IBM Deutschland GmbH Statement of Work IBM Software Support Services IBM Support Line for Open Source Software on IBM Power Systems Version: May 2018 1. Subject IBM provides IBM Software Support Services Support Line for the Open Source Software ("OSS") installed on IBM Power Systems (called the "Service" in the following) by means of remote support ("Software Support") for the operation of the Eligible Programs and the customer's supported system environments obtainable from the original software vendor (called the "Open Source Vendor" or the "Vendor" in the following). Software Support Services will be provided for the OSS Programs specified by IBM and installed on the Machines defined on the order form at the agreed sites. Software Support Services are available for various system platforms and will be described for each platform. IBM's Data Processing Addendum (DPA) at www.ibm.com/dpa and the DPA Exhibit at www.ibm.com/mysupport/s/article/support-privacy apply and supplement the Agreement, if and to the extent the European General Data Protection Regulation applies to personal data contained in Content. The Services described below will be provided according to the contract terms specified on the order form. 2. IBM Business Partners IBM has concluded agreements on support for specific products and services with certain partners (called "IBM Business Partners" in the following). The terms of the IBM Business Partner will apply to the calculation of the charges if an IBM Business Partner has arranged business transactions for IBM's products and services supported under this Agreement. If the Service agreed with a customer has been agreed with an IBM Business Partner, all communication regarding terms of payment, charges, credit notes or notices of termination will exclusively be made through the IBM Business Partner, and, in the case of any notice of termination, with notification to IBM. An IBM Business Partner may also agree additional terms with the customer. The agreements concluded between the customer and IBM will apply exclusively to the relationship between the customer and IBM. IBM is not responsible for the business activity of the IBM Business Partner or for any commitments made by an IBM Business Partner with regard to the customer, or for the products and services that an IBM Business Partner has offered under its own agreements. 3. Definitions In this Statement of Work ("SoW"), the following terms have the meanings ascribed to them respectively: Off-Shift: means all times outside IBM's Prime Shift. Eligible Machines: means the Machines listed on the order form under the OSS Support Line Service relating to this SoW. Page 1 of 5
Eligible Programs: means the programs installed on the Eligible Machines, which are listed on the order form. A detailed list of the versions and releases of the Eligible Programs supported by the Vendor can be found on the following Internet website ibm.com/services/sl/products. IBM will only support the versions and releases of the Eligible Programs covered by the service of the Vendor. IBM reserves the right to modify the Programs specified on the above-mentioned website at regular intervals. This will result in additions to and/or deletions of the customer's Eligible Programs. Customer-Critical Problem: means a problem for which no workaround solution is known to the customer resulting in an interruption to the customer's critical business processes ("Severity Level 1"). Primary Technical Contact: means the customer's focal point to whom IBM may forward any general technical information pertaining to the customer's Eligible Machines and Programs. Prime Shift: means the usual local business hours of IBM during which the services are available (from 08:00 to 17:00 h., Monday to Friday, except on national public holidays). Full Shift: means support services on 24 hours a day, seven days a week, including national public holidays. 4. Technical Requirements Network services may possibly be required for electronic access to IBM's Support Center and to certain databases. 5. Scope of Services 5.1. Software Support The provision of remote support (via telephone by the IBM Support Center) will be provided for the following customer requirements: For all agreed Eligible Programs: answers to fundamental questions, as well as questions which can be answered within a short time, relating to the installation, use and configuration; answers to questions relating to code-related problems; verification of diagnostic information to assist in the isolation of the cause of a problem (for example, assistance in the interpretation of traces and dumps relating to installation and coderelated problems); For known errors: the provision of information on bug fixes and program fixes (PTFs) which the customer is entitled to receive by acquiring the rights of use in the software (license). IBM will assist the customer in the isolation of the cause of a problem and will obtain information on debugging from the Open Source vendor (if available) or from IBM's Open Source support partner (called the "Support Partner" in the following). IBM will not be responsible for finding a solution to any errors discovered in the Eligible Programs. IBM will provide the customer with instructions on how the customer can request patches, maintenance updates or refreshers (collectively called "Fixes" in the following) directly from the Open Source vendor. In the case of the Eligible Programs, IBM may also refer the customer directly to IBM's Open Source support partner from which the customer can obtain Fixes in the form of patches, based on a separate agreement concluded between the customer and the respective Open Source support partner. IBM's Open Source support partner can provide the Open Source vendor with such patches for inclusion and transfer as 'errata updates' and 'patches' (i.e. the officially listed updates and patches). However, there will be no guarantee that the Open Source vendor has developed such patches as part of the main source code or that the vendor concerned will accept such patches. If any new error has been identified, IBM will report this error to the vendor and will inform the customer of known counter-measures and if any information on debugging is available from the vendor. The vendor will distribute and grant a license for its licensed software and information on bug fixes, including Fixes, directly to the customer pursuant to the terms of the vendor's License Agreement for End Users ("EULA"). IBM may, however, place an order with the Vendor on behalf of the customer, as a courtesy, but the customer will confirm and agrees that IBM is not a party to the EULA nor a distributor, licensor or reseller of the software, including Fixes, licensed by the vendor. Page 2 of 5
