IBM SmartCloud Agreement

Table of Contents

Part 1 - General Terms

This Agreement governs Customer's access to and use of the IBM SmartCloud services ("Services") that IBM makes available to Customer or that Customer orders from IBM's Cloud Web Portal. IBM accepts Customer's order for Services by either 1) signing this Agreement, or 2) providing access to the Services and making Services available for Customer's use.

1. Agreement Structure and Overview

The "Agreement", including Part 1 - General Terms and Part 2 - Country Unique Terms (if applicable), incorporates each of the following Attachments and the Acceptable Use Policy:

  1. "Attachments" means the then current Attachment listed below or an Attachment that references this Agreement providing additional terms and details for each of the Services and include the following:
  • Services Description - describes the Services for each available IBM SmartCloud offering which includes the various Services options available for each Services offering that Customer will be able to order;
  • Services Charges Schedule - describes the charges applicable to each Services offering when Services are acquired from IBM;
  • SC Terms - additional on-line terms applicable for use of Service Component (“SC”) Software IBM makes available as part of the Services that reference to applicable IBM or third party software license agreement(s) governing the use of such Service Components Software within the Services; and
  • Additional Services Order Form - documents Customer's order for additional Services as described in the Services Description which you complete, sign, and submit to IBM as a paper form or electronically;

b. IBM's on-line policy for acceptable Internet use is also part of this Agreement and applies to the Services. The policy can be found at www.ibm.com/services/e-business/aup.html or local language webpage as may be provided in Part 2 of this Agreement ("Acceptable Use Policy").

The current version of the Agreement and applicable Attachments can be obtained by accessing the following webpage http://www.ibm.com/cloud/solutions/viewcontracts and selecting applicable country.

In the event of a conflict, the terms of Attachments prevail over this Agreement, and the latest dated Attachment will prevail over an earlier version of an Attachment, except as may be expressly specified otherwise.

Throughout this Agreement, the term "Agreement" includes applicable Attachments and the Acceptable Use Policy. Attachments are part of this Agreement only for those Services to which they apply.

1.1 On-line Terms and Translations

Attachments and other referenced documents, Acceptable Use Policy, information, and resources may be presented electronically, including on-line, within the Cloud Web Portal or other IBM websites identified by IBM. SC Terms available in the Public Asset Catalog, are available and should be viewed prior to selecting or using any Service Component Software or Service Instance. Customer affirms that it has reviewed the Acceptable Use Policy, all electronically-presented Attachments that are part of this Agreement, and other referenced documents prior to using any of the available Services.

The Cloud Web Portal, information regarding Customer's use of the Services, Account information, Attachments including other referenced documents, and Acceptable Use Policy may be presented only in English and may not be available in Customer's local language. Despite any different allowances or practices of local laws or customs, i) Customer agrees that Customer's acceptance of this Agreement, including Attachments and Acceptable Use Policy, or other referenced documents are valid and binding, and ii) Customer represents that Customer understands terms written in English and agrees that it is an appropriate language to conduct transactions under this Agreement.

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2. Services Acquired from an IBM Business Partner

IBM has agreements with certain organizations (called "IBM Business Partners") to promote and market the Services IBM provides. If Customer purchased these Services from an IBM Business Partner, Customer understands that the IBM Business Partner agreement establishes the price and general business terms at which the IBM Business Partner markets these Services and the IBM Business Partner will communicate such terms directly to Customer. When Services are acquired from an IBM Business Partner, the Charges Schedule Attachment and any prices IBM may publish do not apply and are not part of the Agreement. The remaining terms of this Agreement govern the Services IBM provides when purchased from the IBM Business Partner.

2.1 IBM Business Partner Replacement

In the event that the IBM Business Partner is no longer able to offer IBM Services, for any reason, IBM will so notify Customer in writing upon becoming aware of such event. Customer may continue to receive the Services by notifying IBM in writing that Customer will acquire them from either: i) another IBM Business Partner of Customer's choice (who may require Customer to first execute a separate agreement) who is approved to offer the Services; or ii) IBM under the then current terms of this Agreement, including IBM charges in effect and such written notification deems Customer's acceptance of the Agreement terms that enable IBM to charge and invoice Customer directly and generate invoicing. Customer agrees to provide required information to either the new IBM Business Partner or IBM to transfer administration of the Services. IBM reserves the right to suspend Services or close an Account for any delay or failure by Customer to provide the above notifications.

If Customer no longer wants to receive Services, Customer may terminate as described in the section entitled "Agreement Termination and Closing Account".

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3. Definitions

Account - the Customer account profile and usage information regarding the Services selected and enabled, including User activities.

Account Administrator - a User as assigned by Customer who has administrator access to the Cloud Web Portal for managing User's access to and overseeing the use of the Services for the Account, has the authority to act on Customer's behalf regarding the Services including ordering Services, enabling and disabling Services; and is responsible for communications with IBM and receiving communications from IBM by email or by regularly monitoring postings to the Cloud Web Portal.

APIs - application programming interfaces IBM provides as Service Component which provide programming code to interface with and utilize the Services, including requesting and ordering Services options and Service Components, which bypass IBM Web Portal user interfaces.

Cloud Data Center - a data center facility where IBM provides the Services from and where Service Components are hosted and made available for Customer use.

Cloud Services Focal Point - the IBM contact point(s) as specified by IBM to which Customer directs communications relative to the Services.

Cloud Web Portal - an IBM website designed to enable Customer to use the Services and view available Services options and Account information.

Content - all data, software, Solutions, and information, including, without limitation, any hypertext markup language files, scripts, programs, recordings, sound, music, graphics, images, applets, or servlets that are created, installed, uploaded, or transferred in connection with the Services by Customer, Users, or Solution Recipients. Content also includes information provided by Customer for Account management including User ID and contact information.

Customer - the Enterprise company identified in the signature block or provided during on-line acceptance of this Agreement and its Users.

Customer Business Address - the business address of the Customer identified in signature block or provided during on-line acceptance of the Agreement.

Enabling Software - any software (such as programs, enabling code, utilities, client software, and plug-ins) and documentation IBM provides to Customer to facilitate Customer's access to and use of the Services.

Enterprise - any legal entity (such as a corporation) and the subsidiaries it owns by more than 50 percent.

IBM - International Business Machines Corporation or its Enterprise (or offshore company operating in Customer's country) that makes the Services under this Agreement available for the country of the Customer's Business Address.

Internet - the public worldwide network of TCP/IP-based networks.

Public Asset Catalog - a view within the Services asset catalog of Service Component Software and Service Instances IBM makes available for use within the Services.

SC Terms - terms forming part of this Agreement that are applicable for the use of a Service Component Software.

Service Component - hardware, software, Service Component Software, APIs, tools, and any documentation (electronic or otherwise), IBM utilizes to provide the infrastructure, Cloud Web Portal, and functionality of the Services or that IBM makes available as part of the Services.

Service Component Software - software functionality IBM makes available from the Public Asset Catalog as a Service Component.

Service Instance - a collection of one or more interrelated VM Instances, storage, Service Components, and other Services options that IBM makes available to Customer as part of the Services as specified in either a Service Instance Descriptor or applicable use terms as described in the Service Description.

Service Instance Descriptor - a Service Instance template package consisting of the parameters, software scripts, Service Components, Services options, and documentation required to deploy and manage a customized collection of interrelated Services options, Service Components and Customer Content, as a single unit from the Cloud Web Portal.

Solution - Customer created software application solution Customer makes available to Solution Recipients, using one or more Service Components, in an VM Instance or a Service Instance.

Solution Recipients - any entities or individuals Customer provides with access to a VM Instance or Service Instance to provide a Solution Customer offers.

User - those who access or use the Services using user account identifications associated with Customer’s Account to access the Services within the Cloud Web Portal.

VM Instance - a virtual machine computing instance that IBM makes available to Customer as part of the Services consisting of virtual central processing unit(s) (“CPUs”), virtual memory, and virtual local storage.

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4. Services

Services are provided on a shared infrastructure environment using Service Components hosted in or provided from a Cloud Data Center. IBM's ability to provide the Services is dependent upon Customer managing and performing its responsibilities, at no charge to IBM. Customer is responsible for the use of the Services by Users and the access and use of any Service Components by Solution Recipients, including the actions of any User and Solution Recipients and for ensuring that each User complies with this Agreement, including Attachments, Acceptable Use Policy, and other referenced documents. Customer is responsible for having appropriate agreements with Solution Recipients as set forth below in section 6 (Customer's Agreements with Solution Recipients).

4.1 Services Rights, Access and Use

Subject to the terms of this Agreement, IBM will provide Customer access to and use of the Services. IBM or its suppliers retain all rights, title, and interest in the Service Components. Customer agrees to not i) use, copy, modify, make derivative works based upon, link to, or distribute any portion of the Services or Service Components except as expressly provided in this Agreement; or ii) reverse assemble, reverse compile, or otherwise translate any of the Services or Service Components except as specifically permitted by law without the possibility of contractual waiver.

Customer agrees to use the Service Components only as part of the Services. Customer agrees not to resell direct access to any Services or Service Components without the express written consent of IBM and any attempt to do so is void. Customer may utilize Services to provide a base infrastructure to support a Solution and make it available to Solution Recipients as set forth in section 6 (Customer's Agreements with Solution Recipients).

4.2 Service Component Software

Service Component Software available from the Public Asset Catalog will have a link to applicable SC Terms. Customer agrees that Customer accepts such SC Terms by signing this Agreement or by accessing or otherwise using the Service Component Software. Terms specific to use of Service Instances and any Service Component Software made available from within a Service Instance is described as set forth in the Service Description and will govern use of any such Service Component Software. IBM may update SC Terms or add new Service Component Software or Service Instances and their applicable SC Terms and use terms as set forth in section 8 (Changes).

4.3 Service Component Third Party Software

Third party software, including open source software, may be provided as part of the Services as a Service Component Software. Any such third party software and its use will be licensed in accordance with the applicable third party license agreement (“Third Party Agreement”) or additional IBM licensing terms identified in the Services Description, SC Terms, or otherwise provided to Customer and is for use only within the Services. The Third Party Agreement is an agreement between Customer and the third party software owner or rights holder only. IBM is not a party to any such Third Party Agreement. Customer receives no warranties, indemnities or express or implied patent or other license from IBM with respect to any third party software. IBM’s provision of Services hereunder does not constitute a distribution of the third party software by IBM.

4.4 Enabling Software

If Customer downloads or installs any Enabling Software, Customer agrees not to use such Enabling Software for any purpose other than to facilitate or enable Customer’s access and use of the Services. The Services Description, or SC Terms may include terms applicable to Enabling Software. If Enabling Software is presented with a separate license agreement (for example, the IBM International Program License Agreement (“IPLA”) or other IBM or third party license agreement) at the time of installation or download, such separate agreement will govern its use. If no agreement is presented with the Enabling Software at the time of installation or download, it will be governed by the IBM International License Agreement for Non-Warranted Programs (“ILAN”) as if it is a Supporting Program. The ILAN can be found at http://www.ibm.com/software/sla/sladb.nsf/viewbla/. Customer agrees that Customer accepts such terms by signing this Agreement or downloading, installing, or using the Enabling Software.

4.5 Application Programming Interfaces

APIs may be available to access and use the Services, including requesting and ordering or deleting Services options and Service Components, and are provided as a convenience for the Customer. Customer use of any such API does not relieve Customer of its obligations to use the Services in accordance with the terms of the Agreement and to review applicable SC Terms available in the Public Asset Catalog for any selected Service Component. Customer agrees that by using and executing an API, Customer acknowledges and accepts the terms of this Agreement, including any applicable SC Terms for all Services ordered even though the API bypasses the online terms that would otherwise be presented in the Cloud Web Portal user interface.

IBM may change or delete an API at any time. IBM will post advance notification of any such changes in the Cloud Web Portal or by other means. Customer understands that once an API is changed or deleted it will no longer work and Customer is responsible to update their use of any such API.

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5. Content

5.1 Ownership

Customer (or Users, or Customer's third party suppliers) retains all right, title, and interest in Content. By any party using Customer's Account or Service Components associated with the Account, and adding, creating, installing, uploading, or transferring Content for use in conjunction with the Services, Customer grants IBM and its subcontractors a non-exclusive, worldwide, royalty-free, paid-up, transferable license and approval to host, cache, copy, and display Content for the purpose of and in conjunction with providing the Services for the term of this Agreement. Customer represents that Customer has and will keep in effect during Customer's use of the Services, all licenses and approvals necessary to grant IBM and its subcontractors these rights and that they will be provided at no charge to IBM. Customer is responsible for complying with the terms of any such license agreements including entitlements and permitted uses. Customer represents that by adding, creating, installing, uploading, or transferring Content, or using APIs to do any of the foregoing, for use in conjunction with the Services, Customer is not exceeding any specified entitlement or permitted use or violating applicable license agreements or applicable laws.

