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3501 - Schedule "A" - A by-law to enter into an agreement with Her Majesty the Queen in Right of Ontario and CompuCom Canada Co.DMSP PURCHASING AGREEMENT (for use of non-Ontario organizations) THIS AGREEMENT (the "DMSP Purchasing Agreement"), made in quintuplet is effective as of the day of March 7, 2011 (the "Effective Date") BETWEEN: HER MAJESTY THE QUEEN in right of Ontario as represented by the MINISTER OF GOVERNMENT SERVICES (referred to as the "Ministry" or "MGS") AND: CompuCom Canada Co. (referred to as "CompuCom") AND: Corporation of the Town of Tillsonburg (referred to as "non-Ontario organization") In consideration of their respective agreements set out below, the parties covenant and agree as follows: ARTICLE 1 - INTERPRETATION AND GENERAL PROVISIONS 1.1 Defined Terms Unless otherwise specified herein, capitalized words and phrases have the meaning set out in the Agreement. "Agreement" means the Agreement between Her Majesty the Queen in right of Ontario as represented by the Minister of Government Services and each of the two Suppliers, Compugen Inc. and CompuCom Canada Co. dated March 16, 2010; "Broader Public Sector" includes all of the following entities as may be amended from time to time by MGS: municipalities, academic institutions, school boards, health care providers and major transfer payment recipients. BPS is further described in Article 2; "DMSP Purchasing Agreement" means this agreement between the parties: MGS, Compugen, CompuCom and the non-Ontario organization that sets out the preconditions for the purchase of any Products and Services by the non-Ontario organization under the Agreement; "Non-Ontario Agreement" means any agreement entered into by the non-Ontario organization (a legal entity that is not included in 'Indemnified Parties' as defined in the Agreement) and one or both of the Suppliers, where the agreement incorporates by reference or otherwise the Agreement and the DMSP Purchasing Agreement; "Representatives" (a) Ministry Representative and Address mean the representative for all matters relating to the OPS in connection with the DMSP Purchasing Agreement unless otherwise Version 5.0 DMSP Purchasing Agreement Page 1 of 14 specified by the Ministry Representative. Ministry Representative Name: Lee Prasaud Title: Executive Lead;, Infrastructure Technology Services Address: 155 University Avenue, 8th Floor Toronto, Ontario M5H 3B7 Telephone Number: 416-314-5879 Facsimile number: 416-327-3305 E-Mail Address: Lee.FVasaud@ontario.ca Back-up Name: Zelko Holjevac Title: Director, Desktop Services & Field Services Branch Address: 901 King Street West, 3rd floor Toronto, Ontario M7A 2A9 Telephone Number: 416-212-2259 Facsimile number: 416-326-2247 E-Mail Address: Zelko.Holjevac®Ontario.ca (b) CompuCom's Representative and Address CompuCom's Representative Name: Anna Leon Title: Account Executive, CompuCom Canada Co Address: 1830 Matheson Blvd. Unit #1 Mississauga, Ontario L4W OB3 Telephone Number: 416-298-5256 Facsimile number: 416-298-5238 E-Mail Address: Anna.Leon@compucom.com CompuCom's Back-up Representative Name: Manju Chikkahanumaiah Title: Account Executive, CompuCom Canada Co. Version 5.0 DMSP Purchasing Agreement Page 2 of 14 Telephone Number: 416-569-9936 Facsimile number: 905-816-3333 E-Mail Address: Maniunath.Chikkahanumaiah@ccsicompucom.com (c) Non-Ontario Organization Representative and Address Name: David Samis Title: Director of Development and Communication Services Address: 200 Broadway, 2nd floor Tillsonburg, Ontario N4G 5A7 Telephone Number: (519) 688-3009 ext. 3230 Facsimile number: (519) 842-9431 E-Mail Address: DSamis@Tillsonburg.ca Back-up Name: Darrell Eddington Title: Director of Finance Address: 200 Broadway, 2nd floor Tillsonburg, Ontario N4G 5A7 Telephone Number: (519) 688-3009 ext. 3251 Facsimile number: (519) 842-9431 E-Mail Address: "Suppliers" mean Compugen Inc. and CompuCom Canada Co. and "Supplier" means either one. 1.2 No Indemnities from Ministry Notwithstanding anything else in the Agreement, DMSP Purchasing Agreement or any Non- Ontario Agreement any express or implied reference to the Ministry or any OPS Customer providing an indemnity or any other form of indebtedness or contingent liability that would directly or indirectly increase the indebtedness or contingent liabilities of the Indemnified Parties, whether at the time of execution of the DMSP Purchasing Agreement or any Non- Ontario Agreement or at any time during the Term, shall be void and of no legal effect. This Section shall survive the termination or expiry of the DMSP Purchasing Agreement and any Non-Ontario Agreement. Version 5.0 DMSP Purchasing Agreement Page 3 of 14 1.3 Severability If any term or condition of the DMSP Purchasing Agreement, or the application thereof to the parlies or to any Persons or circumstances, is to any extent invalid or unenforceable, the remainder of the DMSP Purchasing Agreement, and the application of such term or condition to the parties, Persons or circumstances other than those to which it is held invalid or unenforceable, shall not be affected thereby. 