HomeMy WebLinkAboutRes 37-80 09/02/1980
q('
i~
I '~
\
'( "
8/12/80
RESOLUTION NO.
37-80
A RESOLUTION AUTHORIZING EXECUTION OF
MAINTENANCE AGREEMENT FOR COMPUTER EQUIPMENT
BE¡iIT RESOLVED BY THE PRESIDENT AND BOARD OF TRUSTEES OF THE VILLAGE -
OF ,IMOUNT PROSPECT, COOK COUNTY, ILLINOIS' AS FOLLOWS:
SEITION ONE: The Board of Trustees of the Village of Mount Prospect
he ,eby authorizes the Village President to sign and the Village Cler
todattest the Agreement between International Business Machines
Co poration (hereinafter referred to as "I~M") and the Village of
Mo nt Prospect, a copy of which is attached hereto as Exhibit A
an, incorporated herein by this reference, for the maintenance of
th I computer equipment authorized to be purchased by Ordinance No.
of the Village.
SE ION TWO: This Resolution shall be in full force and effect
fr and after its passage and approval in the manner provided by
la .
Pa 2nd. day of September , 1980.
Farley, Floras, Murauskis, Richardson, Wattenberg
None
T: Miller, Krause
App oved this 2nd. day of September , 1980.
I
Approved:
V~~P!:~~
Att st:
~
.(
.r,
~£--""
"
..
"thterriational Busin.ess Machines Corporat{on
Armonk, New York 10504
IBM Maintenance Agreement
IBM Branch Office Address:
2250 East Devon Avenue
Des Plaines, 11 60018
Name and Address of Customer:
Village of Mount Prospect
100 S. Emerson
Mount Prospect, II 60056
Agreement No.:
G52l427
Marketing Branch Office No.:
052
Customer No.:
~ ~O:'~p JOO d35 9
International Business Machines Corporation (IBM), 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 Listandfor those IBM machines anclfeatures for which such service is ordered
from time to time by the Customer, subject to written acceptance by IBM.
Term
This Agreement is effective from the date on which it is accepted by
IBM and shall remain in force until terminated by the Customer upon
one month's prior written notice to IBM or by IBM upon twelve months'
prior written notice to the Customer. Individual machines may be with-
drawn from this Agreement by the Customer upon one month's prior
written notice to IBM. Except as otherwise provided herein, IBM may
withdraw individual machines from this Agreement at the end of the
first year after maintenance service for each such machine has com-
menced, or thereafter, upon three months' prior written notice to the
Customer.
Maintenance Service
The Maintenance Service Commencement Date for a machine under
this Agreement will be the date designated by the Customer or the day
following the last day of the Service and Parts Warranty period of the
applicable IBM purchase agreement, whichever is later. IBM agrees to
provide the availability of maintenance service during Periods of Main-
tenance Service Availability selected by the Customer, or during the
period specified for machines designated by IBM as Monthly Use Plan
machines, while they are located within the United States and Puerto
Rico. This maintenance service to keep the machines in, or restore the
machines to, good working order includes scheduled preventive main-
tenance based upon the specific needs of individual machines as deter-
mined by IBM and unscheduled, on-call remedial maintenance, Main-
tenance will include lubrication, adjustments and replacement of main.
tenance parts deemed necessary by IBM. Maintenance parts will be fur-
nished on an exchange basis, and the replaced parts become the
property of IBM. Maintenance service provided under this Agreement
does not assure uninterrupted operation of the machines.
Periods of Maintenance Service Availability
For machines, other than those designated by IBM as Monthly Use
Plan machines, the Customer may select a Minimum Period of Main-
tenance Service Availability during any period of 9 consecutive hours
between 7:00 a.m. and 6:00 p.m., Monday through Friday. The
Customer may select in lieu of, or in addition to, the Minimum Period
òf Maintenance Service Availability one or more of the Optional
Periods of Maintenance Service Availability as shown on the attached
IBM Maintenance Agreement Exhibit. The Period or Periods of Main-
tenance Service Availability selected by the Customer must include a
period, Monday through Friday, of at least 9 consecutive hours.
