TÖÖVÕTULEPING nr 3-8/2229-1
Käesolev leping on sõlmitud /kuupäev digiallkirjas/ 2018 a.
AS Kernel, mida esindab juhatuse liige Raivo Laats põhikirja alusel (edaspidi nimetatud teenuse
osutaja) ning
Tervise ja Heaolu Infosüsteemide Keskus, mida esindab põhimääruse alusel direktor Katrin
Reinhold (edaspidi nimetatud tellija),
edaspidi käesolevas lepingus pool või koos pooled, sõlmisid lepingu alljärgnevas:
1. Üldsätted
1.1. Lepingu sõlmimise aluseks on tellija poolt korraldatud väikehanke „IBM serveri ja
salvestusseadmete garantiihooldusteenuse pikenduse hankimine“ pakkumuskutse,
teenuse osutaja poolt esitatud ning edukaks tunnistatud pakkumus.
1.2. Leping määratleb poolte õigused ja kohustused lepingu eesmärgi saavutamisel, milleks on
tellijale IBM serveri ja salvestusseadmete hooldusteenuse osutamine viisil, millega on tagatud
seadme igapäevane korrasolek ja toimimine tellija tegevuses.
1.3. Teenuse osutaja kinnitab, et on ametlik lepinguline IBM-i teenustepartner Eestis.
1.4. Poolte õiguste ja kohustuste aluseks on leping koos lisadega ja Eesti Vabariigis kehtivad
õigusaktid.
2. Lepingu ese
2.1. Lepingu esemeks on IBM serveri ja salvestusseadmete garantiipikenduste hankimine
järgmistele komplektidele:
2.1.1. Power System pSeries p6-570 server– tüüp 9117 mudel MMA, seerianumber
0666CF0, koos laiendustega;
2.1.2. System Storage DS5020 disk system – tüüp 1814 mudel 20A, seerianumber
78K0KB4;
2.1.3. System Storage EXP520 expansion unit – tüüp 1814 mudel 52A, seerianumber
78K0KB1;
2.1.4. System Storage EXP520 expansion unit – tüüp 1814 mudel 52A, seerianumber
78K0KB1;
2.2. Pikendatud garantiihoolduse teenust osutab seadmete tootja (IBM), või mõnel juhul IBM
nimel tegutsevad üksused (IBM Contract ID: 153800)
2.3. Teenuse osutaja osutab teenust vastavalt hankedokumentidele ja pakkumisele, kokkulepitud
tingimustel ja korras, tööpäeviti 07.00 – 18.00, veateate vastuvõtmine kuni kl 15.00, tõrkuvate
komponentide vahetamisega järgmisel tööpäeval (edaspidi nimetatud teenus või töö)
seadmete asukohas.
3. Lepingu tähtaeg
3.1. Teenuse osutaja osutab teenust perioodil 01.12.2018 – 30.11.2019.
4. Lepingu maksumus
4.1. Teenuse maksumus koos käibemaksuga on 16 920 eurot (kuusteist tuhat üheksasada
kakskümmend eurot), ühekordse maksena perioodi alguses. Maksumus sisaldab kõiki
teenuse osutaja kulutusi seoses teenuse osutamisega, sh kasutatud materjalidele, transpordile,
lähetustele jne.
1
4.2. Tellija tasub teenuse osutajale arve alusel 21 (kahetkümne ühe) päeva jooksul vastava arve
saamisest.
5. Teenuse osutaja kohustused ja õigused
5.1. Teenuse osutaja kohustub:
5.1.1. tagama tootjapoolse hooldusteenuse saamise vastavalt lepingu lisades olevatele tootja
hoolduslepingu kirjeldusele ja tingimustele, sh vastava kvalifikatsiooniga tööjõu,
transpordi, seadmed, materjalid jm vajaliku;
5.1.2. informeerima koheselt tellijat teenuse osutamise käigus tekkinud probleemidest ning
nõutama tellijapoolseid juhiseid ja informatsiooni;
5.1.3. võimaldama tellijal kontrollida töö teostamise käiku ning järgima tellija soovitusi töö
teostamise osas;
5.1.4. hoidma töö tegemisel teada saadud andmed konfidentsiaalsena;
5.1.5. lepingujärgsete kohustuste mittekohase täitmise korral hüvitama tellijale võimalikud
tekkinud kahjud 14 (neljateistkümne) päeva jooksul vastava taotluse saamisest;
5.1.6. ühegi võimaliku kahju - sealhulgas, kuid mitte ainult, tulenevad, kaudsed ja
eritingimuselised kahjud - heastamise kohustus ei laiene teenuse osutaja
alltöövõtjatele.
5.2. Teenuse osutajal on õigus:
5.2.1. saada tellijalt töö teostamiseks vajalikku informatsiooni;
5.2.2. saada tellijalt töö teostamise eest lepingu punktis 4. sätestatud tasu.
6. Tellija kohustused ja õigused
6.1. Tellija kohustub:
6.1.1. andma teenuse osutajale töö tegemiseks vajalikku informatsiooni ja tagama ligipääsu
seadmetele;
6.1.2. lahendama esimesel võimalusel kõik tööde teostamise käigus tekkinud küsimused;
6.1.3. tasuma teenuse osutajale kvaliteetselt ja õigeaegselt osutatud teenuse eest vastavalt
punktile 4.
6.2. Tellijal on õigus:
6.2.1. nõuda teenuse osutajalt teenuse osutamist lepingus sätestatud tingimustel;
6.2.2. jooksvalt kontrollida teenuse osutamise käiku ning anda soovitusi.
7. Poolte vastutus
7.1. Pooled vastutavad lepingust tulenevate kohustuste mittetäitmise või mittekohase täitmise
korral.
7.2. Tellija esitab teenuse osutajale oma pretensioonid teenuse lepingule mittevastavuse kohta
hiljemalt 15 (viieteistkümne) päeva jooksul kuu lõpust, mille jooksul esines arvatav teenuse
mittevastavus.
7.3. Juhul, kui tellija esitab pretensioone, peab teenuse osutaja tagama vastavad
parandused/täiendused ja/või hüvitused vastavalt tootja tüüptingimustele.
7.4. Tellijal on õigus nõuda teenuse osutajalt tema tegevusest või tegevusetusest põhjustatud
kahjude hüvitamist vastavalt tootja tüüptingimustele.
7.5. Leppetrahvi tasumine ei vabasta teenuse osutajat lepingujärgsete kohustuste täitmisest.
7.6. Juhul, kui tellija viivitab teenuse osutajale tasu maksmisega üle kokkulepitud tähtaja, on
teenuse osutajal õigus nõuda viivist summas 0,1 % tasumisega viivitatud summast iga
tasumisega viivitatud kalendripäeva eest, kuid mitte rohkem, kui 20 (kakskümmend) %
tasumisega viivitatud summast.
