IBM Switzerland Ltd Statement of Work IBM Support Services IBM Essential Care Service - Acquired from an IBM Business Partner - Edition: December 2015 1. Subject The subject of the Service is the provision of IBM hardware support, IBM Software Maintenance for IBM Power operating system software and selected IBM storage systems as well as remote how-to usage support on the Eligible Products. The Essential Care Service (the "Service") also includes care services and extended integrated support services. The services described below will be provided based on the contractual terms and conditions listed on the Order Form. 2. Definitions In this Statement of Work (SOW), the following terms have the specified meanings: Eligible Machine means a machine identified by its serial number listed on the Machine/Service List. Eligible Call means a service request by a Client which is processed under this Essential Care Services package. Eligible Product means an Eligible Machine including the Eligible Programs (if available) installed on it, as specified on the Machine/Service List of the Order Form. Eligible Program means a program licensed by the Client and listed on the Internet at www.ibm.com/services/supline/products ( Software Maintenance for IBM Software or Support Line Supported Products Support Group "LINUX-P"), being an IBM Power operating system program, IBM Storage program or Linux Power program, which is installed on the Eligible Machine as specified on the Machine/Service List. As Eligible Programs will only be considered the versions or releases that are currently under service. The list of the supported versions/releases of IBM Software can be found on the Internet at www.ibm.com/software/support/lifecycle/. For non-ibm programs the provision of current version/release information is subject to the respective software manufacturer. On request, IBM can provide the Client with these versions or release information. IBM Service Agent means an IBM software tool which is installed on the Client's system in order to collect and monitor protocols related to hardware failures as well as performance data and system inventory data, and to regularly transfer them to IBM. Client-Critical Problem means a problem for which the Client has no workaround available and which may result in a disruption to the Client's critical business processes (Severity 1). Licensed Unit means a unit for which an Eligible Program has been licensed for IBM Software Maintenance. Licensed Units are, for instance machines, cores (also called processors ), installed total number of an Eligible Program ( per install ), the attached and managed chassis ( managed chassis ), storage devices or respective memory size ( Terabytes ). Machine/Service List means a part of the Order Form summarizing information about the Eligible Machines and Eligible Programs, and any agreed hardware service times and service levels, under the heading "Service Level". This summary contains a brief description of the service content. Primary Technical Contact means a member of staff on the Client's side, to whom IBM will refer general technical information about this Service. Prime Shift means the IBM s local business hours, during which the services will be provided (from 8 AM to 5 PM, Monday to Friday, except on national public holidays). Seite 1 von 6
Response Time means the period of time between the logging of a service request by the Client in the IBM call management system and the time when a qualified IBM technician contacts the Client to take the first steps towards resolving the problem. Round-the-Clock: 24 hours a day, seven days a week, including national public holidays. 3. Technical Requirements The following conditions will apply to this Service: 1. All Licensed Units of an Eligible Program must be covered by IBM Software Maintenance. 4. Scope of Services 4.1. Hardware Services IBM provides the services described in the IBM Hardware Services for IBM and non-ibm Machines SOW for the Eligible Machines. Notwithstanding the service times contained in the "Service times" section of the aforementioned IBM Hardware Services SOW, IBM will provide the service on site, Round-the-Clock. The Committed Response Time in this Essential Care SOW will apply (see below). For Eligible Machines for which voluntary manufacturer service is still available, IBM will provide the Round-the-Clock service in accordance with the Extension of Warranty Services SOW. Additional committed service levels may be contained on the Order Form for the Eligible Machines. The Extended Warranty and Maintenance Services with Committed Service Levels (Committed Services) SOW will apply in this regard. The Statements of Work named above are listed in order of priority on the Order Form. The documents can be found on the Internet at http://www.ibm.com/ch/services/documents/mts/bp/indexe.html or will be made available to the Client by IBM on request. 