Loading...
HomeMy WebLinkAboutContract 42716CITY SECRETARY SOFTWARE LETTER OPTION CONTRACT NO' L _ 12—x' 20 December 2011 Fernando Costa Assistant City Manager City of Fort Worth 1000 Throckmorton St. Fort Worth, Texas 76102 To Fernando Costa: International Business Machines Corporation ( "IBM ") is pleased to present City of Fort Worth ( "you" or "You ") with the IBM special software option described in this letter and the attached ISLO Appendix (collectively "ISLO" or "Agreement ") which will enable you to acquire several software Programs, other IBM eligible products, as well as Software Maintenance or Software Subscription and Support (independently or collectively "S &S ") and Program - related Services (collectively the "ISLO Offerings ") for a single bottom -line price as more fully described in the attached ISLO Appendix. Upon your signing below, you accept this ISLO, and agree to pay IBM the non - cancelable payment of $346,042.49 ("Option Charge's on or before the following date: 31 December 2011, to acquire the Listed Programs and S &S. Payment is due upon receipt of invoice. The Option Charge is exclusive of any applicable taxes, duties and fees. This ISLO may only be terminated upon the signed written agreement of both you and IBM. Upon termination, you will pay to IBM any unpaid portion of the Option charges and any amounts due pursuant to Section E.3 of the attached ISLO Appendix on or before the date of the termination. The prices and terms of this ISLO must be agreed to and signed by you by 31 December 2011 or it is void. Sincerely, Interrtat!onal Business achin rporation By: Name. -�' Title: A C' C<,�r1Y1'��s —cam 11/ 4'�Lj Agreed to: City of Fort Worth ByC5GGZ� 6100 Authorized Signature Name: Fernando Costa, Assistant City Manager Date: Approved as to Form and Legality: Authoriz Signature Name: Maleshi B. Farmer, Assistant City Attorney Date: i7 /9aTinI t Customer number: 1784461 Customer address: 1000 Throckmorton St. Fort Worth, Texas 76102 Attest: By4h. Authorized Signature Name: Me,ty Flendrix, City Secretary Date: Coy► ��- �� r- ------.--__-- OFFICIAL RECORD CITY SECRETARY -FT. WORTH, TX � ISLO 08242011 _ _ Page 2 of 4 SOFTWARE LETTER OPTION ISLO Appendix A. Programs: You may deploy and use each Program listed in the tables below (" Listed Programs or Eligible Programs ") up to the Quantity specified in the table below for each Program ( "Maximum Quantities ") subject to the Associated Documents (defined below) that govern your use of that Eligible Program and the restrictions contained herein. Included in the Option Charges is S &S which has a coverage period up to and including 31 December 2012. Table 1 Part Number Description Quantity IBM MAXIMO ASSET MANAGEMENT AUTHORIZED USER Coverage DOGX6LL LICENSE + SW SUBSCRIPTION & SUPPORT 12 MONTHS 5 Quantity IBM MAXIMO ASSET MANAGEMENT LIMITED USE To AUTHORIZED USER LICENSE + SW SUBSCRIPTION & DOGXSLL SUPPORT 12 MONTHS 87 PROJECT AUTHORIZED USER ANNUAL SW IBM MAXIMO ASSET MANAGEMENT SCHEDULER FCT AUTHORIZED USER LICENSE + SW SUBSCRIPTION & SUBSCRIPTION & SUPPORT RENEWAL DOAYYLL SUPPORT 12 MONTHS 5 IBM MAXIMO EVERYPLACE AUTHORIZED USER LICENSE DOGXBLL + SW SUBSCRIPTION & SUPPORT 12 MONTHS 5 AUTHORIZED USER ANNUAL SW SUBSCRIPTION IBM TIVOLI MAXIMO LINEAR ASSET MANAGER AUTHORIZED USER LICENSE + SW SUBSCRIPTION & & SUPPORT RENEWAL D041 QLL SUPPORT 12 MONTHS 5 IBM MAXIMO FOR UTILITIES AUTHORIZED USER DOGXTLL LICENSE + SW SUBSCRIPTION & SUPPORT 12 MONTHS 30 AUTHORIZED USER ANNUAL SW SUBSCRIPTION IBM MAXIMO FOR UTILITIES AUTHORIZED USER FROM MAXIMO ASSET MANAGEMENT AUTHORIZED USER & SUPPORT RENEWAL 3 TRADE UP LICENSE + SW SUBSCRIPTION & SUPPORT 12 12/31/2012 DOGXULL MONTHS 5 Table 2 All Part Numbers in Table 2 are for Subscription & Support Renewal. B. IBM Program Price Offer - Acquisition of Additional Programs: Prior to the earlier of 31 December 2014 or the termination of this Addendum ("Expiration Date "), for each order of IBM Programs acquired pursuant to this section that IBM receives from you in the amount of $25,000.00 or more you shall be entitled to receive the pricing listed below for ISLO 08222011 S &S S &S Part Coverage Coverage Number Description Quantity From To IBM TIVOLI MAXIMO ADAPTOR FOR MICROSOFT PROJECT AUTHORIZED USER ANNUAL SW E036TLL SUBSCRIPTION & SUPPORT RENEWAL 5 04/01/2012 12/31/2012 IBM MAXIMO ASSET MANAGEMENT AUTHORIZED USER ANNUAL SW SUBSCRIPTION EOAU2LL & SUPPORT RENEWAL 44 04/01/2012 12/31/2012 IBM MAXIMO ASSET MANAGEMENT AUTHORIZED USER ANNUAL SW SUBSCRIPTION E0AU2LLl & SUPPORT RENEWAL 3 11/01/2012 12/31/2012 IBM MAXIMO ASSET MANAGEMENT LIMITED USE AUTHORIZED USER ANNUAL SW SUBSCRIPTION EOAUILL & SUPPORT RENEWAL 81 04/01/2012 12/31/2012 IBM MAXIMO ASSET MANAGEMENT SELF SERVICE REQUESTOR AUTHORIZED USER ANNUAL SW SUBSCRIPTION & SUPPORT EOAU3LL RENEWAL 50 04/01/2012 1 12/31/2012 All Part Numbers in Table 2 are for Subscription & Support Renewal. B. IBM Program Price Offer - Acquisition of Additional Programs: Prior to the earlier of 31 December 2014 or the termination of this Addendum ("Expiration Date "), for each order of IBM Programs acquired pursuant to this section that IBM receives from you in the amount of $25,000.00 or more you shall be entitled to receive the pricing listed below for ISLO 08222011 Page 3 of 4 SOFTWARE LETTER OPTION additional quantities of programs listed in Table 1. To be eligible for the pricing referenced in this section, the Programs: (1) cannot be deployed prior to the time of the order, and (2) must be made generally available by IBM to its customers (i.e., not withdrawn from marketing and/or S &S), and (3) must be ordered directly from IBM by providing written authorization to IBM (e.g., order form, order letter, purchase order) prior to the Expiration Date: Passport Advantage Programs 30 % discount off then current Passport Advantage List price. Prices are based on the IBM prices available in the country in which you acquire the Programs C. Acquisition of Additional Subscription & Support: Provided (i) your S &S has not lapsed; (ii) S &S is made generally available for the affected Program(s) (e.g., S &S has not been withdrawn); and (iii) you renew S &S for all quantities of all Eligible Programs listed on Table 1 and Table 2 herein, prior to the beginning of the applicable S &S Coverage Period below, you shall be entitled to receive prices not to exceed those listed below for acquisitions of S &S for the quantities of all the Eligible Programs listed in Table 1 and Table 2 herein. S &S must be ordered directly from IBM for the S &S Coverage Periods and at prices not to exceed those shown in the table below by providing written authorization to IBM (e.g., order form, order letter, purchase order) at least 30 days prior to the beginning of the applicable S &S Coverage Period. Schedule A Anniversary Date S &S Coverage Period Not to Exceed Price 12131/2012 01/01/2013 —12/31 /2013 $128,735.34 12131/2013 01/01/2014 —12/31 /2014 $137.746.81 D. Substitution: If an Eligible Program listed on Table 1 is on Schedule B to this Addendum it is a "Substitutable Program ". "Program Family" shall mean any one of the categories listed on Schedule B and the Programs listed in Schedule B for that category. Prior to the earlier of the termination of this Addendum and 31 December 2013, and subject to the Total Cap, you may exchange, on a dollar -for dollar basis, according to the unit exchange price contained in Schedule B for each Program ( "Unit Exchange Price "), only those quantities of Substitutable Programs that have not been deployed ( "Undeployed Programs ") with other Program(s) listed on Schedule B, provided the Undeployed Programs are in the same Program Family as the Substitutable Programs. The aggregate dollar amount of the Unit Exchange Prices for all Substitutable Programs that you may replace may not exceed the following maximum ("Total Cap "): $59,921.00. Notwithstanding the foregoing, if IBM has provided you with written notice that a Program has been withdrawn from marketing, then you may not further increase the licensed quantity for the affected Program using substitution without IBM's prior written consent. If a Substitutable Program has been replaced using substitution with a Program which requires a license key, IBM will provide you with the quantity of license keys needed to use the Program. You must notify IBM, in writing, of the name and quantities of all the Programs involved in the substitution before you may deploy any Programs from Schedule B selected using substitution as described above. Once a Program's quantity has been increased using substitution, it may not be decreased by any subsequent substitution. Schedule B ISLO 08222011 Unit Lic Part Exchange No Description Value IBM MAXIMO ASSET MANAGEMENT DOGX6LL AUTHORIZED USER 4,740.00 IBM MAXIMO ASSET MANAGEMENT LIMITED DOGXSLL I USE AUTHORIZED USER 2,380.00 IBM MAXIMO ASSET MANAGEMENT SCHEDULER DOAYYLL FCT AUTHORIZED USER 1 060.00 DOGXBLL IBM MAXIMO EVERYPLACE AUTHORIZED USER 800.00 IBM TIVOLI MAXIMO LINEAR ASSET MANAGER D041 QLL AUTHORIZED USER 530.00 DOGXTLL IBM MAXIMO FOR UTILITIES AUTHORIZED USER 5,700.00 IBM MAXIMO FOR UTILITIES AUTHORIZED USER FROM MAXIMO ASSET MANAGEMENT DOGXULL AUTHORIZED USER TRADE UP 2,860.00 ISLO 08222011 Page 4 of 4 SOFTWARE LETTER OPTION E. Other Terms: 1. This ISLO starts on 31 December 2011 ( "Start Date ") and remains in effect up to and including 31 December 2014 ( "End Date "), unless terminated earlier as provided herein. 2. For purposes of this ISLO, the International Program License Agreement between you and IBM ( "IPLA), and the International Agreement for the Acquisition of Software Subscription and Support ( "IAASSS ") are each an "Associated Document ". The Associated Documents are incorporated into this ISLO by reference, and for purposes of this ISLO only, the terms of this ISLO are in addition to the Associated Documents. Any capitalized terms that are not defined in this ISLO shall have the meanings set forth in the Associated Documents. 3. If your deployment of any of the Eligible Programs exceeds the Maximum Quantities, you will pay IBM separately for such excess, as IBM specifies in an invoice, at then - current prices. 4. You are responsible for (a) creating and maintaining accurate records of all deployments of Eligible Programs and of use authorizations (quantities), (b) ensuring that you do not exceed your use authorizations, and (c) remaining in compliance with the terms of this Agreement and the Associated Documents, including, without limitation, all of IBM's applicable licensing and pricing qualification terms (independently or collectively the "License Terms "). Upon reasonable notice IBM may verify your compliance with the License Terms at all sites and for all environments in which you use (for any purpose) Eligible Programs subject to the License Terms. Such verification will be conducted in a manner that minimizes disruption to your business and may be conducted on your premises, during normal business hours. IBM may use an independent auditor to assist with such verification provided that IBM has a written confidentiality agreement in place with such auditor. You agree to provide to IBM and its auditors accurate written records, system tool outputs, and other system information sufficient to provide auditable verification that your use of all Eligible Programs is in compliance with the License Terms. The rights and obligations set forth in this paragraph remain in effect during the term of this Agreement and for two years thereafter. IBM will notify you in writing if any such verification indicates that you have used any Eligible Program in excess of its use authorizations or are otherwise not in compliance with the License Terms. In addition to your obligations to pay for any excess use as required by Section E.3, you agree to promptly pay directly to IBM the charges that IBM specifies in an invoice for: 1) S &S for such excess use for the lesser of the duration of such excess use or two years, and 2) any additional charges and other liabilities determined as a result of such verification. 5. This ISLO will not preclude, or in any way limit, IBM from offering similar terms to other IBM customers. 6. This ISLO may not be combined with any allowance, discount, or other offering available for the ISLO Offerings listed herein. 