8. Teadete edastamine
2
8.1. Lepinguga seotud teated ja pretensioonid tuleb esitada kirjalikult, taasesitamist võimaldavas
vormis lepingus märgitud aadressidel. Aadressi muutusest on pool kohustatud koheselt
informeerima teist lepingupoolt.
8.2. Tellija kontaktisik lepingu täitmisel on Mauno Lindmäe, tel +372 794 3805, e-post:
[email protected] või tema asendaja.
8.3. Teenuse osutaja kontaktisik lepingu täitmisel on Priit Truusalu, tel 501 7477, e-post:
[email protected].
9. Lõppsätted
9.1. Leping jõustub allakirjutamisest poolte esindajate poolt ja kehtib kuni lepingust tulenevate
kohustuste täitmiseni mõlema poole poolt.
9.2. Kõik lepingu muudatused jõustuvad pärast nende allakirjutamist mõlema poole poolt
allakirjutamise momendist või poolte poolt kirjalikult määratud tähtajal.
9.3. Tellija võib lepingu igal ajal olenemata põhjusest etteteatamistähtajata üles öelda. Sellisel
juhul on tellija kohustatud tasuma teenuse osutajale lepingu ülesütlemise momendiks
faktiliselt tehtud töö eest.
9.4. Lepinguga seonduvaid eriarvamusi ja vaidlusi lahendavad pooled eelkõige läbirääkimiste teel.
Kui lepingust tulenevaid vaidlusi ei õnnestu lahendada poolte läbirääkimistega, lahendatakse
vaidlus Tartu Maakohtus.
9.5. Leping on sõlmitud kahes eksemplaris, millest kummalegi poolele jääb üks eksemplar.
10. Lepingu lisad
10.1. 26.11.2018. a esitatud pakkumus „Hange_TEHIK_IBM_hooldus - Kernel.pdf“.
10.2. IBM tootjapoolse hooldusteenuse tüüptingimused.
Poolte andmed:
Tellija: Teenuse osutaja:
Tervise ja Heaolu Infosüsteemide Keskus AS Kernel
Registrikood 70009770 Registrikood 10134411
Uus-Tatari tn 25, 10134, Tallinn Vanemuise 45, 51003 Tartu
_______________________ _____________________
Katrin Reinhold Raivo Laats
Direktor Juhatuse liige
3
KERNEL AS
Vanemuise 45, Tartu 51003
Tel: 7420 234
http://www.kernel.ee
Äriregister nr. 10134411
TIN/KMKR nr. EE100023796
TEHNILINE JA HINNAETTEPANEK
Hankija: Tervise ja Heaolu Infosüsteemide Keskus (70009770)
Hanke nimetus: IBM serveri ja salvestusseadmete garantiihooldusteenuse pikendamise
hankimine
Tootja: IBM
Detailsem info: https://www.ibm.com/ee-en/marketplace/ibm-maintenance-renewals
Pakutav hooldusteenus on tootjapoolne teenus, mida teostab IBM koosseisuline hooldusmeeskond.
Teenuse tüüptingimused on leitavad https://www.ibm.com/support/customer/ee/et/documents.html
Hooldusleping on sõlmitakse ühe lepinguna Hankija ja Pakkuja vahel. Sõlmitava lepingu aluseks on
leping Pakkuja ja Tootja vahel.
Spetsifikatsioon
KOOD NIMETUS / KIRJELDUS TOOTJA ANDMEBAASIS HULK
IBM serveri ja salvestusseadmete hooldusteenus üheks aastaks
Service IBM On-site Repair, Next Business Day Target On-site Response Time
level M1H Monday-Friday 07:00-18:00 excl. public & national holidays, Latest Call
Registration 15:00
9117-MMA POWER SYSTEM 570 s/n 0666CF0 1
5622 4.2GHZ POW6-2/0CORE 12 DDR2 2
5672 1 PROC ACTIV FOR PROC FT #5622 4
1814-20A DS5020 MIDRANGE DISK s/n 78K0KB4 1
4200 DS5020 146.8GB 15K 4GB FC DDM 1
1814-52A EXP520 EXPANSION UNIT s/n 78K0KB1 1
4200 DS5020 146.8GB 15K 4GB FC DDM 1
1814-52A EXP520 EXPANSION UNIT s/n 78K0KB2 1
REESTABLISHMENT FEE for lapsed months of HWMA 0
coverage, applied if 90 days lapsed from previous contract end
Garantiihooldusteenuse algus: 01/12/2018
Garantiihooldusteenuse lõpp: 30/11/2019
Lepingu maksumus ilma käibemaksuta: 14 100 €
Lepingu maksumus koos käibemaksuga: 16 920 €
Pakkumise kehtivus, tarne- ja maksetingimused
1. Pakkumine on kehtiv 60 päeva. Katkenud hoolduslepingu taastamine on ilma täiendavate
kuludeta, kui uus leping algab hiljemalt 28. veebruaril 2019 a.
2. Pakutud alguskuupäev 01/12/2018 eeldab lepingu allkirjastamist enne lepingu alguse kuupäeva.
3. Tasumine toimub kuni 14 päeva jooksul hoolduslepingu allakirjutamisest.
Garantiitingimused ja tehniline tugi
1. IBM kohapealse laiendatud garantiihoolduse tagab ja teostab IBM Eesti OÜ, asukohaga
Toompuiestee 33a, Tallinn, telefon 6600800. Ööpäevaringne IBM tugitelefon on 6464261 .
Detailne hoolduse kontaktinfo on veebilehel http://www.ibm.com/support/ee/et/ .
2. IBM kohapealse garantiihoolduse veateateid võtab vastu IBM lepinguline garantiipartner AS
Kernel, asukohaga Vanemuise 45, Tartu. Ööpäevaringne veateadete vastuvõtt toimub telefonidel
53 441 015 ja 7420234 ning e-maili teel
[email protected]
3. Garantiitoe osutamisel on hankija ja pakkuja vaheliseks suhtluskeeleks eesti keel.
4. Garantii ei hõlma vigu või riknemist, mis on põhjustatud seadme väärast käsitsemisest,
tehnilistele tingimustele mittevastavast töötingimustest, modifitseerimisest, mittesobivate
ekspluatatsioonimaterjalide kasutamisest või remontimisest isikute poolt, keda seadme tootja pole
selleks volitanud. Garantii ei hõlma normaalselt kuluvaid sõlmi ja detaile ning
ekspluatatsioonimaterjale.
Kuupäev: 26. november 2018 a.
Pakkuja esindaja nimi ja allkiri:
Priit Truusalu
<Allkirjastatud digitaalselt>
Lehekülg 2/2
IBM Standard Terms and Conditions
These IBM Standard Terms and Conditions govern transactions by which Customer purchases non-IBM
Machines, obtains non-IBM Program licenses, and acquires Services (including, without limitation, customized
development and support, business consulting, and maintenance Services) from IBM EESTI OÜ (Business ID:
10193690) (“IBM”).