4.2. IBM Software Maintenance IBM will provide the Client with the following services for the respective Eligible IBM Program installed on the Eligible Machine during the term of the Service as specified on the relevant Order Form: 1. Program updates (including new versions and releases) which are released during the term of the contract, as soon as they are generally available and if requested by the Client; 2. Remote support for the following Client requirements: a) Answering of basic questions and of those that can be answered within a short time regarding installation, use and configurations; b) Answers to questions on IBM s publications related to the Eligible IBM Program in question; c) Answers to questions about code-related errors; 3. Checking of diagnostic information in order to isolate the problem cause (e.g. assistance with interpretation of traces and dumps related to installation and code-related errors); 4. For known defects, the provision of information for bug fixes and program temporary fixes (PTFs) to which the Client is entitled by means of the acquisition of user rights for the software (license). In certain situations, IBM may need to request remote access to the Client's Eligible Machine, to further isolate the cause of the problem. If the Client refuses to provide remote access, IBM may have limited capacity to resolve the problem. If IBM cannot resolve the problem without remote access, IBM will inform the Client and will close the service request. Additional rules on remote access can be found in the further terms and conditions on the Order Form. The Committed Response Times in this Essential Care SOW will apply (see below). Seite 2 von 6
4.3. How-to Usage Support Services IBM provides remote support (by telephone, through the IBM Support Center) for the following Client requirements. For the Eligible Products: Answering of basic questions and of those that can be answered within a short time regarding installation, use and configurations; Answers to questions on IBM s publications related to the Eligible Products in question. If the Client reports a problem in relation to Eligible non-ibm Programs, IBM will provide support with isolation of the cause of the problem and will obtain recovery information, if available, from the manufacturer. IBM will provide corrective service and program fixes, if available and IBM is authorized to provide to the Client known problems provided they do not concern Open Source software. For known problems that concern Open source software and for which IBM discovers that problem or program fixes are available on the Internet, IBM will inform the Client of the corresponding URL links. It will be the Client's sole responsibility to independently procure or download any problem or program fixes. If a new (previously unknown) problem is discovered, IBM will report it to the respective vendor and will inform the Client about the measures taken. The Support Services of IBM will thus be considered to have been provided. The program vendor will be responsible for the resolution of such problems. IBM will inform the Client of the corresponding URL link in the event that the vendor provides a problem or program fix for such a new problem on the Internet. IBM will under no circumstances be obliged to develop problem or program fixes for problems that concern Open Source software, to make them available to the Client or to integrate them in the corresponding Open source software. Should IBM discover that a problem or program fix, or the Open Source software into which this problem or program fix is to be integrated, violates or could violate third-party rights, it will be at the discretion of IBM to inform the Client of this. In this case, IBM will not be obliged to inform the Client about whether or not rights have been violated or to provide further information such as URL links to problem or program fixes on the Internet with regard to such Open Source software. Specific rules apply for the supported Enterprise releases of the Linux operating system open source components for IBM supported Linux distributions in the Linux Support Groups. IBM is not a Linux distributor and does not distribute patches, maintenance updates or refreshes. Client must receive maintenance updates and refreshes directly from the Linux distributor under the distributor s terms. Excluded from this are emergency source code fixes for the Linux Enterprise server distributions of SUSE and Red Hat which IBM can make available in emergency cases if new defects are reported. IBM will make these new emergency source code fixes available to the Linux distributor and the open source maintainer for inclusion and distribution as errata updates and patches (officially listed updates and patches). IBM will support and maintain these new source code fixes until such time that the Linux distributor or open source maintainer incorporates them or develops an alternate fix and distributes as errata update or patch. At such point, IBM s support requirement is fulfilled. The Committed Response Times in this Essential Care SOW will apply (see below). 4.4. Care Service IBM will appoint a remote Account Advocate. The Account Advocate will make the initial telephone contact with the Primary Technical Contact in order to give an overview of the Care Service to the Client. The phone call will include a presentation of the IBM incident reporting and processing procedure, the possible escalation procedures, explanation of the care services for the Client, and the provision of a status report and a technical support plan (TSP) (see section "Project documents and Existing Documents"). The Account Advocate is only available during Prime Shift. Seite 3 von 6