Customer agrees to reimburse IBM for any reasonable costs and other amounts that IBM may incur from Customer's failure to obtain these licenses or approvals.

5.2 Content Responsibilities

Customer is solely responsible for all Content, including selection, creation, design, usage, licensing, maintenance, testing, backup, and support. As part of this responsibility, Customer is also responsible for any individual’s personal information or any information Customer considers confidential that is included in the Content. Services or Service Component Software may allow Customer to include within the Content personal information about others. The laws of some jurisdictions may require the consent of individuals prior to including their personal information in the Content or require compliance with laws, rules, and regulations. Customer agrees to comply with all applicable laws, to obtain all necessary consents, and make all necessary disclosures before including personal information in the Content and using the Services..

The Customer acknowledges and agrees that Customer is solely responsible for any personal information that may be contained in the Content, including any information which Customer shares with third parties, and that Customer is and will remain in compliance with applicable data privacy and protection laws. Customer represents that it will not include any personal information in Content, if in doing so Customer could not fulfill any of its obligations stated in section 13.2 (“Compliance with Laws”). Customer acknowledges that IBM does not control the transfer of data over telecommunications facilities, including the Internet..

Customer acknowledges that this Agreement and its Attachments describe the Services and available options Customer may order and any such Services that Customer orders meet Customer requirements, including requirements for Customer to meet its responsibility for processing any personal information.

Customer acknowledges that Customer has reviewed the security features and responsibilities as described in the applicable Services Description and has determined that they meet Customer’s security needs. Customer is solely responsible for determining the appropriate procedures and controls regarding security of Customer’s VM Instances and Service Instances (such as encryption, monitoring or scanning, and backup of all Content) and for the implementation of any such procedures and controls. Customer will have sole root access to Customer’s VM Instances and is responsible for managing Content and access to VM Instances and Service Instances.

5.2.1 Content Access

IBM will not access Customer’s VM Instances or Content except i) when Customer expressly authorizes IBM to do so in connection with use of Services; ii) solely as necessary to provide Services; iii) as specifically described in a Services Description; or iv) to the extent required by law or as necessary to comply with the request of a governmental or regulatory body or order from a court of competent jurisdiction. In the event of any such valid legal or governmental request and to the extent that IBM is reasonably able; IBM will try to provide notice to Customer to enable Customer an opportunity to obtain a protective order.

5.2.2 Content Confidentiality

Customer acknowledges that since the Services use a public Internet environment, IBM cannot commit to particular confidentiality obligations regarding any Content or Customer confidential information Customer adds to or uses in Customer VM Instances or any Service Instance running in a Cloud Data Center. Except as specifically set forth in this section 5.2.2, IBM assumes no additional confidentiality obligations regarding Content, regardless of the terms in the Agreement or any separate confidentiality agreement between Customer and IBM.

For Services options for which IBM specifically has sole root access to manage VM Instances or Services and IBM or subcontractor personnel have direct access to Content as specifically described in the applicable Services Description and such Content is clearly identified as Customer confidential, IBM will, in addition to IBM’s obligations set forth in section 5.2.1 above:

a. use the same care and discretion to avoid disclosure of such Customer confidential information as it uses to avoid disclosure of its own similar information;

b. disclose Customer confidential information only to its employees or employees within its Enterprise who have a need to know to provide the Services; and

c. disclose Customer confidential information to subcontractors who have a need to know to provide the Services and IBM will have appropriate agreements in place with its subcontractors to meet the confidentiality obligations as set forth in this section.

IBM may disclose Customer confidential information to the extent required by law. However, IBM will, to the extent possible, give the Customer prompt notice to allow Customer a reasonable opportunity to obtain a protective order.

IBM is under no obligation for any information Customer identified as Customer confidential that is:

d. already in IBM's possession without obligation of confidentiality;

e. developed independently;

f. obtained from a source other than the exposure during the provision of the Services without obligation of confidentiality;

g. publicly available through no fault of IBM; or

h. disclosed by Customer to another without obligation of confidentiality.

IBM is free to use in its business activities the ideas, concepts and know-how contained in any Content which are retained in the memories of IBM employees who have had access to the Customer confidential information during the performance of the Services.

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6. Customer's Agreements with Solution Recipients

Subject to the terms of this Agreement, IBM hereby grants Customer a non-exclusive, non-transferable right to utilize the Services to support a Solution Customer creates using a VM Instance or Service Instance, or other computing resources and to provide access to such Solution to Solution Recipients. Customer is responsible for having appropriate agreement(s) in place with Customer’s Solution Recipients that: i) include terms and conditions that are no less protective of IBM's interest in the Services than the terms contained herein; and ii) do not provide Solution Recipients with any direct User access to the Cloud Web Portal or APIs, or any sublicensing rights to directly access or use the Services or Service Components, including any Service Component Software.

Without limiting the generality of the foregoing, Customer agrees to include provisions in each agreement with Solution Recipients to the effect that:

a. Solution Recipients represent and warrant that Solution Recipients' use of Customer's Solution within the Services and all Content Solution Recipient may use in conjunction with such use will, at all times, comply with the Acceptable Use Policy located on the Internet at www.ibm.com/services/e-business/aup.html and any subsequent modification;

b. any contractual limitation of liabilities or remedies, monetary or otherwise, apply equally as well to Customer's suppliers and subcontractors;

c. any disclaimer of warranties and indemnities, whether express or implied, and any disclaimer of direct, indirect, consequential, special, incidental, punitive, or other damages apply equally as well to Customer's suppliers and subcontractors; and

d. Solution Recipients acknowledge and agree that Solution Recipients' exclusive remedy for any and all costs or damages arising out of, or relating to, use of Customer's Solution within the Services, is against Customer and not IBM.

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7. Charges and Payment

7.1 Charges and Payment for Services acquired from IBM

7.1.1 Charges

The Charges Schedule will specify the charges for Services based upon one or more of the following types of charges: usage, recurring, or one-time. Customer agrees that the then current charges in effect on the date Customer signs the Agreement will apply for all Services. Customer understands that IBM may from time to time change charges as set forth in section 8.1 (Agreement and Services Changes) and if an announced change is made prior to Customer signing the Agreement, Customer agrees that any such change in charges to existing Services will apply upon the effective date without additional notice to Customer. Charges specified in the Charges Schedule are in the specified currency and are exclusive of any taxes as described below.

Commitments and options selected by Customer and actual usage of the Services will affect the total charges IBM will invoice. Customer agrees to pay all applicable charges and any taxes as specified below for such Services. When Services are acquired from IBM, IBM's invoices will be based upon the following:

a. usage charges will be billed in arrears each month based upon actual use of Services multiplied by the specified unit charge;

b. recurring charges will be billed at the beginning of each charge period (e.g. monthly, quarterly, or annual) and will be prorated for when such Services begins or ends;

c. one-time charges will be billed when such Services are ordered; and

d. applicable taxes as described below.

7.1.2 Payment

Customer will be invoiced on a monthly basis unless the invoiced amount is small, then in such case; IBM may at its discretion combine such amount with a subsequent monthly invoice. Amounts are due upon receipt of invoice and payable as specified in the invoice. Customer agrees to pay accordingly, including late payment fees. Payment may be made electronically to an account specified by IBM or by other means agreed to by the parties.

Where enabled and to the extent permitted by applicable law, credit card payment may be available to Customer to make monthly payments for use of the Services. If available, by providing credit card information, including relevant personal data, for payment of charges, you agree IBM can use such information, including personal data, for purpose of processing payment of charges. IBM will bill applicable charges each month to your credit card on file. Customer is responsible to notify IBM of any changes in credit card information or if Customer wishes to discontinue use of credit card payment and instead pay invoices as described above.

Unless otherwise specified herein, payment is to be made in the currency of the Charges Schedule.

IBM does not give credits or refunds for any charges already due or paid.

7.1.3 Taxes

If any authority imposes a duty, tax, levy, or fee, excluding those based on IBM net income, then Customer is responsible for and agrees to pay that amount as specified in an invoice or supply exemption documentation. If any authority imposes a custom, duty, tax, levy or fee for the import into or export, transfer, access or use of the Services outside the country of the IBM company providing the Services, then Customer will be responsible for and will pay any amount imposed.

7.2 Business Partner Charges and Payment

When Services are acquired from an IBM Business Partner, the IBM Business Partner sets the charges and terms governing charges for the Services and these may differ from the IBM list prices that appear in the Cloud Web Portal, or otherwise published by IBM. Customer understands that IBM may from time to time change prices as set forth in section 8.1 (Agreement and Services Changes). These changes may also affect the charges for Services acquired from an IBM Business Partner.

Customer will make payment directly to the IBM Business Partner for the charges invoiced by the IBM Business Partner per the terms of the agreement between Customer and the IBM Business Partner. Customer understands that IBM may suspend or terminate Customer's Account and access to the Services if the IBM Business Partner fails to pay IBM for Customer use of Services, or if requested by the IBM Business Partner for failure of Customer to pay the IBM Business Partner.

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8. Changes

8.1 Agreement and Services Changes

IBM may from time to time add new Services or options, or in its reasonable discretion, change Agreement terms or withdraw existing Services or options, in whole or in part. IBM will notify Customer of any such new or changed Services, terms or Services withdrawals and the effective date of such by posting a notice to the Cloud Web Portal or providing notice directly to an Account Administrator using current contact information as provided by Customer. Customer is responsible to periodically log into the Cloud Web Portal to review any such change notifications. IBM may withdraw Service Component Software or Service Instances from the Public Asset Catalog at any time without prior notice. For any withdrawal of other Services options or for any change in Agreement terms that affects existing Services, the change will be effective the later of i) 30 days after the date of the notice; ii) the specified effective date; or iii) as may otherwise be specified in an Attachment (for example for automatic renewal Services). Notwithstanding the above, if IBM withdraws the Services in its entirety from the market, IBM will provide at least three months' written notice to Customer.

8.1.1 Acceptance of Changes

Customer acknowledges its agreement to any of the above Agreement or Services changes by i) continuing to use or ordering Services after the effective date of the change, ii) allowing Services to renew after receipt of the change notice; or iii) otherwise by signing (in writing or electronically, where permitted) an applicable revised Attachment or other change authorization mechanism IBM may provide (such as on-line acceptance).

If Customer does not accept a change, Customer is responsible for discontinuing use of affected Services prior to the effective date of the change or providing IBM or the IBM Business Partner, as applicable, with written notice of its intent not to renew at least thirty days prior to a renewal date. If Customer does not discontinue use of affected Services prior to the effective date of the change or fails to provide such notice of Customer's intent not to renew and there is a change in the recurring or usage charges, the new charges will apply and Customer agrees to pay such new charges when Services are acquired from IBM. If Services were acquired from an IBM Business Partner, Customer should check with the IBM Business Partner to determine if there is a change in the recurring or usage charges.

8.2 Changes to IBM Acceptable Use Policy

Changes to IBM's Acceptable Use Policy will be made by posting a new version at www.ibm.com/services/e-business/aup.html or local language webpage where available. Customer agrees to periodically review the website for changes to the Acceptable Use Policy.

Customer agrees to and accepts any modified terms by continuing to use the Services after the changes are posted and effective. A change will take effect upon the effective date specified in such notice or posting.

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9. Warranties and Disclaimers

IBM warrants that it will provide the Services using reasonable care and skill and according to the current description in the Agreement.

9.1 Items Not Covered by Warranty

IBM DOES NOT WARRANT UNINTERRUPTED, SECURE, OR ERROR-FREE OPERATION OF THE SERVICES, SERVICE COMPONENTS, THIRD PARTY SOFTWARE OR ENABLING SOFTWARE OR THAT IBM WILL BE ABLE TO PREVENT THIRD PARTY DISRUPTIONS OF THE SERVICES OR THAT IBM WILL CORRECT ALL DEFECTS. SUBJECT TO ANY STATUTORY WARRANTIES THAT CANNOT BE EXCLUDED, IBM MAKES NO WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, REGARDING THE SERVICES, SERVICE COMPONENTS, THIRD PARTY SOFTWARE, OR ENABLING SOFTWARE, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OR CONDITIONS OF SATISFACTORY QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTY OR CONDITION OF NON-INFRINGEMENT.

SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF EXPRESS OR IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. IN THAT EVENT, SUCH WARRANTIES ARE LIMITED IN DURATION TO THE MINIMUM PERIOD REQUIRED BY LAW. NO WARRANTIES APPLY AFTER THAT PERIOD. SOME STATES OR JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU. YOU MAY HAVE OTHER RIGHTS THAT VARY FROM STATE TO STATE OR JURISDICTION TO JURISDICTION.

THE DISCLAIMERS AND EXCLUSIONS IN THIS SECTION 9 ALSO APPLY TO ANY OF IBM'S PROGRAM DEVELOPERS AND SUPPLIERS.

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10. Term, Termination and Suspension

10.1 Term

The term of this Agreement is effective upon signature and continues until terminated as set forth below.

10.2 Agreement Termination and Closing Account

Customer may terminate this Agreement on written notice to IBM, or to the IBM Business Partner when Services are acquired from an IBM Business Partner. Prior to any such request for termination Customer agrees, and is required, to delete all VM Instances, any Service Instance, Content, and any active Services options. Upon receipt of a termination request, IBM will proceed to close Customer’s Account unless there are any active VM Instances, Service Instance, Customer provisioned storage, or other Services options remaining active in Customer’s Account. If active VM Instances, any Service Instance, provisioned storage, or other Services options remain, IBM will send Customer a termination confirmation request with Account closing instructions. IBM will not close Customer’s Account until IBM receives from Customer a confirmation that all the required closing activities have been completed. Customer understands that charges continue to accrue for all active VM Instances, Service Instance, storage resources, and other active Services options until IBM receives such confirmation. Customer remains responsible to IBM or to the IBM Business Partner, as applicable, for all charges incurred through the effective date of termination and any applicable termination charges.

If Services were acquired from an IBM Business Partner, the IBM Business Partner will determine if i) there are any additional charges associated with termination of Services by Customer, or ii) Customer is eligible for a refund associated with any Services withdrawn by IBM. The IBM Business Partner will notify Customer of any such amount and provide an invoice or refund.

IBM may close Customer's Account and terminate the Agreement if no Services are ordered within any six month period.

10.3 Termination of the Services by IBM

IBM may terminate Customer’s access to Services, in whole or in part, or terminate any VM Instance, Service Instance, or other Services options, or prevent access to any new Services if i) when Services are acquired from IBM, Customer fails to pay charges due as specified in this Agreement or fails to provide Customer’s required funding authorization; ii) when Services are acquired from an IBM Business Partner and the IBM Business Partner fails to pay IBM charges due for Services provided to Customer, or upon IBM Business Partner request for Customer’s failure to pay the IBM Business Partner; iii) in IBM’s sole discretion there is an emergency situation, including but not limited to breach of security; iv) continued provision of Services, in whole or in part or Customer’s use of Services in whole or in part may cause IBM to violate any law, rule, regulation, governmental policy, or court order; v) use of Services in whole or in part, is inconsistent with a contractual commitment or intellectual property right of a third party; vi) Customer materially violates the terms of this Agreement, including providing false Customer Billing Address or other Customer information identified in signature block or provided during on-line acceptance of the Agreement; or vii) there is a violation of the Acceptable Use Policy.

Customer understands that upon termination and Account closing all Content will be deleted.

When Services are acquired from IBM, Customer is responsible for paying all charges due and payable up to the date of termination including applicable termination charges. When Services are acquired from an IBM Business Partner, Customer should contact the IBM Business Partner to determine if additional charges apply.

10.3.1 Suspected Violations

IBM reserves the right to investigate complaints relating to use of the Services by Customer, Users, or someone using Services associated with Customer’s Account, or any potential violation of the terms of this Agreement (including but not limited to the Acceptable Use Policy, SC Terms, or other separate license agreement). Notwithstanding any other terms, policies, or other rights available, IBM may take any action it deems appropriate, including without limitation, disclosing information to enforcement agencies. In addition to any other remedies available to it, IBM reserves the right to:

a. restrict Customer's access to or terminate any of the Services, as described above;

b. require the removal of offending Content; or

c. exercise other rights and remedies available at law or in equity.

Except for an emergency as determined by IBM or as may otherwise be required by law, before undertaking the remedies described in sections 10.3 (Termination of Services by IBM) and 10.3.1 (Suspected Violations), IBM will attempt to notify the Account Administrator by any reasonable practical means under the circumstances, by posting a notice to the Cloud Web Portal or sending an email using contact information provided by Customer. Customer is responsible to immediately backup Content or demonstrate to IBM that the violation has been remedied. Customer is responsible to take such action, at most within three business days.

10.4 Survival

Any terms of this Agreement that by their nature extend beyond the termination of Services remain in effect until fulfilled, and apply to both parties' respective successors and assignees.

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11. Indemnity

Customer agrees to defend IBM and its subcontractors at Customer’s expense, and pay all costs, damages, and reasonable attorneys’ fees that a court finally awards (or which Customer agrees to in any final settlement) for any third party claim or government imposed fines and penalties arising out of or related to i) Content or ii) any violation of this Agreement, including but not limited to the Acceptable Use Policy as described in section 1, section 5 (Content) and section 13.2 (Compliance with Laws) by Customer or any entity using Customer’s Account.

For indemnification under this section 11, IBM will:

a. promptly notify Customer in writing of the claim; and

b. allow Customer to control, and reasonably cooperate with Customer in, the defense and any related settlement negotiations.

Customer agrees to promptly notify IBM of any event or circumstance related to Services, Content or Customer's use of Services, that Customer becomes aware of which could lead to a claim or demand against IBM. Customer agrees to provide all relevant information relating to such event or circumstance to IBM at IBM's request.

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12. Limitation of Liability

The limitations and exclusions in this section 12 (Limitation of Liability) apply to the full extent they are not prohibited by applicable law without the possibility of contractual waiver.

12.1 Items for Which IBM May be Liable

Circumstances may arise where, because of a default on IBM's part or other liability, Customer is entitled to recover damages from IBM. Regardless of the basis on which Customer is entitled to claim damages from IBM (including fundamental breach, negligence, misrepresentation, or other contract or tort claim), IBM's entire liability for all claims in the aggregate arising from or related to Services or otherwise arising under this Agreement will not exceed the amount of any actual direct damages up to the greater of U.S. $25,000 (or equivalent in local currency) or the amount paid (if recurring or usage based, 3 months' charges apply) for the Services that is subject of the claim. If you acquired Services from an IBM Business Partner, such amounts paid are limited to IBM's standard charges.

This limit also applies to any of IBM's suppliers, subcontractors and program developers. It is the maximum for which IBM and its suppliers, subcontractors and program developers are collectively responsible. Damages for bodily injury (including death), and damage to real property and tangible personal property for which IBM is legally liable are not subject to a cap on the amount of damages.

12.2 ITEMS FOR WHICH IBM IS NOT LIABLE

UNDER NO CIRCUMSTANCES IS IBM, ITS SUPPLIERS, SUBCONTRACTORS, OR PROGRAM DEVELOPERS LIABLE FOR ANY OF THE FOLLOWING EVEN IF INFORMED OF THEIR POSSIBILITY:

a. LOSS OF, OR DAMAGE TO, CONTENT;

b. SPECIAL, INCIDENTAL, EXEMPLARY, OR INDIRECT DAMAGES OR FOR ANY ECONOMIC CONSEQUENTIAL DAMAGES; OR

c. LOST PROFITS, BUSINESS, REVENUE, GOODWILL, OR ANTICIPATED SAVINGS.

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13. General Principles of Our Relationship

13.1 Notices

IBM will provide any notice required or permitted under this Agreement to the Account Administrator by email or by posting such notice on the Cloud Web Portal. Unless stated otherwise in this Agreement, notices are effective upon the date they are emailed or posted by IBM. Customer is responsible to have the Account Administrator regularly monitor the Cloud Web Portal and review any notices or other information posted to it regarding Customer's Account.

Notices required or permitted under this Agreement by Customer are to be provided to the Cloud Services Focal Point. Subject to the foregoing, Customer and IBM consent to the use of electronic means, email, and facsimile transmissions to send and receive communications in connection with our business relationship arising out of this Agreement, and such communications are acceptable as a signed writing. For any claim pursuant to section 12 (Limitation of Liability), Customer will additionally provide written notice of such claim addressed to: Legal General Counsel at the IBM Company address identified in the signature block or the on-line contract acceptance registration.

13.2 Compliance with Laws

IBM will comply with laws applicable to IBM generally as a provider of information technology services, subject to the following. IBM will not perform Customer’s regulatory or management obligations and is not responsible for determining the requirements of laws applicable to Customer’s business or Content, including those relating to Services hereunder. The Services are not designed to comply with any particular law or regulations. Customer is solely responsible for complying with laws, rules, and regulations that may be applicable to Content and Customer’s use of the Services. Customer agrees not to place or allow any Content within the Services that require or impose any legal or regulatory compliance by IBM.

Regardless of where Customer or Users are located when accessing the Services, Customer agrees to comply with all applicable export and import laws and regulations, associated embargo and sanctions regulations and prohibitions on export for certain end uses or by any prohibited end users. Customer represents that Content will not, in whole or part, be controlled under the U.S. International Traffic in Arms Regulation (ITAR). Customer is prohibited from exporting, re-exporting, diverting transfer, disclosing or permitting access to any portion of the Services, Enabling Software, Content, or related technical information, directly or indirectly, in violation of such export and import laws and regulations.

IBM will publish the Cloud Data Center location(s) in the Cloud Web Portal. Customer will be notified of available Cloud Centers for Services options and, where available, be able to select which Cloud Data Center orderable Services will be delivered from. Customer acknowledges that IBM may use global resources (non-permanent residents used locally and personnel in locations worldwide) to remotely support the delivery of Services. Customer represents that no Content accessible to IBM for the Services will require an export license or is restricted from export to any IBM global resource or personnel under applicable export control laws.

Customer represents that Customer is not subject, either directly or indirectly (by affiliation or any other connection with another party), to any order issued by any agency of the United States Government revoking or denying, in whole or in part, Customer's United States export privileges. Customer agrees to notify IBM immediately if Customer becomes subject to any such order.

Notwithstanding anything in this Agreement to the contrary, neither party is obligated to take any action that would violate applicable law.

13.3 Assignment

Neither party may assign this Agreement, in whole or in part, without the prior written consent of the other. Any attempt to assign without consent is void. The assignment of this Agreement, in whole or in part, within the Enterprise of which either party is a part or to a successor organization by merger or acquisition does not require the consent of the other. IBM is also permitted to assign its rights to payments without obtaining Customer's consent. It is not considered an assignment for IBM to divest a portion of its business in a manner that similarly affects all of its customers.

13.4 Other Principles of Our Relationship

a. Neither party grants the other the right to use its (or any of its Enterprise's) trademarks, trade names, or other designations in any promotion, publication, or website without prior written consent or as expressly provided in this Agreement.

b. This Agreement and Services provided under it do not create an agency, joint venture, or partnership between Customer and IBM. Each party is free to enter into similar agreements with others to develop, acquire or provide competitive services.

c. Each party grants only the licenses and rights specified in this Agreement. No other licenses or rights (including licenses or rights under patents) are granted either directly, by implication, by estoppel or otherwise.

d. No right or cause of action for any third party is created by this Agreement or the Services, nor is IBM responsible for any third party claims against Customer except as permitted by section 12 (Limitation of Liability) above for bodily injury (including death) or damage to real or tangible personal property for which IBM is legally liable to that third party.

e. Customer authorizes International Business Machines Corporation and its subsidiaries (and their successors and assigns, contractors and IBM business partners) to store and use Customer's business contact information wherever they do business, in connection with IBM products and services or in furtherance of IBM's business relationship with Customer.

f. IBM, including its suppliers or subcontractors, may use information regarding Customer's usage of Services to validate compliance with the terms of the Agreement or an applicable Third Party Agreement.

g. Customer is responsible for selecting Services that meet Customer's needs and the results obtained from Customer's use of the Services.

h. Unless otherwise required by applicable law without the possibility of contractual waiver or limitation, i) neither party will bring a legal action, regardless of form, arising out of or related to this Agreement or the Services more than two years after the cause of action arose; and ii) after such time limit, any legal action arising out of this Agreement or the Services and all respective rights related to any such action lapse.

i. Neither party is responsible for failure to fulfill any non-monetary obligations due to events or causes beyond its control.

j. Neither party is relying on any representation that is not specified in this Agreement including without limitation any representations concerning: i) total charges for the Services or ii) the experiences or recommendations of other parties; or iii) results or savings you may achieve.

k. IBM is responsible for providing the Services and IBM's obligations are as described in this Agreement. IBM may use subcontractors and to the extent IBM utilizes any subcontractors, IBM will have proper agreements in place to allow and enable IBM to provide the Services and meet its obligations.