However, the Open Source vendor or IBM's Open Source support partner may provide the customer with specific warranties, assurances or indemnification under the EULA. By contrast, IBM will not offer any warranties, assurances, indemnification or other licenses (neither explicitly nor implied) in connection with the software licensed by the Open Source vendor or IBM's Open Source support partner and will only provide Services under the present agreement, at the customer's request and on behalf of the customer. Without restricting the general validity of the provisions outlined above, IBM will not offer any indemnification for any claims or purported claims, based on the allegation that the software licensed by the Open Source vendor or IBM's Open Source support partner constitutes an infringement (in whole or in part) of the industrial property rights of any third party. 5.2. Response Times As a rule, IBM will call the customer back within two (2) hours after the receipt of a service request from the customer relating to an Eligible Program during Prime Shift and, in the case of any Customer- Critical Problems, during Full Shift. If a problem cannot be resolved during this first phone call, it may form the basis for determining what additional measures are required, in order to find a technical solution to the problem in question. Support may be provided in English during Off Shift. Support requests relating to Customer-Critical Problems made during Off Shift; such requests must be made by telephone. IBM will not be responsible for any response time delays due to system and/or network problems. 6. Obligations 6.1. Specific Customer Responsibilities The customer will 1. pay all communication charges incurred by it in relation to the use of this Service, including the charges for telephone and Internet; 2. ensure that the customer has obtained a license or a subscription for all Eligible Programs for which the customer has requested support services; 3. ensure that all access codes that IBM provides will only be used by authorized customer employees; 4. verify the list of the current Eligible Programs on IBM's Internet site on a regular basis, in order to verify whether any Eligible Programs have been added or deleted; 5. notify IBM of the name of the customer's Primary Technical Contact within three (3) business days after the start date of the service provision based on this SoW, to whom general technical information about the Eligible Machines and Eligible Programs can be addressed. This Primary Technical Contact and every caller must possess adequate technical knowledge of the customer's Eligible Machines and Eligible Programs, thus ensuring efficient communication with IBM's Support Center; 6. use the information received during the provision of this Service exclusively for the support of IT requirements within the customer's enterprise; 7. provide IBM with all the necessary diagnostic information available (including any product-related or system-related information) in relation to problems regarding the Eligible Machines and Eligible Programs for which the customer has requested support services; 8. not assign or transfer or disclose otherwise the services described in this agreement or the customer's rights and obligations under this agreement, without IBM's prior written consent. Any attempt to do this will be considered as ineffective; 9. install the Programs specified by IBM, which are required for the use of electronic tools for remote access, on the customer's Eligible Machines; 10. enable IBM to have the necessary remote access to the customer's Eligible Machines and will also grant the necessary authorizations to IBM's assigned employees, so that IBM can provide its services via remote access. If remote access to the customer's Eligible Machines is not possible for IBM, this may result in delays to the debugging process. If IBM has not been granted remote access to the customer's Eligible Machines, this may result in delays to the debugging process. Page 3 of 5
In this case, IBM cannot be obligated to fulfill the agreed Service Levels (if these have been agreed) and/or to achieve the agreed service performance; 11. be responsible for ensuring adequate protection of all programs and data stored on the customer's Eligible Machines if IBM has customer-authorized remote access to these Machines; 12. grant IBM sufficient, unimpeded and safe access to the customer's premises and systems (including remote access), and provide information, assistance by employees or any other resources, to the extent that this is required for IBM's service provision. This will also include the fact that the Machines are in a safe condition; 13. be responsible for the installation of program fixes, according to IBM's recommendations; 14. obtain any upgrades of the customer's Programs for which Software Support services are provided, according to IBM's instructions; 15. inform IBM if the place of installation of a Machine has been changed. 