7. Acquisitions made under this ISLO may not be sublicensed, resold, rented, leased or transferred to third parties. 8. Any terms of this ISLO, which by their nature extend beyond the date this ISLO ends, remain in effect until fulfilled and apply to respective successors and assignees. 9. The parties agree that they will not bring a legal action more than four years after the cause of action arose, unless otherwise provided by local law without the possibility of contractual waiver. 10. You may not transfer or assign this ISLO without the written consent of IBM. This ISLO shall be binding upon and inure to the benefit of the parties and their respective successors and assignees. 11. In the event that any provision of this ISLO is held to be invalid or unenforceable, the remaining provisions of this ISLO remain in full force and effect. 12. Both you and IBM consent to the application of the law of the State of Texas to govern, interpret, and enforce all of your and IBM's rights, duties, and obligations arising from, or relating in any manner to, the subject matter of this ISLO, without regard to conflict of law principles. 13. The terms of this ISLO and the Associated Documents constitute the complete agreement between us regarding this subject matter, and replace any prior oral and/or written communications between us regarding this subject matter. If there is a conflict between the terms of this ISLO and an Associated Document, the terms of this ISLO shall prevail. 1» ISLO 08222011 International Program License Agreement Part 1 - General Terms BY DOWNLOADING, INSTALLING, COPYING, ACCESSING, OR USING THE PROGRAM YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ACCEPTING THESE TERMS ON BEHALF OF ANOTHER PERSON OR A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE FULL AUTHORITY TO BIND THAT PERSON, COMPANY, OR LEGAL ENTITY TO THESE TERMS. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT DOWNLOAD, INSTALL, COPY, ACCESS, OR USE THE PROGRAM; AND • PROMPTLY RETURN THE PROGRAM AND PROOF OF ENTITLEMENT TO THE PARTY FROM WHOM YOU ACQUIRED IT TO OBTAIN A REFUND OF THE AMOUNT YOU PAID. IF YOU DOWNLOADED THE PROGRAM, CONTACT THE PARTY FROM WHOM YOU ACQUIRED IT. "IBM" is International Business Machines Corporation or one of its subsidiaries. "License Information" ( "LI ") is a document that provides information specific to a Program. The Program's LI is available at hftp://www.ibm.com/software/sla/. The LI may also be found in a file in the Program's directory, by the use of a system command, or as a booklet which accompanies the Program. "Program" is the following, including the original and all whole or partial copies: 1) machine - readable instructions and data, 2) components, 3) audio - visual content (such as images, text, recordings, or pictures), 4) related licensed materials, and 5) license use documents or keys, and documentation. A "Proof of Entitlement" ( "PoE ") is evidence of Your authorization to use a Program at a specified level. That level may be measured, for example, by the number of processors or users. The PoE is also evidence of Your eligibility for warranty, future upgrade prices, if any, and potential special or promotional opportunities. If IBM does not provide You with a PoE, then IBM may accept the original paid sales receipt or other sales record from the party (either IBM or its reseller) from whom You acquired the Program, provided that it specifies the name of the Program and the usage level acquired. "You" and "Your' refer either to an individual person or to a single legal entity. This Agreement includes Part 1 - General Terms, Part 2 - Country- unique Terms (if any), License Information, and Proof of Entitlement and is the complete agreement between You and IBM regarding the use of the Program. It replaces any prior oral or written communications between You and IBM concerning Your use of the Program. The terms of Part 2 and License Information may replace or modify those of Part 1. To the extent there is a conflict between the terms of this Agreement and those of the IBM International Passport Advantage Agreement, the terms of the latter agreement prevail. i. Entitlement License The Program is owned by IBM or an IBM supplier, and is copyrighted and licensed, not sold. IBM grants You a nonexclusive license to use the Program when you lawfully acquire it. You may 1) use the Program up to the level of use specified in the PoE and 2) make and install copies, including a backup copy, to support such use. The terms of this license apply to each copy You make. You will reproduce all copyright notices and all other legends of ownership on each copy, or partial copy, of the Program. If You acquire the Program as a program upgrade, after You install the upgrade You may not use the Program from which You upgraded or transfer it to another party. You will ensure that anyone who uses the Program (accessed either locally or remotely) does so only for Your authorized use and complies with the terms of this Agreement. You may not 1) use, copy, modify, or distribute the Program except as provided in this Agreement; 2) reverse assemble, reverse compile, or otherwise translate the Program except as specifically permitted by law without the possibility of contractual waiver; or 3) sublicense, rent, or lease the Program. IBM may terminate Your license if You fail to comply with the terms of this Agreement. If IBM does so, You must destroy all copies of the Program and its PoE. Money -back Guarantee If for any reason You are dissatisfied with the Program and You are the original licensee, You may obtain a refund of the amount You paid for it, if within 30 days of your invoice date You return the Program and its PoE to the party from whom You obtained it. If You downloaded the Program, You may contact the party from whom You acquired it for instructions on how to obtain the refund. Upon such return of the Program, Customer's obligations with regards to S &S shall also end. Program Transfer You may transfer a Program and all of Your license rights and obligations to another party only if that party agrees to the terms of this Agreement. When You transfer the Program, You must also transfer a copy of this Agreement, including the Program's PoE. After the transfer, You may not use the Program. Z125- 3301 -12 09/2002 Page 1 of 9 ii. Charges The amount payable for a Program license is a one -time charge. One -time charges are based on the level of use acquired which is specified in the PoE. IBM does not give credits or refunds for charges already due or paid, except as specified elsewhere in this 4reement. If You wish to increase the level of use, notify IBM or the party from whom You acquired it and pay any applicable charges. If any authority imposes a duty, tax, levy or fee, excluding those based on IBM's net income, upon the Program, then You agree to pay the amount specified or supply exemption documentation. You are responsible for any personal property taxes for the Program from the date that You acquire it. iii. Limited Warranty IBM warrants that when the Program is used in the specified operating environment it will conform to its specifications. The warranty applies only to the unmodified portion of the Program. IBM does not warrant uninterrupted or error -free operation of the Program or that IBM will correct all Program defects. You are responsible for the results obtained from the use of the Program. IBM provides You with access to IBM databases containing information on known Program defects, defect corrections, restrictions, and bypasses at no additional charge. Consult the IBM Software Support Guide for further information at http://www.ibm.com/software/support. IBM will maintain this information for at least one year after the original licensee acquires the Program ( "Warranty Period "). If the Program does not function as warranted during the Warranty Period and the problem cannot be resolved with information available in the IBM databases, You may return the Program and its PoE to the party (either IBM or its reseller) from whom You acquired it and receive a refund in the amount You paid. If You downloaded the Program, You may contact the party from whom You acquired it for instructions on how to obtain the refund. THESE WARRANTIES ARE YOUR EXCLUSIVE WARRANTIES AND REPLACE ALL OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF EXPRESS OR IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. IN THAT EVENT, SUCH WARRANTIES ARE LIMITED IN DURATION TO THE WARRANTY PERIOD. NO WARRANTIES APPLY AFTER THAT PERIOD. SOME STATES OR JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU. THESE WARRANTIES GIVE YOU SPECIFIC LEGAL RIGHTS AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE OR JURISDICTION TO JURISDICTION. iv. Limitation of Liability Circumstances may arise where, because of a default on IBM's part or other liability, You are entitled to recover damages from IBM. In each such instance, regardless of the basis on which You may be entitled to claim damages from IBM, (including fundamental breach, negligence, misrepresentation, or other contract or tort claim), IBM is liable for no more than 1) damages for bodily injury (including death) and damage to real property and tangible personal property and 2) the amount of any other actual direct damages up to the charges for the Program that is the subject of the claim. This limitation of liability also applies to IBM's Program developers and suppliers. It is the maximum for which they and IBM are collectively responsible. UNDER NO CIRCUMSTANCES IS IBM, ITS PROGRAM DEVELOPERS OR SUPPLIERS LIABLE FOR ANY OF THE FOLLOWING, EVEN IF INFORMED OF THEIR POSSIBILITY: 1. LOSS OF, OR DAMAGE TO, DATA; 2. SPECIAL, INCIDENTAL, OR INDIRECT DAMAGES, OR FOR ANY ECONOMIC CONSEQUENTIAL DAMAGES; OR 3. LOST PROFITS, BUSINESS, REVENUE, GOODWILL, OR ANTICIPATED SAVINGS. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. v. General 1. Nothing in this Agreement affects any statutory rights of consumers that cannot be waived or limited by contract. 2. In the event that any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions of this Agreement remain in full force and effect. 3. You agree to comply with all applicable export and import laws and regulations. 4. You agree to allow IBM to store and use Your contact information, including names, phone numbers, and e-mail addresses, anywhere they do business. Such information will be processed and used in connection with our business relationship, and may be provided to contractors, Business Partners, and assignees of IBM for uses consistent with their collective business activities, including communicating with You (for example, for processing orders, for promotions, and for market research). Z125- 3301 -12 09/2002 Page 2 of 9 5. Neither You nor IBM will bring a legal action under this Agreement more than four years after the cause of action arose unless otherwise provided by local law without the possibility of contractual waiver or limitation. 6. Neither You nor IBM is responsible for failure to fulfill any obligations due to causes beyond its control. 