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[IBM LOGO]
EXHIBIT 10.1
IBM WORLD TRADE CORPORATION
Old Orchard Road, Armonk, New York 10504, USA
(hereinafter IBM)
Amended Agreement for Solution Delivery
between IBM and
Bank Access 24 Contract Nr.: SDAHUN94003
1023 Budapest Amendment Nr.: 8
Zsigmond ter 10 Total Price at least DM 28,792,484
(hereinafter "Customer") (see Note 1 below)
ESTIMATED SOLUTION DELIVERY DATE:
October 1994 through March 1998 for Delivery, through March 2004 for Maintenance
ELEMENTS SPECIFIED
_X IBM Products
_X IBM Licensed Programs
_X Professional Services
_X Foreign Trade Services
_X Non-IBM Products
APPLICABLE CONDITIONS:
1. Solution Delivery Agreement Conditions (see pages 2-5)
2. Delivery forecast (for information purposes only)
3. Financial conditions for an early termination of the project
4. Attached Agreements:
APPENDIX A: Loan Agreement (including list of loan equipment)
APPENDIX B: Foreign Trade Assignment
APPENDIX B1: Foreign Trade Services - Poland
APPENDIX C: Terms and Conditions for Purchase and Supplement
APPENDIX D: Terms and Conditions for IBM Licensed Programs and Supplement
APPENDIX E: Terms and Conditions for IBM System Service and Order for IBM
Machine Service
APPENDIX F: Terms and Conditions for Non-IBM Products
APPENDIX G: Special Terms and Conditions for Delivery in Poland
APPENDIX H: Ordering and Delivery Process
The Customer acknowledges to have received and read all the contractual
conditions included in, and/or referred to, in this Solution Delivery Agreement
and its Appendices. This Solution Delivery Agreement is signed by the Customer
and accepted by IBM when signed by their authorized representatives. The
Customer acknowledges and accepts that IBM WTC is hereby assigning to IBM
Hungary resp. Poland all rights and obligations IBM WTC has under Appendices E
(Terms and Conditions for IBM System Service) and Appendix B, B1 (Foreign Trade
Assignment resp. Services) hereof. The countersignature of IBM may be replaced
by a written confirmation by IBM Central Europe & Russia Inc. that IBM has
accepted this Solution Delivery Agreement.
According to the terms of this Solution Delivery Agreement IBM retains title of
each ATM until fulfillment of all payment obligations for the delivery of that
ATM. IBM acknowledges that Bank Access 24 has assigned purchasing rights to
hardware and software licenses to HFT who thereby acquire title to the machines
as soon as they have been paid for and shipped. All other obligations remain
with Bank Access 24.
Note 1. With effect from the date of signature of Amendment Nr. 3 all prices in
this Agreement for goods and services subsequently delivered shall be
calculated in USD, converted at the rate of 1.58 DM = 1 USD.
Bank Access 24 IBM World Trade
Corporation
signed: /s/ /s/
- -------------------------------- --------------------------------
(for and on behalf of)
April 17, 1996 29th April 1995
- -------------------------------- --------------------------------
(Date) (Date)
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I. SOLUTION DELIVERY AGREEMENT CONDITIONS:
PREAMBLE
WHEREAS the Customer intends to create a national network of Automatic Teller
Machines (ATM's) throughout Hungary, offering banks an opportunity to provide
advanced retail services to their customers;
WHEREAS the Customer intends to provide client banks in Hungary with a large
publicly accessible and demographically chosen network of ATM's and the
customer file verification capabilities; whereas the Customer intends to run
this network with advanced technology, a high level of reliability and
customer service;
WHEREAS the Customer has examined offers for this Project from different
sources and decided to use the advanced ATM solutions offered by IBM;
NOW THEREFORE the undersigning Parties enter into a cooperation to execute the
above described Project in Hungary with the terms and conditions specified in
this Solution Delivery Agreement.
SUBJECT
Subject to the Solution Delivery Agreement is the delivery to the Customer of
one or more specified individual items, in accordance with the relevant
Agreements attached hereto, at a Single Fixed Price.
Any additional products not listed in the Supplements of Appendices A through F
respectively, are subject to a separate agreement between the Parties.
Appendices A, B, B1, C, D, E, F, G and H form an integral part of this Solution
Delivery Agreement.
The provisions of this Agreement regarding maintenance and the Maintenance
Agreement will continue in effect for the entire time for which may Maintenance
Settlement Amount is paid by the Customer.
In the original Agreement, the general term ATM referred to the IBM 4785. In
Amendment No. 1 the term ATM refers to the IBM 4785, 4782 or 4788
interchangeably. In Amendment No. 3 the term ATM refers to the IBM 4781, 4782,
4783, 4785, 4788 or 4789 interchangeably. In amendment No. 7 the term ATM
refers to any self service ATM or Cash Dispenser which is either generally
announced and made available by IBM in the territory of this Agreement or not
generally announced and made available by IBM in the territory of this
Agreement but mutually agreed by Parties to be subject to the terms of this
Agreement. Where a particular model is intended it will be so specified.
In respect of ATMs ordered for Hungary after the signature of Amendment No. 2
the feature number 4531 (Keyboard Display Module) will no longer be supplied
with the ATMs. Instead the non-IBM products described in Appendix F will be
supplied - their prices are included in the ATM prices in Appendix C. The IBM
Maintenance described in Appendix E does not apply to the Non-IBM Products.
DELIVERY
IBM will deliver each specified individual item under:
1. the conditions of the corresponding attached Agreements/s
2. these Solution Delivery Agreement Conditions.