1.4 Interpretive Value of Documents In the event of any conflict or inconsistency between or among any of the provisions of the Agreement, DMSP Purchasing Agreement and the Non-Ontario Agreement the provisions shall govern in the following order of precedence with each taking precedence over those listed subsequently: (a) the Articles of the Agreement; (b) in Schedule 1 of the Agreement, (i) the RFP and any Addenda issued by MGS; (ii) the Proposal, clarifications and other documentation provided by the Supplier or such parts of the Proposal, clarifications or other documentation that are accepted by MGS; (c) Schedule 3 of the Agreement; (d) Schedule 2 of the Agreement; (e) DMSP Purchasing Agreement; (f) Non-Ontario Agreement. This Section shall survive the termination or expiry of the DMSP Purchasing Agreement and any Non-Ontario Agreement. 1.5 Interpretive Value of Headings The headings in the DMSP Purchasing Agreement are for convenience of reference only and in no manner modify, interpret or construe the DMSP Purchasing Agreement. 1.6 Governing Law The DMSP Purchasing Agreement or any Non-Ontario Agreement shall be governed by and construed in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to the DMSP Purchasing Agreement or any Non-Ontario Agreement. This Section shall survive the termination or expiry of the DMSP Purchasing Agreement and any Non-Ontario Agreement. ^Version 5.0 DMSP Purchasing Agreement Page 4 of 14 ARTICLE 2 - NATURE OF RELATIONSHIP BETWEEN THE PARTIES 2.1 Representations and Warranties (a) The parties represent that their respective representatives have the authority to legally bind them to the extent permissible by the Requirements of Law. (b) Each of the Suppliers and the non-Ontario organization represent and warrant that each is a legal entity with the capacity to contract and that each has taken all necessary corporate action to authorize the creation, execution, delivery and performance of the Agreement as applicable, the DMSP Purchasing Agreement and any resulting Non- Ontario Agreement. (c) The OPS makes no representation, assurance, warranty, guarantee or agreement regarding: (i) the value or volume of Deliverables that will be ordered or supplied under the DMSP Purchasing Agreement or any Non-Ontario Agreement; (ii) any Products or Services from the Supplier or Manufacturer of such Products or Services; or (iii) the accuracy, completeness or non-occurrence of changes in information provided by or on behalf of the OPS. 2.2 Infrastructure Technology Services Infrastructure Technology Sen/ices or ITS, the IT division in MGS, shall be the sole and exclusive representative of the Ontario Public Service for all matters relating to the Agreement and the DMSP Purchasing Agreement. Reports relating to Products (or components) or Services ordered by a non-Ontario organization from one or both Suppliers shall be provided to ITS in accordance with Section 2.7(b). 2.3 Suppliers or Non-Ontario Organization Not a Partner, Agent or Employee of OPS The Suppliers or the non-Ontario organization shall have no power or authority to bind the Ministry or the OPS or to assume or create any obligation or responsibility, express or implied, on behalf of the Ministry. The Suppliers or the non-Ontario organization shall not hold themselves out as agents, partners or employees of the Ministry or the OPS. Nothing in the DMSP Purchasing Agreement or any Non-Ontario Agreement shall have the effect of creating an employment, partnership or agency relationship between the Ministry or the OPS on the one hand and each of the Suppliers, each Supplier's Personnel or the non-Ontario organization on the other hand or, constitute an appointment under the Public Service of Ontario Act, 2006, S.O. 2006, Chapter 35, as amended. The Suppliers shall be solely liable for all moneys payable by them on account of statutory and contractual obligations arising from payments received pursuant to the DMSP Purchasing Agreement. This Section shall survive the termination or expiry of the DMSP Purchasing Agreement and any Non-Ontario Agreement. Version 5.0 DMSP Purchasing Agreement Page 5 of 1 2.4 Broader Public Sector and Agencies (a) The Broader Public Sector (BPS) includes: 1. Municipalities • Every municipality in Ontario as defined in the Municipal Affairs Act and the Municipal Act; • Every regional municipality in Ontario as defined in the Regional Municipalities Act; • The District Municipality of Muskoka as described in the District Municipality of Muskoka Act; and, • Every local board in Ontario as defined in the Municipal Affairs Act and the Municipal Act. 2. Academic Institutions • Every university in Ontario; • Every college of applied art and technology in Ontario; • Every post-secondary institution in Ontario. 