EXHIBIT 10.39
Customer Agreement
Thank you for doing business with us. We strive to provide you with high quality
Products and Services. If, at any time, you have any questions or problems, or
are not completely satisfied, please let us know. Our goal is to do our best for
you.
This IBM Customer Agreement (called the "Agreement") covers business
transactions you may do with us to purchase Machines, license Programs, and
acquire Services.
This Agreement and its applicable Attachments and Transaction Documents are the
complete agreement regarding these transactions, and replace any prior oral or
written communications between us.
By signing below for our respective Enterprises, both of us agrees to the terms
of this Agreement. Once signed, 1) any reproduction of this Agreement, an
Attachment, or Transaction Document made by reliable means (for example,
photocopy or facsimile) is considered an original and 2) all Products and
Services you order under this Agreement are subject to it.
Agreed to: (Enterprise name) Agreed to:
International Business Machines Corporation
By_____________________________ By______________________________________
Authorized Signature Authorized Signature
Name (type or print): Name (type or print):
Date: Date:
Enterprise Number: Agreement Number:
Enterprise Address: IBM address:
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Customer Agreement
Table of Contents
Section Title Page Section Title Page
------------------------------------------------- ------------------------------------------
Part 1 - General 3 Part 4 - Programs 13
1.1 Definitions 3 4.1 License 13
1.2 Agreement Structure 4 4.2 License Details 13
4 4.3 Program Components Not
1.3 Delivery Used on the Designated 13
Machines
5 4.4 Distributed System License
1.4 Charges and Payment Option 13
1.5 Changes to the Agreement 5 4.5 Program Testing 14
Terms
1.6 IBM Business Partners 6 4.7 Packaged Programs 14
1.7 Mutual Responsibilities 6 4.8 Program Services 14
1.8 Your Other Responsibilities 6 4.9 License Termination 14
1.9 Patents and Copyrights 7
1.10 Limitation of Liability 7
1.11 Agreement Termination 8
1.12 Geographic Scope 8 Part 5 - Services 15
1.13 Governing Law 8
5.1 IBM Services 15
Part 2 - Warranties 9 5.2 Personnel 15
5.3 Materials Ownership and 15
License
2.1 The IBM Warranties 9 5.4 Changes to Service Terms 15
2.2 Extent of Warranty 9 5.5 Renewal 16
2.3 Items Not Covered By 10 5.6 Termination and Withdrawal
Warranty 16
5.7 Service for Machines (during
and after warranty) 16
5.8 Maintenance Coverage 17
Part 3 - Machines 11
3.1 Title and Risk of Loss 11
3.2 Production Status 11
3.3 Installation 11
3.4 Licensed Internal Code 11
3.5 Machine Code 12
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Customer Agreement
Part 1 - General
1.1 Definitions
Customer-set-up Machine is an IBM Machine that you install according
to our instructions. Date of Installation is the following:
1. for an IBM Machine we are responsible for installing, the business day
after the day we install it or, if you defer installation, make it
available to you for subsequent installation by us;
2. for a Customer-set-up Machine and a non-IBM Machine, the second
business day after the Machine's standard transit allowance period;
and
3. for a Program, the latest of -
a. the day after its testing period ends,
b. the second business day after the Program's standard transit
allowance period, or
c. the date, specified in a Transaction Document, on which we
authorize you to make a copy of the Program, or
d. the date you distribute a copy of a chargeable component in
support of your authorized use of the Program.
Designated Machine is either 1) the machine on which you will use a
Program for processing and which we require you to identify to us by
type/model and serial number, or 2) any machine on which you use the
Program if we do not require you to provide this identification to
us.
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 the United States or Puerto Rico.
Machine is a machine, its features, conversions, upgrades, elements, or
accessories, or any combination of them. The term "Machine" includes an IBM
Machine and any non-IBM Machine (including other equipment) that we may
provide to you.
Materials are literary works or other works of authorship (such as
programs, program listings, programming tools, documentation, reports,
drawings and similar works) that we may deliver to you as part of a
Service. The term "Materials" does not include Programs or Licensed
Internal Code.
Product is a Machine or a Program.
Program is the following, including the original and all whole or partial
copies:
1. machine-readable instructions and data;
2. components;
3. audio-visual content (such as images, text, recordings, or pictures);
and
4. related licensed materials.
The term "Program" includes an IBM Program and any non-IBM Program that we
may provide to you. The term does not include Licensed Internal Code or
Materials.
Service is performance of a task, provision of advice and counsel,
assistance, or access to a resource (such as access to an information
database) we make available to you.
Specifications is a document that provides information specific to a
Product. For an IBM Machine, we call the document "Official Published
Specifications." For an IBM Program, we call it "Licensed Program
Specifications," or "License Information."
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Specified Operating Environment is the Machines and Programs with which a
Program is designed to operate, as described in the Program's
Specifications.
1.2 Agreement Structure
Attachments
Some Products and Services have terms in addition to those we specify in
this Agreement. We provide the additional terms in documents called
"Attachments," which are also part of this Agreement. Attachments will be
signed by both of us if requested by either of us.
Transaction Documents
For each business transaction, we will provide you with the appropriate
"Transaction Documents" that confirm the specific details of the
transaction. Transaction Documents will be signed by both of us if
requested by either of us. The following are examples of Transaction
Documents with examples of the information they may contain:
1. addenda (contract-period duration, start date, and total quantity);
2. exhibits (eligible Products by category);
3. invoices (item, quantity, and amount due);
4. statements of work (scope of Services, responsibilities, deliverables,
completion criteria, estimated schedule or contract period, and
charges); and
5. supplements (Machine quantity and type ordered, price, estimated
shipment date, and warranty period).
Conflicting Terms
If there is a conflict among the terms in the various documents, those of
an Attachment prevail over those of this Agreement. The terms of a
Transaction Document prevail over those of both of these documents.
Our Acceptance of Your Order
A Product or Service becomes subject to this Agreement when we accept your
order by doing any of the following:
1. sending you a Transaction Document;
2. shipping the Machine or making the Program available to you; or
3. providing the Service.
Your Acceptance of Additional Terms
You accept the additional terms in an Attachment or Transaction Document by
doing any of the following:
1. signing the Attachment or Transaction Document;
2. using the Product or Service, or allowing others to do so; or
3. making any payment for the Product or Service.
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1.3 Delivery
We will try to meet your delivery requirements for Products and
Services you order, and will inform you of their status.
Transportation charges, if applicable, will be specified in a
Transaction Document.
1.4 Charges and Payment
The amount payable for a Product or Service will be based on one or
more of the following types of charges:
1. one-time (for example, the price of a Machine);
2. recurring (for example, a periodic charge for Programs or measured use
of Services);
3. time and materials (for example, charges for hourly Services); or
4. fixed price (for example, a specific amount agreed to between
us for a custom Service).
Depending on the particular Product, Service, or circumstance, additional
charges may apply (such as special handling or travel related expenses). We
will inform you in advance whenever additional charges apply.
Recurring charges for a Product begin on its Date of Installation. Charges
for Services are billed as we specify which may be in advance, periodically
during the performance of the Service, or after the Service is completed.
Amounts are due upon receipt of invoice and payable as we specify in a
Transaction Document. You agree to pay accordingly, including any late
payment fee.
If any authority imposes a duty, tax, levy, or fee, excluding those based
on our net income, upon any transaction under this Agreement, then you
agree to pay that amount as specified in the invoice or supply exemption
documentation. You are responsible for personal property taxes for each
Product from the date we ship it to you.
One-time and recurring charges may be based on measurements of actual or
authorized use (for example, number of users or processor size for
Programs, meter readings for maintenance Services, or connect time for
network Services). You agree to provide actual usage data if we specify. If
you make changes to your environment that impact use charges (for example,
change processor size or configuration for Programs), you agree to promptly
notify us and pay any applicable charges. Recurring charges will be
adjusted accordingly. Unless we agree otherwise, we do not give credits or
refunds for charges already due or paid. In the event that we change the
basis of measurement, our terms for changing charges will apply.
We may increase recurring charges for Products and Services, as well as
labor rates and minimums for Services provided under this Agreement, by
giving you three months' written notice. An increase applies on the first
day of the invoice or charging period on or after the effective date we
specify in the notice.
We may increase one-time charges without notice. However, an increase to
one-time charges does not apply to you if 1) we receive your order before
the announcement date of the increase and 2) one of the following occurs
within three months after our receipt of your order:
1. we ship you the Machine or make the Program available to you;
2. you make an authorized copy of a Program or distribute a chargeable
component of a Program to another Machine; or
3. a Program's increased use charge becomes due. You receive the benefit
of a decrease in charges for amounts which become due on or after the
effective date of the decrease. Services for which you prepay must be
used within the applicable contract period. Unless we specify
otherwise, we do not give credits or refunds for unused prepaid
Services.
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1.5 Changes to the Agreement Terms
In order to maintain flexibility in our business relationship, we may
change the terms of this Agreement by giving you three months'
written notice. However, these changes are not retroactive. They
apply, as of the effective date we specify in the notice, only to new
orders and on-going transactions (such as licenses, except that
changes to license termination terms are effective only for new
orders). Part 5 of this Agreement contains additional provisions for
changes to the terms of individual Service transactions.
Otherwise, for a change to be valid, both of us must sign it.
Additional or different terms in any written communication from you
(such as an order) are void.
1.6 IBM Business Partners
We have signed agreements with certain organizations (called "IBM
Business Partners") to promote, market, and support certain Products
and Services. When you order our Products or Services (marketed to
you by IBM Business Partners) under this Agreement, we confirm that
we are responsible for providing the Products or Services to you
under the warranties and other terms of this Agreement. We are not
responsible for 1) the actions of IBM Business Partners, 2) any
additional obligations they have to you, or 3) any products or
services that they supply to you under their agreements.
1.7 Mutual Responsibilities
Both of us agree that under this Agreement:
1. neither of us grants the other the right to use its trademarks, trade
names, or other designations in any promotion or publication without
prior written consent;
2. all information exchanged is nonconfidential. If either of us requires
the exchange of confidential information, it will be made under a
signed confidentiality agreement;
3. each is free to enter into similar agreements with others;
4. each grants the other only the licenses and rights specified. No other
licenses or rights (including licenses or rights under patents) are
granted;
5. each may communicate with the other by electronic means and such
communication is acceptable as a signed writing. 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;
6. each will allow the other reasonable opportunity to comply before it
claims that the other has not met its obligations;
7. neither of us will bring a legal action more than two years after the
cause of action arose; and
8. neither of us is responsible for failure to fulfill any obligations
due to causes beyond its control.