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14. Geographic Scope and Governing Law

Regardless of where Customer or Customer's End Users or Solution Recipients are located, Services are being provided by the IBM company that makes the Services available in the country of Customer Business Address.

Although IBM does not prohibit Customer or Customer's End Users or Solution Recipients from using the Services outside the country of Customer Business Address, Customer may enforce its rights under this Agreement only in the country of the Customer Business Address.

Both parties agree to the application of laws of the country of the Customer Business Address to govern, interpret, and enforce all of Customer's and IBM's respective rights, duties, and obligations arising from, or relating in any manner to, the subject matter of this Agreement, without regard to conflict of law principles.

If any provision of this Agreement is held to be invalid or unenforceable, but would be valid and enforceable if appropriately modified, then such provision will apply with the modification necessary to make it valid and enforceable consistent with its objective. In any case, the remaining provisions of this Agreement remain in full force and effect.

Nothing in this Agreement affects any statutory rights of consumers that cannot be waived or limited by contract.

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Part 2 - Country-unique Terms

For the country of the Customer Business Address the following terms replace or modify the referenced terms in Part 1. All terms in Part 1 that are not changed by these amendments remain unchanged and in effect. This Part 2 is organized as follows:

  • Americas country amendments to other Agreement terms;
  • Asia Pacific country amendments to other Agreement terms; and
  • Europe, Middle East, and Africa country amendments to other Agreement terms.

15. AMERICAS COUNTRY AMENDMENTS

15.1 Multi-country

15.1.1 Part 1 General Terms, opening paragraph

ALL OF LATIN AMERICA

The following sentence replaces the second sentence of this paragraph

IBM accepts Customer's order to establish an Account on the Cloud Web Portal for Customer to access the Services by signing this Agreement and IBM accepts orders for Services Customer places using the Account from the Cloud Web Portal by making Services available for Customer's use.

The following sentence is added to this section:

Either party (the Client or IBM), at any time of the service, can ask the other party to provide the physical signature of the contract that is accepted electronically

15.1.2 Section 1.2 ( On-line Terms and Translations)

ALL OF LATIN AMERICA

The following sentence is added to the beginning of the second paragraph:

Customer acknowledges the Agreement, Service Description, Charges Schedule and Additional Services Order Form presented for Customer acceptance were provided in local language.

15.1.3 Section 7.1.1 (Charges)

For Argentina, Chile, and Columbia

The following sentence is added:

Charges quoted in US Dollars will be invoiced in the equivalent local currency amount using the official central bank selling rate.

15.1.4 Section 7.1.2 (Payment)

For Ecuador, Mexico, Peru, and Uruguay

The following is added to the first paragraph:

Customer agrees to pay accordingly, including any late payment fee. The late payment fee is calculated and payable in US dollars at two percent (or the maximum rate allowed by local law if such is less than two percent) of the delinquent amount due per each thirty day period during which any delinquent balance remains unpaid. If Customer is a government agency, payment may be made in equivalent local currency using the official central bank selling rate on the date of invoice.

For Argentina, Chile, and Columbia

The following paragraph is added

Customer agrees to pay accordingly, including any late payment fee. The late payment fee is calculated at two percent (or the maximum rate allowed by local law if such is less than two percent) of the delinquent amount due per each thirty day period during which any delinquent balance remains unpaid.

15.1.5 Section 14 (Geographic Scope and Governing Law)

In the third paragraph pertaining to governing law, the phrase in the first sentence, "the laws of the country of the Customer Business Address" is replaced with the following for the countries below:

a. in Canada: the laws in the Province of Ontario;

b. in the United States, Anguilla, Antigua/Barbuda, Aruba, British Virgin Islands, Cayman Islands, Dominica, Grenada, Guyana, Saint Kitts and Nevis, Saint Lucia, Saint Maarten, and Saint Vincent and the Grenadines: the laws of the State of New York, United States.

15.1.6 Section 14 (Geographic Scope and Governing Law)

The following paragraph pertains to jurisdiction and is added to section 14 as it applies for those countries identified in bold below:

All rights, duties, and obligations are subject to the courts of the country for the Customer's Business Address, except that in the countries identified below all disputes arising out of or related to this Agreement, including summary proceedings, will be brought before and subject to the exclusive jurisdiction of the following courts of competent jurisdiction:

a. in Argentina: the Ordinary Commercial Court of the city of Buenos Aires;

b. in Brazil: the court of Rio de Janeiro, RJ;

c. in Chile: the Civil Courts of Justice of Santiago;

d. In Colombia: the Ordinary Civil judges of city of Bogota

e. in Ecuador: the civil judges of Quito for executory or summary proceedings (as applicable);

f. in Mexico: the courts located in Mexico City, Federal District;

g. in Peru: the judges and tribunals of the judicial district of Lima, Cercado;

h. in Uruguay: the courts of the city of Montevideo; and

i. in Venezuela: the courts of the metropolitan area of the city of Caracas.

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15.2 Argentina

15.2.1 Section 7.1.1 (Charges)

The following paragraphs are added to this section as new paragraphs:

The Client accepts that charges and/or prices expressed in United States Dollars (“Dollars”) are owed in such currency. The parties agree that the invoice will indicate the owed amount in Dollars (“Debt in Dollars”) as well as the referential amount in the legal currency of the Republic of Argentina (“Pesos”), resulting from the application to such Debt in Dollars of the exchange rate for wires of the previous day to the issuance of the invoice (in case there is no exchange rate on that day, the applicable exchange rate will be the one of the day the market closed) informed by the “BNA” or Banco de la Nación Argentina (the “Invoice Exchange Rate”). The exchange rate for wires informed by BNA corresponding to the Day of Down Payment or to the day of re-opening of the exchange market, in case in the first mentioned day there was no exchange market, will be considered as the “Cancelling Exchange Rate”.

The payment of the invoices with amounts expressed in Dollars, when not made in Dollars, will be considered as a down payment (“Down Payment”).

It is understood as Day of Down Payment, the day on which IBM has effective and unrestricted disposal of the funds given as Down Payment and as Day of Payment of the Debt in Dollars, the day on which IBM has effective and unrestricted disposal of the payment made in Dollars for an equivalent amount to the Debt in Dollars (in both cases, in case of payment by check or by any other payment order made by the Client, it will be the day of effective accrual in the bank account of IBM of the involved amounts).

In case of a Down Payment, IBM will issue in Pesos a Debit Note (DN) or Credit Note (CN), as it may correspond, when the following conditions are jointly met: (i) there is in favor of IBM or the Client a difference greater than one percent (1%) between the amount of the Debt in Dollars applying the Invoice Exchange Rate and the amount of the Debt in Dollars applying the Cancelling Exchange Rate, and (ii) the difference indicated in (i) is greater to the amount of Two Hundred Dollars (USD 200) calculated according to the Cancelling Exchange Rate. In case of any difference for exchange rate that may be lesser than the one stipulated in this clause will not be claimed by any of the parties.

In case of issuance of CN, the Client will be able to allocate them to the payment of any invoice that may be issued by IBM after such Credit Note in connection with this agreement. In case there are not owed amounts by the Client in connection with this agreement so as to allocate such CN(s), IBM will pay to the Client the amounts resulting from those CN, after their submission to IBM, within thirty (30) days counted as from the expiration of this agreement.

Full payment of the Debt in Dollars will be considered when the payment is made within the Term of payment and (a) no DN are issued as there are no exchange rate differences that meet both criteria set forth hereinabove; (b) when the Client makes a Down Payment plus the sums indicated in the respective DN (the latter within a thirty (30) days term, counted as from the date if issuance of the Debit Note), or (c) when the Client makes a full payment in Dollars.

15.2.2 Section 7.1.2 (Payment)

The following is added after the first paragraph:

Invoiced amounts must be paid within thirty (30) days counted as from the date of issuance of the respective invoice.

In case of lack of payment in term (late payment) Client will automatically incur in payment delay, owing as well as the amount due, a punitive interest set forth according to the rate collected by BNA when performing document discount operations in thirty (30) days periods, Annual Due Nominal Rate, plus the equivalent to one hundred percent (100%) of such amount that will accumulate to the mentioned punitive interest as concept of penal clause.

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15.3 BRAZIL

15.3.1 Section 7.1.1 (Charges)

The following is added as a new paragraph:

The prices of the Services indicated in the invoices that are the object of this Agreement include all applicable taxes.

It is nevertheless expressly agreed between IBM and the Customer that, in case there is any change to the rate and/or the form of calculation and/or the base of calculation and/or the form of payment and/or the incidence of taxes on items included in the cost of Services and/or any other legal aspect related to taxes applicable on the invoice date, as well as if a new tax is created and applies to the operation, the contracted prices will be reviewed in order to reflect the increase or decrease that effectively happened.

Similarly, if there is a change to the locations originally planned of origin/destination of provision of Services and/or a change in tax classification of the Services, the prices invoiced will be modified to reflect the increase or decrease of rate of applicable taxes.

15.3.2 Section 7.1.2 (Payment)

The following is added to the first paragraph:

Customer agrees to pay late payment fee. Delinquent amounts are subject to monetary correction based on the inflation index called the "General Price Index" calculated by Getulio Vargas Foundation (IGP-M/FGV), plus interest at the rate of one percent per month, both calculated "pro rata die." The late payment fee is calculated against the resultant delinquent amount at the following rates:

a. two percent of the delinquent amount due per the first thirty day period during which any delinquent balance remains unpaid, plus

b. ten percent for each successive thirty day period during which any delinquent balance remains unpaid.

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15.4 CANADA

15.4.1 Section 1.2 (On-line Terms and Translations)

The following sentence is added to section 1.2:

Both of us agree to write these documents in English. Les parties ont convenu de rédiger les présent documents en langue anglaise.

15.4.2 Section 5.2 (Content Responsibilities)

The following sentence is added to section 5.2:

Customer data may be available to the U.S. government or its agencies under a lawful order made in that country if Customer selects to provision Instance outside Canada."

15.4.3 Section 7.1.3 (Taxes)

The following paragraph is added:

Tax Benefit Allocation

Where applicable, charges for the Services are subject to taxes based upon the location(s) Customer identifies as receiving benefit of the Services. Customer is responsible for providing to IBM the business address for the Customer location(s) that Customer determines receives the benefit of the Services to enable IBM to calculate applicable taxes which IBM is responsible to collect. Customer represents that the business address Customer lists in the signature block or on-line contract acceptance registration is Customer's primary business address receiving benefit of the Services. If Customer determines any other Customer location receives benefit of the Services, Customer agrees to provide any such additional information to IBM. Customer is responsible for keeping such information current and providing any changes to IBM throughout the term of the Agreement. Customer agrees to reimburse IBM for any reasonable costs, additional taxes, penalties, interest, or other amounts that IBM may incur from inaccurate or incomplete information.

15.4.4 Section 12.1 (Items for Which IBM May be Liable)

The following replaces the last sentence of the second paragraph of section 12.1 (Items for Which IBM May be Liable):

Damages for bodily injury (including death) and physical harm to real property and tangible personal property caused by IBM's negligence are not subject to a cap on the amount of damage.

15.4.5 Section 13.2 (Compliance with Laws)

The following replaces the second paragraph in its entirety:

Regardless of the location of you or your users when accessing Services, you agree to comply with all applicable export and import laws and regulations, including those of that apply to goods of United States origin and those regarding embargo and sanctions regulations and prohibitions that prohibit or limit export for certain uses or to certain users.

15.4.6 Section 13.4 (Other Principles of Our Relationship)

The following replaces item d:

d. No right or cause of action for any third party is created by this Agreement or any Service under it, nor is IBM responsible for any third party claims against you except as permitted by the Limitation of Liability section above for bodily injury (including death) or physical harm to real or tangible personal property caused by IBM's negligence for which IBM is legally liable to that third party.

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15.5 Chile

15.5.1 Section 7.1.1 (Charges)

The following paragraphs are added to this section as new paragraphs:

If charges are expressed to be paid in dollars of the United States of America, such values will be payable by the Client in such currency or in their equivalent to Chilean national currency at the moment of payment, according to the exchange rate “Dólar Observado” published by the Central Bank of Chile, as referred in the number 6 of the Chapter I of the “Compendio de Normas de Cambios Internacionales” of the Central Bank of Chile. In case that in the future the method or the base for the calculation of the exchange rate is modified or altered, the exchange rate that will be applied to the payment of the values expressed in dollars, will be the one used for the remittance of dividends and net earnings outside the country.