In case of conflict, the Solution Delivery Agreement Conditions together with
Appendix G prevail.
The Estimated Solution Delivery Date specified in this Solution Delivery
Agreement (and its Attachments) is for Customer planning purposes only.
Deliveries will be mutually agreed, and each delivery will be initiated by a
request from the Customer. The first delivery was to consist of the AS/400 and
3 4785s. Immediately prior to this delivery, further 4785s were to be ordered
by the Customer making a total of at least 10 for delivery in the fourth
quarter of 1994.
The Customer will take delivery of at least 50 ATMs. The Customer will make
every effort to ensure that each subsequent delivery contains at least 10 ATMs.
The Customer will order a delivery to occur at least every four months assuming
a 60 day lead time and will take delivery of said items.
In order to facilitate the ordering and delivery procedure between Parties,
Parties will follow the process defined in the Ordering and Delivery Procedure
(Appendix H).
The Customer will take delivery of a combination of ATM models with an invoiced
contract value of at least DEM 2.133.750, = each year after 1994 until the end
of the contract delivery period.
The Customer will take delivery of at least 34 additional 4785s (after
signature of Amendment No. 1) by September 1995.
If the Customer does not adhere to this, he will be deemed to have terminated
for convenience in accordance with the Termination Clause below at the date
when non-compliance becomes apparent.
SINGLE FIXED PRICE/ PAYMENT
The Customer will pay the Single Fixed Price in accordance with the relevant
provision of the Terms and Conditions for Purchase (unless the Termination
Clause below applies).
The Single Fixed Price is a fixed price; it override any provision contained in
the attached Agreements concerning variations to the IBM standard prices;
The Single Fixed Price includes the installation costs for the delivered ATMs
under this Agreement.
Installation here means:
* conversion of ATM on safe location until delivery to site
* unpacking
* setting up
* checking configuration
* taking care of missing or defective parts if necessary
* loading ATM software
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- offline testing at a test location (assuming that line is available)
The Single Fixed Price is specified in the Solution Delivery Agreement on page
1 as "Total Price". However the Customer will be invoiced this Total Price
split into two separate sets of invoices invoices issued by IBM WTC and IBM
Hungary resp. IBM Poland respectively, and amounting together to the Total
Price as specified above; the local invoice will be converted to the equivalent
of the DEM amount in local currency according to the Terms and Conditions and
its Attachments specified in Appendix E (Terms and Conditions for IBM System
Service) and Appendix B (Foreign Trade Assignment) and Appendix B1 (Foreign
Trade Services).
Upon the Customer's written request IBM will provide further information
regarding prices and charges for any Products, Programs and Services furnished
by IBM under this Agreement.
The Single Fixed Price payment includes an element of DEM 100,000.- for future
as yet unspecified enhancements to the loan AS/400, which the Customer may
reasonably require during the course of the solution implementation. These
upgrades are deliverable after the Customer has taken delivery of ATM's in the
invoiced and paid value of at least DEM 3,922,979. The Customer will notify IBM
of its requirements in writing and IBM will place these enhancements on order
and deliver them, notifying the Customer of the amount remaining of the DEM
100,000,-
In case of later upgrade of ATM's bought under this Agreement or configuration
changes based on announcements of new products, IBM will endeavour to apply the
same pricing principles and methodology as applied for the calculation of the
present Single Fixed Price for hardware, software and services.
For the duration of this Agreement IBM will not bid or charge a lower price and
service charge per ATM in other comparable customer situations and under
comparable terms and conditions in Hungary for the purchase of 400 or less ATMs
of substantially similar configuration as the ones included in Appendix C.
The above commitment applies only until the end of March 1998.
There will be no retrospective reductions in price of machines or service.
The Single Fixed Price will be paid in installments corresponding to
delivery's; the maintenance portion will be paid quarterly in advance, starting
at the end of the warranty period of each machine. Three weeks before shipment
of a particular delivery IBM will send to the Customer an Advance Invoice
stating its value. The Customer is eligible for a 2% prepayment discount if
payment is received in IBM's bank account before the equipment arrives at IBM's
Distribution Centre in Germany.
TAXES AND FEES
In addition the Customer will pay amounts equal to any taxes and fees relating
to the Agreement or any activities hereunder.
END-USER ENTERPRISE DESIGNATION
IBM's granting of the single fixed price is dependent on the Customer's
assurance that it is acquiring the products delivered under this Solution
Delivery Agreement for installation and use within its own business enterprise
in Hungary resp, Poland and not for remarketing.
For the purpose of this Solution Delivery Agreement an end-user enterprise is
defined as a company or a group of associated companies and/or subsidiaries of
the Customer in which one such company owns, directly or indirectly, more than
50% of each of the subsidiaries or associates which will use the products
delivered under this Solution Delivery Agreement in the ordinary course of
business and not for resale or lease.
COOPERATION ON EXCHANGE OF EXPERIENCE
In order to gain a wide range of experience about the Hungarian market
reactions to the extended appearance of ATM's and in order to examine the
operation of the first Hungarian banking network technology, IBM will provide an
AS/400 on a loan basis at the premises on the Customer to support the
introduction and execution of the Project outlined in the Preamble, subject to
the Terms and Conditions specified in the attached Loan Agreement (Appendix A).
In return, the Customer shall provide IBM with appropriate information on his
knowledge, experience and progress with the operation of the subject banking
network outlined in the Preamble through periodic reviews with the responsible
IBM team on a quarterly basis, which period might be lengthened by mutual
agreement depending on the result of the reviews.