1. General
1.1 Content
IBM Standard Terms and Conditions is organized in four Parts:
Part 1 – General includes terms regarding Agreement Structure, Definitions, Acceptance of Terms,
Delivery, Charges and Payment, Changes to the Terms of an Agreement, IBM Business Partners,
Intellectual Property Protection, Limitation of Liability, General Principles of Our Relationship, Agreement
Termination, and Geographic Scope and Governing Law.
Part 2 – Warranties defines applicable Warranties for IBM Machines, IBM Services, and Systems, and
terms regarding Extent of Warranty.
Part 3 – Machines includes Machine terms regarding Production Status, Title and Risk of Loss,
Installation, and Machine Code.
Part 4 – Services includes Services terms regarding Personnel, Materials Ownership and License,
Customer Resources, Service for Machines (during and after warranty), Maintenance Coverage,
Automatic Service Renewal, and Termination and Withdrawal of a Service.
1.2 Agreement Structure
Additional terms for Products and Services are in documents called "Attachments" and "Transaction
Documents” provided by IBM. In general, Attachments contain terms that may apply to more than one
Product or Services transaction, while Transaction Documents (such as a statement of work, supplement,
schedule, invoice, exhibit, change authorization, or addendum) contain specific details and terms related
to each individual transaction. Customer may receive one or more Transaction Documents for a single
transaction. Attachments and Transaction Documents amend the IBM Standard Terms and Conditions
only for those transactions to which they apply. Attachments and Transaction Documents applicable to
such transactions as well as these IBM Standard Terms and Conditions are hereinafter collectively
referred to as the “Agreement”. Each transaction is separate and independent from other transactions.
If there is a conflict among the terms of these IBM Standard Terms and Conditions, Attachments, and
Transaction Documents, those of an Attachment prevail over those of these IBM Standard Terms and
Conditions, and the terms of a Transaction Document prevail over those of both these IBM Standard
Terms and Conditions and an Attachment.
1.3 Definitions
Customer-set-up Machine – an IBM Machine that Customer is responsible for installing according to
instructions provided with it.
Date of Installation –
a. for an IBM Machine that IBM is responsible for installing, the business day after the day IBM installs
it or, if Customer defers installation, makes it available to Customer for subsequent installation by
IBM;
b. for a Customer-set-up Machine and a non-IBM Machine, the second business day after the
Machine's standard transit allowance period; and
c. for a Program --
(1) basic license, the second business day after the Program's standard transit allowance period,
(2) copy, the date (specified in a Transaction Document) on which IBM authorizes Customer to
make a copy of the Program, and
(3) chargeable component (also called a feature), the date Customer uses the chargeable
component or a copy. Customer agrees to notify IBM of the chargeable component’s Date of
Installation.
EE-4575-08 ENG 2008-4 (INTC-4575-08 8/2007) Page 1 of 14
Enterprise – 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 Estonia.
Licensed Internal Code (called “LIC”) – Machine Code used by certain IBM Machines IBM specifies
(called “Specific Machines”).
Machine – a hardware device, its features, conversions, upgrades, elements, or accessories, or any
combination of them. The term "Machine" includes an IBM Machine and any non-IBM Machine (including
other equipment) that IBM may provide to Customer.
Machine Code – microcode, basic input/output system code (called “BIOS”), utility programs, device
drivers, diagnostics, and any other code (all subject to any exclusions in the license provided with it)
delivered with an IBM Machine for the purpose of enabling the Machine’s function as stated in its
Specifications. The term “Machine Code” includes LIC.
Materials – literary works or other works of authorship (such as software programs and code,
documentation, reports, and similar works) that IBM may deliver to Customer as part of a Service. The
term “Materials" does not include Programs, Machine Code, or other items available under their own
license terms or agreements.
Non-IBM Program – a Program licensed under a separate third party license agreement.
Other IBM Program – an IBM Program licensed under a separate IBM license agreement (e.g., IBM
International Program License Agreement).
Product – a Machine or a Program.
Program – the following, including the original and all whole or partial copies:
a. machine-readable instructions and data;
b. components;
c. audio-visual content (such as images, text, recordings, or pictures); and
d. related licensed materials.
The term “Program” includes any Other IBM Program, or Non-IBM Program that IBM may provide to
Customer. The term does not include Machine Code or Materials.
Service – performance of a task, assistance, support, or access to resources (such as an information
database) that IBM makes available to Customer.
Specifications – information specific to a Product. IBM Machine Specifications are in a document
entitled "Official Published Specifications."
Western Europe - Andorra, Austria, Belgium, Bulgaria, Cyprus, Czech Republic, Denmark, Estonia,
Finland, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Liechtenstein, Lithuania,
Luxembourg, Malta, Monaco, Netherlands, Norway, Poland, Portugal, Romania, San Marino, Slovakia,
Slovenia, Spain, Sweden, Switzerland, United Kingdom, Vatican State, plus any country subsequently
added to the European Union as of the date of accession.
1.4 Acceptance of Terms
Customer accepts the terms in Attachments and Transaction Documents by i) signing them (by hand or
electronically), ii) using the Product or Service, or allowing others to do so, or iii) making any payment for
the Product or Service.
A Product or Service becomes subject to these IBM Standard Terms and Conditions when IBM accepts
Customer’s order by i) sending Customer a Transaction Document, ii) shipping the Machine or making the
Program available to Customer, or iii) providing the Service.
Any Attachment or Transaction Document will be signed by both parties if requested by either party.
In entering into an Agreement, subject to these IBM Standard Terms and Conditions including the
Transaction Document and each Attachment neither party is relying on any representation that is not
specified in the Agreement. Additional or different terms in any written communication from Customer
(such as a purchase order) are void.
Customer accepts, on behalf of its Enterprise, the terms of these IBM Standard Terms and Conditions by
accepting a Transaction Document or Attachment that incorporates these IBM Standard Terms and
Conditions by reference. Once accepted, i) any reproduction of these IBM Standard Terms and
EE-4575-08 ENG 2008-4 (INTC-4575-08 8/2007) Page 2 of 14
Conditions, an Attachment, or Transaction Document made by reliable means (for example, electronic
image, photocopy or facsimile) is considered an original and ii) all Products and Services ordered under
the Agreement are subject to it.
1.5 Delivery
Delivery dates are estimates unless otherwise specifically agreed in a Transaction Document.
Transportation charges, if applicable, will be specified in a Transaction Document. For Programs IBM
provides to Customer in tangible form, IBM fulfills its shipping and delivery obligations upon the delivery of
such Programs to the IBM-designated carrier, unless otherwise agreed to in writing by Customer and
IBM.
1.6 Charges and Payment
1.6.1 Charges
A Transaction Document specifies the amount payable for Products or Services, based on one or more of
the following types of charges: one-time, recurring, time and materials, or fixed price. Additional charges
may apply (such as special handling or travel related expenses). IBM will inform Customer in advance
whenever additional charges apply.