IBM will issue the invoice in Chilean national currency according to the exchange rate denominated “Dólar Observado” at the date of its issuance.

After the date of payment of the above mentioned invoice, IBM will issue a Credit or Debit Note for any difference originated in any variation in the exchange rate of the Dólar Observado that could have occurred between the date of issuance of the invoice and the date of payment of the same and that as a consequence has a variation, in the amount invoiced in Pesos, equivalent or greater than 500 dollars of the United States of America. The difference generated because of the above mentioned variation in the exchange rate will be calculated comparing the value in dollars equivalent to the invoiced Pesos according to the exchange rate of the Dólar Observado of the date of issuance of the invoice, with the dollars equivalent to the Pesos paid by the Client according to the exchange rate of the Dólar Observado at the date of payment.

The parties agree with respect to the Credit Notes, additionally to the already defined conditions, that these will be issued only in case that the invoice that originates the difference because of the variation of the exchange rate would have been paid within the term given. On the contrary, IBM will not issue any Credit Note.

The term to pay the Debit Note by the Client in the offices of IBM or in the place it designates will be of thirty (30) days counted from the date the same was issued. Its nonpayment will generate Late Payment fees calculated within the maximum rate allowed by law.

15.5.2 Section 7.1.2 (Payment)

The following is added after the first paragraph:

If the Customer does not pay the charges, in the offices of IBM or the place that IBM designates, within the payment term, without necessity of legal requirement, IBM will have the right to be paid as a compensation, a late payment fee that will be calculated applying the maximum interest rate allowed by Law, for the whole period between the date in which the payment should have been made and the time that the payment was actually made, without prejudice of the right to terminate the contract, in which case IBM can demand the payment of the total amount earned up to the date of termination, also adding the indicated late payment fee.

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15.6 JAMAICA

15.6.1 Section 7.1.1 (Charges)

The following paragraph is added:

Charges quoted and invoices will be in US Dollars and payment can be made in either US Dollars or can be made in Jamaican currency at the prevailing published weighted average Fx rate as published by Bank of Jamaica on the date of invoice.

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15.7 PERU

15.7.1 Section 12 (Limitation of Liability)

The following is added to the end of section 12 (Limitation of Liability):

Except as expressly required by law without the possibility of contractual waiver, Customer and IBM intend that the limitation of liability in this Limitation of Liability section applies to damages caused by all types of claims and causes of action. If any limitation on or exclusion from liability in this section is held by a court of competent jurisdiction to be unenforceable with respect to a particular claim or cause of action, the parties intend that it nonetheless apply to the maximum extent permitted by applicable law to all other claims and causes of action.

15.7.2 Section 12.1 (Items for Which IBM May be Liable)

The following is added at the end of this subsection 12.1:

In accordance with Article 1328 of the Peruvian Civil Code, the limitations and exclusions specified in this section will not apply to damages caused by IBM's willful misconduct ("dolo") or gross negligence ("culpa inexcusable").

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15.8 TRINIDAD and TOBAGO

15.8.1 Section 7.1.1 (Charges)

The following paragraph is added:

Charges quoted and invoices will be in US Dollars and payment will be in Trinidad and Tobago currency at the prevailing Central Bank selling rate for Trinidad and Tobago on the date of payment. "

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15.9 UNITED STATES OF AMERICA

15.9.1 Section 7.1.2 (Payment)

The following replaces the first and second sentence of the first paragraph:

Customer will be invoiced on a monthly basis unless the invoiced amount is small, then in such case, IBM may at its discretion combine such amount with the subsequent monthly invoice. Amounts are due upon receipt of invoice and payable within 30 days.

15.9.2 Section 7.1.3 (Taxes)

The following paragraph is added:

Tax Benefit Allocation

Where applicable, charges for the Services are subject to taxes based upon the location(s) Customer identifies as receiving benefit of the Services. Customer is responsible for providing to IBM the business address for the Customer location(s) that Customer determines receives the benefit of the Services to enable IBM to calculate applicable taxes which IBM is responsible to collect. Customer represents that the business address Customer lists in the signature block or on-line contract acceptance registration is Customer's primary business address receiving benefit of the Services. If Customer determines any other Customer location receives benefit of the Services, Customer agrees to provide any such additional information to IBM. Customer is responsible for keeping such information current and providing any changes to IBM throughout the term of the Agreement. Customer agrees to reimburse IBM for any reasonable costs, additional taxes, penalties, interest, or other amounts that IBM may incur from inaccurate or incomplete information.

15.9.3 Section 13 (General Principles of Our Relationship)

The following is added to section 13.4 as item 13.4.i:

U.S. Government Users Restricted Rights - Use, duplication or disclosure is restricted by the GSA IT Schedule 70 Contract with the IBM Corporation.

The following is added to item 13.4 f:

Each party waives any right to a jury trial in any proceeding arising out of or related to this Agreement or any Service.

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15.10 VENEZUELA

15.10.1 Section 7.1.2 (Payment)

The following is added to the end of first paragraph:

Customer agrees to pay accordingly, including any late payment fee. The late payment fee is calculated at two percent (or the maximum rate allowed by local law if such is less than two percent) of the delinquent amount due per each thirty day period during which any delinquent balance remains unpaid.

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16. ASIA PACIFIC COUNTRY AMENDMENTS

16.1 Multi-country

16.1.1 HONG KONG SAR, MACAU SAR AND TAIWAN

As applies to Services in Taiwan and the special administrative regions, phrases throughout this Agreement containing the word "country" (for example, "the country of the Customer's business address" is replaced with the following:

a. in Hong Kong SAR: "Hong Kong SAR;"

b. in Macau SAR: "Macau SAR" except in the Governing Law for Asia Pacific in Part 2, section 1.3.2 above; and

c. in Taiwan: "Taiwan."

16.1.2 Section 7.1.2 (Payment)

For Indonesia, Vietnam, Malaysia, Philippines, Singapore, India, and Thailand

The following replaces the first paragraph:

Amounts are due upon receipt of the IBM invoice and payable no later than 30 days after the date of the invoice ("Payable Date"). If not paid by the Payable Date, a late payment fee will be applied on the amount outstanding, at the rate set forth below for specified country, calculated on the number of days the payment is received late:

a. for Indonesia, Vietnam, Malaysia, Philippines, Singapore, and India: 2% per month; and

b. for Thailand: 1.25% per month.

16.1.3 Section 14 (Geographic Scope and Governing Law)

In the third paragraph pertaining to governing law, the phrase in the first sentence, "the laws of the country of the Customer Business Address" is replaced with the following for the countries below:

a. in Cambodia and Laos: the laws of the State of New York, United States;

b. in Australia: the laws of the State or Territory in which the transaction is performed;

c. in Hong Kong SAR and Macau SAR: the laws of Hong Kong Special Administrative Region ("SAR"); and

d. in Taiwan: the laws of Taiwan.

16.1.4 Section 14 (Geographic Scope and Governing Law)

The following terms pertain to arbitration and are added to section 14 as they apply for the countries identified in bold print below. The provisions of these paragraphs apply to the extent permitted by the applicable governing law and rules of procedure:

a. In Cambodia, India, Indonesia, Laos, Philippines, and Vietnam:

Disputes arising out of or in connection with this Agreement will be finally settled by arbitration which will be held in Singapore in accordance with the Arbitration Rules of Singapore International Arbitration Center ("SIAC Rules") then in effect. The arbitration award will be final and binding for the parties without appeal and will be in writing and set forth the findings of fact and the conclusions of law.

The number of arbitrators will be three, with each side to the dispute being entitled to appoint one arbitrator. The two arbitrators appointed by the parties will appoint a third arbitrator who will act as chairman of the proceedings. Vacancies in the post of chairman will be filled by the president of the SIAC. Other vacancies will be filled by the respective nominating party. Proceedings will continue from the stage they were at when the vacancy occurred.

If one of the parties refuses or otherwise fails to appoint an arbitrator within 30 days of the date the other party appoints its, the first appointed arbitrator will be the sole arbitrator, provided that the arbitrator was validly and properly appointed.

All proceedings will be conducted, including all documents presented in such proceedings, in the English language. The English language version of this Agreement prevails over any other language version.

b. In the People's Republic of China:

In case no settlement can be reached, the disputes will be submitted to China International Economic and Trade Arbitration Commission for arbitration according to the then effective rules of the said Arbitration Commission. The arbitration will take place in Beijing and be conducted in Chinese. The arbitration award will be final and binding on both parties. During the course of arbitration, this agreement will continue to be performed except for the part which the parties are disputing and which is undergoing arbitration.

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16.2 AUSTRALIA

16.2.1 Section 7.1.2 (Payment)

The following sentences replace the first two sentences of first paragraph in section 7.1.2 (Payment):

If you fail to pay invoices within 30 days of the invoice date, IBM is entitled to suspend the provision of Services and to charge interest at a rate of 2% per month on amounts overdue until paid.

16.2.2 Section 7.1.3 (Taxes)

The following sentences replace the first two sentences of section 7.1.3 (Taxes):

Unless otherwise expressly stated, all prices or other sums payable or consideration to be provided under or in accordance with this agreement are exclusive of goods and services tax imposed in Australia ("GST"). If GST is imposed on any supply made under or in accordance with this agreement, the recipient of the taxable supply must pay to the supplier an additional amount equal to the GST payable on or for the taxable supply subject to the recipient receiving a valid tax invoice in respect of the supply at or before the time of payment. Payment of the additional amount must be made at the same time as payment for the taxable supply is required to be made in accordance with this agreement.

16.2.3 Section 9.1 Items not covered by Warranty

The following is added to the end of section 9.1:

The warranties and guarantees specified in this Agreement are in addition to any rights a party may have under the Competition and Consumer Act 2010 or other legislation and are only limited to the extent permitted by the applicable legislation. Where you are a "consumer".

16.2.4 Section 12 Limitation of Liability

The following is added to this section:

Where IBM is in breach of a guarantee or warranty implied by the Australian Consumer Law, IBM's liability is limited to, at IBM's discretion:

a. for goods:

  1. the repair or replacement of the goods or the supply of equivalent goods;
  2. the payment of the cost of replacing the goods or having the goods repaired; and

b. for services:

  1. the supplying of the services again; or
  2. the payment of the cost of having the services supplied again.

Where a guarantee relates to the right to sell, quiet possession or clear title of a good under the Australian Consumer Law, or the goods or services are of a kind ordinarily acquired for personal, domestic, or household use or consumption, then none of the limitations in this section apply. Australian Consumer Law means schedule 2 of the Competition and Consumer Act 2010 (Cth).

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16.3 INDONESIA

16.3.1 Section 7.1.1 (Charges)

The following paragraph is added:

Charges quoted and IBM invoices will be in US Dollars and payments shall be made in the US Dollar equivalent of Indonesia Rupiah (IDR) using the selling rate as published by the Indonesia Bank on the date of payment.

16.3.2 Section 10 (Term, Termination and Suspension)

The following paragraph is added:

Both parties waive the provision of article 1266 of the Indonesian Civil Code, to the extent the article provision requires such court decree for the termination of an agreement creating mutual obligations.

16.3.3 Section 14 (Geographic Scope and Governing Law)

Add the following as a new paragraph:

For the Agreement and Attachments made available in the English and Indonesian languages, to the extent permitted by the prevailing law, the English language will prevail in the case of any inconsistencies or differences of interpretation with the Indonesian language.

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16.4 JAPAN

16.4.1 Section 10.2 (Agreement Termination and Closing Account)

The following is added as a second paragraph:

When all or a substantial portion of either party's assets, credits or business are so changed as to make continued performance of that party's obligations impracticable or impossible, the other party may terminate this Agreement with prior notice.

16.4.2 Section 10.3 (Suspension or Termination of the Services by IBM)

The following is added at the end of the second paragraph:

Any doubts concerning this Agreement will be initially resolved between us in good faith and in

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16.5 MALAYSIA

16.5.1 Section 7.1.3 (Taxes)

Replace the first sentence of the paragraph with the following sentence:

If any authority imposes a duty, tax, levy, or fee, excluding those based on IBM net income, then Customer is responsible for and agrees to pay that amount as specified in an invoice or supply exemption documentation or as prescribed by the relevant authority (including without limitation, stamp duty).

16.5.2 Section 12.2 (Items for Which IBM Is not Liable)

The word "SPECIAL" in item b is deleted.

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16.6 NEW ZEALAND

16.6.1 Section 12 (Limitation of Liability)

The following is added:

Where Services are not obtained for the purposes of a business as defined in the Consumer Guarantees Act 1993, the limitations in this section are subject to the limitations in that Act.