7. This Agreement will not create any right or cause of action for any third party, nor will IBM be responsible for any third party claims against You except, as permitted by the Limitation of Liability section above, for bodily injury (including death) or damage to real or tangible personal property for which IBM is legally liable. vi. Governing Law, Jurisdiction, and Arbitration Governing Law Both You and IBM consent to the application of the laws of the country in which You acquired the Program license to govern, interpret, and enforce all of Your and IBM's rights, duties, and obligations arising from, or relating in any manner to, the subject matter of this Agreement, without regard to conflict of law principles. The United Nations Convention on Contracts for the International Sale of Goods does not apply. Jurisdiction All of our rights, duties, and obligations are subject to the courts of the country in which You acquired the Program license. s YJ Z125- 3301 -12 09/2002 Page 3 of 9 IBM International Program License Agreement Part 2 - Country- unique Terms AMERICAS ARGENTINA: Governing Law, Jurisdiction, and Arbitration (Section 6): The following exception is added to this section: Any litigation arising from this Agreement will be settled exclusively by the Ordinary Commercial Court of the city of Buenos Aires. BRAZIL: Governing Law, Jurisdiction, and Arbitration (Section 6): The following exception is added to this section: Any litigation arising from this Agreement will be settled exclusively by the court of Rio de Janeiro, RJ. CANADA: Limitation of Liability (Section 4): The following replaces item 1 in the first paragraph of this section: 1) damages for bodily injury (including death) and physical harm to real property and tangible personal property caused by IBM's negligence; and General (Section 5): The following replaces item 7: 7. This Agreement will not create any right or cause of action for any third party, nor will IBM be responsible for any third party claims against You except as permitted by the Limitation of Liability section above for bodily injury (including death) or physical harm to real or tangible personal property caused by IBM's negligence for which IBM is legally liable." Governing Law, Jurisdiction, and Arbitration (Section 6): The phrase "the laws of the country in which You acquired the Program license" in the Goveming Law subsection is replaced by the following: the laws in the Province of Ontario" PERU: Limitation of Liability (Section 4): The following is added at the end of this section: In accordance with Article 1328 of the Peruvian Civil Code, the limitations and exclusions specified in this section will not apply to damages caused by IBM's willful misconduct ( "dolo ") or gross negligence ( "culpa inexcusable "). UNITED STATES OF AMERICA: General (Section 5): The following is added to this section: U.S. Government Users Restricted Rights - Use, duplication or disclosure restricted by the GSA ADP Schedule Contract with the IBM Corporation. Governing Law, Jurisdiction, and Arbitration (Section 6): The phrase "the laws of the country in which You acquired the Program license" in the Goveming Law subsection is replaced by the following: the laws of the State of Texas, United States of America ASIA PACIFIC AUSTRALIA: Limited Warranty (Section 3): The following is added: The warranties specified this Section are in addition to any rights You may have under the Trade Practices Act 1974 or other legislation and are only limited to the extent permitted by the applicable legislation. Limitation of Liability (Section 4): The following is added: Where IBM is in breach of a condition or warranty implied by the Trade Practices Act 1974, IBM's liability is limited to the repair or replacement of the goods, or the supply of equivalent goods. Where that condition or warranty relates to right to sell, quiet possession or clear title, or the goods are of a kind ordinarily acquired for personal, domestic or household use or consumption, then none of the limitations in this paragraph apply. Governing Law, Jurisdiction, and Arbitrption (Section 6): The phrase "the laws of the country in which You acquired the Program license" in the Governing Law subsection is replaced by the following: the laws of the State or Territory in which the You acquired the Program license CAMBODIA, LAOS, and VIETNAM: Governing Law, Jurisdiction, and Arbitration (Section 6): The phrase "the laws of the country in which You acquired the Program license" in the Governing Law subsection is replaced by the following: the laws of the State of New York, United States of America The following is added to this section: Arbitration Disputes arising out of or in connection with this Agreement shall be finally settled by arbitration which shall be held in Singapore in accordance with the Arbitration Rules of Singapore International Arbitration Center ( "SIAC Rules ") then in effect. The arbitration award shall be final and binding for the parties without appeal and shall be in writing and set forth the findings of fact and the conclusions of law. Z125- 3301 -12 09/2002 Page 4 of 9 The number of arbitrators shall be three, with each side to the dispute being entitled to appoint one arbitrator. The two arbitrators appointed by the parties shall appoint a third arbitrator who shall act as chairman of the proceedings. Vacancies in the post of chairman shall be filled by the president of the SIAC. Other vacancies shall be filled by the respective nominating party. Proceedings shall continue from the stage they were at when the vacancy occurred. If one of the parties refuses or otherwise fails to appoint an arbitrator within 30 days of the date the other party appoints its, the first appointed arbitrator shall be the sole arbitratok provided that the arbitrator was validly and properly appointed. All proceedings shall be conducted, including all documents presented in such proceedings, in the English language. The English language version of this Agreement prevails over any other language version. HONG KONG S.A.R. and MACAU S.A.R. of China: Governing Law, Jurisdiction, and Arbitration (Section 6): The phrase "the laws of the country in which You acquired the Program license" in the Governing Law subsection is replaced by the following: the laws of Hong Kong Special Administrative Region of China INDIA: Limitation of Liability (Section 4): The following replaces the terms of items 1 and 2 of the first paragraph: 1) liability for bodily injury (including death) or damage to real property and tangible personal property will be limited to that caused by IBM's negligence; and 2) as to any other actual damage arising in any situation involving nonperformance by IBM pursuant to, or in any way related to the subject of this Agreement, IBM's liability will be limited to the charge paid by You for the individual Program that is the subject of the claim. General (Section 5): The following replaces the terms of item 5: If no suit or other legal action is brought, within three years after the cause of action arose, in respect of any claim that either party may have against the other, the rights of the concerned party in respect of such claim will be forfeited and the other party will stand released from its obligations in respect of such claim. Governing Law, Jurisdiction, and Arbitration (Section 6): The following is added to this section: Arbitration Disputes arising out of or in connection with this Agreement shall be finally settled by arbitration which shall be held in Bangalore, India in accordance with the laws of India then in effect. The arbitration award shall be final and binding for the parties without appeal and shall be in writing and set forth the findings of fact and the conclusions of law. The number of arbitrators shall be three, with each side to the dispute being entitled to appoint one arbitrator. The two arbitrators appointed by the parties shall appoint a third arbitrator who shall act as chairman of the proceedings. Vacancies in the post of chairman shall be filled by the president of the Bar Council of India. Other vacancies shall be filled by the respective nominating party. Proceedings shall continue from the stage they were at when the vacancy occurred. If one of the parties refuses or otherwise fails to appoint an arbitrator within 30 days of the date the other party appoints its, the first appointed arbitrator shall be the sole arbitrator, provided that the arbitrator was validly and properly appointed. All proceedings shall be conducted, including all documents presented in such proceedings, in the English language. The English language version of this Agreement prevails over any other language version. JAPAN: General (Section 5): The following is inserted after item 5: Any doubts concerning this Agreement will be initially resolved between us in good faith and in accordance with the principle of mutual trust. MALAYSIA: Limitation of Liability (Section 4): The word "SPECIAL" in item 2 of the third paragraph is deleted: NEW ZEALAND: Limited Warranty (Section 3): The following is added: The warranties specified in this Section are in addition to any rights You may have under the Consumer Guarantees Act 1993 or other legislation which cannot be excluded or limited. The Consumer Guarantees Act 1993 will not apply in respect of any goods which IBM provides, if You require the goods for the purposes of a business as defined in that Act. Limitation of Liability (Section 4): The following is added: Where Programs are not acquired for the purposes of a business as defined in the Consumer Guarantees Act 1993, the limitations in this Section are subject to the limitations in that Act. PEOPLE'S REPUBLIC OF CHINA: Charges (Section 2): The following is added: All banking charges incurred in the People's Republic of China will be borne by You and those incurred outside the People's Republic of China will be borne by IBM. Governing Law, Jurisdiction, and Arbitration (Section 6): The phrase "the laws of the country in which You acquired the Program license" in the Governing Law subsection is replaced by the following: the laws of the State of New York, United States of America (except when local law requires otherwise) Z125- 3301 -12 09/2002 Page 5 of 9 PHILIPPINES: Limitation of Liability (Section 4): The following replaces the terms of item 2 of the third paragraph: 2. special (including nominal and exemplary damages), moral, incidental, or indirect damages or for any economic consequential damages; or Governing Law, Jurisdiction, and Arbitration (Section 6): The following is added to this section: Arbitration Disputes arising out of or in connection with this Agreement shall be finally settled by arbitration which shall be held in Metro Manila, Philippines in accordance with the laws of the Philippines then in effect. The arbitration award shall be final and binding for the parties without appeal and shall be in writing and set forth the findings of fact and the conclusions of law. The number of arbitrators shall be three, with each side to the dispute being entitled to appoint one arbitrator. The two arbitrators appointed by the parties shall appoint a third arbitrator who shall act as chairman of the proceedings. Vacancies in the post of chairman shall be filled by the president of the Philippine Dispute Resolution Center, Inc. Other vacancies shall be filled by the respective nominating party. Proceedings shall continue from the stage they were at when the vacancy occurred. If one of the parties refuses or otherwise fails to appoint an arbitrator within 30 days of the date the other party appoints its, the first appointed arbitrator shall be the sole arbitrator, provided that the arbitrator was validly and properly appointed. All proceedings shall be conducted, including all documents presented in such proceedings, in the English language. The English language version of this Agreement prevails over any other languve version. SINGAPORE: Limitation of Liability (Section 4): The words "SPECIAL" and "ECONOMIC" are deleted from item 2 of the third paragraph. General (Section 5): The following replaces the terms of item 7: Subject to the rights provided to IBM's suppliers and Program developers as provided in Section 4 above (Limitation of Liability), a person who is not a party to this Agreement shall have no right under the Contracts (Right of Third Parties) Act to enforce any of its terms. TAIWAN: Limited Warranty (Section 3): The last paragraph is deleted. EUROPE, MIDDLE EAST, AFRICA (EMEA) Limited Warranty (Section 3): In the European Union, the following is added: In the European Union, consumers have legal rights under applicable national legislation governing the sale of consumer goods. Such rights are not affected by the Limited Warranty provision set out above at section 3 of this Agreement. The territorial scope of the Limited Warranty is worldwide. Limitation of Liability (Section 4): In Austria, Denmark, Finland, Greece, Italy, Netherlands, Norway, Portugal, Spain, Sweden and Switzerland, the following replaces the terms of this section in its entirety: Except as otherwise provided by mandatory law: 1. IBM's liability for any damages and losses that may arise as a consequence of the fulfillment of its obligations under or in connection with this agreement or due to any other cause related to this agreement is limited to the compensation of only those damages and losses proved and actually arising as an immediate and direct consequence of the non - fulfillment of such obligations (if IBM is at fault) or of such cause, for a maximum amount equal to the charges You paid for the Program. The above limitation shall not apply to damages for bodily injuries (including death) and damages to real property and tangible personal property for which IBM is legally liable. 