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Res 2660 11/4/1980RESOLUTION NO.j 'f RESOLUTION APPROVING CONTRACT TO MAINTAIN EXISTING INTERNATIONAL BUSINESS MACHINE (IBM) EQUIPMENT CURRENTLY IN USE BE IT RESOLVED BY THE BOARD OF ALDERMEN OF THE CITY OF WICHITA FALLS, TEXAS, THAT: A maintenance contract between the City of Wichita Falls and IBM, Inc. for maintenance of equipment purchased in November 1980, similar to attached contract, such contract not to exceed $7,000.00 in FY80/81, is hereby approved, and the City Manager is authorized to execute the same for the City of Wichita Falls. PASSED AND APPROVED THIS THE v day of 4-, 'iri-z-Z-Z-74980. MAYOR ATTEST: CITY CLERK International Business Machines Corporation Armonk, New York 10504 IBM Maintenance Agreement IBM Branch Office Address: Agreement No.: IBM General Systems Division One Summit Avenue Marketing Branch Office No.: G6A/BCV Fort Worth, Texas 76102 Name and Address of Customer: Custorncr Nn.: 97502-42 City of Wichita Falls Data Processing 1300 Seventh Street Wichita Falls , Texas 76301 International Business Machines Corporation (!Hht), by its acceptance of this Agreement, agrees to provide and the Customer agrees to accept, under the terms and conditions of this Agreement, maintenance service for the IBM machines, including IBM features, shown on the attached IBM Maintenance Agreement Machine List and for those IBM machines arid features for which such service is ordered from time to time by the Customer,subject to written acceptance by trim Term or Sundays. The Customer may change the selected Periods of Main. This Agreement is effective from the date on which-it is accepted by tenance Service Availability upon 15 days' prior written notice to IBM. IBM and shall remain in force until terminated by the Customer upon Ina single system, all machines covered under this Agreement must one month's prior written notice to IBM or by IttM upon twelve months' have a commonon period, Monday through Friday, of at least 9 con- prior written notice to the Customer. Individual machines may be with- secntive hours within the selected Periods of Maintenance Service drawn from this Agreement by the Customer upon one month's prior Availability. For this purpose, a single system is defined as a coin- written notice to IBM. Except as otherwise provided herein, IBM may bination of machines, including one or more controllers or processing withdraw individual machines from this Agreement at the end of the units,which are designed to operate in conjunction with each other and first year after maintenance service for each such machine has rum- are interconnected by IIiM power and signal cables or die equivalent. menced, or thereafter, upon three months' prior written notice to the For Monthly Use Plan machines, the Customer is entitled to Main- Customer. tenance Service Availability 21 hours a day,7 days a week. Maintenance Service Charges The Maintenance Service Commencement Date for a machine under Maintenance charges for a machine will In-gin on the Maintenance this Agreement will be the date designated by the Custtimcr or the day Service Conon•ncernent Date. following the last day of the Service arid Parts Warranty period of the For machines, other than those designated by IBM as Monthly Use applicable IBM purchase agreement, whichever is later. IBM agrees to Plan machines, the Customer agrees to pay monthly charges consisting provide the availability of maintenance service(luring Periods of Hain- of(I) a Minimum Monthly Maintenance Charge, and(2)an Additional tenance Service Availability selected by the Custorn•r, or during the Monthly Maintenance Charge for any Optional Periods of Maintenance period specified for machines designated by IBM as Monthly Use Plan Service Availability selected by the Customer as described in the at- machines, while they are located within the United States and Puerto !ached IBM Maintenance Agreement Exhibit. Rico.This maintenance service to keep the machines in,or restore the For Monthly Use Plan machines, the Customer agrees to pay month- machines to, good working order includes scheduled preventive main- ly charges consisting of(I)a Basic Monthly Maintenance Charge, and tenance based upon the specific needs of individual machines as deter- (2)an Additional Monthly Maintenance Charge based upon the amount mined by !BM and unscheduled, on-call remedial maintenance. Main- of processing performed by the machine as measured by an IBM meter tenance will include lubrication,adjustments and replacement of main- multiplied by the Additional Monthly Maintenance Charge Rate. In or- tenance parts deemed necessary by IBM.Maintenance parts will be fur- der to ensure timely meter readings, the Customer agrees to furnish a nished on an exchange basis, and the replaced parts become the monthly report to IBM showing the meter reading for the machine as of property of IBM. Maintenance service provided under this Agreement the close of the last work day of each calendar month. The Customer does not assure uninterrupted operation of the machines. agrees to use due care not to interfere with the proper operation of the meter. Periods of Maintenance Service Availability If the Customer requests maintenance service, that is not otherwise excluded as set forth in the section entitled "Exclusions," to be per- For machines, other than those designated by IBM as Monthly Use funned at a time outside the selected Periods of Maintenance Service Plan machines, the Customer may select a Minimum Period of Main- Availability, there will be no additional charge for maintenance parts; tenance Service Availability during any period of 9 consecutive hours however, the service will be furnished at IBM's applicable hourly rates between 7:00 