Exhibit 10.19
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STRATEGIC BUSINESS AGREEMENT
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by and between
U.S. COMPUTER SERVICES
a California corporation doing business as CableData
("CableData")
and
INTERNATIONAL BUSINESS MACHINES CORPORATION,
a New York corporation
("IBM")
Dated as of January 19, 1992
TABLE OF CONTENTS
Page
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INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
RECITALS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE I DEFINITIONS . . . . . . . . . . . . . . . . . . . . . 2
ARTICLE II DEVELOPMENT OF DDP/I . . . . . . . . . . . . . . . . . . 3
Section 2.1 Mutual Cooperation . . . . . . . . . . . . 3
Section 2.2 [*]. . . . . . . . . . . . . . . . . . . . 3
Section 2.3 [*]. . . . . . . . . . . . . . . . . . . . 4
Section 2.4 [*]. . . . . . . . . . . . . . . . . . . . 4
Section 2.5 [*]. . . . . . . . . . . . . . . . . . . . 5
Section 2.6 Joint Planning Committee . . . . . . . . . 5
Section 2.7 Training . . . . . . . . . . . . . . . . . 5
Section 2.8 Expected Results . . . . . . . . . . . . . 5
Section 2.9 Freedom of Action. . . . . . . . . . . . . 6
ARTICLE III FINANCIAL MATTERS. . . . . . . . . . . . . . . . . . . . 6
Section 3.1 Development Financing. . . . . . . . . . . 6
Section 3.2 [*] from International Revenues. . . . . . 6
Section 3.3 [*]. . . . . . . . . . . . . . . . . . . . 7
Section 3.4 Commissions to be Paid by IBM to
CableData . . . . . . . . . . . . . . . . 7
ARTICLE IV OTHER AREAS OF COOPERATION . . . . . . . . . . . . . . . 9
Section 4.1 Provision of Equipment and Software. . . . 9
Section 4.2 Technical Direction and Information. . . . 9
Section 4.3 Training and Information . . . . . . . . . 9
Section 4.4 Marketing Support. . . . . . . . . . . . . 10
ARTICLE V PROPRIETARY RIGHTS . . . . . . . . . . . . . . . . . . . 11
Section 5.1 Ownership of DDP/I, DDP/IT and DDP/SQL . . 11
Section 5.2 Licenses . . . . . . . . . . . . . . . . . 12
Section 5.3 Confidentiality. . . . . . . . . . . . . . 12
Section 5.4 Use of Trademark, Name . . . . . . . . . . 12
Section 5.5 Inventions . . . . . . . . . . . . . . . . 12
ARTICLE VI TERM AND TERMINATION . . . . . . . . . . . . . . . . . . 13
Section 6.1 Term . . . . . . . . . . . . . . . . . . . 13
Section 6.2 Termination. . . . . . . . . . . . . . . . 13
Section 6.3 Effect of Termination. . . . . . . . . . . 13
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
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ARTICLE VII GENERAL . . . . . . . . . . . . . . . . . . . . . . . . 14
Section 7.1 Independent Contractors. . . . . . . . . . 14
Section 7.2 Counterparts . . . . . . . . . . . . . . . 14
Section 7.3 Assignment . . . . . . . . . . . . . . . . 14
Section 7.4 Notices and Other Communication. . . . . . 14
Section 7.5 Law to Govern; Consent to Jurisdiction . . 15
Section 7.6 Subject Headings . . . . . . . . . . . . . 15
Section 7.7 No Waiver of Rights. . . . . . . . . . . . 15
Section 7.8 Settlement of Disputes . . . . . . . . . . 15
Section 7.9 Limitation of Liability. . . . . . . . . . 16
Section 7.10 Limitation of Actions. . . . . . . . . . . 16
Section 7.11 Entire Agreement . . . . . . . . . . . . . 16
Section 7.12 Expenses . . . . . . . . . . . . . . . . . 16
Section 7.13 Amendments . . . . . . . . . . . . . . . . 16
Section 7.14 Incorporation by Reference . . . . . . . . 16
Section 7.15 Severability . . . . . . . . . . . . . . . 16
Section 7.16 Licenses . . . . . . . . . . . . . . . . . 17
SIGNATURES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
EXHIBITS: Section Reference
Exhibit A List of IBM Products Section 1.1(e)
Exhibit B Schedule for Porting System Libraries Section 2.2(a)
Exhibit C Schedule for National Language Support Section 2.3(a)
Exhibit D Description of SQL Porting Section 2.4(a)
Exhibit E Schedule for Other Internationalization Tasks Section 2.5(a)
Exhibit F-1 Equipment and Program Loan Agreement Section 4.1
Exhibit F-2 RISC System/6000 Discount Section 4.1(b)
Exhibit G List of Countries, Base Percentages and Tasks Section 4.4(c)
Exhibit H Agreement for the Exchange of
Confidential Information Section 5.3
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STRATEGIC BUSINESS AGREEMENT
THIS STRATEGIC BUSINESS AGREEMENT ("Agreement") is entered into as of
January 19, 1992, by and between U.S. COMPUTER SERVICES, a California
corporation doing business as CableData and having its principal place of
business at 2969 Prospect Park Drive, Rancho Cordova, California 95670
("CableData"), and INTERNATIONAL BUSINESS MACHINES CORPORATION, a New York
corporation having a place of business at 520 Capitol Mall, Sacramento,
California 95814 ("IBM").
RECITALS
A. CableData has rights to and currently licenses and distributes certain
computer application software products used in market segments of the cable
television industry, such market segments including without limitation DTH
(Direct to Home), DBS (Direct Broadcast Satellite), SMATV (Single Master
Antennae Television), MDS (Microwave Distribution System), MMDS (Multipoint
Microwave Distribution System), CATV (Cable Television) and TVRO (Television
Receiving Only), and in segments of the telephony industry, (such segments
include without limitation local telephone, personal communication network,
cellular, paging and land lines), including products that are designed to
operate on the Tandem Guardian operating system.
B. IBM and CableData wish to cooperate in the development by CableData of
certain revised versions of CableData's products that will be compatible with
designated IBM operating systems and hardware, including IBM's UNIX-based and
POSIX-based AIX operating systems, and will be primarily suitable for use by
customers outside the United States. Specifically, the parties wish to permit
CableData to develop a set of CableData-owned system libraries and a separate
CableData-owned application software product which can be operated on IBM
equipment and which are appropriate for international customers. Therefore, as
further described in SECTION 2.1, the parties wish to cooperate to assist
CableData to internationalize and develop new versions of DDP/SQL (as defined
below) that are ported to certain IBM products, with a goal of developing a
single set of system libraries that can be conditionally compiled to supply
object code that can be linked either to the existing DDP/SQL for use with the
Tandem Guardian operating system or to DDP/I (as defined below) for use with IBM
operating systems, in accordance with the terms and conditions of this
Agreement. As set forth in SECTION 4.4(c), CableData will maintain exclusive
rights to determine the countries, markets and customers to which its products
will be offered, subject to reasonable advance notice to IBM under certain
circumstances.
C. IBM and CableData also wish to cooperate in the provision of technical
assistance by IBM to CableData in connection with the activities described in
RECITAL B above. Such assistance will include sharing personnel and technical
expertise to facilitate the development process. The parties have agreed that
IBM will provide certain financial, technical and other assistance specified in
this Agreement to support CableData's development of DDP/I (as defined below),
and to assist in resolving issues (performance and others) prior to CableData's
release of new products, in accordance with the terms and conditions of this
Agreement. Specifically, the parties have agreed that IBM shall provide
reasonable technical advice, support, consulting or other assistance to
CableData in the development of DDP/I in accordance with the terms and
conditions of this Agreement.
D. IBM and CableData also wish to cooperate in certain other areas related
to the activities described above, to permit CableData to support a variety of
foreign languages/countries on the versions of DDP/I to be developed, and to
facilitate CableData's marketing of such revised products in certain respects.
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NOW, THEREFORE, in consideration of these premises and of the mutual
promises and conditions contained in this Agreement, IBM and CableData hereby
agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 AS USED IN THIS AGREEMENT:
(a) "AIX" means IBM's UNIX-based computer operating system.
(b) "DDP/I" means (i) a product to be developed pursuant to this Agreement
based on DDP/SQL (as defined below), and (ii) such modified versions of such
product as may be developed from time to time.
(c) "DDP/IT" means a product to be developed from DDP/I, incorporating
enhancements to features and parameterization that facilitate subscriber
management for telephony and cable subscribers. DDP/IT may include interfaces
to another telephony application software system.
(d) "DDP/SQL" means Release 1.0 (as of December 2, 1991) of CableData's
existing proprietary cable television subscriber management applications
software.
(e) "Eligible Products" means proprietary computer hardware and computer
software operating systems of IBM, and other computer hardware and software
compatible with such hardware and operating systems as mutually agreed to and
identified on the list attached to this Agreement as EXHIBIT A, as amended from
time to time.
(f) "Internationalize" means to adapt DDP/I to allow for use with various
human languages, character code sets, and local legal, government and
business practices. In the context of this Agreement it means specifically:
(i) To implement an NLS (as defined below) mechanism in DDP/I;
(ii) To modify DDP/I so that it can accommodate differences in
name, phone number and address data elements for the purposes of storage, access
and display;
(iii) To create a charging, statement generation and financial
reporting module that can be parameterized or otherwise adapted to function in
multiple countries including consideration for monetary formats, rounding,
taxation, and statement formats;
(iv) To create interfaces or interface specifications that allow
for the exchange of data between DDP/I and external entities: financial
institutions, demographic information systems, cable network design systems, and
cable service authorization (addressable) systems; and
(v) To create documentation in English that can be translated to
foreign languages.
(g) "Localize" means adapt DDP/I or DDP/IT to make it specific to a
particular human language, character code set, and local legal, government and
business practices. In the context of this Agreement it means specifically:
(i) To translate all constant DDP/I user interface messages,
screen displays and print products to the local language.
(ii) To parameterize DDP/I to exhibit the appropriate operating
characteristics in a given country with respect to the differences in language,
character sets, collating sequences, "yes" and "no" answers, and date, time,
numeric, and monetary formats.
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(iii) To parameterize DDP/I to conform to local business practices,
legal and government requirements.
(iv) To create interfaces or interface specifications that allow
for the exchange of data between DDP/I and external entities in a given
country: financial institutions, demographic information systems, cable
network design systems, and cable service authorization (addressable)
systems.
(v) To translate DDP/I documentation from English to the local
language.
(h) "NLS" means adapting DDP/I to support multiple languages, character
code sets, collation sequences, monetary formats, numeric formats, time
formats, and "yes/no" response formats.
(i) "System Libraries" means the code libraries that interface DDP/SQL
and DDP/I with the Guardian operating system on Tandem hardware and the IBM
AIX operating system on IBM hardware.
(j) "Subscriber" means, for purposes of this Agreement, each active
subscriber on DDP/I software during any month. A month, for purposes of this
definition, is the period between successive final month-end cutoffs for
CableData's or its distributors' or agents' invoicing purposes. An active
subscriber, for purposes of this definition, is a residential or business
entity subscribing to one or more services in the CATV, DTH, DBS, MDS, MMDS
or TVRO market segments set forth in RECITAL A of this Agreement.
(k) "United States" or "U.S." means the United States of America, Puerto
Rico and Guam; provided, however, that references to United States Dollars or
U.S. Dollars shall have their normal commercial meaning.
ARTICLE II
DEVELOPMENT OF DDP/I
Section 2.1 MUTUAL COOPERATION.
The parties' respective obligations under this Agreement shall commence
on the date first written above. Each party shall use all reasonable efforts
to facilitate the completion of the development projects contemplated by this
Agreement, and to cooperate in good faith with the other party to achieve the
development, technical and marketing objectives described in the Recitals.
Without limitation, each party shall use its reasonable efforts to
facilitate the development of DDP/I as set forth in this Agreement. It is
also the parties' intention that when DDP/I and Eligible Products are
configured in a single system, that system will perform within agreed and
commercially reasonable specifications and parameters. If the parties
disagree on a technical issue during the development process, or if when
DDP/I and any Eligible Products are configured in a single system, that
system does not perform within agreed and commercially reasonable
specifications and parameters, then the parties shall confer in good faith
concerning such issue or failure to perform, and shall negotiate in good
faith to agree on joint action to resolve such issue or failure. Such joint
action may include additional development efforts on terms and conditions
acceptable to the parties, in their discretion.
Section 2.2 PORTING OF SYSTEM LIBRARIES.
(a) Both parties shall cooperate as specified in this Agreement to port
the System Libraries to be capable of operating on the Eligible Products,
initially porting them to be capable of operating on IBM's AIX system. In
such porting work, the parties will also maintain POSIX compliance of the
System Libraries with either international standards or draft international
standards. For the term of this Agreement, the parties agree to cooperate in
future modification of
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the ported System Libraries. It is the intent of the parties that such
System Libraries will work with the Open System Foundation (OSF) capabilities
of IBM's AIX operating system, if and when such OSF capabilities are
available in production release on the AIX operating system. The parties'
efforts under this SECTION 2.2(a) shall be conducted in accordance with the
schedule attached to this Agreement as EXHIBIT B.
(b) IBM shall use reasonable efforts to code the porting of the System
Libraries as described in SECTION 2.2(a), at IBM's porting center in San
Jose, California; however, CableData will retain final authority for all
design and implementation decisions during the porting process. The porting
activity under this SECTION 2.2 shall use only standard constructs and
operating system calls available to AIX licensees. IBM shall not commence
such porting efforts until CableData has reviewed and approved the porting
plan. If IBM does not perform the porting process in accordance with the
approved porting plan, and has not corrected such failure to perform within
(30) days after notice from CableData to IBM, then CableData shall be
entitled to retain a third party to perform such porting work, and IBM shall
reimburse CableData for the actual costs of retaining such third party up to
a maximum of $350,000.
(c) In addition, during the porting process and thereafter to the
extent reasonably necessary, IBM shall as it deems appropriate in its sole
discretion provide the services of an adequate number of appropriate skill
level software engineers with compiler, operating system and database
development experience on AIX-based Eligible Products, experience in
application and system software development using AIX tools and utilities, to
meet its responsibilities under this Agreement. The principal assignment of
such engineers shall be to consult with CableData on architecture-related
issues and modify and create software for use in the System Libraries. These
activities shall be done under the guidance and acceptance of CableData.
Upon mutual agreement of the parties, some or all of such engineers shall be
assigned to work at CableData's research facilities in El Dorado Hills,
California during a portion of the System Libraries porting phase.
(d) IBM shall provide technical information with respect to IBM's AIX
operating system, including all AIX external call information made publicly
available.
(e) With respect to porting System Libraries, CableData shall make its
technical personnel available to IBM as CableData deems appropriate through
CableData's El Dorado Hills, California research facility to respond to IBM's
technical inquiries.
Section 2.3 NLS PORTING.
(a) CableData shall use reasonable efforts to complete NLS for DDP/I by
creating an architecture and code as required for all screen prompts, error
messages, print file headers, instructions, and other literals that will use
English as its default language, but can be utilized with other Western
European languages using the Latin alphabet on the schedule set forth in
EXHIBIT C.
(b) With respect to CableData's efforts in developing NLS tools, IBM
shall make technical personnel with internationalization expertise reasonably
available as IBM deems appropriate for CableData to meet the agreed upon
schedule set forth in EXHIBIT C to provide training and consulting in
response to CableData's questions, in particular (and not by way of
limitation) with respect to defining and organizing this phase.
Section 2.4 APPLICATION LAYER PORTING. CableData shall use reasonable
efforts to port the application layer of DDP/I as set forth on EXHIBIT D
including necessary modifications to its database definition and SQL
statements embedded in DDP/I, to be capable of operating on Eligible
Products, porting them to be capable of operating on the AIX operating system
and the POSIX standards.
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Section 2.5 INTERNATIONALIZATION FEATURES.
(a) CableData shall use reasonable efforts to complete such work on
Internationalizing DDP/I as it may identify that will facilitate its use by
customers outside the U.S., in accordance with the schedule set forth in
EXHIBIT E attached to this Agreement.
(b) CableData shall use reasonable efforts to create a new charging
run/billing software for use by customers outside the U.S.
(c) CableData shall use reasonable efforts to develop interface
templates specifications, application program interfaces, and documentation
and training materials, as CableData deems appropriate, for use by
international distributors and developers in accordance with DDP/I.
(d) With respect to the completion of Internationalization tasks
relating DDP/I as described above, IBM shall make its technical personnel
available as IBM deems appropriate through the IBM Sacramento Branch office
to respond to CableData's technical inquiries.
Section 2.6 JOINT PLANNING COMMITTEE. The parties shall consult with
each other on at least a quarterly basis regarding progress in [*] DDP/I. To
facilitate such consultations and to support their mutual efforts under this
Agreement, the parties shall establish a Joint Planning Committee composed of
representatives designated by each party. This body shall meet at least once
per calendar quarter during the term of this Agreement, and more frequently
as deemed necessary by the parties. The Joint Planning Committee shall
consult on the [*] projects for DDP/I, [*] schedules, or other aspects of
cooperation between the parties as contemplated by this Agreement. Among the
representatives to the Joint Planning Committee designated by each party, one
(1) person shall be a [*] to speak for that party with respect to [*]
matters. The designated [*] representative for CableData shall be its [*].
IBM shall notify CableData in writing of the name of the designated [*]
representative for IBM within fourteen (14) days following the execution of
this Agreement by both parties. The parties' designated representatives to
the Joint Planning Committee may be replaced at any time, by written notice
of the designating party to the other party. The Joint Planning Committee
shall meet in locations and at times reasonably acceptable to both parties.
Each party shall be reasonable for its own costs and expenses in attending
and participating in meetings of the Joint Planning Committee.
Section 2.7 TRAINING.
(a) During the [*] process, IBM shall provide a reasonable amount of
comprehensive training to provide the curriculum agreed to by the [*]
representatives of both parties to a reasonable number of CableData
personnel, to be designated by CableData, with respect to [*] DDP/I, [*].
(b) During the [*] process, CableData shall provide a reasonable amount
of DDP/SQL product familiarization sessions to a reasonable number of IBM
personnel, to be designated by IBM, at CableData's facilities in Rancho
Cordova or El Dorado Hills.
Section 2.8 EXPECTED RESULTS. The parties acknowledge that upon
completion of the development work described above, it is the parties'
intention that DDP/I shall perform within commercially reasonable and
acceptable parameters and specifications, consistent with the terms of this
Agreement and subsequent mutual decisions of the designated technical
representatives of the parties. If DDP/I fails to perform as described in
the preceding sentence, each party shall use reasonable efforts to perform
further development work as outlined in this Agreement to cause
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
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DDP/I to operate within such parameters and specifications, and to cooperate
with the other party to achieve this objective. The parties understand that
development of DDP/I under this Agreement does not include development of any
Localized version of DDP/I and does not include development of DDP/IT.
Section 2.9 FREEDOM OF ACTION. The parties agree that the
relationship contemplated by this Agreement is not an exclusive arrangement.
The parties understand that as of the date of this Agreement CableData has
no plans for releasing a DDP product on an IBM platform in the U.S. Each
party is free to enter into similar agreements with others and develop and
offer competitive products and services.
ARTICLE III
FINANCIAL STATEMENTS
Section 3.1 DEVELOPMENT FINANCING. To assist CableData in financing a
portion of the costs and expenses to be incurred by CableData in developing
DDP/I as contemplated by this Agreement, IBM shall advance to CableData on a
non-recourse basis (i.e., CableData shall have no liability for the repayment
of any funds so advanced, except as expressly stated otherwise in this
Agreement) an aggregate amount of [*], payable as follows:
(a) IBM shall pay CableData an initial installment of [*]
concurrently with IBM's execution and delivery of this Agreement.
(b) IBM shall pay CableData five (5) further installments of [*]
each, on the first business day of each calendar quarter, commencing on April
1, 1992.
(c) All payments to CableData shall be paid by check, unless otherwise
agreed by the parties in writing.
Section 3.2 PROFIT SHARING FROM INTERNATIONAL REVENUES.
(a) Except as otherwise provided in this Agreement, beginning on
January 1, 1995, and continuing until termination of this Agreement, CableData
shall pay fees to IBM as follows: For each customer (other than non-paying Beta
site customers) running DDP/I, CableData shall pay IBM a fee at the rate of
[*]; provided, however, that CableData shall have no further obligations to
pay fees to IBM after the aggregate fees received by IBM under this SECTION
3.2 are equal to [*]. CableData shall pay such fees to IBM by check at IBM's
office at 520 Capitol Mall, Sacramento, California 95814, unless otherwise
agreed by the parties in writing. Payments under this SECTION 3.2 shall be
made quarterly in arrears for the prior quarter.
However, notwithstanding the foregoing sentences of this SECTION 3.2 or
anything to the contrary in this Agreement, upon CableData and IBM entering
into a written agreement regarding CableData marketing in the United States
DDP/I or another CableData subscriber management software product comparable
in function to DDP/I on an IBM platform, all payments under this SECTION 3.2
due subsequent to the date of execution of such agreement shall be suspended
but shall continue to accrue (up to a maximum of [*] less payments
previously made under this Section to IBM) until the earlier of (i) the date
on which IBM has invoiced an aggregate of [*] of equipment sold or
leased by IBM (excluding IBM's leasing subsidiary) in the United States for
use with such DDP/I or other CableData subscriber management software product
comparable in function to DDP/I on an IBM platform or (ii) the date this
Agreement terminates. If (i) is the earlier date, CableData shall not be
required to pay to IBM the amount in suspense or any other remaining amounts
due under this SECTION 3.2 If (ii) is the earlier date, CableData shall pay
to IBM the total amount of the suspended payments, except that if the
Agreement is terminated pursuant to SECTION 6.2(a) due to breach by IBM,
then CableData shall not be required to pay to IBM the amount of the
suspended payments.
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
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(b) CableData shall keep such records of DDP/I subscribers adequate to
meet CableData's responsibilities under this Agreement. Not more than once
per calendar quarter, within thirty (30) days after written request to
CableData, IBM shall be entitled to conduct an audit and review of the
financial records of CableData available to CableData through its on-line
database at a CableData location in Rancho Cordova, California, relating to
DDP/I license fees, to verify the proper amounts of fees due to IBM for that
quarter under this SECTION 3.2. The request shall specify the countries or
markets for which records are to be provided. The audit shall occur within
normal business hours, at a location in Rancho Cordova, California mutually
acceptable to IBM and CableData. IBM shall be entitled to retain an
independent certified public accounting firm to assist it with the audit.
The parties shall be responsible for their own costs and expenses in
connection with the audit.
SECTION 3.3 [*] If, at any time during the term of this Agreement, IBM
enters into a Cooperative Marketing Agreement (as defined below) [*] of
CableData (including without limitation [*] provides subscriber management
products or services similar or equivalent to DDP/I to the market segments
described in Recital A), in a country in which [*] under this Agreement, [*]
the terms or conditions provided to CableData in this Agreement, then:
(a) Within ten (10) days of such event or of CableData providing notice
to IBM pursuant to SECTION 4.4(c) that CableData intends to [*], IBM shall
notify CableData in writing, providing CableData with reasonably complete
information about [*]; and
(b) Concurrent with such notice, IBM [*] Cooperative Marketing
Agreement [*]. Within thirty (30) days after receiving the notice, CableData
shall be entitled [*] Cooperative Marketing Agreement by written notice to
IBM, if CableData wishes. If CableData does not [*] Cooperative Marketing
Agreement within such thirty (30) days, CableData has waived its right to
assert a violation of this SECTION 3.3 as to that agreement.
(c) As used herein, a "Cooperative Marketing Agreement" means an
agreement for resale of IBM products with a specified software product and an
agreement providing commissions based on the installation of a specified
software product on IBM products. "Cooperative Marketing Agreement" shall
not include, but not by way of limitation, equity or other investment
relationships.
Section 3.4 COMMISSIONS TO BE PAID BY IBM TO CABLEDATA.
(a) In return for CableData's performance of the applicable tasks set
forth in EXHIBIT G, within thirty (30) days after the end of each calendar
quarter, IBM shall pay CableData Commissions (as defined in SECTION 3.4(b)
below) on the Invoice Price of Commissionable Products invoiced by IBM during
such quarter, less withholding required by law in the applicable
jurisdiction. IBM shall pay such Commissions to CableData by check at
CableData's office at 2969 Prospect Park Drive, Rancho Cordova, CA 95670.
Where payments to CableData under this SECTION 3.4 are based on amounts
denominated in a currency other than United States Dollars, IBM shall
calculate and pay the Commission to CableData in United States Dollars, using
the exchange rate set forth in the "Exchange Rates" column of the "Currency
Trading" section of THE WALL STREET JOURNAL for the last day of the calendar
quarter for which payment is being made (or, if not available, on the last
preceding day on which such rate was published in such column); if such
column does not publish the applicable exchange rate, then the prevailing
exchange rate offered by Citibank, N.A., at its main office in New York, New
York, for that date shall apply. At the time of payment of Commission, IBM
will provide CableData an analysis supporting the amount of payment of the
Commission, which shall contain the following information: customer name,
IBM customer's number, location, type of transaction, description of
applicable Commissionable Products, date of invoices and invoice numbers,
Invoice Price (as defined below), with the summation of aggregate
Invoice Prices times
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
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applicable Base Percentage specified in EXHIBIT G (less withholding, if
applicable) equating to the payment of Commission. This information shall be
treated as Confidential under the terms of the Agreement for Exchange of
Confidential Information set forth in EXHIBIT H without the need for further
designation on any further supplement to that agreement. In addition, IBM
shall promptly supply to CableData adequate detail of withholding deducted
from the Commission by IBM and withholding tax receipts.
