HomeMy WebLinkAboutContract 59245CSC No. 59245
ADDENDUM TO IBM TERMS FOR CLOUD OFFERINGS &
IBM TERMS FOR BLUEW KS LIVE
BETWEEN
THE CITY OF FORT W TH
AND
INTERNATIONAL BUSINESS MACHINES CORPORATION
This Addendum to IBM Terms for Cloud Offerings & IBM Terms for Blueworks Live
("Addendum") is entered into by and between International Business Machines Corporation
(IBM) ("Vendor") and the City of Fort Worth ("City"), collectively the "parties."
The Contract documents shall include the following:
1. The IBM Terms for Cloud Offerings;
2. The IBM Terms for Blueworks Live; and
3. This Addendum.
Notwithstanding any language to the contrary in the attached IBM Terms for Cloud
Offerings and the IBM Terms for Blueworks Live collectively referred to herein as the
"Agreement", the parties stipulate by evidence of execution of this Addendum below by a
representative of each party duly authorized to bind the parties hereto, that the parties hereby agree
that the provisions in this Addendum below shall be applicable to the Agreement as follows:
1. Term and Spending Authority. The Agreement shall commence on April 1, 2023
("Effective Date") and shall expire no later than March 1, 2024 ("Expiration Date"), unless
terminated earlier in accordance with the provisions of this Agreement or otherwise extended by
the parties. This Agreement shall automatically renew annually at the City's option, each a
"Renewal Term". IBM shall provide the Blueworks Live software subscription quoted at a unit
cost not to exceed the licensing costs as defined by the State of Texas contract DIR-TSO-3996.
The contract spending authorization amount shall not exceed $15,000.00.
2. Termination.
a. Convenience. Either City or Vendor may terminate the Agreement at any
time and for any reason by providing the other party with 30 days written notice of
termination.
b. Breach. If either party commits a material breach of the Agreement, the non -
breaching Party must give written notice to the breaching party that describes the breach
in reasonable detail. The breaching party must cure the breach ten (10) calendar days after
receipt of notice from the non -breaching party, or other time frame as agreed to by the
parties. If the breaching party fails to cure the breach within the stated period of time, the
non -breaching party may, in its sole discretion, and without prejudice to any other right
under the Agreement, law, or equity, immediately terminate the Agreement by giving
written notice to the breaching party.
OFFICIAL RECORD
CITY SECRETARY
FT. WORTH, TX
Addendum Page 1 of 9
C. Fiscal Funding, Dut. In the event no funds or insufficient funds are
appropriated by City in any fiscal period for any payments due hereunder, City will notify
Vendor of such occurrence and the Agreement shall terminate on the last day of the fiscal
period for which appropriations were received without penalty or expense to the City of
any kind whatsoever, except as to the portions of the payments herein agreed upon for
which funds have been appropriated.
d. Duties and Obligations of the Parties. In the event that the Agreement is
terminated prior to the Expiration Date, City shall pay Vendor for services actually
rendered up to the effective date of termination and Vendor shall continue to provide City
with services requested by City and in accordance with the Agreement up to the effective
date of termination. Upon termination of the Agreement for any reason, Vendor shall
provide City with copies of all completed or partially completed documents prepared under
the Agreement. In the event Vendor has received access to City information or data as a
requirement to perform services hereunder, Vendor shall return all City provided data to
City in a machine readable format or other format deemed acceptable to City.
3. Attorneys' Fees, Penalties, and Liquidated Damages. To the extent the attached
Agreement requires City to pay attorneys' fees for any action contemplated or taken, or penalties
or liquidated damages in any amount, City objects to these terms and any such terms are hereby
deleted from the Agreement and shall have no force or effect.
4. Law and Venue. The Agreement and the rights and obligations of the parties hereto
shall be governed by, and construed in accordance with the laws of the United States and state of
Texas, exclusive of conflicts of laws provisions. Venue for any suit brought under the Agreement
shall be in a court of competent jurisdiction in Tarrant County, Texas. To the extent the Agreement
is required to be governed by any state law other than Texas or venue in Tarrant County, City
objects to such terms and any such terms are hereby deleted from the Agreement and shall have
no force or effect.
5. Linked Terms and Conditions. If the Agreement contains a website link to terms
and conditions, the linked terms and conditions located at that website link as of the effective date
of the Agreement shall be the linked terms and conditions referred to in the Agreement. To the
extent that the linked terms and conditions conflict with any provision of either this Addendum or
the Agreement, the provisions contained within this Addendum and the Agreement shall control.
If any changes are made to the linked terms and conditions after the date of the Agreement, such
changes are hereby deleted and void. Further, if Vendor cannot clearly and sufficiently
demonstrate the exact terms and conditions as of the effective date of the Agreement, all of the
linked terms and conditions are hereby deleted and void.
6. Insurance. The City is a governmental entity under the laws of the state of Texas
and pursuant to Chapter 2259 of the Texas Government Code, entitled "Self -Insurance by
Governmental Units," is self -insured and therefore is not required to purchase insurance. To the
extent the Agreement requires City to purchase insurance, City objects to any such provision, the
parties agree that any such requirement shall be null and void and is hereby deleted from the
Addendum Page 2 of 9
Agreement and shall have no force or effect. City will provide a letter of self -insured status as
requested by Vendor.
7. Sovereign Immunity. Nothing herein constitutes a waiver of City's sovereign
immunity. To the extent the Agreement requires City to waive its rights or immunities as a
government entity; such provisions are hereby deleted and shall have no force or effect.
8. Limitation of Liability and Indemnity. Vendor agrees the exclusions or limits of
liability, as may be stated elsewhere in the Agreement, shall not apply to the City's claim or loss
arising from any of the following: (a) Vendor's breach of its data security obligations; (b) Vendor's
misuse or misappropriation of the City's intellectual property rights, (c) Vendor's indemnity
obligations, or (d) any other obligations that cannot be excluded or limited by applicable law. To
the extent the Agreement, in any way, requires City to indemnify or hold Vendor or any third party
harmless from damages of any kind or character, City objects to these terms and any such terms
are hereby deleted from the Agreement and shall have no force or effect.
9. IP Indemnification. Vendor agrees to indemnify, defend, settle, or pay, at its
own cost and expense, including the payment of attorney's fees, any claim or action against
the City for infringement of any patent, copyright, trade mark, service mark, trade secret,
or other intellectual property right arising from City's use of the Deliverable(s), or any part
thereof, in accordance with the Agreement, it being understood that the agreement to
indemnify, defend, settle or pay shall not apply if City modifies or misuses the
Deliverable(s). So long as Vendor bears the cost and expense of payment for claims or actions
against the City pursuant to this section 8, Vendor shall have the right to conduct the defense
of any such claim or action and all negotiations for its settlement or compromise and to settle
or compromise any such claim; however, City shall have the right to fully participate in any
and all such settlement, negotiations, or lawsuit as necessary to protect the City's interest,
and City agrees to cooperate with Vendor in doing so. In the event City, for whatever reason,
assumes the responsibility for payment of costs and expenses for any claim or action brought
against the City for infringement arising under the Agreement, the City shall have the sole
right to conduct the defense of any such claim or action and all negotiations for its settlement
or compromise and to settle or compromise any such claim; however, Vendor shall fully
participate and cooperate with the City in defense of such claim or action. City agrees to give
Vendor timely written notice of any such claim or action, with copies of all papers City may
receive relating thereto. Notwithstanding the foregoing, the City's assumption of payment of
costs or expenses shall not eliminate Vendor's duty to indemnify the City under the
Agreement. If the Deliverable(s), or any part thereof, is held to infringe and the use thereof
is enjoined or restrained or, if as a result of a settlement or compromise, such use is
materially adversely restricted, Vendor shall, at its own expense and as City's sole remedy,
either: (a) procure for City the right to continue to use the Deliverable(s); or (b) modify the
Deliverable(s) to make them/it non -infringing, provided that such modification does not
materially adversely affect City's authorized use of the Deliverable(s); or (c) replace the
Deliverable(s) with equally suitable, compatible, and functionally equivalent non -infringing
Deliverable(s) at no additional charge to City; or (d) if none of the foregoing alternatives is
reasonably available to Vendor, terminate the Agreement, and refund all amounts paid to
Vendor by the City, subsequent to which termination City may seek any and all remedies
Addendum Page 3 of 9
available to City under law. VENDOR'S OBLIGATIONS HEREUNDER SHALL BE
SECURED BY THE REQUISITE INSURANCE COVERAGE REQUIRED BY CITY.