4.5. Integrated Support 4.5.1. Committed Response Times For Client-Critical Problems concerning Eligible Programs or Eligible Machines, IBM will call back within 30 minutes (Round-the-Clock). In case of a problem is not classified as Client-critical, IBM will call back within two hours (during Prime Shift) for an Eligible Program, and within two hours (Round-the-Clock) for an Eligible Machine. All Client-Critical Problems must be reported by telephone, giving details of the machine type and serial number as well as details of the software component concerned. If this information is not provided, the problem will be deemed not to have been reported. The call will form the basis for determining whether and what additional actions may be required to find a technical solution to the problem in question, if the problem has not been resolved after IBM has called the Customer back for the first time. IBM is not responsible for any delayed Response Times due to system or network problems. 4.5.2. Priority Handling IBM will carry out the initial diagnosis and identification of the cause of the problem and will make the solution to the problem available, if possible. If additional resources are required to resolve the problem, the Account Advocate or the support specialist will provide the following services, based on the established cause and severity of the problem: 1. For Client-Critical Problems concerning an Eligible Program: a) involve the appropriate support staff and coordinate and manage their work; b) monitor the progress of resolving the problem as reported by the Client; c) provide regular updates on the resolution process; 2. For Client-Critical Problems concerning an Eligible Machine: a) involve the appropriate support staff; b) provide support for the coordination and management of problems processed by IBM Remote Hardware Support, and provide an escalation path if necessary; 3. For all non-client-critical Problems: a) pass the problem to the appropriate staff, who will take responsibility for resolving the problem and provide support in accordance with the terms of the underlying support contracts, and provide an escalation path if necessary; Outside Prime Shift, if the Account Advocate is not available to monitor the escalation of the Client- Critical Problem, this responsibility will be handled through the IBM Standard Procedure. 4.6. Existing Documents IBM will provide the following Existing Documents: Technical support plan (TSP) to assist the Client with the use of the services; Account Profile which will include details of the Client, the name of the Primary Technical Contact, location and email address, telephone numbers and other specific Client and Account Advocate information. The Existing Documents are excluded from the copyright. These are documents provided to the Client, which are not created as part of this SOW, but if necessary, modified or enhanced on the basis of this SOW. IBM will provide the Client with an irrevocable (subject to the Client's payment obligations), non-exclusive, worldwide right to use, reproduce, display and present the Existing Documents, and to prepare documents derived from them. Seite 4 von 6
5. Additional Client Responsibilities The Client will 1. regularly check the current list of Eligible Programs provided on the Internet explained in the "Definitions" section of this SOW in order to determine whether any program versions or releases have been added and/or deleted. The Client will ensure to place service requests only for the versions or releases of the Eligible Programs currently in service; 2. provide IBM, within three working days after the service start date, the name of a Primary Technical Contact who a) will be the contact for the Account Advocate for all service-related questions, b) participate in conference calls with the Account Advocate, c) name a deputy who will be the stand-in during absence of the Primary Technical Contact and d) be authorized to make decisions on behalf of the Client with regard to all matters relating to the services covered by this SOW; 3. ensure that the Primary Technical Contact, his or her representative and all callers have sufficient technical knowledge of the Client s Eligible Machines and Programs to enable effective communication with the IBM Support Center; 4. take responsibility for installing the microcode, firmware or program corrections recommended by IBM; 5. report Client-Critical Problems relating to an Eligible Machine or an Eligible Program by telephone, and give details of the software components concerned, or, in the case of a machine-related service, the machine type and serial number. If this information is not provided to IBM in full and promptly the problem will be deemed not to have been reported; 6. Charges The service charges will be calculated on the basis of the configuration of the Eligible Machines, the Eligible Programs and, if applicable, the Licensed Units by the IBM Business Partner. If there are changes in the configuration of the Eligible Machines and/or the number of Licensed Units for the Eligible Programs, the service charges will be adapted accordingly. This must be verified by the Client jointly with its IBM Business Partner. If the Software Maintenance Service is re-started after interruption (no continuous extension of Software Maintenance after expiration of the last support period) or if Software Maintenance is acquired for a new license more than 30 days after the license was obtained (for example as part of the purchase of a used machine), a one-time fee ( "After License Charge") is incurred. The "Automatic Inclusion of Machines and Programs" section included in the related Supplementary Terms and Conditions will not apply under this Statement of Work, if this section is contained in it. Beyond that, the other contract terms specified on the Order Form will apply. 