2. UNDER NO CIRCUMSTANCES IS IBM, OR ANY OF ITS PROGRAM DEVELOPERS, LIABLE FOR ANY OF THE FOLLOWING, EVEN IF INFORMED OF THEIR POSSIBILITY: 1) LOSS OF, OR DAMAGE TO, DATA; 2) INCIDENTAL OR INDIRECT DAMAGES, OR FOR ANY ECONOMIC CONSEQUENTIAL DAMAGES; 3) LOST PROFITS, EVEN IF THEY ARISE AS AN IMMEDIATE CONSEQUENCE OF THE EVENT THAT GENERATED THE DAMAGES; OR 4) LOSS OF BUSINESS, REVENUE, GOODWILL, OR ANTICIPATED SAVINGS. 3. The limitation and exclusion of liability herein agreed applies not only to the activities performed by IBM but also to the activities performed by its suppliers and Program developers, and represents the maximum amount for which IBM as well as its suppliers and Program developers, are collectively responsible. Limitation of Liability (Section 4): In France and Belgium, the following replaces the terms of this section in its entirety: Except as otherwise provided by mandatory law: 1. IBM's liability for any damages and losses that may arise as a consequence of the fulfillment of its obligations under or in connection with this agreement is limited to the compensation of only those damages and losses proved and actually arising as an immediate and direct consequence of the non - fulfillment of such obligations (if IBM is at fault), for a maximum amount equal to the charges You paid for the Program that has caused the damages. Z125- 3301 -12 09/2002 Page 6 of 9 The above limitation shall not apply to damages for bodily injuries (including death) and damages to real property and tangible personal property for which IBM is legally liable. UNDER NO CIRCUMSTANCES IS IBM, OR ANY OF ITS PROGRAM DEVELOPERS, LIABLE FOR ANY OF THE FOLLOWING, EVEN IF INFORMED OF THEIR POSSIBILITY: 1) LOSS OF, OR DAMAGE TO, DATA; 2) INCIDENTAL OR INDIRECT DAMAGES, OR FOR ANY ECONOMIC CONSEQUENTIAL DAMAGES; 3) LOST PROFITS, EVEN IF THEY ARISE AS AN IMMEDIATE CONSEQUENCE OF THE EVENT THAT GENERATED THE DAMAGES; OR 4) LOSS OF BUSINESS, REVENUE, GOODWILL, OR ANTICIPATED SAVINGS. The limitation and exclusion of liability herein agreed applies not only to the activities performed by IBM but also to the activities performed by its suppliers and Program developers, and represents the maximum amount for which IBM as well as its suppliers and Program developers, are collectively responsible. Governing Law, Jurisdiction, and Arbitration (Section 6) Governing Law The phrase "the laws of the country in which You acquired the Program license" is replaced by: 1) "the laws of Austria" in Albania, Armenia, Azerbeijan, Belarus, Bosnia - Herzegovina, Bulgaria, Croatia, Georgia, Hungary, Kazakhstan, Kyrgyzstan, FYR Macedonia, Moldavia, Poland, Romania, Russia, Slovakia, Slovenia, Tajikistan, Turkmenistan, Ukraine, Uzbekistan, and FR Yugoslavia; 2) "the laws of France" in Algeria, Benin, Burkina Faso, Cameroon, Cape Verde, Central African Republic, Chad, Comoros, Congo Republic, Djibouti, Democratic Republic of Congo, Equatorial Guinea, French Guiana, French Polynesia, Gabon, Gambia, Guinea, Guinea - Bissau, Ivory Coast, Lebanon, Madagascar, Mali, Mauritania, Mauritius, Mayotte, Morocco, New Caledonia, Niger, Reunion, Senegal, Seychelles, Togo, Tunisia, Vanuatu, and Wallis & Futuna; 3) "the laws of Finland" in Estonia, Latvia, and Lithuania; 4) "the laws of England" in Angola, Bahrain, Botswana, Burundi, Egypt, Eritrea, Ethiopia, Ghana, Jordan, Kenya, Kuwait, Liberia, Malawi, Malta, Mozambique, Nigeria, Oman, Pakistan, Qatar, Rwanda, Sao Tome, Saudi Arabia, Sierra Leone, Somalia, Tanzania, Uganda, United Arab Emirates, the United Kingdom, West Bank/Gaza, Yemen, Zambia, and Zimbabwe; and 5) "the laws of South Africa" in South Africa, Namibia, Lesotho and Swaziland. Jurisdiction The following exceptions are added to this section: 1) In Austria the choice of jurisdiction for all disputes arising out of this Agreement and relating thereto, including its existence, will be the competent court of law in Vienna, Austria (Inner- City); 2) in Angola, Bahrain, Botswana, Burundi, Egypt, Eritrea, Ethiopia, Ghana, Jordan, Kenya, Kuwait, Liberia, Malawi, Malta, Mozambique, Nigeria, Oman, Pakistan, Qatar, Rwanda, Sao Tome, Saudi Arabia, Sierra Leone, Somalia, Tanzania, Uganda, United Arab Emirates, West Bank/Gaza, Yemen, Zambia, and Zimbabwe all disputes arising out of this Agreement or related to its execution, including summary proceedings, will be submitted to the exclusive jurisdiction of the English courts; 3) in Belgium and Luxembourg, all disputes arising out of this Agreement or related to its interpretation or its execution, the law, and the courts of the capital city, of the country of Your registered office and /or commercial site location only are competent; 4) in France, Algeria, Benin, Burkina Faso, Cameroon, Cape Verde, Central African Republic, Chad, Comoros, Congo Republic, Djibouti, Democratic Republic of Congo, Equatorial Guinea, French Guiana, French Polynesia, Gabon, Gambia, Guinea, Guinea - Bissau, Ivory Coast, Lebanon, Madagascar, Mali, Mauritania, Mauritius, Mayotte, Morocco, New Caledonia, Niger, Reunion, Senegal, Seychelles, Togo, Tunisia, Vanuatu, and Wallis & Futuna all disputes arising out of this Agreement or related to its violation or execution, including summary proceedings, will be settled exclusively by the Commercial Court of Paris; 5) in Russia, all disputes arising out of or in relation to the interpretation, the violation, the termination, the nullity of the execution of this Agreement shall be settled by Arbitration Court of Moscow; 6) in South Africa, Namibia, Lesotho and Swaziland, both of us agree to submit all disputes relating to this Agreement to the jurisdiction of the High Court in Johannesburg; 7) in Turkey all disputes arising out of or in connection with this Agreement shall be resolved by the Istanbul Central (Sultanahmet) Courts and Execution Directorates of Istanbul, the Republic of Turkey; 8) in each of the following specified countries, any legal claim arising out of this Agreement will be brought before, and settled exclusively by, the competent court of a) Athens for Greece, b) Tel Aviv -Jaffa for Israel, c) Milan for Italy, d) Lisbon for Portugal, and e) Madrid for Spain; and 9) in the United Kingdom, both of us agree to submit all disputes relating to this Agreement to the jurisdiction of the English courts. Arbitration In Albania, Armenia, Azerbeijan, Belarus, Bosnia- Herzegovina, Bulgaria, Croatia, Georgia, Hungary, Kazakhstan, Kyrgyzstan, FYR Macedonia, Moldavia, Poland, Romania, Russia, Slovakia, Slovenia, Tajikistan, Turkmenistan, Ukraine, Uzbekistan, and FR Yugoslavia all disputes arising out of this Agreement or related to its violation, termination or nullity will be finally settled under the Rges of Arbitration and Conciliation of the International Arbitral Center of the Federal Economic Chamber in Vienna (yienna Rules) by three arbitrators appointed in accordance with these rules. The arbitration will be held in VierWa, Austria, and the official language of the proceedings will be English. The decision of the arbitrators will be final and binding upon both parties. Therefore, pursuant to paragraph 598 (2) of the Austrian Code of Civil Procedure, the parties expressly waive the application of paragraph 595 (1) figure 7 of the Code. IBM may, however, institute proceedings in a competent court in the country of installation. Z125- 3301 -12 09/2002 Page 7 of 9 In Estonia, Latvia and Lithuania all,,lisputes arising in connection with this Agreement will be finally settled in arbitration that will be held in Helsinki, Finland in accordance with the arbitration laws of Finland then in effect. Each party will appoint one arbitrator. The arbitrators will then jointly appoint the chairman. If arbitrators cannot agree on the chairman, then the Central Chamber of Commerce in Helsinki will appoint the chairman. AUSTRIA: Limited Warranty (Section 3): The following is inserted at the beginning of this Section: The Warranty Period is twelve months from the date of delivery. The limitation period for consumers in action for breach of warranty is the statutory period as a minimum. The warranty for a Program covers the functionality of the Program for its normal use and the Program's conformity to its specifications. The final two paragraphs are replaced with the following: This is our sole obligation to You, except as otherwise required by applicable statutory law. General (Section 5): The following is added to item 4: For purposes of this clause, contact information will also include information about You as a legal entity, for example revenue data and other transactional information. GERMANY: Limited Warranty (Section 3): The same changes apply as those in Limited Warranty (Section 3) under Austria above. Limitation of Liability (Section 4): The following paragraph is added to this Section: The limitations and exclusions specified in this Section will not apply to damages caused by IBM intentionally or by gross negligence. General (Section 5): The following replace the terms of item 5: Any claims resulting from this Agreement are subject to a statute of limitation of three years, except as stated in Section 3 (Limited Warranty) of this Agreement. HUNGARY: Limitation of Liability (Section 4): The following is added at the end of this section: The limitation and exclusion specified herein shall not apply to liability for a breach of contract damaging life, physical well- being, or health that has been caused intentionally, by gross negligence, or by a criminal act. The parties accept the limitations of liability as valid provisions and state that the Section 314.(2) of the Hungarian Civil Code applies as the acquisition price as well as other advantages arising out of the present Agreement balance this limitation of liability. IRELAND: Limited Warranty (Section 3): The following is added to this section: Except as expressly provided in these terms and conditions, all statutory conditions, including all warranties implied, but without prejudice to the generality of the foregoing, all warranties implied by the Sale of Goods Act 1893 or the Sale of Goods and Supply of Services Act 1980 are hereby excluded. Limitation of Liability (Section 4): The following replaces the terms of this section in its entirety: For the purposes of this section, a "Default" means any act, statement, omission, or negligence on the part of IBM in connection with, or in relation to, the subject matter of an Agreement in respect of which IBM is legally liable to You whether in contract or tort. A number of Defaults which together result in, or contribute to, substantially the same loss or damage will be treated as one Default occurring o qie date of occurrence of the last such Default. Circumstances may arise where, because of a DefaA, You are entitled to recover damages from IBM. This section sets out the extent of IBM's liability and Your sole Atmedy. 