10. Data Breach. Vendor further agrees that it will monitor and test its data
safeguards from time to time, and further agrees to adjust its data safeguards from time to
time in light of relevant circumstances or the results of any relevant testing or monitoring. If
Vendor suspects or becomes aware of any unauthorized access to any financial or personal
identifiable information ("Personal Data") by any unauthorized person or third party, or
becomes aware of any other security breach relating to Personal Data held or stored by
Vendor under the Agreement or in connection with the performance of any services
performed under the Agreement or any Statement(s) of Work ("Data Breach"), Vendor shall
immediately notify City in writing and shall fully cooperate with City at Vendor's expense
to prevent or stop such Data Breach. In the event of such Data Breach, Vendor shall fully
and immediately comply with applicable laws, and shall take the appropriate steps to remedy
such Data Breach. Vendor will defend, indemnify and hold City, its Affiliates, and their
respective officers, directors, employees and agents, harmless from and against any and all
claims, suits, causes of action, liability, loss, costs and damages, including reasonable
attorney fees, arising out of or relating to any third party claim arising from breach by
Vendor of its obligations contained in this Section, except to the extent resulting from the
acts or omissions of City. All Personal Data to which Vendor has access under the
Agreement, as between Vendor and City, will remain the property of City. City hereby
consents to the use, processing and/or disclosure of Personal Data only for the purposes
described herein and to the extent such use or processing is necessary for Vendor to carry
out its duties and responsibilities under the Agreement, any applicable Statement(s) of Work,
or as required by law. Vendor will not transfer Personal Data to third parties other than
through its underlying network provider to perform its obligations under the Agreement,
unless authorized in writing by City. Vendor's obligation to defend, hold harmless and
indemnify City shall remain in full effect if the Data Breach is the result of the actions of a
third party. All Personal Data delivered to Vendor shall be stored in the United States or
other jurisdictions approved by City in writing and shall not be transferred to any other
countries or jurisdictions without the prior written consent of City.
11. No Mandatory Arbitration. To the extent the Agreement requires mandatory
arbitration to resolve conflicts, City objects to these terms and any such terms are hereby deleted
from the Agreement and shall have no force or effect.
12. Insurance. Vendor agrees that insurance coverage provided to City by Vendor is
sufficient for purposes of the Agreement only.
13. No Debt. In compliance with Article 11 § 5 of the Texas Constitution, it is
understood and agreed that all obligations of City hereunder are subject to the availability of funds.
If such funds are not appropriated or become unavailable, City shall have the right to terminate the
Agreement except for those portions of funds which have been appropriated prior to termination.
14. Public Information. City is a government entity under the laws of the State of Texas
and all documents held or maintained by City are subject to disclosure under the Texas Public
Addendum Page 4 of 9
Information Act. To the extent the Agreement requires that City maintain records in violation of
the Act, City hereby objects to such provisions and such provisions are hereby deleted from the
Agreement and shall have no force or effect. In the event there is a request for information marked
Confidential or Proprietary, City shall promptly notify Vendor. It will be the responsibility of
Vendor to submit reasons objecting to disclosure. A determination on whether such reasons are
sufficient will not be decided by City, but by the Office of the Attorney General of the State of
Texas or by a court of competent jurisdiction.
15. Addendum Controlling. If any provisions of the attached Agreement, conflict with
the terms herein, are prohibited by applicable law, conflict with any applicable rule, regulation or
ordinance of City, the terms in this Addendum shall control.
16. Network Access.
a. City Network Access. Not applicable for this agreement.
b. Federal Law Enforcement Database Access. Not applicable for this
agreement.
17. Immigration Nationality Act. Vendor shall verify the identity and employment
eligibility of its employees who perform work under the Agreement, including completing the
Employment Eligibility Verification Form (I-9). Upon request by City, Vendor shall provide City
with copies of all I-9 forms and supporting eligibility documentation for each employee who
performs work under the Agreement. Vendor shall adhere to all Federal and State laws as well as
establish appropriate procedures and controls so that no services will be performed by any Vendor
employee who is not legally eligible to perform such services. VENDOR SHALL INDEMNIFY
CITY AND HOLD CITY HARMLESS FROM ANY PENALTIES, LIABILITIES, OR
LOSSES DUE TO VIOLATIONS OF THIS PARAGRAPH BY VENDOR, VENDOR'S
EMPLOYEES, SUBCONTRACTORS, AGENTS, OR LICENSEES. City, upon written notice
to Vendor, shall have the right to immediately terminate the Agreement for violations of this
provision by Vendor.
18. No Boycott of Israel. If Vendor has fewer than 10 employees or the Agreement is
for less than $100,000, this section does not apply. Vendor acknowledges that in accordance with
Chapter 2270 of the Texas Government Code, City is prohibited from entering into a contract with
a company for goods or services unless the contract contains a written verification from the
company that it: (1) does not boycott Israel; and (2) will not boycott Israel during the term of the
contract. The terms "boycott Israel" and "company" shall have the meanings ascribed to those
terms in Section 808.001 of the Texas Government Code. By signing this Addendum, Vendor
certifies that Vendor's signature provides written verification to City that Vendor: (1) does not
boycott Israel; and (2) will not boycott Israel during the term of the Agreement.
19. Right to Audit. Vendor agrees that City shall, until the expiration of three (3) years
after final payment under the Agreement, have access to and the right to examine any directly
pertinent books, documents, papers and records of Vendor involving transactions relating to the
Agreement. Vendor agrees that City shall have access during normal working hours to all
Addendum Page 5 of 9
necessary Vendor facilities and shall be provided adequate and appropriate workspace in order to
conduct audits in compliance with the provisions of this section. City shall give Vendor reasonable
advance notice of intended audits.
20. Prohibition on Boycotting Energy Companies. Vendor acknowledges that in
accordance with Chapter 2274 of the Texas Government Code, as added by Acts 2021, 87th Leg.,
R.S., S.B. 13, § 2, the City is prohibited from entering into a contract for goods or services that
has a value of $100,000 or more that is to be paid wholly or partly from public funds of the City
with a company with 10 or more full-time employees unless the contract contains a written
verification from the company that it: (1) does not boycott energy companies; and (2) will not
boycott energy companies during the term of the contract. The terms "boycott energy company"
and "company" have the meaning ascribed to those terms by Chapter 2274 of the Texas
Government Code, as added by Acts 2021, 87th Leg., R.S., S.B. 13, § 2. To the extent that Chapter
2274 of the Government Code is applicable to this Agreement, by signing this Agreement, Vendor
certifies that Contractor's signature provides written verification to the City that Contractor: (1)
does not boycott energy companies; and (2) will not boycott energy companies during the term of
this Agreement.
21. Prohibition on Discrimination Against Firearm and Ammunition Industries.
Vendor acknowledges that except as otherwise provided by Chapter 2274 of the Texas
Government Code, as added by Acts 2021, 87th Leg., R.S., S.B. 19, § 1, the City is prohibited
from entering into a contract for goods or services that has a value of $100,000 or more that is to
be paid wholly or partly from public funds of the City with a company with 10 or more full-time
employees unless the contract contains a written verification from the company that it: (1) does
not have a practice, policy, guidance, or directive that discriminates against a firearm entity or
firearm trade association; and (2) will not discriminate during the term of the contract against a
firearm entity or firearm trade association. The terms "discriminate," "firearm entity" and "firearm
trade association" have the meaning ascribed to those terms by Chapter 2274 of the Texas
Government Code, as added by Acts 2021, 87th Leg., R.S., S.B. 19, § 1. To the extent that Chapter
2274 of the Government Code is applicable to this Agreement, by signing this Agreement, Vendor
certifies that Contractor's signature provides written verification to the City that Contractor: (1)
does not have a practice, policy, guidance, or directive that discriminates against a firearm entity
or firearm trade association; and (2) will not discriminate against a firearm entity or firearm trade
association during the term of this Agreement.
22. Insurance.
1.1. The Vendor shall carry the following insurance coverage with a company that is
licensed to do business in Texas or otherwise approved by the City:
1.1.1. Commercial General Liability:
1.1.1.1. Combined limit of not less than $2,000,000 per occurrence;
$4,000,000 aggregate; or
1.1.1.2. Combined limit of not less than $1,000,000 per occurrence;
$2,000,000 aggregate and Umbrella Coverage in the amount of $4,000,000.
Addendum Page 6 of 9
Umbrella policy shall contain a follow -form provision and shall include coverage
for personal and advertising injury.
1.1.1.3. Defense costs shall be outside the limits of liability.
1.1.2. Statutory Workers' Compensation and Employers' Liability Insurance
requirements per the amount required by statute.
1.1.3. Technology Liability (Errors & Omissions)
1.1.3.1. Combined limit of not less than $2,000,000 per occurrence;
$4million aggregate or
1.1.3.2. Combined limit of not less than $1,000,000 per occurrence;
$2,000,000 aggregate and Umbrella Coverage in the amount of $4,000,000.
