IBM ServicePac Maintenance Service Agreement
NOTICE: PLEASE CAREFULLY READ THE FOLLOWING TERMS UNDER WHICH IBM CANADA LIMITED (“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); AND
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.
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 MAYBE ADDED TO THE SERVICES PURCHASED PURSUANT TO THIS AGREEMENT. YOU AGREE THAT YOUR ORDER(s) FOR THESE SERVICES FOR ALL ADDITIONAL ELIGIBLE MACHINES THROUGH YOUR IBM representative FOLLOWING THE INTIAL REGISTRATION PROCESS WILL BE SUBJECT TO THESE SAME TERMS AND CONDITIONS.
Scope and Agreement Acceptance
This IBM Solution Support Services ServicePac Maintenance Service Agreement (called the "Agreement"), and its applicable machine list, are the complete and exclusive agreement regarding your acquisition of warranty service upgrade and post-warranty maintenance service (called "Service") for both IBM Machines and selected non-IBM Machines (collectively called “Machines”) and replace any prior oral or written communications between you, your IBM reseller or IBM regarding such acquisition.
This Service is designed to keep your Machines in, or restore them to, conformance with their Specifications. We reserve the right to inspect a Machine within one month from the activation date of this Service. If the Machine is not in an acceptable condition for Service, we will notify you, terminate coverage, and refund your money.
Service for non-IBM Machines is subject to availability of repair parts and technical support required from the original manufacturer. You may request that we use repair parts manufactured by the original manufacturer when these are available, but there may be an additional charge.
IBM will provide Service, either 9 hours per day 5 days a week (Monday through Friday, excluding statutory holidays in Canada) during normal business hours, or 24 hours per day, 7 days per week including statutory holidays as specified by the part number you ordered. IBM will provide this Service only in the country of acquisition for machines identified in the supported product list. Certain Machine types may require the installation and use of remote connectivity tools and equipment for direct problem reporting, remote problem determination and resolution.
IBM will provide this Service only in the country of acquisition for machines identified in the applicable machine list for PCD/X Series and Printer products accordingly.
FOR IBM MACHINES, SERVICE IS AVAILABLE ONLY IF
1) FOR A WARRANTY SERVICE UPGRADE, IF IT WAS PURCHASED DURING THE MACHINE’S IBM INITIAL BASE WARRANTY PERIOD,
2) FOR A MAINTENANCE AGREEMENT, IF THE MACHINE IS IN GOOD WORKING ORDER,
3) YOU ACTIVATE THIS SERVICE BY FOLLOWING THE ACTIVATION PROCESS THAT WE PROVIDE,
4) MACHINES ARE IN THE COUNTRY WHERE SERVICEPAC WAS PURCHASED, AND
5) IN THE CASE OF ON-SITE SERVICE, THE MACHINE LOCATIONS ARE ACCESSIBLE BY PRIVATE AUTOMOBILE AND ARE LOCATED WITHIN 150 KILOMETERS OF AN IBM SERVICE LOCATION. ADDITIONAL CHARGES TO THE END-USER AND/OR ALTERNATE SERVICE DELIVERY METHODS MIGHT APPLY FOR LOCATIONS OUTSIDE THE 150 KM RANGE.
Service does not cover accessories, supply items, and certain parts, such as batteries, frames, and covers. In addition, this Agreement does not cover Service of a Machine damaged by misuse, accident, modification, unsuitable physical or operating environment, improper maintenance by you, removal or alteration of Machine or parts identification labels, or failure caused by a product for which IBM is not responsible. For non-IBM Machines, this Agreement also does not cover Machine installation, engineering change activity, preventive maintenance, microcode/firmware activity, or features and parts not supplied by the original manufacturer or IBM in performance of this Service.
This Agreement is the complete agreement regarding IBM’s provision and your use of the Services and replaces any prior oral or written communications between you and IBM regarding this transaction. In entering into this Agreement neither party is relying on any representation that is not specified in the Agreement including without limitation any representations concerning:
- estimated completion dates, hours, or fees to provide the Services;
- performance or function of any product or system;
- the experiences or recommendations of other parties; or 4) results or savings you may achieve. Additional or different terms in any written communication from you (such as a purchase order) are void.
By signing this Agreement electronically, each of us accepts the terms of this Agreement, without modification, on behalf of its Enterprise (an “Enterprise” is any legal entity (such as a corporation) and the subsidiaries it owns by more than 50 percent. The term “Enterprise” applies only to the portion of the Enterprise located in Canada). Once signed,
- any reproduction of this Agreement made by reliable means (for example, electronic image, photocopy or facsimile) is considered an original and
- the Services are subject to it.
IBM Business Partners
IBM has signed agreements with certain organizations (called “IBM Business Partners”) to promote, market, and support certain Services. When you order Services that are promoted or marketed to you by IBM Business Partners or other suppliers, however, such Business Partners and suppliers remain independent and separate from IBM. IBM is not responsible for the actions or statements of IBM Business Partners or other suppliers, obligations that either has to you, or any products or services that they supply to you under their agreements.