1. IBM will accept unlimited liability for (a) death or personal injury caused by the negligence of IBM, and (b) subject always to the Items for Which IBM is Not Liable below, for physical damage to Your tangible property resulting from the negligence of IBM. 2. Except as provided in item 1 above, IBM's entire liability for actual damages for any one Default will not in any event exceed the greater of 1) €125,000, or 2) 125% of the amount You paid for the Program directly relating to the Default. These limits also apply to any of IBM's suppliers and Program developers. They state the maximum for which IBM and such suppliers and Program developers are collectively responsible. Items for Which IBM is Not Liable Save with respect to any liability referred to in item 1 above, under no circumstances is IBM or any of its suppliers or Program developers liable for any of the following, even if IBM or they were informed of the possibility of such losses: 1. loss of, or damage to, data; 2. special, indirect, or consequential loss; or 3. loss of profits, business, revenue, goodwill, or anticipated savings. ITALY: General (Section 5): The following is added to this section: IBM and Customer (hereinafter, individually, "Party ") shall comply with all the obligations of the applicable provisions of law and /or regulation on personal data protection. Each of the Parties will indemnify and keep the other Party harmless from any damage, claim, cost or expense incurred by the latter, directly and or indirectly. as a consequence of an infringement of the other Party of the mentioned provisions of law and /or regulations. Z125- 3301 -12 09/2002 Page 8 of 9 SLOVAKIA: Limitation of Liability (Section 4): The following is added to the end of the last paragraph: The limitations apply to the extent they are not prohibited under §§ 373 -386 of the Slovak Commercial Code. General (Section 5): The terms of item 5 are replaced with the following: Is THE PARTIES AGREE THAT, AS DEFINED BY APPLICABLE LOCAL LAW, ANY LEGAL 04OTHER ACTION RELATED TO A BREACH OF THIS AGREEMENT MUST BE COMMENCED NO LATER THAN FOUR YEARS FROM THE DATE ON WHICH THE CAUSE OF ACTION AROSE. SOUTH AFRICA, NAMIBIA, LESOTHO, SWAZILAND: Limited Warranty (Section 3): The following is added at the end of the first paragraph: notwithstanding any advice or assistance that IBM may have given to You prior to the selection of such Programs. SWITZERLAND: General (Section 5): The following is added to item 4: For purposes of this clause, contact information will also include information about You as a legal entity, for example revenue data and other transactional information. UNITED KINGDOM: Limited Warranty (Section 3): The following replaces the first sentence in the fourth paragraph of this section: THESE WARRANTIES ARE YOUR EXCLUSIVE WARRANTIES AND REPLACE ALL OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF SATISFACTORY QUALITY, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. Limitation of Liability (Section 4): The following replaces the terns of this section in its entirety: For the purposes of this section, a "Default" means any act, statement, omission, or negligence on the part of IBM in connection with, or in relation to, the subject matter of an Agreement in respect of which IBM is legally liable to You, whether in contract or tort. A number of Defaults which together result in, or contribute to, substantially the same loss or damage will be treated as one Default. Circumstances may arise where, because of a Default, You are entitled to recover damages from IBM. This section sets out the extent of IBM's liability and Your sole remedy. 1. IBM will accept unlimited liability for: (a) death or personal injury caused by the negligence of IBM; (b) any breach of its obligations implied by Section 12 of the Sale of Goods Act 1979 or Section 2 of the Supply of Goods and Services Act 1982, or any statutory modification or re- enactment of either such Section; and (c) subject always to the Items for Which IBM is Not Liable below, for physical damage to Your tangible property resulting from the negligence of IBM. 1. IBM's entire liability for actual damages for any one Default will not in any event, except as provided in item 1 above, exceed the greater of 1) £75,000, or 2) 125% of the amount You paid for the Program directly relating to the Default. These limits also apply to IBM's suppliers and Program developers. They state the maximum for which IBM and such suppliers and Program developers are collectively responsible. Items for Which IBM is Not Liable Save with respect to any liability referred to in item 1 above, under no circumstances is IBM or any of its suppliers or Program developers liable for any of the following, even if IBM or they were informed of the possibility of such losses: 1. loss of, or damage to, data; 2. special, indirect, or consequential loss; or 3. loss of profits, business, revenue, goodwill, or anticipated savings. Z125- 3301 -12 09/2002 Page 9 of 9 International Agreement for Acquisition of Software Maintenance = �- Part 1- General Terms This IBM International Agreement for Acquisition of Software Maintenance (called the "Agreement ") governs Customer's acquisition of IBM software maintenance ( "Software Maintenance "), which may also be referred to as subscription and support ( "S &S ") in connection with IBM System z Programs. Software Maintenance is provided only for those Eligible Programs licensed by Customer within its Enterprise. Acquisition of Software Maintenance in quantities greater than the number for which Customer is licensed does not create or imply any greater license authorization. An "Enterprise" in this Agreement is any legal entity (such as a corporation) and the subsidiaries it owns by more than 50 percent. "Eligible Programs" are described below. IBM has signed agreements with certain organizations (called "IBM Business Partners ") to promote and market Software Maintenance offerings. When Customer orders Software Maintenance marketed to Customer by IBM Business Partners, IBM will provide Software Maintenance to Customer under the terms of this Agreement. IBM is not responsible for 1) the actions of IBM Business Partners, 2) any additional obligations they have to Customer or 3) any products or services that they supply to Customer under their agreements. In the event that Customer's IBM Business Partner is no longer able to market Software Maintenance, for any reason, Customer may continue to receive Software Maintenance under the terms of this Agreement by instructing IBM to transfer administration of Software Maintenance to either 1) another IBM Business Partner of Customer's choice (who may require Customer to first execute one of their agreements) who is approved to market Software Maintenance to Customer, or 2) IBM. Section 2 of the Agreement contains terms that are specific to a particular hardware platform. The terms in the remaining sections are in addition to those in section 2, and apply to all platforms. 1. Incorporated Terms Eligible Programs to which this Agreement applies are licensed under the International Program License Agreement ( "IPLA ") unless otherwise specified by IBM. A copy of the IPLA is provided with each Program in the Eligible Program's directory or in a library identified as "License," a booklet, or on a CD. Sections of the IPLA entitled "Licensee Data and Databases," "Limitation of Liability," "Compliance Verification," "General," and "Geographic Scope and Governing Law," including any associated Country- unique Terms applicable to those sections are also part of this Agreement. Capitalized terms used but not defined in this Agreement have the meaning given to them in the IPLA. 2. Software Maintenance a. For Eligible Programs running on an IBM System z platform or equivalent: (1) Eligible Programs: Programs for which S &S is available are listed at www- 1.ibm.com/ servers /eserver /Zseries /library /swpriceinfo. Click on IPLA Subscription and Support Addenda. (2) S &S Period: One year. When Customer orders S &S with a Program, the initial S &S Period begins on the date that IBM makes the Program available to Customer. (3) Early Termination of an S &S Period for a Program: While Customer may terminate an S &S Period, IBM does not issue a credit or refund for the unused portion of an S &S Period. (4) Automatic Renewal: If, by the last day of the current S &S Period, IBM has received no written notification from Customer or Customer's Business Partner, as applicable, that Customer does not want to renew S &S for a Program, IBM will automatically renew that expiring S &S Period under the Agreement terms and charges in effect on that date, subject to applicable law. Subsequent S &S Periods begin on the day following the end of the preceding S &S Period. (5) S &S Period Adjustment: When Customer acquires S &S initially or resumes it, or prior to the end of the then current S &S Period, Customer may request that the S &S Period duration is adjusted to end at a month of Customer's choice. If Customer does not choose a date, IBM will inform Customer of the end date. The "S &S ( "Software Maintenance ") Charge" (see item (1) in subsection b. Software Maintenance acquired directly from IBM of section 3. Charges and Payment below) will be pro -rated accordingly. Z125- 6011 -03 2/2010 Page 1 of 11 (6) S&S: During the S &S Period, for the unmodified portion of a Program, and to the extent problems can be recreated in the specified operating environment, IBM will provide the following: (a) defect correction information, a restriction, or a bypass; (b) Program Updates: periodic releases of collections of code corrections, fixes, functional enhancements and new versions and releases to the Program and documentation; and (c) Technical Assistance: a reasonable amount of remote assistance via telephone or electronically to address suspected Program defects. Technical assistance is available from the IBM support center in the Customer's geography. Additional details regarding Technical Assistance, including IBM contact information (see Appendix C: Contact Information), are provided in the IBM Software Support Handbook at http: / /wwwl4. software. ibm. com/ webapp /set2 /sas /f /handbook/home. html S &S does not include assistance for 1) the design and development of applications, 2) Customer's use of Programs in other than their specified operating environment, or 3) failures caused by products for which IBM is not responsible under this Agreement. S &S is provided only if the Program is within its support timeframe as specified in the Software Support Lifecycle policy for the Program. (7) Resumption Fee: A charge to resume S &S after Customer either (a) declined S &S at the time Customer acquired the license for a Program or (b) terminated S &S. This charge is equal to the total of all S &S Charges that Customer would have paid during the lapsed interval. An S &S Period in such an instance begins on the date that IBM accepts Customer's order. (8) S&S Upgrade: If Customer upgrades S &S due to an increase in the level of use of an Eligible Program, any increase to the S &S Charge will be pro -rated to the end of the current S &S Period. For Eligible Programs running on IBM distributed platforms (e.g., IBM Power Systems, IBM System i, IBM System p, IBM System x, IBM System Storage, and IBM Retail Store Solutions) or equivalent: (1) Eligible Programs: Unless otherwise provided by IBM, Eligible Programs for which Software Maintenance is available are listed at www. ibm. com / servers / eserver /iseries /sftsol /subscript2.htm or may be obtained from Customer's IBM marketing representative or IBM Business Partner. (2) Initial Software Maintenance Period: Customer must choose either one year, the charge for which may be included with the Eligible Program, or, for an additional charge, three years of Software Maintenance at the time Customer orders an Eligible Program. The Initial Software Maintenance Period begins on the date that IBM makes the Program available to Customer. If the Eligible Program is part of an IBM Software Maintenance for OS /400, i5 /OS, and selected Programs, then the Initial Software Maintenance Period duration will be adjusted so that the expiration coincides with that of the other Eligible Programs in the group. In such event, the Initial Software Maintenance Period may be less than one year. (3) Subsequent Software Maintenance Periods (under this Agreement): One or three years, at Customer's option. (4) Early Termination of a Software Maintenance Period for a Program: While Customer may terminate a Software Maintenance Period, IBM Goes not issue a credit or refund for the unused portion of a Software Maintenance Period. (5) Renewal: (a) It is Customer's responsibility to renew Software Maintenance at the end of each Software Maintenance Period. IBM or Customer's IBM Business Partner will renew expiring Software Maintenance under terms and charges made available to Customer prior to expiration of the then current Software Maintenance Period, if it receives Customer's order to renew (e.g., order form, order letter, purchase order) not later than the expiration date. Subsequent Software Maintenance Periods under this Agreement (or other terms and charges made available to Customer prior to expiration of the then current Software Maintenance Period) begin on the day following the end of the preceding Software Maintenance Period. If Customer does not renew Software Maintenance by the expiration date of the Software Maintenance Period but Z125- 6011 -03 2/2010 Page 2 of 11 subsequently wishes to acquire Software Maintenance, a Software Maintenance After License Fee, as set forth below, will apply. (b) For Eligible Programs running on Power Systems, System i or System p platforms, if the Customer specifies in advance, IBM, even if it does not receive Customer's order to renew, will continue to provide Software Maintenance under terms and charges made available to Customer prior to expiration of the current Software Maintenance Period. (6) Software Maintenance: During the Software Maintenance Period: (a) IBM makes available to Customer the most current commercially available version, release, or update to all of the Eligible Programs for which Customer acquires Software Maintenance under this Agreement, should any be made available. For Power Systems, System i, and System p Programs under this Agreement, Customer may obtain upgrades to any more recent commercially available version, release or update. Customer's right to upgrade to a new version, release or update under this subsection may only be exercised during the Software Maintenance Period and expires at the end of the Period if Software Maintenance is not renewed. (b) For IBM Software Maintenance for OS /400, i5 /OS, and selected Programs, Customer is entitled to upgrade an Eligible Program to a specific version or release only one time per machine, notwithstanding 2.b.