1.8 Your Other Responsibilities
You agree:
1. not to assign, or otherwise transfer, this Agreement or your rights
under this Agreement, delegate your obligations, or resell any
Service, without our prior written consent. Any attempt to do so is
void;
2. to acquire Machines with the intent to use them within your Enterprise
and not for reselling, leasing, or transferring to a third party,
unless either of the following applies:
a. you are arranging lease-back financing for the Machines, or
b. you purchase them without any discount or allowance, and do not
remarket them in competition with our authorized remarketers;
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3. to allow us to install mandatory engineering changes (such as those
required for safety) on a Machine. Any parts we remove become our
property. You represent that you have the permission from the owner
and any lien holders to transfer ownership and possession of removed
parts to us;
4. that you are responsible for the results obtained from the use of the
Products and Services;
5. to provide us with sufficient, free, and safe access to your
facilities for us to fulfill our obligations; and
6. to comply with all applicable export and import laws and regulations.
1.9 Patents and Copyrights
For purposes of this Section, the term "Product" includes Materials
(alone or in combination with Products we provide to you as a system)
and Licensed Internal Code.
If a third party claims that a Product we provide to you infringes that
party's patent or copyright, we will defend you against that claim at our
expense and pay all costs, damages, and attorney's fees that a court
finally awards, provided that you:
1. promptly notify us in writing of the claim; and
2. allow us to control, and cooperate with us in, the defense and any
related settlement negotiations.
If such a claim is made or appears likely to be made, you agree to permit
us to enable you to continue to use the Product, or to modify it, or
replace it with one that is at least functionally equivalent. If we
determine that none of these alternatives is reasonably available, you
agree to return the Product to us on our written request. We will then give
you a credit equal to:
1. for a Machine, your net book value provided you have followed
generally-accepted accounting
principles;
2. for a Program, the amount paid by you or 12 months' charges (whichever
is less); and
3. for Materials, the amount you paid us for the Materials. This is our
entire obligation to you regarding any claim of infringement.
Claims for Which We are Not Responsible
We have no obligation regarding any claim based on any of the following:
1. anything you provide which is incorporated into a Product;
2. your modification of a Product, or a Program's use in other than its
Specified Operating Environment;
3. the combination, operation, or use of a Product with other Products
not provided by us as a system, or the combination, operation, or use
of a Product with any product, data, or apparatus that we did not
provide; or
4. infringement by a non-IBM Product alone, as opposed to its combination
with Products we provide to you as a system.
1.10 Limitation of Liability
Circumstances may arise where, because of a default on our part or
other liability, you are entitled to recover damages from us. In each
such instance, regardless of the basis on which you are entitled to
claim damages from us (including fundamental breach, negligence,
misrepresentation, or other contract or tort claim), we are liable
for no more than:
1. payments referred to in our patents and copyrights terms described
above;
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2. damages for bodily injury (including death) and damage to real
property and tangible personal property; and
3. the amount of any other actual direct damages, up to the greater of
$100,000 or the charges (if recurring, 12 months' charges apply) for
the Product or Service that is the subject of the claim. For purposes
of this item, the term "Product" includes Materials and Licensed
Internal Code. This limit also applies to any of our subcontractors
and Program developers. It is the maximum for which we and our
subcontractors and Program developers are collectively responsible.
Items for Which We are Not Liable
Under no circumstances are we, our subcontractors, or Program
developers liable for any of the following:
1. third-party claims against you for damages (other than those under the
first two items listed above);
2. loss of, or damage to, your records or data; or
3. special, incidental, or indirect damages or for any economic
consequential damages (including lost profits or savings), even if we
are informed of their possibility.
1.11 Agreement Termination
You may terminate this Agreement on written notice to us following
the expiration or termination of your obligations.
Either of us may terminate this Agreement if the other does not
comply with any of its terms, provided the one who is not complying
is given written notice and reasonable time to comply. Any terms of
this Agreement which by their nature extend beyond the Agreement
termination remain in effect until fulfilled, and apply to both of
our respective successors and assignees.
1.12 Geographic Scope
All your rights, all our obligations, and all licenses (except for
Licensed Internal Code and as specifically granted) are valid only in
the United States and Puerto Rico.
1.13 Governing Law
The laws of the State of New York govern this Agreement.
Nothing in this Agreement affects any statutory rights of consumers
that cannot be waived or limited by contract.
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Customer Agreement
Part 2 - Warranties
2.1 The IBM Warranties
Warranty for IBM Machines For each IBM Machine, we warrant that it:
1. is free from defects in materials and workmanship; and
2. conforms to its Specifications.
The warranty period for a Machine is a specified, fixed period
commencing on its Date of Installation. During the warranty period,
we provide repair and exchange Service for the Machine, without
charge, under the type of Service we designate for the Machine.
If a Machine does not function as warranted during the warranty
period and we are unable to either 1) make it do so, or 2) replace it
with one that is at least functionally equivalent, you may return it
to us and we will refund your money.
Additional terms regarding Service for Machines during and after the
warranty period are contained in Part 5.
Warranty for IBM Programs
For each warranted IBM Program, we warrant that when it is used in
the Specified Operating Environment, it will conform to its
Specifications. The warranty period for a Program expires when its
Program Services are no longer available. During the warranty period,
we provide defect-related Program Services without charge. Program
Services are available for a warranted Program for at least one year
following its general availability.
If a Program does not function as warranted during the first year
after you obtain your license and we are unable to make it do so, you
may return the Program to us and we will refund your money. To be
eligible, you must have obtained your license while Program Services
(regardless of the remaining duration) were available for it.
Additional terms regarding Program Services are contained in Part 4.
Warranty for IBM Services
For each IBM Service, we warrant that we perform it:
1. using reasonable care and skill; and
2. according to its current description ( including any
completion criteria) contained in this Agreement, an Attachment,
or a Transaction Document.
Warranty for Systems
Where we provide Products to you as a system, we warrant that they
are compatible and will operate with one another. This warranty is in
addition to our other applicable warranties.
2.2 Extent of Warranty
If a Machine is subject to federal or state consumer warranty laws,
our statement of limited warranty included with the Machine applies
in place of these Machine warranties.
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The warranties will be voided by misuse, accident, modification,
unsuitable physical or operating environment, operation in other than
the Specified Operating Environment, improper maintenance by you,
removal or alteration of Product or parts identification labels, or
failure caused by a product for which we are not responsible.
THESE WARRANTIES ARE YOUR EXCLUSIVE WARRANTIES AND REPLACE 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.
2.3 Items Not Covered by Warranty
We do not warrant uninterrupted or error-free operation of a Product
or Service or that we will correct all defects. We will identify IBM
Products that we do not warrant.
Unless we specify otherwise, we provide Materials, non-IBM Products,
and non-IBM Services WITHOUT WARRANTIES OF ANY KIND. However, non-IBM
manufacturers, suppliers, or publishers may provide their own
warranties to you.
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Customer Agreement
Part 3 - Machines
3.1 Title and Risk of Loss
When we accept your order, we agree to sell you the Machine described
in a Transaction Document. We transfer title to you or, if you
choose, your lessor when we ship the Machine. However, we reserve a
purchase money security interest in the Machine until we receive the
amounts due. For a feature, conversion, or upgrade involving the
removal of parts which become our property, we reserve the security
interest until we receive the amounts due and the removed parts. You
agree to sign an appropriate document to permit us to perfect our
purchase money security interest. We bear the risk of loss for the
Machine up to and including its Date of Installation. Thereafter, you
assume the risk.
3.2 Production Status
Each IBM Machine is manufactured from new parts, or new and used
parts. In some cases, a Machine may not be new and may have been
previously installed. Regardless of a Machine's production status,
our appropriate warranty terms apply.
3.3 Installation
For the Machine to function properly, it must be installed in a
suitable physical environment. You agree to provide an environment
meeting the specified requirements for the Machine. We have standard
installation procedures. We will successfully complete these
procedures before we consider an IBM Machine (other than a Machine
for which you defer installation or a Customer- set-up Machine)
installed.
You are responsible for installing a Customer-set-up Machine (we
provide instructions to enable you to do so) and a non-IBM Machine.
Machine Features, Conversions, and Upgrades
We sell features, conversions, and upgrades for installation on
Machines, and, in certain instances, only for installation on a
designated, serial-numbered Machine. Many of these transactions
involve the removal of parts and their return to us. As applicable,
you represent that you have the permission from the owner and any
lien holders to 1) install features, conversions, and upgrades and 2)
transfer ownership and possession of removed parts (which become our
property) to us. You further represent that all removed parts are
genuine and unaltered, and in good working order. A part that
replaces a removed part will assume the warranty or maintenance
Service status of the replaced part. You agree to allow us to install
the feature, conversion, or upgrade within 30 days of its delivery.
Otherwise, we may terminate the transaction and you must return the
feature, conversion, or upgrade to us at your expense.
3.4 Licensed Internal Code
Certain Machines we specify (called "Specific Machines") use Licensed
Internal Code (called "Code"). We own copyrights in Code or have the
right to license Code. We or a third party own all copies of Code,
including all copies made from them.
We will identify each Specific Machine in a Transaction Document. If
you are the rightful possessor of a Specific Machine, we grant you a
license to use the Code (or any replacement we provide) on, or in
conjunction with, only the Specific Machine, designated by serial
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number, for which the Code is provided. We license the Code to only
one rightful possessor at a time.
Under each license, we authorize you to do only the following:
1. execute the Code to enable the Specific Machine to function
according to its Specifications;
2. make a backup or archival copy of the Code (unless we make one
available for your use), provided you reproduce the copyright
notice and any other legend of ownership on the copy. You may use
the copy only to replace the original, when necessary; and
3. execute and display the Code as necessary to maintain the
Specific Machine. You agree to acquire any replacement for, or
additional copy of, Code directly from us in accordance with our
standard policies and practices. You also agree to use that Code
under these terms. You may transfer possession of the Code to
another party only with the transfer of the Specific Machine. If
you do so, you must 1) destroy all your copies of the Code that
were not provided by us, 2) either give the other party all your
IBM-provided copies of the Code or destroy them, and 3) notify
the other party of these terms. We license the other party when
it accepts these terms by initial use of the Code. These terms
apply to all Code you acquire from any source. Your license
terminates when you no longer rightfully possess the Specific
Machine.
Actions You May Not Take
You agree to use the Code only as authorized above. You may not do,
for example, any of the following:
1. otherwise copy, display, transfer, adapt, modify, or distribute
the Code (electronically or otherwise), except as we may
authorize in the Specific Machine's Specifications or in writing
to you;
2. reverse assemble, reverse compile, or otherwise translate the
Code unless expressly permitted by applicable law without the
possibility of contractual waiver;
3. sublicense or assign the license for the Code; or
4. lease the Code or any copy of it.
