Maintenance Service Agreement

Transcription

1 ServicePac Maintenance Service Agreement NOTICE: PLEASE CAREFULLY READ THE FOLLOWING TERMS UNDER WHICH INTERNATIONAL BUSINESS MACHINES CORPORATION ( IBM ) WILL PROVIDE THIS SERVICE TO YOU. IBM WILL PROVIDE THIS MAINTENANCE SERVICE TO YOU ONLY IF: 1) YOU ARE ACQUIRING THIS SERVICE FOR A MACHINE WHICH IS NORMALLY USED FOR BUSINESS, PROFESSIONAL, OR TRADE PURPOSES, RATHER THAN PERSONAL, FAMILY, OR HOUSEHOLD PURPOSES; 2) YOU COMPLETE THE ONLINE PROCESS IN IBM S INTERNET WEBSITE TO ACTIVATE THE SERVICE WITHIN 30 DAYS OF PURCHASE (UNLESS IBM AGREES OTHERWISE); AND 3) YOU ACCEPT THE TERMS OF THIS AGREEMENT. YOU CONFIRM YOUR ACCEPTANCE OF THIS AGREEMENT ELECTRONICALLY ON BEHALF OF YOUR ENTERPRISE IN IBM S INTERNET WEBSITE, BY CLICKING YOUR AFFIRMATIVE ACCEPTANCE, DURING YOUR COMPLETION OF THE ONLINE PROCESS TO ACTIVATE THIS SERVICE. IF YOU DO NOT MEET THESE CONDITIONS OR YOU DO NOT ACCEPT THE TERMS OF THIS AGREEMENT, PROMPTLY NOTIFY YOUR PLACE OF PURCHASE AND REQUEST A REFUND OR A CREDIT IN THE AMOUNT YOU PAID FOR THIS SERVICE. ONCE YOU ACTIVATE THIS SERVICE, IBM WILL NOT PROVIDE A REFUND OR CREDIT. EACH TIME THAT YOU ORDER A NEW SERVICEPAC TYPE WITHIN THE SYSTEM YOU WILL BE REQUIRED TO ACCEPT THE INTIAL TERMS OF THE AGREEMENT. ONCE YOU HAVE COMPLETED THE REGISTRATION PROCESS, ADDITIONAL ELIGIBLE MACHINES MAYBE ADDED TO THE SERVICES PURCHASED PURSUANT TO THIS AGREEMENT. YOU AGREE THAT YOUR ORDER(s) FOR THESE SERVICES FOR ALL ADDITIONAL ELIGIBLE MACHINES THROUGH YOUR IBM REPRESENTATIVE FOLLOWING THE INITIAL REGISTRATION PROCESS WILL BE SUBJECT TO THESE SAME TERMS AND CONDITIONS. 1. Scope and Agreement Acceptance 1.1 Scope This IBM ServicePac Maintenance Service Agreement (called the Agreement ) is the complete and exclusive agreement regarding your acquisition of warranty service upgrade and post-warranty maintenance service (called Service ) for both IBM Machines covered by the part number that was ordered (collectively called Machines ) and replace any prior oral or written communications between you, your IBM reseller or IBM regarding such acquisition. This Service is designed to keep your Machines in, or restore them to, conformance with their Specifications. IBM Machine Specifications are listed in a document entitled "Official Published Specifications." We reserve the right to inspect a Machine within one month from the activation date of this Service. If the Machine is not in an acceptable condition for Service, we will notify you, terminate coverage, and refund your money. IBM will provide Service, either 9 hours per day 5 days a week (Monday through Friday, excluding national holidays in the United States) during normal business hours, or 24 hours per day, 7 days per week as specified by the part number that you ordered. IBM will provide this Service only in the country of acquisition for Machines identified in the supported product list, or provide Service as outlined in the purchase. You may access a list of eligible supported products at the following IBM website: FOR IBM MACHINES, SERVICE IS AVAILABLE ONLY IF 1) FOR A WARRANTY SERVICE UPGRADE, IF IT WAS PURCHASED DURING THE MACHINE S IBM INITIAL BASE WARRANTY PERIOD, 2) FOR A MAINTENANCE AGREEMENT, IFTHE MACHINE IS IN GOOD WORKING ORDER, 3) YOU ACTIVATE THIS SERVICE BY FOLLOWING THE ACTIVATION PROCESS THAT WE PROVIDE, AND 4) IN THE CASE OF 24x7x2 HOUR RESPONSE SERVICE IN THE U.S., THE MACHINE IS LOCATED WITHIN 50 MILES OF SELECTED METROPOLITAN LOCATIONS. (NOTE: CERTAIN REPAIRS TO A MOBILE MACHINE MAY REQUIRE SENDING THE MACHINE TO AN IBM REPAIR CENTER). Service does not cover accessories, supply items, some devices, for example fusion I/O and solid state devices beyond their read/write or wear limitation, and certain parts, such as batteries, frames, and Z Page 1 of 6

2 covers. In addition, this Agreement does not cover Service of a Machine damaged by misuse, accident, modification, unsuitable physical or operating environment, improper maintenance by you, removal or alteration of Machine or parts identification labels, or failure caused by a product for which IBM is not responsible. For non-ibm Machines, this Agreement also does not cover Machine installation, engineering change activity, preventive maintenance, microcode/firmware activity, or features and parts not supplied by the original manufacturer or IBM in performance of this Service. 