Recurring charges for a Product begin on its Date of Installation. Charges for Services are billed as
specified in a Transaction Document, which may be in advance, periodically during the performance of
the Service, or after the Service is completed. Unless otherwise provided in an Agreement (including
these IBM Standard Terms and Conditions, any applicable Attachment or Transaction Document): i)
Services for which Customer prepays must be used within the applicable contract period; and ii) IBM
does not give credits or refunds for any prepaid or other charges already due or paid.
If a Transaction Document provides an estimated total charge for time and materials or for usage
charges, the estimate is for planning purposes only. IBM invoices charges based on actual time and
materials expended or Customer’s actual or authorized use, subject to any specified minimum
commitment.
1.6.2 Usage Charges
One-time and recurring charges may be based on measurements of actual or authorized use (for
example, authorized capacity for Machines, number of users or processor size for Programs, or meter
readings for maintenance Services). Customer agrees to provide actual usage data as described in an
Attachment or Transaction Document.
If Customer makes changes to its environment that impact usage charges (for example, change
authorized capacity for Machines or change processor size or configuration for Programs), Customer
agrees to promptly notify IBM and pay any applicable charges. Recurring charges will be adjusted
accordingly. In the event that IBM changes the basis of measurement, its terms for changing charges will
apply.
1.6.3 Changes to Charges
From time to time, IBM may change its charges. Customer receives the benefit of a decrease in charges
for amounts that become due on or after the effective date of the decrease.
Unless provided otherwise in an Attachment or Transaction Document, IBM may increase recurring
charges for Products and Services, as well as labor rates and minimums for Services provided subject to
these IBM Standard Terms and Conditions, by giving Customer three months' written notice. An increase
applies on the first day of the invoice or charging period on or after the effective date IBM specifies in the
notice.
IBM may increase one-time charges without notice. However, an increase to one-time charges does not
apply to Customer if i) IBM receives the order before the announcement date of the increase and ii) one
of the following occurs within three months after IBM’s receipt of the order:
a. IBM ships Customer the Machine or makes the Program available to Customer;
b. Customer makes an authorized copy of a Program or distributes a chargeable component of a
Program to another Machine; or
c. a Program's increased use charge becomes due.
Upon reasonable notice, IBM may verify the usage data and other information affecting the calculation of
charges under an Agreement. Such verification will be conducted in a manner that minimizes disruption
EE-4575-08 ENG 2008-4 (INTC-4575-08 8/2007) Page 3 of 14
to Customer’s business and may be conducted on Customer’s premises, during Customer’s normal
business hours. Customer agrees to i) provide records, system tools outputs, and other electronic or
hard copy system information reasonably necessary for such verification, and ii) promptly pay any
additional, valid charges and other liabilities determined as a result of such verification.
1.6.4 Payment
Amounts are due and payable upon receipt of invoice. Customer agrees to pay accordingly, including
any late payment charges. Payment may be made electronically to an account specified by IBM or by
other means agreed to by the parties.
If payment is not received within 30 days from the date of invoice, (or in the case of quarterly advance
billing of recurring charges, within 60 days from the date of invoice), Customer may be subject to late
payment charges.
The late payment charges will be calculated as follows: 2% per month apportioned to the number of days
of delay.
1.6.5 Taxes
If any authority imposes upon any transaction subject to these IBM Standard Terms and Conditions a
duty, tax, levy, or fee, then Customer agrees to pay that amount as specified in an invoice, unless
Customer supplies exemption documentation. Additional taxes and tax related charges may apply if IBM
personnel are required to perform Services outside their normal tax jurisdiction. As practical, IBM will work
to mitigate such additional tax and tax-related charges and will inform Customer in advance if these
additional charges apply and are payable by Customer.
1.7 Changes to the Terms of an Agreement
IBM may change the terms of an Agreement, including these IBM Standard Terms and Conditions, by
providing Customer at least three months’ written notice. However, these changes are not retroactive.
They apply, as of the effective date IBM specifies in the notice, only to new orders, on-going transactions
that do not expire, and transactions with a defined renewable contract period. For transactions with a
defined renewable contract period, Customer may request that IBM defer the change effective date until
the end of the current contract period.
Customer acknowledges its agreement to have changes to an Agreement, including these IBM Standard
Terms and Conditions apply by i) placing new orders for Products or Services after the change effective
date, ii) failing to request that the change effective date be deferred until the start of the next renewal
period, iii) allowing transactions to renew after receipt of the change notice, or iv) failing to terminate non-
expiring transactions prior to the change effective date. Changes to charges are implemented as
described in the Charges and Payment section above.
Otherwise, for a change to be valid, both parties must sign it.
1.8 IBM Business Partners
IBM has signed agreements with certain organizations (called "IBM Business Partners") to promote,
market, and support certain Products and Services. Customer may order IBM Products or Services that
are promoted or marketed to Customer by IBM Business Partners or other suppliers, however, i) these
IBM Standard Terms and Conditions apply only if a Transaction Document subject to these IBM Standard
Terms and Conditions is provided for the specific transaction, and ii) 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 suppliers, any
obligations either has to Customer, or any products or services that they supply to Customer under their
agreements.
1.9 Intellectual Property Protection
For purposes of this Intellectual Property Protection section, the term "Product" also includes Materials
and Machine Code.
1.9.1 Third Party Claims
If a third party claims that a Product IBM provides to Customer infringes that party's patent or copyright,
IBM will defend Customer against that claim at IBM’s expense and pay all costs, damages, and attorney's
fees that a court finally awards or that are included in a settlement approved by IBM, provided that
Customer:
EE-4575-08 ENG 2008-4 (INTC-4575-08 8/2007) Page 4 of 14
a. promptly notifies IBM in writing of the claim; and
b. allows IBM to control, and cooperates with IBM in, the defense and any related settlement
negotiations.
1.9.2 Remedies
If such a claim is made or appears likely to be made, Customer agrees to permit IBM to enable Customer
to continue to use the Product, or to modify it, or replace it with one that is at least functionally equivalent.
If IBM determines that none of these alternatives is reasonably available, Customer agrees to return the
Product to IBM on IBM’s written request. IBM will then give Customer a credit equal to:
a. for a Machine, Customer’s net book value calculated according to generally-accepted accounting
principles; and
b. for Materials, the amount Customer paid IBM for the creation of the Materials.
1.9.3 Claims for Which IBM is Not Responsible
IBM has no obligation regarding any claim based on any of the following:
a. anything provided by Customer or a third party on Customer’s behalf that is incorporated into a
Product or IBM’s compliance with any designs, specifications, or instructions provided by Customer
or a third party on Customer’s behalf;
b. modification of a Product by Customer or a third party on Customer’s behalf;
c. the combination, operation, or use of a Product with any product, hardware device, program, data,
apparatus, method, or process that IBM did not provide as a system, if the infringement would not
have occurred were it not for such combination, operation or use;
d. the distribution, operation or use of a Product outside Customer’s Enterprise; or
e. infringement by a non-IBM Product or an Other IBM Program alone.
