Software as a Service Agreement

Support Terms 

These Support Terms govern the Support Services ibmc will provide to Customer during the Term and constitute a binding contract between Customer and ibmc. ibmc’s performance and Customer’s receipt of any Support Services is at all times subject to the terms and conditions outlined in these Support Terms, which incorporate by reference all other terms and conditions governing Customer’s use of the Services, as described in the Contract Terms. 

1. Support Services. During the Term, ibmc will provide the Support Services specified in these Support Terms. 

• • "Committed Monthly Uptime Percentage" means [99]%.   

• • "Downtime" means the total accumulated Minutes in the Month that Customer does not have access to or operational use of the Services; excluding, however, (i) those minutes in which the Microsoft Azure Infrastructure experiences an outage, and (ii) Scheduled Downtime. 

• • "Minutes in the Month" means the total number of minutes in the month (i.e., No. of days in the month x 24 hours x 60 minutes) that ibmc is obligated to provide Customer support for the Services as determined based on the SPPS (as defined below) for Support Services selected by Customer.   

• • "Monthly Uptime Percentage" means the percentage of the Minutes in the Month that the Services are available for operational use by Customer, and is calculated as follows:   

Monthly Uptime Percentage = ((Minutes in the Month - Downtime) / Minutes in the Month) X 100 

If Customer experiences Monthly Uptime Percentage that is below the Committed Monthly Uptime Percentage, Customer will have the right, but not the obligation, to file a claim for a Service Credit. 

• • "Scheduled Downtime" means scheduled downtime for routine maintenance of the Services, which ibmc will use commercially reasonable efforts to (i) schedule between the hours of 12:00 a.m. and 6:00 a.m. (Central time) and (ii) give Customer at least forty-eight (48) hours prior notice of all scheduled outages of the Services. 

• • "Service Credit" means a percentage of Fees to be credited to Customer if the Monthly Uptime Percentage fails to meet or exceed the Committed Monthly Uptime Percentage as determined in accordance with the terms set forth in these Support Terms.  

• • "Uptime" means the total accumulated Minutes in the Month that Customer has access to and operational use of the Services; excluding, however, the ability of Customer to login to the Services due to dependence on third party platforms outside of the control of ibmc (e.g., Azure Active Directory, Azure Infrastructure, etc.). 
    
    
  3. Services. ibmc will make the Support Services available to Customer in accordance with the service level policies set forth in these Support Terms; provided, however, such service level policies will not apply to any separately branded services made available with or otherwise connected to the Services. 

• • If ibmc does not achieve and maintain the service levels for the Support Services as described in these Support Terms, including the Committed Monthly Uptime Percentage, Customer may be eligible for a Service Credit.   
    
    
  • To consider a claim for a Service Credit, Customer must submit the claim via a support ticket to ibmc's customer support including all information necessary for ibmc to validate the claim, including but not limited to: (i) a detailed description of the incident; (ii) information regarding the time and duration of the Downtime; (iii) the number and location(s) of affected users (if applicable); and (iv) descriptions of Customer's attempts to resolve the incident at the time of occurrence. 
    
    
  • The claim must be received by the end of the calendar month following the month in which the incident occurred. For example, if the incident occurred on February 15, ibmc must receive the claim and all required information by March 31 of the same calendar year. 
    
    
  • ibmc will evaluate all information reasonably available to ibmc and make a good faith determination of whether a Service Credit is owed to Customer. ibmc will use commercially reasonable efforts to process claims during the subsequent month and, in any event, within forty-five (45) days of receipt of a claim from Customer. Customer must follow the procedures set forth in these Support Services to be eligible for a Service Credit. If ibmc determines that a Service Credit is owed to Customer, the Service Credit will be applied to Customer's current subscription.  If ibmc denies a Service Credit request, ibmc will provide Customer with a notice of such denial, including an explanation of the basis for such denial. 
    
    
  • Service Credits will be awarded to Customer if Customer experiences a Monthly Uptime Percentage that is below the Committed Monthly Uptime Percentage and follows the Service Credit procedures set forth in these Support Terms. The daily number of documents, based on Customer's annual estimated subscription volume, will be credited to Customer's account for any days experiencing Downtime. For example, if in a particular month, Customer experiences an Uptime Percentage of 98% with Downtime occurring on three (3) different days, and Customer's annual estimated subscription volume is 100,000, Customer's estimated daily document count is 274 (100,000 / 365 Days), and, therefore, Customer would receive a Service Credit for 822 documents (274 documents per day x 3 days).  Customer's annual estimated subscription volume will be adjusted annually, on the anniversary date of the Effective Date of the Agreement, based on Customer's prior year subscription volume. 