1.2 Acceptance This Agreement is the complete agreement regarding transactions by which you acquire Service from IBM, and replaces all prior oral or written communications, representations, undertakings, warranties, promises, covenants and commitments between you and IBM. In entering into this Agreement neither party is relying on any representation that is not specified in the Agreement. Additional or different terms in any written communication from you (such as a purchase order) are void. By signing this Agreement electronically, each of us accepts the terms of this Agreement, without modification, on behalf of its Enterprise (an Enterprise is any legal entity (such as a corporation) and the subsidiaries it owns by more than 50 percent. The term Enterprise applies only to the portion of the Enterprise located in the United States). Once signed, 1) any reproduction of this Agreement made by reliable means (for example, electronic image, photocopy or facsimile) is considered an original and 2) the Services are subject to it. 2. Type of Service for Machines a. Except as described below with respect to remotely-provided services, IBM will provide repair or exchange Service either at your location, called On-site, or at IBM s service center, called EasyServ. Under On-site Service, if Service is required as determined by IBM, IBM will use reasonable efforts to respond as specified in the supported product list. Some parts of IBM Machines are considered Customer Replaceable Units (CRUs). IBM will ship these parts to you for your replacement. But for machines that IBM designates to be entirely CRU, IBM will ship such CRU parts as requested by customer even though customer had procured an on-site ServicePac upgrade. For machines not designated as entirely CRU, IBM will ship external CRUs for customer replacement even though customer had procured an on-site ServicePac upgrade. All defective CRUs must be returned to IBM with the exception of any hard drive designated as a CRU if the hard drive retention option has been selected. Under EasyServ service, if Service is required as determined by IBM, you may deliver the failing Machine or ship it suitably packaged (prepaid, unless IBM specifies otherwise) to a location IBM designates, or IBM will use a courier to pick up and return the Machine as specified in the supported product list. Certain IBM Eligible Machine types with a 2 or 4 hour on-site response-time objective may require the installation and use of remote connectivity tools and equipment for direct problem reporting, remote problem determination and resolution. b. When a type of Service involves the exchange of a Machine or part, the item IBM replaces becomes its property unless the hard drive retention option is selected and the replacement becomes yours. You represent that all removed items are genuine and unaltered. The replacement may not be new, but will be in good working order and at least functionally equivalent to the item replaced. The replacement assumes the Service status of the replaced item. Before IBM exchanges a Machine or part, you agree to remove all features, parts, options, alterations, and attachments not under IBM s Service. You also agree to ensure that the item is free of any legal obligations or restrictions that prevent its exchange. IBM is responsible for loss of or damage to, your Machine while it is 1) in IBM s possession or 2) in transit in those cases where IBM is responsible for the transportation charges. 3. Optional Service Media Retention Option 3.1 Service Description Under this Media Retention Option, if selected by ServicePac part number, IBM will modify Type of Service for Machines as described in this Agreement to allow you to retain a defective hard drive or flash memory device that is replaced in the course of Service by us. The supported device(s) under this Agreement may include based on part number selection either a hard drive or flash memory device. If your reported problem requires the replacement of a device, a replacement will be supplied by us and the removed device will be provided to you as your property for disposal by you. The eligible Machines for this option are identified at the following web site: Z Page 2 of 6