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16.7 PEOPLE'S REPUBLIC OF CHINA

16.7.1 Section 7 (Charges)

The following is added:

All banking charges incurred in the People's Republic of China will be borne by you and those incurred outside the People's Republic of China will be borne by IBM.

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16.8 PHILIPPINES

16.8.1 Section 12.2 (Items for Which IBM Is not Liable)

The following replaces the terms of item 12.2b:

b. special (including nominal and exemplary damages), moral, incidental, or indirect damages or for any economic consequential damages; or

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16.9 SINGAPORE

16.9.1 Section 12.2 (Items for Which IBM Is not Liable)

The words "SPECIAL" and "ECONOMIC" are deleted from item.12.2 b.

16.9.2 Section 13.4 (Other Principles of Our Relationship)

The following replaces the terms of item 13.4 d:

Subject to the rights provided to IBM's subcontractors and program developers as provided in section 12 (Limitation of Liability) above, a person who is not a party to this Agreement will have no right under the Contracts (Right of Third Parties) Act to enforce any of its terms.

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16.10 TAIWAN

16.10.1 Section 7.1.2 (Payment)

The following is added to the end of the first paragraph:

Amounts are due upon receipt of invoice (the "Due Date") and payable within 30 days of IBM invoice date (the "Payable Date"). If Customer fails to pay invoices by the Payable Date, IBM is entitled to charge a late payment fee calculated from the next day of the Due Date at a rate of 20% per year on amounts overdue until paid.

16.10.2 Section 12.1 (Items for Which IBM may be Liable)

The following sentences are deleted in the second paragraph:

This limit also applies to any of IBM's suppliers, subcontractors and program developers. It is the maximum for which IBM and its suppliers, subcontractors and program developers are collectively responsible.

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16.11 THAILAND

16.11.1 Section 7.1.3 (Taxes)

Add after the first sentence the following sentence:

Customer shall promptly provide IBM with any such exemption documentation and any withholding tax certificate/receipt for the application of withholding tax.

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16.12 VIETNAM

16.12.1 Section 7.1.1 (Charges)

The following paragraph is added:

Charges quoted in US Dollars will be invoiced in Vietnam Dong (VND) and payments shall be made in the US Dollar equivalent using the spot rate (Selling rate) published by VIETCOMBANK on the date of payment. The VND equivalent reflected in IBM's invoice shall only be used for VAT purpose and shall not constitute the final amount payable by Customer.

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17. EUROPE, MIDDLE EAST, AFRICA (EMEA) COUNTRY AMENDMENTS

17.1 Multi-Country

17.1.1 Section 9 (Warranty and Disclaimers)

EUROPEAN UNION MEMBER STATES

The following is added to Section 9 (Warranty and Exclusion):

In the European Union ("EU"), consumers have legal rights under applicable national legislation governing the sale of consumer goods. Such rights are not affected by the provisions set out in this Section 9 Warranty and Disclaimers.

17.1.2 Section 12 (Limitation of Liability)

For BELGIUM AND LUXEMBOURG

The following replaces the terms of section 12 (Limitation of Liability) in its entirety:

Except as otherwise provided by mandatory law:

12.1 Items for Which IBM May Be Liable

IBM's entire liability for all claims in the aggregate for any damages and losses that may arise as a consequence of the fulfillment of its obligations under or in connection with this Agreement or due to any other cause related to this Agreement is limited to the compensation of only those damages and losses proved and actually arising as an immediate and direct consequence of the non-fulfillment of such obligations (if IBM is at fault) or of such cause, for a maximum amount equal to the charges (if recurring or usage based up to three months' charges) you paid for the Service that has caused the damages.

The above limitation will not apply to damages for bodily injuries (including death) and damages to real property and tangible personal property for which IBM is legally liable.

12.2 Items for Which IBM Is Not Liable

UNDER NO CIRCUMSTANCES IS IBM OR ANY OF ITS SUBCONTRACTORS OR PROGRAM DEVELOPERS LIABLE FOR ANY OF THE FOLLOWING, EVEN IF INFORMED OF THEIR POSSIBILITY: 1) LOSS OF, OR DAMAGE TO, CONTENT; 2) INCIDENTAL, EXEMPLARY OR INDIRECT DAMAGES, OR FOR ANY ECONOMIC CONSEQUENTIAL DAMAGES; AND / OR 3) LOST PROFITS, BUSINESS, REVENUE, GOODWILL, OR ANTICIPATED SAVINGS, EVEN IF THEY ARISE AS AN IMMEDIATE CONSEQUENCE OF THE EVENT THAT GENERATED THE DAMAGES.

12.3 Suppliers and Program Developers

The limitation and exclusion of liability herein agreed applies not only to the activities performed by IBM but also to the activities performed by its subcontractors and program developers, and represents the maximum amount for which IBM as well as its subcontractors and program developers are collectively responsible.

17.1.3 Section 13.2 (Compliance with Laws)

EU MEMBER STATES AND THE COUNTRIES IDENTIFIED BELOW

Iceland, Liechtenstein, Norway, Switzerland, Turkey, and any other European country that has enacted local data privacy or protection legislation similar to the EU model.

The following is added to Section 13.2 (Compliance with Laws):

Customer will be responsible as sole Data Controller for complying with all applicable data protection or similar laws regulating the processing of any personal data as such terms are defined in Directive 95/46/EC (the Directive) provided by or through Customer to IBM. "EU Data Protection Laws" means the Directive and the laws implementing the Directive in the European Economic Area (EEA) country where the relevant Data Controller is located. IBM will only process such Personal Data in a manner which is reasonably necessary to provide the Services and only for that purpose. Customer agrees that the delivery of the Services, as defined herein, is consistent with its processing instructions with respect to the Personal Data. IBM will apply the security measures as set forth in the Agreement and its Attachments which the Customer agrees meet Customer's processing needs and security requirements. Customer is responsible for determining that these measures provide an appropriate level of protection. Customer agrees that IBM may transfer Customer's data, including Customer's Personal Data, across a country border, including outside the EEA or to a country that has not been declared by the European Commission to provide an adequate level of data protection, to the entities and countries as described in the Agreement and its Attachments as IBM reasonably determines appropriate or useful to provide the Services provided that Customer has had an opportunity to obtain any mandatory approvals. IBM shall reasonably cooperate with Customer, for Customer's own benefit or for the benefit of a Customer Data Controller, in its fulfillment of any legal requirement, including obtaining mandatory approvals. Customer consents to the Services being provided by the aforementioned entities or countries, and is solely responsible for determining that any transfer by IBM or Customer of Personal Data, across a country border under the terms of the Agreement, complies with the applicable data protection laws.

17.1.4 Section 13.4 e (Other Principles of Our Relationship)

EU MEMBER STATES AND THE COUNTRIES IDENTIFIED BELOW

Iceland, Liechtenstein, Norway, Switzerland, Turkey, and any other European country that has enacted local data privacy or protection legislation similar to the EU model.

The following replaces section 13.4 e (Other Principles of Our Relationship):

Customer agrees that IBM may process the business contact information of Customer's employees and contractors and information about Customer as a legal entity (contact information) in connection with IBM Products and Services or in furtherance of IBM's business relationship with Customer. This contact information can be stored, disclosed internally and processed by International Business Machines Corporation and its subsidiaries, Business Partners and subcontractors wherever they do business, solely for the purpose described above provided that these companies comply with applicable data privacy laws related to this processing. Where required by applicable law, Customer has notified and obtained the consent of the individuals whose contact information may be stored, disclosed internally and processed and will forward their requests to access, update, correct or delete their contact information to IBM who will then comply with those requests.

17.1.5 Section 14 (Geographic Scope and Governing Law)

In South Africa, Namibia, Lesotho, and Swaziland, the following paragraph pertains to geographic scope and replaces the first paragraph in section 14:

Regardless of where Customer or Customer's End Users or Solution Recipients are located, Services are being provided by the IBM company for the country of Customer Business Address. Although IBM does not prohibit Customer or Customer's End Users or Solution Recipients from using the Services outside the country of Customer Business Address, Customer may enforce its rights under this Agreement only in South Africa.

17.1.6 Section 14 (Geographic Scope and Governing Law)

In the third paragraph the following pertains to governing law, the phrase, "the laws of the country of the Customer Business Address is replaced with the following for the countries below:

a. in Albania, Armenia, Azerbaijan, Belarus, Bosnia-Herzegovina, Bulgaria, Croatia, Former Yugoslav Republic of Macedonia, Georgia, Kazakhstan, Kyrgyzstan, Moldova, Montenegro, Russia, Serbia, Tajikistan, Turkmenistan, Ukraine, and Uzbekistan: the laws of Austria;

b. in Algeria, Andorra, Benin, Burkina Faso, Burundi, Cameroon, Cape Verde, Central African Republic, Chad, Comoros, Congo Republic, Djibouti, Democratic Republic of Congo, Equatorial Guinea, French Guiana, French Polynesia, Gabon, Gambia, Guinea, Guinea-Bissau, Ivory Coast, Lebanon, Madagascar, Mali, Mauritania, Mauritius, Mayotte, Morocco, New Caledonia, Niger, Reunion, Senegal, Seychelles, Togo, Tunisia, Vanuatu, and Wallis and Futuna: the laws of France;

c. in Estonia, Latvia, and Lithuania: the laws of Finland;

d. in Angola, Bahrain, Botswana, Egypt, Eritrea, Ethiopia, Gambia, Ghana, Jordan, Kenya, Kuwait, Liberia, Malawi, Malta, Mozambique, Nigeria, Oman, Pakistan, Qatar, Rwanda, Sao Tome and Principe, Saudi Arabia, Sierra Leone, Somalia, Tanzania, Uganda, United Arab Emirates, the United Kingdom, West Bank/Gaza, Yemen, Zambia, and Zimbabwe: the laws of England; and

e. in South Africa, Namibia, Lesotho and Swaziland: the laws of the Republic of South Africa.

17.1.7 Section 14 (Geographic Scope and Governing Law)

The following paragraph pertains to jurisdiction and is added to section 14 as it applies for those countries identified in bold below:

All rights, duties, and obligations under this Agreement are subject to the courts of the country for the Customer’s Business Address, except that in the countries identified below all disputes arising out of or related to this Agreement, including summary proceedings, will be brought before and subject to the exclusive jurisdiction of the following courts of competent jurisdiction:

a. in Andorra: the Commercial Court of Paris;

b. in Austria: the court of Vienna, Austria (Inner-City);

c. in Algeria, Andorra, Benin, Burkina Faso, Cameroon, Cape Verde, Central African Republic, Chad, Comoros, Congo Republic, Djibouti, Democratic Republic of Congo, Equatorial Guinea, France, French Guiana, French Polynesia, Gabon, Gambia, Guinea, Guinea-Bissau, Ivory Coast, Lebanon, Madagascar, Mali, Mauritania, Mauritius, Mayotte, Monaco, Morocco, New Caledonia, Niger, Reunion, Senegal, Seychelles, Togo, Tunisia, Vanuatu, and Wallis and Futuna: the Commercial Court of Paris;

d. in Angola, Bahrain, Botswana, Burundi, Egypt, Eritrea, Ethiopia, Ghana, Jordan, Kenya, Kuwait, Liberia, Malawi, Mozambique, Nigeria, Oman, Pakistan, Qatar, Rwanda, Sao Tome and Principe, Saudi Arabia, Sierra Leone, Somalia, Tanzania, Uganda, United Arab Emirates, the United Kingdom, West Bank/Gaza, Yemen, Zambia, and Zimbabwe: the English courts;

e. in Greece: the competent court of Athens;

f. in Israel: the courts of Tel Aviv-Jaffa;

g. in Italy: the courts of Milan;

h. in Malta: the courts of Milan;

i. in Portugal: the courts of Lisbon;

j. in South Africa, Namibia, Lesotho and Swaziland: the High Court in Johannesburg;

k. in Spain: the courts of Madrid;

l. in Turkey: the Istanbul Central Courts and Execution Directorates of Istanbul, the Republic of Turkey.

m. in the United Kingdom: the courts of England..

