Product And Services Agreement
Equipment Support Terms
These Equipment Support Terms govern the Equipment Support Services ibml will provide to Buyer during the Equipment Maintenance and Support Term and constitute a binding contract between Buyer and ibml. ibml’s performance and Buyer’s receipt of any Equipment Support Services is at all times subject to the terms and conditions outlined in these Equipment Support Terms, which incorporate by reference all other terms and conditions governing Buyer’s use of the Products, as described in the Contract Terms.
1. Maintenance. During the Equipment Maintenance and Support Term, ibml will provide the Equipment Support Services specified in the Profile and described in these Equipment Support Terms.
2. Term. The initial maintenance and support term for the Equipment Support Services will begin on expiration of the Warranty Period and will continue for twelve (12) months or such greater term as may be specified in the Profile applicable to that item of Equipment (the “Equipment Maintenance and Support Term”). Thereafter, the Equipment Maintenance and Support Term shall automatically renew for successive twelve (12)-month terms unless either Party terminates the Equipment Support Services prior to the expiration of the then-current term by providing the other Party written notice of termination not less than ninety (90) days prior to the expiration date of the then-current term.
3. Equipment Services.
(a) During the Equipment Maintenance and Support Term, ibml shall provide Equipment Support Services to keep the Equipment in good operating condition subject to the terms and conditions herein. Equipment Support Services includes applicable scheduled preventive maintenance as determined by ibml, and unscheduled or remedial maintenance consisting of the necessary adjustments and repairs of the Equipment, including the replacement (on an exchange basis) of unserviceable parts or components occasioned by the normal use of the Equipment by Buyer; provided, however, Equipment Support Services excludes any Voluntary OS Upgrade. Equipment Support Services provided under these Equipment Support Terms does not assure uninterrupted operation of the Equipment, nor do the maintenance charges include any maintenance services necessitated by Buyer’s improper or unauthorized use of the Equipment.
(b) The Principal Period of Maintenance (“PPM”) is defined as the maintenance period for Equipment elected by Buyer in the Profile and as described in the Contract Terms. Buyer may elect a standard PPM of any eight consecutive hours between the hours of 8:00 a.m. to 5:00 p.m. (Buyer’s local time) Monday through Friday, excluding holidays observed by ibml. Hardware technical support services will be provided to Buyer by ibml Hardware Technical Support staff via telephone or e-mail. The phone number for ibml hardware technical support is +49-700-IMAGETRAC (+49-700-4624-38722). The e-mail address is euspport@ibml.com. Buyer shall elect the same PPM for all Equipment being maintained by ibml at the same location. If Buyer designates a PPM any part of which is outside the hours of 8:00 a.m. to 5:00 p.m. (Buyer’s local time), the maintenance charge will be increased in accordance with ibml’s then current pricing policy. Buyer may change its designated PPM at the beginning of any calendar month by giving ibml at least thirty (30) days prior written notice.
(c) Whenever Equipment is regularly used outside of the PPM, Buyer may incur, and agrees to pay, additional charges at ibml’s then prevailing rates and according to ibml’s then current policies (“Extended Use Charges”).
(d) Remedial maintenance shall be performed after notification by Buyer to ibml that the Equipment is inoperative or is not operating in accordance with ibml specifications for the particular configuration in question. ibml service personnel (or those of ibml’s authorized agent) shall arrive at the Buyer’s installation site in NBD (Next Business Day) or less, unless otherwise noted in the Profile, and be granted access to the inoperative or improperly functioning Equipment. Any remedial maintenance service started during the PPM and completed within one (1) hour after the PPM will be treated as having been performed within the PPM, and no additional charges will be billed to Buyer by ibml or its authorized agent. If Buyer requests ibml (or its authorized agent) to remain on site to complete remedial maintenance service started within the PPM but unable to be completed within one (1) hour after the PPM, Buyer will be billed for any such additional hours at ibml’s then current rate for after-hours or weekend/holiday service with a minimum charge of two (2) hours.
(e) Preventive maintenance (e.g., to inspect, lubricate, clean and adjust the Equipment) shall be performed as specified in the applicable maintenance, installation or operator’s manuals for the Equipment. All preventive maintenance shall be performed by ibml (or its authorized agent) during the hours of 8:00 a.m. to 5:00 p.m. (Buyer’s local time) Monday through Friday, excluding holidays observed by ibml. ibml shall specify the frequency and duration of preventive maintenance required for the Equipment.
(f) Maintenance charges do not cover the furnishing or installation of consumable supplies (such as feed tires, ink, etc.). Performance degradations and malfunctions of the Equipment caused by the use of consumable supplies of less than equivalent quality to ibml-approved consumable supplies are not covered by these Equipment Support Terms and will be repaired on a time and materials basis at ibml’s then prevailing hourly service rates.