3.5 Machine Code
For certain Machines we may provide basic input/output system code,
utilities, diagnostics, device drivers, or microcode (collectively
called "Machine Code"). This Machine Code is licensed under the terms
of the agreement provided with it.
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Customer Agreement
Part 4 - Programs
4.1 License
When we accept your order, we grant you a non-exclusive,
nontransferable license to use the Program. Programs are owned by
International Business Machines Corporation or one of its
subsidiaries ("IBM") or an IBM supplier and are copyrighted and
licensed (not sold).
4.2 License Details
Under each license, we authorize you to:
1. use the Program's machine-readable portion on only the Designated
Machine. If the Designated Machine is inoperable, you may use
another Machine temporarily. If the Designated Machine cannot
assemble or compile the Program, you may assemble or compile the
Program on another Machine.
If you change a Designated Machine previously identified to us,
you agree to notify us of the change and its effective date;
2. use the Program to the extent of authorizations you have
acquired;
3. make and install copies of the Program, to support the level of
use authorized, provided you reproduce the copyright notices and
any other legends of ownership on each copy or partial copy; and
4. use any portion of the Program we 1) provide in source form, or
2) ▇▇▇▇ restricted (for example, "Restricted Materials of IBM")
only to -
a. resolve problems related to the use of the Program, and
b. modify the Program so that it will work together with other
products. You agree to comply with any additional terms we
may place on a Program. We identify these in the Program's
Specifications or in a Transaction Document.
Actions You May Not Take
You agree not to:
1. reverse assemble, reverse compile, or otherwise translate the
Program; or
2. sublicense, rent or lease the Program.
4.3 Program Components Not Used on the Designated Machine
Some Programs have components that are designed for use on machines
other than the Designated Machine on which the Program is used. You
may make copies of a component and its documentation in support of
your authorized use of the Program provided you notify us of the
component's actual date of distribution.
4.4 Distributed System License Option
For some Programs, you may make a copy under a Distributed System
License Option (called a "DSLO" copy). We charge less for a DSLO copy
than we do for the original license (called the "Basic" license). In
return for the lesser charge, you agree to do the following while
licensed under a DSLO:
1. have a Basic license for the Program;
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2. provide problem documentation and receive Program Services (if
any) only through the location of the Basic license; and
3. distribute to, and install on, the DSLO's Designated Machine, any
release, correction, or bypass that we provide for the Basic
license.
4.5 Program Testing
We provide a testing period for certain Programs to help you evaluate
if they meet your needs. If we offer a testing period, it will start
1) the second business day after the Program's standard transit
allowance period, or 2) on another date specified in a Transaction
Document. We will inform you of the duration of the Program's testing
period.
We do not provide testing periods for DSLO copies.
4.6 Packaged Programs
We provide certain Programs together with their own license
agreements. These Programs are licensed under the terms of the
agreements provided with them.
4.7 Program Protection
For each Program, you agree to:
1. ensure that anyone who uses it (accessed either locally or
remotely) does so only for your authorized use and complies with
our terms regarding Programs; and
2. maintain a record of all copies and provide it to us at our
request.
4.8 Program Services
We provide Program Services for warranted Programs and for selected
other Programs. If we can reproduce your reported problem in the
Specified Operating Environment, we will issue defect correction
information, a restriction, or a bypass. We provide Program Services
for only the unmodified portion of a current release of a Program.
We provide Program Services 1) on an on-going basis (with at least
six months' written notice before we terminate Program Services), 2)
until the date we specify, or 3) for a period we specify.
4.9 License Termination
You may terminate the license for a Program on one month's written
notice or at any time during the Program's testing period. Licenses
for certain replacement Programs may be acquired for an upgrade
charge. When you acquire these replacement Programs, you agree to
terminate the license of the replaced Programs when charges become
due, unless we specify otherwise.
We may terminate your license if you fail to comply with its terms.
If we do so, your authorization to use the Program is also
terminated.
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Customer Agreement
Part 5 - Services
5.1 IBM Services
Services may be either standard offerings or customized to your
specific requirements. Each service transaction may include one or
more Services that:
1. expire at task completion or an agreed upon date;
2. automatically renew as another transaction with a specified
contract period. Renewals will continue until either of us
terminates the Service; or
3. do not expire and are available for your use until either of us
terminates the Service.
5.2 Personnel
Each of us is responsible for the supervision, direction, and control
of our respective personnel. We reserve the right to determine the
assignment of our personnel. We may subcontract a Service, or any
part of it, to subcontractors selected by us.
5.3 Materials Ownership and License
We will specify Materials to be delivered to you. We will identify
them as being "Type I Materials," "Type II Materials," or otherwise
as we both agree. If not specified, Materials will be considered Type
II Materials.
Type I Materials are those, created during the Service performance
period, in which you will have all right, title, and interest
(including ownership of copyright). We will retain one copy of the
Materials. You grant us 1) an irrevocable, nonexclusive, worldwide,
paid-up license to use, execute, reproduce, display, perform,
distribute (internally and externally) copies of, and prepare
derivative works based on Type I Materials and 2) the right to
authorize others to do any of the former. Type II Materials are
those, created during the Service performance period or otherwise
(such as those that preexist the Service), in which we or third
parties have all right, title, and interest (including ownership of
copyright). We will deliver one copy of the specified Materials to
you. We grant you an irrevocable, nonexclusive, worldwide, paid-up
license to use, execute, reproduce, display, perform, and distribute,
within your Enterprise only, copies of Type II Materials. Each of us
agrees to reproduce the copyright notice and any other legend of
ownership on any copies made under the licenses granted in this
Section.
Any idea, concept, know-how, or technique which relates to the
subject matter of a Service and is developed or provided by either of
us, or jointly by both of us, in the performance of a Service may
(subject to applicable patents an copyrights) be freely used by
either of us.
5.4 Changes to Service Terms
We may change the terms of Services that are renewable or
non-expiring by giving you three months' written notice. However,
these changes are not retroactive. They apply immediately to renewal
transactions and as of the effective date we specify in the notice to
all existing transactions. If we make a change to the terms of a
renewable Service that 1) affects your current contract period and 2)
you consider unfavorable, on your request, we will defer it until the
end of that contract period.
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When both of us agree to change any Services statement of work other
than as described above, we will prepare a written description of the
agreed change (called a "Change Authorization"), which both of us
must sign. The terms of a Change Authorization prevail over those of
the statement of work and any previous Change Authorizations.
5.5 Renewal
Renewable Services renew automatically for a same length contract
period unless either of us provides written notification (at least
one month prior to the end of the current contract period) to the
other of their decision not to renew.
5.6 Termination and Withdrawal
Either of us may terminate a Service if the other does not meet its
obligations concerning the Service. You may terminate a non-expiring
Service, without adjustment charge, on one month's written notice to
us provided you have met all minimum requirements specified in the
applicable Attachments and Transaction Documents.
You may terminate a renewable Service or a non-expiring maintenance
Service, without adjustment charge, on notice to us provided you have
met all minimum requirements specified in the applicable Attachments
and Transaction Documents and any of the following circumstances
occur:
1. you permanently remove the eligible Product, for which the
Service is provided, from productive use within your Enterprise;
2. the eligible location, for which Service is provided, is no
longer controlled by you (for example, because of sale or closing
of the facility);
3. an increase in the Service charges, either alone or in
combination with prior increases over the previous twelve months,
is more than the maximum specified in the applicable Service
Transaction Document. If no maximum is specified, then this
circumstance does not apply; or
4. the Machine has been under maintenance Services for at least six
months and you give us one month's written notice prior to
terminating the maintenance Service.
For all other circumstances, you may terminate an expiring or
renewable Service on one month's written notice to us but such
termination will result in adjustment charges equal to the lesser of:
1. the charges remaining to complete the contract period; or
2. one of the following if specified in the Transaction Document --
a. the charges remaining to complete the contract period
multiplied by the adjustment factor specified, or
b. the amount specified.
You agree to pay us for all Services we provide and any Products and
Materials we deliver through Service termination and any charges we
incur in terminating subcontractors. We may withdraw a renewable or
non-expiring Service or support for an eligible Product on three
months' written notice to you. If we withdraw a Service for which you
have prepaid and we have not yet fully provided it to you, we will
give you a prorated refund. Any terms which by their nature extend
beyond termination or withdrawal remain in effect until fulfilled and
apply to respective successors and assignees.
5.7 Services for Machines (during and after warranty)
We provide certain types of repair and exchange Service either at
your location or at a service center to keep Machines in, or restore
them to conformance with their Specifications. We will inform you of
the available types of Service for a Machine. We may repair the
failing Machine or exchange it at our discretion.
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When the type of Service requires that you deliver the failing
Machine to us, you agree to ship it suitably packaged (prepaid unless
we specify otherwise) to a location we designate. After we have
repaired or exchanged the Machine, we will return it to you at our
expense unless we specify otherwise. We are responsible for loss of,
or damage to, your Machine while it is 1) in our possession or 2) in
transit in those cases where we are responsible for the
transportation charges. You agree to:
1. obtain authorization from the owner to have us service a Machine
that you do not own; and
2. where applicable, before we provide Service --
a. follow the problem determination, problem analysis, and
service request procedures that we provide,
b. secure all programs, data, and funds contained in a Machine,
and
c. inform us of changes in a Machine's location.
When Service involves the exchange of a Machine or part, the item we
replace becomes our property and the replacement becomes yours. You
represent that all removed items are genuine and unaltered. The
replacement may not be new, but it will be in good working order and
at least functionally equivalent to the item replaced. The
replacement assumes the warranty or maintenance Service status of the
replaced item. Before we exchange a Machine or part, you agree to
remove all features, parts, options, alterations, and attachments not
under our service. You also agree to ensure that the item is free of
any legal obligations or restrictions that prevent its exchange. Any
feature, conversion, or upgrade we service must be installed on a
Machine which is 1) for certain Machines, the designated,
serial-numbered Machine and 2) at an engineering-change level
compatible with the feature, conversion, or upgrade.
Repair and exchange Services do not cover:
1. accessories, supply items, and certain parts, such as batteries,
frames, and covers;
2. Machines damaged by misuse, accident, modification, unsuitable
physical or operating environment, improper maintenance by you;
3. Machines with removed or altered Machine or parts identification
labels;
4. failures caused by a product for which we are not responsible; or
5. service of Machine alterations.
We manage and install engineering changes that apply to IBM Machines
and may also perform preventative maintenance. We provide maintenance
Services for selected non-IBM Machines.
5.8 Maintenance Coverage
When you order Machine maintenance Services under this Agreement, we
will inform you of the date on which maintenance Services will begin.
We may inspect the Machine within one month following that date. If
the Machine is not in an acceptable condition for service, you may
have us restore it for a charge. Alternatively, you may withdraw your
request for maintenance Service. However, you will be charged for any
maintenance Services which we performed at your request.