17.1.8 Section 14 (Geographic Scope and Governing Law)

The following terms pertain to dispute resolution and arbitration and are added to section 14 as they apply for the countries identified in bold print below. The provisions of these paragraphs apply to the extent permitted by the applicable governing law and rules of procedure:

a. In Albania, Armenia, Azerbaijan, Belarus, Bosnia-Herzegovina, Bulgaria, Croatia, Former Yugoslav Republic of Macedonia, Georgia, Kazakhstan, Kyrgyzstan, Moldova, Montenegro, Russia, Serbia, Tajikistan, Turkmenistan, Ukraine, and Uzbekistan:

The substantive laws of Austria will govern, construe and enforce all the rights, duties and obligations arising under, or relating, in any manner to, the subject matter of this Agreement, notwithstanding any conflicts of laws principles. The "United Nations Convention on Contracts for the International Sale of Goods" does not apply. All disputes arising out of this Agreement or related to its violation, termination or nullity shall be finally settled under Rules of Arbitration and Conciliation of the Federal Economic Chamber in Vienna (Vienna Rules) by three arbitrators appointed in accordance with these rules. The arbitration shall be held in Vienna, Austria and the official language of the proceedings shall be in English. The decision of the arbitrators shall be final and binding upon both parties. The clause set forth above shall, however, in no way limit IBM’s right to institute proceedings in any competent court.

b. in Algeria, Benin, Burkina Fasso, Burundi, Cameroon, Cape Verde, Central African Republic, Chad, Comoros, Congo Republic, Djibouti, Democratic Republic of Congo, Equatorial Guinea, Guinea-Bissau, French Guiana, French Polynesia, Gabon, Guinea, Guinea-Bissau, Ivory Coast, Lebanon, Madagascar, Mali, Mauritania, Mauritius, Mayotte, Morocco, New Caledonia, Niger, Reunion, Senegal, Seychelles, Togo, Tunisia, Vanuatu, Wallis and Futuna:

Any dispute arising out of or in connection with this Agreement, including , without limitation, any dispute regarding its validity or termination, or the performance or breach thereof ("Dispute”) will be finally settled by arbitration. The arbitration will be administered by the ICC International Court of Arbitration, in Paris ("Arbitration Body"), in accordance with its arbitration rules ("the Rules") in effect at the time of arbitration, except as may be modified herein or by agreement of the parties. The place of Arbitration will be Paris and the proceedings will be conducted in French. The arbitration will be conducted by three arbitrators. All persons chosen as arbitrators will be impartial. Each party will nominate one arbitrator, and the arbitrators nominated by the parties will jointly appoint an independent chairman. If no chairman is appointed within 30 days of the appointment of the second arbitrator, the chairman will be appointed by the Arbitration Body, in accordance with the Rules. The arbitrators will have no authority to award damages excluded by this Agreement, damages in excess of the limitations contained in this Agreement or injunctive relief. Nothing in this Agreement will prevent either party from resorting to judicial proceedings if interim or provisional relief from a court is necessary either to prevent material prejudice to one party or to third parties, or to prevent or stop a breach of any confidentiality provisions or intellectual property rights. Nothing in this Agreement will prevent either party from resorting to judicial proceedings as necessary to determine the validity or ownership of any copyright, patent or trademark owned or asserted by a Party to the Agreement, or by any parent company, subsidiary, or affiliate under common control of any Party.

c. in Angola, Bahrain, Botswana, Egypt, Eritrea, Ethiopia, Gambia , Ghana, Jordan, Kenya, Kuwait, Liberia, Libya, Malawi, Malta, Mozambique, Nigeria, Oman, Pakistan, Qatar, Rwanda, Sao Tome and Principe, Saudi Arabia, Sierra Leone, Somalia, Tanzania, Uganda, United Arab Emirates, West Bank/Gaza, Yemen, Zambia, and Zimbabwe:

Any dispute arising out of or in connection with this Agreement, including , without limitation, any dispute regarding its validity or termination, or the performance or breach thereof ("Dispute”) will be finally settled by arbitration. The arbitration will be administered by the London Court of International Arbitration ("Arbitration Body"), in accordance with the LCIA arbitration rules ("the Rules") in effect at the time of arbitration, except as may be modified herein or by agreement of the parties. The place of Arbitration will be London and the proceedings will be conducted in English. The arbitration will be conducted by three arbitrators. All persons chosen as arbitrators will be impartial. Each party will nominate one arbitrator, and the arbitrators nominated by the parties will jointly appoint an independent chairman. If no chairman is appointed within 30 days of the appointment of the second arbitrator, the chairman will be appointed by the Arbitration Body, in accordance with the Rules. The arbitrators will have no authority to award damages excluded by this Agreement, damages in excess of the limitations contained in this Agreement or injunctive relief. Nothing in this Agreement will prevent either party from resorting to judicial proceedings if interim or provisional relief from a court is necessary either to prevent material prejudice to one party or to third parties, or to prevent or stop a breach of any confidentiality provisions or intellectual property rights. Nothing in this Agreement will prevent either party from resorting to judicial proceedings as necessary to determine the validity or ownership of any copyright, patent or trademark owned or asserted by a Party to the Agreement, or by any parent company, subsidiary, or affiliate under common control of any Party.

d. in Estonia, Latvia, and Lithuania:

All disputes arising in connection with this Agreement will be finally settled in arbitration that will be held in Helsinki, Finland in accordance with the arbitration laws of Finland then in effect. Each party will appoint one arbitrator. The arbitrators will then jointly appoint the chairman. If arbitrators cannot agree on the chairman, then the Central Chamber of Commerce in Helsinki will appoint the chairman; and

e. in South Africa, Namibia, Lesotho, and Swaziland:

Any dispute arising out of or in connection with this Agreement, including, without limitation, any dispute regarding its validity or termination, or the performance or breach thereof ("Dispute”) will be finally settled by arbitration. The arbitration will be administered by the ICC International Court of Arbitration ("Arbitration Body"), in accordance with the ICC arbitration rules ("the Rules") in effect at the time of arbitration, except as may be modified herein or by agreement of the parties. The place of Arbitration will be Johannesburg, Republic of South Africa and the proceedings will be conducted in English. The arbitration will be conducted by three arbitrators. All persons chosen as arbitrators will be impartial. Each party will nominate one arbitrator, and the arbitrators nominated by the parties will jointly appoint an independent chairman. If no chairman is appointed within 30 days of the appointment of the second arbitrator, the chairman will be appointed by the Arbitration Body, in accordance with the Rules.

The arbitrators will have no authority to award damages excluded by this Agreement, damages in excess of the limitations contained in this Agreement or injunctive relief. Nothing in this Agreement will prevent either party from resorting to judicial proceedings if interim or provisional relief from a court is necessary either to prevent material prejudice to one party or to third parties, or to prevent or stop a breach of any confidentiality provisions or intellectual property rights. Nothing in this Agreement will prevent either party from resorting to judicial proceedings as necessary to determine the validity or ownership of any copyright, patent or trademark owned or asserted by a Party to the Agreement, or by any parent company, subsidiary, or affiliate under common control of any Party.

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17.2 ALGERIA

17.2.1 Section 7.1.3 (Taxes)

Add after the following sentence:

IBM does not support any taxation in Algeria and the total amount indicated on the invoice is due and payable to IBM without any deduction.

17.3 AUSTRIA

17.3.1 Section 12 (Limitation of Liability)

The following is added:

The following limitations and exclusions of IBM's liability do not apply for damages caused by gross negligence or willful misconduct.

17.3.2 Section 12.1 (Items for Which IBM May Be Liable)

The following replaces the first sentence in the first paragraph:

Circumstances may arise where, because of a default by IBM in the performance of its obligations under this Agreement or other liability, Licensee is entitled to recover damages from IBM.

In the second sentence of the first paragraph, delete entirely the parenthetical phrase:

"(including fundamental breach, negligence, misrepresentation, or other contract or tort claim)".

17.3.3 Section 12.2 (Items for Which IBM "Is Not Liable)"

The following replaces item 12.2 b:

b. indirect damages or consequential damages; or

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17.4 FRANCE

17.4.1 Section 7.1.1 b) (Charges)

Delete the following:

"e.g" and ",quarterly, or annual"

17.4.2 Section 7.1.2 (Payment)

The following replaces the terms of section 7.1.2 (Payment) in its entirety:

Customer will be invoiced on a monthly basis. Amounts are due ten (10) calendar days following the date of the invoice, net and without discount. Customer agrees to pay accordingly, including late payment fees. Payment may be made by electronically to an account specified by IBM or by other means agreed to by the parties.

In compliance with the article L441-6 of the "Code de commerce", any late payment fee is payable the day following the payment date specified on the invoice without any need for a reminder and its rate is equal to the European Central Bank rate for its most recent refinancing operation plus 10 points.

Where enabled, credit card payment may be available to Customer to make monthly payment for Services used. If Customer has provided credit card information for payment of such charges, IBM will bill applicable charges to your credit card on file for your Account. Customer agrees to notify IBM of any changes in credit card information or if Customer wishes to discontinue use of credit card payment and instead receive a monthly invoice as described above.

IBM does not give credits or refunds for any charges already due or paid.

17.4.3 Section 12 (Limitation of Liability)

The following replaces the terms of section 12 (Limitation of Liability) in its entirety:

The limitations and exclusions in this section 12 (Limitation of Liability) apply to the full extent they are not prohibited by applicable law without the possibility of contractual waiver.

12.1 Items for which IBM May be Liable

Circumstances may arise where, because of a default on IBM's part or other liability, Customer is entitled to recover damages from IBM. IBM's entire liability for all claims in the aggregate for any damages and losses that may arise as a consequence of the non-fulfillment of its obligations under or in connection with this Agreement or due to any other cause related to this Agreement is limited to the compensation of only those damages and losses proved and actually arising as an immediate and direct consequence of the non-fulfillment of such obligations (if IBM is at fault) or of such other cause, for a maximum amount up to the greater of euro 500,000, or the charges (if recurring, 3 months' charges apply) you paid for the Service that has caused the damages.

The above limitation will not apply to damages for bodily injuries (including death) and damages to real property and tangible personal property for which IBM is legally liable.

12.2 Items for Which IBM Is Not Liable

IBM shall not be liable for any of the following:

a. loss of profits, even when they arise as an immediate consequence of the event that generated the damages;

b. indirect damages, even when these damages could have been foreseen or IBM had been informed of the possibility of their possible occurrence;

c. loss of, or damage to, Content; and

d. lost business, revenue, goodwill (including damages to reputation or public image), or anticipated savings.

12.3 Suppliers and Program Developers

The limitation and exclusion of liability herein agreed applies not only to the activities performed by IBM but also to the activities performed by its subcontractors and program developers, and represents the maximum amount for which IBM as well as its subcontractors and program developers are collectively responsible.

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17.5 GERMANY

17.5.1 Section 12 (Limitation of Liability)

The following replaces the Limitation of Liability section in its entirety:

a. IBM will be liable without limit for i) loss or damage caused by a breach of an express guarantee; ii) damages or losses resulting in bodily injury (including death); and 3) damages caused intentionally or by gross negligence.

b. In the event of loss, damage and frustrated expenditures caused by slight negligence or in breach of essential contractual obligations, IBM will be liable, regardless of the basis on which you are entitled to claim damages from IBM (including fundamental breach, negligence, misrepresentation, or other contract or tort claim), per claim only up to the greater of 25.000 Euro or the charges (if the Service is subject to recurring or usage charges, up to the aggregated charges for the Service during the three months preceding IBM's default ) you paid for the Service that caused the loss or damage. A number of defaults which together result in, or contribute to, substantially the same loss or damage will be treated as one default.

c. In the event of loss, damage and frustrated expenditures caused by slight negligence, IBM will not be liable for indirect or consequential damages, even if IBM was informed about the possibility of such loss or damage.

d. In case of delay on IBM's part: i) IBM will pay to you an amount not exceeding the loss or damage caused by IBM's delay and ii) IBM will be liable only in respect of the resulting damages that you suffers, subject to the provisions of Items a and b above.

17.5.2 Section 13.4 (General Principles of Our Relationship)

The following replaces the provisions of item 13.4 d:

No right or cause of action for any third party is created by this Agreement, nor is IBM responsible for any third party claims against you, except (to the extent permitted in section 12 (Limitation of Liability)) for: i) bodily injury (including death); or ii) damage to real or tangible personal property for which (in either case) IBM is legally liable to that third party.

In item 13.4 h, "two years" is replaced with:

three years

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17.6 HUNGARY

17.6.1 Section 7.1.1 (Charges)

The following paragraph is added:

Charges quoted in US Dollars will be invoiced and payment shall be made in Hungarian Forint (HUF) for the US Dollar equivalent using the exchange rate published by Hungarian National Bank on the date of invoice.

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17.7 IRELAND

17.7.1 Section 9 (Warranties and Disclaimers)

The following paragraph is added:

Except as expressly provided in these terms and conditions, or Section 12 of the Sale of Goods Act 1893 as amended by the Sale of Goods and Supply of Services Act, 1980 (the "1980 Act"), all conditions or warranties (express or implied, statutory or otherwise) are hereby excluded including, without limitation, any warranties implied by the Sale of Goods Act 1893 as amended by the 1980 Act (including, for the avoidance of doubt, Section 39 of the 1980 Act).