6.2. Required Consents The customer will obtain all the required declarations of consent of third parties pursuant to this agreement in due time and make them available to IBM upon request, such as the declaration of consent from the owner of a machine if the customer is not the owner of the respective machine. This will also include all consents entitling IBM, or its assigned subcontractors, to access the hardware, software, firmware or other products used at the customer's enterprise, and to use or modify these items (including the development of derivative works) required in order to exclude any infringement of rights (including patent rights and/or copyrights) of the vendors or owners of such products. The customer will indemnify and hold IBM, its affiliated companies and assigned subcontractors harmless against any and all legal claims, receivables or damages (including reasonable expenses for legal costs) possibly arising from any claims enforced against IBM, its affiliated companies and assigned subcontractors, due to the lack of such consents (including any patent and/or copyright infringements). IBM will be released from any obligations possibly affected by the lack of the required consents, or because such consents have not been provided in due time. 7. Term and Withdrawal of the Service The service provision will start upon IBM's receipt of the order form, based on this SoW, signed by the customer and will end after the expiry of the service period specified on the relevant order form. IBM's service will not be extended automatically. The customer is not permitted to terminate this Service. IBM may withdraw a service or the support service for an Eligible Program with (at least) three (3) months' written notice, which will be sent to the customer, if IBM itself no longer receives the necessary support services from its vendors. In such cases, the customer will receive a credit note for prepaid services not yet performed. If the Service agreed between the customer with an IBM Business Partner is based on this SoW, the customer will check this point together with its IBM Business Partner. Any other changes made within an Eligible Program (e.g. by adding new Eligible Programs or by deleting Eligible Programs which are no longer Eligible Programs) will be included in the list shown on the specified IBM website, if such changes have been made. No refund of prepaid service charges for the Eligible Programs will be made if IBM has withdrawn its support services for individual Eligible Programs. Beyond that, IBM will not grant any credit notes or refunds for prepaid services or for services provided to the customer but which the customer has not used, or for any modifications made by the customer with regard to the Eligible Programs (e.g. de-installation of a program). The terms included in this agreement and in the respective IBM customer agreement will apply to the acquisition of this Service by the customer. These terms constitute the complete and exclusive agreement with regard to this Service and shall replace all previous oral or written arrangements made between the customer and IBM with regard to this Service. The customer will accept the terms of this agreement without any changes, either by placing an order or by using this Service (to the extent that this is permissible under applicable law), or by paying the charges for this Service, or by signing this agreement, if this is prescribed by applicable law. A Service will become the subject of this agreement, as soon as IBM has accepted the order form or the payment by the customer. Once this agreement has taken effect, the following will apply: (1) each original reproduction of this agreement, e.g. a Page 4 of 5
photocopy, scan or facsimile, will be considered as equivalent to the original agreement, unless this is prohibited by applicable law or if stated otherwise; and (2) the Service provided under this agreement will be subject to the true-to-the-original reproduction of this agreement. Neither party will invoke any terms other than those specified in this agreement. Any change(s) to this agreement will only take effect if both parties have confirmed their acceptance of the change in question in writing. Any additional or deviating terms specified in a written notice from the customer (e.g. in a written order form) will be considered as ineffective. Otherwise, the regulations of the other contractual provisions specified on the order form will apply. 8. Contact Details The customer agrees that IBM Deutschland GmbH, IBM-Allee 1, 71339 Ehningen, Germany (called "IBM Deutschland" in the following) may collect, process and use the customer's contact details for the purpose of dealing with of the contractual relationship and maintaining the business relationship with the customer. 'Contact details' means the business-related contact information made accessible to IBM Deutschland, particularly names, job titles, business addresses, business phone and fax numbers, and email addresses of the customer's or third parties' employees. Furthermore, the customer agrees that its contact details are made accessible to the IBM companies and IBM Business Partners, and to their respective subcontractors, and may be processed and used within the scope of the purposes specified in this section of the present agreement. 'IBM companies' means the International Business Machines Corporation based in Armonk, New York (USA) and its affiliated group companies. The customer also agrees that its contact details may be transferred to countries outside the EU (European Union) within the scope of the purposes specified in the two preceding paragraphs, subject to the proviso that IBM will take suitable measures to ensure that an adequate data privacy level is ensured. This may be done (for example) by making an agreement on the standard contract clauses published by the EU Commission or any other contractual arrangements approved by the competent data protection regulatory authority. * * * * * Page 5 of 5