After signing, please return a copy of this Agreement to the local "IBM
address" shown above.
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STATEMENT OF WORK
Table of Contents
1.0 Executive Summary 1
1.1 Background 3
1.2 Approach 3
1.3 Staffing 4
2.0 Statement of Work 5
2.1 Project Scope 5
2.2 Key Assumptions 6
2.3 IBM Responsibilities 11
2.3.1 Perform Project Management 11
2.3.2 Orient Project Team 12
2.3.3 Project Office Services 12
2.3.4 Site Survey 13
2.3.5 Network Design Services 13
2.3.6 Data Cabling Services 14
2.3.7 TouchPort Implementation Services 16
2.3.8 TouchPort Support Services 16
2.3.9 TouchPort Warranty and Maintenance Services 17
2.3.10 TouchPort Web Site Hosting Services 18
2.4 SSP/OASiS Responsibilities 19
2.4.1 SSP/OASiS Project Manager 19
2.4.2 Other Responsibilities 20
2.4.3 Laws, Regulations, and Statutes 21
2.4.4 Space and Facilities 21
2.4.5 Security 21
2.5 Deliverable Materials 22
2.6 Completion Criteria 23
2.7 Year 2000 24
2.8 Termination 25
2.9 Estimated Schedule 27
2.10 Charges 28
2.10 Definition of Terms 30
Appendix A Deliverable Guidelines 30
A.1 Monthly Status Report 31
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A.2 Design and Implementation Reports 31
A.3 End User Support: Monthly Usage Reports ▇▇
▇▇▇▇▇▇▇▇ ▇ Project Change Control Procedure ▇▇
▇▇▇▇▇▇▇▇ ▇ ▇▇▇▇▇▇▇▇/▇▇▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇ ▇ Signature Document ▇▇
▇▇▇▇▇▇▇▇ ▇ Review and Approval Procedure 36
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1.0 Executive Summary
There exists an agreement between Surgical Safety Products (SSP/OASiS) and
International Business Machines (IBM) for the Oasis TouchPort 2K Project
consisting of a Statement of Work (SOW) under the terms of the IBM Customer
Agreement (ICA) # AVWJ907. Full Acceptance of this Agreement shall be known as
the date of final SSP/OASiS Board of Directors approval. Board of Director's
Approval was granted on January 3rd, 2000. IBM has begun work per the Statement
of Work under the terms of the IBM Customer Agreement. The intent of the parties
is that IBM would be providing a complete implementation and support services
solution for 1,200 Oasis TouchPort terminals (kiosks) at an estimated 400
SSP/OASiS end user locations during the 12 month period that started November
29th, 1999. Based on a recent meeting between SSP and IBM and considering the 19
terms and conditions issues in Mr. ▇▇▇ ▇▇▇▇▇▇'▇ memo, a Project Change Request
(PCR or Amendment) is appropriate to the original SOW to more clearly define the
intent of the parties.
A copy of the SSP/OASiS executed IBM Customer Agreement (ICA) was faxed to Mr.
▇▇▇ ▇▇▇▇▇▇, council for SSP/OASiS, on December 16th, 1999.
A Project Change Request (PCR #1) is entered into this 3rd day of February, 2000
by and between International Business Machines Corporation ("IBM") and Surgical
Safety Products, Inc. ("SSP" or "SSP/OASiS") to modify the original IBM
Statement of Work (SOW).
All aspects of this agreement, including all services to be performed and fees
for same are subject to the mutual agreement between IBM and SSP which shall be
memorialized in writing prior to the undertaking of any tasks, incurring of any
fees, or expenditure of any monies. Nothing contained herein shall be construed
as creating an exclusive arrangement for IBM to provide the services and
equipment contemplated hereunder. Any tasks or services to be performed shall be
initiated by a written "SSP Work Authorization" to be signed by IBM and
SSP/OASiS prior to undertaking any such services or tasks. The "Work
Authorization" form (see attached) will disclose any travel and living expenses
that may be billed to SSP/OASiS.
Agreement/Proposal. This Agreement/Proposal is made and entered into by and
between INTERNATIONAL BUSINESS MACHINES CORPORATION (hereinafter sometimes
referred to as "IBM" or "IBM Global Services") and SURGICAL SAFETY PRODUCTS,
INC. (hereinafter sometimes referred to as "SSP" or "SSP/OASIS"). Appendix D
sets forth the signatures of the parties to this Agreement.
SSP/OASiS and International Business Machines Corporation are finalizing
and will continue to refine a business relationship to deploy the OASiS
TouchPort systems to SSP/OASiS end-customers throughout the United States.
The intent of this Statement of Work is to define the initial stages of
this relationship and to leverage the capabilities of each of our
respective organizations to provide a high quality solution that is
seamless to a wide variety of health care organizations.
IBM Global Services proposes to provide a methodology based upon Project
Management Institute (PMI) principles to SSP/OASiS for the management of
the projects within the United States. This Project Management function
will provide a base Project Office to be located at the Sarasota SSP/OASiS
facility. The function proposed by IBM is to staff a core group of project
management and network professionals that understand the SSP/OASiS product
set and will engage IBM resources for each end client installation. It is
understood
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that each of these installations will be customized and the IBM team will
work with SSP/OASiS to determine the necessary requirements for each. The
IBM solution is to develop a Project Office based on SSP/OASiS requirements
that will ensure each project installation has the following:
Project Planning Premises Wiring
Site Surveys TouchPort Implementations
Product Acquisition Help Desk Support
Network Design Consulting Services
Web Site Hosting Services
The IBM Project Office will identify and engage the necessary engineering
resources for each location to develop the plan for primary and secondary
TouchPort implementations. These tasks will be jointly coordinated with
SSP/OASiS as each opportunity is identified and developed. IBM will provide
the resources to provide a seamless solution to each health care facility.
IBM will coordinate all activities related to deployment and installation.
This approach is predicated on the execution of at least eight pilot
TouchPort installations. The Implementation and Support Project Plan will
be refined and modified as required to drive efficiency and reduce cost.
IBM has the experience, technical resources, processes, and tools to mange
the day to day implementation and operational tasks and issues involved in
a technology rollout of this nature. This approach will free up valuable
SSP/OASiS resources to focus on the tasks of TouchPort placements,
establishing additional content agreements, and market development.
The ultimate goal of the IBM Project Office is to provide a Central Point
of Contact for SSP/OASiS for deployment and support requirements for each
location and to deploy the required resources as defined by the Project,
all under a pre-defined methodology for each installation. IBM proposes
this functional staffing and organization for a 3 to 6 month period and
adjust resources and costs based upon past project experiences and business
forecasts. The Project Change Request process will be utilized to make all
necessary adjustments as mutually agreed upon by both of us.
1.1 Background
SSP/OASiS requires assistance in the design, deployment and support of their
OASiS TouchPort 2K system. IBM Global Services has the geographic
scope and personnel to provide this critical assistance to
SSP/OASiS. IBM Global Services can provide the IT infrastructure
necessary for SSP/OASiS to go to market with their products and
solutions for the health industry.
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1.2 Approach
Effective Project Management is crucial to the success of Surgical Safety's
OASiS TouchPort 2K Infrastructure. For many years IBM has been successful
in complex system integration projects because we apply three essential
skills:
Ability to effectively and professionally manage people and the overall
project
Ability to match technical skills to specific work tasks
Ability to plan and integrate hardware and software to provide sound
solutions
To help SSP/OASiS successfully implement the OASiS TouchPort, IBM
will utilize:
Proven project management techniques
Proven change control procedures
A disciplined approach and detailed project plan
IBM professionals trained in IBM's methodologies for project management
Subject Matter Experts to provide the required technical know-how to
accomplish project tasks.
The successful completion of any project depends on the careful execution
of a well structured and detailed plan. The project installation plan must
be developed based on agreed to objectives and well defined goals. The
project plan will be developed jointly by IBM and SSP/OASiS, including
schedules, processes, and dependencies. This plan will be used to control
the project, monitor all activities, track progress, and manage change
control. The success of the project will be measured against the defined
objectives and the successful implementation of the project plan. By having
a detailed plan, problems or changes can be promptly identified and
resolved.
Serving as a focal point, IBM will assign a lead Project Executive to be
responsible for the overall success of the project. In addition to the PE,
IBM will assign a Project Manager who will manage communications with
SSP/OASiS's Project Manger, and coordinate the activities of IBM,
subcontractors, and suppliers. The IBM Project Manager will work closely
with the Surgical Safety's Project Manager to develop a project plan that
satisfies the goals and objectives of SSP/OASiS. The IBM Project manager
will provide reports and updates on the IBM and subcontractor activities
related to the project.
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Recognizing that the scope of the project may require changes, IBM employs
a formal change control procedure. This proven approach will allow
SSP/OASiS to make cost and benefit tradeoffs based on an analysis of
requested changes. Project Change Requests (PCR) will be the vehicle for
communicating change. PCRs describe the requested change, the rational for
change, and the effect the change will have on the project. Appendix B
describes the PCR process to be used in conjunction with this Statement of
Work.
1.3 Staffing
IBM will provide a Project Office team to assist SSP/OASiS with the
management of the OASiS TouchPort 2K. The Project Office team members will
fluctuate based on the project schedule. It is anticipated that the IBM
Project Office team will nominally consist of six (6) members in the
following roles:
Project Executive (1)
Project Manager (1)
Project Support Coordinator (1)
Project Support Administrator (1)
Network Subject Matter Experts (1-2)
These roles will be staffed based on the requirements of the project
schedule. Additional project office personnel may be added to address
additional project requirements. 2.0 Statement of Work This Statement of
Work defines the scope of work to be accomplished by IBM under the terms
and conditions of the IBM Customer Agreement (Agreement). The tasks to be
performed by IBM are defined and an estimated schedule is provided. In
addition, the responsibilities of SSP/OASiS are listed.
Changes to this Statement of Work will be processed in accordance with the
procedure described in "Appendix B. "Project Change Control Procedure". The
investigation and the implementation of changes may result in modifications
to the Estimated Schedule, Charges, and/or other terms of the Agreement.
The following are incorporated in and made part of this Statement of Work:
Appendix A "Deliverable Guidelines"
Appendix B "Project Change Control Procedure"
Appendix C "Hardware/Software"
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Appendix D "Signature Document"
Appendix E. "Review and Approval Procedure"
2.1 Project Scope
SSP/OASiS has requested IBM to provide Project Management services to
assist with their OASiS TouchPort 2K Implementation Project. IBM will
provide Roll-Out Services for 1,200 SSP/OASiS Touchports, beginning
December 1, 1999 and ending on November 30, 2000 at an estimated 400
SSP/OASiS end customer locations. The Services specified below are to be
provided by IBM and authorized by SSP/OASiS.
