may select EMO in addition to other Maintenance Service options. We then adjust the Machine's EMO
charge based on the applicable discounts which you are entitled to receive under those options. While under
EMO, you agree to maintain coverage under all the Services and other options on which we base the
Machine's EMO charge.
For a Machine not yet installed or set up, coverage starts on its Date of Installation. For an installed Machine,
coverage starts on a mutually -agreed -to date. If applicable, the contract period includes the Machine's
warranty period.
Each of us agrees that if a feature, conversion, or upgrade is installed on a Machine while it is under EMO, 1)
an additional charge may apply and 2) the feature, conversion, or upgrade is subject to the remaining portion
of the contract period.
If we increase the EMO charge, the increase does not apply to a Machine not yet installed or set up, unless we
give you at least three months' notice before its scheduled date of shipment. If we decrease the EMO charge
before coverage has begun for a Machine, you receive the benefit of the decrease.
We will give you at least three months' notice of a Machine's eligibility for renewal. At the end of your
contract period, we will continue Maintenance Services for the Machine (if available), unless you request us
not to do so.
If you transfer coverage for a Machine to a third party, you agree to inform that party 1) of the applicable terms
of this Attachment and 2) that it must notify us in writing of the transfer, the location of the Machine, and
acceptance of coverage. If that party does not wish to maintain coverage under all the Services and other
options on which we base the Machine's EMO charge, you agree to pay the transfer charge that we specify.
Both of us agree that the complete agreement between us about the Extended Maintenance Option will consist
of 1) this Attachment, 2) applicable Transaction Documents, and 3) either the IBM Customer Agreement, the
IBM Agreement for Services, or the IBM Customer Agreement - Maintenance, or any equivalent agreement
signed by both of us.
Agreed to:
City of Tamarac
t _
By
�—t�)
Authorized signature
Robert S. Noe, Jr. t
Name (type or print) City Manager
Date: 07/01 /97
0 Enterprise number: 8725033
Enterprise address: 7625 NW 88th Ave.
Tamarac, FL 33321-2401
Agreed to:
International Business Machines Corporation
By
Authorized signature
ame (type or print)
Date:
Agreement number: HQ12291
IBM Office address: IBM Global Services
3200 Windy Hill Road
Atlanta, GA 30339
After signing, please return a copy of this Attachment to the "IBM Office address' shown above.
Z125-5414-02 3196 (MK002) Page 1 of 1
ic-(� I-a&_,--
ynco�
-3�m
_Q 7 0
N
(D G.
h rt Z ro
rL �L
ro'w•.Q�
�OOro
0 Z O
O ro >-0
O
?inn
ro N
CL
' O to
ro cp
a, 0
h Q 7
rt CD rt
bl S
� S y
ro w
ro
J m
C :rt 7
o
ro o
S ro
�ro-a
(D
� 0
� ro
rt�
C
ro ro rt
ro
0 3
S N
w y ro
ro �
Q @ N
CD N D)
�. C tp
O m y
= S. CL
to
ro 0
D) rt ro
a.
41 .<D
s w 0.
rr
H ro
C d ILO
O 7 —
fD p'
to 0�
S Z
O
C V
4.Am
In Z 7
ro
y �ro
C "
CD
CL a M
mom:.
m C
ro ID O
a:m
3=;0
D7 rt Q.
0
o
c
a
c
m m
1
to
•-1
N
•pr
r
O
N
O
n i
O
r F fV
{
7
ro H
0%m
m
Oro
m
c
c
D)
Z
C
N q o
fAcr
c
C
IM
In
p (A
\
V
ro
m
m ON
M
N
Nap
3 T
O
q
W V
coA
N
(AITI
W
e
a3v N 1W1
<D
Ca
~
W
m
I
e e
w
'
N N p
111 I-- r
-C
N
rM
•O+
m
W .O .O
x
m
H
n
C
i
O
i
�•1
M ;o
N
A
a
V 11
V I V V
1
f7
II
1
p 1
o II
o II
C1 o p
b l o
H I
(p 1
n
11
\ 1 \ \
N
C7 1
1
11
1
1
11
1
1
n
1
1
u
u
1
1
1
1
n
1
1
n
1
1
W 11
W 1 1•'•I N
H I
11
1
= 1
1]1 11
W 1 O In
{ 1
11
1
1
1
if
1
=
u
1
�
n
1
y
II
1
1
II
1
1
n
1
a 1
11
1
x 1
I
C 1
eu
11
e l
a l
o If
o f
r 1
1
If
u
1
1
1
1
n
1
1
u
I
1
N 11
N I N
O� 1
O• a
O• 1 H+ F
C_ 1
W II
W I V In
1 m 1
F 11
F I V T
O C) 1
V
o 11
CD 1-1 D7
A m I
>
o u
1 .iw
o1.4
rC I
N II
N I
N I
3
O II
G I
A l
If
1
\ 1
• 1••1 a
►+ I
W I
m
NCO 3
%"
fi
11
1
y
11
1
O
M•
11
1
+
7
II
1
Q 3
w
N 11
N 1 ODF
�Oi
n
1
p l
q1
V II
V l o Ol
1
7
ii
i-+
i-1 i tr tr
a i
p 11
p 1 �A •D
r 1
C
C
o
c
o
c
mm
S
to
-f
�
G
ro
r
In
O
tD .