(b) In this SECTION 3.4, the following definitions shall apply:
(i) "Commissionable Products" means Eligible Products marketed by IBM or
its wholly-owned subsidiaries, provided that such Products are or will be
used primarily with DDP/I and CableData has performed the applicable tasks
set forth in EXHIBIT G. Not all tasks are applicable to each transaction.
(ii) "Invoice Price" means the price, charge, fee, or other
consideration invoiced by IBM or IBM wholly-owned subsidiary to the end-user
customer for Commissionable Products, except that, for Commissionable
Products which are being invoiced as a periodic charge, the "Invoice Price"
shall be deemed to be the periodic charge times the total number of periods
for the charges committed by the end-user customer under the applicable
agreement or three (3) years, whichever is longer.
(iii) "Commission" means the amount determined by multiplying the
relevant Base Percentage set forth in EXHIBIT G times the relevant aggregate
Invoice Prices for Commissionable Products. Calculation of Base Commission
shall be done separately for each country specified in EXHIBIT G. The tasks
associated with the Commission for each group are specified in EXHIBIT G. To
the extent that CableData wishes to qualify for commissions greater than the
Base Percentages described in EXHIBIT G, CableData may enter into an
agreement or agreements with individual IBM wholly-owned subsidiaries
specifying such other commissions and associated tasks as the parties may
mutually agree.
(c) IBM shall keep records of the sale of Commissionable Products
adequate to meet IBM's responsibilities under this Agreement. Not more than
once per calendar quarter, within thirty (30) days after written request to
IBM, CableData shall be entitled to conduct an audit and review of the
financial records of IBM available to IBM through its on-line database at an
IBM location in Sacramento, California, relating to Commissionable Products,
as described in SECTION 3.4(a) above, to verify the proper amounts of
Commissions due to CableData for that quarter under this SECTION 3.4. The
request shall specify the countries or markets for which records are to be
provided. The audit shall occur within normal business hours, at a location
in Sacramento, California mutually acceptable to CableData and IBM. CableData
shall be entitled to retain an independent certified public accounting firm
to assist it with the audit. The parties shall be responsible for their own
costs and expenses in connection with the audit.
(d) IBM is acting as a collection agent for CableData in obtaining
Commissions from its wholly-subsidiaries in connection with this Agreement.
CableData shall be entitled to any Foreign Tax Credit under United States law
associated with amounts withheld by IBM for CableData on the Commissions for
CableData hereunder in foreign countries. IBM agrees to enter an agreement
with each of its affected wholly-owned subsidiaries regarding its collection
activities for the Commissions due hereunder. IBM will notify CableData if
and when the appropriate taxing authority notifies IBM that such withheld
amounts are not due and payable to such taxing authority.
(e) As to each DDP/I customer, Commissions shall be payable under this
SECTION 3.4 for a period of five (5) years after the date of termination of
this Agreement, except in the case of termination by IBM pursuant to SECTION
6.2(a) for breach by CableData (in which case Commissions shall cease on the
date of such termination). CableData must continue to perform its obligations
describing in EXHIBIT G to qualify for Commissions and the terms of this
Agreement apply to both
-8-
parties' obligations under this SECTION 3.4(e). This SECTION 3.4 shall
survive the expiration or earlier termination of this Agreement as described
in this SECTION 3.4(e).
ARTICLE IV
OTHER AREAS OF COOPERATION
Section 4.1 PROVISION FOR LOAN EQUIPMENT AND SOFTWARE.
(a) For the term of this Agreement, IBM agrees to loan to CableData
under the terms of Exhibit F-1 IBM hardware and software for use by CableData
in development of IBM-approved CableData application software; such loaned
IBM hardware/software shall include at least one (1) CPU and twelve (12)
workstations for each IBM-approved CableData application package to be
developed and such other loaned IBM hardware/software proportionate to the
development task as the parties may mutually agree.
Within ten (10) days following the execution of this Agreement, IBM
shall loan to CableData free of charge the hardware and software listed in,
and on the terms and conditions set forth in, EXHIBIT F-1 (which is the IBM
Equipment and Program Loan Agreement). Additional Loaned Hardware and
Software specified at a later date will be supplied under the terms of such
agreement. The duration of the loan shall be the term of this Agreement
except in the event of termination of the Agreement by CableData, pursuant to
SECTION 6.1(a) for breach by IBM or terminated by IBM pursuant to SECTION
6.2(c), in which case the loan shall continue on the terms and conditions set
forth in Exhibit F-1 until the earlier of (i) two years from the date of
termination, or (ii) January 19, 1998. CableData shall have ninety (90) days
after delivery in which to elect to accept such hardware and software, and
may inspect, test and use such items during the ninety (90)-day period.
Thereafter, IBM shall provide free upgrades to such hardware and software
under the terms and conditions of EXHIBIT F-1 as and when they become
available and, in addition, IBM shall provide hardware and software for new
platforms as IBM and CableData shall mutually agree.
(b) CableData may purchase or license development hardware and license
development software from IBM during the term of this Agreement on the terms
and conditions set forth in EXHIBIT F-2 (which is the IBM Customer Agreement
and its Attachment for IBM RISC System/6000 Development Discount). Such terms
and conditions shall only apply to such purchase or license.
Section 4.2 TECHNICAL DIRECTION AND INFORMATION. Each party shall
provide to the other party advance notices of new product developments and
releases that its technical representative under this Agreement has
determined has applicability and appropriateness to DDP/I as soon as
practical but in no event later than such information is publicly disclosed
by the party providing such information. The receiving party shall keep such
information confidential under the terms of EXHIBIT H without the necessity
of adding such information as a supplement to said EXHIBIT H until such
public disclosure by the party providing such information. At least once per
calendar quarter each party shall provide to the other party a forecast of 12
to 18-month trends and directions (excluding pricing) within such party's own
company and applicable industry(ies) as it applies to the IBM platform and
CableData application software as each party deems appropriate.
Section 4.3 TRAINING AND INFORMATION.
(a) IBM shall use reasonable efforts to optimize the performance of
DDP/I in its initial release. These efforts shall include training of
CableData personnel in the techniques used. CableData will retain final
authority for all design and implementation decisions regarding DDP/I.
(b) With respect to the tasks described in ARTICLE II, IBM shall also
make available to CableData the personnel and facilities of its Benchmark
Center located in Austin, Texas as IBM deems appropriate to meet the agreed
upon schedules set forth in EXHIBITS B THROUGH E.
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(c) As and when IBM releases or makes available or in any country in
which CableData or its distributors are marketing DDP/I any new software
products for use on the RISC System/6000, then IBM's Sacramento Branch office
and CableData shall jointly evaluate such products for applicability to
DDP/I, and in the event that they reasonably determine such products are
applicable to DDP/I, then IBM's Sacramento Branch office shall make an
evaluation copy of each such new product applicable to CableData at no cost
to CableData. The terms of the Equipment and Program Loan Agreement set forth
as EXHIBIT F-1 shall govern CableData's rights to use such evaluation copy.
Section 4.4 MARKETING SUPPORT.
(a) INTERNATIONAL MARKETING MANAGER. Within thirty (30) days following
the date of this Agreement, IBM shall appoint, for a minimum of two (2) years
and thereafter shall have on its staff during the term of this Agreement for
such time as CableData continues marketing activity for DDP/I on Eligible
Products, an international marketing manager located in Sacramento,
California, with primary responsibilities for managing and facilitating, as
required, IBM's cooperation with CableData in marketing DDP/I and related
Eligible Products.
(b) JOINT MARKETING EFFORTS AND PUBLICITY. IBM and CableData shall
cooperate in preparing and disseminating an initial press release describing
their relationship pursuant to this Agreement, and subsequent press releases
concerning the development and release of DDP/I and other products and
services pursuant to this Agreement, as appropriate. Each of CableData and
IBM shall appoint a designated representative to coordinate the parties'
joint participation in business and trade shows, exhibitions, and similar
events, cooperative marketing and communications with distributors and
customers as mutually agreed between the parties. Each party shall advise the
other in writing of the name (and any change) of its designated
representative. Neither party shall release a press release mentioning the
relationship or activities under this Agreement during the term of this
Agreement without the prior written approval of the designated representative
of the other.
(c) MARKETING DISCRETION. Notwithstanding anything to the contrary in
this Agreement, CableData shall be entitled to market its products, including
DDP/I and DDP/IT, in jurisdictions and markets directly, through
subsidiaries, through local distributors selected by CableData, or through
other means selected by CableData. CableData will consider IBM and/or its
wholly-owned subsidiaries when selecting a distributor or distributors for a
country. CableData shall retain complete discretion with respect to the
selection of markets in which its products will be marketed and sold, and in
the appointment of local distributors for such markets, choice of its
marketing mechanisms, and similar matters. Upon the request of CableData or
any designated local distributor of CableData, IBM will provide reasonable
marketing assistance (subject to availability of personnel) to CableData or
such distributor, as the case may be, with respect to marketing efforts in
such marekts. Upon the request of IBM or IBM wholly-owned subsidiaries in those
countries designated as "EMEA-A" in EXHIBIT G, CableData will provide reasonable
marketing assistance (subject to availability of personnel) to IBM or such
distributor, as the case may be, with respect to marketing efforts in such
markets. Attached to this Agreement as EXHIBIT G is a list of countries in which
CableData contemplates marketing DDP/I and in which IBM's RISC System/6000 is
marketed; the parties understand that CableData makes no commitment to market
DDP/I in any or all of the countries listed in EXHIBIT G or any other country.
CableData will give IBM reasonable advance written notice prior to marketing
DDP/I in any of the countries listed in EXHIBIT G (as the same may be amended
from time to time by agreement of the parties).
IBM and CableData will agree to a list of IBM products applicable to
their joint marketing efforts in a specific country. The list may be revised
at any time by mutual agreement.
IBM shall have the right to offer, at its sole discretion, any products
or services in any country or countries.
IBM shall have the right, at its sole discretion, to market or to
withdraw from marketing IBM products, in any country at any time. However, in
the event of IBM's withdrawal of an IBM
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hardware product (A) IBM and CableData will make all reasonable efforts to
identify a substitute IBM product and include such substitute IBM product in
the applicable list; and (B) if such withdrawn IBM product is currently in
use, or is currently committed to a specific customer(s) for use, in that
country, with DDP/I, IBM will commit to such customer(s) that such withdrawn
IBM product will be supported by IBM for a minimum of five (5) years
following its withdrawal from marketing in such country. "Support" shall mean
routine corrective maintenance to the extent available for the product prior
to withdrawal.
In the event of withdrawal of an IBM software product, and such
withdrawn IBM product is in use, or is on the date of withdrawal committed to
a specific customer(s) for use, in that country with DDP/I, IBM will commit
to such customer(s) that such withdrawn IBM product will be supported by IBM
for the remaining period, if any, of its program currency.
ARTICLE V
PROPRIETARY RIGHTS
Section 5.1
(a) OWNERSHIP OF DDP/I, DDP/IT AND DDP/SQL. CableData shall retain
exclusive ownership of all right, title and interest in and to DDP/SQL,
DDP/I, and DDP/IT and all portions thereof (including, but not limited to,
applications and systems libraries) now existing or to be developed or
adapted pursuant to this Agreement by CableData, IBM, any third party or
parties, or their respective employees, representatives, agents, consultants,
independent contractors, successors and assigns pursuant to this Agreement,
in any and all forms (including but not limited to source code and
machine-executable code), all derivative works thereof and enhancements
thereto developed pursuant to this Agreement or otherwise, all documentation,
work papers or written materials relating to any of the foregoing, and all
Intellectual Property Rights in any of the foregoing; and IBM hereby assigns
to CableData all right, title, and interest in and to any of the foregoing
(including but not limited to, assignment of any copyrights it may have to the
porting code prepared pursuant to SECTION 2.2 of this Agreement) which it may
otherwise have or be deemed to acquire, subject to IBM's ownership of and
license to certain patent rights under SECTION 5.5 of this Agreement. Upon
CableData's request, IBM agrees to assist CableData as may be required to
perfect CableData's rights as described in this SECTION 5.1, which assistance
shall include the execution of any and all instruments or documents that may be
necessary or convenient to establish, evidence, maintain, defend or enforce
CableData's rights as described in this SECTION 5.1. "Intellectual Property
Rights" means all rights, title and interest in and to patents, patent
applications, copyrights, mask work rights, trademarks, trade names and trade
secrets. The assignment to CableData of trade secret rights in this SECTION
5.1(a) shall not, and shall not be construed to, preclude IBM from using, or
require IBM to keep confidential, any ideas, concepts, know-how, or
techniques (Knowledge) related to information handling, including use in
creation or offering of products to its customers.
(b) This Agreement shall not be construed or interpreted to grant to IBM
any right or license, by implication, estoppel or otherwise, to sell,
transfer, assign, develop, or make any use of DDP/SQL, DDP/I, or DDP/IT,
except as expressly provided in this Agreement. Without limitation to the
generality of the foregoing sentence, IBM shall have no rights to adapt,
alter, Localize, license or sublicense to third parties any of the foregoing
items, without the prior written consent of CableData, which may be granted
or withheld in CableData's sole discretion. IBM shall not employ, retain, or
subcontract with any third party or parties to perform any obligations or
exercise any rights of IBM under this Agreement, unless IBM has first
obtained the prior written consent of CableData to such action.
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Section 5.2 LICENSES.
(a) For the term of this Agreement, CableData grants to IBM a
nonexclusive and nontransferable license to use one (1) copy of DDP/I in
machine-executable code only, for IBM's internal purposes only in connection
with this Agreement and to make one (1) archival copy for back-up purposes.
(b) IBM hereby grants to CableData, its subsidiaries and distributors,
and its and their respective customers, mediate and immediate, an
irrevocable, non-exclusive, worldwide, non-transferrable, paid-up license
under all present and future IBM patents to make, have made, use, have used,
lease, license, sell and/or otherwise transfer DDP/SQL, DDP/I and DDP/IT,
including derivative works thereof, either alone or in combination with
equipment, insofar as any infringement of such patents would otherwise arise
in whole or in part from the performance of IBM's obligations under this
Agreement.
(c) Each party grants the other only the licenses specified. No other
licenses, including licenses under patents, are granted.
Section 5.3 CONFIDENTIALITY.
(a) The parties hereby agree to be bound by the terms of the Agreement
for the Exchange of Confidential Information set forth as EXHIBIT H. Unless
specifically identified in this Agreement or the supplement to the Agreement
for Exchange of Confidential Information as confidential, all information
exchanged is non-confidential.
(b) Neither party shall disclose the existence of this Agreement until
such time as the parties shall mutually agree upon and implement a public
announcement; thereafter, either party may disclose the existence of this
Agreement, but neither party shall disclose the specifics of the Agreement to
third parties without the prior written consent of the other party, except as
may be required by law or to its auditors in the internal operations of its
business.
Section 5.4 USE OF TRADEMARK, NAME. Each party agrees not to use the
other's name, trade name, trademark, service mark, or other designation
without such other party's prior written consent.
Section 5.5 INVENTIONS.
(a) In the event employees of IBM conceive or reduce to practice a
patentable invention in the course of performing this Agreement, and not
jointly with any employees of CableData, and IBM applies for and is issued a
patent thereon, all ownership rights in the patent shall belong solely to
IBM, subject to CableData's rights under SECTION 5.2(b).
(b) In the event employees of IBM and CableData jointly conceive or
reduce to practice a patentable invention in the course of performing this
Agreement, and either CableData or IBM elects to apply for and is issued a
patent thereon, all ownership rights in the patent shall belong to IBM and
CableData jointly and each party shall have the right to grant licenses to
third parties or assign its rights therein without accounting to the other
party; provided, however, that CableData shall have the sole and exclusive
right under any such patent to make, have made, use, have used, lease,
license, sell and/or otherwise transfer DDP/SQL, DDP/I and DDP/IT products,
including derivative works thereof, either alone or in combination with
equipment.
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ARTICLE VI
TERM AND TERMINATION
Section 6.1 TERM. This Agreement shall become effective on the date
first written above and shall continue in effect thereafter for a period of
six (6) years unless sooner terminated pursuant to this ARTICLE VI. After
such six (6)-year period, the term of this Agreement shall be automatically
renewed for successive periods of one (1) year each, unless written notice of
one party's desire to terminate this Agreement is given to the other party at
least three (3) months prior to the end of the then-current period.
Termination at the end of the initial six (6) year period or any subsequent
one (1) year period is hereinafter referred to as the "Natural Termination
Date." Termination on the Natural Termination Date shall not be deemed to be
a termination under SECTION 6.2(a), (b) or (c).
Section 6.2 TERMINATION.
(a) TERMINATION FOR BREACH. Either party may terminate this Agreement,
effective upon dispatch of written notice of termination to the other party,
upon breach by such other party of any of its material obligations under this
Agreement and failure to cure such breach within ninety (90) days after
receipt of notice specifying the breach. This right to terminate shall be in
addition to any remedies available in law or equity, which remedies are
expressly retained.
If IBM terminates this Agreement for breach of this Agreement by
CableData, then, on the effective date of termination under this
SECTION 6.2(a), CableData shall refund to [*] under SECTION 3.1, less
payments previously made by CableData to IBM pursuant to SECTION 3.2 and less
any fees forgiven pursuant to SECTION 3.2 prior to termination.
If CableData terminates this Agreement for breach of this Agreement by
IBM, on the effective date of termination under this SECTION 6.2(a), IBM
shall pay to CableData (1) any remaining scheduled installments that would
have been due to CableData in subsequent months under SECTION 3.1 if the
termination had not occurred, up to a total of [*] and (2) reimbursement
pursuant to SECTION 2.2(b) if incurred. Additionally, CableData shall recover
the actual amount of Commissions earned as of date of termination.
(b) TERMINATION BY CABLEDATA FOR REASONS OTHER THAN IBM BREACH.
CableData may in its sole discretion, upon ninety (90) days' prior written
notice to IBM, terminate this Agreement at any time, without breach by IBM.
[*]
(c) TERMINATION BY IBM FOR REASON OTHER THAN CABLEDATA BREACH. IBM may
in its sole discretion, upon ninety (90) days' prior written notice to
CableData, terminate this Agreement at any time, without breach by CableData.
[*]
Section 6.3 EFFECT OF TERMINATION. Except as otherwise expressly
stated in SECTION 6.2(a), (b) or (c) or in the following sentence, upon any
termination of this Agreement all rights and obligations of each party in
this Agreement shall expire and be of no further force or effect, and each
party shall be entitled to retain all funds, fees and payments that it has
received from the other party under this Agreement and prior to the effective
date of termination. Notwithstanding the foregoing, no expiration or earlier
termination of this Agreement shall relieve either party of its rights or
obligations as described in SECTION 3.4(e) or ARTICLE V of this Agreement,
which rights and obligations are expressly intended to survive any such
expiration or termination.
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
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ARTICLE VII
GENERAL
Section 7.1 INDEPENDENT CONTRACTORS.
(a) No provision of this Agreement shall make, or be construed to make,
either party an agent, servant, employee, partner, or joint venturer of the
other party. The parties to this Agreement are and shall remain independent
contractors. Each party shall retain exclusive management, direction, and
control of its employees and the work to be performed by it hereunder.
(b) Without limitation, each party shall provide the personnel,
products, training and other support described in this Agreement at its own
cost and expense, and at no charge to the other party. All personnel assigned
by one party to work with the other party pursuant to this Agreement shall
remain employees of the assigning party, and shall possess suitable technical
skills and expertise consistent with the requirements of their respective
assignments. Each party shall cause any of its employees assigned to provide
services at the other party's facilities to comply with all reasonable
regulations and instructions while at such facilities. Each party shall have
the right to exclude from its premises any persons.
Section 7.2 COUNTERPARTS. This Agreement may be executed in any number
of counterparts, each of which shall be deemed an original instrument, but
all of which together shall constitute only one and the same instrument.
Section 7.3 ASSIGNMENT. Neither this Agreement nor any right or
obligation hereunder is assignable in whole or in part, whether by operation
of law or otherwise, except (a) upon prior written consent of the other
party, which consent shall not be unreasonably withheld, (b) by a party to
its wholly-owned subsidiary following notice to the other party, which
consent shall not be unreasonably withheld, or (c) as otherwise expressly
provided in this Agreement. Notwithstanding the foregoing, this Agreement
shall be binding upon, and shall inure to the benefit of, the parties hereto
and their respective successors and assigns. The successor or assign of a
party hereto shall execute and deliver all documents and instruments
reasonably requested by the other party to evidence and confirm its
obligations under this Agreement.
Section 7.4 NOTICES AND OTHER COMMUNICATION. Every notice or other
communication required or contemplated by this Agreement to be given by any
party shall be delivered either by (i) personal delivery, (ii) postage
prepaid, return receipt requested, registered or certified mail (airmail if
available), or the equivalent of registered or certified mail under the laws
of the country where mailed, (iii) nationally recognized overnight courier,
such as Federal Express or UPS, or (iv) facsimile with a confirmation copy
sent simultaneously by postage prepaid, return receipt requested, registered
or certified mail, in each case addressed to the party for whom intended at
the following address:
To CableData: U.S. Computer Services
2969 Prospect Park Drive
Rancho Cordova, CA 95670
Attn: Sr. Vice President-General Manager
of CableData
Facsimile: (916) 636-5628
With a copy to: U.S. Computer Services
2969 Prospect Park Drive
Rancho Cordova, California 95670
Attn: General Counsel
Facsimile: (916) 636-5628
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To IBM: International Business Machines
Corporation
520 Capitol Mall
Sacramento, California 95814
Attn: General Manager
Facsimile: (916) 326-5068
or at such other address as the intended recipient previously shall have
designated by written notice to the other party. Notice by registered or
certified mail shall be effective on the date it is officially recorded as
delivered to the intended recipient by return receipt or equivalent, and in
the absence of such record of delivery, the effective date shall be presumed
to have been the tenth (10th) business day after it was deposited in the
mail. All notices and other communications required or contemplated by this
Agreement to be delivered in person or sent by courier shall be deemed to
have been delivered to and received by the addressee and shall be effective
on the date of personal delivery; notices delivered by facsimile with
simultaneous confirmation copy by registered or certified mail shall be
deemed delivered to and received by the addressee and effective on the first
business day in the location where received after the date received. Notice
not given in writing shall be effective only if acknowledged in writing by a
duly authorized representative of the party to whom it was given.
Section 7.5 LAW TO GOVERN; CONSENT TO JURISDICTION. The validity,
construction and enforceability of this Agreement shall be governed in all
respects by the laws of California applicable to agreements negotiated,
executed and performed in California between California corporations whether
or not one or more of the parties shall now be or hereafter become a resident
of another state or country. Each party hereby consents to the personal
jurisdiction of the state and federal courts in Sacramento, California for
the purposes of any litigation commenced in such court by CableData to
enforce its rights under this Agreement, and each party hereby waives any
rights it may otherwise have to request a change of venue from such court.
Each party hereby further consents and agrees that service of any process
necessary or convenient with respect to any such litigation may be made on it
by registered mail, postage prepaid, at its address as set forth in
SECTION 7.4, which service of process shall be fully effective in all
respects upon receipt. The parties agree that this Agreement shall be deemed
to be executed and performed in the County of Sacramento, California.
Section 7.6 SUBJECT HEADINGS. The subject headings of the Articles and
Sections of this Agreement are included for the purpose of convenience only,
and shall not affect the construction or interpretation of any of its
provisions.
Section 7.7 NO WAIVER OF RIGHTS. All waivers hereunder must be made in
writing, and failure at any time to require any other party's performance of
any obligation under this Agreement shall not affect the right subsequently
to require performance of that obligation. Any waiver of any breach of any
provision of this Agreement shall not be construed as a waiver of any
continuing or succeeding breach of such provision or a waiver or modification
of the provision.
Section 7.8 SETTLEMENT OF DISPUTES.
(a) Any controversy or claim between the parties arising out of this
Agreement shall be resolved as follows. Within thirty (30) days of the time
that such dispute or controversy arises, the General Manager of each party
shall confer in good faith for a period of not less than thirty (30) days in
an attempt to resolve it. No judicial proceeding may be commenced until the
end of such thirty (30)-day period.
(b) If any judicial proceedings shall be commenced to enforce this
Agreement or any provision of this Agreement, the prevailing party or parties
in such proceedings shall be entitled to recover the reasonable attorneys'
fees, costs and expenses incurred by such prevailing party or parties in
connection with such proceedings.