IBM will assemble a team to establish a Project Office with adequate
resources to provide the following services:
Product Procurement Services
Site Surveys
Network Design Services
Site Preparation Services
TouchPort Implementation Services
TouchPort Support Services
2.2 Key Assumptions
This Statement of Work, and IBM's estimates to perform the Statement of
Work, are based on the following key assumptions. Deviations that arise
during the proposed project will be managed through the procedure described
in "Appendix B. Project Change Control Procedure".
IBM will provide and staff an IBM Project Office for SSP/OASiS, which may be
remote to SSP/OASiS and the TouchPort "installed at" locations. The IBM Project
Office will manage pre- and post-implementation issues including after
installation end user support (help desk) problem escalations concerning the
availability (uptime) of each TouchPort.
IBM will provide Level 1 & 2 End User Support Services (help desk), 24hr x7 day
coverage, via IBM provided toll free call-in number. End User Support staffing
will be matched to call volumes. All Level 3 problems will be escalated to the
SSP/OASiS support staff in Sarasota, FL.
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IBM will provide "hot swap" depot hardware replacement and repair services after
installation, at any TouchPort "installed at" location covered by this agreement
and serviced next day by UPS, Federal Express or Airborne with coverage to be
next business day. IBM will provide an on-site technician to perform the swap
out. "Installed at" locations not serviced by these express delivery service
providers will be serviced by IBM on a best efforts basis. IBM's target
objective, for covered devices, for repair or replacement of a failed TouchPort,
TouchPort peripheral, data network cabling, or network related hardware is 72
hrs or less.
IBM will ▇▇▇▇ SSP/OASiS a monthly service charge (MSC) for the above described
support services according to Scenarios "A", "B", and "C" schedule of charges
included and made part of this Statement of Work.
Funding and Invoicing:
1. Prior to IBM issuing purchase orders to non-IBM suppliers for any items
required to deliver the scope of the work SSP/OASiS and IBM will:
a. mutually agree on a comprehensive IBM invoicing plan to SSP/OASiS in
line with the business objectives of SSP/OASiS,
b. mutually agree on a SSP/OASiS plan for the payment of all IBM invoices
generated as a result of IBM's execution of the deliverable elements
described in this Statement of Work and,
c. additionally SSP/OASiS must identify any sources of working capital
that may be obtained to satisfy IBM
d. SSP/Oasis must first issue to IBM an "SSP Work Authorization", in writing,
prior to any costs being incurred.
e. The "Work Authorization" form (see attached) will disclose any travel and
living expenses that may be billed to SSP/OASiS.
1. We have assumed for planning purposes a straight-line time frame
implementation; 1,200 Kiosk installed during 12 months in 400 locations.
(100% Desktop units, 0% floor standing units).
2. The success of this project will require the active participation of both
SSP/OASiS and IBM personnel. The appropriate SSP/OASiS personnel will be
available for consultation (i.e. interviews, workshops, review sessions,
etc.) throughout the duration of this project. IBM will attempt to schedule
this time so as to minimize the impact on the day-to-day responsibilities
of Surgical Safety's staff.
3. Written and/or electronic documentation exists and will be provided as it
pertains to the objectives and scope of this project. SSP/OASiS will
provide access to any available information required by the IBM project
team to complete their tasks.
4. SSP/OASiS will obtain and provide information, data, decisions, and
approvals, within three working days of IBM's request unless SSP/OASiS and
IBM agree to an extended response time.
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5. Site survey activities will take place an estimated three (3) to six (6)
weeks prior to the installation activities.
Hardware and Software Environment:
1. IBM will provide the hardware and software described in Appendix C.
2. IBM will not be responsible for detection or removal of asbestos, hazardous
waste or other pollutants. It is specifically understood by SSP/OASiS,
their end- customers, and IBM that all matters relating to detection and/or
abatement or removal of asbestos, hazardous waste or other pollutants are
beyond the scope of this contract and that IBM shall not be liable for any
delay or additional cost incurred as a result of such detection and/or
abatement.
3. IBM will not be responsible under this Statement of Work for the
identification or correction of any safety and/or code violations, whether
federal, state or local, including but not limited to fire and electrical
codes. If IBM should discover any safety and/or code violations during the
course of this project, IBM will notify SSP/OASiS and their end-customer of
the problem. IBM will not be required to proceed with this work under this
Statement of Work until SSP/OASiS and their end-customer remedies such
violation, nor will IBM be responsible for delays to the work caused by
such violation.
4. SSP/OASiS is responsible for shipping charges.
5. IBM will follow the SSP/OASiS provided test script prior to certify
installation of the Touchports.
6. SSP/OASiS will provide to IBM prior to the rollout of any pilots, "gold
disks". These disks will contain all software SSP/OASiS requires to be
loaded on to the TouchPorts. IBM will then use these disks in their
redistribution efforts. SSP/OASiS will provide a mutually agreed to number
of disks to be used by IBM.
7. Desktop TouchPort does not exceed 60 lbs. actual weight or Din weight of
120 lbs./in..
8. Floorstanding TouchPort does not exceed 150 lbs. actual weight or Din
weight of 250 lbs./in..
9. No final, production-level, certified product will be delivered until the
TouchPort 2 K system product passes UL, FCC and IBM's Product Safety Review
Board. If the DFI product fails to meet these requirements, IBM reserves
the right to substitute another product, and the charges may be adjusted as
the result.
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SSP/OASiS Personnel:
1. SSP/OASiS personnel who will be assigned to this project will have the
technical skills necessary to participate in the SSP/OASiS TouchPort work
effort.
IBM Personnel:
2. Work under this Statement of Work will be performed at SSP/OASiS location
in Sarasota, FL. and IBM locations in Orlando, FL.
3. SSP/OASiS will be charged for travel time that exceeds one hour round trip
from the point of departure.
. All travel time, per IBM resource, for the duration of this project, will be
billed to SSP/OASiS at the rate of $225/person/hr. and must be prior approved as
per the "Work Authorization" process. Resource travel time will be billed to
SSP/OASiS for travel one-way to any necessary work location. Travel for IBM
Project Office personnel, while performing Project Office Duties, is not
billable when traveling within the State of FL to and from the SSP Corporate
Center.
3. Some IBM internal activities on this project may be performed on IBM
premises. IBM will provide the IBM consultant with access to IBM tie lines,
networks, and databases. The time spent on these contract-related IBM
internal activities will be billable to SSP/OASiS.
4. IBM will provide services under this Statement of Work during normal
business hours, 8:00 am to 5:00 pm Monday through Friday, except national
holidays.
TouchPort Support Services:
1. We have provided for an initial block of 2,500 calls, which may be extended
with additional blocks of varying sizes throughout the year.
2. Work under this Statement of Work will be performed remotely at an IBM
location.
3. IBM may use subcontractors to perform some of the proposed work.
4. IBM estimated time frames subjected to delays caused by SSP/OASiS in
delivering requested or required information may result in changes to the
project schedule and/or additional charges. IBM will inform SSP/OASiS as
soon as is practical in this event and the change will be processed in
accordance with the procedure described in Appendix B, "Project Change
Control Procedure."
5. Estimated call length of 10 minutes.
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6. IBM will provide hot spares/depot repair services for the desktop
Touchports and on-site repairs of floor standing Touchports. SSP/OASiS will
be responsible for providing a consignment of hot spares for the desktop
units.
Other:
7. Verio ISP monthly connection fees for end-customers are NOT included in
this statement of work.
8. If IBM is delayed in the progress of the project by SSP/OASiS or their end-
customers by acts or neglect, or the acts or neglect of your employees or
separate contractors employed by you, by changes ordered in the project not
caused by the fault of IBM or other causes beyond IBM's control, the
contract time shall be reasonably extended and/or charges adjusted.
9. Prior to the creation of deliverables, IBM and SSP/OASiS will agree on a
format, which will become the basis and standard for acceptance of the
deliverable.
10. Any order received 3 business days or less from the on-site due date may
incur a labor impact charge of $ 115 per shipment in addition to the
applicable expedited transportation costs.
In the case of an already existing SSP/OASiS hospital/customer requiring an
additional TouchPort installation in 3 days or less, a labor impact charge
(expedite fee) of $115 may be incurred by SSP/OASiS in addition to any
applicable expedited transportation costs. This charge will appear on the "SSP
Work Authorization Form".
11. Any order received for the next day or same day shipment will be considered
an Emergency order. Emergency orders will incur expedited labor charges of
$ 240, and expedited transportation charges.
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2.3 IBM Responsibilities
2.3.1 Perform Project Management
Task Description: IBM will provide project management for the IBM
responsibilities in this Statement of Work. The objective of this
task is to establish a framework for project communications,
reporting, procedural and contractual activity. The IBM Project
Manager will be responsible for this task. The following subtasks
will be performed:
1.Project Planning
Review the Statement of Work and the contractual responsibilities
of both parties with the SSP/OASiS Project Manager.
Prepare a detailed project plan that identifies and assigns
tasks, major milestones for the efforts of the project team, the
estimated dates on which they occur and indications of critical
path.
Develop and revise a Roll-Out schedule with the agreement of the
SSP/OASiS Project Manager.
Coordinate the establishment of the project environment.
Prepare for the SSP/OASiS TouchPort project team orientation.
2.Project Tracking and Reporting
Measure, track and evaluate progress against the project plan.
Resolve deviations from the project plan with the SSP/OASiS
Project Manager.
Review project tasks, schedules, and resources and make changes
or additions, as appropriate.
Conduct regularly scheduled meetings with the SSP/OASiS TouchPort
project team to review project status.
Review the project progress with the SSP/OASiS Project Manager
during the regularly scheduled status meetings.
Prepare Monthly Status Reports.
Administer the project change control procedure.
Review and analyze project change requests.
Review the work products being produced by the SSP/OASiS
TouchPort project team.
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Completion Criteria: This task will be complete when the project
ends.
Deliverables: The following items will be delivered to SSP/OASiS
as a result of this task:
A Monthly Status Report
2.3.2 Orient Project Team
Task Description: The objective of this task is to orient the IBM
and SSP/OASiS project participants to SSP/OASiS goals and
environment and to the SSP/OASiS TouchPort project management
methodology. The orientation consists of the following subtasks:
1. Orient the project team to the project objectives and
approach.
2. Review the Statement of Work and provide clarification, as
required.
3. Review the project plan, estimated schedule, IBM's and
Surgical Safety's contractual responsibilities.
4. Review the project change control procedure.
5. Orient the team to project management methodology.
Completion Criteria: This task will be complete when the 1-day
orientation session has been held.
Deliverables: None.
2.3.3 Project Office Services
Task Description: The subtasks are:
1. Serve as a single point of contact for all IBM related
activities for SSP/OASiS.