Umbrella policy shall contain a follow -form provision and shall include coverage
for personal and advertising injury. The umbrella policy shall cover amounts for
any claims not covered by the primary Technology Liability policy. Defense costs
shall be outside the limits of liability.
1.1.3.3. Coverage shall include, but not be limited to, the following:
1.1.3.3.1. Failure to prevent unauthorized access;
1.1.3.3.2. Unauthorized disclosure of information;
1.1.3.3.3. Implantation of malicious code or computer
virus;
1.1.3.3.4. Fraud, Dishonest or Intentional Acts with final
adjudication language;
1.1.3.3.5. Intellectual Property Infringement coverage,
specifically including coverage for intellectual property infringement
claims and for indemnification and legal defense of any claims of
intellectual property infringement, including infringement of patent,
copyright, trade mark or trade secret, brought against the City for use of
Deliverables, Software or Services provided by Vendor under this
Agreement;
1.1.3.3.6. Technology coverage may be provided through
an endorsement to the Commercial General Liability (CGL) policy, a
separate policy specific to Technology E&O, or an umbrella policy that
picks up coverage after primary coverage is exhausted. Either is
acceptable if coverage meets all other requirements. Technology coverage
shall be written to indicate that legal costs and fees are considered outside
of the policy limits and shall not erode limits of liability. Any deductible
will be the sole responsibility of the Vendor and may not exceed $50,000
without the written approval of the City. Coverage shall be claims -made,
with a retroactive or prior acts date that is on or before the effective date
of this Agreement. Coverage shall be maintained for the duration of the
Addendum Page 7 of 9
contractual agreement and for two (2) years following completion of
services provided. An annual certificate of insurance, or a full copy of the
policy if requested, shall be submitted to the City to evidence coverage;
and
1.1.3.3.7. Any other insurance as reasonably requested by
City.
1.2. General Insurance Requirements:
1.2.1. All applicable policies shall name the City as an additional insured
thereon, as its interests may appear. The term City shall include its employees, officers,
officials, agents, and volunteers in respect to the contracted services.
1.2.2. The workers' compensation policy shall include a Waiver of Subrogation
(Right of Recovery) in favor of the City of Fort Worth.
1.2.3. A minimum of Thirty (30) days' notice of cancellation or reduction in
limits of coverage shall be provided to the City. Ten (10) days' notice shall be acceptable
in the event of non-payment of premium. Notice shall be sent to the Risk Manager, City
of Fort Worth, 1000 Throckmorton, Fort Worth, Texas 76102, with copies to the City
Attorney at the same address.
1.2.4. The insurers for all policies must be licensed and/or approved to do
business in the State of Texas. All insurers must have a minimum rating of A- VII in the
current A.M. Best Key Rating Guide, or have reasonably equivalent financial strength and
solvency to the satisfaction of Risk Management. If the rating is below that required,
written approval of Risk Management is required.
1.2.5. Any failure on the part of the City to request required insurance
documentation shall not constitute a waiver of the insurance requirement.
1.2.6. Certificates of Insurance evidencing that the Vendor has obtained all
required insurance shall be delivered to and approved by the City's Risk Management
Division prior to execution of this Agreement.
(signature page follows)
Addendum Page 8 of 9
[Executed effective as of the date signed by the Assistant City Manager below.] / [ACCEPTED
AND AGREED:]
CITY OF FORT WORTH
bana- Bcr AL014f
By: Dana Burghdoff ( r 18, 20 07:33 CDT)
Name: Dana Burghdoff
Title: Assistant City Manager
Date:
APPROVAL RECOMMENDED:
CONTRACT COMPLIANCE MANAGER:
By signing I acknowledge that I am the
person responsible for the monitoring and
administration of this contract, including
ensuring all performance and reporting
requirements.
Aye -
By: Homer Garza (Apr 10,202311:12 CDT)
Name: Homero Garza
Title: IT Manager, Water Department
CGlYrsto�G�e� 1fG��e� APPROVED AS TO FORM AND
By: Christopher Hinder (Apr 17, 202309:36 CDT) LEGALITY:
Name: Christopher Harder
Title: Director, Water Department
ATTEST:
By: /VI
Name: Jannette Goodall
Title: City Secretary
LT WL1111-9
INTERNATIONAL BUSINESS MACHINES
CORPORATION
B[ : MARK DENNIS (Apr 12,202317:24 CDT)
Name: Mark Dennis
Title: Technology Sales Leader
Date:
By:
Name:
Title:
Taylor Paris
Assistant City Attorney
OFFICIAL RECORD
CITY SECRETARY
FT. WORTH, TX
Addendum Page 9 of 9
International Business Machines Corporation
International Business Machines Corporation, 1 North Castle Drive, Armonk, NY
10504
IBM Quotation
Attn: Homer Garza
City of Fort Worth Water Department
200 Texas St
FORT WORTH TX 76102-6314
UNITED STATES
IBM Site Number: 7772850
IBM Agreement Number: 8844
IBM Customer Number: 1751568
Contract: DIR-TSO-3996
Dear Homer Garza
Thank you for being an IBM Client. We are delighted to provide this quote for IBM offerings.
Worldwide, companies like yours are increasingly demanding more from their information technology infrastructure,
increased flexibility, scalability and agility to meet changing business needs. At the same time, they want reduced cost,
rapid deployment and investment recovery.
Over the years, our products, services and solutions capabilities have given our Clients the reliability, availability, security,
and manageability to improve operations and achieve efficiency while accommodating growth at reduced cost. These
characteristics have been and will remain fundamental to the IBM portfolio.
Unless specifically agreed herein or in another signed agreement in writing between you and IBM, the licenses for the
Programs and S&S acquired under this Quote / Agreement may not be used to settle or resolve any software license
non-compliance by you that occurred prior to the Start Date of this Agreement. Further, unless otherwise agreed to by the
parties in writing, the licenses for the Programs and S&S acquired under this Quote / Agreement may not be used as
authorization to deploy the Programs prior to the date of your order against this Quote / Agreement. For more information
about eligibility and reporting requirements for sub -capacity licensing, please visit
https7//www.mbm.com/software/passportadvantage/subcaplocansmng_html and for more information about eligibility and
reporting requirements for container licensing, please visit:
https://www.mbm.com/software/passportadvantage/contamnerimcenses_htmi.
This quotation is valid from 05-Apr-2023 and will expire on 30-Apr-2023.
We look forward to your order.
If you need assistance with placing your order or wish to discuss your quotation, please contact the IBM Representative
noted below.
Yours sincerely,
KATHERINE OLEAR
Phone Number: 1-682-220-1107
Fax Number:
E-mail Address: keolear@us.ibm.com
Page 1 of 4
International Business Machines Corporation
International Business Machines Corporation, 1 North Castle Drive, Armonk, NY
10504
IBM Quotation
Quotation Information
Number: 19513787
Effective Date: 05-Apr-2023
Expiration Date: 30-Apr-2023
Sales Representative
IBM Contact: KATHERINE OLEAR
Phone Number: 1-682-220-1107
E-mail Address: k el ar �s_ibm_com
Summary
Current Transaction
Customer Information
Attn: Homer Garza
City of Fort Worth Water Department
200 Texas St
FORT WORTH TX 76102-6314
UNITED STATES
IBM Site Number: 7772850
IBM Customer Number: 1751568
IBM Agreement Number: 8844
Contract: DIR-TSO-3996
As a Service 8,636.88
Total 8,636.88 USD
Current Transaction
As a Service 8,636.88 USD
IBM Blueworks Live Instance per Annum
Subscription Part#: D01 MWZX
Billing: Annual
Unit Price: 0.00
Item Quantity Month
1 1 1-12
Subtotal
Committed Term: 12 Months
Renewal Type: Autorenew for 12 Months
Renewal Term Price Change: Increase 5.000 % at time of first
renewal period and then every 12 Months
Subscription Rate Item Price
0.00 0.00
0.00 USD
IBM Blueworks Live Editor Authorized User per Annum
Subscription Part#: DOPQILL Committed Term: 12 Months
Billing: Annual Renewal Type: Autorenew for 12 Months
Unit Price: 616.92 Renewal Term Price Change: Increase 5.000 % at time of first
renewal period and then every 12 Months
Item Quantity Month Subscription Rate Item Price
2 8 1-12 4,935.36 4,935.36
Subtotal 4,935.36 USD
Page 2 of 4
International Business Machines Corporation —
International Business Machines Corporation, 1 North Castle Drive, Armonk, NY
10504
IBM Blueworks Live Contributor Authorized User per Annum
Subscription Part#: DOPQJLL
Billing: Annual
Unit Price: 123.38
Item Quantity
3 10
Subtotal
Month
1-12
Committed Term: 12 Months
Renewal Type: Autorenew for 12 Months
Renewal Term Price Change: Increase 5.000 % at time of first
renewal period and then every 12 Months
Subscription Rate
IBM Blueworks Live Service Level Agreement
1,233.84
Item Price
1,233.84
1,233.84 USD
Subscription Part#: D157MLL Committed Term: 12 Months
Billing: Upfront Renewal Type: Autorenew for 12 Months
Unit Price: Tiered Renewal Term Price Change: Increase 5.000 % at time of first
renewal period and then every 12 Months
Item Quantity Month Subscription Rate Item Price
4 1 1-12 0.00 0.00
Subtotal 0.00 USD
IBM Blueworks Live Viewer 100 Authorized User per Annum
Subscription Part#: D1SSGLL
Billing: Annual
Unit Price: 2,467.68
Item Quantity Month
5 1 1-12
Subtotal
Notes
Committed Term: 12 Months
Renewal Type: Autorenew for 12 Months
Renewal Term Price Change: Increase 5.000 % at time of first
renewal period and then every 12 Months
Subscription Rate
Applicable tax will be recalculated at the time of order processing.