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Section 7.9 LIMITATION OF LIABILITY
(a) Circumstances may arise where because of default on IBM's part or
other liability, CableData is entitled to recover damages from IBM. In each
such instance, regardless of the basis on which CableData is entitled to
claim damages from IBM, IBM is liable only for: (1) bodily injury (including
death), and damage to real property and tangible personal property; and
(2) the amount of any other actual loss or damage, up to the greater of
(i) $100,000, or (ii) the amount set forth in SECTION 6.2(c) of this
Agreement and the actual amount of Commissions earned as of the date of
termination, if IBM has not yet paid these amounts to CableData. Under no
circumstances shall IBM liable for any of the following: third-party claims
against CableData for losses or damages (other than those listed in the first
item above); loss of, or damage to, CableData's records or data; or economic
consequential damages (including lost profits or savings) or incidental
damages, even if IBM is informed of their possibility. actual amount of
Commissions earned as of the date of termination.
(b) Circumstances may arise where because of default on CableData's
part or other liability, IBM is entitled to recover damages from CableData.
In each such instance, regardless of the basis on which IBM is entitled to
claim damages from CableData, CableData is liable only for: (1) bodily injury
(including death), and damage to real property and tangible personal
property; and (2) the amount of any other actual loss or damage, up to the
greater of [*] or the amount set forth in SECTION 6.2(c) of this
Agreement if CableData has not yet paid that amount to IBM. Under no
circumstances shall CableData liable for any of the following: third-party
claims against IBM for losses or damages (other than those listed in the
first item above); loss of, or damage to, IBM's records or data; or economic
consequential damages (including lost profits or savings) or incidental
damages, even if CableData is informed of their possibility.
Section 7.10 LIMITATION OF ACTIONS. Neither party will bring a legal
action under or related to this Agreement more than four (4) years after the
cause of action arose.
Section 7.11 ENTIRE AGREEMENT. This Agreement represents the entire
understanding and agreement between the parties concerning the subject matter
hereof and supersedes any and all prior negotiations, understandings or
agreements in regard thereto, oral or written.
Section 7.12 EXPENSES. Except as expressly provided herein to the
contrary, each party to this Agreement shall be solely responsible for its
expenses incurred in connection with the negotiation, preparation, execution,
delivery and performance of this Agreement.
Section 7.13 AMENDMENTS. This Agreement or the Exhibits hereto may not
be modified except by an instrument or instruments in writing signed by the
party or parties against whom enforcement of such modification is sought.
Section 7.14 INCORPORATION BY REFERENCE. EXHIBITS A THROUGH H attached
to this Agreement and referred to herein are hereby incorporated by reference
into this Agreement.
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
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Section 7.15 SEVERABILITY. Whenever possible, this Agreement shall be
interpreted in such a manner as to be effective and valid under applicable
law, but if any provision of this Agreement should be prohibited or invalid
under applicable law, such provision shall be construed as ineffective to the
extent of such prohibition or invalidity without invalidating the remainder
of such provision or the remaining provisions of this Agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date and year first written above.
"CableData" "IBM"
U.S. COMPUTER SERVICES, INTERNATIONAL BUSINESS
a California corporation MACHINES CORPORATION,
a New York corporation
By: /s/ By: /s/
------------------------- ------------------------
Title: SR VP & GM Title: General Manager
----------------------- -----------------------
By: By:
------------------------- ------------------------
Title: Title:
----------------------- -----------------------
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EXHIBIT A
LIST OF ELIGIBLE PRODUCTS
-18-
[*]
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
[*]
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
[*]
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
[*]
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
[*]
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
[*]
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
[*]
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
[*]
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
EXHIBIT B
SCHEDULE FOR PORTING SYSTEM LIBRARIES*
Start: First quarter 1992
End: Second quarter 1992
Note: Primarily IBM activity with
assistance from CableData
*Assuming that the Agreement is executed on or before January 19, 1992
- 19 -
EXHIBIT C
SCHEDULE FOR NATIONAL LANGUAGE SUPPORT*
Start: Fourth quarter 1991
End: First quarter 1993
Note: Primarily CableData activity with assistance from IBM
*Assuming that the Agreement is executed on or before January 19, 1992
- 20 -
EXHIBIT D
SCHEDULE FOR APPLICATION LAYER*
Start: First quarter 1992
End: Second quarter 1992
Note: Primarily CableData activity with assistance from
database vendor
*Assuming that the Agreement is executed on or before January 19, 1992
- 21 -
EXHIBIT E
SCHEDULE FOR OTHER INTERNATIONALIZATION TASKS*
Start: Second quarter 1992
End: First quarter 1993
Note: Primarily CableData activity; Beta group of programs
*Assuming that the Agreement is executed on or before January 19, 1992
- 22 -
[LOGO]
EXHIBIT F-I
EQUIPMENT AND PROGRAM LOAN AGREEMENT
- --------------------------------------------------------------------------------
IF YOU HAVE SIGNED THE IBM CUSTOMER AGREEMENT, ITS ATTACHMENT FOR TRIAL OR
LOAN OF PRODUCTS SHOULD BE USED IN PLACE OF THIS AGREEMENT.
The Recipient (you) and International Business Machines Corporation (IBM) agree
that the following terms and conditions apply when IBM loans you equipment and
programs including associated user manuals and similar documentation (Loaned
Items). Loaned Items may also be referred to as Loaned Equipment or Loaned
Programs, as applicable.
1. ASSOCIATED CONTRACT DOCUMENTS
The Attachment to this Agreement (Attachment) lists the Loaned Items and
specifies any additional terms and conditions. A revised Attachment sets forth
any additions or deletions to the listed Loaned Items and any changes to the
terms and conditions. Your continued use of the Loaned Items or acceptance of
additional Loaned Items after your receipt of a revised Attachment will
constitute your acceptance of such revised Attachment.
When the loan is made in conjunction with a referenced Agreement, IBM will
specify the Reference Agreement Number. In this event, the referenced Agreement
will describe the purpose of the loan. Otherwise, the purpose of the loan is
specified below (Purpose of Loan).
2. TERM AND TERMINATION
This Agreement ends on the earliest of 1) the specified Agreement
Expiration Date, 2) the date this Agreement is terminated in accordance with
this Section, or 3) the date the referenced Agreement, if any, is terminated.
The Agreement Expiration Date may only be extended by IBM's issuance and your
acceptance of a revised Attachment specifying such later Date.
You may terminate this Agreement by providing written notice to IBM. If
you fail to meet any of your obligations under this Agreement or the referenced
Agreement, IBM may terminate this Agreement by giving written notice to you,
indicating the effective date of termination.
3. LOAN PERIOD
IBM will provide the Loaned Items to you on or about the Estimated Delivery
Date(s) specified in the Attachment. IBM provides the Estimated Delivery
Date(s) to you for planning purposes only. The Loan Period for each Loaned Item
will extend from the actual date IBM delivers the Loaned Item(s) to you, until
the earliest of:
a) the applicable Return Date specified in the Attachment or revised
Return Date specified in a revised Attachment;
- --------------------------------------------------------------------------------
PAGES 2 AND 3 AND 1 ATTACHMENT PAGE(S) ARE ALSO PART OF THIS AGREEMENT. The
parties acknowledge that they have read this Agreement, understand it, and agree
to be bound by its terms and conditions. Further, they agree that the complete
and exclusive statement of the agreement between the parties relating to the
Loaned Items provided hereunder consists of 1) this Agreement, 2) its
Attachment(s) and 3) the referenced Agreement, if any, including those effective
in the future. This statement of the agreement supersedes all proposals or
other prior agreements, oral or written, and all other communications between
the parties relating to the Loaned Items provided hereunder.
International Business Machines Recipient's name:
Corporation U.S. Computer Services
Armonk, New York 10504 d/b/a CableData
By By
---------------------------------- -----------------------------------
Authorized Signature Authorized Signature
Name (type or print): Name (type or print):
Date: January 10, 1992 Date: January 10, 1992
This Agreement number: Reference Agreement number:
Strategic Alliance Agreement
IBM Office number: Recipient's Customer number:
IBM Office address: Recipient's address:
520 Capitol Mall 2969 Prospect Park Drive
Sacramento, CA 95814 Rancho Cordova, CA 95670
Agreement Expiration Date:
January 10, 1998, subject to year to year renewals
Purpose of Loan (TO BE COMPLETED ONLY IF NO REFERENCED AGREEMENT):
Page 1 of 3
b) the date you acquire i) title to the Loaned Equipment or ii) a
continuing license to the Loaned Program, should such acquisition or
licensing be available to you under Section 13; or
c) the date this Agreement ends.
4. AUTHORIZED USE
IBM provides Loaned Items to you solely for use in accordance with the
terms of this Agreement and for the purpose(s) described either in this
Agreement or in the referenced Agreement (Authorized Use). There are no charges
for Authorized Use of the Loaned Items. You may not use the Loaned Items for
any other purposes.
5. OWNERSHIP AND LICENSE
IBM or a third party retains title to all Loaned Items. You may not
transfer Loaned Items to anyone else. For Loaned Programs which are not subject
to another supplier's or publisher's license agreement, IBM grants you a
license to use, store, modify and make sufficient copies to support your
Authorized Use under this Agreement. Such copies will be deemed to be Loaned
Items. For Loaned Programs which are subject to another supplier's or
publisher's license agreement, however, the terms and conditions of that
supplier or publisher are passed to you through IBM. Such terms and conditions
will be shipped with the Loaned Program. Any authorized copies made by you will
be deemed to be Loaned Items.
6. LICENSED INTERNAL CODE
If the Loaned Equipment contains Licensed Internal Code (Code), so
identified by IBM, IBM grants you a license only to execute such Code to enable
the Loaned Equipment to perform in accordance with IBM's official published
specifications. You may not reverse assemble, reverse compile, decode,
translate, or make any other copies of the Code. You must return the original
copy of the Code to IBM at the conclusion of the Loan Period.
7. DELIVERY AND INSTALLATION
IBM will deliver the Loaned Items to the location(s) specified in the
Attachment.
You will 1) set-up all Loaned Equipment IBM designates as Customer Set-Up,
2) install all non-IBM equipment and 3) install all Loaned Programs.
IBM will be responsible for the installation of all other Loaned Items.
Installation by IBM will be during IBM's normal business hours.
8. RISK OF LOSS OR DAMAGE
IBM relieves you of the risk of loss of, or damage to, all Loaned Items,
except for loss or damage resulting from your breach of this Agreement
including use other than Authorized Use.
9. SECURITY
You will provide, at no cost to IBM, adequate security to protect the
Loaned Items from theft, damage or misuse.
You will use reasonable care in the use of all Loaned Items. You will
provide an operating environment for the Loaned Items consistent with the
related user documentation.
You will keep the Loaned Items at the location(s) specified in the
Attachment. You will not move the Loaned Items to another location without
IBM's prior written approval.
10. SERVICE AND SUPPORT
IBM will use reasonable efforts to provide or arrange for service and
support to cause the Loaned Items to operate in accordance with applicable
published specifications. Such service and support will be without charge.
You will permit IBM personnel full, free and safe access to your
facilities, during normal business hours, for the purpose of inspection,
preventive maintenance service or remedial maintenance service.
11. ALTERATIONS AND ATTACHMENTS
An alteration to Loaned Equipment may be made only upon IBM'S prior written
approval. An attachment to Loaned Equipment may be made without notice to IBM.
You will remove any alteration or attachment and restore Loaned Equipment
to its unaltered condition before its return to IBM or upon IBM's notice to you
that the alteration or attachment creates a safety hazard or renders maintenance
of the Loaned Equipment impractical.
12. CHANGES
IBM may make substitutions for Loaned Items or may provide additional items
to you during the term of the Agreement. Such additions or deletions will be
specified in a revised Attachment.
13. DISPOSITION OF LOANED ITEMS
RETURN TO IBM
You will return the Loaned Equipment to IBM at the end of Loan Period,
except as may be provided for in this Section. You will return the Loaned
Equipment to IBM in the same condition as when delivered to you, reasonable wear
and tear excepted.
You will return the original and all copies of the Loaned Programs at the
end of the Loan Period, except as may be provided for in this Section.
You will permit IBM personnel access during IBM's normal business hours to
allow IBM to remove the Loaned Items.
ACQUISITION AND CONTINUED LICENSING
IBM will determine the availability of Loaned Equipment for your
acquisition and Loaned Programs for your continued licensing beyond the
applicable Loan Period. You must inform IBM, prior to the end of the applicable
Loan Period, of your interest in the acquisition of specific Loaned Equipment
or the continued licensing of specific Loaned Programs. IBM will then notify you
in writing either 1) of the terms and conditions under which you may acquire
such Loaned Equipment or continue to license such Loaned Programs or 2) that the
Loaned Items are not available for acquisition or continued licensing.
Purchase of Loaned Equipment will be governed by the provisions of the IBM
Customer Agreement and its applicable Attachments (or any equivalent agreement
signed by both of us).
Continued licensing of Loaned Programs will be governed by the provisions
of the applicable IBM license agreement or another supplier's or publisher's
Page 2 of 3
license agreement. IBM will identify to you the applicable agreement which
governs such licensing.
14. DISCLAIMER OF WARRANTY
IBM PROVIDES LOANED ITEMS ON AN "AS IS" BASIS. IBM MAKES NO WARRANTY,
EXPRESS OR IMPLIED, WITH RESPECT TO SUCH ITEMS, INCLUDING THE IMPLIED
WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
15. PATENTS AND COPYRIGHTS
If the operation of a Loaned Item becomes, or IBM believes is likely to
become, the subject of a claim that it infringes a patent or copyright in the
United States or Puerto Rico, you will permit IBM, at its option and expense,
either to secure the right for you to continue using the Loaned Item or to
replace or modify it so that it becomes noninfringing. However, if neither of
the foregoing alternatives is available on terms which are reasonable in
IBM's judgement, you will return the Loaned Item upon IBM's written request.
IBM will have no obligation with respect to any such claim based upon your
modification of IBM equipment, programs or programming or their combination,
operation or use with any non-IBM apparatus, data or programs.
IBM will not have any liability regarding patent or copyright infringement
for non-IBM Loaned Items.
This Section states IBM's entire obligation to you regarding infringement
or the like.
16. CONFIDENTIAL INFORMATION
The parties agree that all information exchanged hereunder will be
nonconfidential. If the loan requires the exchange of confidential
information or includes an unannounced IBM product, such loan will also
require that you and IBM enter into a separate confidentiality agreement.
17. LIMITATION OF REMEDIES
IBM's entire liability and your exclusive remedy for actual damages from
any cause whatsoever relating to the subject matter of this Agreement will be
limited to the amount of $25,000. This limitation will apply, except as
otherwise stated in this Section, regardless of the form of action, whether
in contract or in tort, including negligence. This limitation will not apply
to claims by you for bodily injury or damage to real property or tangible
personal property for which IBM is legally liable.
In no event will IBM be liable for any lost profits, lost savings,
incidental damages, or other economic consequential damages, even if IBM has
been advised of the possibility of such damages. In addition, IBM will not be
liable for any damages claimed by you based on any third party claim.
In no event will IBM be liable for any damages caused by your failure to
perform your responsibilities.
18. GENERAL
You may not assign this Agreement without IBM's prior written consent. Any
attempted assignment without such consent is void.
Loaned items are to be installed only in the United States or Puerto Rico.
IBM will pay destination charges, both from and to IBM-designated
locations, for each Loaned Item shipped in accordance with IBM's then current
shipping practice. You will pay any rigging charges. You will furnish all
labor for unpacking and packing except as IBM otherwise specifies or when
performed at an IBM-designated location.
IBM may provide services described in this Agreement by using IBM-selected
independent contractors.
Neither party is responsible for failure to fulfill its obligations under
this Agreement due to causes beyond its control.
Neither party may bring an action, regardless of form, arising out of this
Agreement more than two years after the cause of action arose.
In the event of the termination or expiration of this Agreement, the
provisions of this Agreement which by their nature extend beyond the
expiration or termination of this Agreement shall remain in effect beyond such
expiration or termination until fulfilled.
If there is a conflict between this Agreement and an Attachment, the terms
and conditions of the Attachment will prevail. Except as modified by an
Attachment, the terms of this Agreement remain in full force and effect. The
terms of any Attachment not inconsistent with a subsequent Attachment remain
in full force and effect.
The laws of the State of New York govern this Agreement.
Page 3 of 3
Attachment to
Equipment and Program Loan Agreement
Equipment to be covered by Agreement:
(i) One IBM RISC System/6000 Model 540 server configured with 64MB of
RAM, 3GB of disk, one 6250 BPI 9-track tape drive, one 8mm
cartridge tape, 24 async ports, one async terminal as a system
console, one dot matrix printer as a system logger, a CD-ROM
player, a 10Base-T ethernet connection and two 8PPM laser printers
for use in El Dorado Hills, California.
(ii) Four IBM RISC System/6000 Model 320H systems, each configured with
64MB of RAM, 1GB of disk, a CD-ROM player, a 100MB cartridge tape,
a 10Base-T ethernet connection, and a 19-inch monochrome display
with keyboard and mouse. One of these machines is for use in Leeds,
UK, the remaining three are for use in El Dorado Hills, California.
(iii) Eleven X-terminals, each with a 19-inch monochrome display,
keyboard, mouse, a 10Base-T ethernet connection, and 4MB of RAM
for use in El Dorado Hills, California.
(iv) Thirteen X-terminal emulator software packages for DOS PCs to
connect to the servers. Two of these emulators are for PCs in
Leeds, UK, the remaining eleven are for use in El Dorado Hills,
California.
(v) Software for items (i) and (ii) above to allow full C and SQL
development in a networked X windows environment.
(vi) Addresses for delivery and installation (at IBM's sole expense) of
above equipment.
El Dorado Hills address:
5272 Robert J. Mathews Parkway
El Dorado Hills, CA 95630
Leeds, UK address:
Arlington Business Centre
Millshaw Park
Leeds LS11 OLT England, UK
(vii) IBM will provide upgrades to system software and hardware as new
versions become available.
-23-
EXHIBIT F-2
DATA BASE: ALET - Page: 1
- -------------------------------------------------------------------------------
NUMBER 391-068
DATE 910514
CATEGORY GD70, GD00
TYPE Marketing
TITLE IBM RISC SYSTEM/6000 DEVELOPER DISCOUNT PROGRAM
ABSTRACT The IBM RISC System/6000 (TM) Developer Discount Program (formerly
the RISC System/6000 Software Development Program, described in
Marketing Announcement 390-016, dated February 15, 1990) now
includes selected hardware developers. The new program also updates
the list of IBM hardware and software products eligible for the
Developer Discount Program.
This program provides eligible customers with the opportunity
to acquire workstations, AIX (R) Development Toolkits, selected
peripherals, and licensed RISC System/6000 programs at a
substantial discount. Eligible customers include selected hardware
and software developers, and selected IBM Academic Information
Systems (ACIS) application authors.
IBM reserves the right to modify or withdraw this offering at
any time. No other discount or promotional offering can be combined
with this program.
(TM) Trademark of International Business Machines Corporation.
(R) Registered trademark of International Business Machines
Corporation.
DATA BASE: ALET - IBM Internal Use Only Page: 2
IMKTG MARKETING INFORMATION
MARKETING CHANNELS
o IBM US Market Operations -- Direct
MARKETING STRATEGY
This program is intended to increase the availability of quality
products by providing an attractively priced RISC System/6000
development offering to selected hardware and software developers,
and selected ACIS application authors.
MARKETING ACTION REQUIRED
Marketing representatives should become familiar with this
program and encourage the participation of qualifying developers.
IADMIN ADMINISTRATIVE INFORMATION
PROGRAM ELIGIBILITY: Customers must be approved by Software Vendor
Operations. Approvals will be limited to US-based developers who
agree to develop and market (or make available) RISC System/6000
hardware or software products.
To initiate a request for a Developer Discount, submit a
completed SVDDPNOM form, which is available on EZFORMS. For
additional information, send a PROFS (R) note to ATLVMS/SVDDP.
(R) Registered trademark of International Business Machines
Corporation.
CONTRACT ADMINISTRATION: Each new approved developer must sign the
IBM Customer Agreement Attachment for IBM RISC System/600 Developer
Discount (Z125-4740), and the IBM Customer Agreement Addendum for the
IBM RISC System/6000 Developer Discount (Z125-4741). Upon completion
of development, the developer must sign the IBM Customer Agreement
Certification of Compatibility with the IBM RISC System/6000
(Z125-4743).
ORDERING INFORMATION
When ordering the eligible products under this program, follow
the normal ordering instructions and use Contract Number 44871.
This special contract number will enable the program orders to be
processed at the stated discount. If the special contract number
was omitted at order entry, add it by using MODIFY prior to
shipment or PURPREP after shipment but prior to installation.
Eligible products are listed in the Exhibit for IBM RISC
System/6000 Developer Discount (Z125-4742) and orders are based on
a completed Addendum for IBM RISC System/6000 Developer Discount
(Z125-4741) that is signed by the customer.
ATTACHMENT INFORMATION
The following are related to this announcement letter:
- 391-068-1A* Z125-4740 IBM Customer Agreement Attachment for IBM
RISC System/6000 Developer Discount
- 391-068-1B* Z125-4741 IBM Customer Agreement Addendum for IBM
RISC System/6000 Developer Discount
- 391-068-1C* Z125-4742 IBM Customer Agreement Exhibit for IBM RISC
System/6000 Developer Discount
- 391-068-1D* Z125-4743 IBM Customer Agreement Certification of
Compatibility with the IBM RISC System/6000
* This item may be printed on your DAWN printer via either of the
following two methods:
1. While browsing this announcement letter on HONE, enter the
DATA BASE: ALET - IBM Internal Use Only Page: 3
fastpath name "DAWNHOST LIST" (to allow selective printing from
list) or "DAWNHOST ALL" (to print all asterisked items for this
letter) at the HONE entry prompt arrow.
2. Go to the DAWN system in your branch and choose the menu option
for Announcement Letter attachments.
DATA BASE : ALET - Page: 4
OVERVIEW DESCRIPTION
Selected hardware and software developers, and selected
ACIS-approved faculty/researcher application authors may acquire with
selected peripherals and licensed RISC System/6000 programs, under
the terms and conditions of the IBM Customer Agreement Attachment for
IBM RISC System/6000 Developer Discount at a 50% discount.
For each development machine purchased, the developer may select
RISC System/6000 peripherals at a 50% discount. In addition, for
each machine obtained, one copy of each RISC System/6000 program on
the attached list may be acquired at a 50% discount.
Components of the RISC System/6000 family eligible for this
program are provided in the attached IBM RISC System/6000 Developer
Discount Program Machines and Licensed Programs List, which has
been updated to include the following products:
- Additional RISC System/6000 processors: Models 32H, 550 and 950
- Upgrade RISC System/6000 processors: Model 320 to 32E, Model 520
to 530, Model 540 to 55S and Model 930 to 95E
- Additional peripherals: IBM 7202 Model 900 Expansion Rack, and
IBM 7235 Models 1 and 2 POWERgraphics GTO
- IBM 9334 Model 10 Drawer Expansion Unit
- IBM 9334 Model 500 Deskside Expansion Unit
- IBM 7010 Model 130 Xstation
- IBM 8515 Model 1 Color Display, and IBM 8507 Model 1 Monochrome
Display
- Additional programs, including:
- Selected modules of PROFESSIONAL CADAM (1) Version 3
- AIX XL FORTRAN Compiler/6000 Version 2 and AIX XL FORTRAN Run
Time Environment/6000 Version 2.
To obtain additional information regarding program eligibility,
contact your marketing representative.
ACIS reserves the right to select, from a nominated pool of
candidate applications, only those applications that ACIS wants
supported, and thereby selectively offer the faculty/researcher
application author the opportunity to participate in the RISC
System/6000 Developer Discount Program.
Hardware vendors will be selected based on their ability to
provide products that enhance the overall marketability of the RISC
System/6000 product family, with emphasis on products not currently
part of the RISC System/6000 offering.
(1) Registered trademark of CADAM, INC.
CUSTINFO PUBLICATIONS
Please refer to the individual announcements for publications
concerning the hardware, licensed programs, and peripherals in this
offering.
EDUCATION SUPPORT
Developers wishing to subscribe to a technical quarterly
publication, THE AIXPERT, should call 800-627-8363.
Other users may subscribe by ordering bill-of-forms number
GBOF-1199 from the Systems Library Subscription Service (SLSS).
Users without electronic access to SLSS may subscribe using SLSS
order number G120-1816 and specify GBOF-1199 as the publication
DATA BASE : ALET - Page: 5
number.
ORDERING TERMS AND CONDITIONS
- The developer must agree to use the products acquired for each
development system to develop, test, demonstrate and/or maintain
hardware and software products developed under this program for a
period of 12 months following the shipment of the IBM products.
- Upon completion of such development, the developer will provide to
IBM the IBM Customer Agreement Certification of Compatibility with
the IBM RISC System/6000 (Z125-4743), and announce and make
available a product that is compatible with the RISC System/6000.
- Products acquired under this development program are intended
primarily for development purposes and not for resale, sub-lease, or
rental for a period of 12 months following the shipment of the IBM
product.
- Up to ten Xstation terminals may be purchased with each system.
IBM reserves the right to limit the number of RISC System/6000
systems available to each development establishment.