3 3.1.1 Your Responsibilities You agree to: a. maintain a ServicePac providing either warranty service upgrade or hardware maintenance for those eligible Machines covered under this Media Retention Option; b. identify a customer representative to receive the retained device from IBM; c. refrain from placing the retained device into productive use; and d. dispose of all retained devices in compliance with applicable environmental laws and regulations. IBM is not responsible for the loss or disclosure of, or damage to, any data that may be contained on a removed device. Any removed device that is not returned to you will be retained as IBM s property. 4. Optional Services Microcode Support Analysis The IBM Microcode Support Analysis ( Services ) will consist of supporting microcode for those Eligible IBM Machines specified by the ServicePac part number purchased by providing your choice of Microcode Support - Analysis as further described below. The type and frequency of the Services are defined by the ServicePac part number purchased. As a prerequisite for provision of the Services, each of the Eligible IBM Machines, as defined below, for which Microcode Support will be provided must be (i) fully operable upon the commencement of Services, (ii) on a supported Microcode and software level and (iii) currently covered by an IBM hardware maintenance agreement and/or under warranty during the entire SOW term. Additionally the IBM Microcode Data Collector tool(s) may need to be installed on Eligible IBM Machines to collect Microcode levels. 4.1 Services Microcode Support Services Coordination The Project Management Office Representative will contact your point of contact to schedule and conduct a remote welcome and planning conference call for up to 30 minutes, on a mutually agreed upon date and time to review: a. the objectives of the Services; b. the Eligible IBM Machines supported under this Agreement; c. roles and responsibilities; and operating system levels. 4.2 Microcode Support Analysis IBM will perform an analysis and verify whether the recorded Microcode levels of all Eligible IBM Machines for Microcode Support Analysis service covered by the ServicePac part number purchased are up-to-date, taking into account any dependencies on the operating system and driver levels. Any dependencies between connected Eligible IBM Machines will also be verified Verification of the dependencies within a network will be completed only if Services have been purchased for the connected network components. Once the Microcode Support Analysis is complete, the Project Management Office Representative will electronically deliver a Microcode Support Plan to your point of contact. This document contains your current Microcode driver and Host Bus Adapter levels on your Eligible IBM Machines and provides Microcode upgrade recommendations, if applicable You agree under the Microcode Support Analysis to: a. name a technical contact to IBM who will be available as your Point of Contact with respect to the coordination of the necessary actions within the scope of Services. The initial Point of Contact will be the person registered under the ServicePac part number purchased. Your Point of Contact will coordinate the time schedule for: (1) pending actions with the IBM Project Management Office Representative and will ensure your observance of the agreed schedule; b. remain responsible during the Microcode Support Analysis for any decisions regarding upgrades on your Eligible IBM Machines as documented in your Microcode Support Plan, this may include updates for device drivers and/or operating system; Z Page 3 of 6

4 c. provide the IBM Project Management Office Representative with all information requested during the remote welcome planning call. This may include your system configuration and an outline of your network topology; d. ensure that IBM will have remote access to your Eligible IBM Machines for querying the required system data, or, if deemed possible by the IBM Project Management Office Representative, ensure that you provide the IBM Project Management Office Representative with the required system data identified by IBM. You hereby approve the use of programs enabling IBM to query the Microcode levels or the required data and be solely responsible for security of the network; e. notify the IBM Project Management Office Representative of changes to your Eligible IBM Machines, and of updates to the Microcode, drivers or operating systems that are not documented in the Microcode Support Plan. IBM will update the Microcode Support Plan accordingly; f. observe and abide by the accepted license terms for the Microcode; g. install and activate, per IBM s instructions, the Microcode Data Collector program(s); h. be responsible to maintain the ID and password table of the applicable Eligible Products within the Microcode Data Collector program(s) where necessary; i. remove, per IBM s instructions, the Microcode Data Collector program(s); j. make the necessary network changes to allow IBM access to your Eligible IBM Machines and your network during the hours we agreed upon; k. maintain responsibility for implementation of recommendations provided in the Support Plan and the implementation for any other