O
01
O
-1
y
n(
S 1
r F
7
n
O
ro y
61
H
rn
o
rn
c
Oro
n
�y
0
w
C
a
roe
ro
ro
O.
m
a
C w
C
m
?
r-3
a rr
rn
0
-4 o
ro
3
ro C)
y
3 e
\
ro
N ro
rn
V
O
tv
ro
C
ID
'
toI-+
a1
O
rn
y m
O
a
14
O
p
y
3
y
to
O
tD
a
a
w
�
m
rr
ro
IN
M
-1
(A
0
N
ro
L1
N u
w l w
1
O
Al
1
ro
.•'
n
1
1
y
Q
11
O
p
II
11
1
1
1
T 1
N
O
•
11
11
O II
1
1
q 1
O 1
= 1
1 1
�►
nII
11
• I
q l
T 1
r 1
��
n
.Q
11
1
T
A)
to
(D
11
11
1
1
1
1
y
11
/-� 11
1
F� 1 H
C 1
a 1
Elf
w 11
p 1 p
r 1
�
ro
n
1
1
1
n
1
1
O
rt
u
II
1
1
1
O+ 1
y
n
1
3 I
00 1
O
F
F x
i
c
11
N If
I
N N
� rn
Q 01
C
w n
1
w I w
i
a m l
u
a I o
r o 1
a
i
�
'O•►
C
N II
N I
1pl
y 1
S
11
1
\ 1
3
fi
CD
II
I
y
y
11
1
p
w
C
11
1
+
7
10
G
II
1
� 3
-
II
1
O p
tp
tT
N 11
N I N
p l
7
.p 11
.p 1 •p
O I
�
�•,�
S
C
m u
OD 1 0•
a 1
y
Q1 11
OD p
r 1
S
ro
o
�
9 -ci "I
•
IN WITNESS WHEREOF, the parties have hereunto set their hands and seals on the
day and year first above written.
WITNESSES:
ATTEST:
Carol A. Evans
City Clerk
As td Form:
Mitchell S. Ida
City Attorney
CITY OF MA
By:
Joe Schreiber
Mayor
Y
Robert S. Noe, Jr.
City Manager
By:-e"-'-�
Title
•
•
== . Customer Agreement
Thank you for doing business with us. We strive to provide you with the highest quality
Products and Services. If, at any time, you have any questions or problems, or are not
completely satisfied, please let us know. Our goal is to do our best for you.
This IBM Customer Agreement (called the "Agreement") covers business transactions you
may do with us to purchase Machines, license Programs, and acquire Services.
This Agreement and its applicable Attachments and Transaction Documents are the
complete agreement regarding these transactions, and replace any prior oral or written
communications between us.
By signing below for our respective Enterprises, each of us agrees to the terms of this
Agreement. Once signed, 1) any reproduction of this Agreement, an Attachment, or
Transaction Document made by reliable means (for example, photocopy or facsimile) is
considered an original and 2) all Products and Services you order under this Agreement
are subject to it.
Agreed to:
City of Tamarac
Agreed to:
International Business Machines Corporation
_* S. n , , By
Authorized signature
Robert S. Noe, Jr.
City Manager
Name (type or print): a
Date: September 10, 1997
Enterprise number: 8725033
Enterprise address:
City of Tamarac
7525 NW 88th Ave.
Tamarac, FL 33321
Date:
,'/-� l /711
Authorized signature
(type or print):.
Agreement number: HQ12291
IBM Office address:
7100 Highlands Parkway
Smyrna, GA 30082
After signing, please return a copy of this Agreement to the local "IBM Office address" shown above.