(6)(a) above. (c) IBM provides Customer technical assistance for Customer's 1) routine, short duration installation and usage (how -to) questions; and 2) code - related questions. (d) IBM provides assistance via telephone and, if available, electronic access, to only Customer's information systems (IS) technical support personnel during the normal business hours (IBM published prime shift hours) of IBM support center in the Customer's geography. This assistance is not available to Customer's end users. IBM provides Severity 1 assistance 24 hours a day, every day of the year. Additional details regarding assistance, including the definition of Severity 1, are provided in the IBM Software Support Handbook at http: / /wwwl 4. software. i bm. com /webapp /set2 /sas /f /handbook /home. htm I. (e) Software Maintenance does not include assistance for 1) the design and development of applications, 2) Customer's use of Eligible Programs in other than their specified operating environment, or 3) failures caused by products for which IBM is not responsible under this Agreement. (f) And only if the Program is within its support timeframe as specified in the Software Support Lifecycle policy for the Program. (7) Software Maintenance After License Fee (which may be referred to as "Maintenance After License" or "MAL" in connection with System i platforms and as "After License Charge" or "ALC" in connection with System p platforms): (a) Software Maintenance After License Fee is the charge to resume Software Maintenance if Customer (i) did not renew it before the end of the then current Software Maintenance Period; or (ii) terminated it. (b) The Software Maintenance Period for a resumption of Software Maintenance begins on the date that IBM accepts Customer's order. (c) The Software Maintenance After License Fee applies when Customer acquires a used Power Systems, System i, or System p machine and wishes to acquire Software Maintenance for OS /400, i5 /OS, and selected Programs, unless (i) the machine has the most current version and release of the appropriate operating system installed; and (ii) Customer acquires Software Maintenance within 30 days of Customer's acquisition of the machine. Z125- 6011 -03 2/2010 Page 3 of 11 (d) The Software Maintenance After License Fee applies when Customer acquires a used Power Systems, System i, or System p machine and wishes to acquire Software Maintenance for the AIX operating system or AIX selected Programs unless (i) the machine has a current version and release of the AIX operating system or AIX selected Programs installed and (ii) Customer acquires Software Maintenance within 30 days of Customer's acquisition of the machine. (e) For Software Maintenance for other Eligible Programs not otherwise covered by this subsection 2.b(7), a Software Maintenance After License Fee may apply to Customers acquiring used Power System, System i, or System p machines. Please contact your IBM representative, or where applicable, an IBM Business Partner or IBM Call Center, for further information. (8) Transfer of IBM Software Maintenance on Power Systems, System i and System p machines: In addition to the provisions of section 4. "Software Maintenance Transferability" below, Software Maintenance for Programs running on Power Systems, System i or System p platforms (a) applies to a designated machine (type, model and serial number); (b) may be transferred only to another machine that is licensed for the same operating system at the same or a more recent release level; and (c) may incur an increase in the Software Maintenance Charge if the "transferred to" machine is of a larger capacity. 3. Charges and Payment If Customer returns an Eligible Program for refund as allowed under its license terms, IBM or Customer's IBM Business Partner will terminate, and refund any charges paid for, Software Maintenance ordered with the Program. IBM does not give refunds for Software Maintenance without the return of the associated Eligible Program. a. Software Maintenance acquired from an IBM Business Partner When Customer acquires Software Maintenance from an IBM Business Partner, the IBM Business Partner sets the charges and the terms governing charges. Customer will pay Customer's IBM Business Partner directly. Software Maintenance acquired directly from IBM (1) Charges for Software Maintenance during each Software Maintenance Period, called the Software Maintenance Charge, are invoiced in advance. (2) The Software Maintenance Charge may vary, depending on, for example, the machine (type /model), the Eligible Program or group of Eligible Programs, or level of use of the Eligible Program. (3) IBM may increase the Software Maintenance Charge without notice. An increase will not apply to Customer if IBM receives Customer's order for Software Maintenance before the announcement date of the increase and within three months of receipt by IBM of Customer's order IBM makes Software Maintenance available to Customer. Customer receives the benefit of a decrease in the Software Maintenance Charge for amounts which become clue on or after the effective date of the decrease. (4) Amounts are due and payable upon receipt of invoice. Customer agrees to pay accordingly, including any late payment fee. (5) If any authority imposes a duty, tax, levy or fee, excluding those based on IBM's net income, upon Software Maintenance IBM supplies under this Agreement, then Customer agrees to pay that amount as specified in the invoice, unless Customer supplies exemption documentation. 4. Software Maintenance Transferability Customer may transfer Software Maintenance only to an entity that is within Customer's Enterprise and located within the country in which Software Maintenance is acquired, provided that the entity receiving the Eligible Program agrees to the terms of this Agreement. Z125- 6011 -03 2/2010 Page 4 of 11 5. Customer's Responsibilities Customer agrees that when Customer acquires Software Maintenance for an Eligible Program: a. Customer will acquire Software Maintenance for the same level of use as that at which the Eligible Program is authorized. Partial coverage for a particular Eligible Program is not offered; b. Customer is responsible for the results obtained from the use of the Software Maintenance; C. Customer will, at IBM's request, allow IBM to remotely access Customer's system to assist Customer in isolating the software problem cause; d. Customer remains responsible for adequately protecting Customer's system and all data contained in it whenever IBM remotely accesses it with Customer's permission to assist Customer in isolating the software problem cause; e. Customer will provide sufficient, free, and safe access to Customer's facilities for IBM to fulfill its obligations; and except as permitted by section 4. Software Maintenance Transferability above, Customer will not assign, or otherwise transfer, this Agreement or Customer's rights under this Agreement, or delegate Customer's obligations, without IBM's prior written consent. Any attempt to do so is void. The assignment of this Agreement, in whole or in part, within the Enterprise of which either of us is a part or to a successor organization by merger or acquisition does not require the consent of the other. IBM is also permitted to assign its rights to payments under this Agreement without obtaining your consent. It is not considered an assignment for IBM to divest a portion of its business in a manner that similarly affects all of its customers. 6. Warranty for Software Maintenance IBM warrants that Software Maintenance will be provided using reasonable care and skill and according to its delcription in the IBM Software Support Handbook at http: / /www14. software. ibm. com/ webapP /set2 /sas /f /handbook/home.htm1. Customer agrees to provide timely written notice of any failure to comply with this warranty so that IBM can take corrective action. The warranties will be voided by misuse, accident, modification, unsuitable physical or operating environment, operation in other than the specified operating environment, or failure caused by a product for which IBM is not responsible. EXCEPT AS EXPRESSLY REQUIRED BY LAW WITHOUT THE POSSIBILITY OF CONTRACTUAL WAIVER OR LIMITATION, THESE WARRANTIES ARE CUSTOMER'S EXCLUSIVE WARRANTIES AND REPLACE ALL OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OR CONDITIONS OF SATISFACTORY QUALITY, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE. IBM does not warrant uninterrupted or error -free provision of Software Maintenance or that IBM will correct all defects. 7. Changes to Agreement Terms IBM may propose changes to the terms of this Agreement by giving Customer three months' prior written notice by letter or e-mail, either directly to Customer or through Customer's IBM Business Partner. These changes are not retroactive and would only apply to new orders and renewals once mutually agreed to in writing by IBM and Customer. 8. Termination and Withdrawal Either of us may terminate this Agreement if the other does not comply with any of its terms, provided the one who is not complying is given written notice and reasonable time to comply. IBM may withdraw Software Maintenance for an Eligible Program by publishing a notice of withdrawal not less than 12 months prior to its effective date. If IBM withdraws Software Maintenance for which Customer has prepaid and IBM has not yet fully provided it to Customer, at its sole discretion IBM will either continue to provide Software Maintenance to Customer until the end of the current Software Maintenance Period or give Customer a prorated refund. Acquisition of Software Maintenance does not extend the period for which an Eligible Program is supported. Notwithstanding anything to the contrary in this Agreement, if IBM terminates Customer's license for an Eligible Program due to Customer's breach of any of its terms, IBM may also concurrently terminate Z125- 6011 -03 2/2010 Page 5 of 11 Software Maintenance for that Eligible Program. In this instance, IBM is not obligated to issue a refund or credit for any unused portion of Software Maintenance. IBM may withdraw the Software Maintenance offering in its entirety on 12 months' written notice to all then current Software Maintenance customers by letter or e-mail. Any terms of this Agreement which by their nature extend beyond the Agreement termination remain in effect until fulfilled, and apply to both of our respective successors and assignees. 