WARRANTY
1. IBM Products and IBM Licensed Programs:
IBM warrants that specified Products and Licensed Programs are
compatible and can operate with one another. The warranty provisions
included in the relevant attached Agreements shall apply.
2. Non-IBM Products:
Warranty for Non-IBM Products is the exclusive responsibility of the
Third Party Supplier. IBM has no warranty obligations with respect to
these products:
MAINTENANCE
In order to achieve a professional and high standard level of maintenance to
the Machines subject to this Agreement, (including loan equipment) for the post
warranty fixed period of five years, for each machine (including loan
equipment) maintenance in accordance with the attached Maintenance Agreement
(Appendix E) is an integral part of this Agreement and has been included in the
Single Fixed Price.
Maintenance will start at the end of the standard warranty period for each
machine, including loan equipment.
The following service levels will be maintained by IBM.
- measurement of equipment availability will be made by the Customer every
quarter
- subject to the exclusions below, IBM will achieve the following levels of
availability for the hardware items as follows
I. AS/400: 98% of maintenance service period.
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2. ATM within 60 km's of Budapest: 95% of maintenance service period
3. ATM more than 60 km's from Budapest: 93% of maintenance service
period
4. no machine will be unavailable for more than 24 hours at one time
* exclusions
1. any time outside the service period
2. any preplanned downtime (planned maintenance, relocation, software
loading, reconfiguration, etc.)
3. downtime caused by any software faults.
4. time lost between the identification and reporting of the fault, if
this exceeds 30 minutes
5. time lost between the arrival of the IBM specialist and his full
(see Customer Responsibilities) access to the machine, if this
exceeds 15 minutes.
6. downtime resulting from external reasons (power loss, AS/400 fault
in case of ATM's, postal line fault, etc.)
7. downtime caused by mistreatment of the machine
8. downtime caused by the lack of supplies
9. downtime caused by absence of money in the ATM
10. downtime caused by force majeur independent of IBM and the Customer
such as but not limited to strike, disturbance, uprising, war,
natural disaster, vandalism, intervention by authorities, etc.
11. failure by the Customer to follow IBM's environmental recommendations
* the IBM specialist is entitled to record any of the events at the time
* the Customer will evaluate the availability of each machine, every
quarter
* if the availability for any machine does not meet or exceed the above
standards the Customer will advise IBM in writing, giving details of the
downtime(s)
* IBM will examine its own records and, in the event that IBM agrees with
the Customers' evaluation, the service charge for that quarter for that
machine will be waived
* in the event that IBM does not agree, the two Parties will meet and come
to an agreement on the basis of both sets of documentation
* if for any machine it is agreed that the above levels have not been met
for four quarters the Customer will be entitled to terminate the
Maintenance Agreement for that machine (without affecting the other parts
of this SDA Agreement) without paying any maintenance settlement amount
for that machine.
* if the problem defined in the preceding paragraph occurs for twenty
machines the Customer will be entitled to terminate the complete
Maintenance Agreement (without affecting the other parties of this SDA
Agreement), without paying any maintenance settlement amount.
IBM's LIABILITY
The configuration of the AS/400 has been defined by the Customer and its
subcontractors. Given that total system performance is dependent on application
system characteristics and the Customer is contracting separately for the
application system, responsibility for the satisfactory performance of the
system lies with the Customer.
IBM's liability to the Customer is exclusively set forth in the "Limitation of
Remedies" provisions included in the relevant attached Agreements. IBM
specifically excludes any and all liability for any damages deriving from
Non-IBM Products or Non-IBM Services. For such damages shall be exclusively
responsible the Third Party Supplier.
IBM does not accept responsibility for loss of programs, programming, data or
funds contained in the ATMs caused by theft.
CUSTOMER RESPONSIBILITIES
During periods when IBM or IBM-contracted personnel are attending to the
equipment by agreement with the Customer, for whatever purpose, it is the
Customer's sole responsibility to ensure adequate armed protection, in
conformity with international standards and Hungarian resp. Polish law, for the
said personnel throughout the period of attendance. On request the Customer
will remove funds form the equipment at the commencement of the period of
attendance.
The Customer will follow IBM's recommendations concerning the environment set
up for the ATM's which will be notified at time of delivery.
CHANGES
Any request for change to the Solution Delivery Agreement must be submitted in
writing to the other Party. Within 30 days from the receipt of the request, the
receiving party will send its written answer to the other party indicating
whether the change can be made.
IBM will describe the effect of such Customer requested change upon dates,
price, schedule and other terms and conditions of the Agreement.
The agreed changes will be executed by the Parties in the form of an amendment
to the Agreement.
Pending agreement to implement changes, IBM will proceed in accordance with the
latest authorized terms and conditions of the Agreement.
TERMINATION
1. Termination for convenience
Subject to the other provisions of this Agreement, the Customer may
terminate this Agreement for convenience upon at least 30 days prior written
notice to IBM, although this is not the intention of the Customer at
contract signature date.
If the Customer terminates this Agreement for convenience prior to the
delivery of all Products and Services as included in the Single Fixed Price,
the Customer agrees to pay IBM on the effective date of the termination, the
Settlement Amounts, as specified in Attachment 3 to this Agreement, which
the Parties agree is the Customers sole and exclusive liability for such
termination.
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However, the Settlement Amounts as specified in Attachment 3 do not take into
account additional amounts which might be payable by the Customer in case the
Customer chooses to acquire loan equipment or related licenses as described
hereafter.