• • due to factors outside ibmc's reasonable control (for example, natural disaster, pandemic or epidemic, war, acts of terrorism, riots, government action, or a network or device failure external to our data centers, including at Customer's site or between Customer's site and ibmc's data center); 

• • that result from the use of services, hardware, or software not provided by ibmc, including, but not limited to, issues resulting from inadequate bandwidth or related to third-party software or services; 

• • caused by Customer's use of the Services after ibmc advised Customer to modify its specific configuration and Customer's subsequent failure to modify such configuration; 

• • during or with respect to preview, pre-release, beta or trial versions of the Services, feature or software (as determined by ibmc); 

• • that result from Customer's unauthorized acts or failure to act when required, or from Customer's employees, agents, contractors, vendors, or any other person gaining access to ibmc's network by means of Customer's passwords or equipment, or otherwise resulting from Customer's failure to follow appropriate security practices; 
    
    
  • that result from Customer's failure to adhere to any required configurations, use supported platforms or any policies established by ibmc for acceptable use of the Services, or Customer's use of the Services in a manner inconsistent with the features and functionality of the Services (for example, attempts to perform operations that are not supported) or ibmc's published guidance; 
    
    
  • that result from faulty input, instructions, or arguments (for example, requests to access files that do not exist); 
    
    
  • that result from Customer's attempts to perform operations that exceed prescribed quotas or that resulted from ibmc's throttling of suspected abusive behavior; or 
    
    
  • due to Customer's use of features of the Services that are outside of the associated SPPS. 

        6. Technical Support.

• • Technical Support Service Level Agreement Options. ibmc agrees to use commercially reasonable efforts to respond to Customer inquiries based on the terms applicable to these Support Services and the severity of the issue as follows: 

                  ibmc prioritizes incidents based on the following criteria, taking into account Urgency and Severity. 

      7. Additional Support Services. 

• Supported Services. The following describes additional software subscription/support services for the Services that are provided by ibmc during the Term.  Supported Services are eligible for subscription services and remedial support as described hereinbelow. Limited Support Services are only eligible for limited support as described hereinbelow. 
  • Subscription Services: During the Term, ibmc will give Customer written notice as to new maintenance revision levels of Services available to Customer under the Agreement.  Such notice may be given via Customer's portal. New revision levels or updates will be automatically made available to Customer.
  • Remedial Support Services: If the Services fail to operate substantially as described in the then current ibmc user documentation for such Services, Customer shall report the problem to ibmc.  Remedial services will consist of ibmc's verification of the problem's existence and a determination of the conditions under which the problem may reoccur.  After such verification and determination, ibmc will provide, at its option, one of the following: (A) a temporary solution for the problem, or (B) a correction of the problem in the next revision level of the Services. 
  • Limited Support Services: Limited Support Services are either software obtained from third parties and remarketed by ibmc, or software for which only limited support services are available. ibmc will provide telephone support to answer operational questions as to the manner in which the Limited Support Services interface with the Services. If Customer believes that Limited Support Services are not operating substantially as described in the then current documentation for the Limited Support Services, Customer shall report the problem to ibmc. Except as otherwise expressly provided herein, ibmc's Support Services in such instances will be limited to verifying the problem's existence and either reporting the problem to the supplier of the Limited Support Services or referring Customer directly to the supplier of the Limited Support Services for further technical assistance in resolving the problem. 
    
    
• Custom Support Services. Custom Support Services are provided for use with specific release levels of ibmc-developed and/or third-party software (if applicable). Upon expiration of any warranty period specified by ibmc for the Custom Support Services, ibmc shall make available to Customer, on a time and materials basis, Customer Support Services. Except as otherwise agreed in writing between Customer and ibmc, any requested changes to Custom Support Services after the initial delivery and acceptance of the Custom Support Services are subject to additional charges.  
  
  
• Support Availability. The Services Principal Period of Support ("SPPS") is defined as telephone or e-mail support during the hours of 8:00 a.m. to 5:00 p.m. (Central time) Monday through Friday, excluding holidays observed by ibmc. System software technical support services will be provided to Customer by ibmc Software Technical Support staff via telephone or e-mail.  The phone number for ibmc Software Technical Support is 1-866-798-4265. The e-mail address is support@ibml.com. If Customer requests a SPPS any part of which is outside the hours of 8:00 a.m. and 5:00 p.m. (Central time), ibmc will charge Customer additional support fees in accordance with ibmc’s then current pricing policy for after hours, weekend and holiday support. Customer may change its designated SPPS at the beginning of any calendar month by giving ibmc at least thirty (30) days prior written notice and obtaining agreement by ibmc for such change in Customer’s SPPS. Support other than telephone or e-mail support, support requested by Customer outside Customer's designated SPPS, or on-site support will be billed to Customer in accordance with ibmc's then current time and material rates and policies for after hours, weekend or holiday support.  In the case of on-site support, Customer shall be responsible for reimbursing ibmc for all reasonable travel and living expenses incurred by ibmc's support personnel in conjunction with the delivery of such support. 
  