9. Additional Terms a. To assist Customer in isolating the cause of a software problem, IBM may ask Customer to (1) allow IBM to remotely access Customer's system or (2) send customer information or system data to IBM. IBM uses information about errors and problems only to improve its products and services and assist with its provision of Software Maintenance. IBM may use subcontractors and IBM Enterprise entities in other countries for these purposes, and Customer authorizes IBM to do so. Customer remains responsible for (i) any data and the content of any database Customer makes available to IBM, (ii) the selection and implementation of procedures and controls regarding access, security, encryption, use, and transmission of data (including any personally - identifiable data), and (iii) backup and recovery of the database and any stored data. Customer will not send or provide to IBM access to personal information and will be responsible for any reasonable costs and other amounts that IBM may incur relating to any such information mistakenly provided to IBM or to the loss or disclosure of such information by IBM, including those arising out of any third party claims. b. All information exchanged is nonconfidential. If either of us requires the exchange of confidential information, it will be made under a signed confidentiality agreement. C. Each may communicate with the other by electronic means and such communication is acceptable as a signed writing to the extent permissible under applicable law. An identification code (called a "user ID ") contained in an electronic document is sufficient to verify the sender's identity and the document's authenticity. This Agreement is the complete agreement regarding Customer's acquisition of Software Maintenance, and replaces any prior oral or written communications between Customer and IBM concerning Software Maintenance. In entering into this Agreement, neither party is relying on any representation that is not specified in this Agreement including without limitation any representations concerning: 1) performance or function of any product or system, other than as expressly warranted in section 6 above; 2) the experiences or recommendations of other parties; or 3) results or savings Customer may achieve. Additional or different terms in any written communication from Customer (such as a purchase order) are void. Customer accepts the terms of this Agreement without modification by any one of the following means: to the extent permissible under applicable law, by ordering, using, or making payment for Software Maintenance or, where required by law, signing a transaction document. Software Maintenance becomes subject to this Agreement when IBM or Customer's IBM Business Partner accepts Customer's order or payment. Once in effect, 1) unless prohibited by applicable local law or specified otherwise, any reproduction of this Agreement made by reliable means (for example, photocopy, electronic scan or facsimile) is considered an original and 2) Software Maintenance Customer orders under this Agreement is subject to it. Z125- 6011 -03 2/2010 Page 6 of 11 International Agreement for Acquisition of Software Maintenance Part 2- Country- unique Terms AMERICAS The following terms apply to all Americas countries (except Brazil, Canada and the United States) unless a specific country term states otherwise: 3. Charges and Payment In subsection b. Software Maintenance acquired directly from IBM, the following replaces item (4): Amounts are due upon receipt of invoice and payable as IBM specifies in a transaction document. The currency for payment of amounts due is US dollars or the equivalent in local currency as follows: (a) As long as the country operates in a free currency exchange market, Customer and IBM agree that IBM will accept payment in the applicable country national currency calculated at the country official exchange rate published by the bank specified in a transaction document on the date payment is made. (b) If the government of a country establishes any restriction or limitation on its free currency exchange markets, Customer agrees to make payments to IBM in US dollars to a bank account in New York, NY, USA, designated by IBM in the transaction document, provided that such payment is not illegal under country law. If such method of payment is forbidden by country law, Customer agrees to pay the amount indicated in the transaction document in country national currency, calculated at the official exchange rate which is in use for the remittance of dividends and net earnings to foreign investors outside the country. Customer agrees to pay accordingly, including any late payment fee. The late payment fee is calculated and payable in US dollars at two percent (or the maximum rate allowed by local law if such is less than two percent) of the delinquent amount due per each thirty day period during which any delinquent balance remains unpaid. All additional terms apply to the referenced country. BRAZIL ,. 2. Software Maintenance In subsection a. For Eligible Programs running on an IBM System z platform, items 2 through and including 5 are deleted in their entirety. In item 6, the phrase "S &S Period" is replaced by the following: the period for which Customer has paid for S &S In item 8, the phrase `pro -rated to the end of the current S &S Period" is replaced by the following. effective on the first day of the following month 3. Charges and Payment In subsection b. Software Maintenance acquired directly from IBM, the following replaces item (1): For Eligible Programs running on IBM distributed platforms or equivalent, charges for Software Maintenance during each Software Maintenance Period, called the Software Maint nce Charge, are invoiced in advance. For Eligible Programs running on an IBM System z platforor equivalent, charges for Software Maintenance, called the Software Maintenance Charge, are invoiced monthly in advance. In subsection b. Software Maintenance acquired directly from IBM, the following replaces item (3): IBM may increase charges for Software Maintenance provided under this Agreement. IBM's ability to increase such charges is subject to the requirements of Brazilian law. In subsection b. Software Maintenance acquired directly from IBM, the following replaces item (4): Amounts are due upon receipt of invoice and payable in local currency as IBM specifies in a transaction document. Customer agrees to pay accordingly, including any late payment fee. Delinquent amounts are subject to monetary correction based on the inflation index called the "General Price Index" calculated by Getulio Vargas Foundation (IGP- M /FGV), plus interest at the Z125- 6011 -03 2/2010 Page 7 of 11 rate of one percent per month, both calculated "pro rata die." The late payment fee is calculated against the resultant delinquent amount at the following rates: (a) if payment is made between the 31st day and the 60th day from invoice date, a two percent late payment penalty applied to the resultant delinquent amount, or (b) if payment is made 61 or more days from invoice date, a ten percent late payment penalty applied to the resultant delinquent amount. The following is added to subsection b. Software Maintenance acquired directly from IBM as item (6): Amounts due are expressed in local currency. The following is added to subsection b. Software Maintenance acquired directly from IBM as item (7): The charges for Software Maintenance acquired under this Agreement are inclusive of all applicable taxes that are IBM's responsibility on the base date established in a transaction document. The parties agree that IBM will adjust the charges accordingly should any of the following occur: (a) any change is made to the rate, form or base of calculation, form of payment, classification or taxes levied on the Software Maintenance or on their costs, (b) a new applicable tax is created, (c) any change is made to any other legal aspect related to the taxes applicable on the base date, (d) any change is made to the origin or to the delivery location for the Software Maintenance, (e) any change is made to the location where Services are to be provided, or (f) any change is made to the manner in which Services are marketed. 7. Changes to Agreement Terms The following replaces this section in its entirety: In order to maintain flexibility in our business relationship, the terms of this Agreement may be changed upon execution of an amendment and the changes shall apply as of the effective date specified in the amendment. They apply only to new orders, on -going transactions that do not expire, and transactions with a defined renewable contract period. For transactions with a defined renewable contract period, Customer may request that IBM defer the change effective date until the end of the current contract period. 8. Termination and Withdrawal The words "or e- mail" in the fourth paragraph of this section are deleted. 9. Additional Terms In the first sentence of item c, the phrase "and such communications are acceptable as a signed writing" is deleted. In the clause that begins with "This Agreement is the complete ..." In the fourth sentence, which begin$ with "Customer accepts the terms ..., " the following phrase is deleted: any one of the following means: to the extent permissible under applicable law, by ordering, using, or making payment for Software Maintenance or, where required by law, In the fifth sentence, which begins with "Software Maintenance becomes subject to this Agreement..., the phrase "accepts Customer's order or payment" is replaced by the following phrase. accepts Customer's order by signing it. Z125- 6011 -03 2/2010 Page 8 of 11 ANGUILLA, ANTIGUA AND BARBUDA, ARUBA, BAHAMAS, BARBADOS, BERMUDA, BRITISH VIRGIN ISLANDS, CAYMAN ISLANDS, DOMINICA, GRENADA, GUYANA, JAMAICA, MONTSERRAT, NETHERLANDS ANTILLES, SAINT KITTS AND NEVIS, SAINT LUCIA, SAINT MARTIN, SAINT VINCENT AND THE GRENADINES, SURINAME, TRINIDAD AND TOBAGO, TURKS AND CAICOS ISLANDS, BELIZE, BOLIVIA, COSTA RICA, DOMINICAN REPUBLIC, EL SALVADOR, HAITI, HONDURAS, GUATEMALA, NICARAGUA, PANAMA, AND PARAGUAY 2. Software Maintenance The following replaces (4) Automatic Renewal in subsection 2.a For Eligible Programs running on an IBM System z platform or equiva lent: IBM will renew, for an additional payment, expiring S &S for all of Customer's Program licenses for an additional Software Maintenance Period if IBM receives (1) Customer's order to renew (e.g., order form, order letter, purchase order) prior to the expiration of the current coverage period or (2) Customer's payment within 30 days of Customer's receipt of the S &S invoice for the next coverage period. UNITED STATES OF AMERICA 2. Software Maintenance The following is added at the end the sentence beginning with "While Customer may terminate an S &S Period..." in (3) Early Termination of an S &S Period for a Program in subsection 2.a For Eligible Programs running on an IBM System z platform or equivalent: unless the S &S Period was renewed under the provisions of subsection 4, Automatic Renewal (below). In such event, Customer may obtain a credit, prorated to the end of that S &S Period from the first day of the month following the later of (a) IBM's receipt of Customer's termination request or (2) Customer's requested date of termination, through the end of that S &S Period. ASIA PACIFIC -1 AUSTRALIA 3. Charges and Payment The following paragraph is added after item b: All charges or other amounts payable under this Agreement are specified to include applicable goods and services tax ( "GST "). The following paragraph replaces item b(5) in its entirety. If any government or authority imposes a duty, tax (other than income tax), levy, or fee, on the Agreement or on the Software Maintenance itself, that is not otherwise provided for in the amount payable, Customer agrees to pay it when IBM invoices Customer. If the rate of GST changes, IBM may adjust the charge or other amount payable to take into account that change from the date the change becomes effective. 