3. School Boards • Every school board in Ontario as defined in the Education Act. 4. Health Care Providers • Every hospital listed in the Schedule to the Classification of Hospitals Regulations made under the Public Hospitals Act; and, • Every private hospital operated under the authority of a licence issued under the Private Hospitals Act. including: • Community Health Centres; • Public Health Units; • Offices; and, • Community Care Access Locations. 5. (a) Major Transfer Payment Recipients • Any organization which receives operational funding from an Ontario Government ministry and is determined to be a major transfer payment recipient by that ministry. • May include Ontario Government agencies that are not included in the Ontario Public Service. (b) Agencies May include only for the purchase of Products or Services under the Agreement as defined above, sion 5.0 DMISP Purchasing Agreement Page 6 of 14 • Agencies of the Ontario Legislative Assembly. • OPS Classified Agencies such as Local Health Integration Networks ("LHINs"). • Non Classified Agencies. 2.5 Non-Ontario Agreement If any non-Ontario organization, including any BPS entity and Agency referenced in Section 2.4 above, seeks to acquire Products (or components) or Services under the same or similar terms of the Agreement, the Supplier shall offer Products and Services to those non-Ontario organizations through a Non-Ontario Agreement, being a separate agreement between the Supplier and a non-Ontario organization that contains the same or similar terms of the Agreement. The Supplier shall include in the Non-Ontario Agreement, and the non-Ontario organization shall agree to the following conditions in the Non-Ontario Agreement: (a) Any obligation, cost or liability arising under or in connection with the Non-Ontario Agreement shall remain with the Supplier and the non-Ontario organization as parties to the Non-Ontario Agreement. The Indemnified Parties as defined in the Agreement shall not be responsible or liable to any party to the Non-Ontario Agreement and no party to the Non-Ontario Agreement shall make any representation or covenant or enter into any agreement to the contrary. (b) The Non-Ontario Agreement shall specifically include a provision binding on the parties to the Non-Ontario Agreement stating that the Indemnified Parties, as defined in the Agreement, shall not be responsible or liable to the parties to the Non-Ontario Agreement. For greater certainty, no party to the Non-Ontario Agreement shall have any cause of action, action, claim, demand or lawsuit against the Indemnified Parties as a result of any act or omission of the parties to Non-Ontario Agreement or as a result of any act or omission of the Indemnified Parties in connection with the Agreement, and the parties to the Non-Ontario Agreement shall indemnify and hold the Indemnified Parties harmless from any Losses (as defined in the Agreement) as a result of any Proceeding (as defined in the Agreement) brought by any party to the Non-Ontario Agreement. (c) The Non-Ontario Agreement shall not: (i) have the effect of creating an employment, partnership or agency relationship between a party to the Non-Ontario Agreement on the one hand and the Indemnified Parties on the other; or, constitute an appointment under the Public Service of Ontario Act, 2006, S.O. 2006, Chapter 35, as amended; (ii) impose or result in the imposition of any cost, obligation, liability or covenant on the Indemnified Parties; (iii) relieve the Supplier of its performance or any responsibility, obligation, covenant or liability in connection with the Agreement and the DMSP Purchasing Agreement; and, (iv) negate, impede or impair the exercise of any rights, licences or permissions under or in connection with the Agreement by any Indemnified Parties or by any persons authorized under or in connection with the Agreement to exercise any Version 5.0 DMSP Purchasing Agreement Page 7 of 14 such rights, licences or permissions on behalf of the Indemnified Parties. (d) Liabilities of the non-Ontario organization Each of the Suppliers and the non-Ontario organization shall put in effect and maintain insurance for the Term, at their own