CONTRACT INFORMATION: The RISC System/6000 Software Developer's
Agreement has been replaced with a new IBM Customer Agreement
Attachment for IBM RISC System/6000 Developer Discount, to
accommodate program changes. This new contract applies to
approved hardware and software vendors, and approved ACIS customers.
The new documents are:
- (Z125-4740) IBM Customer Agreement Attachment for IBM RISC
System/6000 Developer Discount
- (Z125-4741) IBM Customer Agreement Addendum for IBM RISC
System/6000 Developer Discount
- (Z125-4742) IBM Customer Agreement Exhibit for IBM RISC
System/6000 Developer Discount
- (Z125-4743) IBM Customer Agreement Certification of Compatibility
with the IBM RISC System/6000.
Customers currently under the terms of the Software Developer's
Discount Agreement (Z125-4505) will not be required to migrate to
the new format unless they apply and are approved for the new
hardware terms and conditions.
On request by the developer, products newly added to the RISC
System/6000 Developer Machines and Licensed Programs List may be
added to a current contract.
The following contracts are withdrawn with this announcement:
- (Z125-4505) IBM RISC SYSTEM/6000 Software Developer's Discount
Agreement
- (Z125-4506) Schedule, IBM RISC System/6000 Software Development
Program
- (Z125-4507) Attachment I, Certification of Compatibility with the
IBM RISC System/6000
- (Z125-4527) IBM RISC System/6000 Higher Education Software
Developer's Discount Agreement
DATA BASE : ALET - Page: 6
- (Z125-4528) Attachment I, Certification of Compatibility with the
IBM RISC System/6000
- (Z125-4529) IBM RISC System/6000 Software Development System
Schedule.
IBM RISC SYSTEM/6000 DEVELOPER DISCOUNT PROGRAM MACHINES AND LICENSED
PROGRAMS LIST
Eligible Hardware - 50% Discount
IBM RISC System/6000 7012 Model 320
IBM RISC System/6000 7012 Model 32H
IBM RISC System/6000 7013 Model 520
IBM RISC System/6000 7013 Model 530
IBM RISC System/6000 7013 Model 540
IBM RISC System/6000 7013 Model 550
IBM RISC System/6000 7015 Model 930
IBM RISC System/6000 7015 Model 950
IBM RISC System/6000 7016 Model 730
Eligible Model Upgrades - 50% Discount
IBM RISC System/6000 7012 Model 320 to 32E
IBM RISC System/6000 7013 Model 520 to 530
IBM RISC System/6000 7013 Model 540 to 55S
IBM RISC System/6000 7015 Model 930 to 95E
Eligible Peripherals - 50% Discount
IBM 5081 Model 16 Graphics Display
IBM 5081 Model 19 Graphics Display
IBM 6091 Model 19 Color Display
IBM 6091 Model 23 Color Display
IBM 6094 Model 10 Dials
IBM 6094 Model 20 Lighted Programmable Functional Keyboard
IBM 7202 Model 900 Expansion Rack
IBM 7203 Model 001 External Portable Disk Drive
IBM 7204 External Disk Drive Model 320
IBM 7207 Model 001 150MB External 1/4-Inch Cartridge Tape Drive
IBM 7208 Model 001 2.3GB External 8mm Tape Drive
IBM 7210 Model 001 External CD-ROM Drive
IBM 7235 Models 001, 002 POWERgraphics GTO
IBM 8503 Model 001 Personal System/2 (R) Monochrome Display
IBM 8507 Model 001 Personal System/2 Monochrome Display
IBM 8508 Model 001 Personal System/2 Monochrome Display
IBM 8512 Model 001 Personal System/2 Color Display
IBM 8513 Model 001 Personal System/2 Color Display
IBM 8514 Model 001 Personal System/2 Color Display
IBM 8515 Model 001 Personal System/2 Color Display
IBM 9334 Model 10 Drawer Expansion Unit
IBM 9334 Model 500 Deskside Expansion Unit
IBM 9348 Model 012 External 1/2-Inch 9-Track Tape Drive
IBM 7010 Model 120 Xstation
IBM 7010 Model 130 Xstation
Eligible Licensed Programs - 50% Discount
AIX Version 3 for RISC System/6000 (5756-030)
AIX Personal graPHIGS (TM) Programming Interface/6000 Version 2
(5601-230)
AIX XL FORTRAN Compiler/6000 (5601-248)
DATA BASE : ALET - Page: 7
AIX XL Pascal Run Time Environment/6000 (5601-251)
AIX Network Management/6000 (5601-253)
AIX XL Pascal Compiler/6000 (5601-254)
AIX 3278/79 Emulation/6000 (5601-256)
AIXwindows (TM) Environment/6000 (5601-257)
AIX VS COBOL Compiler/6000 (5601-258)
AIX VS COBOL Run Time Environment/6000 (5601-259)
AIX 3270 Host Connection Program/6000 (5601-260)
AIX Personal Computer Simulator/6000 (5601-263)
AIX XL FORTRAN Run Time Environment/6000 (5601-266)
AIX System Network Architecture Services/6000 (5601-287)
AIX Computer Graphics Interface Toolkit/6000 (5601-386)
AIX Xstation Manager (TM)/6000 (5601-457)
AIX Ada/6000 (5706-291)
AIX Ada Run Time Environment/6000 (5706-294)
PROFESSIONAL CADAM (1) 3D Surface Design (5756-091)
PROFESSIONAL CADAM Manufacturing System (5756-092)
PROFESSIONAL CADAM Machining Center (5756-093)
PROFESSIONAL CADAM Interactive Design (5756-094)
PROFESSIONAL CADAM Access IUE (5756-095)
PROFESSIONAL CADAM Interactive Solids Design (5756-096)
AIX XL FORTRAN Compiler/6000 Version 2 (5765-018)
AIX XL FORTRAN Run Time Environment/6000 Version 2 (5765-019)
Notes:
Developers may purchase a maximum of one of each unique
peripheral per development system. However, with Xstation
terminals, a maximum of ten per system may be purchased, and a
maximum of one display per Xstation may be purchased.
Development discounts will be applied to the eligible hardware,
licensed programs, and peripherals ordered as part of the initial
installation. Within the limitations described, peripherals,
licensed programs and hardware MESs may be ordered after the
initial purchase and receive the developer discount. However, these
additional purchases will be restricted to the terms of the
Attachment for IBM RISC System/6000 Developer Discount for a period
of 12 months.
For programs licensed under the primary license charge/annual
license charge option, the 50% discount applies to the primary
license charge only. Recurring charges, such as ESS and annual
license charge, do not qualify for the 50% discount.
Software MESs are not eligible for the 50% discount.
(1) Registered trademark of CADAM, INC.
(TM) Trademark of International Business Machines Corporation.
(R) Registered trademark of International Business Machines
Corporation.
- - - END OF PRINTOUT - - -
SOFTWARE VENDOR DEV. DISCOUNT PROG.
NOMINATION FORM DATE: ___/___/___
SYSTEM TYPE: _______________ (9370 or AS/400 or RS/6000)
For RS/6000: _______________ (ACIS or CASE or SV)
I. NOMINATING BRANCH OFFICE DATA
B/O Name and Number ___________________________________ / _______________
Address _____________________________________________________
_____________________________________________________
_____________________________________________________
Rep Name _____________________________________________________
Rep Telephone (____) ____ - _____ T/L... 8/___ - _____
Rep Node/UserID ________ / ______ Rep Serial No ______
AA Name _____________________________________________________
AA Telephone Number (____) ____ - _____ T/L... 8/___ - _____
AA Node(Userid) ________ / ______
Who from IBM is answering these questions (name, title, tele/tie,
Node/UserID?) ___________________________________________________________
_________________________________________________________________________
_________________________________________________________________________
II. SOFTWARE VENDOR DATA
Organization Name ______________________________________________________
Address ______________________________________________________
______________________________________________________
______________________________________________________
Contact ______________________________________________________
Title ______________________________________________________
Tel. No. ______________________________________________________
Establishment no. _________________ Customer no. ____________________
Current IBM Marketing Relationship: _____________________________________
(CUSTOMER, AS, IAS, IR, NONE, ETC.)
Competitive Marketing Relationship: _____________________________________
(Competitive IR, MAP, etc.)
Industry Code: __________________ SIC Code: ___________________________
End User Industry (For what industry is the application code written?)
__________________________________________________________________________
Any dispute or litigation with IBM? _____________________________________
__________________________________________________________________________
How long has this organization been in the software development
business? _______________________________________________________________
Number of employees? ____________________________________________________
Does this organization have a Marketing Staff? __________________________
How many? _____________________
Does this organization have a Support/Development staff? ________________
How many? _________________
How is support delivered (Hotlines, Info. Data Bases,
Customer Calls, Electronic Mail etc.)? __________________________________
Is there a charge for Software Maintenance Support? _____________________
How is it calculated (straight charge, % of revenue, etc.)?
----------------------------------------------------------------------------
Organization of revenue for the last two years: 1989
----------------------
1990
----------------------
Today, what % of revenue is from:
selling APPLICATION PACKAGES?
---------------------
what % from INSTALLATION SERVICES?
---------------------
what % from MODIFYING/CUSTOMIZING?
---------------------
what % from MAINTENANCE/SUPPORT?
---------------------
What is the total install base (how many customers)?
----------------------
What other business activity is the organization engaged in?
---------------------------------------------------------------------------
What % of revenue does the activity produce?
------------------------------
III. VENDOR PRODUCT DATA
Provide the name and a brief description of the available software
application(s) currently being sold or distributed by this organization:
APPLICATION NAME DESCRIPTION
------------------------- ---------------------------------------------
------------------------- ---------------------------------------------
------------------------- ---------------------------------------------
Provide the last 12 months' sales or installations and the total customer
installed base for each application described above:
APPLICATION NAME LAST 12 MOS. TOTAL INSTALLED BASE
-------------------- ------------------ -------------------------
-------------------- ------------------ -------------------------
-------------------- ------------------ -------------------------
What is the current hardware platform(s)?
---------------------------------
What is the current operating system(s)?
---------------------------------
How many systems (IBM or Competitive) have been sold in 1988/89 as a result
of this application software being available?
-----------------------------
Explain the length of the conversion schedule.
---------------------------------------------------------------------------
---------------------------------------------------------------------------
---------------------------------------------------------------------------
If this is an ACIS RS/6000 nomination, described the planned distribution
method and end user support that will be provided.
---------------------------------------------------------------------------
---------------------------------------------------------------------------
Hardware and Software required for conversion effort (specify System Type
and Model)
-----------------------------------------------------------------
---------------------------------------------------------------------------
If RS/6000, How many systems are required (MAXIMUM 10?)
-------------------
In addition to submitting a signed hardcopy of this nomination form, please
provide a development plan for the application(s) that this Vendor intends
to port and/or develop for the IBM platform. Include the following:
- Functional description of the application and a brief discussion about
this application(s) offering uniqueness.
- Estimated size of the application(s) in the lines of code.
- Hardware and software to be ordered, include HONE configurator
printout.
- Development schedule to include:
-start date
-design period
-coding period
-testing period
-finish date
-date application commercially available
- Please attach a copy of the software vendors marketing literature with
this nomination and mail to:
IBM Corporation -- HO9R1
Software Vendor Operations
4111 Northside Parkway
Atlanta, GA 30327-3098
IBM CUSTOMER AGREEMENT
ADDENDUM FOR IBM RISC SYSTEM/6000 DEVELOPER DISCOUNT
- --------------------------------------------------------------------------------
Revised Addendum (1) yes no Page of
----- ----- --- ---
Education Institution
-----
Date Attachment accepted: Hardware/Software Vendor
-----
Development Location address: IBM Customer Agreement number:
IBM Office address: Addendum number:
IBM Office number:
Number of Development Systems Customer number:
Previously Ordered (2):
-----
Type/Model or
Program Number Description Quantity Discount
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(1) IF THIS IS A REVISED ADDENDUM, (2) YOU MAY ONLY ORDER A MAXIMUM OF 10
YOU MAY ONLY ORDER DEVELOPMENT DEVELOPMENT SYSTEMS PER DEVELOPMENT
SYSTEMS DURING THE TWELVE MONTHS LOCATION. A SYSTEM CONSISTS OF AN
AFTER WE ACCEPT YOUR SIGNED IBM RISC SYSTEM/6000 PROCESSOR AND
ATTACHMENT. ELIGIBLE PRODUCTS.
Both of us agree that the complete agreement between us about this transaction
consists of 1) this Transaction Document and 2) the IBM Customer Agreement and
its Attachment for IBM RISC System/6000 Developer Discount (or any equivalent
agreement signed by both of us).
AGREED TO: AGREED TO:
Customer name: International Business Machines
Corporation
Armonk, New York 10504
By ___________________________________ By ___________________________________
Authorized signature Authorized signature
Name (type or print): Name (type or print):
Date: Date:
Z125-4741-00 5/91
IBM CUSTOMER AGREEMENT
EXHIBIT FOR IBM RISC SYSTEM/6000 DEVELOPER DISCOUNT
- --------------------------------------------------------------------------------
ELIGIBLE HARDWARE DISCOUNT
PROCESSORS:
IBM RISC System/6000 7012 Model 320 [*]
IBM RISC System/6000 7012 Model 32H [*]
IBM RISC System/6000 7013 Model 520 [*]
IBM RISC System/6000 7013 Model 530 [*]
IBM RISC System/6000 7013 Model 53H [*]
IBM RISC System/6000 7013 Model 540 [*]
IBM RISC System/6000 7013 Model 550 [*]
IBM RISC System/6000 7015 Model 930 [*]
IBM RISC System/6000 7015 Model 950 [*]
IBM RISC System/6000 7016 Model 730 [*]
MODEL CONVERSIONS:
IBM RISC System/6000 7012 Model 320 to 32E [*]
IBM RISC System/6000 7013 Model 520 to 530 [*]
IBM RISC System/6000 7013 Model 520 to 53E [*]
IBM RISC System/6000 7013 Model 520 to 55E [*]
IBM RISC System/6000 7013 Model 530 to 55E [*]
IBM RISC System/6000 7013 Model 53H to 55E [*]
IBM RISC System/6000 7013 Model 540 to 55S [*]
IBM RISC System/6000 7015 Model 930 to 95E [*]
DISPLAYS:
IBM 5081 Model 16 Graphics Display [*]
IBM 5081 Model 19 Graphics Display [*]
IBM 6091 Model 19 Color Display [*]
IBM 6091 Model 23 Color Display [*]
IBM 8503 Model 001 Personal System/2 Monochrome Display [*]
IBM 8507 Model 001 Personal System/2 Monochrome Display [*]
IBM 8508 Model 001 Personal System/2 Monochrome Display [*]
IBM 8512 Model 001 Personal System/2 Color Display [*]
IBM 8513 Model 001 Personal System/2 Color Display [*]
IBM 8514 Model 001 Personal System/2 Color Display [*]
IBM 8515 Model 001 Personal System/2 Color Display [*]
MAXIMUM QUANTITY = ONE DISPLAY UNIT PER PROCESSOR.
STORAGE MEDIA:
IBM 7203 Model 001 External Portable Disk Drive [*]
IBM 7204 External Disk Drive Model 320 [*]
IBM 7207 Model 001 150 MB External [*]
1/4-inch Cartridge Tape Drive
IBM 7208 Model 001 2.3 GB External 8mm Tape Drive [*]
IBM 7210 Model 001 External CD-ROM Drive [*]
IBM 9333 Model 10 High Performance Disk Subsystem [*]
IBM 9333 Model 500 High Performance Disk Subsystem [*]
IBM 9334 Model 10 Drawer Expansion Unit [*]
IBM 9334 Model 500 Deskside Expansion Unit [*]
IBM 9348 Model 012 External 1/2-inch 9-Track Tape Drive [*]
MAXIMUM QUANTITY = ONE OF EACH ITEM LISTED PER PROCESSOR.
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
Z125-4742-01 11/91 Page 1 of 2
ELIGIBLE HARDWARE DISCOUNT
PERIPHERALS:
IBM 6094 Model 10 Dials [*]
IBM 8094 Model 20 Lighted Programmable [*]
Functional Keyboard
IBM 7202 Model 900 Expansion Rack [*]
IBM 7235 Model 1 POWERgraphics GTO [*]
IBM 7235 Model 2 POWERgraphics GTO [*]
MAXIMUM QUANTITY = ONE OF EACH ITEM LISTED PER PROCESSOR
X-STATION:
IBM 7010 Model 120 Xstation [*]
IBM 7010 Model 130 Xstation [*]
MAXIMUM QUANTITY = 10 XSTATIONS PER PROCESSOR.
FEATURES:
All features for eligible hardware [*]
ELIGIBLE PROGRAMS DISCOUNT
5601-230 AIX Personal graPHIGS Programming Interface/6000 [*]
5601-248 AIX XL FORTRAN Compiler/6000 [*]
5601-251 AIX XL Pascal Run Time Environment/6000 [*]
5601-253 AIX Network Management/6000 [*]
5601-254 AIX XL Pascal Compiler/6000 [*]
5601-256 AIX 3278/79 Emulation/6000 [*]
5601-257 AIXwindows Environment/6000 [*]
5601-258 AIX VS COBOL Compiler/6000 [*]
5601-259 AIX VS COBOL Run Time Environment/6000 [*]
5601-260 AIX 3270 Host Connection Program/6000 [*]
5601-263 AIX Personal Computer Simulator/6000 [*]
5601-266 AIX XL FORTRAN Run Time Environment/6000 [*]
5601-287 AIX System Network Architecture Services/6000 [*]
5601-386 AIX Computer Graphics Interface Toolkit/6000 [*]
5601-457 AIX Xstation Manager/6000 [*]
5706-291 AIX Ada/6000 [*]
5706-294 AIX Ada Run Time Environment/6000 [*]
5756-011 AIX X-Windows 3270 Emulator Version 1 [*]
5756-030 AIX Version 3 for RISC System/6000 [*]
5756-091 Professional CADAM 3D Surface Design [*]
5756-092 Professional CADAM Manufacturing System [*]
5756-093 Professional CADAM Machining Center [*]
5756-094 Professional CADAM Interactive Design [*]
5756-095 Professional CADAM Access IUE [*]
5756-096 Professional CADAM Interactive Soldis Design [*]
5765-018 AIX XL FORTRAN Compiler/6000 [*]
5765-019 AIX XL FORTRAN Run Time Environment/6000 [*]
MAXIMUM QUANTITY = ONE OF EACH LICENSED PROGRAM LISTED PER PROCESSOR.
Z125-4742-01 11/91 Page 2 of 2
IBM CUSTOMER AGREEMENT
CERTIFICATION OF COMPATABILITY WITH THE IBM RISC SYSTEM/6000
______________________________________________________________________________
Name & Brief Description of Product:
Target End User Description:
Machines Required:
Programs Required:
Storage Required:
Memory ____________ Disk ____________
Commercial Availability Date:
Contact Address & Telephone Number for Prospective User:
I certify that the above product will execute on, or attach to, the IBM RISC
System/6000-TM- with the Machines, Programs, and storage requirements listed
above. I grant IBM permission to publish this information in any form.
____________________________________ ___________________________________
CUSTOMER NAME SIGNATURE
____________________________________ ___________________________________
DATE NAME & TITLE
- -TM- Trademark of International Business Machines Corporation
Z125-4743-00 5/91
IV. REVIEW & SIGNOFF
This electronic form will automatically transmit to Software Vendor
Operations (SVO). Before this nomination will be considered, this form
must be reviewed and signed by the Branch Manager and a hardcopy must be
submitted, with the above mentioned development plan and marketing
literature.
By signing the nomination form, the Branch Manager will certify that
this organization or individual is a legitimate software vendor.
The Complementary Resources Marketing Manager (CRMM) must be informed of
this nomination and acknowledges this notification by signing this
nomination form.
____________________________________ ______________________________
CRMM (Signature) Date
____________________________________
Print/Type Name
____________________________________ ______________________________
Branch Manager (Signature) Date
____________________________________
Print/Type Name
____________________________________ ______________________________
SVDDP Approval (Signature) Date
C. M. Ellet
Manager, Vendor Loan Programs
Software Vendor Operations, Atlanta, GA
03/26/1991 IBM Internal Use Only Page 4
IBM CUSTOMER AGREEMENT [Logo]
______________________________________________________________________________
Thank you for doing business with us. We are committed to providing you with
the highest quality Products and Services. If, at any time, you have any
questions or problems, or are not completely satisfied, please let us know.
Our goal is to do our best for you.
This IBM Customer Agreement (called the "Agreement") covers the major
business transactions we may do with you, including:
(A) sale of Machines;
(B) license of Programs; and
(C) provision of Services.
We also make several Options available to you concerning the Products and
Services we provide under this Agreement, such as volume discounts.
This Agreement and its applicable Attachments and Transaction Documents are
the complete agreement regarding these transactions, and replace any prior
oral or written communications between us.
By signing below for our respective Enterprises, each of us agrees to the
terms of this Agreement. Once signed, 1) any reproduction of this Agreement,
an Attachment, or Transaction Document made by reliable means (for example,
photocopy or facsimile) is considered an original and 2) all Products and
Services you order under this Agreement are subject to it.
AGREED TO: AGREED TO:
Enterprise name: INTERNATIONAL BUSINESS MACHINES CORPORATION
ARMONK, NEW YORK 10504
By ___________________________ By ___________________________________
Authorized signature Authorized signature
Name (type or print): Name (type or print):
Date: Date:
Enterprise number: Agreement number:
Enterprise address: IBM Office number:
IBM Office address:
Z125-4575-00 1/91 Page 1 of 23
IBM CUSTOMER AGREEMENT
TABLE OF CONTENTS
______________________________________________________________________________
SECTION TITLE PAGE SECTION TITLE PAGE
PART 1 - GENERAL......................3 PART 4 - PROGRAMS..................14
1.1 Definitions....................3 4.1 Grant of License............14
1.2 Agreement Structure............4 4.2 License Details.............14
1.3 Delivery.......................4 4.3 Distributed Features........15
1.4 Electronic Communications......5 4.4 Additional License Copies...15
1.5 Prices and Price Changes.......5 4.5 Program Testing.............15
1.6 Invoicing, Payment, and Taxes..6 4.6 Program Packages............15
1.7 Additional Charges.............6 4.7 Program Protection..........16
1.8 Types of Service for Machines..6 4.8 Program Services............16
1.9 Patents and Copyrights.........7 4.9 Variable-Charge Programs....16
1.10 Limitation of Liability........7 4.10 License Termination.........16
1.11 Mutual Responsibilities........8
1.12 Your Other Responsibilities....8 PART 5 - SERVICES..................17
1.13 Your Additional Rights.........9
1.14 IBM Business Partners..........9 5.1 Maintenance Services........17
1.15 Changes to the Agreement Terms.9 5.2 Continuing Support Services.18
1.16 Agreement Termination..........9 5.3 Project Support Services....18
1.17 Geographic Scope...............9 5.4 IBM Information Network and
1.18 Governing Law..................9 Other Services..............20
PART 2 - WARRANTIES..................10 PART 6 - OPTIONS...................21
2.1 The IBM Warranties............10 6.1 Volume Discounts............21
2.2 Extent of Warranty............11 6.2 Maintenance Service Options.22
2.3 Items Not Covered by Warranty.11 6.3 Payment Options.............22
6.4 Special Options.............23
PART 3 - MACHINES....................12
3.1 Title.........................12
3.2 Risk of Loss..................12
3.3 Production Status.............12
3.4 Installation..................12
3.5 Licensed Internal Code........13
Z125-4575-00 1/91 Page 2 of 23
IBM CUSTOMER AGREEMENT
PART 1 - GENERAL
______________________________________________________________________________
1.1 DEFINITIONS
CUSTOMER-SET-UP MACHINE is an IBM Machine that you set up according to
our instructions.
DATE OF INSTALLATION is the following:
1. for a Machine --
a. the business day after the day we install it or, if you defer
installation, make it available to you for installation;
b. the second business day after the end of a Customer-set-up
Machine's standard transit allowance period. We will allocate a
reasonable transit allowance period; or
c. the second business day after the arrival of a non-IBM Machine.
2. for a Program, the latest of --
a. the day after its testing period ends (this does not apply to
Program Packages);
b. 10 days after we ship it; or
c. the day, specified in a Transaction Document, on which we
authorize you to make an Additional License Copy or a copy
of a Distributed Feature.
DESIGNATED MACHINE is the Machine, that you identify to us by type/model
and serial (or plant order) number, on which you intend to use a Program
for processing. When we specify that you do not have to provide this
identification to us, the term "Designated Machine" means the single
Machine on which you may use the Program at any one time.
ENTERPRISE is any legal entity (such as a corporation) and the
subsidiaries it owns by more than 50 percent. The term "Enterprise"
applies only to the portion of the enterprise located in the United
States or Puerto Rico.
MACHINE is a machine, its features, conversions, upgrades, elements, or
accessories, or any combination of them. The term "Machine" includes an
IBM Machine and any non-IBM Machine (including other equipment) that we
may provide to you.
PRODUCT is a Machine or a Program.