6. Warranty for Software Maintenance The following paragraph is Added as the first paragraph of this section: The warranties specified in this section are in addition to any rights Customer may have under the Trade Practices Act 1974 or other legislation and are only limited to the extent permitted by the applicable legislation'. CAMBODIA, LAOS, PEOPLE'S REPUBLIC OF CHINA, VIETNAM, BANGLADESH, BHUTAN, NEPAL 2. Software Maintenance The following replaces (4) Automatic Renewal in subsection 2.a For Eligible Programs running on an IBM System z platform or equivalent: IBM will renew, for an additional payment, expiring S &S for all of Customer Program licenses for an additional S &S Period if IBM receives (1) Customer's order to renew (e.g., order form, order letter, purchase order) prior to the expiration of the current coverage period or (2) Customer's payment within 30 days of Customer's receipt of the S &S invoice for the next coverage period. Z125- 6011 -03 2/2010 Page 9 of 11 HONG KONG SAR, MACAU SAR, AND TAIWAN As applies to transactions initiated and performed in Taiwan and the special administrative regions, phrases throughout this Agreement containing the word "country" (for example, "country of acquisition" and "country of installation) are replaced with the following: (1) In Hong Kong SAR: "Hong Kong SAR" (2) In Macau SAR: "Macau SAR" except in the Governing Law clause (section 14.1) (3) In Taiwan: "Taiwan. " INDONESIA 8. Termination and Withdrawal The following paragraph is added between the first and second paragraphs: We both waive in this regard, the provision of article 1266 of the Indonesian Civil Code to the extent the article provision requires such court decree for the termination of an agreement creating mutual obligations. JAPAN 8. Termination and Withdrawal The following paragraph is added to this section: When all or a substantial portion of either party's assets, credits or business are so changed as to make continued performance of that party's obligations impracticable or impossible, the other party may terminate this Agreement with prior notice. NEW ZEALAND 6. Warranty for Software Maintenance The following paragraph is added as the first paragraph of this section: The warranties specified in this Part are in addition to any rights Customer may have under the Consumer Guarantees Act 1993 or other legislation which cannot be excluded or limited. The Consumer Guarantees Act 1993 will not apply in respect of any goods or services which IBM provides, if Customer requires the goods or services for the purposes of a business as defined in that Act. EUROPE, MIDDLE EAST, AFRICA (EMEA) EUROPEAN UNION MEMBERS 6. Warranty for Software Maintenance For European Union Member States the following is added to Section 6: In the European Union, consumers have legal rights under applicable national legislation governing the sale of consumer goods and services. Such rights are not affected by the provisions set out in this Section 6 Warranty for Software Maintenance. AUSTRIA 6. Warranty for Software Maintenance This Section 6. Warranty for Software Maintenance is amended as specified for GERMANY. FRANCE 3. Charges and Payment In subsection b. Software Maintenance acquired directly from IBM the following is added to the end of item (3). If Customer disagrees with the increase, Customer may terminate the transaction by notifying IBM, in writing, within fifteen days after the date of IBM's notification to Customer of the increase. GERMANY 3. Charges and Payment In subsection b. Software Maintenance acquired directly from IBM. item (3) "three months" is replaced with "four months " 2125- 6011 -03 2/2010 Page 10 of 11 6. Warranty for Software Maintenance For Germany (and Austria) the following replaces Section 6. Warranty for Software Maintenance in its entirety. IBM warrants that Software Maintenance will be provided using reasonable care and skill and according to its description in the IBM Software Support Handbook at http: / /wwwl4. software. ibm. com / webapp /set2 /sas /f /handbook/home.htmi. Customer agrees to provide timely written notice of any failure to comply with this warranty so that IBM can take corrective action. IBM will remedy any defects covered by warranty, of which written notice has been given by Customer. If a defect is not remedied within a reasonable period of time, Customer may with respect to that defect, at Customer's choice, either request a reduction of price, or, if the value or the serviceability of the work is substantially impaired, instant termination ( "Kiindigung ") of this Agreement. In case of minor defects or deviations, Customer shall not be entitled to terminate the Agreement. The warranties will be voided by misuse, accident, modification, unsuitable physical or operating environment, operation in other than the specified operating environment, or failure caused by a product for which IBM is not responsible. Without prejudice to Customer's rights under other warranty provisions of the Agreement, IBM does not warrant uninterrupted or error -free provision of Software Maintenance or that IBM will correct all defects. 9. Additional Terms The following paragraph is added as the last paragraph of subsection a: When assisting Customer in isolating the cause of a software problem, should IBM access Customer's personally - identifiable data upon Customer's request, "IBM Supplementary Terms and Conditions for Processing of Customer Data by Order according to § 11 BDSG" applies. IRELAND and UNITED KINGDOM 6. Warranty for Software Maintenance (Ireland only) The following paragraph is added: Except as expressly provided in these terms and conditions, or Section 12 of the Sale of Goods Act 1893 as amended by the Sale of Goods and Supply of Services Act, 1980 (the "1980 Act "), all conditions or warranties (express or implied, statutory or otherwise) are hereby excluded including, without limitation, any warranties implied by the Sale of Goods Act 1893 as amended by the 1980 Act (including, for the avoidance of doubt, Section 39 of the 1980 Act). Entire Agreement The following sentence is added to the second from last paragraph of Part 1: Nothing in this paragraph shall have the effect of excluding or limiting liability for fraud. Z125- 6011 -03 2/2010 Page 11 of 11 software CUSTOMER ACKNOWLEDGMENT THIRD PARTY SOFTWARE Date: October 24, 2011 Company Name (End- User): City of Fort Worth Contact Name: Water 'J W*1 Address: 1000 Throckmorton St. rl l Oe rF City, State/Prov, Postal Code: Fort Worth TX 76102 Country: X USA IBM Customer Number (ICN): 1784461 Site ID: 1783432 ® IBM WebSphere ❑ Oracle WebLo is New Installation: ❑ Yes ® No Licensee is: ❑ Using Actuate (excluding BIRT) ❑ Not using Actuate Program(s): ® Maximo Asset Management ❑ Tivoli Asset Management for IT ❑ Maximo for Life Sciences El Tivoli Tivoli Service Request Manager El Maximo for & G Power Maximo for Oil il &Gas ❑ Maximo Asset Mgmt Object Access for SMART Mobile • Maximo Everyplace ❑ Maximo for Transportation • Maximo Mobile Asset Manager • Maximo Mobile Inventory Manager ® Maximo for Utilities ❑ Maximo Spatial Asset Management • Maximo Mobile Work Manager • SMART MAXIMO Mobile Inventory Manager ❑ Maximo for Government ❑ Tivoli Service Request Manager for Service Providers • SMART MAXIMO Mobile Work Manager • SMART MAXIMO Mobile Work Manager w/ Calibration ❑ Tivoli Service Request Manager for Internal Service Providers ❑ Maximo Service & Asset Mgmt for Strategic Outsourcing GTS ❑ SMART MAXIMO Mobile Auditor ❑ TSRM for IT Service Providers Strategic Outsourcing GTS Installed Version(s): Version 5.2 The Licensee acknowledges and agrees that an entitlement for the expanded use of the Program pursuant to a Proof of Entitlement does not include authorization of any expanded usage of the Actuate report writer features and functions that were included with the Program. Any expanded usage of any Actuate component beyond your existing entitlements as of November 19, 2010, is prohibited. COMPANY NAME Signature: /`%l_.+r.iv ��—• Title: �tlf - CC'tN �iZy glr Date: OFFICIAL. RECORD CITY SECRETARY FT. WORTH, TX I Please return the signed form to the Maximo Project Office at mpo@us.ibm.com. City of Fort Worth, Texas Mayor and Council Communication COUNCIL ACTION: Approved on 12/6/2011 DATE: Tuesday, December 06, 2011 REFERENCE NO.: * *C -25327 LOG NAME: 60IBM- MAXIMO MMS SUBJECT: Authorize Execution of Three Agreements with IBM, Inc., in an Amount of $607,077.83 for Software Licenses and Annual Maintenance for Maximo, Maintenance Management System and Related Software Using the Department of Information Resources Contract SDD -633 for the Water Department (ALL COUNCIL DISTRICTS) RECOMMENDATION: It is recommended that the City Council: 1. Authorize execution of an Agreement with IBM, Inc., for software licenses, subscription and support for the Water Department in an amount not to exceed $346,042.49; 2. Authorize execution of an Agreement with IBM, Inc., for software licenses to support the mobile workforce in an amount not to exceed $132,300.00; and 3. Authorize execution of a three -year Agreement with IBM, Inc., for Maximo software support and upgrades for an annual cost of $128,735.34. DISCUSSION: On May 17, 2005, (M&C P- 10154) City Council authorized the City Manager to enter into a Software Maintenance contract with MRO Software, Inc., for the Water Department's Maintenance Management System. MRO Software, Inc., was purchased by IBM Corporation, on October 5, 2006, and they are now the sole source vendor to provide software maintenance for the Maximo Maintenance Management System. Currently, the Water Department has implemented Maximo in the Field Operations division. The additional software licenses will allow the Department to expand the use of the tool to the Water Production and Pollution Control divisions. This expansion will allow the department to (1) create more orderly workflows between divisions, (2) improve labor efficiency across work processes, (3) reduce risk of non - compliance, (4) identify trends across the department; and (5) track costs more efficiently. Originally, the Water Department planned to procure the licenses and support/maintenance for Maximo and related software when the Department selected a software implementer for the software expansion and upgrade project. However, IBM has scheduled a price increase of up to 15 percent effective January 2012. Consequently the Department chose to advance the procurement of the licenses and support/maintenance so that the City could take advantage of the current pricing structure. The annual support/maintenance will be limited to no more than a seven percent increase annually. The Maximo licenses will be procured with a 30 percent discount from the list price. By electing to procure in 2011, the City is set to avoid an additional $263,028.85 in costs over the next three years. The State of Texas Department of Information Resources (DIR) is authorized to offer the cooperative purchasing program to state agencies, public institutions of higher learning, public school districts and local governments. Pursuant to State law, a local government that purchase goods and services under the http:// apps .cfwnet.org /ecouncil /printmc. asp ?id = 16213 &print= true &DocType =Print 12/20/2011 Interlocal Cooperation Act satisfies otherwise applicable competitive bidding requirements. M/WBE - A waiver of the goal for M/WBE subcontracting requirements was requested by the Water Department and approved by M/WBE Office because the purchase of goods or services is from sources where subcontracting or supplier opportunities are negligible. RENEWAL OPTIONS: This agreement may be renewed for up to three successive one -year terms at the City's option. This action does not require specific City Council approval provided that the City Council has appropriated sufficient funds to satisfy the City's obligation during the renewal term. FISCAL INFORMATION / CERTIFICATION: The Financial Management Services Director certifies that funds are available in the current operating budget, as appropriated, of the Water and Sewer Fund. FUND CENTERS: TO Fund /Account/Centem CERTIFICATIONS: Submitted for City Manager's Office by: Originating Department Head: Additional Information Contact: ATTACHMENTS 1. MWBE 1601BM- Maximo MMS.pdf (CFW Internal) 2. PE45- 539120- 0604012.doc (CFW Internal) 3. PE45- 539120- 0704012.doc (CFW Intemal) FROM Fund /Account/Centers PE45 539120 0604012 PE45 539120 0704012 Fernando Costa (6122) S. Frank Crumb (8207) Barbara Wilson (8272) $303.538.91 $303.538.92 http: // apps .cfwnet.org /ecouncil /printmc. asp ?id = 16213 &print= true &DocType =Print 12/20/2011