Services provided under this Agreement are limited to certain machines. A list of supported products is available in IBM’s Internet website at: http://www-03.ibm.com/services/ca/en/its/spacs.html
Types of services for machines
- IBM will provide Service at your location, (called "On-site".) Under On-site, if Service is required as determined by IBM, IBM will use reasonable efforts to respond as specified in the supported product list. You must provide a suitable environment for repair at a business location. IBM reserves the right to refuse service if, in IBM's judgment, the environment is unsuitable. Some parts of IBM machines are considered Customer Replaceable Units (CRUs). IBM will ship these parts to you for replacement. All defective CRUs must be returned to IBM. Under Carry-in Service, if Service is required as determined by IBM, you may deliver the failing Machine or ship it suitably packaged (prepaid, unless IBM specifies otherwise) to a location IBM designates, or IBM will use a courier to pick up and return the Machine as specified in this ServicePac.
- When a type of Service involves the exchange of a Machine or part, the item IBM replaces becomes its property and the replacement becomes yours. You represent that all removed items are genuine and unaltered. The replacement may not be new, but will be in good working order and at least functionally equivalent to the item replaced. The replacement assumes the Service status of the replaced item. Before IBM exchanges a Machine or part, you agree to remove all features, parts, options, alterations, and attachments not under IBM's Service. You also agree to ensure that the item is free of any legal obligations or restrictions that prevent its exchange. IBM is responsible for loss of, or damage to, your Machine while it is 1) in IBM's possession or 2) in transit in those cases where IBM is responsible for the transportation charges.
- You agree to obtain authorization from the owner to have IBM service a Machine
that you do not own. You agree to follow the instructions we provide and where
applicable, before Service is provided:
- follow the problem determination, problem analysis, and Service request procedures that we provide; and
- secure all programs, data, and funds contained in a Machine.
- You agree
- that you are responsible for the results obtained from the Service; and
- to provide IBM with sufficient, free, and safe access to your facilities for IBM to fulfill our obligations.
- You agree to acknowledge that some devices (for example, solid state storage devices) have read/write or wear limitations as documented in the hardware product Specifications. When these devices have reached the wear limitations they are not covered under maintenance Services unless specified otherwise.
- You agree to securely erase from any Machine that you return to IBM for any reason
all programs not provided by IBM with the Machine and data, including without
limitation, the following:
- information about identified or identifiable individuals or legal entities (“Personal Data”) and
- your confidential or proprietary information and other data. If removing or deleting Personal Data is not possible, you agree to transform such information (e.g. by making it anonymous or encrypting it) so that it no longer qualifies as Personal Data under applicable law.
- IBM will provide you or your authorized user with an authorization number which will allow you direct access, via a toll-free number, to a support specialist. You are responsible for the security of your authorization numbers.
- Your access to this Service will end in either one, two, three, four or five years as indicated by the part number that you ordered, from the date on your IBM Machine’s sales receipt or your IBM Maintenance ServicePac’s sales receipt, unless IBM or your reseller informs you otherwise in writing. For a non-IBM Machine, your access to this Service will end in one year as indicated by the part number that you ordered, from the date you activate this service.
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 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 returnauthorization 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 IBM Canada Limited 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.
Special Terms related to Retail Stores Solutions Products
On April 17, 2012, IBM divested its Retail Stores Solutions (“RSS”) business to Toshiba TEC Corporation (“TGCS”).
While the business is being transitioned to TGCS, IBM is continuing to provide contracting support for RSS products
through its ServicePac program. In order to make the transition as seamless as possible, this Agreement will be automatically
transferred from IBM (the “Assignor”) to Toshiba Global Commerce Solutions (Canada) Ltd located at 75 Tiverton Court, Markham ON,
L3R 4M8, Canada (the “Assignee”), and such transfer will occur on the last day of the month in which you contracted for the Service.
As of the date of the transfer, the Assignee will be assigned the post-transition rights, and will assume the post-transition
obligations and responsibilities under this Agreement in place of the Assignor for the Service, and the Assignor will be released
from its obligations. As of the date of the transfer, all references to the Assignor in this Agreement will be deemed
to be references to the Assignee and your ongoing contractual relationship for the Service will be between you and the Assignee.
All future communications relating to the Service will come from the Assignee. This will not affect any agreements that you have
with IBM for other products and services. Additional information to assist you with this transition is available at:
The laws of the province of Ontario govern this Agreement.
Please select from the following options:
AS THE CUSTOMER, I ACCEPT THE Terms and Conditions AS DESCRIBED HERIN OF THE IBM HW “HOW TO” SERVICEPAC FOR XSERIES AND BLADECENTRE.
NOTE : ONCE YOU ACTIVATE THIS SERVICE, YOUR MONEY WILL NOT BE REFUNDED.