a.m. and 6:00 p.m., Monday through Friday. The and terms then in effect. Customer may select in lieu of,or in addition to, the Minimum Period There will he no additional charge for travel expense associated with of Maintenance Service Availability one or more of the Optional services performed during the selected Periods of Maintenance Service Periods of Maintenance Service Availability as shown on the attached Availability,except that actual travel expense shall he charged in those IBM Maintenance Agreement Exhibit.The Period or Periods of Main- instances where the site at cchich the machine is located is not normally tenance Service Availability selected by the Customer must include a accessible by private automobile or scheduled public transportation. period,Monday through Friday,of at least 9 consecutive hours. Changes in the machines' specifications may result in an adjustment The Period of 1ltaintenance Service Availability for a machine on of the Minimum Monthly Maintenance Charge and Additional Monthly Monday through Friday shall be the same hours each day, and the Maintenance Charge or, for Monthly Use Plan machines, an ad- period on Saturday or Sunday shall be die same hours on all Saturdays justment of the Basic Monthly Maintenance Charge and Additional 21200777-s Please send all communications to taxi at ifs business office listed about,unless notified to the contrary. r i ITnMFp 11lonthly MaintenancesCharge Rate. Such adjustment(s) shall be r1- il such service which is impractical for IBM to render because of fective orrthe Maintenance Service Commencement Date shown on the alterations in,or attachments to, the machines. IBM Maintenance Agreement Machine List. The Minimum Monthly. Maintenance Charge, Periods of Main- .Iccv.e.s to .Machines tenance Service Availability, Machine Groups, percentages by' which the Additional Monthly Ilfaintenance Charge is determined, Basic. IBM shall have full and free access to the machine., to provide .'r• Monthly Maintenance Charge and the Additional Monthly Main- vice thereon. tenance Charge Rate arc subject to change by IBM upon three months' If persons other than IBM representatives shall perform maintenance prior written notice to the Customer and will become effective on the or repair of a machine,arid as a result further repair by IBM is required, date specified in the notice unless the Customer exercises the option to such further repairs will be made at IBM's applicable time and material withdraw the affected machine from this Agreement. rates and terms then in effect. If such additional repair is required,IBM may withdraw the machine from this Agreement upon one month's Tares prior written notice to the Customer following any repetition of the need for additional repair of such machine caused by non-IBM main- In addition to the charges due under this Agreement, the Customer tenance activity. • agrees to pay amounts equal to any taxes resulting from this Agreement, or any activities hereunder, exclusiv of taxes based upon Engineering Changes— Installation and Controlnetincome. Engineering changes, determined applicable by IBM, will he con- Invoicing trolled and installed by IBM on machines covered by this Agreement. The Customer may,by providing notice subject to written confirmation The Minimum Monthly Maintenance Charge, Basic Monthly Main- by IttM.elect to have only mandatory changes,as determined by IBM,in- tenance Charge and the Additional Monthly Maintenance Charge for stalled on machines so designated. • machines other than those designated by IBM as Monthly Use Plan IBM reserves the right to charge,at its applicable time and material machines will.be invoiced in advance as of the first of each month. rates and terms then in effect, for additional service time and Charges for a partial month's service will be prorated on the basis of a replacement parts associated with the installation by IBM of an 30-day •month. The Additional Monthly Maintenance Charge for engineering change when such additional service and parts are Monthly Use Plan machines will be invoiced in the month following the required due to the conversion from one IBM model to another or the in- month in which it is incurred. Payment will he made within 30 days af• stallation or removal of an IBM feature whenever any of the foregoing ter the date of invoice. All other charges due hereunder are payable as was performed by other than IBM. specified in the invoice. Non-IBM Parts Exclusions Maintenance service provided by IBM under this Agreement does not include the replacement or adjustment of parts which were not fur- Maintenance service provided by IBM under this Agreement does not nished for the machint by IBM, or the time spent in determining the include:creed for replacement or adjustment of such parts, except for common a) repair of damage or increase in service time caused by failure to hardware items such as screws, nuts, bolts, clamps and commercially- continually provide a suitable installation environment with all available parts; e.g., light bulbs, etc. IBM will replace, at the Facilities prescribed by the applicable IBM installation manual in- Customer's request and at IBM's applicable time and material rates and eluding, but not limited to, the failure to provide, or the failure of, terms then in effect, maintenance parts which were not furnished for adequate electrical power,air conditioning or humidity control; the machine by IBM (except when such part is in 'an alteration) when such parts are directlyly interchangeable with the IBM maintenance parts. b) repair of damage or increase in service time caused by the use When IBM determines that a machine under this Agreement contains of the machines for other than data processing purposes for which a