IBM ServicePac for Microcode Update for System x and BladeCenter 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 SERVICE TO YOU ONLY IF:
1) YOU COMPLETE THE ONLINE PROCESS IN IBM’S INTERNET WEBSITE TO ACTIVATE THE SERVICE WITHIN 30 DAYS OF PURCHASE (UNLESS IBM AGREES OTHERWISE);
2) YOU ACCEPT THE TERMS OF THIS AGREEMENT. YOU CONFIRM YOUR ACCEPTANCE OF THIS AGREEMENT ELECTRONICALLY IN IBM’S INTERNET WEBSITE, BY “CLICKING” YOUR AFFIRMATIVE ACCEPTANCE, DURING YOUR COMPLETION OF THE ONLINE PROCESS TO ACTIVATE THIS SERVICE;
3) MACHINES ARE LOCATED IN THE COUNTRY WHERE THE SERVICEPAC WAS PURCHASED; AND
4) MACHINE LOCATIONS ARE ACCESSIBLE BY PRIVATE AUTOMOBILE AND ARE LOCATED WITHIN 150 KILOMETERS OF AN IBM SERVICE LOCATION. ADDITIONAL CHARGES TO THE CUSTOMER AND/OR ALTERNATE SERVICE DELIVERY METHODS MIGHT APPLY FOR LOCATIONS OUTSIDE THE 150 KILOMETER RANGE.
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 IN THE AMOUNT YOU PAID FOR THIS SERVICE. ONCE YOU ACTIVATE THIS SERVICE, IBM WILL NOT PROVIDE A REFUND.
IF YOU ARE PURCHASING THESE SERVICES DIRECTLY FROM IBM, THEN ONCE YOU HAVE COMPLETED THE REGISTRATION PROCESS, ADDITIONAL ELIGIBLE MACHINES MAY BE 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 INTIAL REGISTRATION PROCESS WILL BE SUBJECT TO THESE SAME TERMS AND CONDITIONS.
Contract Start Date is the date the ServicePac contract period starts and is either 30 days after the ServicePac order is confirmed or 3 days after the registration date, whichever is earlier.
Contract Year is a consecutive twelve month period commencing on the Contract Start Date and each subsequent consecutive twelve month period.
Microcode means the supported microcode, firmware and Basic Input Output System (BIOS) levels (not including any beta versions) for which Customer has a license for the Machine and their internal disks and adapters.
What this agreement covers
This IBM ServicePac for Microcode Update for System x and BladeCenter (called the "Agreement") is the complete and exclusive agreement regarding Customer’s acquisition of Microcode Update for System x and BladeCenter service (called "Service") and replaces any prior oral or written communications between Customer, Customer’s IBM reseller or IBM.
This Service is designed to keep microcode on Customer’s Machines at current levels. IBM will analyze customer supplied data once or twice each Contract Year and provide onsite installation of microcode updates.
As a prerequisite for the provision of the Service each Machine must be (i) in good working condition upon the commencement of the Service and (ii) covered by an IBM hardware maintenance agreement or under warranty during the entire contract period. IBM will provide Service under this Agreement consistent with Customer’s hardware maintenance or warranty Service level for the applicable Machine.
For System x Machines this Service covers Microcode on the Machine and IBM parts installed in the Machine. For BladeCenter Machines this Service covers Microcode on the BladeCenter chassis, and all installed Blades and IBM switches.
Customer's access to this Service will end one, two, three, four or five years after the Contract Start Date as specified by the part number that you ordered. Customer is entitled to have the Service performed one or two times per Contract Year depending on the part number ordered. Any Services not used during a Contract Year will be forfeited
- Provide customer with access to software tools required to collect microcode data, instructions for running the tools, and direction on how to transfer the data to IBM.
- Email a Microcode report to the Customer, if available.
- Apply Microcode updates to the Machine.
By providing an update of the Microcode level on a Machine IBM does not provide any further warranty concerning the Machine, its Microcode or its performance.
Customer agrees to:
- Be responsible for the results obtained from the Service.