technical procedure(s) that pertains to the Microcode levels for the Eligible IBM Machines for which you have subscribed under this contract. IBM provides knowledge and experience in providing you with a Microcode Support Plan, however IBM may not know about other Microcode levels on machines that are not covered under this contract; and l. acknowledge IBM s performance is dependent upon your management and fulfilment of your responsibilities under this Agreement. Any delay in performance of your responsibilities may result in delays in providing the Services and additional costs maybe incurred by you. Reports IBM grants you an irrevocable, nonexclusive, paid up license to use, execute, reproduce, display, perform and distribute within your Enterprise only copies of the Microcode Support Plan ( Materials ) that will be delivered under the Services. IBM or its suppliers will own all right, title and interest including ownership of the copyright in the Materials. All of your pre-existing materials remain your sole property. 5. Your Additional Responsibilities a. You agree to obtain authorization from the owner to have IBM service a Machine that you do not own. You agree to follow the instructions we provide and where applicable, before Service(s) is provided: 1) follow the problem determination, problem analysis, and Service(s) request procedures that we provide; and 2) secure all programs, data, and funds contained in a Machine. b. You agree to acknowledge that some devices (for example, fusion I/O devices and solid state devices), have read/write or wear limitations. When these devices have reached the read/write or wear limitations, they are not covered by the Service(s) described in this Agreement that provide support, maintenance, or replacement of defective, failed or any other parts. c. You agree 1) that you are responsible for the results obtained from the Service(s); and 2) to provide IBM with sufficient, free, and safe access to your facilities for IBM to fulfill our obligations. d. Your access to this Service(s) will end either one, two, three, four or five years, as indicated by the part number that you ordered, from the date on your IBM Machine s sales receipt or your IBM Maintenance ServicePac s sales receipt, unless IBM informs you otherwise in writing. For a non-ibm Machine, your access to this Service(s) will end either one or three years as indicated by the part number that you ordered, from the date you activate this Service(s). 6. IBM Business Partners IBM has signed agreements with certain organizations ( IBM Business Partners ) to promote, market, and support certain services. When you order services that are promoted or marketed to you by IBM Business Partners or other suppliers, however, such Business Partners and suppliers remain independent and separate from IBM. IBM is not responsible for the actions or statements of IBM Business Partners or other Z Page 4 of 6

5 suppliers, obligations that either has to you, or any products or services that they supply to you under their agreements. 7. Charges, Payment, and Taxes 7.1 When you Order the Services from IBM Payment must be made to the IBM reseller from whom you acquired the Service(s), or to IBM, as applicable. Except for credit card and debit card transactions, amounts are due upon receipt of invoice. You agree to pay as specified by IBM in the invoice, including any late payment fee. You are responsible for any taxes resulting from this Agreement. 7.2 When You Order the Services from an IBM Business Partner When you order the Service(s) from an IBM Business Partner, the IBM Business Partner establishes the charges for the Service(s) and the terms governing the payment of the charges. 7.3 IBM Return Policy You may cancel this ServicePac within 30 days and obtain a refund or credit. To qualify for this refund (or credit, if appropriate), you must notify your place of purchase within 30 days after the purchase date. A copy of your invoice must accompany the return. 8. Warranty for Services IBM warrants that the Service(s) will be performed using reasonable care and skill in accordance with the description of the tasks specified in this Agreement for the ServicePac part number you ordered. You agree to provide timely written notice of any failure to comply with this warranty so that IBM can take corrective action. THIS WARRANTY IS YOUR EXCLUSIVE WARRANTY AND REPLACES ALL OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTY OR CONDITION OF NON-INFRINGEMENT. IBM does not warrant uninterrupted or error-free operation of a Service(s) or that IBM will correct all defects. 