PROGRAM is the following, including features and any whole or partial
copies:
1. machine-readable instructions;
2. a collection of machine-readable data, such as a data base; and
3. related materials, including documentation and listings, in any form.
The term "Program" includes an IBM Program and any non-IBM Program that
we may provide to you. The term does not include Licensed Internal Code
or Materials.
SERVICE is assistance or use of a resource (such as a network) we make
available to you.
SPECIFICATIONS is a document that provides information specific to a
Product. For a Machine, we call the document "Official Published
Specifications." For a Program, we call it "Licensed Program
Specifications" or "License Information."
SPECIFIED OPERATING ENVIRONMENT is the Machines and Programs with which
a Program is designed to operate, as described in the Program's
Specifications.
Z125-4575-00 1/91 Page 3 of 23
1.2 AGREEMENT STRUCTURE
ATTACHMENTS
Some Products and Services have terms in addition to those we specify in
this Agreement. We provide the additional terms in documents called
"Attachments" which are also part of this Agreement. For example, we
describe the additional terms of IBM Information Network Services in an
Attachment. We make the Attachments available to you for signature.
TRANSACTION DOCUMENTS
For each order you place, we will provide to you the appropriate
"Transaction Documents" that confirm the specific details of your order.
The following are examples of Transaction Documents, with examples of the
information they may contain:
1. supplements (Machine quantity and type ordered, price, estimated
shipment date, and warranty period);
2. exhibits (eligible Products by category, discount schedules, and
available contract periods);
3. addenda (selected contract-period duration, start date, and total
quantity or revenue committed);
4. statements of work (project schedule, responsibilities, and charges);
and
5. invoices (item, quantity, price, amount due, and other typical invoice
information).
CONFLICTING TERMS
If there is a conflict among the terms in the various documents those of an
Attachment prevail over those of this Agreement. The terms of a Transaction
Document prevail over those of both of these documents.
OUR ACCEPTANCE OF YOUR ORDER
A Product or Service becomes subject to this Agreement when we accept your
order. We accept your order by doing any of the following:
1. sending you a Transaction Document;
2. shipping the Product; or
3. providing the Service.
YOUR ACCEPTANCE OF ADDITIONAL TERMS
You accept the additional terms in an Attachment or Transaction Document by
doing any of the following:
1. signing the Attachment or Transaction Document;
2. using the Product or Service, or allowing others to do so; or
3. making any payment for the Product or Service.
1.3 DELIVERY
We will use our best efforts to meet your delivery requirements for
Products and Services you order, and will inform you of their status. We
pay normal transportation charges for Products we ship to you.
Z125-4575-00 1/91 Page 4 of 23
1.4 ELECTRONIC COMMUNICATIONS
Each of us may communicate with the other by electronic means. Both of us
agree to the following for all electronic communications:
1. an identification code (called a "USERID") contained in an electronic
document is legally sufficient to verify the sender's identity and the
document's authenticity;
2. an electronic document that contains a USERID is a signed writing; and
3. an electronic document, or any computer printout of it, is an original
when maintained in the normal course of business.
ELECTRONIC DATA INTERCHANGE
We may provide Electronic Data Interchange (call"EDI") Options to you.
Electronic invoicing and electronic payment are examples of these Options.
When using EDI Options, each of us agrees:
1. when a bank is involved, to pay our respective bank charges and to
promptly notify the other of any changes to the bank payment process;
and
2. to promptly notify the other of any changes to the technology, process,
or information upon which the EDI transactions are based.
We will specify respective responsibilities for the EDI Option you choose.
1.5 PRICES AND PRICE CHANGES
The following are the bases on which we may require the amount payable
for a Product or Service to be paid, with an example of each:
1. one-time (the price of a Machine);
2. recurring (a monthly charge for Maintenance Services); or
3. a combination of both (an initial charge and a monthly license charge
for a Program).
We will specify the amount and basis for the particular Product or Service.
PRICE INCREASES
We may increase recurring charges by giving you three months' written
notice. An increase applies on the first day of the applicable invoice
period on or after the effective date we specify in the notice.
We may increase one-time charges and hourly rates without notice.
However, an increase to one-time charges does not apply to you if 1) we
receive your order before the announcement date of the increase and 2)
one of the following occurs within three months after the announcement:
1. we ship you the Product;
2. with our authorization, you make an Additional License Copy of a
Program or a copy of a Distributed Feature; or
3. a Program's group-upgrade charge becomes due.
PRICE DECREASES
You receive the benefit of a decrease in charges for amounts which become
due on or after the effective date of the decrease.
Z125-4575-00 1/91 Page 5 of 23
1.6 INVOICING, PAYMENT, AND TAXES
We invoice:
1. recurring charges (other than usage charges) for a Program and for
Maintenance Services in advance for the applicable invoice period;
2. usage charges following the period in which you incur them; and
3. all other charges when or after you incur them.
For a Product with a one-time charge, payment is due on its Date of
Installation. Recurring charges for a Product begin on its Date of
Installation.
You agree to pay as we specify in the invoice. You also agree to pay
amounts equal to any applicable taxes resulting from any transaction under
this Agreement. This does not include taxes based on our net income. You
are responsible for personal property taxes for each Product from the date
we ship it to you.
1.7 ADDITIONAL CHARGES
Depending on the particular Product, Service, or circumstances, additional
charges may apply. For example, if we are required to use other than
private automobile or scheduled public transportation to provide
Maintenance Services to you, we charge an additional amount. We will notify
you in advance if these charges apply.
1.8 TYPES OF SERVICE FOR MACHINES
We provide certain types of service for a Machine to keep it in, or restore
it to, good working order during its warranty period or while it is under
Maintenance Services. The following terms apply to both warranty service
and Maintenance Services.
Depending on the Machine, the service may be 1) a "Repair" service at your
location (called "On-site") or at one of our service locations (called
"Carry-in") or 2) an "Exchange" service, either On-site or Carry-in. We
will inform you of the available types of service for a Machine.
Under Maintenance Services, you may select the type of service from those
available for the Machine. We require that a Machine and its features have
the same type of service.
We offer On-site types of service 24 hours a day, seven days a week.
Carry-in types of service are available during the normal business hours of
our service locations.
When a type of service involves the exchange of a Machine or part, the item
we replace becomes our property and the replacement becomes yours. The
replacement may not be new, but will be in good working order.
Under Carry-in service, instead of delivering the failing Machine to us, if
you prefer, you may ship it (prepaid and suitably packaged) to a location
we designate. After we have repaired or exchanged the Machine, we will
return it to you at our expense.
Under On-site Exchange service, depending on the nature of the failure, we
may repair the failing Machine at your site instead of exchanging it.
We are responsible for loss of, or damage to, your Machine while it is 1)
in our possession or 2) in transit in those cases where we are responsible
for the transportation charges.
Z125-4575-00 1/91 Page 6 of 23
You agree to:
1. obtain authorization from the owner to have us service a Machine that
you do not own;
2. where applicable, before we provide service --
a. follow the problem determination, problem analysis, and service
request procedures that we provide.
b. secure all programs, data, and funds contained in a Machine.
c. inform us of changes in a Machine's location, and
d. for a Machine with Exchange service, remove all features, parts,
options, alterations, and attachments not under our service. You
also agree to ensure that the Machine is free of any legal
obligations or restrictions that prevent its exchange;
3. be responsible for loss of, or damage to, a Machine in transit in those
cases where you are responsible for the transportation charges; and
4. on completion of Carry-in Repair service, connect a repaired Machine and
verify its operation.
1.9 PATENTS AND COPYRIGHTS
If a third party claims that a Product we provide infringes a patent or
copyright, we will defend you against that claim at our expense and pay all
costs, damages, and attorney's fees that a court finally awards, provided
that you:
1. promptly notify us in writing of the claim; and
2. allow us to control, and cooperate with us in, the defense and any
related settlement negotiations.
If such a claim is made or appears likely to be made, you agree to permit
us to enable you to continue to use the Product, or to modify or replace
it. If we determine that none of these alternatives is reasonably
available, you agree to return the Product to us on our written request.
We will then give you a credit equal to your net book value for the
Product, provided you have followed generally-accepted accounting
principles.
This is our entire obligation to you regarding any claim of infringement.
CLAIMS FOR WHICH WE ARE NOT RESPONSIBLE
We have no obligation regarding any claim based on any of the following:
1. your modification of a Product, or a Program's use in other than its
Specified Operating Environment;
2. the combination, operation, or use of a Product with any product, data,
or apparatus that we did not provide; or
3. infringement by a non-IBM Product alone, as opposed to its combination,
operation, or use as part of a system of Products that we provide to
you.
1.10 LIMITATION OF LIABILITY
Circumstances may arise where, because of a default on our part or other
liability, you are entitled to recover damages from us. In each such
instance, regardless of the basis on which you are entitled to claim
damages from us, we are liable only for:
1. payments referred to in our patent and copyright terms described above;
2. bodily injury (including death), and damage to real property and
tangible personal property; and
Z125-4575-00 1/91 Page 7 of 23
3. the amount of any other actual loss or damage, up to the greater of
$100,000 or the charges (if recurring, 12 months' charges apply) for
the Product or Service that is the subject of the claim.
This limit also applies to any of our subcontractors and Program
developers. It is the maximum for which we are collectively responsible.
ITEMS FOR WHICH WE ARE NOT LIABLE
Under no circumstances are we liable for any of the following:
1. third-party claims against you for losses or damages (other than those
under the first two items listed above);
2. loss of, or damage to, your records or data; or
3. economic consequential damages (including lost profits or savings) or
incidental damages, even if we are informed of their possibility.
1.11 MUTUAL RESPONSIBILITIES
Both of us agree that under this Agreement:
1. neither of us will use the other's trademark, trade name, or other
designation in any promotion or publication without prior written
consent;
2. all information exchanged is nonconfidential. If either of us requires
the exchange of confidential information, it will be made under a
signed confidentiality agreement;
3. each is free to enter into similar agreements with others;
4. each grants the other only the licenses specified. No other licenses
(including licenses under patents) are granted;
5. each will allow the other reasonable opportunity to comply before it
claims that the other has not met its obligations; and
6. neither of us will bring a legal action more than two years after the
cause of action arose.
1.12 YOUR OTHER RESPONSIBILITIES
You agree:
1. not to assign this Agreement or your rights under it, delegate your
obligations, or resell any Service without prior written consent. Any
attempt to do so is void;
2. to acquire Machines with the intent to use them within your Enterprise
and not for reselling, leasing, or transferring to a third party, unless
either of the following applies --
a. you are arranging lease-back financing for the Machines, or
b. you purchase them without any discount or allowance, and do not
remarket them in competition with our authorized remarketers;
3. to allow us to install mandatory engineering changes (such as those
required for safety) on a Machine. Any parts we remove become our
property;
4. that you are responsible for the results obtained from the Products and
Services;
5. to comply with all applicable government export laws and regulations;
and
6. to provide us with full, free, and safe access to your facilities for us
to fulfill our obligations. If you become aware of any unsafe conditions
or hazardous materials to which our personnel would be exposed at any of
your facilities, you agree to promptly notify us.
Z125-4575-00 1/91 Page 8 of 23
1.13 YOUR ADDITIONAL RIGHTS
You may have additional rights under certain laws (such as consumer
laws) which do not allow the exclusion of implied warranties, or the
exclusion or limitation of certain damages. If these laws apply, our
exclusions or limitations may not apply to you.
1.14 IBM BUSINESS PARTNERS
We have signed agreements with certain organizations (called "IBM
Business Partners") to promote, market, and support some of our
Products and Services. We have chosen these organizations because
of their skills and experience in a particular field.
When you order our Products or Services (marketed to you by these
organizations) under this Agreement, we confirm that we are
responsible for providing them to you under the warranties and other
terms of this Agreement. We are not responsible for 1) the actions of
these organizations, 2) any additional obligations they may have to
you, or 3) any products or services that they (and not us) may supply
to you.
1.15 CHANGES TO THE AGREEMENT TERMS
In order to maintain flexibility in our Products, Services, and
Options, we may change the terms of this Agreement by giving you
three months' written notice. However, these changes are not
retroactive. They apply, as of the effective date we specify in the
notice, only to new orders (those we receive on or after the date
of the notice) and to on-going transactions, such as licenses and
Services.
Otherwise, for a change to be valid, both of us must sign it.
Additional or different terms in any order or written communication
from you are void.
1.16 AGREEMENT TERMINATION
You may terminate this Agreement on written notice to us following the
expiration or termination of all your obligations.
Either of us may terminate this Agreement if the other does not comply
with any of its terms, provided the one who is not complying is given
written notice and reasonable time to comply.
Any terms of this Agreement which by their nature extend beyond its
termination remain in effect until fulfilled, and apply to respective
successors and assignees.
1.17 GEOGRAPHIC SCOPE
All your rights, all our obligations, and all licenses (except for
Licensed Internal Code and as specifically granted) are valid only in
the United States and Puerto Rico.
1.18 GOVERNING LAW
The laws of the State of New York govern this Agreement.
Z125-4575-00 1/91 Page 9 of 23
IBM CUSTOMER AGREEMENT
PART 2 - WARRANTIES
- --------------------------------------------------------------------------------
2.1 THE IBM WARRANTIES
WARRANTY FOR IBM MACHINES
For each IBM Machine, we warrant that it:
1. is free from defects in materials and workmanship; and
2. conforms to its Specifications.
The warranty period for a Machine is a specified, fixed period. We
calculate its expiration from the Machine's Date of Installation.
During the warranty period, we provide warranty service under the
type of service we designate for the Machine or under the alternative
service you select under Maintenance Services.
For us to provide warranty service for a feature, conversion or upgrade,
we require that the Machine on which it is installed be 1) the
designated, serial-numbered Machine and 2) at an engineering-change
level compatible with the feature, conversion, or upgrade.
During the warranty period, we manage and install engineering changes
that apply to the Machine.
If a Machine does not function as warranted during the warranty period,
we will repair or replace it without charge. If we are unable to do so,
you may return it to us and we will refund your money.
WARRANTY FOR IBM PROGRAMS
For each warranted IBM Program, we warrant that:
1. we have the right to license it; and
2. it conforms to its Specifications.
The warranty period for a Program expires when its Program Services are
no longer available.
During the warranty period, we provide warranty service, without charge,
for a Program through Program Services. Program Services are available
for a warranted Program for at least one year following its general
availability. Therefore, the duration of warranty service depends on when
you obtain your license. If, during the first year after you obtain your
license, we are unable to make the Program function as warranted, you
may return it to us and we will refund your money.
WARRANTY FOR IBM SERVICES
For each IBM Service, we warrant that we perform it:
1. in a workmanlike manner; and
2. according to its current description contained in this Agreement, an
Attachment, or a Transaction Document.
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WARRANTY FOR SYSTEMS
Where we provide Products to you as a system, we warrant that they are
compatible and can operate with one another.
WARRANTY FOR INTEGRATED SYSTEMS
For each integrated system we deliver to you under a Statement of Work
for Systems Integration Services, we warrant that it meets its Completion
Criteria as specified in the Statement of Work.
The warranty period for an integrated system is a fixed period as
specified in the Statement of Work. It begins on the date we deliver the
system to you.
If an integrated system does not function as warranted during the
warranty period, we will correct the deficiency without charge. If we
are unable to do so, you may return the system to us and we will refund
your money.
2.2 EXTENT OF WARRANTY
If a Machine is subject to federal or state consumer warranty laws, our
statement of limited warranty included with the Machine applies in place
of these Machine warranties.
Misuse, accident, modification, unsuitable physical or operating
environment, operation in other than the Specified Operating Environment,
improper maintenance by you, or failure caused by a product for which
we are not responsible may void the warranties.
THESE WARRANTIES REPLACE ALL OTHER WARRANTIES, EXPRESS OR IMPLIED,
INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE.
2.3 ITEMS NOT COVERED BY WARRANTY
We do not warrant uninterrupted or error-free operation of a Product or
Service.
We will identify IBM Products and Services that we do not warrant.
We provide non-IBM Products and Services on an "AS IS" basis. However,
non-IBM manufacturers, suppliers, or publishers may provide their own
warranties to you.
Z125-4575-00 1/91 Page 11 of 23
IBM CUSTOMER AGREEMENT
PART 3 - MACHINES
- --------------------------------------------------------------------------------
3.1 TITLE
When we accept your order, we agree to sell you the Machine described in
a Transaction Document. We transfer title to you or, if you choose, your
lessor when we ship the Machine. However, we reserve a purchase money
security interest in the Machine until we receive the amounts due. For
a feature, conversion, or upgrade involving the removal of parts which
become our property, we reserve the security interest until we receive
the amounts due and the removed parts. You agree to sign an appropriate
document to permit us to perfect our purchase money security interest.
3.2 RISK OF LOSS
We bear the risk of loss for the Machine through its Date of
Installation. Thereafter, you assume the risk.
3.3 PRODUCTION STATUS
Each Machine is manufactured from new parts, or new serviceable used
parts (which perform like new parts). In some cases, the Machine may
not be new and may have been previously installed. Regardless of the
Machine's production status, our warranty terms apply.
3.4 INSTALLATION
For the Machine to function properly, it must be installed in a suitable
physical environment. You agree to provide an environment meeting our
specified requirements for the Machine.
We design our standard installation procedures to ensure that each
Machine we install is in good working order and meets its Specifications.
We will successfully complete these procedures before we consider the
Machine installed.
You are responsible for setting up a Customer-set-up Machine (we provide
instructions to enable you to do so) and for the installation of a non-IBM
Machine.
MACHINE FEATURES, CONVERSIONS, AND UPGRADES
We sell features, conversions, and upgrades for installation only on
designated, serial-numbered Machines. You represent that you have the
permission of the owner (if you are not the owner of the Machine) and
any lien holders to 1) install features, conversions, and upgrades and
2) transfer removed parts to us.
Some of these transactions (called "Net-Priced" transactions) include
associated replacement parts. We provide these parts on an exchange
basis. All removed parts in a Net-Priced transaction become our property.
For a Net-Priced transaction, you agree to allow us to install it within
30 days of its delivery and to recover the removed parts. Otherwise, we
may terminate the transaction and you must return the feature,
conversion, or upgrade to us at your expense.
Z125-4575-00 1/91 Page 12 of 23
3.5 LICENSED INTERNAL CODE
Certain Machines we specify (called "Specific Machines") use Licensed
Internal Code (called "Code"). We own copyrights in Code. We own all
copies of Code, including all copies made from them.
We will identify each Specific Machine in a Transaction Document. If you
are the rightful possessor of a Specific Machine, we grant you a license
to use the Code (or any replacement we provide) on, or in conjunction
with, only the Specific Machine, designated by serial number, for which
the Code is provided. We license the Code to only one rightful possessor
at a time.
Under each license, we authorize you to do only the following:
1. execute the Code to enable the Specific Machine to function according
to its Specifications;
2. make a backup or archival copy of the Code (unless we make one
available for your use), provided you reproduce the copyright notice
and any other legend of ownership on the copy. You may use the
copy only to replace the original, when necessary; and
3. execute and display the Code as necessary to maintain the Specific
Machine.
You agree to acquire any replacement for, or additional copy of, Code
directly from us in accordance with our standard policies and practices.
You also agree to use that Code under these terms.
You may transfer possession of the Code to another party only with the
transfer of the Specific Machine. If you do so, you must 1) either give
the other party all your copies of the Code or destroy them, and 2) give
the other party a copy of this page with the Specific Machine's
identification information filled in below. We license the other party
when it accepts these terms by initial use of the Code. These terms
apply to all Code you acquire from any source.
Your license terminates when you no longer rightfully possess the
Specific Machine.
ACTIONS YOU MAY NOT TAKE
You agree to use the Code only as authorized above. You may not do, for
example, any of the following:
1. otherwise copy, display, transfer, adapt, modify, or distribute the
Code (electronically or otherwise), except as we may authorize in
the Specific Machine's Specifications or in writing to you;
2. reverse assemble, reverse compile, or otherwise translate the Code;
3. sublicense or assign the license for the Code; or
4. lease the Code or any copy of it.
----------------------------------------------------------------------
INFORMATION FOR SUBSEQUENT LICENSEE OF LICENSED INTERNAL CODE
This page is copied from the IBM Customer Agreement and is
provided to the subsequent licensee when Code is transferred.
The Specific Machine being transferred is identified as:
Type/Model____________ Serial Number ________________
The following definitions are provided for the subsequent
licensee of the Code:
1. "We" means International Business Machines Corporation (IBM);
2. "Transaction Document" does not apply to you. The above
Type/Model and Serial Number identify the Specific Machine
to you;
3. "You" means the subsequent licensee of the Code; and
4. "Specifications" means IBM's Official Published Specifications.
----------------------------------------------------------------------
Z125-4575-00 1/91 Page 13 of 23
[IBM LOGO] CUSTOMER AGREEMENT
PART 4 - PROGRAMS
- --------------------------------------------------------------------------------
4.1 GRANT OF LICENSE
When we accept your order, we grant you a license for the Program.
Programs are copyrighted and licensed (not sold). We do not transfer title to
Programs to you.
4.2 LICENSE DETAILS
Under each license, we authorize you to:
1. use the Program's machine-readable portion on only the Designated
Machine, unless --
a. the Designated Machine is inoperable. You may then use the
Program on a backup Machine,
b. the Designated Machine cannot assemble or compile the Program.
You may then assemble or compile it on another Machine,
c. we grant an "Installation License." You may then use the Program
on any other Machine in the same or adjoining rooms as the
Designated Machine, or
d. we grant a "Location License." You may then use the Program
on any other Machine in the same building with the same mailing
address as the Designated Machine.
If you change the Designated Machine, you agree to notify us of the
change and its date;
2. store the Program's machine-readable portion in, transmit it through,
and display it on, Machines associated with the Designated Machine;
3. do the following to support your authorized use as described above --
a. modify the Program's machine-readable instructions or data, or
merge them into another Program, and
b. make copies of the Program, provided you reproduce the copyright
notice and any other legend of ownership on each copy or partial
copy; and
4. use any portion of the Program we mark restricted (for example,
"Restricted Materials of IBM") only to --
a. resolve problems related to the use of the Program, and
b. modify the Program so that it will work together with other
products.
You agree to comply with any additional terms (for example, a usage
restriction) that a Program's Specifications may contain. We provide the
Specifications to you with the Program. For an "AS IS" Program, any
additional terms are contained in a document called "Notice of
Availability."
ACTIONS YOU MAY NOT TAKE
You agree not to do any of the following:
1. sublicense, assign, or transfer the license for any Program;
2. distribute any Program to any third party; or
3. reverse assemble, reverse compile, or otherwise translate any
Program.
Z125-4575-00 1/91 Page 14 of 23
4.3 DISTRIBUTED FEATURES
Some Programs have features (called "Distributed Features") that are
designed to work with those Programs (called "Associated Programs").
After we accept your order for a Distributed Feature, we authorize you to:
1. make a copy of the Distributed Feature and its documentation; and
2. distribute the copy to, and use it on, a machine other than the
Designated Machine of the Associated Program. You may use the copy on
only one Machine at a time. Persons using a Machine outside of your
Enterprise may use the copy only to access the Associated Program.
4.4 ADDITIONAL LICENSE COPIES
You may order additional licenses for Programs. If you prefer, for each
license we grant, rather than shipping you another copy of the Program,
we will authorize you to make an additional copy (called an "Additional
License Copy").
For some Programs, you may make a copy under a Distributed System
License Option (called a "DSLO" license). We charge less for a DSLO
license than we do for the original license (called the "Basic"
license). In return for the lesser charge, you agree to do the following
while licensed under a DSLO:
1. have a Basic license for the Program;
2. provide problem documentation and receive Program Services (if any)
only through the location of the Basic license; and
3. distribute to, and install on, the DSLO's Designated Machine, any
release, correction, or bypass that we provide for the Basic license.
4.5 PROGRAM TESTING
We provide a testing period for certain Programs to help you evaluate if
they meet your needs. The testing period for a Program starts 1) 10 days
after we ship it or 2) on the day we authorize you to make an Additional
License Copy. We will inform you of the duration of the Program's testing
period.
For the first order for each Distributed Feature, the testing period is
the same as its Associated Program.
We do not provide a testing period for a Program under a DSLO license.
4.6 PROGRAM PACKAGES
We provide certain Programs together with their own license agreements.
These Programs (called "Program Packages") are licensed under the terms
of the agreements provided with them. This Agreement's patent and
copyright terms apply to IBM Program Packages.
For a Program Package, we may specify that:
1. Additional License Copies apply. If so, these copies are subject to
the terms of the Program Package's agreement, except that you may not
transfer them; and
2. a testing period applies. If so, and you return the Program Package
to us before the end of the testing period, we will refund your
money.
If a Program Package has Distributed Features, this Agreement's terms
regarding Distributed Features apply.
Z125-4575-00 1/91 Page 15 of 23
4.7 PROGRAM PROTECTION
For each Program, you agree to:
1. if it is a data base, allow access to it only to your employees;
2. ensure that anyone who uses it (accessed either locally or remotely)
does so only for your authorized use and complies with our terms
regarding Programs; and
3. maintain records of all copies.