2. Effect on loan equipment after termination for convenience
* 2/A In case Customer decides to cease trading in Hungary
The Customer, at his risk and cost, will return the loan equipment and
materials as listed in Appendix A of this Agreement including any
enhancements made thereto to a location specified by IBM within 15 days
after the effective date of the termination and, if applicable, compensate
IBM for damages in accordance with Section 8 of Appendix A, Loan Agreement.
In addition, a Maintenance Settlement Amount will be calculated and due in
accordance with Attachment 3 to this Agreement.
This section does not apply to the equipment and materials about which
Parties agree that they would be transferred in accordance with subsection
B/ of this article.
* 2/B In case the Customer continues trading in Hungary, but decides to
purchase ATMs with a total contract value of loss then DEM 16.557.900,=
Notwithstanding section 1/Termination for Convenience:
IBM agrees to sell to the Customer upon the Customer's request the IBM
equipment then currently being on loan. The price for the loan equipment
then to be paid ("the Loan Settlement Amount") will be calculated as
described in Attachment 3 to this Agreement. The then applicable IBM terms
and conditions will apply to such sale. In addition, a Maintenance
Settlement Amount will be calculated and due in accordance with Attachment
3 to this Agreement. For generally available commercial software, covered
by Copyright owned by IBM and not otherwise owned by or licensed to the
Customer in accordance with this Agreement, which is running on the loan
machines, IBM will upon the Customer's request provide a license to the
Customer for its use upon terms and prices at the then current IBM Terms
and Conditions.
3. Termination after first quarter 1998
If the Customer has after the first quarter 1998 not achieved the committed
quota i.e., total hardware and software to a value which, together with
projected maintenance revenues for the 5 year term per ATM, totals at least
DM 28,492,784. Parties will settle their accounts in accordance with the
calculation method for the Settlement Amounts as described in Attachment 3.
The Maintenance Settlement Amount and the Loan Settlement Amount as well as
related licenses (all when applicable) are due on top of the Termination
Settlement amount.
4. Termination for Breach of Contract
The Terms and Conditions in the Attached Agreements apply.
PUBLIC RELATIONS
IBM is ready to share the fact of cooperation with the Customer with the
public; however, any publicly available disclosure of information on this
Agreement, irrespective of the media of disclosure, shall be discussed and
mutually agreed by both Parties prior to such disclosure.
GENERAL
This Agreement replaces all previous oral or written agreements and
documentations in relation to the subject of this Agreement.
In particular, upon signature, Amendment No. 8, consisting of a revised version
of the original Agreement, signed 16th December 1994, and amended by Amendment
No. 1, signed 3rd May 1995, Amendment No. 2, signed 20th June 1995, Amendment
No. 3, signed 22nd September 1995, Amendment No. 4 signed Nov 27th and Dec 5th
1995, Amendment No. 5 signed 6th December 1995 and Amendment No. 6 signed 18th
December 1995 and Amendment No. 7 signed 29th February 1996 replaces said
amended original Agreement, which remains in force until such signature.
Changed items in Amendment No. 8 are highlighted buy bold type and underlining.
IBM has the right to subcontract any part of the products and services provided
under this Solution Delivery Agreement to independent subcontractors selected
by IBM.
APPLICABLE LAW
The Solution Delivery Agreement will be governed by the laws of Austria.
ARBITRATION
All disputes and controversies between the Parties arising out of or in
connection with this Agreement or its implementation, performance or
interpretation shall be finally settled under the Rules of Arbitration and
Conciliation of the International Arbitral Centre of the Federal Economic
Chamber in Vienna (Vienna rules) by three arbitrators appointed in accordance
with said Rules. The arbitration shall be held in Vienna, Austria and the
official language of the proceedings shall be English. The decision of the
arbitrators shall be final and binding upon both parties and therefore the
parties pursuant to paragraph 598(2) of the Austrian Code of Civil Procedure,
expressly waive the application of paragraph 595(1) figure 7 of said Code.
2. DELIVERY FORECAST
The Delivery forecast is for information purposes only.
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October 1994: AS/400 host
AS/400 software
10x 4785s
ATM software
Each quarter 1995:
20xATMs, ATM software
Each quarter 1996:
30xATMs, ATM software
Each quarter 1997:
40xATMs, ATM software
First quarter 1998:
30xATMs, ATM software
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3. FINANCIAL CONDITIONS FOR AN EARLY TERMINATION OF THE PROJECT CONDITIONS
If the Customer terminates this Agreement for Convenience according to the
Termination clause of the SDA conditions, the Customer shall pay to IBM within
30 days from the effective date of such termination a Termination Settlement
Amount, a Maintenance Settlement amount and a Loan Settlement amount defined
below.
1. The Termination Settlement amount for the hardware is the following.
- Case A: no longer applicable
- Case B: minimum DEM 4.267.500, = In this case the Termination
Settlement Amount is 30% of the amount already invoiced to date in
addition to any outstanding invoices.
- Case C: minimum DEM 8.535.000, = In this case the Termination
Settlement Amount is 21% of the amount already invoiced to date in
addition to any outstanding invoices.
- Case D: minimum DEM 12.802.500, = In this case the Termination
Settlement Amount is 7% of the amount already invoiced to date in
addition to any outstanding invoices.
2. The Maintenance Settlement amount is the difference between the amount
already invoiced to date and 5 years maintenance fee for each loaned and
purchased ATMs, computers and peripherals at per month fee declared in the
Appendix E of the Agreement. Payment will continue to be made quarterly in
advance. The Customer will continue to receive maintenance.
3. The Loan Settlement Amount is:
- in the case that Section 2/A of the Termination Clause above applies:
nothing.