This Intellectual Property Protection section states IBM’s entire obligation and Customer’s exclusive
remedy regarding any third party intellectual property claims.
1.10 Limitation of Liability
1.10.1 Items for which IBM May be Liable
Circumstances may arise where, because of a default by IBM in performance of its obligations under an
Agreement or other liability, Customer is entitled to recover damages from IBM. Regardless of the basis
on which Customer is entitled to claim damages from IBM and except as expressly required by law
without the possibility of contractual waiver, IBM’s entire liability for all claims in the aggregate arising
from or related to each Product or Service or otherwise arising under an Agreement will not exceed the
amount of any direct damages to the extent actually suffered by Customer as an immediate and direct
consequence of the default, up to the greater of 500.000 euros or local equivalent, or the charges (if
recurring, 12 months' charges apply) for the Product or Service that is the subject of the claim. For
purposes of this Limitation of Liability section, the term "Product" also includes Materials and Machine
Code.
This limit also applies to any of IBM’s subcontractors and Program developers. It is the maximum for
which IBM and its subcontractors and Program developers are collectively responsible. The following
amounts are not subject to a cap on the amount of damages:
a. payments referred to in the Intellectual Property Protection section above; and
b. damages for bodily injury (including death) and damage to real property and tangible personal
property for which IBM is legally liable.
1.10.2 Items for Which IBM is Not Liable
Except as expressly required by law without the possibility of contractual waiver, under no circumstances
is IBM, its subcontractors, or Program developers liable for any of the following even if informed of their
possibility:
a. loss of, or damage to, data;
b. indirect, consequential or incidental damages; or
c. lost profits, business, revenue, goodwill, or anticipated savings.
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1.11 General Principles of Our Relationship
1.11.1 Notices and Communications
Written communications, including notices to the receiving party’s designated representative, are to be
sent to the address (physical, e-mail or facsimile) specified in an applicable Attachment or Transaction
Document. To the extent permissible under applicable law, the parties consent to the use of electronic
means and facsimile transmissions to send and receive communications in connection with our business
relationship subject to these IBM Standard Terms and Conditions, and such communications are
acceptable as a signed writing. An identification code (called a “user ID”) contained in an electronic
document is sufficient to verify the sender’s identity and the document’s authenticity.
1.11.2 Assignment and Resale
Neither party may assign an Agreement, in whole or in part, without the prior written consent of the other.
Any attempt to assign without consent is void. The assignment of an Agreement, in whole or in part,
within the Enterprise of which either party is a part or to a successor organization by merger or acquisition
does not require the consent of the other. IBM is also permitted to assign its rights to payments without
obtaining Customer’s consent. It is not considered an assignment for IBM to divest a portion of its
business in a manner that similarly affects all of its customers.
Customer agrees not to resell any Service without IBM’s prior written consent. Any attempt to do so is
void.
Customer agrees to acquire Machines with the intent to use them within that portion of its Enterprise
physically located within Western Europe and not for reselling, leasing, or transferring to a third party,
unless either of the following applies:
a. Customer is arranging lease-back financing for the Machines; or
b. Customer purchases them without any discount or allowance.
1.11.3 Compliance with Laws
IBM will comply with laws applicable to IBM generally as a provider of information technology Products
and Services. IBM is not responsible for determining the requirements of laws applicable to Customer's
business, including those relating to Products and Services that Customer acquires subject to these IBM
Standard Terms and Conditions, or that IBM's provision of or Customer's receipt of particular Products or
Services subject to these IBM Standard Terms and Conditions, meets the requirements of such laws.
Notwithstanding anything in these IBM Standard Terms and Conditions, to the contrary, neither party is
obligated to take any action that would violate law applicable to that party.
Each party will comply with applicable export and import laws and regulations, including those of the
United States that prohibit or limit export for certain uses or to certain end users.
1.11.4 Dispute Resolution
Each party will allow the other reasonable opportunity to comply before it claims that the other has not
met its obligations under an Agreement. The parties will attempt in good faith to resolve all disputes,
disagreements, or claims between the parties relating to an Agreement. Unless otherwise required by
applicable law without the possibility of contractual waiver or limitation, i) neither party will bring a legal
action, regardless of form, arising out of or related to these IBM Standard Terms and Conditions or any
transaction under it more than two years after the cause of action arose; and ii) after such time limit, any
legal action arising out of these IBM Standard Terms and Conditions or any transaction under it and all
respective rights related to any such action lapse.
1.11.5 Other Principles of Our Relationship
a. Neither party 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.
b. The exchange of any confidential information will be made under a separate, signed confidentiality
agreement. However, to the extent confidential information is exchanged in connection with any
Product or Service under an Agreement subject to these IBM Standard Terms and Conditions, the
applicable confidentiality agreement is incorporated into, and subject to, these IBM Standard Terms
and Conditions.
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c. These IBM Standard Terms and Conditions, and any transaction under it do not create an agency,
joint venture, or partnership between Customer and IBM. Each party is free to enter into similar
agreements with others to develop, acquire, or provide competitive products and services.
d. Each party grants only the licenses and rights specified in an Agreement. No other licenses or rights
(including licenses or rights under patents) are granted either directly, by implication, or otherwise.
The rights and licenses granted to Customer under an Agreement may be terminated if Customer
fails to fulfill its applicable payment obligations.
e. For the purposes of this sub-Clause 1.11.5.e, the following additional definitions shall apply:
“Business Contact Information” means business-related contact information disclosed by
Customer to IBM, including names, job titles, business addresses, telephone numbers and email
addresses of Customer’s employees and contractors.
“Business Contact Personnel” means the Customer employees and contractors to whom the
Business Contact Information relates.
“Data Protection Authority” means the Data Protection Inspectorate Office or Data Protection
Inspectorate or any duly appointed successor entity thereto.
“Data Protection & Electronic Communications Legislation” means (a) Personal Data
Protection Act as amended, and the various statutory instruments made thereunder, and (b) any
Estonian statutory implementation (including any replacement or modification thereof) of the Privacy
and Electronic Communications EC Directive.
“IBM Group” means International Business Machines Corporation of Armonk, New York, USA, its
subsidiaries, and their respective ‘Business Partners’ and subcontractors. IBM Group entities are
principally providers of information technology, including hardware and software products, services,
consultancy, financing services and other related activities.
Customer authorizes IBM to process and use Business Contact Information for the purpose of
furthering the business relationship between Customer and IBM Group, including the marketing of
products and services (the “Specified Purpose”).
Customer agrees that Business Contact Information may be disclosed to, and processed and used
by, IBM Group in pursuit of the Specified Purpose.
IBM agrees that all Business Contact Information will be processed in accordance with the
applicable Data Protection & Electronic Communications Legislation and will be used only in
accordance with the Specified Purpose.