9. Limitation of Liability Circumstances may arise where, because of a default on IBM s part or other liability, you are entitled to recover damages from IBM. In each such instance, regardless of the basis on which you are entitled to claim damages from IBM (including fundamental breach, negligence, misrepresentation, or other contract or tort claim), IBM is liable for no more than 1) damages for bodily injury (including death) and damage to real property and tangible personal property, and 2) the amount of any other actual direct damages or loss up to the charge for the Service(s) that is the subject of the claim. This limit also applies to any of IBM s subcontractors. It is the maximum for which IBM and its subcontractors are collectively responsible. Under no circumstances is IBM or its subcontractors liable for any of the following even if informed of their possibility: 1) loss of, of damage to, your records or data, or 2) special, incidental, or indirect damages or for any economic, consequential damages or 3) lost profits, business, revenue, goodwill, or anticipated savings. 10. General a. IBM reserves the right to subcontract the Service(s), or any part of them, to subcontractors selected by IBM. b. To the extent applicable to this transaction, each of us is responsible for the supervision, direction, control, and compensation of our respective personnel. c. Each of us may communicate with the other by electronic means and such communication is acceptable as a signed writing to the extent permissible under applicable law. An identification code (called a user ID ) contained in an electronic document is legally sufficient to verify the sender s identity and the document s authenticity. d. Nothing in this Agreement affects any statutory rights of consumers that cannot be waived or limited by contract. e. Each of us is free to enter into similar agreements with others. Z Page 5 of 6

6 f. Each of us grants the other only the license and rights specified in the applicable license agreements. No other licenses or rights (including licenses or rights under patents) are granted. g. You agree not to resell the Service(s). Any attempt to do so is void. h. You are responsible for selecting the Service(s) that meets your needs and for the results obtained from the use of the Service(s). i. The exchange of any confidential information will be made under a signed confidentiality agreement. j. You authorize International Business Machines Corporation and its subsidiaries (and their successors and assigns, contractors and IBM Business Partners) to store and use your business contact information wherever they do business, in connection with IBM products and services or in furtherance of IBM s business relationship with you. k. Neither of us will bring a legal action, regardless of form, arising out of or related to this Agreement or the transaction under it more than two years after the cause of action arose. After such time limit, any legal action arising out of this Agreement or the transaction under it and all respective rights related to any such action lapse, unless otherwise required by applicable law without the possibility of contractual waiver or limitation. l. Neither of us is responsible for failure to fulfill any obligations due to causes beyond its control. m. You may not assign, or otherwise transfer, this Agreement or your rights under it, or delegate your obligations. Any attempt to do so is void. n. No right or cause of action for any third party is created by this Agreement or the transaction under it, nor is IBM responsible for any third party claims against you except as permitted by the Limitation of Liability section herein for bodily injury (including death) or damage to real or tangible personal property for which IBM is legally liable to that third party. o. Neither of us grants the other the right to use its (or any of its Enterprise s) trademarks, trade names, or other designations in any promotion or publication without prior written consent. p. In the event that any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions of this Agreement remain in full force and effect. 11. Geographic Scope and Governing Law The rights, duties, and obligations of each party are valid only in the United States except that all licenses are valid as specifically granted. Both parties agree to the application of the laws of the State of New York to govern, interpret, and enforce all of your and IBM s respective rights, duties, and obligations arising from, or relating in any manner to, the subject matter of this Agreement, without regard to conflict of law principles. Z Page 6 of 6