- in the case the Section 2/B of the Termination Clause above applies:
for the A5/400 depending on the date of termination, not more than the
linearly proportionate figure over time between the original quoted
price (i.e. DEM 370,000.-) and the 5 year price as quoted in Section
1 of Appendix D, plus additionally with effect from Amendment No. 8
the same linear calculation between price of the upgrade (i.e. DEM
233,756 less DEM 29451 paid by the Customer) and the 5 year price in
Section 1 of Appendix D.
for the ATMs, depending on the date of termination, not more than the
linearly proportionate figure between the original quoted price (see
above) and for the different alternatives specified under Section 1 of
the Financial Conditions for an Early Termination of the Project the
following applies:
A: no longer applicable
B: 25% of original quoted price
C: 20% of original quoted price
D: 15% of original quoted price
4. The Termination Settlement Amount for Software is; any outstanding invoice.
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IBM WORLD TRADE CORPORATION
Old Orchard Road, Armonk, New York 10504, USA
TERMS AND CONDITIONS FOR IBM LICENSED PROGRAMS
Edition: April 1996
Country of Installation HUNGARY
IBM World Trade Corporation (IBM) will grant the Customer a license to use
specified licensed programs (Programs) under the following and any additional
terms and conditions incorporated by reference in an accepted Supplement. The
Supplement and its incorporated terms and conditions constitute the entire
Agreement. The Agreement is effective upon signature of the Supplement by the
Customer and IBM's countersignature. The Countersignature of IBM may be replaced
by a written confirmation on the respective Supplement by an IBM subsidiary that
IBM has accepted the Supplement. This is a License Agreement and not an
agreement for sale. IBM retains the title to the copy of the Program and any
copy made from it. Upon acceptance of the Supplement, IBM grants to the Customer
a non transferable, non-exclusive license in the Country of Installation to use
the Programs specified in the Supplement.
IBM's obligations under this Agreement may be fulfilled either by IBM or
its Designee. The supply of Programs is subject to any applicable
authorizations, licenses and permits which may be required.
1. DEFINITIONS
a. Program
means 1) instructions, statements or any data base in machine readable
form; and/or 2) any related materials, including documentation and
listings, in either machine readable or printed form; and 3) all
copies thereof whether in whole or in part. Programs are copyrighted.
b. Use
relating to the machine readable portion of a Program means
- its reproduction through any act of loading, displaying, running,
transmitting or storage in whole or in part into or on the
designated machine for processing.
- its adaptation for the purpose of merger in whole or in part with
other programs for Customer's own processing;
c. Designated Machine
means the machine, specified in the Supplement, on which the Customer
uses the Program for processing.
d. Licensed Program Specifications
means a Program Description, provided by IBM and updated from time to
time, for Programs for which IBM assumes warranty.
e. Specified Operating Environment
means machines, equipment and programs with which each Program is
designed to operate as stated in the respective Program Specifications
or Product Information, or as otherwise specified by IBM.
f. Group
means the machine group of the Designated Machine, as specified in the
current Group Exhibit.
g. Group Exhibit
means an exhibit issued by IBM, listing IBM or non-IBM machines by
Group. IBM may issue revised Group Exhibits from time to time,
indicating its effective date, whereby machines may be re-
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assigned to another Group and other modifications be made. The Group
Exhibits are integral part of the Agreement. The terms of a Group
Exhibit will prevail over these terms in case of conflict.
h. Supplement
means an order placed by the Customer and accepted by IBM in
accordance with IBM's then current procedure.
i. Date of Availability
means the date 20 days after shipment (for the countries: Armenia,
Belarus, Georgia, Kazakhstan, Kirghizia, Moldova, Russia and Ukraine
30 days), or, for Additional Licenses the date the Customer has copied
the Program.
j. Shipment date
means the date on which the Programs are delivered to the carrier at
the Distribution Center Nieder-Roden, Germany.
2. CHARGES
a. Calculation of Charges
1) Charges for a Program may consist of periodic charges and/or
one-time charges as specified by IBM in the Supplement.
2) The charges for a program include carriage to the Distribution
Platform. The Distribution Platform is specified in the
Supplement.
3) The charges may vary based on the Group of the Designated
Machine, the configuration of the Designated Machine and/or the
number of Additional Licenses of the Program used by the
Customer. Designated Machines not listed in the Group Exhibit
belong to the Group with the highest charges.
a) Changes or upgrades of the Designated Machine to a Group
with higher charges will result in an additional one-time
charge, respectively in the higher periodic charges of the
new Group. Changes or downgrades of the Designated Machine
to a Group of lower charges will result in the periodic
charges of the new Group. The Customer will inform IBM in
writing of the date of any such change to the Designated
Machine and, at IBM's request, certify the accuracy of the
current Group.
b) If IBM reassigns the Designated Machine to a Group with
higher charges, the resulting increase in charges will be
considered a price change. If the reassignment is to a Group
with lower charges, these will only apply to charges due
after the effective date of the revised Group Exhibit.
No refund of charges due or previously paid will be made except
as stated in clause 3 paragraphs b.1), or c.
4) IBM may define special use conditions for designated IBM Licensed
Programs. These conditions including the charges applicable for
such use conditions will be specified in the Supplement.
5) For certain Programs, IBM may designate one or more replacement
Programs. When the Customer replaces a discontinued Program,
additional charges may apply to the replacement Program. If
specified by IBM, the replacement Program may be obtained before
discontinuing the Program being replaced.
6) In addition the Customer will pay amounts equal to any taxes and
fees resulting from the Agreement or any activities hereunder,
including customs duties, importation charges and bank charges,
if any.