2. Provide project status reports for Safety Surgical TouchPort
implementations.
3. Serve as an information repository for SSP/OASiS
engagements.
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4. Define clear, concise, repeatable, specific process for the
implementation of SSP/OASiS TouchPort solutions.
a. Develop site survey scripts
b. Develop installation scripts
c. Develop customer acceptance and sign-off forms
5. Prepare a site installation plan to cover the service
activities at each SSP/OASiS end-customer location. The plan
should include the activities, schedules, and
responsibilities for each party; SSP/OASiS, their
end-customer, and IBM.
6. Coordinate necessary partner/vendors/sub-contractors and IBM
perform resources ( cabling, ISP, installation, etc.).
7. Order and schedule for delivery appropriate components
(Kiosk and HW equipment).
8. Prior to the start of this Statement of Work, IBM will
designate a person, known as the EUS Customer Care Advocate,
to whom SSP/OASiS will address all EUS related project
communications. EUS Customer Care services will be provided
during normal IBM business hours, 8:30 a.m. to 5:00 p.m.,
Monday through Friday excluding IBM holidays.
Completion Criteria: This task will be complete when the project ends.
Deliverables: The following item will be delivered to SSP/OASiS and
their end- customer as a result of this task:
Site Installation Plans & Schedules
2.3.4 Site Survey
Task Description: The objective of this task is to determine the
networking and cabling requirements for the installation of the
OASiS TouchPort 2K systems. IBM will perform a site survey at each
identified SSP/OASiS end-customer location approximately three weeks
prior to installation. The sub tasks are:
1. Determine Hospital LAN gateway or ISP connection
requirements;
2. Identify best available LAN or demarc location;
3. Determine location, placement, and environmental
conditions for the TouthPort 2K system;
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4. Identify CAT 5 cabling requirements;
5. Obtain sign-off from end-customer to utilize their
Gateway, if utilized;
6. Document electrical/cabling requirements, readiness,
and locations for cable drops.
Completion Criteria: This task will be complete when IBM has completed
at the SSP/OASiS identified sites, up to 400 sites.
Deliverables: The following items will be delivered to SSP/OASiS as a
result of this task:
4. One (1) copy of the site survey document
2.3.5 Network Design Services
Task Description: The objective of this task is to provide network
expertise for the design of the network connection for the system and
support of installation projects. The activities to be performed are:
1. Review the site surveys to assess the physical and
logical networking environment.
2. Determine the additional required hardware / software
components necessary to connect the system into one of
the five following connection scenarios:
a. DSL
b. Frame Relay
c. Fractional T-1
d. T-1
e. ISDN
3. Provide product specifications and configuration
instructions for the recommended components to
facilitate the connection of a TouchPort to the
customer's premise network or Internet Service
Provider's network.
4. Develop Network diagrams, based on input from the Site
Surveys and implementation teams, for each individual
project.
5. Provide telephone support for installation and survey
activities.
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Completion Criteria: This task will be complete when the project ends.
Deliverables: None
2.3.6 Data Cabling Services
Cabling Activities: IBM will furnish and install one cable drop per
TouchPort at the designated SSP/OASiS end-customer facilities across
the US. The Category 5 plenum 300 foot maximum cable run will
terminate at an RJ45 surface mount box and face plate at one end and a
RJ45 surface mount box and face plate of patch panel at the other end.
Up to 15 feet of wire mold could be included at the TouchPort end of
the run for aesthetic purposes. IBM has assumed a normal Hospital
environment will prevail (drop ceilings, fish able walls, no
asbestos).
Cabling Installation Methods
IBM will follow all required EIA/TIA installation methods.
Specifically, the following installation practices will be adhered to:
1. The design and installation will be established using cable
highways. Hallways will be followed whenever possible. All
turns will be 90 degrees observing the manufacturer's
specified bend radius, but in no case less than 10 times the
cable OD.
2. Cable support will be provided on a minimum of 10' centers
or to local code, whichever is more stringent. IBM will
follow all facility support requirements. All cable will run
as high as is practical above the level of the suspended
ceiling.
3. Cable will not be laid upon ceiling tiles.
4. Cable will not be routed within 12" parallel to electrical
circuits. Where data cable must intersect electrical cable,
the crossing shall be made at a 90- degree angle.
5. No jacks will be installed adjacent to electrical outlets.
6. In no case will the twisted pair be untwisted more than the
specified .5". Sheath removal will be kept to a minimum.
7. Cable will be installed in such a manner so as not to kink
any wire. Any cable kinked during installation will be
replaced at IBM expense. When using cable tie-wraps, they
will not be tightened in any manner that would damage or
kink the cable.
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8. All cables will be neatly dressed and bundled.
9. No twisted pair splicing will be allowed.
10. Any fire wall penetrations made by IBM will be metal sleeved
and will be sealed in an appropriate manner using a fire
rated sealant to maintain the fire rating of the wall in
accordance with NEC.
11. All work to be provided by IBM will comply to national,
state, and local code
12. All work areas will be kept clean by the work crews.
Cabling Assumptions:
1. Provision for and the installation of optical fiber or riser
cable is NOT included in this statement of work.
2. Access between the floors exists and is free of
obstructions. IBM assumes that core drilling will not be
required. Ceilings are standard drop tile and walls are of
construction that are fish able. IBM also assumes all floor
ducts and conduit will be free and clear of any obstructions
and are fish able.
3. IBM assumes no expedited freight charges.
4. IBM assumes that jobs will be started and completed without
interruption. Re- mobilization efforts will be billed
accordingly, over and above the contracted pricing. Access
to all necessary areas is required throughout the
installation. Downtime due to limited access will be
addressed in a change order.
5. No allowances have been made to supply conduit, surface
raceway, or cable tray. If these types of services are
deemed necessary during the survey or installation, will be
addressed in the appropriate manner (quote adjustment or
change order).
6. Permits (if required) are the responsibility of the
end-customer.
7. Electrical wiring is outside the scope of the statement of
work.
Completion Criteria: This task will be complete when the project ends.
Deliverables: None
2.3.7 TouchPort Implementation Services
Task Description: The objective of this task is to coordinate the
resources and activities required for the installation of SSP/OASiS
OASiS TouchPort 2K solution. The subtasks are:
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1. Install necessary network electronics for the network
connection;
2. Install the OASiS TouchPort 2K Kiosk;
3. Install IBM provided UPS;
4. Establish network connections between the TouchPort and ISP.
5. Verify operations by executing SSP/OASiS provided
installation verification procedures;
6. Complete the Customer Acceptance process.
Completion Criteria: This task will be complete when the project ends.
Deliverables: The following item will be delivered to SSP/OASiS as a
result of this task for each implementation:
1. Customer Acceptance and Sign-off Forms
2.3.8 TouchPort Support Services
IBM will provide Single Point of Contact (SPOC) ▇▇▇▇▇ ▇ & ▇▇▇▇▇ ▇
telephone assistance for SSP/OASiS Products' clients called End Users.
End User Support (EUS) will provide break-fix support for hardware,
including assisting on-site vendor technicians and application usage
"how-to" on the OASiS TouchPort unit. EUS services will routing sales
and vendor related questions to SSP/OASiS. EUS will escalate Level 3
problems to SSP/OASiS for resolution. IBM will provide assistance to
SSP/OASiS for a predetermined number of problems (called "Block of
Problems").
Task Description: IBM will provide EUS transition setup in preparation
for providing EUS Services to SSP/OASiS. The sub tasks are:
1. Work with SSP/OASiS to set up a customer profile in the call
management system.
2. Work with SSP/OASiS to create a customized greeting and
processes and procedures for remote operations and support
and escalation and referral procedures of the SSP/OASiS
personnel. Up to 40 hours has been allotted for this task.
In the event that additional hours are required, they will
be billed on a time and materials basis.
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3. Set up a dedicated toll-free telephone line, to be used
exclusively by SSP/OASiS when calling the End User Support
Center.
4. Provide a call center trainer; the trainer will provide
training to call center personnel on the call-handling
processes and procedures, escalation and referral procedures
developed jointly with IBM and SSP/OASiS.
IBM will perform End User Support Services for SSP/OASiS personnel.
The sub tasks are:
2. Provide extended coverage, 24 X 7 including holidays.
3. Provide hardware and software support on the OSASiS
TouchPort System
4. Provide status updates, at your request, during the
resolution of a problem.
5. Provide SSP/OASiS with access to the end user call activity
report data.
Completion Criteria: This task will be considered complete when the
contract end date has been reached, or the Block of Problems has
utilized, whichever first occurs.
Deliverable: Access to the end user call activity report data.
2.3.9 TouchPort Warranty and Maintenance Services
IBM will provide in warranty and out of warranty break fix support for
the SSP/OASiS Products' TouchPort 2K Touchports. These devices will be
serviced on a hot spare depot/repair basis utilizing consigned spares
provided by SSP/OASiS. This is the most economically viable service
solution and due to the conditions of the manufacturer's warranty and
the nature of the device, allowing for minimum impact on end user
operations.
The warranties for IBM products and services are referenced in Part 2
(Warranties) of the ICA. IBM will "pass-thru" other equipment manufacturers
(OEM) warranties pertaining to their respective products. IBM does not warrant
non-IBM products and services (also stated in the Warranties section of the
ICA). The warranty for DFI's kiosks is 1 Year return to depot parts and labor
included.
Task Description: The sub tasks are:
6. On-site response time is next business day (depending on city) with
immediate next day whole unit replacement (Desktop) or component parts
shipped from our Orlando Service Center (Floorstanding). Service
requests will be handled by the dedicated toll-free telephone number
provided by EUS.
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7. Consigned spares will be shipped from our Orlando Center to minimize
SSP/OASiS turn around time.
8. Provide hot spares shipping support 8:00AM to 5:00PM M- F Orlando
time.
9. Provide status updates, at your request, during the resolution of a
problem.
Completion Criteria: This task will be considered complete when the
contract end date has been reached.
Deliverable: None.
2.3.10 TouchPort Web Site Hosting Services
IBM will provide Internet hosting services for the OASiS TouchPort
application. These services will consist of a dedicated Microsoft NT
4.0 server, Internet connections, maintenance and systems
administration.
Task Description: IBM will provide a managed host environment
consisting of:
10. Dual PIII 550 MHz processor, with 256K RAM, 4 GB SCSI DASD
11. Monitoring of server 24 X 7, 365 days / year.
12. All server hardware and maintenance
13. Uninterruptible Power Supply, with Generator backup
14. Multiple connections to Internet backbone
15. 50 GB of data transfer per month.
