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EXHIBIT 10.51
ENTERPRISE LICENSE AGREEMENT
The terms of this Enterprise License Agreement (called the "Agreement"), between
Edison Schools, Inc. ("you") and International Business Machines Corporation
("IBM"), allow your Enterprise to receive from IBM, the benefit of licensing and
support of certain Programs as well as the performance of certain associated
Services (collectively, the "ELA Offerings") for one contract price, as set
forth in the Charges section of this Agreement. For purposes of this Agreement,
Enterprise shall be defined as any legal entity (such as a corporation) and the
subsidiaries it owns by more than fifty percent (50%) at the Effective Date of
this Agreement. The terms of this Agreement are in addition to, or may modify
(for purposes of this Agreement only) those of the "Associated Documents" which
govern the acquisition of the ELA Offerings. The terms of the Associated
Documents are incorporated into this Agreement by reference, and you and IBM
both agree to the terms of the Associated Documents and this Agreement by
signing below. The following IBM Agreements comprise the Associated Documents.
1. IBM Customer Agreement
2. IBM Agreement for Exchange for Confidential Information ("AECI")
Both of us agree that this Agreement, including all its Associated Documents are
the complete Agreement between us and replaces any prior oral and/or written
communications between us concerning this subject matter. By signing below, both
of us agree to this Agreement. If there is a conflict among the terms of this
Agreement and those of the Associated Documents, for the purposes of this
Agreement, those of this Agreement prevail.
IN WITNESS WHEREOF, the parties hereto have executed this Enterprise License
Agreement.
INTERNATIONAL BUSINESS MACHINES EDISON SCHOOLS, INC.
CORPORATION
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SIGNATURE SIGNATURE
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PRINT NAME PRINT NAME
Client Executive Chief Info. Officer
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TITLE TITLE
6/12/00 6/12/00
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DATE DATE
AGREED TO:
INTERNATIONAL BUSINESS MACHINES
CREDIT CORPORATION
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SIGNATURE
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PRINT NAME
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TITLE
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DATE
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1. CONFIDENTIALITY
The terms of this Agreement are confidential and the parties will not disclose
the terms of this Agreement, unless agreed to in writing, or unless required by
law. This Agreement will not preclude, or in any way limit, either party from
entering into similar agreements with other parties.
2. CAPITALIZED TERMS
Capitalized terms, the definitions for which are not found in this Agreement,
are defined in the Associated Documents.
3. CONTRACT PERIOD
This Agreement starts on the date of its execution ("Effective Date") and
remains in effect for a period of five (5) years from that date, unless earlier
terminated as provided herein.
4. ELIGIBLE PROGRAMS AND LICENSE GRANT
The Programs that qualify for the terms of this Agreement ("Eligible Programs")
are defined in Attachment One and the calculation methodology of the Tivoli
Management Points per Eligible Program is stated in Attachment Two, both of
which are attached to and made part of this Agreement.
IBM grants your Enterprise a non-exclusive, non-transferable, term-limited
license to use each of the Eligible Programs for your internal use during the
term of this Agreement in accordance with Section 5 below. As defined by Section
6, such licenses at the end of the term will be converted to perpetual licenses.
5. USE OF ELIGIBLE PROGRAMS
(a) Initial Purchase Deployment Usage
IBM grants you the right to deploy up to the maximum level of Tivoli Management
Points assigned to each Eligible Program as set forth in Table One and Table Two
of Attachment One.
During the term of this Agreement, if you elect not to deploy a specific
Eligible Program listed in Table One up to the maximum level of Tivoli
Management Points allowed, you may substitute other Eligible Programs listed in
Table One so long as the aggregate of all Eligible Programs listed in Table One
does not exceed 618,083 Tivoli Management Points. To calculate the total number
of Tivoli Management Points deployed/deployable per Eligible Program, refer to
Attachment Two--Tivoli Management Point Calculation Matrix and Definitions.
(b) Additional, Other and New Tivoli Program Deployment Usage
During the term of this Agreement and subject to your rights of initial
deployment as set forth above, if your actual deployment of the Eligible
Programs has exceeded the specified maximum level of Tivoli Management Points
listed in Table One and/or Table Two of Attachment One, you agree to purchase
additional Tivoli Management Points for the Eligible Programs in excess of the
initial deployment in accordance with Table A below. Also during the term and in
accordance with Table A below, you may purchase other and new commercially
released Tivoli Programs by paying IBM a license fee based on the then current
Tivoli Program price extended by the applicable Tivoli Management Points.
TABLE A
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LIST PRICE PER TRANSACTION DISCOUNT OFF OF LIST PRICE
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$0 to $250,000 0%
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$250,001 to $500,000 20%
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$500,001 to $1,000,000 30%
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$1,000,001 and over 40%
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Further, for all additional, other and new commercially released Tivoli Program
purchases, you agree to purchase additional Support at Tivoli's prevailing rates
current at the time of such order so that all Eligible Programs licensed sustain
current coverage under the existing Support.