(g) Parts necessary to ensure proper functioning of the Equipment will be furnished by ibml at no additional cost over and above the maintenance charges specified in the Profile. Parts removed for replacement in the course of remedial or preventive maintenance remain the property of ibml.
(h) Before remedial or preventive maintenance is provided hereunder for Equipment that has not previously been subject to Equipment Support Services provided by ibml, ibml will inspect the Equipment and, if necessary, repair or refurbish the Equipment to make it comply with ibml’s then current specifications. Such repair or refurbishment shall be performed at Buyer’s expense, with Buyer paying ibml for time spent and parts and materials used in accordance with ibml’s then current Customer Service Price Schedule.
(i) ibml shall have no obligation under these Equipment Support Terms to (i) make changes to the Equipment, (ii) furnish operating supplies or accessories, (iii) service options or attachments other than those specified in the applicable Profile, (iv) perform Voluntary OS Upgrades, or (v) provide emergency or other services not specifically provided for in these Equipment Support Terms.
4. Relocation. For an additional charge, ibml may provide assistance, if applicable, in rearrangement and relocation of the Equipment, and the materials appropriate for such relocation (e.g., packing materials). Charges for such assistance will be based on ibml’s then prevailing material prices and hourly service rates for service time, including travel and waiting time. Should relocation be to a site for which ibml does not normally provide service, ibml, at its option and upon mutual agreement with Buyer, may continue service hereunder, but shall have the option to apply an appropriate surcharge to its then current prevailing service charges for the Equipment.
5. Extended Coverage.
(a) The maintenance charges and applicable surcharges (if any) specified in the Profile covers Equipment Support Services during the PPM for Equipment located in the ibml service zone applicable to the installation site of the Equipment. Service zones are based upon the number of miles from the geographic center of a city where ibml (or its authorized agent) has a service location.
(b) Subject to availability, Buyer may contract for extended hours of Equipment Support Services outside the PPM (“PPM Shift Extension”) on Monday through Friday, and shall pay a surcharge as specified in the Profile. In addition, where available, Buyer may contract for PPM Shift Extensions to obtain Equipment Support Services on Saturday and/or Sunday, and shall pay a surcharge as specified in the Profile.
(c) The following conditions apply to all PPM Shift Extensions requested by Buyer:
(i) PPM Shift Extensions must be contiguous to the PPM. PPM Shift Extension hours selected on Monday through Friday shall be the same each day, and hours selected for Saturdays and/or Sundays shall be the same hours for all Saturdays and/or Sundays.
(ii) At least ninety (90) days prior written notice is required from Buyer to commence PPM Shift Extensions.
(iii) Unless otherwise agreed in writing by Buyer and ibml, PPM Shift Extensions must be contracted for a minimum period of six (6) months. If Buyer terminates a PPM Shift Extension before the six (6)-month period expires, Buyer shall be responsible for payment of PPM Shift Extension charges for the balance of the six (6)-month minimum PPM Shift Extension period.
(iv) All requests for PPM Shift Extensions are subject to acceptance and approval by ibml.
(d) The Equipment Support Services furnished by ibml outside the PPM or outside contracted PPM Shift Extensions shall be subject to ibml’s then current hourly rates for each service call. The hourly charge(s) shall apply to the time spent on-site and the travel time to and from the Equipment location with a minimum charge for services of two (2) hours on weekdays and three (3) hours on weekends or ibml observed holidays.
6. Special Services. In the event Buyer orders special maintenance and/or support services for certain Equipment by designating such services in the Profile, the corresponding Additional Terms, as referenced in the Profile, are incorporated herein by reference.
7. Conditions.
(a) Buyer shall ensure that, during the Equipment Maintenance and Support Term, the environmental conditions under which the Equipment is installed and used shall continue to conform to those set forth in the installation instructions and specifications provided by ibml when the Equipment was initially installed. Buyer shall be responsible for ensuring the proper use, management and supervision of the Equipment by properly trained personnel. Buyer shall not perform maintenance on the Equipment without ibml’s written authorization.
(b) For ibml to provide the Equipment Support Services, such Equipment Support Services must be ordered for (i) all Equipment comprising an integrated system, and (ii) all Software installed on such integrated system, including Equipment and/or Software subsequently purchased or licensed for use with the same integrated system.
(c) Buyer shall provide adequate working space, heat, light, ventilation, storage space for spare parts and tools, and electrical current and outlets conforming to the requirements set forth in the specifications for use provided by ibml. All spare parts and tools stored by ibml at Buyer’s site and all parts and components replaced by ibml under these Equipment Support Terms shall remain the property of ibml. Facilities used for storage of such parts, components, tools, etc. shall be within a reasonable distance of the Equipment to be maintained, properly secured, and provided to ibml at no charge.