  
• ibmc will not be responsible for maintaining or supporting any portion of the Services that has been modified by Customer. For the avoidance of doubt, ibmc's configuration of the Services in accordance with Customer's requirements will not constitute a modification of the Services by Customer. 
  
  
• Corrections made by ibmc for difficulties or defects traceable to Customer error or system changes will be billed at ibmc's then current standard time and materials rates. 
  
  
• Customer agrees, if requested by ibmc, to provide ibmc with reasonable support and test time on Customer's cloud instance to replicate the problem, certify that the problem is related to the Services, and determine that the problem has been corrected. If Customer does not provide such support and test time on Customer's cloud instance, ibmc will only be responsible for using its commercially reasonable efforts to resolve the problem.

• Customer may contract for extended hours of Support Services ("Shift Extension") outside the SPPS (subject to availability) on Monday through Friday and shall pay a surcharge as specified by ibmc.  In addition, Customer may contract for Shift Extensions to obtain Support Services on Saturday and/or Sunday (where available) and shall pay a surcharge as specified by ibmc. 
  
  
• The following conditions apply to all Shift Extensions requested by Customer: 
  • Shift Extensions must be contiguous to the SPPS. 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.
  • At least ninety (90) days prior written notice is required from Customer to commence Shift Extensions. 
  • Shift Extensions must be contracted for a minimum period of six (6) months unless otherwise agreed to in writing between Customer and ibmc.  If Customer terminates a Shift Extension before the six (6)-month period expires, Customer shall be responsible for payment of Shift Extension charges for the balance of the six (6)-month minimum Shift Extension period. 
  • All requests for Shift Extensions are subject to acceptance and approval by ibmc. 
    
    
• The Support Services furnished by ibmc outside the SPPS or outside contracted Shift Extensions shall be subject to ibmc'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 Support Services location or time spent on remote diagnostics or telephone support for Support Services with a minimum charge for services of two (2) hours on weekdays and three (3) hours on weekends or ibmc observed holidays. 

9. Conditions.  

• Customer shall be responsible for ensuring the proper use, management and supervision of the Services by properly trained personnel. Customer shall not perform maintenance on the Services without ibmc's written authorization. 
  
  
• The Fees shall not cover the following maintenance charges: (i) changes or alterations in specifications; (ii) furnishing accessories, consumable items or supplies; (iii) installation, de-installation, or maintenance of accessories, attachments, machines, or other devices not furnished by ibmc; and (iv) maintenance or support services made necessary by accident, misuse, fault or negligence of Customer, its employees, agents, contractors or invitees.  If such services are ordered and provided by ibmc, Customer shall pay for such services in accordance with ibmc's then current rates and terms and conditions for time and materials service. 
  
  
• If the Parties mutually agree that ibmc will provide remote diagnostic service for the Services maintained under this Agreement, Customer shall provide access to the Services via remote access technology which is approved by Customer. ibmc's access to Customer's information technology ("IT") systems shall comply with all Customer IT system access and security policies and procedures communicated by Customer to ibmc. Customer shall have the right to restrict ibmc's remote access to the Services at any time.  Customer's decision to not permit ibmc to gain remote access to Customer's IT systems for performing remote diagnostic service for the Services shall not affect or diminish ibmc's maintenance and support responsibilities under this Agreement. 

10. Additional Charges.  

• ibmc reserves the right to additionally charge Customer for services which may be required due to: (i) Customer's non-compliance with any or all laws relating in any way to the use or operation of the Services, or (ii) Customer's alterations, modifications, or attachments to the Services. In addition, should any alteration, modification or attachments to the Services interfere with the normal and satisfactory operation or maintenance of any component of the Services or create a safety hazard, Customer shall, upon written notice from ibmc to that effect, and within five (5) business days from its receipt of such notice, remove the alteration, modification, or attachment and restore the Services to its original configuration. In no event shall Customer use the Services for any other purpose than that for which it was designed. Notwithstanding anything to the contrary contained herein, failure of Customer to agree to the charges imposed by ibmc pursuant to items (i) and (ii) above, or failure to comply with ibmc's instructions relative to safety standards for the use of the Services may, at ibmc's sole discretion, result in the cancellation by ibmc of the Support Services provided under this Agreement. 
  
  
• Any supplies and accessories furnished to Customer will be billed to and paid for by Customer in accordance with ibmc's then current price schedule. Payment for any such items shall be due net thirty (30) days from the date of the applicable invoice. 

[END OF SUPPORT TERMS]