The Period of Maintenance Service Availability for a machine on
Monday through Friday shall be the same hours each day, and the
period on Saturday or Sunday shall be the same hours on all Saturdays
or Sundays. The Customer may change the selected Periods of Main-
tenance Service AvailabiJity upon 15 days' prior written notice to IBM.
In a single system, all machines covered under this Agreement must
have a common period, Monday through Friday, of at least 9 con-
secutive hours within the selected Periods of Maintenance Service
Availability. For this purpose, a single system is defined as a com-
bination of machines, including one or more controllers or processing
units, which are designed to operate in conjunction with each other and
are interconnected by IBM power and signal cables or the equivalent.
For Monthly Use Plan machines, the Customer is entitled to Main-
tenance Service Availability 24 hours a day, 7 days a week.
Charges
Maintenance charges for a machine will begin on the Maintenance
Service Commencement Date.
For machines, other than those designated by IBM as Monthly Usc
Plan machines, the Customer agrees to pay monthly charges consisting
of (I) a Minimum Monthly Maintenance Charge, and (2) an Additional
Monthly Maintenance Charge for any Optional Periods of Maintenance
Service Availability selected by the Customer as described in the at-
tached IBM Maintenance Agreement Exhibit.
For Monthly Use Plan machines, the Customer agrees to pay month-
ly charges consisting of (I) a Basic Monthly Maintenance Charge, and
(2) an Additional Monthly Maintenance Charge based upon the amount
of processing performed by the machine as measured by an IBM meter
multiplied by the Additional Monthly Maintenance Charge Rate. In or-
der to ensure timely meter readings, the Customer agrees to furnish a
monthly report to IBM showing the meter reading for the machine as of
the close of the last work day of each calendar month. The Customer
agrees to use due care not to interfere with the proper operation of the
meter.
If the Customer requests maintenance service, that is not otherwise
excluded as set forth in the section entitled "Exclusions," to be per-
formed at a time outside the selected Periods of Maintenance Service
Availability, there will be no additional charge for maintenance parts;
however, the service will be furnished at IBM's applicable hourly rates
and terms then in effect.
There will be no additional charge for travel expense associated with
services performed during the selected Periods of Maintenance Service
Availability, except that actual travel expense shan be charged in those
instances where the site at which the machine is located is not normally
accessible by private automobile or scheduled public transportation,
Changes in the machines' specifications may result in an adjustment
of the Minimum Monthly Maintenance Charge and Additional Monthly
Maintenance Charge or, for Monthly Use Plan machines, an ad-
justment of the Basic Monthly Maintenance Charge and Additional
Z120.o777-6
(UIM 025) REV. 10/76
Please send all communications to IBM at its business office listed above unless notified to the contrary.
CUSTOMER
Monthly Maintenance Charge Rate. Such adjustment(s) shan be ef-
fective on the Maintenance Service Commencement Date shown on the
IBM Maintenance Agreement Machine List. ,
The Minimum Monthly Maintenance Charge, Periods of Main-
tenance Service Availability, Machine Groups, percentages by which
the Additional Monthly Maintenance Charge is determined, Basic
Monthly Maintenance Charge and the Additional Monthly Main-
tenance Charge Rate are subject to change by IBM upon three months'
prior written notice to the Customer and win become effective on the
date specified in the notice unless the Customer exercises the option to
withdraw the affected machine from this Agreement.
Taxes
In addition to the charges due under this Agreement, the Customer
agrees to pay amounts equal to any taxes resulting from this
Agreement, or any activities hereunder, exclusive of taxes based upon
net income.
Invoicing
The Minimum Monthly Maintenance Charge, Basic Monthly Main-
tenance Charge and the Additional Monthly Maintenance Charge for
machines' other than those designated by IBM as Monthly Use Plan
machines wiJI be invoiced in advance as of the first of each month.
Charges for a partial month's service wiJI be prorated on the basis of a
30-day month. The Additional Monthly Maintenance Charge for
Monthly Use Plan machines wiJI be invoiced in the month following the
month in which it is incurred. Payment wiJI be made within 30 days af-
ter the date of invoice. AU other charges due hereunder are payable as
specified in the invoice.