4.8 PROGRAM SERVICES
We provide Program Services for warranted Programs and for selected other
Programs. If we can reproduce your reported problem in the Specified
Operating Environment, we will issue defect correction information, a
restriction, or a bypass. We provide Program Services for only the
unmodified portion of a current release of a Program.
We provide Program Services 1) on an on-going basis (with at least six
months' written notice before we terminate services for a Program), 2)
until the date we specify, or 3) for a period we specify.
4.9 VARIABLE-CHARGE PROGRAMS
We may place a Machine in a Machine group. The charges for some Program
licenses depend on the group of the Designated Machine. We call these
Programs "Variable-Charge" Programs. Variable charges include graduated
charges and processor-based charges. We will specify the group for a
Machine and will inform you of any changes.
For these licenses, the following apply:
1. if you change (including upgrade or downgrade) a Designated Machine
to a Machine in another group, you may incur a group-upgrade charge
or a changed recurring charge. You agree to promptly notify us of the
date of such a change;
2. if we reassign a Designated Machine to a Machine group with different
charges, Program licenses with one-time charges due or paid before
the reassignment are not affected. Otherwise, our price change terms
apply; and
3. if a change or reassignment results in a lower charge, we do not give
credits or refunds for one-time charges already due or paid.
4.10 LICENSE TERMINATION
You may terminate the license for a Program on one month's written notice
or at any time during the Program's testing period. For some Programs, if
you terminate the license and replace that Program with another we specify,
we only require you to pay an upgrade charge.
We may terminate any license we grant in this Part if you do not meet your
obligations regarding Programs.
You agree to destroy all copies of the Program within three months after
license termination. However, you may keep a copy in your archives.
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[IBM LOGO] CUSTOMER AGREEMENT
PART 5 - SERVICES
- --------------------------------------------------------------------------------
5.1 MAINTENANCE SERVICES
You may select the type of service from those available for the Machine.
When we accept your order, we agree to service the Machine described in
a Transaction Document. Based on the type of service, we will restore
the Machine to good working order or exchange it. We may also perform
preventive maintenance, including lubrication, adjustments, and
replacement of parts. We manage and install engineering changes that
apply to the Machine.
We will inform you of the date on which Maintenance Services begin. We
may inspect the Machine within one month following that date. If the
Machine is not in an acceptable condition for service, you may 1) have
us restore it for a charge or 2) withdraw your request for Maintenance
Services and we will refund any amounts you have paid to us for its
service.
For a Machine under a usage plan, you agree to provide us with the meter
reading as of the last working day of the period that the minimum
maintenance charge covers.
We provide Maintenance Services for selected non-IBM Machines only when
they are connected to certain IBM Machines. When a type of service
involves the exchange of a non-IBM Machine, the replacement may not be
identical.
Maintenance Services do not cover accessories and certain parts, such as
frames and covers. In addition, Maintenance Services do not cover
service of a Machine damaged by misuse, accident, modification,
unsuitable physical or operating environment, improper maintenance by
you, or failure caused by a product for which we are not responsible.
ALTERNATIVE SERVICE DURING WARRANTY
For certain Machines, at any time during the warranty period, you may
select a different type of service from that which we designate for the
Machine. For example, if you prefer On-site service to Carry-in, it may
be available. We will inform you of the available types of service for
the Machine and the available alternative service periods. We provide
the alternative type of service for an additional charge. When the
alternative service ends, we will continue Maintenance Services for the
Machine under the same type of service you selected.
MAINTENANCE SERVICES TERMINATION
You may terminate Maintenance Services for a Machine on one month's
written notice to us under any of the following circumstances:
1. after it has been under Maintenance Services for at least six
months;
2. if you remove it from productive use within your Enterprise;
3. as of the effective date of an increase in Maintenance Services
charges; or
4. if you terminate coverage for a Maintenance Service Option under
our terms for 1) removal of Machine type from eligibility or 2)
increased total adjusted charges for Maintenance Services.
We may terminate Maintenance Services for a Machine on three months'
written notice, provided it has been under Maintenance Services for at
least one year.
Either of us may terminate service for any Machine if the other does not
meet its obligations concerning Maintenance Services. On termination of
service for a Machine, we will give you any applicable credit.
Z125-4575-00 1/91 Page 17 of 23
5.2 CONTINUING SUPPORT SERVICES
We provide Continuing Support Services on a contract-period basis to
assist you in such areas as improving the availability of your systems
and improving your productivity. We provide the terms specific to a
Service in an Attachment. If we make a change to the terms of an
Attachment that 1) affects your current contract period and 2) you
consider unfavorable, on your request, we will defer it until the end of
that contract period.
We will specify the eligible Products, applicable prerequisites and
minimum commitments, exit-option percents, and available contract
periods for a Service. We will also inform you periodically of any
changes. These changes apply only to orders that we confirm on or after
the effective date of the change.
When we accept your order, we will confirm the specific details of the
Service in a Transaction Document. You may select a start date for the
Service that is within three months following the effective date we
specify in the Transaction Document.
During a contract period, we may increase charges. An increase becomes
effective on the next anniversary of the start of a contract period,
following the effective date we specify in the notice. When an increase
results in a change to your total monthly charge for a Service of more
than the exit-option percent we specify, you may terminate that Service
on the effective date of the increase. Adjustment or termination charges
do not apply in this case.
You may request a change to the Services you have selected on one
month's notice. If we agree, we will confirm the change to you with
applicable adjustments in charges.
Each of us agrees to notify the other (before your current contract
period expires) if they do not intend to renew.
CONTINUING SUPPORT SERVICES TERMINATION
You may terminate a Continuing Support Service by providing us one
month's written notice upon fulfillment of any minimum commitments.
The termination of Services with contract periods longer than one year
results in adjustment charges. In this case, you agree to pay the lesser
of:
1. the difference between the total charges you paid through the
termination date and those you would have paid for the shorter
contract period;
2. the monthly charge multiplied by the applicable adjustment charge
factor; or
3. the total charges remaining to complete the contract period.
5.3 PROJECT SUPPORT SERVICES
The Project Support Services we make available to you include providing
general assistance on a technical task (such as writing programs),
providing consulting services, acting as a prime contractor to deliver
an information handling function, and providing Systems Integration
Services.
When we accept your order, we agree to provide the Services described in
the Statement of Work. We require a separate Statement of Work, signed
by both of us, for each project.
We manage the project unless the Statement of Work specifies that you
manage it. If you are responsible, then we only provide Services to
assist you.
Z125-4575-00 1/91 Page 18 of 23
The Statement of Work includes:
1. our respective responsibilities;
2. an estimated schedule which we provide for planning purposes;
3. the specific conditions, if any, (called the "Completion Criteria")
that we are required to meet to fullfill our obligations; and
4. applicable charges and any other terms.
Each of us agrees to make reasonable efforts to carry out our respective
responsibilities according to the estimated schedule. However, if
Completion Criteria are applicable, then the project is complete when we
meet those criteria.
CHANGES TO THE STATEMENT OF WORK
When both of us agree to change a Statement of Work, we will prepare a
written description of the change (called a "Change Authorization"). The
Change Authorization becomes effective when we provide it to you. It need
not be signed, unless either of us requests signature.
Any change in the Statement of Work may affect the charges, estimated
schedule, or other terms. Depending on the scope of the requested change,
we may charge you for our effort to analyze it. We will then give you a
written estimate of the charges for the analysis. We will perform the
analysis only on your written authorization.
PERSONNEL
Each of us will authorize a person to represent us during the project.
Each will 1) address all notices to the other's representative and
2) promptly notify the other in writing if this person is replaced.
Each of us is responsible for supervising and controlling only our own
personnel.
We will try to honor your requests regarding the assignment of our
personnel to your project. However, we reserve the right to determine
the assignment of our personnel.
OWNERSHIP AND LICENSE
During a project, we may deliver to you work product (called
"Materials"), such as programs, program listings, programming
tools, documentation, reports, and drawings.
The Statement of Work will specify if Materials are applicable
to the project. It will identify them as being "Type I Materials,"
"Type II Materials," or otherwise as we both agree.
Type I Materials are those, created during the project, in which you will
have all right, title, and interest (including ownership of copyright).
We will retain one copy of the Materials. You grant us 1) an irrevocable,
nonexclusive, worldwide, paid-up license to use, execute, reproduce,
display, perform, distribute (internally and externally) copies of, and
prepare derivative works based on Type I Materials and 2) the right
to authorize others to do any of the former.
Type II Materials are those in which we or third parties have all right,
title, and interest (including ownership of copyright). We will deliver
one copy of the Materials to you. We grant you an irrevocable,
nonexclusive, worldwide, paid-up license to use, execute, reproduce,
display, perform, and distribute (internally only) copies of Type II
Materials.
Each of us agrees to reproduce the copyright notice and any other
legend of ownership on any copies made under the licenses granted in
this Part.
Z125-4575-00 1/91 Page 19 of 23
PROJECT SUPPORT SERVICES TERMINATION
You may terminate a project on written notice to us. We may terminate a
project if you do not meet your obligations concerning it. Upon
termination, we will stop our work in an orderly manner as soon as
practical.
You agree to pay us for all Services we provide and any Materials we
deliver though the project's termination. Payment includes any charges
we incur in terminating subcontracts.
ADDITIONAL TERMS FOR SYSTEMS INTEGRATION SERVICES
When the Statement of Work specifies Systems Integration Services, we
provide you with an integrated system that may consist of a combination
of Products, Services, Materials, and other items. We design, develop,
deliver, install, and support the system as described in the Statement
of Work.
The Statement of Work contains the Completion Criteria. We will inform
you when we meet each of them. You then have 10 days to inform us if
you believe that we have not met the Completion Criteria.
5.4 IBM INFORMATION NETWORK AND OTHER SERVICES
IBM INFORMATION NETWORK SERVICES
The IBM Information Network (called "IBM IN") Services we make available
to you include access to, and use of, IBM IN machines, programs,
networking facilities, and associated communications and support
services. We provide the terms specific to IBM IN Services in an
Attachment.
ON-LINE SERVICES
We make on-line Services available to you, including access to certain
of our information data bases. We provide these Services to you through
a connection to IBM IN. We provide the terms specific to an on-line
Service in an Attachment. We may specify that you accept the terms of
IBM IN Services as a prerequisite to an on-line Service.
OTHER SERVICES
We make other Services available to you that are not associated with the
Services described in this Part. For these Services, we provide all the
additional terms in Attachments.
Z125-4575-00 1/91 Page 20 of 23
IBM CUSTOMER AGREEMENT
PART 6 - OPTIONS
- --------------------------------------------------------------------------------
6.1 VOLUME DISCOUNTS
We provide discounts for certain Products based on the volume of
business you agree to do with us (called your "Commitment") during
a contract period. You may make a Commitment based on either Product
quantity or revenue. Revenue for a Product is its single-unit charge,
less any discounts or allowances.
We will specify the eligible Products, their categories, available
contract periods, upper-limit percents, and adjustment charge factors.
We will inform you periodically of any changes. An unfavorable change
(and all changes related to it) applies to an existing Commitment only
if you accept it in writing. Related changes become effective at the
same time. We will also inform you if we withdraw eligible Products from
marketing. We then accept orders you place for these Products subject to
their availability.
Unless we specify otherwise, we do not discount Program upgrades,
Program features ordered separately from Programs, accessories, or
field-installed Machine features, conversions, or upgrades.
END USER CERTIFICATION
You agree to acquire the Products for use only within your Enterprise
and not for remarketing. We call this representation "End User
Certification." We provide the discounts to you based on End User
Certification.
HOW YOU MAY OBTAIN THE DISCOUNTS
If you wish to obtain the discounts, you agree to sign an Addendum
specifying your Commitment, and selected contract-period start date and
duration.
During the contract period, you may increase your Commitment or extend
the contract period (subject to our approval) by signing a revised
Addendum. If you extend, you agree to increase your Commitment so that
the new discount precent is at lease equal to your current discount
percent. Any increased discount percent applies to all eligible Products
for which Date of Installation is on or after the date we receive your
signed Addendum.
HOW WE APPLY THE DISCOUNTS
We apply the discount to the single-unit charges of eligible Products
that you acquire from us during the contract period. The charges are the
lesser of 1) those generally available at the time of acquisition or 2)
the announced charges in effect on the date we receive the initial
Addendum, subject to our price change terms described below.
We count specified Products that you acquire from our authorized
remarketers when we receive the require certification. Adjustment
charges do not apply to these Products.
We may place some Products in a dependent category with an associated
controlling category. To determine the discount percent applicable to
either category, we count quantities or revenue for only those Products
in the controlling category.
PRICE CHANGES
During a contract period, we may increase or decrease charges. We apply
your discount to the new charges as follows:
1. we establish a maximum charge (called an "Upper Limit") for each
Product in a committed category for each year of a contract period.
We determine the Upper Limit by increasing the announced charge in
effect, as of the date we receive the initial Addendum,
Z125-4575-00 1/91 Page 21 of 23
by a certain amount. We calculate this amount by multiplying that
charge by the upper-limit percent we specify at the time of your
Commitment;
2. for an increase, we apply the discount to either the increased charge
or the Upper Limit, whichever is less; and
3. for a decrease, we apply the discount to the decreased charge,
provided you accept any related changes in terms we may have made after
your Commitment. Otherwise, you may select 1) the decreased charge
without discount or 2) the discounted charge available to you before
the decrease.
ADJUSTMENT CHARGES
If you have not met your Commitment by the end of the contract period,
you agree to pay adjustment charges. The adjustment charge for each
Product is either:
1. the difference between the discounted amount we charged you and the
discounted amount which you were entitled to receive; or
2. the result of multiplying the adjustment charge factor by the number
of discount percentage points between what we gave you and what you
were entitled to receive.
We will inform you which method we use for a particular Product.
For a revenue-based Commitment, the total of the adjustment charges will
not be more than the difference between your Commitment and the actual
revenue you attained.
INTERNATIONAL DISCOUNTS
For our international customers, we provide volume discounts based
on worldwide Commitments. To allow you to participate in such a
Commitment, this Agreement may be modified by a signed international
agreement. You, your international enterprise coordinator, and we will sign
the relevant Transaction Document, unless the coordinator exempts you from
signing. That Transaction Document becomes part of this Agreement.
6.2 MAINTENANCE SERVICE OPTIONS
We provide Maintenance Service Options for certain Machines. If you wish
to obtain the benefit of lower charges available under an Option, you
agree to assume additional, specified responsibilities. We provide the
terms specific to an Option in an Attachment.
We will specify the eligible Machine types, eligible types of service,
available disount percents and contract periods, exit-option percents, and
notice requirements for termination of each contract period, as
applicable to each Option. We will also inform you periodically of any
changes. We will defer an unfavorable change (and all changes related to
it) until the end of your contract period, if you request it in writing
before the effective date of the change. Related changes become effective
at the same time.
6.3 PAYMENT OPTIONS
EXTENDED MAINTENANCE OPTION
You may select the Extended Maintenance Option (called the "EMO") for
certain Machines. Under this Option, we adjust your Maintenance Services
charges based on your prepayment of those charges during an available
contract period.
We will specify the eligible Machine types and available contract
periods. We will also inform you periodically of any changes. A change
applies only to Machines you add under this Option on or after the
effective date of the change.
2125-4575-00 1/91 Page 22 of 23
The Transaction Document will list the Machines covered and the dates of
coverage for the contract period you have selected for each Machine.
You may select EMO in addition to other Maintenance Service Options. We
then adjust the machine's EMO charge based on the applicable discounts
which you are entitled to receive under those Options. While under this
Option, you agree to maintain coverage under all the Services and other
Options on which we base the Machine's EMO charge.
For a machine not yet installed or set up, coverage starts on its Date
of Installation. For an installed Machine, coverage starts on a
mutually-agreed-to date. If applicable, the contract period includes the
machine's warranty period.
We calculate the EMO charge for a Machine using the announced Maintenance
Services charges and any applicable discounts in effect for the Machine
when coverage begins. EMO charges are not refundable after coverage has
started for the Machine.
Both of us agree that if a feature, conversion, or upgrade is installed
on a machine while it is under this Option 1) an additional charge may
apply and 2) the feature, conversion, or upgrade is subject to the
remaining portion of the contract period.
If we increase the EMO charge, the increase does not apply to a Machine
not yet installed or set up, unless we give you at least three months'
notice before its scheduled date of shipment. If we decrease the EMO charge
before coverage has begun for a Machine, you receive the benefit of the
decrease.
We will give you at least three months' notice of a machine's eligibility
for renewal. At the end of your contract period, we will continue
Maintenance Services for the Machine (if available), unless you request us
not to do so.
If you transfer coverage for a Machine to a third party, you agree to
inform that party 1) of the applicable terms of this Agreement and 2) that
it must notify us in writing of the transfer, the location of the Machine,
and acceptance of coverage. If that party does not wish to maintain
coverage under all the Services and other Options on which we base the
Machine's EMO charge, you agree to pay the transfer charge that we specify.
INVOICING OPTIONS
We make Invoicing Options available to you for certain Products and
Services to provide flexibility in payment terms. We provide the terms
specific to an Option in an Attachment.
We will specify the eligible Products, Services, and charges, and the
available contract periods, invoicing schedules, and environments which
may be covered by an Option. We will also inform you periodically of any
changes.
Together, we will estimate your requirements for the applicable Products
and Services. We use this estimate to determine the total charges that we
will invoice, distributed according to the schedule you select. These
invoiced amounts replace the applicable charges otherwise due. Depending
on the Option, the total charges may be subject to adjustments.
The Transaction Document, signed by both of us, will list the date from
which we provide the selected Option to you and its other details.
6.4 SPECIAL OPTIONS
In order to meet your specific requirements, we may provide Special
Options to you. Under these Options, we are willing to provide special
terms and tailor our processes for you. We will describe our mutual
commitments under a Special Option in a Transaction Document.
Z125-4575-00 1/91 Page 23 of 23
EXHIBIT G
BASE PERCENTAGE
FOR COMMISSIONS FOR
GROUP COUNTRIES IN GROUP COUNTRIES IN GROUP
- ----- ------------------ ------------------
- ----------------------------------------------------------------------------
CANADA [*]
- ------
Canada
EMEA-A [*]
- ------
United Kingdom
Sweden
Norway
France
Finland
Denmark
Spain
Germany
EMEA-B TO BE DETERMINED
- ------ ----------------
Italy
Hungary
Russia
Poland
ASIA/PACIFIC-A [*] ([*] if no customer set up)
- --------------
Hong Kong
Taiwan
Singapore
Thailand
Turkey
New Zealand
Australia
Malaysia
Japan
ASIA/PACIFIC-B TO BE DETERMINED
- -------------- ----------------
South Korea
* For Sales Per Project up to [*], Percentage is [*]; for amounts
between US$1-2 million, Percentage is [*]; for amounts over [*],
Percentage is [*]
If Invoiced Amounts reach the upper limit of the range of Base Percentage,
the Commissions will be calculated by applying the higher percentage to
the portion of the Invoiced Amount below such limit and the lower
percentage of the balance.
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
- 24 -
TASKS FOR ELIGIBILITY* FOR COMMISSIONS WITH RESPECT TO EACH COUNTRY LISTED IN
THIS EXHIBIT G:
CableData (or its subsidiaries or in-country distributors) shall:
A. GENERAL ACTIVITIES:
1. promote customer acquisition of CableData/IBM products and services;
2. monitor worldwide cable television market activity in the country;
3. develop a market and product strategy for CableData DDP/I products
used with IBM products and services in the country;
4. provide DDP/I advertising, sales brochures and participate in cable
television trade shows in the relevant country;
5. set up hardware and install software Eligible Products** (perform the
work necessary for installation of Commissionable Products such that
installation can be achieved in accordance with the delivery schedule);
6. provide marketing education on DDP/I products to its in-country
representatives and in-country IBM personnel;
7. provide, subject to availability of personnel, marketing assistance
to IBM for DDP/I cable television accounts (for countries in EMEA-A
group only);
8. identify cable television market opportunity(ies) in the relevant
country(ies);
B. ACCOUNT-SPECIFIC ACTIVITIES:
1. provide, as CableData deems appropriate, relevant marketing activity,
such as--
- responding to issued RFP/RFB/RFQ for DDP/I products used with IBM
products;
- monitoring and follow-up on sales leads;
- actively participating in initial and follow-on DDP/I sales calls;
- handling all contract negotiations for DDP/I products;
- monitoring country and account activity for customer requirements
for DDP/I;
- advising IBM of customer's requirements for additional IBM products
as CableData becomes aware of such requirements; and
* IBM-Sacramento (not IBM Subsidiary within the country) is responsible
for determining CableData's compliance with the tasks to maintain
eligibility for payment of Commission.
** This task not required for Commission in Canada
- 25 -
IBM [LOGO]
EXHIBIT H
AGREEMENT FOR EXCHANGE OF CONFIDENTIAL INFORMATION
- -------------------------------------------------------------------------------
The Customer (you) and International Business Machines Corporation (IBM)
agree that the following terms and conditions apply when one of the parties
(Discloser) discloses Confidential Information (Information) to the other
(Recipient) under this Agreement. You and IBM agree that our mutual objective
under this Agreement is to provide appropriate protection for information
while maintaining our ability to conduct our respective business activities.
1. ASSOCIATED CONTRACT DOCUMENTS
Each time one of the parties wishes to disclose specific information to
the other, the Discloser will issue a Supplement to this Agreement
(Supplement) before disclosure.
The Supplement will identify the Recipient's person designated to be its
Point of Contact for the disclosure and will contain the Initial and Final
Disclosure Dates. If either of these dates is omitted from the Supplement,
such date will be deemed to be the actual date of disclosure. Information
becomes subject to this Agreement on the Initial Disclosure Date. The
Supplement will also contain a nonconfidential description of the specific
information to be disclosed and any additional terms and conditions for that
Information.
The only time you and IBM are required to sign the Supplement is when it
contains additional terms and conditions. When signatures are not required,
the Recipient indicates acceptance of Information under the terms and
conditions of this Agreement by participating in the disclosure, after
receipt of the Supplement.
2. DISCLOSURE
The Discloser and the Recipient's Point of Contact will coordinate and
control the disclosure. Information will be disclosed either:
a) in writing;
b) by delivery of items;
c) by initiation of access to Information, such as may be contained in a
data base; or
d) by oral and/or visual presentation.
Information should be marked with a restrictive legend of the Discloser.
If Information is not marked with such legend or is disclosed orally, 1) the
Information will be identified as confidential at the time of disclosure and
2) the Discloser will promptly provide the Recipient with written
confirmation.
- -------------------------------------------------------------------------------
PAGE 2 IS ALSO PART OF THIS AGREEMENT. The parties acknowledge that they
have read this Agreement, understand it, and agree to be bound by its terms
and conditions. Further, they agree that the complete and exclusive statement
of the agreement between the parties relating to this subject shall consist
of this Agreement and its Supplements. This statement of the agreement
supersedes all proposals or other prior agreements, oral or written, and all
other communications between the parties relating to this subject. Any
reproduction of this Agreement by reliable means will be considered an
original of this document.
International Business Machines Customer name:
Corporation U.S. Computer Services
Armonk, New York 10504 d/b/a CableData
By By
----------------------------------- -----------------------------------
Authorized signature Authorized signature
Name (type or print): Name (type or print):
Date: January 19, 1992 Date: January 19, 1992
Agreement number: Customer number:
Strategic Alliance Agreement
IBM Branch Office number: Customer address:
2969 Prospect Park Drive
IBM Branch Office address: Rancho Cordova, CA 95670
520 Capitol Mall
Sacramento, CA 95814
Page 1 of 2
3. OBLIGATION OF CONFIDENTIALITY
The Recipient will use the same care and discretion to avoid disclosure,
publication or dissemination of information as its uses with its own similar
information that it does not wish to disclose, publish or disseminate. The
Recipient may use Information for any purpose which does not violate such
obligation of confidentiality.
The Recipient may disclose Information to:
a) its employees and employees of its parent and subsidiary companies
who have a need to know; and
b) any other party with the Discloser's prior written consent.
Before disclosure to any of the above parties, the Recipient will have a
written agreement with such party sufficient to require that party to treat
Information in accordance with this Agreement.
The Recipient may disclose Information to the extent required by law.
However, the Recipient must give the Discloser prompt notice and make a
reasonable effort to obtain a protective order.
4. CONFIDENTIALITY PERIOD
Disclosed Information continues to be subject to this Agreement for two
years following the Final Disclosure Date.
5. EXCEPTIONS
No obligation of confidentiality applies to any Information that the
Recipient:
a) already possesses without obligation of confidentiality;
b) develops independently; or
c) rightfully receives without obligation of confidentiality from a third
party.
No obligation of confidentiality applies to any Information that is, or
becomes, publicly available without breach of this Agreement.
In addition, no obligation of confidentiality applies to any ideas, concepts,
know-how, or techniques contained in Information that are related to the
Recipient's business activities (Knowledge). However, this does not give the
Recipient the right to disclose, except as set forth elsewhere in this
Agreement, 1) the source of Knowledge, 2) any financial, statistical or
personnel data or 3) the business plans of the Discloser.
Neither this Agreement nor any disclosure of Information grants the Recipient
any license under any patents or copyrights.