part, not furnished for the machine by IBM, which is particularly designed; significant to IBM's ability to provide maintenance service for such machine under this Agreement, IBM may withdraw the machine frontc) repair of damage, replacement of parts(due to other than nor- this Agreement upon one month's prior written notice to the Customer, mal wear)or repetitive service calls caused by the use of supplies; unless the Customer replaces the part with a directly interchangeable d) repair of damage or increase in service time caused by: acci- Pert furnished for the machine by IBM. IBM will, at the Customer's dent;disaster; which shall include, but not be limited to, fire, flood, request, replace such part with a directly interchangeable part at IBM's water, wind and lightning; transportation; neglect or misuse; applicable time and material rates and terms then in effect. alterations, which shall include, but not be limited to, any deviation from IBM's physical, mechanical or electrical machine design; at- Disclaimer and Limitation of Liability tachments,which are defined as the mechanical,electrical or electronic IBM will in no event be liable for lost profits or other consequentialinterconnectiontoanIBMmachineofnon-IBM equipment and devices damages even if IBM has been advised of the possibility of suchnotsuppliedbyIBM;or IBM machines,except those IBM machines which damages or for any claim against the Customer by any other party.•are owned by IBM,under the Service and Parts Warranty provision of IBM's liability to the Customer for damages, from any cause what-an IBM purchase agreement or under an IBM Maintenance Agreement; soever, and regardless of the form of action, whether in contract or in e) repair of damage or increase in service time caused by the con- tort including negligence, shall he limited to the greater of$50,000 or version from one IBM model to another or the installation or removal of twelve months' maintenance charges for the specific machines under an IBM feature whenever any of the foregoing was performed by other this Agreement that caused the damages or that are the subject matter than IBM.This exclusion shall apply only during the first three months of or are directly related to the cause of action. Such charges shall be of IBM Maintenance Agreement service subsequent to the date-of such .those in effect for the specific machines when the cause of action arose. machine modification; f) replacement parts or increase in service time as set forth in the General sections entitled "Access to Machines" and "Engineering Changes —Subject to the terms of the following paragraph, IBM may, upon Installation and Control" or replacement of non-IBM parts as set forth twelve months' prior written notice to the Customer, modify the termsinthesectionentitled"Non-IBM Parts"; • and conditions of this Agreement, except that IBM may, upon three furnishing supplies or accessories, painting or refinishing the months' prior written notice to the Customer, modify the terms andg) g PP P` g g conditions of the Section entitled "Charges."machines or furnishing material therefor,inspecting altered machines, making specification changes or performing services connected with Any such modification will apply on the effective date specified in relocation of machines, or adding or, removing accessories, at- the notice unless the Customer exercises the option to terminate this tachments or other devices; Agreement. Otherwise,this Agreement can only he modified by a writ- ten agreement duly signed by persons authorized to sign agreements h) 'electrical work external to the machines or maintenance of ac- on behalf of the Customer and of IBM.and variance from the terms and cessories, alterations, attachments or other devices not furnished by conditions of this Agreement in any customer order or other written IBM;and notification will be of no effect. 2 The Customer represents that he is the owner of the machines under I he- Apr nip-fit this Agreement,or,if not the owner,has authority from the owner to in- York. elude suchjriachinel.under this Agreement. HIE CUST011F1i :1(:KNOWLEIR;ES THAT IIE: HAS IBM service provided outside the scope of this Agreement will he fur- READ THIS AGREEMENT, WHICH INCLUDES THE AT- nished at IoM's applicable time and material rates and terms then in cf- 'l'ACHED IBM 11AIN"I'I':\A\(:E: A(;R1':E:111':\T 11ACIIINE feet, unless such service is otherwise. covered by a separate IBM LIST AND 11tH MAINTENANCE AGREEMENT EXIIIIt1T, agreement. UNDERSTANDS IT, AND AGREES TO BE BOUND BY ITS IBM is not responsible for failure to render service due to causes 'PERMS AND CONDITIONS. FURTHER, THE CUSTOMER beyond its control. AGREES THAT IT IS THE COMPLETE: AM) EXCLUSIVE Either party may terminate this Agreement for failure of the other to STATEMENT OF THE AGREEMENT BE TWEEN THE comply with any of its terms and conditions. PARTIES, 1V11I(:11 SI'I'EITSEDES ,11.1. PROPOSALS OR No action, regardless of form,arising out of this Agreement may be I'RI(111 M;11EEMENTS, ORA1, OR 1t 11ITTEN, AM) A1.1, brought by either party more than two years after the cause of action - OTHER COMMUN!CATIONS IIFFW EE:\' THE PARTIES has arisen,or,in the case of nonpayment,more than two years from the RELATING '1'O '1'111': strituE:(:T 11.-n'i:1( OF THIS date of the last payment. AGREEMENT. Received by IBM at Branch Office Name/Number By Manager's Signature Manager's Name (Type or Print) On Date Accepted by: International Business Machines Corporation City of Wichita-f'als----_ C By B y Authorized SignatureSignature Aut hnrizril Signature Name iTvpe or Print) NAM(' t'1'yt'cur ti intt Title Title On On Irate Date PRESS FIRMLY WITH BALL POINT PEN ON A HARD SURFACE FOR MAXIMUM LEGIBILITY. 21200777.6 UIM 025)REV.10176 1 1