2,467.68
Item Price
2,467.68
2,467.68 USD
IBM acceptance of the order is subject to credit approval.
Upon placing your order, please supply a Purchase Order or, if not PO driven, a signed Firm Order Letter. The Purchase
Order value must cover the applicable charges for a minimum of one year. If the Total Term is less than one year, the
Purchase Order value must cover the Total Commit Value.
Page 3 of 4
International Business Machines Corporation ==
International Business Machines Corporation, 1 North Castle Drive, Armonk, NY10504 — —�—
IBM Terms and Conditions
IBM International Passport Advantage Agreement
The quote or order to which this document relates is governed by the terms of your Passport Advantage Agreement and its associated
attachment(s).
IBM Terms for IBM Cloud Offerings
The referenced Cloud Services are governed by the terms of your International Passport Advantage Agreement, its associated
attachment(s), and the referenced Transaction Documents. Your order and use of the Cloud Services are your acceptance of the prices
and terms referenced in this document, except to the extent superseded by a written amendment or agreement signed by both of us.
Final coverage dates for offerings listed are provided in your Proof of Entitlement.
IBM Terms of Use - General Terms for IBM Cloud Offerings at:
Service Description(s) for ordered Cloud Services:
IBM BLUEWORKS LIVE
httnc•//xxnxnxr ihm enm/cnnnnrt/rnctnmer/cenl/terms/girl=i
Please read all terms for each of the above referenced Transaction Document(s) to ensure you are agreeing to the most recent version of
the document. If you have any trouble with the link provided, please copy and paste the appropriate URL in your browser's navigation
bar.
Billing and Provisioning
At time of acceptance of this quote either by Purchase Order or Firm Order Letter, IBM will begin billing for the SaaS Subscription(s) as
indicated above. When IBM is ready to provision the SaaS Subscription(s) in the quote IBM will use information provided by the Client,
as well as default technical data to configure the clients SaaS Subscription for access. IBM will notify the Client with details on the
provisioning on the date in which the Client can access the SaaS and the term for the SaaS will begin on the date indicated. If
provisioning information needs to be updated please refer to the IBM Software as a Service (SaaS) Support Handbook.
Please work with your IBM Sales Representative or your IBM Business Partner to complete the provisioning data at or prior to time of
order.
Unless specifically agreed herein or in another signed agreement in writing between you and IBM, the licenses for the Programs and
S&S acquired under this Quote / Agreement may not be used to settle or resolve any software license non-compliance by you that
occurred prior to the Start Date of this Agreement. Further, unless otherwise agreed to by the parties in writing, the licenses for the
Programs and S&S acquired under this Quote / Agreement may not be used as authorization to deploy the Programs prior to the date of
your order against this Quote / Agreement. For more information about eligibility and reporting requirements for sub -capacity licensing,
please visit httpq-//www ihm cnm/anftwnre/paacportadvantage/anhc licensing html and for more information about eligibility and
reporting requirements for container licensing, please visit: httpc•//www ihm_cnm/�nftware/pa��� nrtadvantage/cnntainerlicences html.
If you have any trouble with the link(s) provided, please copy and paste the appropriate URL in your browser's navigation bar.
Useful/Important Web resources:
Passport Advantage information, customer secure site access, training, etc.: www ihm rnm/cnftware/paccznnrtadvaniage
IBM's International Program License Agreement and product License Information documents: www ihm rnmkoftware/cla
IBM Software Support Web site: hjjp a•//www ihm rnm/snftware./snpnnrt/hsndhnnk html
IBM Customer Number: 1751568
Service Description
IBM Blueworks Live
This Service Description describes the Cloud Service. The applicable order documents provide pricing and
additional details about Client's order.
1. Cloud Service
1.1 Offerings
The Client may select from the following available offerings.
1.1.1 IBM Blueworks Live
IBM Blueworks Live is a software -as -a -service solution that provides a collaborative environment for
capturing, documenting, modeling, and optimizing business processes and decisions.
The Cloud Service is sold based on authorized user access types as follows:
a. Editor user has access to all product features and functions. Editor users can collaboratively create,
diagram and make changes to business process and decision models.
b. Contributor user can see, comment on and add documentation to business process and decision
models. Contributor users cannot create or edit business process models or business decision
models.
C. Viewer user can view shared business process models. Viewer users cannot participate in,
comment on, or contribute to work and do not have access to spaces, blogs or activity streams.
Editor and Contributor user entitlements are sold individually. Viewer user entitlements are available in
packs of 1,000, 500 and 100. Client must designate at least one Editor user or one Contributor user as
the Cloud Service administrator. An administrator will have administrative privileges that include the ability
to monitor the amount and type of user entitlements acquired and the total number of entitlements
deployed.
An administrator and Editor users can invite new users to access the Cloud Service. Each user
designated as either an Editor, Contributor or Viewer will account for one purchased entitlement of that
user type. When a user no longer requires access to the Cloud Service, the specific user type entitlement
may be permanently assigned to another user requiring the same user access type, or may be assigned
at a future date when needed. When all entitlements for a given user type have been assigned, Client
must acquire additional entitlements for the applicable user type in order to grant access to a new user.
The Cloud Service tracks the number of entitlements for each user type and will not enable access
beyond the number of entitlements acquired.
2. Data Processing and Protection Data Sheets
IBM's Data Processing Addendum at http://ibm.com/dpa (DPA) and the Data Processing and Protection
Data Sheet(s) (referred to as data sheet(s) or DPA Exhibit(s)) in the links below provide additional data
protection information for the Cloud Services and its options regarding the types of Content that may be
processed, the processing activities involved, the data protection features, and specifics on retention and
return of Content. The DPA applies if and to the extent the European General Data Protection Regulation
(EU/2016/679) (GDPR) applies to personal data contained in Content.
https://www. i bm.com/software/reports/com patibi I ity/clarity-
reports/report/html/softwareRegsForProduct?deliverableId=1413347324489
3. Service Levels and Technical Support
3.1 Service Level Agreement
IBM provides Client with the following availability Service Level Agreement (SLA). IBM will apply the
highest applicable compensation based on the cumulative availability of the Cloud Service as shown in
the table below. The availability percentage is calculated as the total number of minutes in a contracted
month, minus the total number of minutes of Service Down in the contracted month, divided by the total
number of minutes in the contracted month. The Service Down definition, the claim process and how to
i126-6604-05 (11/2018) Page 1 of 2
contact IBM regarding service availability issues are in IBM's Cloud Service support handbook at
https://www.ibm.com/software/support/saas support overview.html.
Availability
o Credit
( /o of monthly subscription fee*)
Less than 99.9%
2%
Less than 99.0%
5%
Less than 95.0%
10%
* The subscription fee is the contracted price for the month which is subject to the claim.
3.2 Technical Support
Technical support for the Cloud Service, including support contact details, severity levels, support hours
of availability, response times, and other support information and processes, is found by selecting the
Cloud Service in the IBM support guide available at https://www.ibm.com/support/home/pages/support-
ug ide/.
4. Charges
4.1 Charge Metrics
The charge metric(s) for the Cloud Service are specified in the Transaction Document.
The following charge metrics apply to this Cloud Service:
• Authorized User is a unique user authorized to access to the Cloud Services in any manner directly
or indirectly (for example, through a multiplexing program, device or application server) through any
means.