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b. Change of Charges
1) One-time charges are subject to change by IBM upon notice,
effective immediately. However, to orders received by IBM before
date of the notice, the increase will not apply if the effective
date of the increase is after the date IBM has received full
payment, or if within 3 months after the notice, (i) IBM ships
the Program, (ii) the Customer makes an additional copy, or (iii)
a Group upgrade occurs.
2) Periodic charges may be increased upon three (3) months prior
written notice to be applied to the next payment period, starting
on or after the effective date of the increase, unless IBM has
already received payment in full.
3. PAYMENT
a. One-time and periodic charges will be due on/from the Date of
Availability, or, for Programs with a testing period, upon its expiry.
All charges are invoiced in advance and payable as stated below.
Periodic charges are prorated based on a 30-day month. Interest under
3.e. is due and payable immediately upon receipt of invoice from IBM.
b. One-time charges
For programs subject to one-time charges one of the following two
payment options shall apply.
1) The Customer shall pay to IBM in cash the total charges as
specified by IBM. This amount must be received by IBM at least
ten (10) days prior to the estimated shipment date, respectively
prior to a Customer initiated Group change and/or prior to the
use of an Additional License. In case the Customer terminates the
license during a testing period, IBM will credit the paid
charges, less certain charges (process charges) as specified in
the Supplement, to the Customer.
2) At least thirty (30) days prior to the estimated shipment date of
the Programs, respectively prior to a Customer initiated Group
change and/or to the use of an Additional License the Customer
shall at his own expense furnish IBM with a promissory note, or
an irrevocable letter of credit or a bank guarantee, guaranteed
or issued - as the case may be - by a bank and in a form and at
terms, acceptable to IBM, covering the total charges plus any
related charges as invoiced by IBM.
c. Periodic charges
For Programs subject to periodic charges and to periodic charges combined
with one-time charges as specified in the Supplement, one of the following
two payment options shall apply.
1) The Customer will pay in cash the periodic charges for a period of at
least twelve (12) months. The first payment plus related one-time
charges as specified by IBM must be received by IBM at least ten (10)
days prior to the estimated shipment date, respectively prior to a
Customer initiated Group change and/or prior to the use of an
Additional License. The following payments for periods of at least
twelve (12) months have to be received by IBM at the date specified by
IBM in the invoice.
2) Upon request by IBM, the Customer shall provide IBM with a revolving
bank guarantee of a bank and in a form and at terms acceptable to IBM,
at least thirty (30) days prior to the estimated shipment date of the
Programs, respectively prior to a Customer initiated Group change
and/or prior to the use of an Additional License at his own expense.
Such guarantee shall initially be valid until the date six (6) months
after the end of the payment period of the first in-
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voice and cover the total amount of charges becoming due during
this period. Thereafter the guarantee shall automatically be
prolonged on a revolving basis for six (6) months covering the
total amount of charges becoming due during such period until the
license(s) for the respective Program(s) is (are) terminated and
all payment obligations with respect thereto have been fully
satisfied. In the event of an increase of the periodic charges
the Customer shall adjust the applicable bank guarantee
accordingly within thirty (30) days from the effective date of
the increase.
Invoices will be issued quarterly in advance on a calendar year
basis covering all charges of the respective quarter and are
payable within thirty (30) days from the date of invoice.
The first invoice will cover the period between the Date of
Availability, or for Programs with a testing period, the first
business day following the testing period, respectively the day
of a Customer initiated Group change and the end of the quarter -
calendar year based - to which this day belongs, including all
related one-time charges.
In case the Customer terminates the license, IBM will issue a credit
for periodic charges already paid for the rest of the period following
such termination pro rata based on a 30-day month. Any decreases of
the applicable charges and/or Group charges during a payment period
will be credited to the Customer based on the same rule.
d. The failure of the Customer to comply with any of the obligations as
specified in this clause 3 gives IBM the right to terminate the
Supplement forthwith and discontinue the license(s) for the Program(s)
thereunder or, in case to Program(s) not yet shipped, to delay their
shipment or cancel the affected Supplement(s).
e. Interest for delayed payment
In case of delayed payment IBM may charge interest at the rate
specified in the Supplement for amounts overdue.
4. LICENSE
a. Each license granted authorizes the Customer to:
1) use the Program's machine readable portion on the Designated
Machine;
2) store the Program in, transmit it through, and display it on,
machines associated with the Designated Machine;
3) utilize the Program's printed portion in support of the
Customer's authorized use of the Program; and/or
4) reproduce the Program's machine readable portion into any machine
readable or printed form to provide sufficient copies (including
a back-up copy) to support the Customer's authorized use of the
Program; such copies become subject to the terms of this
Agreement.
b. Programs may not be otherwise reproduced or translated whether for
reverse assembly or reverse compilation or any other purpose.
c. Program materials labeled as "Restricted Materials of IBM", may be
used by the Customer only for the following purposes:
1) to make modifications to the Customer product and/or programs so
that they will function with the applicable IBM Program; and
2) to make modifications to such Program; and
3) to assist in problem determination and resolution associated with
use of such Program.
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d. IBM may specify a usage restriction for certain Programs. Any usage
exceeding this restriction requires a separate license and/or payment
of further charges. When IBM specifies that a Program is delivered for
purpose of storage only, such Programs may be copied into a machine
but not otherwise used except under the provisions of a separate
authorization.
e. A separate license is required for each Machine on which the Customer
uses the Program except that the Customer may:
1) change the Designated Machine or make any upgrade or downgrade
thereto subject to written confirmation from IBM and acceptance
of any consequent revision to charges; and
2) temporarily use the Program on a back-up machine whilst the
Designated Machine is inoperable; and
3) assemble or compile the Program on another machine if the
Designated Machine is not capable of doing so; and
4) in the event that IBM grants an installation license, use the
Program on any machine in the same installation (single room or
contiguous rooms) as the Designated Machine; and
5) in the event that IBM grants a location license, use the Program
on any Customer machine in the same location (single building or
postal address) as the Designated Machine.