cost and expense, with insurers having a secure A.M. Best rating of B + or greater, or the equivalent, all the necessary and appropriate insurance to cover applicable liabilities and obligations under the Agreement, the DMSP Purchasing Agreement and any subsequent Non-Ontario Agreement. Any insurance amounts provided for by each of the Suppliers and the non-Ontario organization shall not be construed so as to relieve or limit their liability in excess of such coverage and shall not preclude the Indemnified Parties from taking such other actions as are available under any provision of the Agreement, the DMSP Purchasing Agreement or otherwise at law or in equity. This Section shall survive the termination or expiry of the Agreement, the DMSP Purchasing Agreement and any applicable Non-Ontario Agreement. In the event of conflict with any other provision of the DMSP Purchasing Agreement and any applicable Non-Ontario Agreement, this Section shall prevail. 2.6 Geographical Zones and Exemption As a result of the initial award process, Compugen has been awarded the business in Zone 2 and Zone 3 and CompuCom has been awarded the business in Zone 1. On an annual basis, the Ministry reserves the right to perform a Price and Performance review of both Suppliers. The results of the Price and Performance Review will identify the Supplier that will provide Zone 3 Products and Services for Project Refresh business for the next 12 month Term of the Agreement including any 12 month extensions. Any non-Ontario organization that seeks to purchase any Product (or component) or Service must order the Product or Service from the Supplier that has been awarded the business in the Zone(s) in which the seat(s) is/are located. For example, if a Standard Desktop computer is for a location in South West Ontario, CompuCom will provide it but if it is for a location in Eastern Ontario, Compugen will provide it. The geographical boundaries of the three Zones are as follows: Zone!> Queens Park Complex south to Dundas Street > South West Ontario > Central Ontario west of Hwy400/Hwy11 - Includes Barrie > Western Edge at Eastern/Central Time Zone limit > Excludes Justice Cluster, OPP, Judiciary (including Criminal Law) and Courts seats > Includes all other Justice Cluster seats in this zone Zone 2 > Downtown Toronto, excluding Queens Park Complex to Dundas > Eastern Ontario > Central Region East of Hwy400/Hwy11 - Includes North Bay and Kirkland Lake > Area west of Eastern/Central Time Zone Limit Version 5.0 DMSP Purchasing Agreement Page 8 of 14 Includes Justice Exemption and all other Justice Cluster seats in this zone ZoneS > Northern Limit - Hwy 407 > Western Limit - Hwy 427 > Eastern Limit - Hwy48/Markham Road > Excludes Queen's Park and Downtown Toronto areas > Excludes Justice Cluster seats OPP, Judiciary & Courts only > Includes Justice Cluster Corrections seats in this zone. 2.7 Obligations (a) The Suppliers shall not be relieved of any obligation, liability, representation, warranty or covenant under the Agreement as a result of the DMSP Purchasing Agreement and any applicable Non-Ontario Agreement. (b) No later than the fifth day of the month following each quarter, the non-Ontario organization, even if exempt by ITS from the zoning requirements of the Agreement, shall provide a detailed, complete, accurate quarterly report and all applicable supporting documentation to ITS indicating: (i) quantities ordered of each Product Category, Product Type, Manufacturer Specific Optional Accessory Item, if any, and Services; (ii) location of each seat in relation to one or more Zones for which the Products and Services were ordered; (lii) name of the Supplier from whom the Products and Services were ordered; and, (iv) price of each Product and Service. (c) Each of the Suppliers shall provide all necessary information and supporting documentation to enable the non-Ontario organization to fulfill its reporting obligation in clause (b) of this Section 2.7. Each of the Suppliers hereby consents to the release to ITS by the non-Ontario organization of the information contained in the reports and any supporting documentation. (d) The non-Ontario organization shall order Products (or components) and Services only from the Supplier that has been awarded the business in that Zone and the Suppliers shall provide Products and Services to the non-Ontario organization at same or similar prices as required under the Agreement. (e) Each of the Suppliers and the non-Ontario organization shall comply with the geographical boundaries set by the Ministry under the Agreement. Failure on the part of the Suppliers or the non-Ontario organization to comply with the obligations in this Section shall constitute material and substantive breach of the DMSP Purchasing Agreement and cause for termination under Section 3.3. Version 5.0 DMSP Purchasing Agreement Page 9 of 14 ARTICLE 3 - TERM, TERMINATION 3.1 Term The duration of the DMSP Purchasing Agreement and any applicable Non-Ontario Agreement shall not exceed the Term of the Agreement. The DMSP Purchasing Agreement and any applicable Non-Ontario Agreement will be for a period of three years, commencing March 16, 2010 (or less depending on the number of years remaining to expiry of the initial Term of the Agreement) and possible annual extensions exercised at the option of the Ministry. 