6. DISCLAIMERS
THE DISCLOSER PROVIDES INFORMATION ON AN "AS IS" BASIS.
The Discloser will not be liable for any damages arising out of use of
Information.
Disclosure of Information containing business plans is for planning
purposes only. The Discloser may change or cancel its plans at any time.
Therefore, use of such information is at the Recipient's own risk.
7. GENERAL
This Agreement does not require either party to disclose or to receive
Information.
Neither party may assign its rights or delegate its duties or obligations
under this Agreement without prior written consent. Any attempt to do so is
void.
The Recipient will comply with all applicable United States and foreign
export laws and regulations.
IBM may modify the terms and conditions of this Agreement by giving you
three months' written notice. Any such modification will apply only to
Information for which the Initial Disclosure Date is on or after the
effective date specified in the notice. Otherwise, only a written agreement
signed by you and IBM can modify this Agreement.
Either party may terminate this Agreement by providing one month's written
notice to the other. Any provisions of this Agreement which by their nature
extend beyond its termination will remain in effect beyond such termination
until fulfilled and will apply to either party's successors and assigns.
If there is a conflict between the terms and conditions of this Agreement
and a Supplement, those of the Supplement prevail. Except as modified by a
Supplement, the terms and conditions of this Agreement remain in full force
and effect.
The laws of the State of New York govern this Agreement.
Page 2 of 2
IBM [LOGO]
SUPPLEMENT TO AGREEMENT FOR EXCHANGE OF CONFIDENTIAL INFORMATION
- -------------------------------------------------------------------------------
Customer name and address: Reference Agreement number:
U.S. Computer Services Strategic Alliance Agreement
d/b/a CableData
2969 Prospect Park Drive Supplement number:
Rancho Cordova, CA 95670
IBM Branch Office address: IBM Branch Office number:
520 Capitol Mall
Sacramento, CA 95814 Customer number:
- -------------------------------------------------------------------------------
Discloser: Name and Address of Recipient's Point
of Contact:
IBM
-------
You
X
-------
Initial Disclosure Final Disclosure
Date: [*] Date: Termination of Strategic
------------- Alliance Agreement
------------------------------
USE THE ACTUAL DATE OF DISCLOSURE OR USE THE DATE ON WHICH THE DISCLOSURE
THE DATE ON WHICH ACCESS TO INFORMATION, IS TO BE COMPLETED OR THE DATE ON
SUCH AS MAY BE CONTAINED IN A DATA BASE, WHICH ACCESS TO INFORMATION WILL BE
IS TO BE INITIATED. INFORMATION BECOMES TERMINATED. THE CONFIDENTIALITY
SUBJECT TO THIS SUPPLEMENT AND THE PERIOD FOR INFORMATION EXTENDS FROM
REFERENCED AGREEMENT ON THIS DATE. THIS DATE.
NOTE: BOTH DATES MUST BE PROVIDED, EVEN IF THEY ARE THE SAME.
- -------------------------------------------------------------------------------
REMINDER: THE DISCLOSER MUST PROVIDE THE RECIPIENT WRITTEN CONFIRMATION
PROMPTLY AFTER A DISCLOSURE THAT 1) IS AN ORAL PRESENTATION, 2) CONSISTS OF
THE DELIVERY OF ITEMS THAT ARE NOT MARKED WITH A RESTRICTIVE LEGEND OF THE
DISCLOSER OR 3) CONSISTS OF ACCESS TO INFORMATION THAT IS NOT MARKED WITH A
RESTRICTIVE LEGEND OF THE DISCLOSER.
PAGE 2 AND 1 CONTINUATION PAGE(S) ARE ALSO PART OF THIS SUPPLEMENT. The
parties acknowledge that they have read this Supplement, understand it, and
agree to be bound by its terms and conditions. Further, they agree that this
Supplement and the referenced Agreement are the complete and exclusive
statement of the agreement between the parties, superseding all proposals or
other prior agreements, oral or written, and all communications between the
parties relating to this subject. Any reproduction of this Supplement by
reliable means will be considered an original of this document.
The only time you and IBM are required to sign this Supplement is when it
contains additional terms and conditions.
International Business Machines Customer Name:
Corporation U.S. Computer Services
Armonk, New York 10504 d/b/a CableData
By By
------------------------------------ ------------------------------------
Authorized Signature Authorized Signature
Name (type or print): Name (type or print):
Date: January 10, 1992 Date: January 10, 1992
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
Page 1
IBM [LOGO]
SUPPLEMENT TO AGREEMENT FOR EXCHANGE OF CONFIDENTIAL INFORMATION
- --------------------------------------------------------------------------------
REFERENCE AGREEMENT NUMBER: SUPPLEMENT NUMBER:
Strategic Alliance Agreement 1
- --------------------------------------------------------------------------------
CONFIDENTIAL INFORMATION:
THE FOLLOWING IS A NONCONFIDENTIAL DESCRIPTION OF INFORMATION THE DISCLOSER
WISHES TO DISCLOSE.
U.S. Computer Services' DDP/SQL and DDP/I source code, object code,
documentation, anticipated strategic business plans, anticipated targeted market
countries
ADDITIONAL TERMS AND CONDITIONS, IF ANY:
All of the above shall be held in confidence (except where information is
subject to an Exception as set forth in Paragraph 4 of the Agreement for
Exchange of Confidential Information) whether or not they are marked with a
restrictive legend.
The Recipient may use information solely for the purpose of fulfilling its
obligations under the Strategic Business Agreement between IBM and Customer
dated as of January 18, 1992.
- --------------------------------------------------------------------------------
/ / Check this box if there are continuation pages, including attached
additional terms and conditions. Also, enter the number of "Continuation
Page(s)" on page 1 of this Supplement.
- --------------------------------------------------------------------------------
Z125-4323-00 3/90 Page 2
ADDENDUM NUMBER ONE TO STRATEGIC BUSINESS AGREEMENT
THIS ADDENDUM NUMBER ONE TO STRATEGIC BUSINESS AGREEMENT (the "Addendum")
is made and entered into as of June 4, 1993 by and between U.S. COMPUTER
SERVICES, a California corporation doing business as CableData and having its
principal place of business at 2969 Prospect Park Drive, Rancho Cordova,
California 95670-6006 ("CableData"), and INTERNATIONAL BUSINESS MACHINES
CORPORATION, a New York corporation having a place of business at 400 Capitol
Mall, Sacramento, California 95814 ("IBM").
RECITALS
A. CableData and IBM are the parties to that certain Strategic Business
Agreement dated as of January 19, 1992 (the "Strategic Business Agreement")
pursuant to which they were to cooperate in the development by CableData of
certain revised versions of CableData's products that were to be compatible with
designated IBM operating systems and hardware, including IBM's UNIX-based and
POSIX-based AIX operating systems, and were to be primarily suitable for use by
customers outside the U.S. It is CableData's intent to limit the number of
platforms for its products.
B. CableData and IBM now wish to modify the Strategic Business Agreement
in order to provide for the development by CableData of certain further revised
versions of CableData's products that will be compatible with IBM RISC
System/6000 and IBM's UNIX-based and POSIX-based AIX operating systems
("Designated IBM Products"), but which are suitable for use by domestic
customers within the U.S.
NOW THEREFORE, in consideration of these premises and of the mutual
promises and conditions contained in this Addendum, IBM and CableData hereby
agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 DEFINITIONS. Except as otherwise provided herein, all
capitalized terms used in this Addendum shall have the meaning given to them in
the Strategic Business Agreement. Notwithstanding the foregoing, when used in
this Addendum, the following terms shall have the meanings provided below:
- 1 -
(a) "DDP/SQL" means Release 2.7 or lower number release of
CableData's existing proprietary cable television subscriber management
applications software.
ARTICLE II
DEVELOPMENT OF DOMESTIC DDP/SQL
Section 2.1 MUTUAL COOPERATION. The parties' respective obligations under
this Addendum shall commence on the date first written above. Each party shall
use all reasonable efforts to facilitate the completion of the development by
CableData of a version of DDP/SQL that will be compatible with Designated IBM
operating systems and hardware, including IBM's UNIX-based and POSIX-based
AIX operating systems, and will be primarily suitable for use by CableData
customers within the U.S. Specifically, the parties wish to permit CableData
to develop a set of CableData-owned system libraries and a separate
CableData-owned application software product (DDP/SQL) which can be operated on
Designated IBM Products and which is appropriate for CableData customers in the
U.S. It is also the parties' intention that when DDP/SQL and Designated IBM
Products are configured in a single system, that system will perform within
agreed and commercially reasonable specifications and parameters. If the parties
disagree on a technical issue during the development process, or if, when
DDP/SQL and any Designated IBM Products are configured in a single system, that
system does not perform within agreed and commercially reasonable specifications
and parameters, then the parties shall confer in good faith concerning such
issue or failure to perform, and shall negotiate in good faith to agree on joint
action to resolve such issue or failure. Such joint action may include
additional development efforts on terms and conditions acceptable to the
parties, in their discretion. Each party shall further use all reasonable
efforts to cooperate in good faith with the other party to achieve the
[*] objectives described herein.
Section 2.2 PORTING OF SYSTEM LIBRARIES.
(a) Both parties shall cooperate as specified in this Addendum and in
the Strategic Business Agreement to [*]. In such [*] work, the parties will
also maintain [*] Libraries with domestic standards. For the term of this
Addendum, the parties agree to cooperate in future modification of the [*].
(The parties understand that such cooperation for future matters does not
include [*].) It is the intent of the parties that such [*] will work [*]
capabilities of [*].
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
- 2 -
(b) CableData shall [*] as described in Section 2.2(a) of this
Addendum. During the [*] process and thereafter to the extent reasonably
necessary, IBM shall in its sole discretion provide the services of an
adequate number of [*] to assist CableData [*]. All such [*] shall have
appropriate skill levels with [*] experience on [*] and experience in [*]
using [*] for such purposes. The assignment of such engineers shall be to
consult with CableData on [*] issues. These activities shall be done under
the guidance and acceptance of CableData. Upon mutual agreement of the
parties, some or all of such [*] shall be assigned to work at [*] during a
portion of the [*] phase.
(c) IBM shall provide technical information with respect to [*],
including all [*] call information made publicly available.
Section 2.3 [*]. CableData shall use reasonable efforts to [*] DDP/SQL,
including necessary modifications to [*] and [*] DDP/SQL, to be capable of [*]
to be capable of operating [*] and the [*] standards using an [*].
Section 2.4 JOINT PLANNING COMMITTEE. The parties shall consult with
other on at least a quarterly basis regarding progress [*] DDP/SQL in
accordance with an agree-to [*] schedule prepared by CableData. To
facilitate such consultations and to support their mutual efforts under this
Agreement, the parties shall establish a Joint Planning Committee composed of
representatives designated by each party. This body shall meet at least once
per calendar quarter during the term of this Agreement, and more frequently
as deemed necessary by the parties. The Joint Planning Committee shall consult
on the [*] DDP/SQL [*] schedules, or other aspects of cooperation between the
parties as contemplated by this Agreement. Among the representatives to the
Joint Planning Committee designated by each party, one (1) person shall be a
[*] to speak for that party with respect to [*] matters. The designated
technical representative for CableData shall be its [*]. IBM shall notify
CableData in writing of the name of the designated technical representative
for IBM within fourteen (14) days following the execution of this Addendum by
both parties. The parties' designated representatives to the Joint Planning
Committee may be replaced at any time, by written notice of the designating
party to the other
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
- 3 -
party. The Joint Planning Committee shall meet in locations and at times
reasonably acceptable to both parties. Each party shall be responsible for its
own costs and expenses in attending and participating in meetings of the Joint
Planning Committee.
ARTICLE III
FINANCIAL MATTERS
Section 3.1 [*]. To assist CableData in financing a
portion of the costs and expenses to be incurred by CableData [*] DDP/SQL
as contemplated by this Addendum, [*]:
(a) IBM shall pay CableData an initial installment of [*] on
July 1, 1993.
(b) IBM shall pay CableData [*] each, on the first business day of
each calendar quarter, commencing on October 1, 1993, provided, however, that
IBM will continue to pay such installments only so long as the [*] referenced
in Section 2.4 is substantially being met.
(c) In the event that the parties do not enter into the further
business relationship contemplated in Section 4.1 by January 1, 1994, then
further installment payments shall be held in abeyance until such business
relationship is entered into. If no such relationship is entered into by
February 1, 1994, CableData shall repay to IBM installments previously received
under this Addendum and shall not be entitled to the remaining installments, if
any.
(d) In the event that CableData does not make an Initial Public
Disclosure (as defined Section 4.5(b)) by January 1, 1994, then further
installment payments shall be held in abeyance until such Initial Public
Disclosure is made. If such Initial Public Disclosure is not made by February
1, 1994, CableData shall repay to IBM installments previously received under
this Addendum and shall not be entitled to the remaining installments, if any.
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
- 4 -
Section 3.2 (a) OBLIGATIONS WITH REGARD TO FUNDING PROVIDED UNDER THE
STRATEGIC BUSINESS AGREEMENT. The parties acknowledge that, for purposes of
Section 3.2 of the Strategic Business Agreement, this Addendum constitutes an
agreement regarding CableData marketing in the United States of a CableData
subscriber management software product comparable in function to DDP/I on an IBM
platform and that, accordingly, pursuant to Section 3.2(a) of the Strategic
Business Agreement, all payments that would otherwise be due under Section
3.2 of the Strategic Business Agreement after the date of this Addendum are
hereby suspended. In accordance with Section 3.2 of the Strategic Business
Agreement as now modified, such payments shall continue to accrue (up to a
maximum of [*] less payments previously made under such Section 3.2 to
IBM) until the earlier of (i) the date on which IBM has invoiced an aggregate of
[*] of equipment sold (excluding sales by IBM to IBM's leasing
subsidiary and excluding sales of IBM PCs and associated software licenses for
which the IBM Central California Trading Area does not receive credit by IBM and
excluding used equipment sales by any entity) or leased, software licensed or
services provided by IBM in the United States for use with DDP/SQL on an IBM
platform or (ii) the date this Addendum or the Strategic Business Agreement
expires or terminates. If (i) is the earlier date, CableData shall not be
required to pay to IBM any amounts suspended hereunder or any other remaining
amounts due under this Addendum or Section 3.2 of the Strategic Business
Agreement. If (ii) is the earlier date, CableData shall pay to IBM the total
amount of the suspended payments hereunder; provided, however, that if this
Addendum or the Strategic Business Agreement are terminated pursuant to Section
6.2(a) due to breach by IBM, then CableData shall not be required to pay to IBM
any such amounts.
(b) OBLIGATIONS WITH REGARD TO FUNDING PROVIDED UNDER THIS ADDENDUM.
If this Addendum terminates or expires prior to the date that on which IBM has
invoiced an aggregate of [*] of equipment sold (excluding sales by IBM
to IBM's leasing subsidiary and excluding sales of IBM PCs for which the IBM
Central California Trading Area does not receive credit by IBM and excluding
used equipment sales by any entity) or leased, software licensed or services
provided by IBM in the United States for use with DDP/SQL on an IBM platform in
addition to the [*] referenced in Section 3.2(a) above, then CableData
shall pay to IBM a prorated portion of [*], which proration shall be
a percentage that is equal to the percentage by which the additional amounts
invoiced in excess of those set forth in Section 3.2(a) were short of
[*], provided, however, that if this Addendum or the Strategic Business
Agreement are terminated pursuant to Section 6.2(a) due to breach by IBM, then
CableData shall not be required to pay to IBM any such amounts.
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
- 5 -
(c) REPORTING UNDER SECTION 3.2(a)(i) AND 3.2(b). The parties
understand that sale, lease, license or service amounts in Sections 3.2 (a)(i)
and 3.2(b) are for software, hardware or services provided to the end user by
any entity, except as specifically excluded above, to the extent that IBM
invoices some entity at some point for such hardware, software or services
provided to the end-user. CableData shall periodically during the term of this
Agreement provide reports to IBM setting forth sales, leases, licenses and
services for which CableData determines should be credited under Section
3.2(a)(i) or 3.2(b). IBM shall have thirty (30) days to correct, verify or
dispute in good faith the report and the amount claimed therein.
ARTICLE IV
OTHER AREAS OF COOPERATION
Section 4.1 (a) ADDITIONAL BUSINESS RELATIONSHIP. Following the signature
of this addendum by both parties, CableData and IBM shall begin good faith
discussions for the purpose entering into, on or before December 31, 1993, an
additional business relationship applicable to the marketing of IBM products for
use with DDP/SQL.
It is expected that this business relationship will incorporate the form
and substance of an existing IBM alternate marketing channel. The choice of
such channel is at the election CableData. CableData's election is subject to
CableData's acceptance of the applicable alternate marketing channel's terms
and conditions and IBM's approval of CableData for such channel.
(b) [*]. If, at any time during the term of the Strategic Business
Agreement, IBM enters into [*] business relationship to that entered into by
the parties pursuant to Section 4.1(a) [*] (specifically, without limiting
the generality of the foregoing, any person or entity that provides
subscriber management products or [*], which is [*] the terms or conditions
provided to CableData under its business relationship with IBM, [*].
Section 4.2 IBM [*] CENTER IN SACRAMENTO. CableData shall cooperate in
assisting IBM to develop understanding of [*] in Sacramento, California.
Such cooperation by CableData shall include [*]. In addition, CableData
shall assist, [*],
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
- 6 -
[*] to customers of CableData who are actual or prospective users of DDP/SQL
by sales leads, introductions, references and such other assistance as
CableData shall determine from time to time in its discretion. In the event
IBM successfully markets such selected services and software for which
CableData is eligible to receive a fee under an additional business
relationship with IBM, IBM will still pay such fee to CableData.
Section 4.3 TECHNICAL DIRECTION AND INFORMATION. The advance notices of
new product developments and releases and forecasts of 12 to 18-month trends and
directions required pursuant to Section 4.2 of the Strategic Business Agreement
shall after the date of this Addendum also be required with respect to new
product developments and releases, and to such forecasts, by each party that its
technical representative under the Strategic Business Agreement has determined
have applicability and appropriateness to DDP/SQL. All such notices and
forecasts shall be subject to the same restrictions as otherwise apply under
Section 4.2 of the Strategic Business Agreement.
Section 4.4 INFORMATION. The evaluation of [*] with respect to
DDP/I required pursuant to Section 4.3(c) of the Strategic Business Agreement
shall after the date of this Addendum also be provided by IBM with respect to
DDP/SQL [*].
Section 4.5 MARKETING SUPPORT.
(a) [*] MARKETING MANAGER (CLIENT EXECUTIVE). Within thirty (30)
days following the date of this Addendum, either (i) IBM shall add the
primary responsibility for managing and facilitating, as required, IBM's
cooperation with CableData in marketing DDP/SQL [*] (ii) IBM shall appoint,
for a minimum of two (2) years and thereafter shall have on its staff in
local IBM offices in the Sacramento, California area during the term of this
Addendum for such time as CableData [*] DDP/SQL [*].
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
- 7 -
(b) JOINT MARKETING EFFORTS AND PUBLICITY. The parties agree that
there shall be no public dissemination or release of information regarding this
Addendum or their relationship pursuant to this Addendum until such time as
CableData shall deem appropriate. It is CableData's intent to disclose to its
User's Group at a meeting on [*] at the National Cable Television Convention
in [*], CableData's intention [*], and to disclose to such Users Group that
disclosure of the UNIX-based alternate platform vendor shall be available
within 45-60 days. It is CableData's further intention that, no later than
[*], it will disclose that the [*] (the "Initial Public Disclosure"). IBM
understands that premature release of information could be extremely
injurious to CableData. At such time as CableData shall deem appropriate for
release of information, IBM and CableData shall cooperate in preparing and
disseminating an initial press release describing their relationship pursuant
to this Addendum, and subsequent press releases concerning [*] DDP/SQL [*]
pursuant to this Addendum, as appropriate. The designated representative
appointed by each of CableData and IBM pursuant to Section 4.4(b) of the
Strategic Business Agreement to coordinate the parties' joint participation
in business and trade shows, exhibitions, and similar events, cooperative
marketing and communications with distributors and customers, shall also
coordinate such joint participation by the parties with respect to DDP/SQL.
Notwithstanding the foregoing or any other provision of this Addendum or the
Strategic Business Agreement to the contrary, neither party shall release any
press release mentioning the relationship or activities under this Addendum
during the term of the Strategic Business Agreement without the prior written
approval of the designated representative of the other. Without limiting the
generality of the foregoing sentence, IBM shall not, without the prior
written consent of CableData's designated representative, disclose the
existence or terms of the domestic relationship or activities within the U.S.
under this Addendum to any party, including without limitation any employee
or agent of CableData, not identified in writing by CableData to IBM.
Section 4.6 SALES SUPPORT.
(a) IBM shall provide reasonable training and assistance to
CableData's direct sales force in selling [*] products at
IBM's then-current list prices for such training.
(b) IBM shall further provide [*] information to
CableData from IBM's [*] Center in Sacramento.
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
- 8 -
Section 4.7 EQUIPMENT UNDER IBM RISC SYSTEM/6000 DEVELOPER DISCOUNT
PROGRAM. CableData shall be entitled to purchase [*] systems at a discount of
[*] pursuant to the terms and conditions set forth in Attachment A to this
Addendum.
Section 4.8 CURE FOR FAILURE TO ENTER INTO ADDITIONAL BUSINESS
RELATIONSHIP. Notwithstanding the provisions of Section 3.1(c), if the business
relationship is not entered into by January 1, 1994, the parties shall continue
to negotiate in good faith for up to one (1) additional month. If, during this
period, the business relationship is entered into, the payment that would have
been made on January 1, 1994, shall be paid immediately to CableData and further
installments shall be paid in accordance to the original schedule.
Section 4.9 CLONES. CableData is free to sell clones of the RISC
System/6000 not manufactured by IBM for use with DDP/SQL provided that it
mutually agrees with IBM on a structure for allowing IBM to participate in these
opportunities to a degree which is similar to IBM's participation in the porting
of DDP/SQL.
ARTICLE V
PROPRIETARY RIGHTS
Section 5.1 INCORPORATION BY REFERENCE. The terms of Sections 5.1, 5.4 and
5.5 of the Strategic Business Agreement shall apply fully to the activity
contemplated by this addendum.
Section 5.2 LICENSES.
(a) For the term of the Strategic Business Agreement, CableData
grants to IBM a non-exclusive and nontransferable license to use one (1) copy of
DDP/SQL in machine-executable code only, for IBM's internal purposes only in
connection with this Addendum and to make one (1) archival copy for back-up
purposes.
(b) IBM hereby grants to CableData, its subsidiaries and
distributors, and its and their respective customers, mediate and immediate, an
irrevocable, non-exclusive, worldwide, nontransferable, paid-up license under
all present and future IBM patents to make, have made, use, have used, lease,
license, sell and/or otherwise transfer DDP/SQL, DDP/I and DDP/IT, including
derivative works thereof, either alone or in combinations with equipment,
insofar as any
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
- 9 -
infringement of such patents would otherwise arise in whole or in part from
the performance of IBM's obligations under this Addendum.
(c) Each party grants the other party only the licenses specified. No
other licenses, including licenses under patents, are granted.
Section 5.3 CONFIDENTIALITY. The existence and terms of this Addendum
shall be deemed to be confidential and subject to the restrictions applicable
to confidential information as set forth in Section 5.3 of the Strategic
Business Agreement, which shall apply fully to the activity contemplated by
this Addendum.
ARTICLE VI
TERM AND TERMINATION
Section 6.1 TERM AND TERMINATION. This Addendum shall become effective
on the date first written above and shall continue in effect thereafter until
January 19, 1998, on which date it shall expire. Any termination of the
Strategic Business Agreement in accordance with its terms shall be deemed not
to effect a simultaneous termination of this Addendum and any termination of
this Addendum in accordance with its terms shall be deemed not to effect a
simultaneous termination of the Strategic Business Agreement, unless either
party elects otherwise.
Section 6.2 TERMINATION.
(a) TERMINATION FOR BREACH. Either party may terminate this Addendum,
effective upon dispatch of written notice of termination to the other party,
upon the breach by such other party of any of its material obligations under
this Addendum and failure to cure such breach within ninety (90) days after
receipt of notice specifying the breach. The right to terminate shall be in
addition to any other remedies available in law or equity, which remedies are
expressly retained.
If IBM terminates this Addendum under this Section 6.2(a) for breach of
this Addendum by CableData, then, on the effective date of such termination,
the provisions of Section 3.2(b) of this Addendum shall apply.
- 10 -
If CableData terminates this Addendum under this Section 6.2(a) for
breach of this Addendum by IBM, then, on the effective date of such
termination, IBM shall pay to CableData any remaining scheduled installments
that would have been due to CableData in subsequent months under Section 3.1
of this Addendum if the termination had not occurred, up to a total of
[*]. This is IBM's sole responsibility for breach.
(b) TERMINATION BY CABLEDATA FOR REASONS OTHER THAN IBM BREACH.
CableData may in its sole discretion, upon ninety (90) days' prior written
notice to IBM, terminate this Addendum at any time, without breach by IBM. On
the effective date of termination under this Section 6.2(b), CableData shall
refund to IBM all funds advanced to CableData under Section 3.1 of this
Addendum.