16. System Administration:
a. Operating System Upgrades
b. Supported software upgrades
c. Mail Server ( adding/deleting users, mail forwards etc)
d. Web Server ( adding domains, password protection, server
module support)
e. FTP Server ( restricting access, setting up new users
f. Operating System troubleshooting
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g. Provide status updates, at your request, during the
resolution of a problem.
Completion Criteria: This task will be considered complete when the
contract end date has been reached.
Deliverable: None.
2.4 SSP/OASiS Responsibilities
The responsibilities listed in this section are in addition to those
responsibilities specified in the Agreement and are to be provided at
no charge to IBM. IBM's performance is predicated upon the following
responsibilities being fulfilled by SSP/OASiS.
2.4.1 SSP/OASiS Project Manager
Prior to the start of this Statement of Work under the Agreement,
SSP/OASiS will designate a person, called the SSP/OASiS Project
Manager, to whom all IBM communications will be addressed and who has
the authority to act for SSP/OASiS in all aspects of the contract. The
responsibilities of the SSP/OASiS Project Manager include:
1. Serve as the interface between the IBM project team and all
SSP/OASiS departments participating in this project.
2. With the IBM Project Manager, administer Project Change Control
in accordance with "Appendix B. Project Change Control
Procedure".
3. Attend project status meetings.
4. Obtain and provide information, data, decisions and approvals,
within three working days of IBM's request unless SSP/OASiS and
IBM agree to an extended response time.
5. Resolve deviations from project plans that may be caused by
SSP/OASiS.
6. Help resolve project issues and escalate issues within the
SSP/OASiS organization, as necessary.
7. Work with IBM to set up a customer profiles in the call
management system.
8. Work with IBM to create a customized greeting and processes and
procedures for remote operations and support and escalation and
referral procedures of the SSP/OASiS personnel.
9. Be responsible for distribution and implementation of
corrections.
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10. Track the usage of SSP/OASiS current Block of Problems.
2.4.2 Other Responsibilities
Prior to the start of this Statement of Work under the Agreement,
SSP/OASiS will designate technical resources to provide the following
support to the IBM/SSP/OASiS project team. Their responsibilities
include:
1. SSP/OASiS personnel assigned to this project will have the
technical skills necessary to participate in this effort.
2. SSP/OASiS will assign subject matter experts to assist the IBM
EUS Center with their data collection/due diligence effort
throughout the transition period.
3. SSP/OASiS will provide necessary hardware and software licenses
required for support.
4. SSP/OASiS will work with IBM EUS in creating customized processes
and procedures for remote operations and support and escalation
and referral procedures.
5. Provide ▇▇▇▇▇ ▇ support for the OASiS Application;
6. Provide 90 a day rolling commit forecast of product and
installation requirements. SSP/OASiS will be required to purchase
and maintain a 60 day rolling inventory of product.
7. Provide an interface to Surgical Safety's end customers for the
IBM Project Team members and Vendors during each project's
planning and implementation phases.
8. Provide installation and verification test scripts for installed
equipment and software.
9. Provide gold disks for all software that will need to be loaded
to Kiosk. These gold disks will be used by IBM at the
redistribution center to load all Touchports. SSP/OASiS will
prepare these gold disks prior to IBM installing any locations.
The gold disks will include the following software:
a. Microsoft Windows 98 operating system
a. OASiS TouchPort 2K application code
b. Verio ISP application and communications
10. Provide documentation showing purchase date (copies of invoices),
or other documents, as per the requirements of the manufacturers
during the warranty period.
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11. Supply sufficient quantities of consigned inventory, for all hot
spare devices to be included in this Maintenance Agreement.
2.4.3 Laws, Regulations, and Statutes
SSP/OASiS is responsible for the identification and interpretation of
any applicable laws, regulations, and statutes that affect SSP/OASiS
that IBM will have access to during this project.
SSP/OASiS will pay taxes and fees imposed by governmental agencies in
the USA or elsewhere as they are assessed on products or services
required by or in support of Project implementations.
Governing Laws and applicable court costs, if any, for this Agreement are
addressed in the IBM Customer Agreement in Section 1.13.
2.4.4 Space and Facilities
SSP/OASiS will provide suitable office space,
at SSP's home officein Sarasota, Florida including
supplies, furniture, and other facilities with telephone access for up
to 2 IBM personnel while working on the SSP/OASiS OASiS TouchPort 2K.
It is assumed that the project team will be located in a contiguous
area and all necessary security badges and clearance will be provided
for access to this area. A lockable four or five drawer cabinet will
be provided to IBM personnel in accordance with SSP/OASiS security
procedures. Required parking spaces will also be provided.
2.4.5 Security
SSP/OASiS is responsible for the actual content of any data file,
selection and implementation of controls on its access and use, and
security of the stored
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2.5 Deliverable Materials
The following deliverables are classified as Type II Materials, as
defined in the IBM Customer Agreement, and will be delivered to
SSP/OASiS under this Statement of Work.
Monthly Project Status Report
Design and Implementation Reports
Site survey document
Site Installation Plans & Schedules
Customer Acceptance and Sign-off Forms
Access to End User Support: Monthly Usage Reports
Hardcopy, Softcopy or both will be provided for each SSP/OASiS end
customer
2.6 Completion Criteria
IBM shall have fulfilled its obligations under this Statement of Work
when any one of the following first occurs:
IBM accomplishes the IBM tasks described in "IBM
Responsibilities", including delivery to SSP/OASiS of the
materials listed in "Deliverable Materials".
SSP/OASiS or IBM terminates the Project in accordance with the
provisions of the Agreement.
When the contract end date is reached
2.7 Year 2000
IBM is not providing any Year 2000 services under this Statement of
Work. IBM Product Specification specify the Year 2000 readiness of the
IBM Products. IBM does not make any representations regarding the Year
2000 readiness of non-IBM Products. Under the terms of the Statement
of Work, IBM is not responsible for:
17. SSP/OASiS products,
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18. a third party's products (including products SSP/OASiS license
from IBM's suppliers) or
19. IBM's previously installed Products ("Other Products") to
correctly process or properly exchange accurate date data with
the Products or deliverables IBM provides.
IBM will be relieved of its obligations under this Statement of Work
due to the inability of such Other Products to correctly process or
properly exchange accurate date data with the Products or deliverables
IBM provides to SSP/OASiS. SSP/OASiS, acknowledges that it is Surgical
Safety's responsibility to assess its current systems and take
appropriate action to migrate to Year 2000 ready systems.
The Deliverable Materials (Materials) that we provide will be Year
2000 ready. "Year 2000 ready" means that the Materials, when used in
accordance with their associated documentation, are capable of
correctly processing, providing and/or receiving date data within the
twentieth and the twenty-first centuries, provided that all products
(for example, hardware, software and firmware) used with the Materials
properly exchange date data with it.
IBM assumes no responsibilities or obligations to cause products or
deliverables provided by IBM to accurately exchange date data with
such Other Products or to cause such Other Products to accurately
exchange date data with products or deliverables provided by IBM
2.8 Termination
You may terminate this Statement of Work for convenience upon 60 days
prior written notice and satisfaction of any payments due to IBM
produced from services performed under this statement of work
including reasonable expenses caused by the early termination (for
example: cancellation fees of vendor contracts, prepaid expenses,
additional staff required to transfer services).
The following termination charges will apply in the event termination
occurs due to change of ownership of SSP/OASiS:
Within first 3 months of contract acceptance: $ 390,000
Within first 6 months of contract acceptance: $ 260,000
Within first 9 months of contract acceptance: $ 130,000
A. Either IBM or SSP/OASiS may terminate this Agreement for convenience upon at
least 60 days prior written notice to the other party. If IBM terminates this
Agreement for convenience then any outstanding charges shall be paid to IBM. If
SSP/OASiS terminates for convenience or for refusal to pay additional
prepayments of future invoices requested by IBM, then the following will apply:
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(a) outstanding invoices issued for work performed, or pending invoicing in
process but not issued until completion of SSP/OASiS authorized work will be
payable to IBM,
(b) any sub-contractor or vendor cancellation fees or charges for work
performed by them as retained by IBM in accordance with this Statement of Work,
(c) The cost of any IBM procured items, including, but not limited to, hardware
and software held in IBM inventory for scheduled and future installations, and
said purchase approved by SSP/OASiS, in accordance with this Statement of Work,
(d) design, tooling, or start-up fees, previously paid by IBM, and approved by
SSP, associated with the costs of customized hardware manufacture of OASiS
TouchPorts, and
(e) any unreimbursed travel completed and non-refundable air fare tickets
purchased for future travel, including any reservation cancellation fees or any
other travel costs not described in a "Work Authorization Form" approved, or
pending approval by SSP/OASiS.
Written evidence of each of the above will be supplied to SSP/OASiS upon written
request.
B. Either party may terminate this Agreement if the other party breaches the
terms of the Agreement, provided the breaching party has not cured such breach
within 15 days after receiving written notice of such breach. Any terms of this
Agreement, which by their nature extend beyond its termination, remain in effect
until fulfilled or accepted by the respective successors of the undersigned. An
early termination fee will apply to any other future Assignor or Assignee who
may terminate this agreement within the specified time periods.
In the event SSP/OASiS, exercises its right to terminate this Agreement, (other
than a termination resulting from a breach by IBM), and such termination occurs
as a result of a sale or assignment by SSP/OASiS or the acquisition of
substantially all of its assets to or by a third party purchaser, then, and in
that event, SSP/OASiS shall pay to IBM the following early termination fee:
(a) In the event the termination is effective within the first three months
following the date of full acceptance of this agreement, SSP/OASiS shall pay to
IBM the sum of $390,000.00. (b) In the event the termination is effective
following three months from the date of full acceptance of this agreement but
within six months from the date of full acceptance of this agreement, SSP/OASiS
shall pay to IBM the sum of $260,000.00.
(c) In the event the termination is effective following six months from the date
of full acceptance of this agreement but within nine months from the date of
full acceptance of this agreement, SSP/OASiS shall pay to IBM the sum of
$130,000.00.
NOTE:
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(1) The aforesaid early termination fee shall not apply in the case where
SSP/OASiS sells all or substantially all of its assets, or assigns this
Agreement, and the Purchaser or Assignee accepts the Assignment.
(2) The aforesaid early termination shall apply to any future purchaser,
assignor or assignee.
(3) The governing laws are covered in section 1.13 of the ICA. (State of New
York).
(4) IBM will not accept any "TIME IS OF THE ESSENCE" clauses.
(5) IBM will not accept the "In the event of breach..." sentence. Each party
will be liable for its own court costs if such situations occur.
Either of us may terminate this Statement of Work if the other does
not comply with any of its terms, provided the one who is not
complying is given written notice and 2 weeks time to comply.
Any terms of this Statement of Work which by their nature extend
beyond its termination remain in effect until fulfilled, and apply
to respective successors and assignees.