3.2 Co-Termination The DMSP Purchasing Agreement and any applicable Non-Ontario Agreement shall co- terminate with the Agreement. The DMSP Purchasing Agreement and any applicable Non- Ontario Agreement will terminate prior to the expiration of the then current term if the Agreement is terminated by the Ministry in accordance with the provisions of Article 8 of the Agreement. 3.3 Immediate Termination of DMSP Purchasing Agreement The following events constitute material and substantive breach of the DMSP Purchasing Agreement and are cause for termination. The Ministry may immediately terminate the DMSP Purchasing Agreement (except in the case of clause (g) of this Section 3.3 which is subject to Section 3.4) upon giving notice to one or both Suppliers and the non-Ontario organization where: (a) either of the Suppliers or the non-Ontario organization is adjudged bankrupt, makes a general assignment for the benefit of its creditors or a receiver is appointed on account of the Supplier's or the non-Ontario organization's insolvency; (b) either of the Suppliers or the non-Ontario organization prior to or after executing the DMSP Purchasing Agreement, makes a misrepresentation or omission or provides inaccurate or incomplete information to the Ministry; (c) if any of the representations and warranties of either of the Supplier or the non-Ontario organization as set out in the DMSP Purchasing Agreement are inaccurate or untrue; (d) either of the Suppliers subcontracts or assigns part or all of the Deliverables or, either of the Suppliers or the non-Ontario organization assigns the DMSP Purchasing Agreement in whole or in part without first obtaining the written approval of the Ministry which approval may be withheld; (e) either of the Suppliers or the non-Ontario organization breaches the confidentiality of any OPS Confidential Information or any provision in Article 5 (Confidentiality and FIPPA) of the Agreement; (f) failure by either of the Suppliers or the non-Ontario organization to comply with applicable obligations in Section 2.5 and Section 2.7 above; (g) the Supplier's acts or omissions constitute a failure to perform any obligation or a default of any provision of the Agreement which failure or default does not come within the provisions of clauses (a) - (f) of this Section 3.3; 'ersion 5.0 DMISP Purchasing Agreement Page 10 of 14 and the above rights of termination are in addition to all other rights of termination available to the Ministry at law. 3.4 Dispute Resolution by Rectification Notice Subject to Section 3.3, where either of the Suppliers or the non-Ontario organization fails to comply with any obligation referred to in clause (g) of Section 3.3 above or, in the discretion of the Ministry, any obligation under the DMSP Purchasing Agreement, the Ministry may issue a rectification notice to the Supplier or the non-Ontario organization setting out the manner and time frame for rectification. Within seven (7) calendar days of receipt of that notice, the Supplier or the non-Ontario organization shall either: (a) comply with that rectification notice; or (b) provide a rectification plan satisfactory to the Ministry. If the Supplier or the non-Ontario organization fails to either comply with that rectification notice or provide a satisfactory rectification plan, the Ministry may immediately terminate the DMSP Purchasing Agreement. Where the Supplier or the non-Ontario organization has been given a prior rectification notice, the second subsequent non-compliance by the Supplier with the same obligation shall allow the Ministry in its sole discretion to immediately terminate the DMSP Purchasing Agreement. Where the Supplier or the non-Ontario organization has been given two (2) or in the sole discretion of the Ministry, more notices under this Section 3.4, the Ministry, upon giving a third or subsequent such notice, whether such notices relate to the same default or to separate occurrences may, at its option, elect for the notice of termination to be effective immediately or at such other time as the Ministry may, in its discretion, specify. 