5. Additional Terms
For Cloud Service Agreements (or equivalent base cloud agreements) executed prior to January 1, 2019,
the terms available at https://www.ibm.com/acs apply.
i126-6604-05 (11/2018) Page 2 of 2
Terms of Use
General Terms for Cloud Offerings
This General Terr,.s for Gio•-d Offe ir,gs TOLL p. ovioes add itic-al terms applica:jl:; :or Cloud Se.vi tis C,i: r.t may o, d :r under
eit:ie th:.:nte national Passport Advantage AgreeniG°., ui th I-�.er..a. o-,a Passport Aova-iage Expres-Agieeme..t ac
applicable ['Base Agrcement" ) and arc in addition to othe appIica,- Ie Transaction Documents (TDs) and Attachments,
collectively the complete agreement ;"Agreement''} rega ding transactions for a Cloud Service.
Changes and Withdrawal of ClouU Servi,.es
a. At any time and at IBM's discretion, IBM may change i) the Ro Cloud Services, including the corresponding
published descriptions. The intent of any charge sill be to: !i! make available additional-eatures and
functicrality; (ii) imp ove and cla i-y existing commitments; or (iii) maintain al gnment to current adopted
operationa and security starda ds ar applicab e laws. Changes sviII not degrade tl,e secs: ity o data protection
features or functicrality o- tl'e IBM Cloud Services. Changes to the pub'is1.9d descriptions, or published other
documents. wi be ef-ective w'l-er puolished or on the specified effective date.
b. Any oranges that do rot meet conditions specified in item a above will only take effect, and Client accepts;
uper. (i) a nesv ode'; (ii) the term renewal date for the Cloud Services t_Piat automatically renew; or (iii)
noti-icaticr from IBM of the change effective date for ongoing services that do not have a specified term.
2. Payment and Taxes
a. IBM will invoice: ;i) recurring charges at the beginning of the selected billing fi-e-quency term; (ii) overage and
usage changes it ar ears: and (iii) one-time cl-a ges upon IBM's acceptance of an c de' .
b. If IBM has not otherwise committed to pricing d,rring the term of a Cloud Service; the IBM may change
charges on thirty days' notice.
3. Term and Termination
a. The term begins on the date IBM notifies Client that Client .can access the Cloud Services. The ordering TD will
specify whether the Cloud Services renew automatically. p cceed on a contir,rous arse basis, or terminate at
the end of the term. For a,rtomatic renewal. 1nress Client p ovides written not ce of rcn renewal to IBM or the
IBM Business Partner involved in the Cloud Services not to -enew at least 30 days pric to the term expiration
date. the Cloud Services sviII automatica'-y renew for the specilied te--ri. Fc ccrtlr,lcus use. the Oo.ud
Services Will ccrtir,re to be a'vairab e cr a month to month oasis lrtii Gdert provides 30 days sv itten
termination notice to IBM c the IBI''.' B,rsiness Partre ir'vo'ved it the Clcud Services. The C cud Services will
remain avai'ab e irtil the end of the calendar montl- a-te such .,0-day pe iod.
b. IBM may s,isperd o limit. to the extent recessar . C iert's use of ar I'BIv' C'oud Service it IBM reasonably
determines there is a mateiar breach of Client's obligations, security Dreach, violation of law, or breach of the
use terms, incl,ldin-, proI- ioited uses, set forth in Base Agreement and section 7(f) below. IBM will provide
notice prior to a suspension as comm 9--cially reasonable. If tl-e cause of a suspersicr can reasonably be
remedied, IBM will p o'vide rctice of the actions Client must take to reinstate the IBI./ Cloud Services. If Client
fails to take such actions svithir a reascrab a time, IBM may to minate the Cloud Services. Clients' failure to
pay. or Client prc'viding iracc,rrate or f a,idulent Client account or payment information to acquire Cloud
Services, is a material Dreach.
C. Client may terminate the IBM Cloud Services on 30 days' notice: i) at the written recommendation of a
government or regu atcry agency following a change in either applicable law or the IBM Cloud Services; ii) if a
change to the IBr.' Cloud Services causes Client to be noncompliant with applicable laws: or iii) if IBM notifies
Client of a charge to the IBM Cloud Services that has a material adverse effect on Client's use of the IBM
Clo,id Services. p o'vided that IBM will have 90 days to work with Client to minimize suer of-ect. In the event of
any such C ent termination above or a similar termination of a Nan -IBM Service, IBM shall e-,rnd a portion of
any prepaid amourts -c the applicable Cloud Service -c the period after the date of term iration. If the Cloud
Services are terminated for any other reason, Client will pay to IBM, on the date of termiraticr. the total
amo,rrts dire per tl,e C cud Service te--ms. Upon term iration, IBM may assist Client in transition irg Content to
an alternative technology for an additional charge and under separately agreed terms.
4. Hybrid and Dual Entitlement Offerings
Hybrid and r)ual Entitlement offerings are Cloud Services which provide Client with access to Programs
for use in the environment o' Client's choice as well as so,tware as a service function provided in an :3rv1
cloud environment. Programs, support, and Program updates are provided in accordance with the Base
Agreement and the following modifications:
i 126-3948-11 _ZZ_917-2-023 )rage 1 of 2
(1) Client's Program license ends when the Cloud Service subscription ends. Client agrees to promptly
remove all such Programs from all Client selected computing environments and destroy all copies;
(2) any specified money back guarantee does not apply for identified Programs;
(3) for Hybrid Entitlement offerings, separate entitlements are required for the simultaneous use of the Cloud
Service and use of the Prog ams in a Client computing environment; and
(4) for Dual Entitlement offerings, entitlements permit simultaneous use of the Cloud Services and use of the
identified Programs it a Client computing environment.
5. General
a. Enabling Software is software that Client down pads to Client systems that facilitates the use of a Cloud
Se vice and will be identified in a TD. Enab'ing Software is not part of the Cloud Services and Client may use
Erab'ing Software only it connection with use of the Cloud Service in accordance with any licensing terms
specified in. a TD. The .icensing terms will specify applicable warranties, if any. Otherwise Enabling Software
is ,iro%ided a-- -i=, wi�hout warrantie- o; any Anu.
6. Previo -s Base .Agreement Versions
a. For Clients acpuiring Cloud Services under a Base Agreement version prior to version 10 dated Nov 2017, IBM
SaaS offerings are IBM Cloud Services and the following additional terms apply.
6.1 Content and Data Protection
a. Content consists of all data. software, and information that Client or its author zed users provides. author -es
access to, or inp,its to IBh' C cud Services c information or data C iert may p ovide, make avai ab.e or grant
access to, in connection svitl- IBt.' p oviding other Se vices. C'ient grarts the ights and pe' missions to IBM, its
affiliates. and contracts s of either, to ise. p ovide. store, and otherwise p ccess Ccrtert so ely for the purpose
of providinig the IBM Cioud Services o other Services. Use of the IBM Cloud Se vices cr ether Se vices sviII not
affect Client's ownership or license rights in Content.
b. Client is responsible fo- obtaining all necessary rights and perm`ss`ons to permit processing c- Content in the
IBM Clo,id Se vices cr other SeNices. C'iert wi.i make disc cs,ires and ootain ccrsent requi ed by Iasv oe-cre
Client p cvides. authorizes access, or inputs individuals inforniation, inc iding persona. or other egu ated data
for p ccessing it tl,e IBM Cloud Services or other Services. If any Contert co,ild be subject to gcve rmental
regu aticr c may require security measures beyond those specified by IBM 'or the IBM Cloud Services or
provide or allow access o- Ccrtert to IIBM to provide other Services, Client wJl not provide, allow access to, or
input the Content for processing in the IBM Cloud Services unless specifically permitted in the terms of the
relevant TD or unless IBM has otherwise first agreed in writing to implement additional security and other
measures.
6.2 Warranty
a. IBM warrants that it provides IBM Cloud Services or other Services using commercially reasonable care and
skill and as described in the applicable Attachment or SD. These warranties end when the IBM Cloud Services
or other Services end.
6.3 Scheduled Maintenance
a. IBM Cloud Services are designed to be available 24t7, subject to maintenance. IBM will provide advance notice
of scheduled maintenance.
i126-5948-11_ZZ_D2-2D23 Page 2 of 2
Addendum for Cloud Services
This Addendum for Cloud Services provides supplementary terms to the Client's existing Cloud Service Agreement version 8
or below or Client Relationship Agreement version 7 or below (or equivalent cloud base agreement between the parties) (Base
Agreement) that were executed prior to January 1, 2019. These supplementary terms were previously in TDs and moved to
our base agreements to improve Client acquisition experience.
Any conflicting terms in an Attachment or TD that override terms of the Base Agreement and this Addendum will be identified
in the TD or Attachment accepted by the Client and only apply to the specific transaction. Terms are organized in sections
which may have a different name from your Base Agreement. IBM will be happy to clarify any such terms if requested.
1. Cloud Service
a. IBM may offer third party Cloud Services, or an IBM Cloud Service may enable access to third party Cloud Services
(non -IBM services). A TD will identify any applicable third party terms that govern Client's use of non -IBM services.