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6. ANNUAL RECONCILIATION
You agree to report to IBM the total Tivoli Management Points in use by Eligible
Program on each anniversary year of this Agreement. The first report to IBM will
be due on July 1, 2001. Notwithstanding IBM may, on an annual basis and upon
prior written notice, review the number of Eligible Programs you have placed
into use under this Agreement. IBM shall have the right to reproduce, retain
copies, and review the records on your premises during your normal business
hours. The parties will perform a reconciliation to count the number of deployed
Eligible Program and applicable Tivoli Management Points in accordance with
Attachments One and Two.
In the event that you have deployed over the maximums allowed per Section (5),
IBM will invoice you for the Tivoli Management Points deployed in excess in
accordance with the pricing set forth in Table A of Section (5) above, plus
associated Support and any applicable taxes.
At the end of the term and upon the final annual reconciliation, you will
receive a fully paid-up, perpetual license grant to use up to the total Tivoli
Management Points of the Eligible Programs purchased under this Agreement for
which IBM has received payment.
7. SUPPORT
(a) IBM will provide Standard Support to your Enterprise for the Eligible
Programs identified in Attachment One on a five-day, twelve hours a day
basis for the period of this Agreement. Support will be automatically
renewed for subsequent annual periods at the rates listed in the table
below, unless, IBM or you provides written notification of your decision
not to renew at least thirty (30) days prior to the anniversary date.
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MAINTENANCE YEAR MAINTENANCE FEE
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Year 1 (July 1, 2000 - June 30, 2001) Included in Initial Charge
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Year 2 (July 1, 2001 - June 30, 2002) $1,014,492
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Year 3 (July 1, 2002 - June 30, 2003) $1,077,724
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Year 4 (July 1, 2003 - June 30, 2004) $1,204,185
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Year 5 (July 1, 2004 - June 30, 2005) $1,267,415
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For Maintenance Years 6 through 8, the annual Maintenance Fee per year
shall not exceed the prior year's annual Maintenance Fee escalated by the
lesser of 1) ten percent (10%) of the prior year's annual charge, or 2)
the sum of the Consumer Price Index plus five percent (5%), times the
prior years annual charge.
(b) You agree to purchase additional Support (over and above the annual
Support fees stated above) for any additional Tivoli Management Points
that were not part of the initial purchase of this Agreement but were
licensed in accordance with Section (5) and (6) herein so that all Tivoli
Programs licensed sustain current coverage under the existing Support.
(c) You will provide a limited number of points-of-contact ("POC") personnel
(up to five) located within the United States, who will be responsible for
the following:
(1) Providing the first level of support for your internal
maintenance problems. Your end-user personnel will be required
to utilize the POC who in turn will escalate support
requirements to lBM/Tivoli if and when such problems are
beyond their capacity to resolve. Your POCs will be trained by
IBM/Tivoli, at your expense, using lBM/Tivoli's then current
training curriculum for POCs.
(2) Distributing internally to affected users of Tivoli Programs
the maintenance support software updates, patches, fixes, and
documentation provided by lBM/Tivoli under Maintenance
Services.
8. TIVOLI APPLICATION SERVICE PROVIDER AND OUTSOURCING OPTIONS
During the term of this Agreement you may elect to provide services to end users
outside of your Enterprise by entering into a separate Tivoli Application
Service Provider Agreement or Tivoli Outsourcing Agreement.
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9. CHARGES
You and IBM Credit Corporation have entered into a financing agreement
identified in the IBM Credit Term Lease Master Agreement ("TLMA"), Number
2706097. In accordance with the TLMA and upon execution of this Agreement, IBM
shall invoice IBM Credit Corporation for initial order of the Tivoli Management
Points for the Eligible Programs listed in Attachment One and the first year of
Standard Support totaling $10,770,375. The parties acknowledge and agree that
the terms and conditions of this Agreement and the TLMA represent separate
agreements which remain independent from one another.
Payment terms for all invoices issued by IBM in accordance with this Agreement
shall be net thirty (30) days from date of invoice, unless otherwise stated
herein. All fees stated are exclusive of any applicable taxes, for which IBM
will invoice you separately upon execution.
10. GENERAL
(a) This ELA Offering is valid if executed on or before June 12, 2000.
(b) This Agreement may not be combined with any allowance, discount, or other
offering available for these Eligible Programs, unless specifically agreed
to in writing by IBM.
(c) Both you and IBM will identify one point of contact to facilitate a) the
communication between us and b) the management of this Agreement.
(d) Any terms of this Agreement, which by their nature extend beyond the date
this Agreement ends, remain in effect until fulfilled and apply to
respective successors and assignees.
(e) You may not transfer or assign this Agreement without IBM's written
consent.
(f) The terms of this Agreement are governed by the laws of the State of New
York.
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IBM CUSTOMER AGREEMENT
Thank you for doing business with us. We strive to provide you with high 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 business
transactions you may do with us to purchase Machines, license Programs, and
acquire Services.
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 agree 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: (Enterprise name) Agreed to:
Edison Schools Inc. International Business Machines
Corporation
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
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Authorized signature Authorized signature
Name (type or print): Name (type or print):
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Date: 6/2/00 Date: 6/5/00
Enterprise number: 2705627 Agreement number: HQ12291
Enterprise address: IBM address:
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After signing, please return a copy of this Agreement to the "IBM
address" shown above.