3.5 Termination on Notice The Ministry reserves the right to terminate the DMSP Purchasing Agreement without cause, and without any cost, penalty, obligation or liability upon thirty (30) calendar days prior written notice to either or both of the Suppliers and the non-Ontario organization. For greater certainty, the parties acknowledge that the right of the Ministry to exercise the right of Termination on Notice pursuant to this Section 3.5 shall not be subject to the dispute resolution process set forth in the Agreement or the DMSP Purchasing Agreement. 3.6 Effects of Termination Upon termination by the Ministry of the Agreement or the DMSP Purchasing Agreement and consequently any applicable Non-Ontario Agreement, neither of the Suppliers shall supply any Products or Services nor shall the non-Ontario organization order any Products or Services from either or both of the Suppliers otherwise available under the Agreement. The express rights of the Ministry of termination are in addition to and shall in no way limit any rights or remedies of the Ministry under the Agreement, the DMSP Purchasing Agreement, at law or in equity. ARTICLE 4 - DISPUTE RESOLUTION 4.1 Escalation In the event of a dispute under this DMSP Purchasing Agreement, the parties shall attempt to resolve the dispute promptly by notifying the other parties in writing of the dispute. 1. Initial Step: Operations Level Version 5.0 DMSP Purchasing Agreement Page 11 of 1 If a party provides written notice to the other parties of a dispute, the following representatives will attempt to resolve the dispute, and will initially meet (in person or by telephone) for that purpose within five (5) Business Days of the written notice: Ministry: Manager, DMSP Supplier: Services Manager Non-Ontario organization: IT Services 2. Second Step: Management Level If the parties are unable to resolve the dispute within five (5) Business Days after the first meeting described in paragraph 1 above (or such longer period as may be agreed upon), the representatives set out in paragraph 1 above will refer the matter to the following executive-level representatives, who will initially meet (in person or by telephone) to attempt to resolve the dispute or disagreement within ten (10) Business Days after the initial meeting described in paragraph 1 above: Ministry: Executive Lead, Ministry of Government Services Supplier: Vice President ............ Non-Ontario organization: Director of Development and Communication Services 3. Third Step: Executive Level If the parties are unable to resolve the dispute within ten (10) Business Days (or such longer period as may be mutually agreed upon), the representatives will refer the matter to the following executive-level representatives, who will initially meet (in person or by telephone) to attempt to resolve the dispute or disagreement within thirty (30) days. Ministry: Corporate Chief, Infrastructure Technology Services, Ministry of Government Services Supplier: Vice President ................. Non-Ontario organization: Director of Development and Communication Services 4. Fourth Step: Senior Executive Level If the parties are unable to resolve a Dispute within thirty (30) days (or such longer period as may be mutually agreed upon), the representatives will refer the matter to the following senior executive-level representatives, who will initially meet (in person or by telephone) to attempt to resolve the dispute or disagreement within thirty (30) days. Ministry: Corporate Chief Information Officer, Ministry of Government Services Supplier: Executive Vice President .......................... Non-Ontario organization: Director of Development and Communication Services If the senior executive-level representatives of the parties are unable to resolve the Dispute within thirty (30) days after their initial meeting (or such longer time as may be agreed), the matter may be referred by a party to arbitration. ersion 5.0 DMSP Purchasing Agreement Page 12 of 14 IN WITNESS WHEREOF the parties hereto have executed the DMSP Purchasing Agreement effective as of the date first above written. Her Majesty the Queen in right of Ontario, as represented by Jtfie Minister of Government Services Signatur Title: Date of Signature: f^lClL r)M; ^ CompuCom Canada Signature: I have authority to bincj^toWp^Com Canada Co. Name: Title: Date of Signature:I Non-Ontario Organization Signature:_ I have authority/o bind the n^n-Onfario organization Signature: Name: Mayor John Lessif Name: Donna Hemeryct Title: _ Mayor Date of Signature:c3_~? c^LO ( Title: Clerk Date of Signature: fypr e3D Version 5.0 DMSP Purchasing Agreement Page 13 of 1