- Open a service call with IBM when Customer requires Microcode update be performed.
- Follow IBM provided instructions to gather microcode data and transfer that data to IBM for analysis. This includes installing and running any required data collection tools.
- Open requests concurrently for microcode updates to be performed on co-located machines.
- Provide IBM with necessary access to perform Microcode updates simultaneously on several Machines at the same physical location to reduce waiting time.
- Observe and abide by the accepted license terms for the Microcode.
- Perform backup and verification of all data stored on the Machine prior to starting the installation of any updates. IBM shall bear no responsibility whatsoever for any loss of data as a result of IBM’s performance of Services described within this Agreement.
- Provide IBM with sufficient, free, and safe access to your facilities for IBM to fulfill our obligations. IBM reserves the right to refuse service if, in IBM’s judgment, the environment is unsuitable.
Charges, Payment, and Taxes
When you Order the Services from IBM
A one-time charge, which is determined by the ServicePac part number you order, will apply for the Services. Pre-payment of the total amount of the charges for the ServicePac part number you order is required at the time you order the Services. Except for debit and credit card transactions, amounts are due upon receipt of invoice. You are responsible for any taxes resulting from this Agreement.
When You Order the Services from an IBM Business Partner
When you order the Services from an IBM Business Partner, the IBM Business Partner establishes the charges for the Services and the terms governing the payment of the charges.
Additional charges will apply for delays caused by your failure to fulfill your responsibilities, as specified under Your Responsibilities under this Agreement. In such case, you agree to pay IBM charges, at IBM’s prevailing hourly labor rate, in accordance with the payment terms of this Agreement.
Proof of Entitlement
Confirmation of your payment (for example, a receipt from IBM or your IBM Business Partner, as applicable) is your proof of entitlement to the Services.
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 date IBM delivers the ServicePac to you to obtain a return-authorization form. You must return the ServicePac information to an IBM designated location by the date IBM specifies. A copy of your invoice must be provided.
Warranty for IBM Services
IBM warrants that the Services 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.
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.
Limitation of Liability
Items for Which IBM May be Liable
Circumstances may arise where, because of a default on IBM’s part or other liability, you are entitled to recover damages from IBM. 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’s entire liability for all claims in the aggregate arising under this Agreement will not exceed the amount of any actual direct damages up to the charges paid for the Services that is the subject of the claim. This limit also applies to any of IBM’s subcontractors or resellers. It is the maximum for which IBM and its subcontractors or resellers are collectively responsible. Damages for bodily injury (including death) and physical harm to real property and tangible personal property caused by IBM’s negligence are not subject to a cap on the amount of damages.
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 resellers liable for any of the following even if informed of their possibility:
- loss of, or damage to, data;
- special, incidental, consequential or indirect damages (other than as part of the payments for bodily injury including death caused by our negligence) including, but not limited to, lost profits, business, revenue, goodwill or anticipated savings; or
- exemplary damages
- IBM reserves the right to subcontract Services, or any part of them, to subcontractors selected by IBM.
- To the extent applicable to this transaction, each of us is responsible for the supervision, direction, control, and compensation of our respective personnel.
- 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.
- Nothing in this Agreement affects any statutory rights of consumers that cannot be waived or limited by contract.
- Each of us is free to enter into similar agreements with others.
- 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.
- You agree not to resell the Services without IBM’s prior written consent. Any attempt to do so is void.
- You are responsible for selecting the Services that meets your needs and for the results obtained from the use of the Services.
- The exchange of any confidential information will be made under a signed confidentiality agreement.
- 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.
- 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.
- Neither of us is responsible for failure to fulfill any obligations due to causes beyond its control.
- You may not assign, or otherwise transfer, this Agreement or your rights under it, or delegate your obligations, without IBM’s prior written consent. Any attempt to do so is void.
- 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.
- 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.
- 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.
Geographic Scope and Governing Law
The rights, duties, and obligations of each party are valid only in Canada except that all licenses are valid as specifically granted.
Both parties agree to the application of the laws of the Province of Ontario 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.