To the extent that the Data Protection & Electronic Communications Legislation requires them
Customer represents that it has obtained (or will obtain) such consents from and has issued (or will
issue) such notices to, the Business Contact Personnel as are necessary in order to enable the IBM
Group to process and use the Business Contact Information to contact them, including by email, in
accordance with the Specified Purpose. Customer consents to IBM transferring Business Contact
Information outside the European Economic Area, provided that any such transfer is made on
contractual terms approved by the Data Protection Authority as ensuring adequate safeguards for
the rights and freedoms of data subjects.
f. No right or cause of action for any third party is created by these IBM Standard Terms and
Conditions, or any transaction under it, nor is IBM responsible for any third party claims against
Customer except as described in the Intellectual Property Protection section above or as permitted
by the Limitation of Liability section above for bodily injury (including death) or damage to real or
tangible personal property for which IBM is legally liable to that third party. Consequently, Customer
may not seek liability from IBM for damages that Customer suffers as a result of such third party
claims.
g. Customer is responsible for selecting the Products and Services that meet its needs and for the
results obtained from the use of the Products and Services, including Customer’s decision to
implement any recommendation concerning Customer’s business practices and operations.
h. Where approval, acceptance, consent or similar action by either party is required in an Agreement,
such action will not be unreasonably delayed or withheld.
i. Neither party is responsible for failure to fulfill any non-monetary obligations due to events beyond
its control.
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j. As reasonably required by IBM to fulfill its obligations under an Agreement, Customer agrees to
provide IBM with sufficient and safe access (including remote access) to Customer’s facilities,
systems, information, personnel, and resources, all at no charge to IBM. IBM is not responsible for
any delay in performing or failure to perform caused by Customer’s delay in providing such access
or performing other Customer responsibilities under an Agreement.
1.12 Agreement Termination
Either party may terminate an Agreement if the other does not comply with any of its terms, provided the
one who is not complying is given written notice and reasonable time to comply. Termination of a
Services transaction is described in Part 4.
Any terms of an Agreement including these IBM Standard Terms and Conditions, that by their nature
extend beyond the Agreement termination remain in effect until fulfilled, and apply to both parties’
respective successors and assignees.
1.13 Geographic Scope and Governing Law
The rights, duties, and obligations of each party are valid only in Estonia except that all licenses are valid
as specifically granted.
Both parties agree to the application of the laws of Estonia to govern, interpret, and enforce all of
Customer’s and IBM’s respective rights, duties, and obligations arising from, or relating in any manner to,
the subject matter of an Agreement, without regard to conflict of law principles.
Except where required by law, IBM has no obligation to provide any services for Machines located
outside Estonia.
If any provision of an Agreement is held to be invalid or unenforceable, the remaining provisions of this
Agreement remain in full force and effect.
Nothing in an Agreement affects any statutory rights of consumers that cannot be waived or limited by
contract.
2. Warranties
2.1 The IBM Warranties
2.1.1 Warranty for IBM Machines
IBM warrants that each IBM Machine is free from defects in materials and workmanship and conforms to
its Specifications.
The warranty period for an IBM Machine is a fixed period commencing on its Date of Installation and
specified in a Transaction Document. During the warranty period, IBM provides repair and exchange
Service for the IBM Machine, without charge, under the type of Service IBM designates for the IBM
Machine. If an IBM Machine does not function as warranted during the warranty period and IBM is
unable to either i) make it do so or ii) replace it with one that is at least functionally equivalent, Customer
may return it to IBM for a refund.
The warranty for IBM Machines acquired in Western Europe is valid and applicable in all Western Europe
countries provided the Machines have been announced and made available in such countries.
Additional terms regarding Service for Machines during and after the warranty period are contained in
Part 4.
2.1.2 Warranty for IBM Services
IBM warrants that it performs each IBM Service using reasonable care and skill and according to its
current description (including any completion criteria) contained in these IBM Standard Terms and
Conditions, an Attachment, or a Transaction Document. Customer agrees to provide timely written notice
of any failure to comply with this warranty so that IBM can take corrective action.
2.1.3 Warranty for Systems
When IBM specifies in an Attachment or Transaction Document that it is providing Products to Customer
that are intended to operate together as a system, IBM warrants that those Products are compatible and,
when installed in accordance with their Specifications, will operate with one another. This warranty is in
addition to IBM’s other applicable warranties.
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2.2 Extent of Warranty
The warranties stated above will not apply to the extent that there has been misuse (including, but not
limited to, use of any Machine capacity or capability, other than that authorized by IBM in writing),
accident, modification, unsuitable physical or operating environment, improper maintenance by Customer
or a third party, or failure or damage caused by a product for which IBM is not responsible. The warranty
for IBM Machines is voided by removal or alteration of Machine or parts identification labels.
These warranties are Customer’s exclusive warranties and replace 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.
Items Not Covered by Warranty
IBM does not warrant uninterrupted or error-free operation of a Product or Service or that IBM will correct
all defects.
IBM will identify IBM Machines that it does not warrant.
Unless otherwise specified in an Attachment or Transaction Document, IBM provides Materials, non-IBM
Products (including those provided with, or installed on, an IBM Machine at Customer’s request), and
non-IBM Services without warranties of any kind. However, non-IBM manufacturers, developers,
suppliers, or publishers may provide their own warranties to Customer. Warranties, if any, for Other IBM
Programs and Non-IBM Programs may be found in their license agreements.
3. Machines
3.1 Production Status
Each IBM Machine is manufactured from parts that may be new or used. In some cases, a Machine may
not be new and may have been previously installed. Regardless, IBM’s applicable warranty terms
described in Part 2 apply.
3.2 Title and Risk of Loss
IBM transfers title to a Machine to Customer or, if applicable, Customer’s lessor, upon payment of all the
amounts due. For a feature, conversion, or another type of upgrade acquired for a Machine, IBM
reserves transfer of title until IBM receives payment of all the amounts due and, as applicable, all
removed parts, which become IBM’s property.
For each Machine, IBM bears the risk of loss or damage up to the time it is delivered to the IBM-
designated carrier for shipment to Customer or Customer’s designated location. Thereafter, Customer
assumes the risk. Each Machine will be covered by insurance, arranged and paid for by IBM for
Customer, covering the period until it is delivered to Customer or Customer’s designated location. For any
loss or damage, Customer must i) report the loss or damage in writing to IBM within 10 business days of
delivery and ii) follow the applicable claim procedure.
3.3 Installation
Customer agrees to provide an environment meeting the requirements for the Machine as specified in its
published documentation.
IBM has standard installation procedures. IBM will successfully complete these procedures before it
considers an IBM Machine (other than a Machine for which Customer defers installation or a Customer-
set-up Machine) installed.
Customer is responsible for installing a Customer-set-up Machine and a non-IBM Machine according to
instructions provided by IBM or the Machine’s manufacturer.