7. Claims due to non-compliance with Committed Response Time(s) 7.1. Calculation of Liquidated Damages If IBM does not keep the Committed Response Time for an Eligible Call, the Client may claim liquidated damages of 4% of the annual standard service charge for the Essential Care Service for the Eligible Machine in question, for which the compensation is being requested. The standard service charge is the IBM list price without discounts (e.g. for Prepayment) or uplifts for extended service levels (e.g. for committed repair time). The respective service charge can be inquired from IBM. The Client may make up to two (2) claims for each Eligible Machine (including the Eligible Program) in each contract year. The Client may only enforce claims under this SOW against IBM, i.e. not against the IBM Business Partner. Seite 5 von 6
7.2. Reports At the Client's request, IBM will provide a report on the incident for which the Client requests liquidated damages. 7.3. Exclusions If a Committed Response Time is not complied with concerning the reporting of problems on an Eligible Machine or on an Eligible Program due to causes beyond the control of IBM, no liquidated damages will be paid. This may include the following situations: If, when IBM calls back, it is not possible to reach a Client representative with sufficient technical knowledge or no answer is received in time; The call is not entitled as an Eligible Call or information is missing (see also the section "Additional Client Responsibilities"); Functional problems of a machine due to modifications made by the Client that do not correspond to IBM's specifications or causes by programming errors by the Client; denial of service attacks, natural catastrophes, changes due to governmental, political or other official measures, orders of the court, strikes, war, legal measures against other companies (including network operators and other IBM suppliers) and other events of force majeure. 7.4. Settlement of Liquidated Damages In order to make a claim for liquidated damages, the Client needs to report the incident to IBM no later than 15 days after the end of the calendar month in which the agreed service level for an Eligible Call was, in its view, not complied with, but in any case, if the service is terminated, before the date of termination (service end date). If the Client does not make the report to IBM within that period, the Client will lose its right to claim flat rate compensation. After checking the claim asserted by the Client, IBM will inform it of the liquidated damages to which it is entitled and the Client is entitled to receive this. All payments to which the Client is entitled on expiry or termination of the Service for the machine or program in question will be made within one month of the date on which the Service effectively expired or was terminated. The Client is only entitled to receive liquidated damages if he has duly paid the charges for the Service to its IBM Business Partner. IBM is entitled to inquire this of the IBM Business Partner. When the amount is paid to the Client, all claims under this agreement will be deemed as settled. 8. Termination and Withdrawal IBM may withdraw the Essential Care Service for an Eligible Machine, as listed on the Machine/Service List, by giving three months written notice, no earlier than the expiry of the first contract year, to the Client and the IBM Business Partner. Furthermore IBM may withdraw the Essential Care Service by giving three months' written notice to the Client and the IBM Business Partner if IBM is no longer receiving the necessary support for Eligible non-ibm programs from its suppliers. IBM reserves the right to regularly update the list of the supported program versions and releases provided on the Internet explained in the "Definitions" section of this SOW, i.e. program versions/releases may be added or removed. This results in corresponding changes to the inventory of the Client's Eligible Programs. Prepaid charges for the Service withdrawn by IBM, as described on the Machine/Service List, may be credited to the Client if applicable, proportionally. This must be verified by the Client jointly with its IBM Business Partner. This credit rule does not apply to the withdrawal of services for individual versions or releases of Eligible Programs on the website, or to services that were paid for and made available in advance that were not used. Beyond that, the other contract terms specified on the Order Form will apply. * * * Seite 6 von 6