Z125-4575-02 10/95 (MK002) Page 1 of 19
- 1- co-
. Customer Agreement
iPart 1 - General -
1.1 Definitions
Customer -set-up Machine is an IBM Machine that you install according to our instructions.
Date of Installation is the following:
1. for an IBM Machine —
a. the business day after the day we install it or, if you defer installation, make it
available to you for installation, or
b. the second business day after the end of a Customer -set-up Machine's standard
transit allowance period;
2. for a non -IBM Machine, the second business day after its arrival; and
3. for a Program, the latest of —
a. the day after its testing period ends,
b. 10 days after we ship it, or
c. the day, specified in a Transaction Document, on which we authorize you to make an
Additional License Copy or a copy of a Program feature.
Designated Machine is the machine, that we require you to identify to us by type/model and
serial number, on which you intend to use a Program for processing. When we specify that
you do not have to provide this identification to us, the term "Designated Machine" means the
single machine on which you may use the Program at any one time.
Enterprise is any legal entity (such as a corporation) and the subsidiaries it owns by more
than 50 percent. The term "Enterprise" applies only to the portion of the enterprise located in
the United States or Puerto Rico.
Machine is a machine, its features, conversions, upgrades, elements, or accessories, or any
combination of them. The term "Machine" includes an IBM Machine and any non -IBM
Machine (including other equipment) that we may provide to you.
Materials are literary works or other works of authorship (such as programs, program listings,
programming tools, documentation, reports, drawings and similar works) that we may deliver
to you. The term "Materials" does not include Programs or Licensed Internal Code.
Product is a Machine or a Program.
Program is the following, including features and any whole or partial copies:
1. machine-readable instructions;
2. a collection of machine-readable data, such as a data base; and
3. related licensed materials, including documentation and listings, in any form.
The term "Program" includes an IBM Program and any non -IBM Program that we may
provide to you. The term does not include Licensed Internal Code or Materials.
Service is performance of a task, provision of advice and counsel, assistance, or use of a
resource (such as access to an information data base) we make available to you.
Specifications is a document that provides information specific to a Product. For a Machine,
"Official
we call the document Published Specifications." For a Program, we call it "Licensed
Program Specifications," or "License Information."
Specified Operating Environment is the Machines and Programs with which a Program is
designed to operate, as described in the Program's Specifications.
Z125-4575-02 10/95 (MK002) Page 3 of 19
2-c)?-av�
1.4 Prices and Payment
The amount payable for a Product or Service will be based on one or more of the following
types of charges:
1. one-time (for example, the price of a Machine);
2. recurring (for example, a periodic charge for Maintenance Services);
3. time and materials (for example, charges for Hourly Services); or
4. fixed price (for example, a specific amount agreed to between us for Project Support
Services).
Depending on the particular Product, Service, or circumstance, additional charges may apply.
We will inform you in advance whenever additional charges apply.
For a Product with a one-time charge, payment is due on its Date of Installation. Recurring
charges for a Product begin on its Date of Installation. Payment for Services is due as we
specify, either in advance, as the work progresses, or after the work is completed. You agree
to pay amounts due for Products and Services, including any late payment fees, as we specify
in the invoice.
If any authority imposes a duty, tax, levy, or fee, excluding those based on our net income,
upon any transaction under this Agreement, then you agree to pay that amount as specified in
the invoice or supply exemption documentation. You are responsible for personal property
taxes for each Product from the date we ship it to you.
One-time and recurring charges may be based on measurements of actual or authorized use
(for example, number of users or processor size for Programs and meter readings for
Maintenance Services). You agree to promptly notify us and pay any applicable charges if
you change the basis of measurement for usage based charges. Recurring charges will be
adjusted accordingly. We do not give credits or refunds for charges already due or paid. In
the event that we change the basis of measurement, the changes will be subject to our price
change terms.
We may increase recurring charges for Products and Services (including hourly rates and
minimums) by giving you three months' written notice. An increase applies on the first day of
the applicable invoice period on or after the effective date we specify in the notice.
We may increase one-time charges without notice. However, an increase to one-time charges
does not apply to you if 1) we receive your order before the announcement date of the
increase and 2) one of the following occurs within three months after our receipt of your
order:
1. we ship you the Product;
2. with our authorization, you make an Additional License Copy of a Program or a copy of a
Distributed Feature; or
3. a Program's group -upgrade charge becomes due.
You receive the benefit of a decrease in charges for amounts which become due on or after
the effective date of the decrease.
1.5 Types of Service for Machines
We provide certain types of repair and exchange service either at your location or at our
service center to keep Machines in, or restore them to, good working order.