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17.8 IRELAND AND UNITED KINGDOM

17.8.1 Section 12.1 (Items for Which IBM May Be Liable)

The following replaces the first paragraph of the subsection:

For the purposes of this section, a "Default" means any act, statement, omission or negligence on the part of IBM in connection with, or in relation to, the subject matter of an Agreement in respect of which IBM is legally liable to you, whether in contract or in tort. A number of Defaults which together result in, or contribute to, substantially the same loss or damage will be treated as one Default.

Circumstances may arise where, because of a Default by IBM in the performance of its obligations under this Agreement or other liability, you are entitled to recover damages from IBM. Regardless of the basis on which you are entitled to claim damages from IBM and except as expressly required by law without the possibility of contractual waiver, IBM's entire liability for any one Default will not exceed the amount of any direct damages, to the extent actually suffered by Licensee as an immediate and direct consequence of the default, up to the greater of (1) 25,000 Euro (or the equivalent in local currency) or (2) the charges (if recurring or usage, up to three months' charges) for the Service that is the subject of the claim. Notwithstanding the foregoing, the amount of any damages for bodily injury (including death) and damage to real property and tangible personal property for which IBM is legally liable is not subject to such limitation.

17.8.2 Section 12.2 ("Items for Which IBM is Not Liable")

The following replaces items b and c:

a. special, incidental, exemplary, or indirect damages or consequential damages; or

b. wasted management time or lost profits, business, revenue, goodwill, or anticipated savings.

17.8.3 Section 13.4 (General Principles of Our Relationship)

The following is added to item j:

Nothing in this item shall have the effect of excluding or limiting liability for fraud.

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17.9 ISRAEL

17.9.1 Section 7.1.1 (Charges)

The following paragraph is added:

Charges quoted in US Dollars will be invoiced in New Israel Shekel (NIS) according to the US Dollar's representative exchange rate, as published by the Bank of Israel on the date of invoice.

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17.10 ITALY

17.10.1 Section 7.1.2 (Payment)

The following is added to the end of the first paragraph:

In the instance of no payment or partial payment, and also following a formal credit claim procedure or trial that IBM may initiate, in derogation with articles 7 of Decreto Legislativo n.231 dated October 9, 2002, IBM will notify Customer in writing by registered, return receipt mail of late payment fees due. In derogation with article 5 of Decreto Legislativo dated October 9, 2002, late payment fees will be calculated from the invoice due date based on the European Central Bank rate in force on the last day of the month the payment was due, increased by seven point.

17.10.2 Section 12 (Limitation of Liability)

The following replaces the Limitation of Liability section in its entirety:

Except as otherwise provided by mandatory law:

12.1 Items for Which IBM May Be Liable

IBM's entire liability for all claims in the aggregate for any damages and losses that may arise as a consequence of the fulfillment of its obligations under or in connection with this Agreement or due to any other cause related to this Agreement is limited to the compensation of only those damages and losses proved and actually arising as an immediate and direct consequence of the non-fulfillment of such obligations (if IBM is at fault) or of such cause, for a maximum amount equal to the charges (if recurring or usage based up to three months' charges) you paid for the Service that has caused the damages.

The above limitation will not apply to damages for bodily injuries (including death) and damages to real property and tangible personal property for which IBM is legally liable.

12.2 Items for Which IBM Is Not Liable

UNDER NO CIRCUMSTANCES IS IBM OR ANY OF ITS SUBCONTRACTORS OR PROGRAM DEVELOPERS LIABLE FOR ANY OF THE FOLLOWING, EVEN IF INFORMED OF THEIR POSSIBILITY: 1) LOSS OF, OR DAMAGE TO, DATA AND CONTENT; 2) INCIDENTAL, EXEMPLARY OR INDIRECT DAMAGES, OR FOR ANY ECONOMIC CONSEQUENTIAL DAMAGES; AND / OR 3) LOST PROFITS, BUSINESS, REVENUE, GOODWILL,ANTICIPATED SAVINGS, INJURY TO REPUTATION OR LOSS IN COMPANY VALUE EVEN IF THEY ARISE AS AN IMMEDIATE CONSEQUENCE OF THE EVENT THAT GENERATED THE DAMAGES.

12.3 Suppliers and Program Developers

The limitation and exclusion of liability herein agreed applies not only to the activities performed by IBM but also to the activities performed by its subcontractors and program developers, and represents the maximum amount for which IBM as well as its subcontractors and program developers are collectively responsible.

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17.11 POLAND

17.11.1 Section 12.2 (Items for Which IBM is Not Liable)

The following is added as the last paragraph:

"Parties agree that the liability from Rekojmia is expressly excluded."

17.11.2 Section 13.2 (Compliance with Laws)

The following is added to the first paragraph:

"Article 66 (1) § 2 of the Polish Civil Code is excluded."

17.11.3 Signature Blocks

The following is added to the signature block information identifying the contracting parties:

IBM Polska Sp z.o.o. having its seat at ul. 1 Sierpnia 8, 02-134 Warsaw, registered with the District Court for the Capital City of Warsaw, XIII Economic Section of Domestic Court Register in the Enterprise Register, KRS entry no.: 0000012941, with the initial capital of 34.650.000 PLN, tax identification no.: 526-030-07-24.

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17.12 ROMANIA

17.12.1 Section 7.1.1 (Charges)

The following paragraph is added:

Charges quoted in US Dollars will be invoiced in Romanian Lei (RON) according to the US Dollar's representative exchange rate, as published by the National Bank of Romania on the date of invoice. In case of payment delays, Customer will be charged, in equivalent local currency (RON), an extra sum representing late payment fees, amounting to 0,10% per day from the USD equivalent of the due payment, for each day of delay after the due payment date.

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17.13 RUSSIA

17.13.1 Section 7.1.3 Taxes

The following paragraph is added:

Should Customer be required under any law or regulation of any governmental entity or authority, domestic or foreign, to withhold or deduct any portion of the payments due to IBM (including withholding tax and VAT), then the sum payable to IBM shall be increased by the amount necessary to yield to IBM an amount equal to the sum it would have received had no withholdings or deductions been made.

17.13.2 Section 14 (Geographic Scope and Governing Law)

The following replaces the first paragraph of section 14

Regardless of where Customer or Customer's End User or Solution Recipients are located, Services are being provided by IBM World Trade Corporation.

The following is inserted as last paragraph in section 14

IBM World Trade Corporation's signature may be replaced by a written confirmation by the relevant IBM country organization that IBM World Trade Corporation has accepted in this Agreement or other documents as applicable.

17.13.3 Signature Block

The following is added to the signature block as the IBM Company:

IBM World Trade Corporation

New Orchard Road

Armonk, New York 10504

USA

The local IBM organization informs you herewith that it has been empowered by IBM World Trade Corporation to confirm that this Agreement has been accepted by the latter.

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17.14 SPAIN

17.14.1 Section 7.1.2 (Payment)

The following replaces the first paragraph of the subsection 7.1.2 (Payment):

When Services are acquired from IBM, Customer will be invoiced on a monthly basis unless the invoiced amount is small, and then in such case IBM may at its discretion combine such amount with the subsequent month invoice. Amounts are due upon receipt of invoice and payable within 30 days from the invoice issue date. Customer agrees to pay accordingly. Payment may be made electronically to an account specified by IBM or by other means agreed to by the parties. If payment is not received within 30 days from the date of invoice (or in the case of quarterly advance billing of recurring charges, within 60 days from the date of invoice), Customer may be subject to late payments fees. Such fees will be calculated applying 1% of the charges per month to the number of days of delay.

17.14.2 Section 12 (Limitation of Liability)

The following replaces the first paragraph of the section 12 (Limitation of liability):

The limits of liability in this entire Limitation of Liability section do not apply to a cause of action based on willful misconduct. Nonetheless, the parties intend that such limits apply, to the maximum extent permitted by Spanish law, to a cause of action based on gross negligence.

17.14.3 Section 12.1 (Items for Which IBM May Be Liable)

The following replaces the first paragraph of the subsection 12.1 (Items for which IBM may be liable):

Circumstances may arise where, because of a default by IBM in the performance of its obligations under this Agreement or other liability, Customer is entitled to recover damages from IBM. In such circumstance, IBM's entire liability for all claims in the aggregate arising from or related to the Services or otherwise arising under this Agreement will not exceed the amount of any direct damages to the extent actually suffered by Customer up to the greater of (1) 25.000 Euros; or (2) the amount paid (if recurring or usage based, 3 months' charges apply) for the Service that is subject of the claim. If you acquired Services from an IBM Business Partner, such amounts paid are limited to IBM's standard charges.

17.14.4 Section 12.2 (Items for Which IBM May Be Liable)

The following replaces items "b." and "c." of the subsection 12.2 (Items for which IBM is not liable):

b. SPECIAL, INCIDENTAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, OR ANY DAMAGES ARISING AS AN INDIRECT OR REMOTE CONSEQUENCE OF THE DEFAULT OR NOT THE NATURAL CONSEQUENCE OF SUCH DEFAULT; OR

c. LOST PROFITS, BUSINESS, REVENUE, GOODWILL, OR ANTICIPATED SAVINGS OR ANY FORM OF "LUCRO CESANTE".

17.14.5 Section 13.4 (Other Principles of Our Relationship)

The following is added as the second sentence in item "d." of the subsection 13.4 (Other principles of our relationship):

Consequently, Customer may not seek liability from IBM for damages that Customer suffers as a result of such third party claims.

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17.15 TURKEY

17.15.1 Section 7.1.2 (Payment)

The following replaces the first paragraph of subsection 7.1.2

Customer will be invoiced on a monthly basis unless the invoiced amount is small, then in such case; IBM may its discretion combine such amount with the subsequent monthly invoice. Charges quoted in US Dollars will be invoiced in Turkish Liras converted from US Dollars to Turkish Lira based on the Central Bank of Turkish Republic's selling US Dollars exchange rate valid on the date of the invoice. Customer agrees to pay the charges within 30 days beginning from the date of invoice and directly to the bank account specified in the invoice. If the payment is not done within the payment period as specified above, Customer, without need for any further notice, will be responsible to pay a 2.5 % interest for a month, beginning from the expiration date of the payment period. Payment may be made electronically to an account specified by IBM or by other means agreed to by the parties.

17.15.2 Section 12.1 (Items for Which IBM May Be Liable)

The following replaces the first paragraph of subsection 12.1

Circumstances may arise where, because of a default on IBM's part or other liability, Customer is entitled to recover damages from IBM. Regardless of the basis on which Customer is entitled to claim damages from IBM (including fundamental breach, negligence, misrepresentation, or other contract or tort claim), IBM's entire liability for all claims in the aggregate arising from or related to Services or otherwise arising under this Agreement will not exceed the amount of any actual direct damages up to the amount paid (if recurring or usage based, 12 months' charges apply) for the Services that is subject of the claim. If you acquired Services from an IBM Business Partner, such amounts paid are limited to IBM's published standard charges.

17.15.3 Section 13.4 (Other Principles of Our Relationship)

The following is added as an additional item in subsection 13.4

The notary expenses and stamp duties arising from this Agreement shall be paid equally by the parties.

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Purchase now

This Agreement, including Parts 1 and 2, and including referenced then current Attachments, applicable IBM license agreements and the Acceptable Use Policy, is the complete agreement regarding Customer's access to and use of the Services and replace any prior oral or written communication, representations, undertakings, warranties, promises, covenants, and commitments between Customer and IBM. In entering into this Agreement, including referenced then current Attachments, applicable IBM license agreements and the Acceptable Use Policy neither party is relying on any representation that is not specified in this Agreement. Additional or different terms in any written communication from Customer (such as purchase order) are void.

Each party accepts, on behalf of its Enterprise, the terms of this Agreement by signing this Agreement (or another document that incorporates it by reference) by hand or electronically or as otherwise set forth in this Agreement. Once signed, i) any reproduction of this Agreement or Attachment made by reliable means (for example, electronic image, photocopy or facsimile) is considered an original and ii) all Services are subject to it.

Agreed to:

Customer Company Name:

By __________________________________
Authorized signature

Name (type or print):

Date:

Customer address:

Customer number:

Agreed to:

IBM Company Name:

By __________________________________
Authorized signature

Name (type or print):

Date:

IBM address:

Enterprise number:

Z125-8499-14_SmartCloud_Agreement_International_28May2013_(sign)