(d) Maintenance charges shall not cover the following: (i) electrical work external to the Equipment; (ii) changes or alterations in specifications; (iii) furnishing accessories, consumable items or supplies; (iv) painting or refurbishing the Equipment or furnishing materials for such purpose; (v) relocation, moving or reinstallation of the Equipment; (vi) installation, de-installation, or maintenance of accessories, attachments, machines, or other devices not furnished by ibml including, without limitation, any Voluntary OS Upgrades; (vii) repairs made necessary by accident, misuse, fault or negligence of Buyer, its employees, agents, contractors or invitees; and (viii) repairs made necessary due to causes external to the Equipment, such as but not limited to, failure, fluctuation or surges in electrical power, failure of air conditioning, or shortage of energy. If such services are ordered and provided by ibml, Buyer shall pay for such services in accordance with ibml’s then current rates and terms and conditions for time and materials service.
(e) If the Parties mutually agree that ibml will provide remote diagnostic service for the Equipment maintained under this Agreement, Buyer shall provide access to the Equipment via remote access technology which is approved by Buyer. ibml’s access to Buyer’s information technology or IT systems shall comply with all Buyer IT system access and security policies and procedures communicated by Buyer to ibml. Buyer shall have the right to restrict ibml’s remote access to the Equipment at any time. Buyer’s decision to not permit ibml to gain remote access to Buyer’s IT systems for performing remote diagnostic service for the Equipment shall not affect or diminish ibml’s maintenance and support responsibilities under these Equipment Support Terms.
8. Invoice and Payment.
(a) Maintenance and support charges, plus applicable surcharges (if any) as specified in the Profile, shall be due and payable in advance. Unless otherwise designated in the Profile, maintenance charges shall begin the first day following expiration of the Warranty Period. Charges for a partial period’s Equipment Support Services shall be prorated at 1/22nd of the calculated monthly service or support rate per day.
(b) Maintenance and support charges shall not be increased for a period of twelve (12) months after the commencement of the initial Equipment Maintenance and Support Term. ibml reserves the right at the end of the first twelve (12) months or any time thereafter, and upon ninety (90) days prior written notice, to increase maintenance and support charges in accordance with its standard pricing policies.
(c) Notwithstanding the foregoing, ibml reserves the right to additionally charge Buyer for services which may be required due to: (i) Buyer’s non-compliance with any or all laws relating in any way to the use or operation of the Equipment, or (ii) Buyer’s alterations, modifications, or attachments to the Equipment. In addition, should any alteration, modification or attachments to the Equipment interfere with the normal and satisfactory operation or maintenance of any component of the Equipment or create a safety hazard, Buyer shall, upon written notice from ibml to that effect, and within five (5) business days from its receipt of such notice, remove the alteration, modification, or attachment and restore the Equipment to its original configuration. In no event shall Buyer use the Equipment for any other purpose than that for which it was designed. Notwithstanding anything to the contrary contained herein, failure of Buyer to agree to the charges imposed by ibml pursuant to items (i) and (ii) above, or failure to comply with ibml’s instructions relative to safety standards for the use of the Equipment may, at ibml’s sole discretion, result in the cancellation by ibml of the Equipment Support Services provided under these Equipment Support Terms.
(d) Supplies and accessories furnished to Buyer will be billed to and paid for by Buyer in accordance with ibml’s then current price schedule. Payment for any such items shall be due net thirty (30) days from the date of the applicable invoice.
9. Replacement Parts Warranty.
(a) ibml expressly warrants that replacement parts installed by ibml and/or ordered by Buyer during the Equipment Maintenance and Support Term shall be free from defects in materials and workmanship (i) for new, unused replacement parts, for a period of (90) days from the date upon which such parts are installed; and (ii) for used or refurbished parts, for a period of forty-five (45) days from the date upon which such parts are installed.
(b) Buyer’s sole remedy with respect to replacement parts not in compliance with this warranty during the Equipment Maintenance and Support Term shall be, after Buyer’s notification to ibml, that the replacement parts not in compliance with the warranty either be repaired or replaced, as determined by ibml.
(c) EXCEPT FOR THE REPLACEMENT PARTS WARRANTY SET FORTH HEREINABOVE, IBML MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE REPLACEMENT PARTS, INCLUDING ANY (i) WARRANTY OF MERCHANTABILITY; (ii) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (iii) WARRANTY OF TITLE; OR (iv) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
[END OF EQUIPMENT SUPPORT TERMS]