Exclusions
Maintenance service provided by IBM under this Agreement does not
include:
(a) repair of damage or increase in service time caused by failure to
continuaUy pròvide a suitable instaUation environment with all
facilities prescribed by the applicable IBM instaUation manual in-
cluding, but not limited to, the failure to provide, or the failure of,
adequate electrical power, air conditioning or humidity control;
(b) repair of damage or increase in service time caused by the use
of the machines for other than data processing purposes for which
designed;
(c) repair of damage, replacement of parts (due to other than nor-
mal wear) or repetitive service cans caused by the use of supplies;
(d) repair of damage or increase in service time caused by: acci-
dent,; disaster, which shan include, but not be limited to, fire, flood,
water, wind and lightning; transportation; ,neglect or misuse;
alterations, which shan include, but not be limited to, any deviation
from IBM's physical, mechanical or electrical machine design; at-
tachments, which are defined as the mechanical, electrical or electronic
interconnection to an IBM machine of non-IBM equipment and devices
not supplied by IBM; or IBM machines, except those IBM machines which
are owned by IBM, under the Service and Parts Warranty provision of
an IBM purchase agreement or under an IBM Maintenance Agreement;
(e) repair of damage or increase in service time caused by the con-
version from one IBM model to another ortheinstaUation or removal of
an IBM feature whenever any of the foregoing was performed by other
thán IBM. This'exclusion shall apply only during the first three months
oflBM Maintenance AgreeIIlent service subsequent to the date of such
machine modification; .
(0 replacement parts or increase in service time as set forth in the
sections ,entitl~d, "Acce,ssJo Machines" and "Engineering Changes -
Installation and Control" or replacement of non-IBM parts as set forth
in the section entitled "Non-IBM Parts";
(g) furnishing supplies or accessories, painting or refinishing the
machines or furnishing material therefor, inspecting altered machines,
making specification changes or performing services connected with
relocation of machines, or adding or removing accessories, at-
tachments or other devices;
(h) electrical work external to the machines or maintenance of ac.
cessories, alterations, attachments or other d,evices not furnished by
~..IBM; and
- .
'y
(i) such service which is impractical for IBM to render because of
alterations in, or attachments to, the machines.
Access to Machines
IBM shan have fun and free access to the machines to provide ser.
vice thereon.
If persons other than IBM representatives shan perform maintenance
or repair of a machine, and as a result further repair by IBM is required,
such further repairs wiJI be made at IBM's applicable time and material
rates and terms then in effect. If such additional repair is required, IBM
may withdraw the machine from this Agreement upon one month's
prior written notice to the Customer foUowing any repetition of the
need for additional repair of such machine caused by non-IBM main-
tenance activity.
Engineering Changes - Installation and Control
Engineering changes, determined applicable by IBM, will be con-
troUed and installed by IBM on machines covered by this Agreement.
The Customer may, by providing notice subject to written confirmation
by IBM, elect to have only mandatory changes, as determined by IBM, in-
staUed on machines so designated.
IBM reserves the right to charge, at its applicable time and material
rates and terms then in effect, for additional service time and
replacement parts associated with the instaUation by IBM of an
engineering change when such additional service and parts are
required due to the conversion from one IBM model to another or the in-
staUation or removal' of an IBM feature whenever any of the foregoing
was performed by other than IBM,
Non-IBM Parts
Maintenance service provided by IBM under this Agreement does not
include the replacement or adjustment of parts which were not fur-
nished for the machine by IBM, or the time spent in determining the
need for replacement or adjustment of such parts, except for common
hardware items such as screws, nuts, bolts, clamps and commercially-
available parts; e.g., light bulbs, etc. IBM will replace, at the
Customer's request and at IBM's applicable time and material rates and
terms then in effect, maintenance parts which were not furnished for
the machine by IBM (except when such part is in an alteration) when
such parts are directly interchangeable with the IBM maintenance parts.
When IBM determines that a machine under this Agreement contains
a part, not furnished for the machine by IBM, which is particularly
significant to IBM's ability to provide maintenance service for such
machine under this Agreement, IBM may withdraw the machine from
this Agreement upon one month's prior written notice to the Customer,
unless the Customer replaces the part with a directly interchangeable
part furnished for the machine by IBM, IBM wiJI, at the Customer's
request, replace such part with a directly interchangeable part at IBM's
applicable time and material rates and terms then in effect.