Use of non -IBM services constitutes Client's agreement with the third party terms. IBM is not a party to any third party
agreements and is not responsible for non -IBM Cloud Services.
b. Enabling Software is software that Client downloads to Client systems to facilitate use of a Cloud Service and will be
identified in a TD. Enabling Software is not part of the Cloud Service and Client may use Enabling Software only in
connection with use of the Cloud Service in accordance with any licensing terms specified in a TD. The licensing
terms will specify applicable warranties, if any. Otherwise, Enabling Software is provided as -is, without
warranties of any kind.
c. Client may not use Cloud Services: i) for crypto-mining, unless otherwise agreed by IBM in writing; or ii) if failure or
interruption of the Cloud Services could lead to death, serious bodily injury, or property or environmental damage.
Client may not: i) reverse engineer any portion of a Cloud Service; ii) assign or resell direct access to a Cloud Service
to a third party outside Client's Enterprise; or iii) combine a Cloud Service with Client's value add to create a Client
branded solution that Client markets to its end user customers unless otherwise agreed by IBM in writing.
d. Cloud Services or features of a Cloud Services are considered "preview" when IBM makes such services or features
available at no charge, with limited or pre-release functionality, or for a limited time to try available functionality.
Examples of preview Cloud Services include beta, trial, no -charge, or preview designated Cloud Services. Any
preview Cloud Service is excluded from available service level agreements. Not all Preview Cloud Services are
covered by support. IBM may change or discontinue a Preview Cloud Service at any time and without notice. IBM is
not obligated to release a preview Cloud Service or make an equivalent service generally available. Preview services
are made available under the Agreement as -is, without warranties of any kind.
2. Charges, Taxes, and Payment
a. If IBM has commits to pricing as specified in a TD, IBM will not change such pricing during the specified term. If there
is not a specified commitment, then IBM may change pricing on thirty days' notice. A change applies on the invoice
date or the first day of the charging period or new term on or after the effective date IBM specifies in the notice.
b. IBM will invoice: (i) recurring charges at the beginning of the billing frequency term; (ii) overage and usage charges in
arrears; and one-time charges upon IBM's acceptance of an order.
3. Term and Termination of a Cloud Service
The term begins on the date IBM notifies Client that Client can access the Cloud Services. The ordering TD will
specify whether the Cloud Services renew automatically, proceed on a continuous use basis, or terminate at the end
of the term. For automatic renewal, unless Client provides written notice of non -renewal to IBM or the IBM Business
Partner involved in the Cloud Services at least 30 days prior to the term expiration date, the Cloud Service will
automatically renew for the specified term. For continuous use, the Cloud Services will continue to be available on a
month to month basis until Client provides 30 days written termination notice to IBM or the IBM Business Partner
involved in the Cloud Service. The Cloud Services will remain available until the end of the calendar month after such
30-day period.
4. General
At any time and at IBM's discretion, IBM may change: (i) the IBM Cloud Services, including the corresponding
published descriptions; and (ii) the DSP and other published data security and privacy documentation for the IBM
Cloud Services. The intent of any change to the above will be to: (i) make available additional features and
functionality; (ii) improve and clarify existing commitments; or (iii) maintain alignment to current adopted operational
and security standards or applicable laws. The intent is not to degrade the security or data protection features or
functionality of the IBM Cloud Services. Changes to the published descriptions, DSP, or published other documents
as specified above, will be effective when published or on the specified effective date. Any changes that do not meet
conditions specified above will only take effect, and Client accepts, upon: (i) a new order, (ii) the term renewal date
for the Cloud Services that automatically renew; or (iii) notification from IBM of the change effective date for ongoing
services that do not have a specified term.
i126-8202-04_05-2022_zz_en-us Page 1 of 2
b. IBM is acting as an information technology provider only. IBM's directions, suggested usage, or guidance or use of
the Cloud Services do not constitute medical, clinical, legal, accounting, or other licensed professional advice. Client
and its authorized users are responsible for the use of the Cloud Service within any professional practice and should
obtain their own expert advice. Client is responsible for its use of Cloud Services.
c. The IBM Privacy Statement at https://www.ibm.com/privacy/ provides additional details with respect to BCI and
Account Data.
d. If IBM and Client agree to use a Client requested third party service to support the procurement or payment activities
associated with an Agreement, IBM agrees to submit or receive applicable documents (such as invoices or similar
contracting documents) using the third party service. In the event: i) the third party service becomes unavailable for
any reason; or ii) the third party provider modifies the service or terms of use in a manner IBM deems commercially
unacceptable, the Client agrees to directly accept documents. Client remains responsible to IBM for timely payments
of invoices. If there is a claim or proceeding against IBM related to IBM's proper use of Client's requested third party
service, Client is responsible to reimburse IBM for reasonable defense costs and any amounts IBM is required to pay
due to such claim or proceeding. This includes claims or proceedings due to the third party service provider's use,
misuse, or disclosure of data or confidential information disclosed through the third party service or the third party's
failure to comply with applicable data protection laws. IBM agrees to promptly notify Client in writing of any such claim
or proceeding.
i126-8202-04_05-2022_zz_en-us Page 2 of 2
Data Processing Addendum
This Data Processing Addendum (DPA) and its applicable DPA Exhibits apply to the Processing of Personal Data by
IBM on behalf of Client (Client Personal Data) subject to the General Data Protection Regulation 2016/679 (GDPR) or
any other data protection laws identified at http://www.ibm.com/dpa/dpl (together `Data Protection Laws') in order to
provide services (Services) pursuant to the Agreement between Client and IBM. DPA Exhibits for each Service will be
provided in the applicable Transaction Document (TD). This DPA is incorporated into the Agreement. Capitalized
terms used and not defined herein have the meanings given them in the applicable Data Protection Laws. In the
event of conflict, the DPA Exhibit prevails over the DPA which prevails over the rest of the Agreement.
1. Processing
1.1 Client is: (a) a Controller of Client Personal Data; or (b) acting as Processor on behalf of other Controllers
and has been instructed by and obtained the authorization of the relevant Controller(s) to agree to the
Processing of Client Personal Data by IBM as Client's subprocessor as set out in this DPA. Client appoints
IBM as Processor to Process Client Personal Data. If there are other Controllers, Client will identify and
inform IBM of any such other Controllers prior to providing their Personal Data, in accordance with the DPA
Exhibit.
1.2 A list of categories of Data Subjects, types of Client Personal Data, Special Categories of Personal Data and
the processing activities is set out in the applicable DPA Exhibit for a Service. The duration of the
Processing corresponds to the duration of the Service, unless otherwise stated in the DPA Exhibit. The
purpose and subject matter of the Processing is the provision of the Service as described in the Agreement.
1.3 IBM will Process Client Personal Data according to Client's documented instructions. The scope of Client's
instructions for the Processing of Client Personal Data is defined by the Agreement, and, if applicable,
Client's and its authorized users' use and configuration of the features of the Service. Client may provide
further legally required instructions regarding the Processing of Client Personal Data (Additional Instructions)
as described in Section 10.2. If IBM notifies Client that an Additional Instruction is not feasible, the parties
shall work together to find an alternative. If IBM notifies the Client that neither the Additional Instruction nor
an alternative is feasible, Client may terminate the affected Service, in accordance with any applicable terms
of the Agreement. If IBM believes an instruction violates the Data Protection Laws, IBM will immediately
inform Client, and may suspend the performance of such instruction until Client has modified or confirmed its
lawfulness in documented form.
1.4 Client shall serve as a single point of contact for IBM. As other Controllers may have certain direct rights
against IBM, Client undertakes to exercise all such rights on their behalf and to obtain all necessary
permissions from the other Controllers. IBM shall be discharged of its obligation to inform or notify another
Controller when IBM has provided such information or notice to Client. Similarly, IBM will serve as a single
point of contact for Client with respect to its obligations as a Processor under this DPA.
1.5 IBM will comply with all Data Protection Laws in respect of the Services applicable to IBM as Processor. IBM
is not responsible for determining the requirements of laws or regulations applicable to Client's business, or
that a Service meets the requirements of any such applicable laws or regulations. As between the parties,
Client is responsible for the lawfulness of the Processing of the Client Personal Data. Client will not use the
Services in a manner that would violate applicable Data Protection Laws.
2. Technical and organizational measures
2.1 Client and IBM agree that IBM will implement and maintain the technical and organizational measures set
forth in the applicable DPA Exhibit (TOMs) which ensure a level of security appropriate to the risk for IBM's
scope of responsibility. TOMs are subject to technical progress and further development. Accordingly, IBM
reserves the right to modify the TOMs provided that the functionality and security of the Services are not
degraded.