3.3.1 Upgrades and Engineering Changes
As used in this section, the term “upgrade” includes, without limitation, features and conversions. IBM
sells upgrades for installation on Machines, and, in certain instances, only for installation on a designated,
serial-numbered Machine. Within 30 days of the shipment of an upgrade, Customer agrees to install the
upgrade or, if IBM is responsible for the installation, to allow IBM to install the upgrade. Otherwise, IBM
may terminate the transaction and Customer must return the upgrade at Customer’s expense.
Customer agrees to allow IBM to install mandatory engineering changes (such as those required for
safety) on a Machine.
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Many upgrades and engineering changes require the removal of parts and the transfer of ownership and
possession of the removed parts to IBM. Customer is responsible for the return of all removed parts to
IBM upon installation of the upgrade or engineering change. As applicable, Customer represents that
Customer has permission from the owner and any lien holders to i) install upgrades and engineering
changes and ii) transfer ownership and possession of removed parts to IBM. Customer further represents
that all removed parts are genuine, unaltered, and in good working order. A part that replaces a removed
part will assume the warranty or maintenance Service status of the replaced part.
3.4 Machine Code
Machine Code is licensed under the terms and restrictions of the Machine Code license agreement (e.g.
IBM License Agreement for Machine Code, IBM Agreement for Licensed Internal Code, or an equivalent)
provided with the Machine Code. Customer acceptance of the terms of these IBM Standard Terms and
Conditions includes acceptance of IBM’s Machine Code license agreements, current versions of which
are available at the following URL:
http://www.ibm.com/servers/support/machine_warranties/support_by_product.html >
or by contacting an IBM representative. Machine Code license agreements may be amended by IBM from
time to time. Such amended license terms will apply only to Machine Code that is supplied after such
amended terms become effective.
Machine Code is licensed only for use to enable a Machine to function in accordance with its
Specifications and only for the capacity and capability for which Customer has acquired IBM’s written
authorization. Customer agrees to use Machine Code only as specified in these IBM Standard Terms and
Conditionsand as may be further authorized or restricted in its applicable license agreement. Without
limiting additional restrictions in the applicable license, Customer may not:
a. otherwise copy, display, transfer, adapt, modify, or distribute (electronically or otherwise) Machine
Code, except as IBM may authorize in the Machine’s user documentation or in writing to Customer;
b. reverse assemble, reverse compile, otherwise translate, or reverse engineer Machine Code unless
expressly permitted by applicable law without the possibility of contractual waiver;
c. sublicense or assign the license for Machine Code; or
d. lease Machine Code or any copy of it.
International Business Machines Corporation, one of its subsidiaries, or a third party owns Machine Code
including all copyrights in Machine Code and all copies of Machine Code (this includes the original
Machine Code, copies of the original Machine Code, and copies made from copies). Machine Code is
copyrighted and licensed (not sold).
Title will not be transferred when IBM supplies features, conversions or upgrades which consist solely of
Machine Code.
The capacity of certain Machines is limited by technological measures in Machine Code. Customer
agrees to IBM's implementation of such technological measures to limit Machine capacity.
3.5 Disposal of Machines
3.5.1 As from the effective date in Customer’s country of local laws and regulations implementing Directive
2002/96/EC of the European Parliament and of the Council of 27 January 2003 on waste electrical and
electronic equipment (WEEE), the following will apply: when any Machine supplied subject to these IBM
Standard Terms and Conditions replaces a machine put on the market before August 13, 2005, then IBM
will collect and dispose of such replaced machine provided that IBM is required to do so by applicable
law. IBM may charge for such collection and disposal to the extent permitted by applicable law.
3.5.2 Customer is responsible for making the WEEE available for collection from Customer’s premises within
30 days after supply of the replacement Machine. Whenever IBM collects and disposes of Customer
WEEE, based on a legal or contractual obligation, Customer agrees:
a. to securely erase from any WEEE, all programs not provided by IBM with the original equipment
and data, including without limitation, the following: i) information about identified or identifiable
individuals or legal entities ("Personal Data") and ii) Customer’s confidential or proprietary
information and other data. If removing or deleting Personal Data is not possible, Customer agrees
to transform such information (e.g., by making it anonymous) so that it no longer qualifies as
Personal Data under applicable law;
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b. to remove all funds, if any, from WEEE, returned to IBM.
c. IBM is not responsible for saving or protecting any funds, programs not provided by IBM with the
original equipment, or any data contained in a WEEE that Customer returns to IBM; and
d. IBM may ship all or part of the WEEE or its software to other IBM or third party locations around the
world to perform its responsibilities under these IBM Standard Terms and Conditions, and Customer
authorizes IBM to do so.
4. Services
4.1 Personnel
Each party will assign personnel that are qualified to perform the tasks required of such party under an
Agreement and is responsible for the supervision, direction, control, and compensation of its personnel.
Subject to the foregoing, each party may determine the assignment of its personnel and its contractors.
IBM may engage subcontractors to provide or assist in providing Services, in which case IBM remains
responsible for the fulfillment of its obligations under the Agreement and for the performance of the
Services.
4.2 Materials Ownership and License
An Attachment or Transaction Document will specify Materials to be delivered to Customer and identify
them as “Type I Materials,” “Type II Materials,” or otherwise as both parties agree. If not specified,
Materials will be considered Type II Materials.
Customer will own the copyright in Materials created as part of a Service that are identified as “Type I
Materials.” Customer grants IBM an irrevocable, nonexclusive, worldwide, paid-up license to use,
execute, reproduce, display, perform, sublicense, distribute, and prepare derivative works based on, Type
I Materials.
IBM or its suppliers will own the copyright in Materials created as part of a Services transaction that are
identified as Type II Materials. IBM grants Customer an irrevocable, nonexclusive, worldwide, paid-up
license to use, execute, reproduce, display, perform, and distribute (within Customer’s Enterprise only)
copies of Type II Materials. For the purposes of this paragraph only, 'Enterprise' shall mean any legal
entity (such as a corporation) and the subsidiaries it owns worldwide by more than 50 percent.
IBM also has the right to prepare derivative works based on Type II Materials and to transfer the copyright
to a third party.
IBM or its suppliers retains ownership of the copyright in any of IBM’s or its suppliers’ works that pre-exist
or were developed outside of the Agreement and any modifications or enhancements of such works that
may be made under the Agreement. To the extent they are embedded in any Materials, such works are
licensed in accordance with their separate licenses provided to Customer, if any, or otherwise as Type II
Materials.
Each of us agrees to reproduce the copyright notice and any other legend of ownership on any copies
made under the licenses granted in this section.
4.3 Customer Resources
If Customer is making available to IBM any facilities, software, hardware or other resources in connection
with IBM’s performance of Services, Customer agrees to obtain any licenses or approvals related to these
resources that may be necessary for IBM to perform the Services and develop Materials. IBM will be
relieved of its obligations that are adversely affected by Customer’s failure to promptly obtain such
licenses or approvals. Customer agrees to reimburse IBM for any reasonable costs and other amounts
that IBM may incur from Customer’s failure to obtain these licenses or approvals.