Disclaimer and Limitation of Liability
. IBM wiJI in no event be liable for lost profits or other consequential
damages even if IBM has been advised of the possibility of such
damages or for any claim against the Customer by any other party.
IBM's liability to the Customer for damages, from any cause what-
soever, and regardless of the form of action, whether in contract or in
tort including negligence, shan be limited to the greater of $50,000 or
twelve months' maintenance charges for the specific machines under
this Agreement that caused the damages or that are the subject matter
of or are directly related to the cause of action. Such charges shan be
those in effect for the specific machines when the cause of action arose.
General
Subject to the terms of the foUowing paragraph, IBM may, upon
twelve months' prior written notice to the Customer, modify the terms
and conditions of this Agreement, except that IBM may, upon three
months' prior written notice to the Customer, modify thétérrils and
conditions of the Section entitled "Charges."
Any such modification wiJI apply on the effective date specified in
the notice unless the Customer exercises the option to terminate this
Agreement. Otherwise, this Agreement can only be modified by a writ-
ten agreement duly signed by persons authorized to sign agreements
on behalf of the Customer and of IBM, and variance from the terms and
conditions of this Agreement in any customer order or other written
notification will be of no effect.
2
,,:,.-'" 'i'fhe Customer represents that he is the owner of the machines under
this Agreement, or, if not the owner, has authority from the owner to in-
or'" clude §uch machines under this Agreement. ,
IBM service provided outside the scope of this Agreement will be fur-
nished at IBM's applicable time and material rates and terms then in ef-
fect, unless such service is otherwise covered by a separate IBM
agreement.
IBM is not responsible for failure to render service due to causes
beyond its control.
Either party may terminate this Agreement for failure of the other to
comply with any of its terms and conditions.
No action, regardless of form, arising out of this Agreement may be
brought by either party more than two years after the cause of action
has arisen, or, in the case of nonpayment, more than two years from the
date of the last payment.
This Agreement wiH be governed by the laws of the State of New
York.
~HE CUSTOMER ACKNOWLEDGES THAT HE HAS
READ THIS AGREEMENT, WHICH INCLUDES THE AT-
TACHED IBM MAINTENANCE AGREEMENT MACHINE
LIST AND IBM MAINTENANCE AGREEMENT EXHIBIT,
UNDERSTANDS IT, AND AGREES TO BE BOUND BY ITS
TERMS AND CONDITIONS. FURTHER, THE CUSTOMER
AGREES THAT IT IS THE COMPLETE AND EXCLUSIVE
STATEMENT OF THE AGREEMENT BETWEEN THE
PARTIES, WHICH SUPERSEDES ALL PROPOSALS OR
PRIOR AGREEMENTS, ORAL OR WRITTEN, AND ALL
OTHER COMMUNICATIONS BETWEEN THE PARTIES
RELA TlNG TO THE SUBJECT MA TTER OF THIS
AGREEMENT.
12 :.a 09 d3S 9
Accepted by:
~:te2~~ - cor:r~.t:~~- - - . - c - - -
Aut~~~;;d Š[g-;'-;'t~re
..,-...,.-.,~..~.""
---_J.~_SJ__E3f{l[)(JE:~__----------------------------------,
REGIONAL AD~~I~NšTRlfjt)N MAÑt".dm
------------- --%---~-- . ~---Tiïl~n-----_n --- --______n__n - -_n _n- _nun - -MaYGr----TitI~------ - --- _n_n____- - -----
On--._nn.L~ ~ ~~n_..._n_--_._.n_n.___nn- On_n------~~~~~'~'-~~.----------_n__--n_--
Date Date
RESS FIRMLY WITH BALL POINT PEN ON A HARD SURFACE FOR MAXIMUM LEGIBILITY.
2120-0777-6
(U/M 025) REV, 10/76
Village of Mount Prospect
~~ ~~ ~ ~ ~ ~ ~ ~ ~?! ~ ~ I: ~ ~ ~ ~~11~1d~ ~ ~ ~~ ~ ~ ~~-
~~rized Signature
Carolyn H. Krause
----------------------------------------------------------
Name (Type or Print)
3
CUSTOMER