3. Data Subject Rights and Requests
3.1 IBM will inform Client of requests from Data Subjects exercising their Data Subject rights (e.g., including but
not limited to rectification, deletion and blocking of data) addressed directly to IBM regarding Client Personal
Data. Client shall be responsible to handle such requests of Data Subjects. IBM will reasonably assist Client
in handling such Data Subject requests in accordance with Section 10.2.
3.2 If a Data Subject brings a claim directly against IBM for a violation of their Data Subject rights, Client will
reimburse IBM for any cost, charge, damages, expenses or loss arising from such a claim, to the extent that
IBM has notified Client about the claim and given Client the opportunity to cooperate with IBM in the defense
and settlement of the claim. Subject to the terms of the Agreement, Client may claim from IBM damages
Z126-7870-03 09-2021 Page 1 of 3
resulting from Data Subject claims for a violation of their Data Subject rights caused by IBM's breach of its
obligations under this DPA and the respective DPA Exhibit.
4. Third Party Requests and Confidentiality
4.1 IBM will not disclose Client Personal Data to any third party, unless authorized by the Client or required by
law. If a government or Supervisory Authority demands access to Client Personal Data, IBM will notify Client
prior to disclosure, unless such notification is prohibited by law.
4.2 IBM requires all of its personnel authorized to Process Client Personal Data to commit themselves to
confidentiality and not Process such Client Personal Data for any other purposes, except on instructions
from Client or unless required by applicable law.
5. Audit
5.1 IBM shall allow for, and contribute to, audits, including inspections, conducted by the Client or another
auditor mandated by the Client in accordance with the following procedures:
a. Upon Client's written request, IBM will provide Client or its mandated auditor with the most recent
certifications and/or summary audit report(s), which IBM has procured to regularly test, assess and
evaluate the effectiveness of the TOMs, to the extent set out in the DPA Exhibit.
b. IBM will reasonably cooperate with Client by providing available additional information concerning the
TOMs, to help Client better understand such TOMS.
C. If further information is needed by Client to comply with its own or other Controllers audit obligations
or a competent Supervisory Authority's request, Client will inform IBM in writing to enable IBM to
provide such information or to grant access to it.
d. To the extent it is not possible to otherwise satisfy an audit right mandated by applicable law or
expressly agreed by the Parties, only legally mandated entities (such as a governmental regulatory
agency having oversight of Client's operations), the Client or its mandated auditor may conduct an
onsite visit of the IBM facilities used to provide the Service, during normal business hours and only in
a manner that causes minimal disruption to IBM's business, subject to coordinating the timing of such
visit and in accordance with any audit procedures described in the DPA Exhibit in order to reduce any
risk to IBM's other customers.
Any other auditor mandated by the Client shall not be a direct competitor of IBM with regard to the Services
and shall be bound to an obligation of confidentiality.
5.2 Each party will bear its own costs in respect of paragraphs a. and b. of Section 5.1, otherwise Section 10.2
applies accordingly.
6. Return or Deletion of Client Personal Data
6.1 Upon termination or expiration of the Agreement IBM will either delete or return Client Personal Data in its
possession as set out in the respective DPA Exhibit, unless otherwise required by applicable law.
7. Subprocessors
7.1 Client authorizes the engagement of other Processors to Process Client Personal Data (Subprocessors). A
list of the current Subprocessors is set out in the respective DPA Exhibit. IBM will notify Client in advance of
any addition or replacement of the Subprocessors as set out in the respective DPA Exhibit. Within 30 days
after IBM's notification of the intended change, Client can object to the addition of a Subprocessor on the
basis that such addition would cause Client to violate applicable legal requirements. Client's objection shall
be in writing and include Client's specific reasons for its objection and options to mitigate, if any. If Client
does not object within such period, the respective Subprocessor may be commissioned to Process Client
Personal Data. IBM shall impose substantially similar but no less protective data protection obligations as
set out in this DPA on any approved Subprocessor prior to the Subprocessor initiating any Processing of
Client Personal Data.
7.2 If Client legitimately objects to the addition of a Subprocessor and IBM cannot reasonably accommodate
Client's objection, IBM will notify Client. Client may terminate the affected Services as set out in the
Agreement, otherwise the parties shall cooperate to find a feasible solution in accordance with the dispute
resolution process.
8. Transborder Data Processing
8.1 In the case of a transfer of Client Personal Data to a country not providing an adequate level of protection
pursuant to the Data Protection Laws (Non -Adequate Country), the parties shall cooperate to ensure
compliance with the applicable Data Protection Laws as set out in the following Sections or at the Data
Z126-7870-03 09-2021 Page 2 of 3
Protection Laws at http://www.ibm.com/dpa/dpl. If Client believes the measures are not sufficient to satisfy
the legal requirements, Client shall notify IBM and the parties shall work together to find an alternative.
8.2 By entering into the Agreement, Client and IBM are entering into EU Standard Contractual Clauses as set
out in the applicable DPA Exhibit (EU SCC) if Client, IBM, or both are located in a Non -Adequate Country. If
the EU SCC are not required because both parties are located in a country considered adequate by the
Data Protection Laws, but during the Service the country where IBM or Client is located becomes a Non -
Adequate Country, the EU SCC will apply.
The parties acknowledge that the applicable module of the EU SCC will be determined by their role as
Controller and/or Processor under the circumstances of each case and are responsible for determining the
correct role undertaken in order to fulfil the appropriate obligations under the applicable module.
8.3 Client agrees that the EU SCC, including any claims arising from them, are subject to the terms set forth in
the Agreement, including the limitations of liability. In case of conflict, the EU SCC shall prevail.
8.4 IBM will enter into the EU SCC with each Subprocessor located in a Non -Adequate Country as listed in the
respective DPA Exhibit.
9. Personal Data Breach
9.1 IBM will notify Client without undue delay after becoming aware of a Personal Data Breach with respect to
the Services. IBM will promptly investigate the Personal Data Breach if it occurred on IBM infrastructure or in
another area IBM is responsible for and will assist Client as set out in Section 10.
10. Assistance
10.1 IBM will assist Client by technical and organizational measures for the fulfillment of Client's obligation to
comply with the rights of Data Subjects and in ensuring compliance with Clients obligations relating to the
security of Processing, the notification and communication of a Personal Data Breach and the Data
Protection Impact Assessment, including prior consultation with the responsible Supervisory Authority, if
required, taking into account the nature of the processing and the information available to IBM.
10.2 Client will make a written request for any assistance referred to in this DPA. IBM may charge Client no more
than a reasonable charge to perform such assistance or an Additional Instruction, such charges to be set
forth in a quote and agreed in writing by the parties, or as set forth in an applicable change control provision
of the Agreement. If Client does not agree to the quote, the parties agree to reasonably cooperate to find a
feasible solution in accordance with the dispute resolution process.
Z126-7870-03 09-2021 Page 3 of 3
FORT WORTH
CITY OF FORT WORTH
CHAPTER 252 EXEMPTION FORM
Instructions: Fill out the entire form with detailed information. Once you have completed this form,
provide it to the Purchasing attorney for review. The attorney will review the information you have
provided to determine whether an exemption to Chapter 252's biding requirements is defensible.
If you are printing this form to provide to Legal, please do not provide the Primer portion. Failure
to provide sufficient information may result in follow up questions and cause a delay in the
attorney's determination.
Requesting Department:
Name of Contract Manager:
Department's Attorney:
Item or Service sought:
Goods:
Service:
Anticipated Amount:
Section 1: General Information
Water Department
Homer Garza
Taylor Paris
N
$15,000.00: $9,491.66 for the current quote, and
the extra is for the anticipated need of additional Editor licenses.
Vendor:
International Business Machines Corporation IBM)
Current/Prior Agreement for item/service: Yes ❑ No
CSC or Purchase Order #: The IBM Blueworks licenses were raid for
contractor SL-Serco under CSC 48192, for the design, planning, and implementation of the
Advanced Metering Infrastructure for the Water Department's MyH2O.
Amount: N/A
Projected M&C Date: N/A
How will this item or service be used? Key business processes were gathered, mapped, and
stored in IBM Blueworks Live by the contractor. SL-Serco. Internal staff has taken over
administrating editing„ and building new processes. We now need continued access to IBM
Blueworks in order to view and continue building upon the previously gathered information. It
provides for a collaborative anywhere environment, allowing teams to work together through an
Page 1 of 5
easily accessible web interface, to document and analyze business processes, and make them
more efficient.
Has your department started a requisition or otherwise contacted the Purchasing Division related
to obtaining this good/service? Yes ❑ No
If yes, please provide requisition number or brief explanation of contact with
Purchasing Division: (DETAILED DESCRIPTION)
Section 2: Claimed Exemption and Justification (Other than sole source)
NOTE - For a claimed sole -source exemption, complete Section 3.