A subsequent release of the same program number may be used for
production/testing while productive use of the previous release
continues on the same Designated Machine.
f. Additional Licenses
The Customer may order Additional Licenses for a Program which IBM
previously distributed to it. The Customer may copy the machine
readable portion of a previously distributed Program, for use on
another machine, provided IBM has received the signed Supplement for
the Additional License and the Customer has fulfilled its payment
obligations as set forth under 3. above. The Customer shall inform IBM
of the date the Program has been copied.
This Additional License is subject to confirmation by IBM within
2 months by countersigning the Supplement. Without such confirmation,
any use of the Additional License after 2 months is in violation of
the Agreement.
For some Programs IBM may specify that Additional Licenses are
available through the Distributed Systems License Option (DSLO)
procedure. If specified by IBM, the Customer may obtain one or more
licenses in addition to the initial license ("Basic License") for a
DSLO Charge. For each DSLO license, unless IBM provides otherwise,
the Customer will:
1) copy the Program's machine readable portion and use such copy on
the DSLO Designated Machine;
2) distribute to, install and test on the DSLO Designated Machine
any new release, correction or bypass which IBM provides to the
Basic License Designated Machine;
3) communicate with IBM in respect of problem documentation and
identification, and receive program services and warranty
(if any) only through the Basic License location.
4) designate a new Basic License to replace a terminated Basic
License. If a terminated Basic License is not replaced, all
related DSLO licenses are automatically considered as terminated.
g. If "Feature Distribution" is indicated in the Supplement for a
feature of a Program, the Customer may distribute and use copies of
that feature on machines other than the Designated Machine under the
provisions of a separate authorization.
h. Program material provided by IBM in printed or other non-machine
readable form may not be copied. Additional copies may be licensed at
a charge. On request, following general availability, the Program's
printed portion may be shipped up to 6 months in advance.
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i. The machine readable documentation may include IBM designated "L",
"G" and "S" manuals, which IBM may provide as a feature for the
Program. The Customer may use, copy and modify such documentation as
specified by IBM.
5. TERMINATION
a. The Customer may terminate the license for any Program by written
notice as follows:
1) during the testing period, at any time with immediate effect;
2) following expiry of any testing period, upon at least 1 month's
written notice.
b. IBM may terminate the license with immediate effect if the Customer is
in breach of any of its obligations under the Agreement, or as
specified in the Supplement.
c. Within 1 month after termination of the license, the Customer will
destroy all applicable copies of the Program, including the Program
which is a data base, translations or modifications and remove the
Program from all updated works. One copy may be retained for archival
purposes only.
This requirement does not apply to individual pieces of data base
obtained from a Program which constitutes a data base and which
constitute a minor part thereof. Upon IBM's written request, the
Customer will certify that it has fully complied with this section.
6. SHIPMENT AND RISK OF LOSS OR DAMAGE
a. IBM will specify the estimated shipment date of each Program. Either
party may change it as necessary.
b. Risk of loss or damage passes to the Customer upon delivery.
Thereafter, IBM will replace lost or damaged programs, at applicable
charges, if any, for handling and media.
7. TESTING
During the testing period, if any, the Customer may use the Program free of
charge and for non-productive purposes only, to determine that it meets the
Customer's requirements. The testing period commences on the Date of
Availability.
The Customer will notify IBM if the Program is used for productive
purposes, upon which the testing period will terminate immediately.
There is no testing period for DSLO licenses.
8. PROTECTION AND SECURITY
The Customer is responsible for taking appropriate action to satisfy its
obligations under the Agreement, including:
a. not distributing any Program without IBM's written consent;
b. not giving access to a Program which is a data base to others nor make
any data in the data base available to any other person.
c. not making the Program available to others, except when: a) on the
Customer's premises or b) authorized by the Customer to have remote
access to it, for purposes specifically related to authorized use;
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d. reproducing IBM's copyright notice(s) and any other legend on any
authorized copy in accordance with IBM's copyright instructions;
e. maintaining records of the number and location of all copies of any
Program and advise IBM in writing if the original or any copy will be
kept at premises other than that of the Designated Machine;
f. before disposing of any media, ensuring that any Program contained on
it has been erased or destroyed.
9. WARRANTY
a. IBM warrants that any Program, for which IBM warranty is specified,
will conform, at shipment date, to the current Licensed Program
Specifications. This warranty applies only if the Program is properly
used in a Specified Operating Environment. While Program Services are
available, the Customer may inform IBM if it believes that the Program
does not meet its specifications. IBM will provide Program Services as
described under section "Program Services". All other Programs are
distributed "as is" without a warranty of any kind.
b. IBM does not warrant that the Program will operate in all selected
combinations or that it will meet the Customer's requirements. It is
state of the art that uninterrupted or error-free operation cannot be
warranted.
c. The foregoing warranties are in place of all other warranties, express
or implied, including but not limited to the implied warranties of
merchantability and fitness for a particular purpose.