Notices. All written notices required or permitted hereunder shall be deemed
effective and duly ------- given:
(i) when personally delivered;
(ii) when sent by telephone facsimile (the sender shall also send a "hard copy"
following the facsimile, however the notice shall be effective upon the
transmission of the facsimile if confirmed by Sender with words "Confirming
delivery of notice from ________________");
(iii) one day after depositing in the custody of a nationally recognized
receipted overnight delivery service; or
(iv) at least three (3) days after posting in the United States first class,
registered or certified mail; and,
in the case of iii or iv above with postage prepaid and addressed to the
recipient at its address as set forth as follows:
TO IBM:
▇▇▇▇▇▇ ▇▇▇▇▇ IBM Project Manager
IBM Project Office
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▇▇▇ ▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax Number: (▇▇▇) ▇▇▇-▇▇▇▇
TO SSP/OASiS:
Surgical Safety Products, Inc.
Attn.: ___________________________________
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax Number: (▇▇▇) ▇▇▇-▇▇▇▇
Either party may change its address by giving notice of such change in the
manner prescribed above.
2.9 Estimated Schedule
The services will be performed during the period 12-01-99 through
11-30-2000
2.10 Charges
The estimated price for performing the IBM tasks defined in the Statement
of Work will be $10,961,600. plus applicable taxes if any. Based on 400
sites with an average of 3 TouchPorts per site. This price is based upon an
attached Schedule " PRICING SCENARIO "A" ". PRICING SCENARIO'S "B" and "C"
are also attached and are made a part of this Statement of Work as pricing
alternatives in certain deployment situations which may require less
networking and/or connectivity services. Any single site installation
charge and associated product costs will not exceed Schedule "A" estimate
per Key Assumptions as stated. SSP/OASiS will be billed for actual work
performed including hardware, cabling services, help desk, and break-fix
support. Any out of scope charges to be prior approved by SSP/OASiS
management. The charges and invoicing are as follows:
Initial Payment:
Prepayment of Product and Services :
$100,000 upon contract acceptance to be applied immediately to
any IBM invoices due.
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Additional prepayments may be requested upon exhaustion of
initial prepayment.
Additional terms may be requested upon exhaustion of initial prepayment if any
outstanding IBM invoice to SSP/OASiS becomes more than 30 days past due.
Per Problem Pricing: End User Support
Included in the Per site and Per TouchPort charges. The contract period is
the lesser of one year or until all problems have been used.
Extended
BLOCK SIZE 24 x 7
Including Holidays
------------------------- ----------------------
2,500 included $29 each for add'l
------------------------- ----------------------
500 Routed Calls included $10 each for add'l
------------------------- ----------------------
We will notify your designated contact when the 250 calls remain from a
purchased Block of Problems. If an End User should call for support after
all calls have been used , it will be considered as authorization for us to
deliver service beyond the current Problem Block limit
unless SSP/OASiS notifies the IBM Project Manger or Project Executive in writing
not to accept any further calls.
Service will continue for thirty (30) days after our notification to your
designated contact. If you purchase an additional Block(s) of Problems and
renew the contract period, the problems used during the 30-day extension
will be deducted from the new Block. If you do not purchase an additional
Block of Problems, you will be invoiced for Services provided during the
30-day extension at the per Problem rate of the last Block purchased.
In addition, SSP/OASiS will reimburse IBM for:
the actual travel and living expenses, upon prior approval by
SSP/OASiS, incurred in providing these services.
actual shipping from the integration facility in Orlando, FL to
the installation site
shipping to and from the Orlando, FL depot repair facility from
either of 1) an installed location and/or 2) from any retained
kiosk manufacturer to Orlando, FL or an installed site location.
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2.11 Definition of Terms
This section provides definitions of the terms as used in this Statement of
Work: End-Customer - SSP/OASiS Product's customer, the Hospital or Medical
establishment which is the user of the OASIS TouchPort 2K system.
Site - The end-customer location which contains the point of demarcation,
network router and data cable termination.
Level 1 Support - The 'level one' (L1) service is to answer 'how to' questions.
The scope of this activity is rooted in the notion that all answers to such
inquiries can be found within the documentation supplied to the end user as an
integral component of the product.
Level 2 Support -The 'level two' (L2) service is to augment level one service
with a supplementary skill base that reflects experience in supporting operating
system(s) and similar product(s) when feasible. Its scope is limited to
providing solutions that are published to the public domain and in general
acceptance, or to provide solutions that have been proscribed by a L3 entity for
particular problems or for technical scenarios they describe.
Level 3 Support - The 'level 3' (L3) service is 'ownership' by the help desk of
all problems that cannot be resolved at L2 that have been appropriately
escalated. This support includes but is not limited to, product defect support.
Vendor - A provider of certain services to a customer.
Deliverable - Materials delivered to a customer to support the services being
delivered.
End Users - We will consider end users to be only the personnel you authorize to
use contracted EUS services.
In Scope - Items included within or covered by the scope of this document.
Problem - A singular request for assistance on a specific product. Requests for
assistance on different problems with the same product will be considered to be
multiple problems. Closure of a problem occurs when we provide an answer to the
end user, which may include referring the end user to the appropriate source for
resolution. If such answer does not solve the problem, subsequent calls may be
placed under the original problem number. A problem may involve multiple
conversations (calls) or actions such as (1) the initial end user request, (2)
off-line research, (3) a callback from us to the end user and (4) closure of the
problem.
Call - An end user's contact with the EUS Center. There may be one or more calls
from the same end user on the same problem.
Call Management System (CMS) - The software used by IBM's EUS personnel to log
and track reported problems
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Appendix A Deliverable Guidelines
A.1 Monthly Status Report
Purpose: IBM will provide Monthly Status Reports advising the
SSP/OASiS Project Manager of the progress and status of the IBM
activities. The report will outline the IBM activities and describe
the status of tasks worked on during that period. Significant
accomplishments, milestones, and problems will be identified.
Content: The report will consist of the following, as appropriate:
Activities performed during the during the reporting period
Activities planned for the next reporting period
Project change control summary
Problems, concerns, and recommendations
Other items of importance
Delivery: IBM will deliver one copy of this document in reproducible
format.
A.2 Design and Implementation Reports
Purpose: These are work products that will be utilized by the IBM /
SSP/OASiS team in the implementation of IBM / SSP/OASiS solutions.
Content: These reports are and will consist of:
Site survey document
Site Installation Plans & Schedules
Customer Acceptance and Sign-off Forms
Delivery: IBM will deliver one copy of these documents in
reproducible format for each SSP/OASiS end customer project.
A.3 End User Support: Monthly Usage Reports
(Access to) The Summary of End User Call Activity Report
Purpose: The Summary of End User Call Activity Report will allow SSP/OASiS
to review such items as:
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1. If problem was regarding hardware or software;
2. Type of problem being reported;
3. Which SSP/OASiS end user was placing the call;
4. Number of calls placed;
5. Length of problem;
6. Overall usage of the service.
Content: The Summary of End User Call Activity Report will consist of
SSP/OASiS call activity data.
Delivery: Electronic access to the Report will be provided to the SSP/OASiS
Primary Contact
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Appendix B Project Change Control Procedure
The following provides a detailed process to follow if a change to this
Statement of Work (SOW) is required.
A Project Change Request (PCR) will be the vehicle for communicating
change. The PCR must describe the change, the rationale for the change
and the effect the change will have on the project.
The designated Project Manager of the requesting party will review the
proposed change and determine whether to submit the request to the
other party.
Both Project Managers will review the proposed change and approve it
for further investigation or reject it. IBM will specify any charges
for such investigation.
IBM will specify any applicable charges for such investigation prior
to the investigation being performed.
If the investigation is authorized, the Project Managers will sign the
PCR which will constitute approval for the investigation charges. IBM
will invoice SSP/OASiS for any such charges. The investigation will
determine the effect that the implementation of the PCR will have on
price, schedule and other terms and conditions of the Agreement.
A written Change Authorization and/or Project Change Request (PCR)
must be signed by both parties to authorize implementation of the
investigated changes.
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Appendix C Hardware/Software
The following list contains the specific IBM/OEM part #'s, options,
and quantities of equipment and software being proposed to SSP/OASiS.
IBM shall provide SSP with a copy of all product warranties issued by
the manufacturer.
1,200 OASiS TouchPort 2K Systems per the following configuration:
Mfg. Description Quantity
------- -------------- -------
DFI TouchPort 2K Desktop Kiosk 1,200
15" Display
APC BK 200 UPS 1,200
CICSO Router 675 < 400
Router 804 < 400
Router 1604 < 400
Router 1720 < 400
Hub 1538 < 400
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Appendix D Signature Document
Statement of Work for Project Support Services
Custom Services
Scope of Services, Completion Criteria, charges, and other applicable terms:
Both of us agree that, 1) this Statement of Work defines the scope of work to be
accomplished by IBM under the terms and 2) the conditions of the IBM Customer
Agreement (Agreement).
Project Scope: See Statement of Work for: OASiS TouchPort 2K Project
Estimated Charges: $ 10,961,600.
See Charges Section on the attached Statement of Work.
-----------------------------------------------------------------------------
This document is a Statement of Work to the IBM Customer Agreement - Project
Support Services. Each of us agrees the complete agreement between us about
these Services consists of 1) this Statement of Work and 2) the IBM Customer
Agreement or IBM Customer Agreement - Project Support Services, as applicable (
or any equivalent agreement signed by both of us).
Agreed to (IBM Customer Name): Agreed to:
SSP/OASiS International Business Machines
Corporation
By ____________________________________ By ___________________________
Authorized Signature Authorized Signature
Name (type or print) Name (type or print)
Date: Date:
Customer Number: 8666266 Reference Agreement Number: HQ12291
Customer Address: SSP/OASiS Statement of Work number : 7K30814
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ IBM Office number: 442
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Estimated Start Date: December 1, 1999 IBM Office Address:
Estimated End Date: November 30, 2000
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Appendix E Review and Approval
Procedure
Each deliverable document, as defined by the Deliverables under IBM
Responsibilities, will be approved in accordance with the following
procedure:
7. One (1) printed draft of the deliverable document will be
submitted to the SSP/OASiS Project Manager. It is the SSP/OASiS
Project Manager's responsibility to make and distribute
additional copies to other reviewers.
8. Within five (5) days the SSP/OASiS Project Manager will either
approve the deliverables or provide the IBM Project manager a
list of requested changes. If no response is received from the
SSP/OASiS Project manager within five (5) days, the deliverable
will be deemed approved.
The IBM Project Manager will submit the updated final version to the
SSP/OASiS Project Manager for approval. The SSP/OASiS will confirm
that the requested changes were made and give final approval within
three (3) days, the deliverables will be deemed approved.
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