Unless otherwise agreed in an Attachment or Transaction Document, Customer is responsible for i) any
data and the content of any database Customer makes available to IBM in connection with a Service
subject to these IBM Standard Terms and Conditions, ii) the selection and implementation of procedures
and controls regarding access, security, encryption, use, and transmission of data, and iii) backup and
recovery of the database and any stored data.
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4.4 Service for Machines (during and after warranty)
4.4.1 Service for Machines
IBM provides certain types of Service to keep Machines in, or restore them to, conformance with their
Specifications. IBM will inform Customer of the available types of Service for a Machine. At its discretion,
IBM will i) either repair or exchange the failing Machine and ii) provide the Service either at Customer’s
location or a service center. IBM manages and installs selected engineering changes that apply to IBM
Machines and may also perform preventive maintenance.
Any feature, conversion, or upgrade IBM services must be installed on a Machine which is i) the
designated, serial-numbered Machine, if applicable, and ii) at an engineering-change level compatible
with the feature, conversion, or upgrade.
When the type of Service requires that Customer deliver the failing Machine to IBM, Customer agrees to
ship it suitably packaged (prepaid unless IBM specifies otherwise) to a location IBM designates. After IBM
has repaired or exchanged the Machine, IBM will deliver it to Customer at IBM’s expense unless IBM
specifies otherwise. IBM is responsible for loss of, or damage to, Customer’s Machine while it is i) in
IBM’s possession or ii) in transit in those cases where IBM is responsible for the transportation charges.
Customer agrees:
a. to obtain authorization from the owner to have IBM service a Machine that Customer does not own;
b. where applicable, before IBM provides Service, to --
(1) follow the problem determination and service request procedures that IBM provides,
(2) secure all programs, data, and funds contained in a Machine, and
(3) inform IBM of changes in a Machine's location.
c. to follow the Service instructions that IBM provides (which may include installing Machine Code and
other software updates either downloaded from an IBM Internet Web site or copied from other
electronic media); and
d. when Customer returns a Machine to IBM for any reason --
(1) to securely erase from any Machine all programs not provided by IBM with the Machine and
data, including without limitation, the following: i) information about identified or identifiable
individuals or legal entities ("Personal Data") and ii) Customer’s confidential or proprietary
information and other data. If removing or deleting Personal Data is not possible, Customer
agrees to transform such information (e.g., by making it anonymous) so that it no longer
qualifies as Personal Data under applicable law;
(2) to remove all funds from Machines returned to IBM. IBM is not responsible for any funds,
programs not provided by IBM with the Machine, or data contained in a Machine that
Customer returns to IBM; and
(3) IBM may ship all or part of the Machine or its software to other IBM or third party locations
around the world to perform its responsibilities under these IBM Standard Terms and
Conditions, and Customer authorizes IBM to do so.
4.4.2 Replacements
When Service involves the exchange of a part or Machine, the item IBM replaces becomes its property
and the replacement becomes Customer’s. Customer represents 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 warranty or maintenance Service status of
the replaced item. Before IBM exchanges a part or Machine, Customer agrees to remove all features,
parts, options, alterations, and attachments not under IBM’s service. Customer also agrees to i) ensure
that the part or Machine is free of any legal obligations or restrictions that prevent its exchange and ii)
transfer ownership and possession of removed parts to IBM.
Service for some IBM Machines involves IBM providing Customer with an exchange replacement for
installation by Customer. Such exchange replacements may be i) a part of a Machine (called a Customer
Replaceable Unit, or “CRU,” e.g., keyboard, memory, or hard disk drive), or ii) an entire Machine.
Customer may request IBM to install the replacement CRU or Machine, however, Customer may be
charged for the installation. IBM provides information and replacement instructions with Customer’s
Machine and at any time on Customer’s request. IBM specifies in the materials shipped with a
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replacement whether the failing CRU or Machine must be returned to IBM. When return is required, return
instructions and a container are shipped with the replacement, and Customer may be charged for the
replacement if IBM does not receive the failing CRU or Machine within 15 days of Customer’s receipt of
the replacement.
4.4.3 Items Not Covered
Repair and exchange Services do not cover:
a. accessories, supply items, consumables (such as batteries and printer cartridges), and structural
parts (such as frames and covers);
b. Machines damaged by misuse, accident, modification, unsuitable physical or operating
environment, or improper maintenance by Customer or a third party;
c. Machines with removed or altered Machine or parts identification labels;
d. failures caused by a product for which IBM is not responsible;
e. service of Machine alterations; or
f. service of a Machine on which Customer is using capacity or capability, other than that authorized
by IBM in writing.
4.5 Warranty Service Upgrade
For certain Machines, Customer may select a Service upgrade from the standard type of warranty Service
for the Machine. IBM charges for the Service upgrade during the warranty period.
Customer may not terminate the Service upgrade or transfer it to another Machine during the warranty
period.
When the warranty period ends, the Machine will convert to maintenance Service at the same type of
Service Customer selected for warranty Service upgrade.
4.6 Maintenance Coverage
When Customer orders maintenance Service for Machines, IBM will inform Customer of the date on
which maintenance Service will begin. IBM may inspect the Machine within one month following that date.
If the Machine is not in an acceptable condition for service, Customer may have IBM restore it for a
charge or Customer may withdraw its request for maintenance Service. However, Customer will be
charged for any maintenance Service which IBM has performed at Customer’s request.
4.7 Automatic Service Renewal
Renewable Services renew automatically for a same length contract period unless either party provides
written notification (at least one month prior to the end of the current contract period) to the other of its
decision not to renew.
4.8 Termination and Withdrawal of a Service
Either party may terminate a Service transaction if the other materially fails to meet its obligations
concerning the Service.
Customer may terminate a Service, on notice to IBM provided Customer has met all minimum
requirements and paid any adjustment charges specified in the applicable Attachments and Transaction
Documents.
For a maintenance Service, Customer may terminate without adjustment charge, provided any of the
following circumstances occur:
a. Customer permanently removes the eligible Product, for which the Service is provided, from
productive use within Customer’s Enterprise;
b. the eligible location, for which the Service is provided, is no longer controlled by Customer (for
example, because of sale or closing of the facility); or
c. the Machine has been under maintenance Service for at least one year and Customer gives IBM
one month's written notice prior to terminating the maintenance Service.
Customer agrees to pay IBM for i) all charges for Services IBM provides and any Products and Materials
IBM delivers through Service termination, and ii) reimbursable expenses IBM incurs through Service
termination. If Customer terminates without cause, Customer also agrees to pay any applicable
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adjustment or termination charges and for expenses IBM incurs as a result of such termination (which
IBM will take reasonable steps to mitigate).
IBM may withdraw a Service or support for an eligible Product on three months' written notice to
Customer. If IBM withdraws a Service for which Customer has prepaid and IBM has not yet fully provided
it to Customer, IBM will give Customer a prorated refund.
Any terms which by their nature extend beyond termination or withdrawal remain in effect until fulfilled
and apply to respective successors and assignees.
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