10. PROGRAM SERVICES
a. IBM may specify that Program Services are available, if any, without
additional charge for certain Programs. Such services will be
available from IBM after delivery of the Program or after the Customer
has copied the Program under an Additional License, to asset in
problem diagnosis and resolution in any unaltered portion of a current
release of such Programs, provided the defect can be reproduced by IBM
in the Specified Operating Environment.
b. If Central Service is provided, IBM's designated Central Service
locations will accept documentation, prepared and submitted by the
Customer in a standard format, indicating a defect in a program under
program service. Central Service will respond by issuing:
1. defect correction information,
2. a restriction, or
3. a bypass.
c. IBM may also specify that it will provide the Customer with telephone
assistance in problem diagnosis and resolution through a Support
Center.
d. For each version of a Program, IBM will specify that Program Services,
if any, will be available 1) until discontinued by IBM on 6 months
written notice or 2) until a designated date. In addition, when a
subsequent Program release becomes available, IBM may discontinue
Program Services for any or all previous releases. IBM does not
guarantee service results or that IBM will be able to correct all
Program defects.
11. PATENTS AND COPYRIGHTS
IBM, at its expense, will defend the Customer against any claim that a
Program licensed under the Agreement infringes a patent or copyright
effective in the Country of Installation. IBM will pay all costs,
15
damages and attorney fees that a court finally awards as a result of such
claim, provided that the Customer a) gives IBM prompt written notice of any
such claim and b) allows IBM to control, and fully cooperates with IBM in,
the defense and all related settlement negotiations.
If a Program becomes, or IBM believes it is likely to become, the subject
of such a claim, IBM, at its option and expense, may either secure for the
Customer a right of continued use or replace or modify it so that it
becomes non-infringing. If neither of these alternatives is available on
terms which IBM judges to be reasonable, the Customer on request will
return the Program. IBM will grant the Customer a credit for any Program
whose total charges are fully paid or, in case of periodic charges already
paid, IBM will issue a credit for the rest of the period following such
return pro rata based on a 30-day-month.
IBM shall have no obligation with respect to any claim based on the
Customer's modification of Programs or their combination, operation or use
with apparatus, data or programs not furnished by IBM or in other than the
Specified Operating Environment.
This clause states IBM's entire obligation to the Customer regarding
infringement or the like.
12. LIABILITY
a. IBM's entire liability and the Customer's exclusive remedy are as
follows:
In all situations involving non-performance of a warranted Program,
IBM will attempt to make it operate as warranted. If, after repeated
efforts, IBM does not succeed, the Customer is entitled to recover
actual damages to the limits set forth in this clause. Such limits
also apply to any other claim involving IBM's performance.
b. IBM's liability for actual damages from any cause will be limited to
the greater of:
1) DM 150,000 (one hundredfifty thousand Deutsch Mark), or
2) the one-time charge paid for, or due, or any charges which would
be due for 12 months' use of the individual Program that caused
the damages, or that is the subject matter of, or is directly
related to, the cause of action. Such charges shall be those in
effect when the cause of action arose.
The above limitation applies, regardless of the form of action,
whether in contract or in tort including negligence, except in respect
of:
1) payments made under the clause "Patents and Copyrights"; and
2) claims related to personal injury or damage to real property or
tangible personal property caused solely by IBM's negligence.
c. In no event will IBM be liable for any damages caused by the
Customer's failure to perform its responsibilities, or arising during
the testing period from non-performance of Programs or any lost
profits, lost savings, incidental damages, other economic
consequential damages, or any claim made against the Customer by any
other party, except under the clause "Patents and Copyrights", even
if IBM has been advised of the possibility of such damages, loss or
claim.
The limitation of remedies described in this section also applies to
any developer of a Program supplied to IBM, IBM's and its developer's
limitation of remedies are not cumulative. Such developer is an
intended beneficiary of this section.
13. GENERAL
a. The Customer may not grant sub-licenses with respect to the Program.
b. The Customer may not assign or transfer the Agreement or any rights or
obligations under it, or the Program without IBM's prior written
consent.
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c. IBM may modify these terms only on at least 3 months' prior written
notice to the Customer, except that modifications to the termination
provisions shall be effective only for orders received by IBM after
the date of notice of modification.
d. No actions, regardless of form, arising out of the Agreement, may be
brought by either party more than three years after the cause of
action or, in the case of payment, more than three years after the
date that the last payment was due. Except that, in respect of the
Customer's obligations under "Protection and Security", the period for
such actions shall be six years.
e. The Customer is responsible for the selection, installation and use of
the Programs and the results obtained therefrom, as well as their
combination with each other, or with other programs, programming,
equipment or services.
f. Neither party shall be responsible for failure to fulfil its
obligations due to causes beyond its control.
g. The Customer agrees that Programs and technical data provided under
this Agreement are subject to all applicable export control laws and
regulations, e.g. those of the exporting country and the United States
of America. IBM's obligations under this Agreement and IBM's
performance of any related activity are subject to export licensing
which is beyond IBM's control and for which IBM does not assume any
responsibility.
h. The Agreement will be governed by the laws of Austria.
All disputes arising out of this Agreement or related to its
violation, termination or nullity shall be finally settled under the
Rules of Arbitration and Conciliation of the International Arbitral
Centre of the Federal Economic Chamber in Vienna (Vienna Rules) by
three arbitrators appointed in accordance with these rules. The
arbitration shall be held in Vienna, Austria, and the official
language of the proceedings shall be English. The decision of the
arbitrators shall be final and binding upon both parties and therefore
the parties, pursuant to paragraph 598(2) of the Austrian Code of
Civil Procedure, expressly waive the application of paragraph 595(1)
figure 7 of the said Code.
IBM may, however, institute proceedings in a competent court in the
Country of Installation.