(c) TERMINATION BY IBM FOR REASONS OTHER THAN CABLEDATA BREACH. IBM may
in its sole discretion, upon ninety (90) days' prior written notice to
CableData, terminate this Addendum at any time, without breach by CableData.
On the effective date of termination under this Section 6.2(c), IBM shall pay
to CableData any remaining scheduled installments that would have been due to
CableData in subsequent months under Section 3.1 of this Addendum if the
termination had not occurred.
Section 6.3 EFFECT OF EXPIRATION OR TERMINATION. Except as otherwise
expressly stated in Section 6.2 of this Addendum or in the following
sentence, upon any expiration or termination of this Addendum all rights and
obligations of each party in this Addendum shall expire and be of no further
force or effect, and each party shall be entitled to retain all funds, fees
and payments that it has received from the other party under this Addendum
and prior to the effective date of such expiration or termination.
Notwithstanding the foregoing, no expiration or earlier termination of this
Agreement shall relieve either party of its rights or obligations as
described in Article V of this Addendum, which rights and obligations are
expressly intended to survive any such expiration or termination.
ARTICLE VII
GENERAL
Section 7.1 BALANCE OF STRATEGIC BUSINESS AGREEMENT UNCHANGED. Except
as expressly provided in this Addendum, all provisions, terms and conditions
of the Strategic Business Agreement shall remain unchanged and in full force
and effect.
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
- 11 -
Section 7.2 INCORPORATION BY REFERENCE. The terms of Articles V and VII
of the Strategic Business Agreement are incorporated by reference herein and
shall be deemed a part of this Addendum as fully as if set forth in their
entirety herein.
IN WITNESS WHEREOF, the parties have executed this Addendum as of the
date and year first written above.
"CABLEDATA" "IBM"
U.S. COMPUTER SERVICES, INTERNATIONAL BUSINESS
a California corporation MACHINES CORPORATION,
a New York corporation
By: /s/ James C. Castle By: /s/ W. Bernard Bowler
-------------------------- -----------------------------
James C. Castle W. Bernard Bowler
Chief Executive Officer Central California Trading Area
General Manager
- 12 -
ATTACHMENT A TO ADDENDUM
DATA BASE : ALET - PAGE: 1
- ------------------------------------------------------------------------------
NUMBER 392-216
DATE 920922
CATEGORY GD00, GD70
TYPE Marketing
TITLE IBM RISC SYSTEM/6000 DEVELOPER DISCOUNT PROGRAM MODIFICATION
CORRECTN (CORRECTED ON SEPTEMBER 25, 1992)
In the title, the word "Promotion" has been changed to
"Program".
ABSTRACT The IBM RISC System/6000 (R) Developer Discount Program
has been modified again. This document supersedes the
following IBM Marketing Announcements:
- 391-068, dated May 14, 1991
- 391-156, dated October 2, 1991
- 391-201, dated November 26, 1991
- 392-017, dated January 21, 1992
- 392-055, dated March 17, 1992
- 392-081, dated April 21, 1992.
Effective immediately, the IBM Customer Agreement (ICA)
Exhibit for the IBM RISC System/6000 Developer Discount
(Z125-4742) has been withdrawn.
Products eligible under this program are listed in the
attached IBM RISC System/6000 Developer Discount Program's
Machines and Licensed Programs list, which has been updated to
include the following products:
Processors:
- IBM RISC System/6000 7013 Model 580
- IBM RISC System/6000 7015 Model 980
- IBM 7245 Power Visualization System Models 001, 002, 003,
and 004.
Model Conversions:
- IBM RISC System/6000 Model 7013 Model 53H to 58F
- IBM RISC System/6000 Model 7013 Model 550 to 58F
- IBM RISC System/6000 Model 7013 Model 560 to 58F
- IBM RISC System/6000 Model 7015 Model 930 to 98E
- IBM RISC System/6000 Model 7015 Model 950 to 98E
- IBM RISC System/6000 Model 7015 Model 95E to 98E
- IBM RISC System/6000 Model 7015 Model 970 to 98E
- IBM RISC System/6000 Model 7015 Model 97E to 98E
Displays:
- IBM 1091 Model O51 Display.
Storage Media:
- IBM 7204 Model 001 SCSI Disk Drive
- IBM 7206 Model 001 Tape Drive
- IBM 7207 Model 012 Tape Drive
- IBM 7208 Model 011 Tape Drive
- IBM 7209 Model 001 Optical Disk Drive.
Peripherals:
- IBM 7246 Model 001 Video Controller
Eligible Programs:
DATA BASE : ALET - PAGE: 2
- Encina Server for AIX/6000 (TM) (5696-240)
- Encina Structured File Service for AIX/6000 (5696-237)
- Encina Monitor for AIX/6000 (5696-239)
- Encina Peer-to-Peer Executive for AIX/6000 (5696-238)
- Encina Peer-to-Peer Gateway for AIX/6000 (5696-347)
- AIX (R) Visualization Data Explorer/6000 (5756-057)
- AIX High-Availability Cluster Multi-Processing/6000
(5765-111)
- AIX DCE Base/6000 (5765-117)
- AIX DCE Security Server/6000 (5765-118)
- AIX DCE Cell Directory Server/6000 (5765-119)
- AIX DCE Enhanced File Server/6000 (5765-121).
This will be the last dedicated IBM Marketing
Announcement to modify the list of products available through
this program. In the future, customers should contact
marketing representatives to determine new product eligibility.
No other changes have been made to the existing terms
and conditions of this program, which is described below in
its entirety.
The RISC System/6000 Developer Discount Program
provides eligible customers with the opportunity to acquire
workstations, AIX Development Toolkits, selected peripherals,
and licensed RISC System/6000 programs at a substantial
discount. Eligible customers include selected hardware and
software vendors, and selected IBM Academic Information
Systems (ACIS) application authors.
No other discount or promotional offering can be
combined with this program. IBM reservers the right to modify
or withdraw this offering at any time.
(R) Registered trademark of International Business Machines
Corporation.
(TM) Trademark of International Business Machines Corporation.
PRODNO 7013 7208 5696-240 5696-347 5765-118
7015 7209 5696-237 5756-057 5765-119
7204 1091 5696-239 5765-111 5765-121
7206 7246 5696-238 5765-117
DATA BASE : ALET - IBM INTERNAL USE ONLY PAGE: 3
IMKTG MARKETING INFORMATION
This program is intended to increase the availability of quality
products by providing an attractively priced RISC System/6000
development offering to selected hardware and software vendors, and
selected ACIS application authors.
In the future, products will be added to the program based on the
following guidelines:
- The product must be eligible for a Demonstration Discount of [*];
application programs eligible for a Demonstration Discount,
however, do not qualify for the Developer Discount.
- A hardware product must attach to the RISC System/6000. A
software product must be able to run on the RISC System/6000.
MARKETING CHANNELS
- IBM US -- Direct
MARKETING ACTION REQUIRED
Marketing representatives should become familiar with this
program and encourage the participation of qualifying developers.
Only products that can be ordered under contract number 44871 are
eligible for a developer's discount.
If you have questions on information contained in this document,
send a PROFS (R) note to ATLVM1(SVDDP).
IADMIN ADMINISTRATIVE INFORMATION
PROGRAM ELIGIBILITY
Customers must be approved by Software Vendor Operations. Approvals
will be limited to US-based developers who agree to develop and market
(or make available) RISC System/6000 hardware or software products.
To initiate a request for a Developer Discount, submit a
completed RS6000SV form, which is available on AEFORMS. For
additional information, send a PROFS note to ATLVM1(SVDDP).
CONTRACT ADMINISTRATION
Each new approved developer must sign the IBM Customer Agreement
Attachment for IBM RISC System/6000 Developer Discount (Z125-4740),
and the IBM Customer Agreement Addendum for the IBM RISC System/6000
Developer Discount (Z125-4741). Upon completion of development, the
developer must sign the IBM Customer Agreement Certification of
Compatibility with the IBM RISC System/6000 (Z125-4743).
ORDERING INFORMATION
When ordering the eligible products under this program, follow
the normal ordering instructions and use contract number 44871.
This special contract number will enable the program orders to be
processed at the stated discount. If the special contract number was
omitted at order entry, add it by using MODIFY prior to shipment or
PURPREP after shipment but prior to installation.
Orders are based on a completed Addendum for IBM RISC System/6000
Developer Discount (Z125-4741) that is signed by the customer.
ATTACHMENT INFORMATION
The following are related to this announcement letter:
- 392-216-1A* Z125-4740, IBM Customer Agreement Attachment for IBM
RISC System/6000 Developer Discount
- 392-216-1B* Z125-4741, IBM Customer Agreement Addendum for IBM
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
DATA BASE : ALET - IBM INTERNAL USE ONLY PAGE: 4
RISC System/6000 Developer Discount
- 392-216-1C* Z125-4743, IBM Customer Agreement Certification of
Compatibility with the IBM RISC System/6000
* This item may be printed on your 3820 printer via the
following method:
- While browsing this announcement letter on HONE, enter the
fastpath name "DAWNHOST LIST" (to allow selective printing from
list) or "DAWNHOST ALL" (to print all asterisked items for this
letter) at the HONE entry prompt arrow.
DATA BASE : ALET - PAGE: 5
OVERVIEW ADDITIONAL INFORMATION
For each development machine purchased, the developer may select RISC
System/6000 peripherals at a 50% discount. In addition, for each
machine obtained, one copy of each RISC System/6000 program on the
attached list may be acquired at a 50% discount.
ACIS reserves the right to select, from a nominated pool of
candidate applications, only those applications that ACIS wants
supported, and thereby selectively offers the faculty/researcher
application author the opportunity to participate in the RISC
System/6000 Developer Discount Program.
Hardware vendors will be selected based on their ability to
provide products that enhance the overall marketability of the RISC
System/6000 product family, with emphasis on products not currently
part of the RISC System/6000 offering.
CUSTINFO PUBLICATIONS
Refer to the individual announcements for publications concerning
the hardware, licensed programs, and peripherals in this offering.
EDUCATION SUPPORT
Developers wishing to subscribe to a technical quarterly
publication, THE AIXPERT, should call 800-627-8363.
Other users may subscribe by ordering bill-of-forms number
GBOF-1199 from the Systems Library Subscription Service (SLSS). Users
without electronic access to SLSS may subscribe using SLSS order
number G120-1816 and specify GBOF-1199 as the publication number.
ORDERING TERMS AND CONDITIONS
- An approved developer must sign the ICA and its Attachment for
IBM RISC System/6000 Developer Discount (Z125-4740), along with
the ICA Addendum for the IBM RISC System/6000 Developer Discount
(Z125-4741).
- The developer must agree to use the products acquired for each
development system to develop, test, demonstrate and/or maintain
hardware and software products developed under this program for a
period of 12 months following the shipment of the IBM products.
- Upon completion of such development, the developer will provide
to IBM the IBM Customer Agreement Certification of Compatibility
with the IBM RISC System/6000 (Z125-4743), and announce and make
available a product that is compatible with the RISC System/6000.
- Developers who have completed development of their RISC
System/6000-compatible product and have submitted the required
Certification of Compatibility (Z125-4743) to IBM have an
additional 12 months to acquire eligible products at a discount
for their installed development systems. These products include
only model conversions, peripherals and programs eligible for a
developer discount.
- Products acquired under this development program are intended
primarily for development purposes and not for resale, sub-lease,
or rental for a period of 12 months following the shipment of the
IBM product.
- A purchase limit of ten RISC System/6000 systems exists per
development establishment. Up to ten Xstation terminals may be
DATA BASE : ALET - PAGE: 6
purchased with each system.
- On request by the developer, newly announced products eligible
for a developer's discount may be added to a current contract.
- IBM reserves the right to limit the number of RISC System/6000
systems available to each development establishment.
IBM RISC SYSTEM/6000 DEVELOPER DISCOUNT MACHINES AND LICENSED
PROGRAMS
The following hardware and licensed programs are eligible for a 50%
discount:
ELIGIBLE HARDWARE
Processors:
IBM RISC System/6000 7011 Model 220
IBM RISC System/6000 7011 Model 22G
IBM RISC System/6000 7011 Model 22W
IBM RISC System/6000 7012 Model 32H
IBM RISC System/6000 7012 Model 340
IBM RISC System/6000 7012 Model 350
IBM RISC System/6000 7013 Model 52H
IBM RISC System/6000 7013 Model 53H
IBM RISC System/6000 7013 Model 550
IBM RISC System/6000 7013 Model 560
IBM RISC System/6000 7013 Model 580
IBM RISC System/6000 7015 Model 950
IBM RISC System/6000 7015 Model 970
IBM RISC System/6000 7015 Model 980
IBM 7245 Power Visualization System Models 001,
002, 003, and 004
Model Conversions:
IBM RISC System/6000 7012 Model 320 to 32E
IBM RISC System/6000 7013 Model 520 to 530
IBM RISC System/6000 7013 Model 520 to 53E
IBM RISC System/6000 7013 Model 520 to 55E
IBM RISC System/6000 7013 Model 530 to 55E
IBM RISC System/6000 7013 Model 530 to 56F
IBM RISC System/6000 7013 Model 53H to 55E
IBM RISC System/6000 7013 Model 53H to 56F
IBM RISC System/6000 7013 Model 53H to 58F
IBM RISC System/6000 7013 Model 540 to 55S
IBM RISC System/6000 7013 Model 550 to 56F
ELIGIBLE HARDWARE
Model Conversions:
IBM RISC System/6000 7013 Model 550 to 58F
IBM RISC System/6000 7013 Model 560 to 58F
IBM RISC System/6000 7015 Model 930 to 97E
IBM RISC System/6000 7015 Model 930 to 98E
IBM RISC System/6000 7015 Model 950 to 97E
IBM RISC System/6000 7015 Model 950 to 98E
IBM RISC System/6000 7015 Model 95E to 97E
IBM RISC System/6000 7015 Model 95E to 98E
IBM RISC System/6000 7015 Model 970 to 98E
IBM RISC System/6000 7015 Model 97E to 98E
Displays:
DATA BASE : ALET - PAGE: 7
IBM 1091 Model 051 Display
IBM 5081 Model 16 Graphics Display
IBM 5081 Model 19 Graphics Display
IBM 6091 Model 19 Color Display
IBM 6091 Model 16 Color Display
IBM 6091 Model 23 Color Display
IBM 8507 Model 001 Personal System/2 (R)
Monochrome Display
IBM 8508 Model 001 Personal System/2 Monochrome
Display
IBM 8512 Model 001 Personal System/2 Color
Display
IBM 8513 Model 001 Personal System/2 Color
Display
IBM 8514 Model 001 Personal System/2 Color
Display
IBM RISC SYSTEM/6000 DEVELOPER DISCOUNT MACHINES AND LICENSED
PROGRAMS
CONT'D.
ELIGIBLE HARDWARE
Displays:
IBM 8515 Model 021 Personal System/2 Color
Display
IBM 8517 Model 001 Color Display
IBM 8518 Model 001 Color Display
Maximum Quantity = one display unit per processor.
Storage Media:
IBM 7203 Model 001 External Portable Disk Drive
IBM 7204 Model 001 SCSI Disk Drive
IBM 7204 External Disk Drive Model 320
IBM 7206 Model 001 Tape Drive
IBM 7207 Model 001 150 MB External 1/4-Inch
Cartridge Tape Drive
IBM 7207 Model 011 525 MB External 1/4-Inch
Cartridge Tape Drive
IBM 7207 Model 012 Tape Drive
IBM 7208 Model 001 2.3 GB External 8mm Tape Drive
IBM 7208 Model 011 Tape Drive
IBM 7209 Model 001 Optical Disk Drive
IBM 7210 Model 001 External CD-ROM Drive
IBM 9333 Model 10 High-Performance Disk
Subsystem
IBM 9333 Model 500 High-Performance Disk
Subsystem
IBM 9334 Model 10 Drawer Expansion Unit
IBM 9334 Model 500 Deskside Expansion Unit
IBM 9348 Model 012 External 1/2-Inch, 9-Track Tape
Drive
Maximum Quantity = one of each item listed per processor.
Peripherals:
IBM 6093 Model 11 Cursorpad
IBM 6093 Model 12 Tablet
DATA BASE : ALET - PAGE: 8
IBM 6094 Model 10 Dials
IBM 6094 Model 20 Lighted Programmable
Functional Keyboard
IBM 6097 Model 2A Screen Printer
IBM 6097 Model 2B Screen Printer
IBM 6180 Model 1 Color Plotter
IBM 6180 Model 2 Color Plotter
IBM 6184 Model 1 Color Plotter
IBM 6185 Model 1 Color Plotter
IBM 6185 Model 2 Color Plotter
IBM 7202 Model 900 Expansion Rack
IBM 7235 Model 1 POWERgraphics GTO
IBM 7235 Model 2 POWERgraphics GTO
IBM 7246 Model 001 Video Controller
Maximum Quantity = one of each item listed per processor.
Xstation:
IBM 7010 Model 120 Xstation
IBM 7010 Model 130 Xstation
Maximum Quantity = 10 Xstations per processor.
Features:
All features for eligible hardware
ELIGIBLE LICENSED PROGRAMS
Program
Number Program Name
5601-230 AIX Personal graPHIGS (TM) Programming
Interface/6000
5601-248 AIX XL FORTRAN Compiler/6000
5601-251 AIX XL Pascal Run Time Environment/6000
5601-253 AIX Network Management/6000
5601-254 AIX XL Pascal Compiler/6000
5601-256 AIX 3278/79 Emulation/6000
5601-257 AIXwindows (R) Environment/6000
5601-258 AIX VS COBOL Compiler/6000
5601-259 AIX VS COBOL Run Time Environment/6000
5601-260 AIX 3270 Host Connection Program/6000
5601-263 AIX Personal Computer Simulator/6000
5601-266 AIX XL FORTRAN Run Time Environment/6000
5601-287 AIX System Network Architecture Services/6000
5601-386 AIX Computer Graphics Interface Toolkit/6000
5601-457 AIX Xstation Manager (TM)/6000
5696-037 AIX Software Development Environment (SDE)
Workbench/6000
5696-108 AIX InfoCrafter (TM) Composer/6000
5696-137 AIX Software Development Environment (SDE)
Integrator/6000
5696-236 NetWare for AIX/6000 from IBM v3.11
5696-237 Encina Structured File Service for AIX/6000
5696-238 Encina Peer-to-Peer Executive for AIX/6000
5696-239 Encina Monitor for AIX/6000
5696-240 Encina Server for AIX/6000
5696-347 Encina Peer-to-Peer Gateway for AIX/6000
5706-291 AIX Ada/6000
DATA BASE : ALET - PAGE: 9
5706-294 AIX Ada Run Time Environment/6000
5756-011 AIX X-Windows 3270 Emulator Version 1
5756-027 AIXwindows Interface Composer/6000
5756-030 AIX Version 3 for RISC System/6000
5756-057 AIX Visualization Data Explorer/6000
5756-091 Professional CADAM (1) 3D Surface Design
5756-092 Professional CADAM Manufacturing System
5756-093 Professional CADAM Machining Center
5756-094 Professional CADAM Interactive Design
5756-095 Professional CADAM Access IUE (2)
5756-096 Professional CADAM Interactive Solids Design (2)
5765-004 AIX Graphics Plotting System/6000
5765-005 AIX Graphics File Translator/6000
5765-018 AIX XL FORTRAN Compiler/6000
5765-019 AIX XL FORTRAN Run Time Environment/6000
5765-035 AIX XL C+ +Compiler/6000
5765-037 AIX MVS Library Connector/6000
5765-039 AIX Configuration Management Version Control
Server/6000
5765-069 AIX Configuration Management Version Control
Client/6000
5765-077 AIX NetView (R)/6000
5765-111 AIX High-Availability Cluster
Multi-Processing/6000 (HACMP/6000)
5765-117 AIX DCE Base/6000
5765-118 AIX DCE Security Server/6000
5765-119 AIX DCE Cell Directory Server/6000
5765-121 AIX DCE Enhanced File Server/6000
(1) PROFESSIONAL CADAM is a trademark of Dassault Systemes of
America licensed to IBM Corporation.
(2) IUE and Interactive Solids Design are trademarks of
Dassault Systemes of America.
Maximum Quantity = one of each licensed program listed per
processor.
Notes: Developers may purchase a maximum of
one of each unique peripheral per development system. However,
with Xstation terminals, a maximum of ten per system may be
purchased, and a maximum of one display per Xstation may be
purchased.
Development discounts will be applied to the eligible
hardware, licensed programs, and peripherals ordered as part of
the initial installation. Within the limitations described,
peripherals, licensed programs and hardware MESs may be ordered
after the initial purchase and receive the developer discount.
However, these additional purchases will be restricted to the
terms of the Attachment for IBM RISC System/6000 Developer
Discount.
For programs licensed under the primary license
charge/annual license charge option, the 50% discount applies
to the primary license charge only. Recurring charges, such as
ESS and annual license charge, do not qualify for the 50%
discount.
Software MESs are not eligible for the 50% discount.
- - - END OF PRINTOUT - - -
[LETTERHEAD]
June 4, 1993
Mr. W. Bernard Bowler
Central California Trading Area
General Manager
International Business Machines Corporation
400 Capitol Mall
Sacramento, California 95814
Dear Bernard,
In connection with the Addendum Number One to Strategic Business Agreement by
and between International Business Machines Corporation ("IBM") and U.S.
Computer Services ("CableData") entered into on the date of this letter (the
"Addendum"), this letter confirms that for the term of the Addendum [*].
Please confirm that this letter correctly sets forth the agreement between us
on this subject by signing the enclosed copy of this letter where indicated
below and returning it to me.
Sincerely,
/s/ James C. Castle
ACCEPTED AND AGREED TO BY:
INTERNATIONAL BUSINESS MACHINES CORPORATION
By: /s/ W. Bernard Bowler
---------------------------------
W. Bernard Bowler
Central California Trading Area
General Manager
Date:
-------------------------------
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
EXHIBIT A TO LETTER DATED JUNE 4, 1993
[*]
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
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SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
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*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
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*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
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*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
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*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
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*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
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*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
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*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
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SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
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SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
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SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
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[LETTERHEAD]
January 19, 1992
Mr. Eric Jungemann
Senior Vice President
U.S. COMPUTER SERVICES
d/b/a CABLEDATA
2969 Prospect Park Drive
Rancho Cordova, CA 95670
Dear Eric:
Re: RISC System/6000 Developer Discount and
RISC System/6000 Internal Use Discount
---------------------------------------
This is to confirm and agree that, in order to qualify for the RISC System/6000
Developer Discount Program set forth in Attachment F-2 of the Strategic Business
Agreement dated January 19, 1992 between our companies, [*].
In addition, we agree that the terms and conditions set forth in such Attachment
F-2 of the Strategic Business Agreement will, as to CableData, not be modified
by IBM for a [*].
This is to further confirm and agree that, for a period of [*] from
today's date, IBM will offer to sell to CableData for CableData internal
use, [*].
Sincerely,
/s/John R. Poland
John R. Poland
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.
[LETTERHEAD]
January 19, 1992
Mr. Jerry Knapp
President
U.S. COMPUTER SERVICES
d/b/a CABLEDATA
2969 Prospect Park Drive
Rancho Cordova, CA 95670
Dear Jerry:
This is to confirm and agree that the business relationship contemplated by the
Strategic Business Agreement between IBM and CableData is for the international
market and that we understand CableData has no current plans for releasing a DDP
product in the U.S. on an IBM platform. You have informed us and IBM
understands that significant harm to the relationship between CableData and IBM
may result if its sales force solicits CableData's U.S. customers to put
pressure on CableData to release a DDP/I or similar product on an IBM platform
in the U.S., and we will conduct ourselves accordingly.
Sincerely,
/s/John R. Poland
John R. Poland
[LETTERHEAD]
January 19, 1992
Mr. John R. Poland
General Manager
INTERNATIONAL BUSINESS MACHINES CORPORATION
520 Capitol Mall
Sacramento, CA 95814
Dear John,
Re: STRATEGIC BUSINESS AGREEMENT
In connection with the Strategic Business Agreement between International
Business Machines Corporation (IBM) and U.S. Computer Services (CableData)
entered into on the date of this letter (the "Agreement"), this letter
confirms [*]. The governing law and consent to jurisdiction provisions of
Section 7.4 of the Agreement are incorporated into and apply to this letter
agreement as if set forth herein in their entirety. Please confirm that this
letter correctly sets forth the agreement between us on this subject by
signing the enclosed copy of this letter where indicated below and returning
it to me.
Sincerely,
/s/Eric Jungemann
Eric Jungemann
ACCEPTED AND AGREED TO BY:
INTERNATIONAL BUSINESS MACHINES CORPORATION
By: /s/Eric Jungemann /s/John R. Poland
----------------------------------------
Title: Sr. VP General Manager
-------------------------------------
Date: 1-19-92
--------------------------------------
*PORTIONS OF THIS EXHIBIT HAVE BEEN OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION PURSUANT TO A CONFIDENTIAL TREATMENT
REQUEST.