Common use of Out-of-Scope Repairs Clause in Contracts

Out-of-Scope Repairs. The Maintenance Services do not cover the following: (a) Service of a Covered Machine damaged by malicious intent, gross misuse, modification of the Covered Machine (other than by Supplier or its agents), natural causes such as fire or flood, improper maintenance by Gap or its agents, or unsuitable physical operating environment outside of Covered Machine Specifications. For this purpose, assuming Supplier performs the initial installation, Gap’s operating environment as of the date of installation is deemed to be suitable; (b) Service of a Covered Machine with removed, or altered Covered Machine parts, or parts identification labels; provided, however, that alterations and removals by Supplier or its agents, or by virtue of the CRU process, shall not trigger the application of this exclusion; (c) Accidental Damage; (d) Failures caused by a product for which Supplier is not responsible; or (e) Accessories, and supply items listed as such in the applicable product manual; parts designed to be replaced or consumed periodically during the useful life of the product (e.g., batteries and printer cartridges) that are listed as such in the product Documentation, and structural or cosmetic parts (or damage to structural or cosmetic parts, including damage and warping of any kind to the Covered Machine frames, housings and bezels) to the extent such parts or damage either have no impact on the operation of the Covered Machine or result from the circumstances described in Section 1.6 (Non-IBM Branded Machines) of this Attachment A. Notwithstanding the foregoing, in the case of an IBM Branded Machine,, repair of a manufacturer’s defect shall not be treated as out of scope. In addition to (a) above, Maintenance Services for Non-IBM Branded Machines does not cover: 1. Covered Machine installation or engineering change activity; 2. Correction of date related errors; 3. Service of micro-code or firmware; or 4. Service of features, parts, or devices not supplied by either (1) the Covered Machine’s OEM, or (2) Supplier during the performance of Maintenance Services. Gap requests Supplier to effect out-of-scope repairs for Covered Machines, then Supplier will do so for the appropriate charges set forth in Tables 15.1.1 Exhibit A.3.a – European Stores Maintenance Services SOW Gap Confidential and Proprietary Information

Out-of-Scope Repairs. A. The Maintenance Services do not cover the following: (a) a. Service of a Covered Machine damaged by malicious intent, gross misuse, modification of the Covered Machine (other than by Supplier or its agents), natural causes such as fire or flood, improper maintenance by Gap or its agents, or unsuitable physical operating environment outside of Covered Machine Specifications. For this purpose, assuming Supplier performs the initial installation, Gap’s operating environment as of the date of installation is deemed to be suitable; (b) b. Service of a Covered Machine with removed, or altered Covered Machine parts, or parts identification labels; provided, however, that alterations and removals by Supplier or its agents, or by virtue of the CRU process, shall not trigger the application of this exclusion; (c) c. Accidental Damage; (d) d. Failures caused by a product for which Supplier is not responsible; or (e) e. Accessories, and supply items listed as such in the applicable product manual; parts designed to be replaced or consumed periodically during the useful life of the product (e.g., batteries and printer cartridges) that are listed as such in the product Documentation, and structural or cosmetic parts (or damage to structural or cosmetic parts, including damage and __________________________ *Certain information on this page has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions. Exhibit A.3.1 Gap Confidential and Proprietary Information Second Amended Master Services Agreement warping of any kind to the Covered Machine frames, housings and bezels) to the extent such parts or damage either have no impact on the operation of the Covered Machine or result from the circumstances described in Section 1.6 1.9 (Non-IBM Branded Machines) of this Attachment A. Notwithstanding the foregoing, in the case of an IBM Branded Machine,, repair of a manufacturer’s defect shall not be treated as out of scope. In addition to (ad) above, Maintenance Services for Non-IBM Branded Machines does not cover: 1. Covered Machine installation or engineering change activity; 2. Correction of date related errors; 3. Service of micro-code or firmware; or 4. Service of features, parts, or devices not supplied by either (1) the Covered Machine’s OEM, or (2) Supplier during the performance of Maintenance Services. If Gap requests Supplier to effect affect out-of-scope repairs for Covered Machines, then Supplier will do so for the appropriate charges set forth in Tables 15.1.1 C-15.1 Per Event Pricing and C-15.2 Other Charges to Exhibit A.3.a – European Stores Maintenance Services SOW Gap Confidential and Proprietary InformationC (Pricing) of the Agreement, as approved by Gap.