Under carry -in service, you may deliver the failing Machine or ship it suitably packaged
(prepaid, unless we specify otherwise) to a location we designate. After we have repaired or
exchanged the Machine, we will return it to you at our expense unless we specify otherwise.
Under on -site service, we may repair the failing Machine at your site or exchange it, at our
discretion, depending on the nature of the failure.
Z125-4575-02 10/95 (MK002) Page 5 of 19
•
•
1.7 Limitation of Liability
Circumstances may arise where, because of a default on our part or other liability, you are
entitled to recover damages from us. In each such instance, regardless of the basis on which
you are entitled to claim damages from us (including fundamental breach, negligence,
misrepresentation, or other contract or tort claim), we are liable only for:
1. payments referred to in our patents and copyrights terms described above;
2. damages for bodily injury (including death) and damage to real property and tangible
personal property; and
3. the amount of any other actual direct damages or loss, up to the greater of $100,000 or the
charges (if recurring, 12 months' charges apply) for the Product or Service that is the
subject of the claim. For purposes of this item, the term "Product" includes Materials and
Licensed Internal Code.
This limit also applies to any of our subcontractors and Program developers. It is the
maximum for which we and our subcontractors and Program developers are collectively
responsible.
Items for Which We are Not Liable
Under no circumstances are we, our subcontractors, or Program developers liable for any of
the following:
1. third -party claims against you for losses or damages (other than those under the first two
items listed above);
2. loss of, or damage to, your records or data; or
3. special, incidental, or indirect damages or for any economic consequential damages
(including lost profits or savings), even if we are informed of their possibility.
1.8 Mutual Responsibilities
Both of us agree that under this Agreement:
1. neither of us grants the other the right to use its trademarks, trade names, or other
designations in any promotion or publication;
2. all information exchanged is nonconfidential. If either of us requires the exchange of
confidential information, it will be made under a signed confidentiality agreement;
3. each is free to enter into similar agreements with others;
4. each grants the other only the licenses and rights specified. No other licenses or rights
(including licenses or rights under patents) are granted;
5. each may communicate with the other by electronic means and such communication is
acceptable as a signed writing. An identification code (called a "USERID") contained in
an electronic document is legally sufficient to verify the sender's identity and the
document's authenticity;
6. each will allow the other reasonable opportunity to comply before it claims that the other
has not met its obligations;
7. neither of us will bring a legal action more than two years after the cause of action arose;
and
8. neither of us is responsible for failure to fulfill any obligations due to causes beyond its
control.
1.9 Your Other Responsibilities
You agree:
1. not to assign, or otherwise transfer, this Agreement or your rights under it, delegate your
obligations, or resell any Service, without prior written consent. Any attempt to do so is
void;
Z125-4575-0210/95 (MK002)
Page 7 of 19
r5 Xa�.2_
. = Customer Agreement
Part 2 - Warranties
2.1 The IBM Warranties
Warranty for IBM Machines
For each IBM Machine, we warrant that it:
is free from defects in materials and workmanship; and
2. conforms to its Specifications.
The warranty period for a Machine is a specified, fixed period commencing on its Date of
Installation.
During the warranty period, we provide warranty service under the type of service we
designate for the Machine or under the alternative service you select under Maintenance
Services.
For us to provide warranty service for a feature, conversion, or upgrade, we require that the
Machine on which it is installed be 1) for certain Machines, the designated, serial -numbered
Machine and 2) at an engineering -change level compatible with the feature, conversion, or
upgrade.
During the warranty period, we manage and install engineering changes that apply to the
Machine.
If a Machine does not function as warranted during the warranty period, we will repair it or
replace it with one that is at least functionally equivalent, without charge. If we are unable to
do so, you may return it to us and we will refund your money.
Warranty for IBM Programs
For each warranted IBM Program, we warrant that when it is used in the Specified Operating
Environment, it will conform to its Specifications.
The warranty period for a Program commences on its Date of Installation and expires when
its Program Services are no longer available.
During the warranty period, we provide warranty service, without charge, for a Program
through Program Services. Program Services are available for a warranted Program for at
least one year following its general availability. Therefore, the duration of warranty service
depends on when you obtain your license.
If a Program does not function as warranted during the first year after you obtain your license
and we are unable to make it do so, you may return the Program to us and we will refund
your money. To be eligible, you must have acquired the Program while Program Services
(regardless of the remaining duration) were available for it.