Please indicate the non -sole -source exemption you believe applies to the purchase and provide
information to support its applicability. Please refer to the Exemption Primer for detailed
information about common exemptions:
[] A procurement necessary to preserve or protect the public health or safety of the City
of Fort Worth's residents;
[] A procurement necessary because of unforeseen damage to public machinery,
equipment, or other property;
R A procurement for personal, professional, or planning services;
R A procurement for work that is performed and paid for by the day as the work
progresses;
[] A purchase of land or a right-of-way;
[] Paving drainage, street widening, and other public improvements, or related matters, if
at least one-third of the cost is to be paid by or through special assessments levied on
property that will benefit from the improvements;
[] A public improvement project, already in progress, authorized by the voters of the
municipality, for which there is a deficiency of funds for completing the project in
accordance with the plans and purposes authorized by the voters;
[] A payment under a contract by which a developer participates in the construction of a
public improvement as provided by Subchapter C, Chapter 212;
R Personal property sold:
• at an auction by a state licensed auctioneer;
• at a going out of business sale held in compliance with Subchapter F,
Chapter 17, Business & Commerce Code;
Page 2 of 5
by a political subdivision of this state, a state agency of this state, or an
entity of the federal government; or
under an interlocal contract for cooperative purchasing administered by a
regional planning commission established under Chapter 391;
[] Services performed by blind or severely disabled persons;
[] Goods purchased by a municipality for subsequent retail sale by the municipality;
[] Electricity; or
R Advertising, other than legal notices.
Please provide details and facts to explain why you believe the exemption applies to the
purchase. You may also attach documentation to this form. [INSERT DETAILED
EXPLANATION AS TO HOW/WHY CLAIMED EXCEPTION APPLIES TO THIS
PURCHASE]
Section 3: Claimed Sole -Source Exemption and Justification
NOTE - For any non -sole -source exemption, complete Section 2.
Please indicate the sole -source exemption you believe applies to the purchase and provide
information to support its applicability. Please refer to the Exemption Primer for detailed
information about common exemptions
*A procurement of items that are available from only one source, including:
• items that are available from only one source because of patents, copyrights,
secret processes, or natural monopolies;
• films, manuscripts, or books;
• gas, water, and other utility services;
• captive replacement parts or components for equipment;
• books, papers, and other library materials for a public library that are
available only from the persons holding exclusive distribution rights to the
materials; and
• management services provided by a nonprofit organization to a municipal
museum, park, zoo, or other facility to which the organization has provided
significant financial or other benefits;
How did you determine that the item or service is only available from one source?
Please see the accompanying Sole Source Letter from IBM.
Page 3 of 5
Attach screenshots and provide an explanation of any independent research you conducted,
through internet searches, searching cooperatives, or discussions with others knowledgeable on
the subject matter that corroborate that the item is available only from a single source.
Please see the accompanying Sole Source Letter from IBM.We already have the product in use
after it was purchased by the Contractor for the MyH2O Program, to map the department's
business processes. We can only access that information by using IBM Blueworks.
Did you attach a sole source justification letter? ® Yes ❑ No
Describe the uniqueness of the item or service (e.g. compatibility or patent issues, etc.). We have
a Sole Source Letter form IBM, and we are already utilizing the product after it was purchased
and used by the Contractor for the department's MyH2O Program since September of 2016. In
order to access all the years of process data, we can only use IBM Blueworks.
Section 4: Attorney Determination
With the facts provided by the department, is the use of the claimed exemption defensible if the
City were to be challenged on this purchase? M Yes ❑ No.
Was there anything attached to this form that was relied on in making this determination?
M Yes ❑ No.
If yes, please explain: The Department provided a sole source letter.
Was there anything not included on this form or attached hereto that was relied on in making this
determination? [] Yes ❑ No.
If yes, please explain:
Will the standard terms and conditions apply?
Will the contract require special terms?
Will the contract require review by the department attorney?
M Yes ❑ No.
[] Yes M No.
❑ Yes ❑ No.
Page 4 of 5
Approved By:
Date: 2/21/2023
tLe nato-Mensah
tant City Attorney
Page 5 of 5
International Business Machines Corporation
1177 S. Beltline Road
Coppell, Texas 75019
February 9, 2023
Homer Garza, GISP
Water IT Data Systems Manager
Fort Worth Water
200 Texas Street
Fort Worth, TX 76102
Subject: IBM Sole -Source Provider/Licensor of IBM Blueworks Products
Reference: Blueworks Product Descriptions, as set forth herein
Dear Mr. Garza:
This letter serves to represent that IBM is the sole provider of the below -named IBM Blueworks
Products (the "Products"). The type of unique technical skills support and maintenance service
required for the Products can only be provided by IBM.
D01MWZX
IBM Blueworks Live Instance per Annum
DOPQJLL
IBM Blueworks Live Contributor
Authorized User per Annum
DOPQILL
IBM Blueworks Live Editor Authorized
User per Annum
D157MLL
IBM Blueworks Live Service Level
Agreement
DISSGLL
IBM Blueworks Live Viewer 100
Authorized User per Annum
Thank you again for your continued support of IBM. Should you have any questions, please feel
free to contact me.
Sincerely,
Katherine E Olear
Katherine E Olear
IBM Business Automation
Public & Healthcare
Cell: (682) 220-1107
Email: keolear@us.ibm.com
VERIFICATION OF SIGNATURE AUTHORITY
International Business Machines Corporation (IBM)
1177 S Belt Line Rd,
Coppell, TX 75019
IBM Services and Products: https://www.ibm.com/products
Execution of this Signature Verification Form ("Form") hereby certifies that the following
individuals and/or positions have the authority to legally bind the Consultant and to execute any
agreement, amendment or change order on behalf of Consultant. Such binding authority has
been granted by proper order, resolution, ordinance or other authorization of Company. The City
is fully entitled to rely on the warranty and representation set forth in this Form in entering into
any agreement or amendment with Consultant. Consultant will submit an updated Form within
ten (10) business days if there are any changes to the signatory authority. The City is entitled to
rely on any current executed Form until it receives a revised Form that has been properly
executed by the Consultant.
Name: Mark Dennis
Position: Technology Sales Leader: State of Texas and Washington
Mailing Address: IBM 1177 S Belt Line Rd, Coppell, TX 75019
Email Address: mark.dennis(a)ibm.com
Signature
FoRTWORTH.
Routing and Transmittal Slip
Water
Department
DOCUMENT TITLE: IBM Corporation Contract for Blueworks Live SAAS subscri
M&C: CPN: CSO: new DOC #:
TO:
Role
Initials
Homer Garza
Contract Compliance Manager
signer
Rick Lisenbee
Sr. Water IT Manager -approver
Katherine E Olear
vendor
KO
KO
Mark Dennis
vendor
signer
Jan Hale
Water Deputy Director
bh
Chris Harder
Water Director
signer
Taylor Paris
Assistant City Attorney
signer
Dana Burghdoff
Assistant City Manager
signer
Melissa Brunner
City Secretary intake
Jannette Goodall
City Secretary
signer
Allison Tidwell
City Secretary posting
Rick Lisenbee
Accepter
Katherine E Olear
Vendor - recipient
Homer Garza
Water IT -recipient
Needs to be notarized: ❑ YES x NO
Action Required:
❑ As Requested
❑ For Your Information
Signature/Routing and/or Recording
❑ Comment
❑ File
FOR CMO USE ONLY: Routing to CSO YES ❑ NO
EXPLANATION
Key business processes were gathered, mapped, and stored in IBM Blueworks Live by contractor SL-
Serco as part of the design, planning, and implementation of the Advanced Metering Infrastructure for the
Water Department's MyH2O program. Internal staff has taken over administrating, editing, and building
new processes. We now need continued access to IBM Blueworks Live in order to view and build upon
the previously gathered information. The tool provides for a collaborative anywhere environment via a
SAAS subscription allowing teams to work together to document and analyze business processes.
The Water Department's current IBM Blueworks licenses were previously paid under CSCO 48192 with
SL-Serco; however, IBM requires a new agreement directly with the City of Fort Worth rather than an
assignment agreement to transfer the subscription ownership. The Law Department endorsed a 252 bid
waiver for this service as a sole source provided solely by IBM.
The actual price quote reflects pricing equal to or less than the State of Texas contract DIR-TSO-3996;
although the contract is not a typical cooperative agreement. This is an Addendum to the standard IBM
contract. The new agreement's total spending authority will not exceed $15,000.00.
Please sign or approve these items. If you have any questions or concerns, feel free to call or email me.
Thank you,
Homer Garza, GISP
Water IT Data Systems Manager
Fort Worth Water Department
Phone: 817-392-8633
Mobile: 817-350-3499
Email: homero. ag rza(c�r�,fortworthtexas.gov