Out-of-Scope Repairs. A. The Maintenance Services do not cover the following: (a) i. Service of a Covered Machine damaged by malicious intent, gross misuse, modification of the Covered Machine (other than by Supplier or its agents), natural causes such as fire or flood, improper maintenance by Gap or its agents, or unsuitable physical operating environment outside of Covered Machine Specifications. For this purpose, assuming Supplier performs the initial installation, Gap’s operating environment as of the date of installation is deemed to be suitable; (b) ii. Service of a Covered Machine with removed, or altered Covered Machine parts, or parts identification labels; provided, however, that alterations and removals by Supplier or its agents, or by virtue of the CRU process, shall not trigger the application of this exclusion; (c) iii. Accidental Damage; (d) iv. Failures caused by a product for which Supplier is not responsible; or (e) v. Accessories, and supply items listed as such in the applicable product manual; parts designed to be replaced or consumed periodically during the useful life of the product (e.g., batteries and printer cartridges) that are listed as such in the product Documentation, and structural or cosmetic parts (or damage to structural or cosmetic parts, including damage and warping of any kind to the Covered Machine frames, housings and bezels) to the extent such parts or damage either have no impact on the operation of the Covered Machine or result from the circumstances described in Section 1.6 0 (Non-IBM Branded Machines) of this Attachment A. Notwithstanding the foregoing, in the case of an IBM Branded Machine,, repair of a manufacturer’s defect shall not be treated as out of scope. In addition to (ad) above, Maintenance Services for Non-IBM Branded Machines does not cover: 1. Covered Machine installation or engineering change activity; 2. Correction of date related errors; 3. Service of micro-code or firmware; or 4. Service of features, parts, or devices not supplied by either (1) the Covered Machine’s OEM, or (2) Supplier during the performance of Maintenance Services. * Certain information on this page has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions. If Gap requests Supplier to effect out-of-scope repairs for Covered Machines, then Supplier will do so for the appropriate charges set forth in Tables 15.1.1 C-15.1 Per Event Pricing and C-15.2 Other Charges to Exhibit A.3.a – European Stores C (Pricing) of the Agreement, as approved by Gap. B. During the original * manufacturer’s warranty period, the * warranty services do not cover the following: (Notwithstanding the foregoing, * will still be covered by Maintenance Services SOW provided that Section 1.7 A (a) – (e) does not apply.) (As further clarification, the * manufacturer’s Warranty period allows for the reimbursement of repair costs from the manufacturer to Supplier, with a pass through to Gap. Post-Manufacturer’s warranty, Gap is not entitled to the pass through, nor if the below occurs. The manufacturer’s warranty time period is *; with the end date * from the installation date. Following the manufacturer’s warranty, and upon the Covered Machines not being subject to the below, the maintenance services described in Section 1.11 C apply.) The * manufacturer’s Warranty period does not allow for the reimbursement in * of repair costs from the manufacturer to Supplier, therefore there will be no pass through to Gap in *. a. Maintenance Exclusions: After the Covered Machine warranty period expires, Section 1.7 A (a) – (e) above, shall apply to the Supplier provide maintenance services. (Notwithstanding the forgoing, the * will still be covered by Maintenance Services provided that Section 1.7 A (a) – (e) does not apply.) The following shall make a * ineligible for the * warranty, during the Covered Machine warranty period: i. any defect, failure, or damage caused by improper use or inadequate or improper maintenance and care (not caused by Supplier); ii. repair or damage resulting from attempts by personnel other than Supplier or Supplier representatives, excluding attempts to repair during problem determination in accordance with the manufacturer’s or Supplier’s recommended procedures and processes; iii. installation repair, or service of the product unless directed by Supplier or Supplier representatives, excluding attempts to repair during problem determination in accordance with the manufacturer’s or Supplier’s recommended procedures and processes) iv. repair damage (excluding problem determination by Supplier), malfunction, or degradation of performance resulting from improper use or connection to incompatible equipment or memory; * Certain information on this page has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions. v. repair damage, malfunction, or degradation of performance caused by the use of non-like manufacturer supplies or consumables or the use of like manufacturer supplies not specified for use by the manufacturer or by Supplier, with this Covered Machine; vi. not performing product maintenance in accordance with manufacturer published specifications or Supplier instructions; vii. repair damage, malfunction, or degradation of performance resulting from use of the product in an environment not meeting the operating specifications set forth in the product’s documentation. It is agreed that the original installation environment is deemed to be acceptable if installed by Supplier. If the environment is altered after installation by other than Supplier, and Proprietary Informationthe change in the environment causes the need for the repair damage, malfunction, or degradation of performance the warranty coverage will not apply; viii. repair damage, malfunction, or degradation of performance resulting from failure to properly prepare and transport the product as prescribed in published product materials, other than transport of the product or provision of the services rendered by Supplier ix. repair damage, malfunction, or degradation of performance resulting from acts of God or nature, acts of terrorism, explosion, flood, fire, war, and riots; x. replace consumables that have been refilled, are used up, abused, misused, or tampered with in any way, excluding consumables recommended by manufacturer or Supplier. xi. install replacement items that are not considered customer replaceable; xii. support software not supplied by Supplier or Supplier representatives; xiii. provide software or firmware updates or upgrades, that are not manufacturer or Supplier recommended b. Any service identified in the above list, that is outside of Maintenance Services, and provided by Supplier or Supplier representatives at the Gap’s request shall be invoiced to Gap at the labor rates established in Exhibit C.15.2 to the Agreement (excluding parts). Gap will not reimburse Supplier for costs of travel to perform services.