Warranty for IBM Services
For each IBM Service, we warrant that we perform it:
1. in a workmanlike manner; and
2. according to its current description (including any Completion Criteria) contained in this
Agreement, an Attachment, or a Transaction Document.
Z125-4575-02 10/95 (MK002) Page 9 of 19
-= = Customer Agreement
0 Part 3 - Machines
3.1 Title and Risk of Loss
When we accept your order, we agree to sell you the Machine described in a Transaction
Document. We transfer title to you or, if you choose, your lessor when we ship the Machine.
However, we reserve a purchase money security interest in the Machine until we receive the
amounts due. For a feature, conversion, or upgrade involving the removal of parts which
become our property, we reserve the security interest until we receive the amounts due and
the removed parts. You agree to sign an appropriate document to permit us to perfect our
purchase money security interest.
We bear the risk of loss for the Machine through its Date of Installation. Thereafter, you
assume the risk.
3.2 Production Status
Each IBM Machine is manufactured from new parts, or new and used parts. In some cases,
the Machine may not be new and may have been previously installed. Regardless of the
Machine's production status, our warranty terms apply.
3.3 Installation
For the Machine to function properly, it must be installed in a suitable physical environment.
You agree to provide an environment meeting our specified requirements for the Machine.
We have standard installation procedures. We will successfully complete these procedures
before we consider an IBM Machine (other than a Customer -set-up Machine) installed.
You are responsible for installing a Customer -set-up Machine (we provide instructions to
enable you to do so) and a non -IBM Machine.
Machine Features, Conversions, and Upgrades
We sell features, conversions, and upgrades for installation on Machines, and, in certain
instances, only for installation on a designated, serial -numbered Machine. Many of these
transactions involve the removal of parts and their return to us. As applicable, you represent
that you have the permission from the owner and any lien holders to 1) install features,
conversions, and upgrades and 2) transfer ownership and possession of removed parts (which
become our property) to us. You further represent that all removed parts are genuine and
unaltered. A part that replaces a removed part will assume the warranty and Maintenance
Service status of the replaced part.
You agree to allow us to install the feature, conversion, or upgrade within 30 days of its
delivery. Otherwise, we may terminate the transaction and you must return the feature,
conversion, or upgrade to us at your expense.
3.4 Licensed Internal Code
Certain Machines we specify (called "Specific Machines") use Licensed Internal Code (called
"Code"). We own copyrights in Code. We own all copies of Code, including all copies made
from them.
We will identify each Specific Machine in a Transaction Document. If you are the rightful
possessor of a Specific Machine, we grant you a license to use the Code (or any replacement
Z125-4575-02 10/95 (MK002) Page 11 of 19
=r-- Customer Agreement
Part 4 - Programs
4.1 License
When we accept your order, we grant you a non-exclusive license for the Program. Programs
are copyrighted and licensed (not sold).
4.2 License Details
Under each license, we authorize you to:
1. use the Program's machine-readable portion on only the Designated Machine or, if it is
inoperable, a backup Machine. If the Designated Machine cannot assemble or compile
the Program, you may assemble or compile it on another Machine.
If a Program is stored on a network server solely for the purpose of being distributed to
other Machines, it is not considered to be in use.
Certain Programs IBM designates for home or travel use may be stored on the
Designated Machine and another Machine, provided the Program is not in active use on
both Machines at the same time.
If you change the Designated Machine previously identified to us, you agree to notify us of
the change and its date;
2. make and store copies of a Program, managed by a license management tool, on
Designated Machines under control of that tool, but your use may not exceed the total
number of users or amount of resource authorized;
3. do the following to support your authorized use as described above —
a. make copies of the Program, provided you reproduce copyright notices and any other
legends of ownership on each copy or partial copy, and
b. merge the Program into another Program; and
4. use any portion of the Program we 1) provide in source form, or 2) mark restricted (for
example, "Restricted Materials of IBM") only to —
a. resolve problems related to the use of the Program, and
b, modify the Program so that it will work together with other products.
You agree to comply with any additional terms (such as usage restrictions) we may place on
a Program. We identify these in the Program's Specifications or in a Transaction Document.
Actions You May Not Take
You agree not to do any of the following:
1. sublicense, assign, or transfer (unless we specify otherwise in the Program Specifications)
the license for any Program;
2. distribute any Program to any third party; or
3. reverse assemble, reverse compile, or otherwise translate any Program.
4.3 Program Features Not Used on the Designated Machine
Some Programs have features that are designed for use on Machines other than the
Designated Machine on which the Program is used. You may make copies of a feature and
its documentation in support of your authorized use of the Program. Persons using a
Machine outside of your Enterprise may use the copy only to access the associated Program.
You agree to pay us for each copy you make of any feature we refer to as a "Distributed
Feature."
Z125-4575-02 10/95 (MK002) Page 13 of 19
•
•
We provide Program Services 1) on an on -going basis (with at least six months' written notice
before we terminate services for a Program), 2) until the date we specify, or 3) for a period we
specify.
4.9 License Termination
You may terminate the license for a Program on one month's written notice or at any time
during the Program's testing period.
Licenses for certain replacement Programs may be acquired for an upgrade charge. In this
event, when you license these Programs, you agree to terminate the license of the replaced
Program.
We may terminate any license we grant you under the terms of this Part if you do not meet
your obligations regarding Programs.
You agree to destroy all copies of the Program after license termination. However, you may
keep a copy in your archives.
Z125-4575-02 10/95 (MK002) Page 15 of 19
-?--Ri 7 *;
5.2 Continuing Support Services
We provide Continuing Support Services on a contract -period basis to assist you in improving
the availability of your systems. We provide the terms specific to a Service in an Attachment
or Statement of Work. If we make a change to the terms that 1) affects your current contract
period and 2) you consider unfavorable, on your request, we will defer it until the next
anniversary of the start of the contract period.
Each of us agrees to notify the other (before your current contract period expires) if they do
not intend to renew.
Continuing Support Services Termination
You may terminate a Continuing Support Service by providing us one month's written notice
upon fulfillment of any minimum commitments.
The termination of Services with contract periods longer than one year results in adjustment
charges. In this case, you agree to pay the lesser of:
1. the difference between the total charges you paid through the termination date and those
You would have paid for the same period of time at the charge level of the next shorter
contract period;
the monthly charge multiplied by the applicable adjustment charge factor; or
the total charges remaining to complete the contract period.
When an increase results in a change to your total monthly charge for a Service of more than
the adjustment charge we specify, you may terminate that Service on the effective date of the
increase. Adjustment or termination charges do not apply in this case.
5.3 Project Support Services
Following are examples of Project Support Services we make available to you:
1. Consulting Services, such as reengineering business processes, linking business and
technology strategies, improving manufacturing processes, and enhancing application
development and information processing capabilities. We are responsible for managing
the engagement;
2. Custom Services, such as managing and performing project tasks to deliver Materials or
acting as a prime contractor to deliver an integrated system that may consist of a
combination of Products, Services, Materials, and other items. We are responsible for
managing the project, unless specified otherwise in the Statement of Work; and
3. Hourly Services, such as assisting on a technical task. You are responsible for managing
the project and for any results achieved. The Statement of Work will specify the hourly
rate and estimated number of hours. The estimate is not a fixed -price commitment.
Charges = (actual hours x rate) + expenses.
Hourly Services end when the first of the following occurs: 1) you advise us, in writing,
that further Services are not required, 2) we provide the specified number of hours, or 3)
the estimated end date expires. You may authorize, in writing, additional hours or
extension of the end date.
Project Support Services Termination
Either of us may terminate a project on written notice to the other if the other does not meet
its obligations concerning the Statement of Work. Upon termination, we will stop our work in
an orderly manner as soon as practical.
You agree to pay us for all Services we provide and an Materials we deliver
p Y i er through the
project's termination and any charges we incur in terminating subcontracts.
Z125-4575-02 10/95 (MK002) Page 17 of 19
C�
Type II Materials are those, created during the Service performance period or otherwise (such
as those that preexist the Service), in which we or third parties have all right, title, and
interest (including ownership of copyright). We will deliver one copy of the specified Materials
to you. We grant you an irrevocable, nonexclusive, worldwide, paid -up license to use,
execute, reproduce, display, perform, and distribute, within your Enterprise only, copies of
Type II Materials.
Each of us agrees to reproduce the copyright notice and any other legend of ownership on
any copies made under the licenses granted in this Section.
Z125-4575-02 10/95 (MK002) Page 19 of 19
9� -,z- -�-
•
IN WITNESS WHEREOF, the parties have hereunto set their hands and seals on the
day and year first above written.
WITNESSES:
I L <';jixWa
0
ATTEST:
Carol A. Evans
City Clerk
Apprpqd As to Form: _ t
litchell S. Kra
City Attorney
CITY OF MA
By:
Joe Schreiber
Mayor
�B : � � s �1 ' ��
v
Robert S. Noe, Jr. 1�
City Manager
By:
Title
qz
By:
Title