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International Passport Advantage Agreement
<br />Under this Agreement, Client may order Eligible Products (EPs) from IBM. Details regarding EPs are provided in Attachments,
<br />Service Descriptions, Terms of Use and Transaction Documents, collectively TDs. This Agreement and applicable TDs are the
<br />complete agreement regarding transactions by which Client acquires EPs. Client Originating Company (also identified as the
<br />Originating Site in the Passport Advantage Enrollment Form) and the IBM Originating Company that accepts the Client Originating
<br />Company's orders agree to coordinate the administration of this Agreement within their respective Enterprises, which includes the
<br />set of legal entities that, by more than 50%, owns, are owned by, or are under common ownership with the Originating Company.
<br />The Client Originating Company is responsible for compliance with the terms for all Client sites assigned a Passport Advantage
<br />Site Number (Site(s)) under this Agreement. If there is a conflict, a TD prevails over the terms of this Agreement.
<br />1. General
<br />1.1 Acceptance of Terms
<br />The Client Originating Company and thereafter each of its participating Enterprise companies accept this Agreement by
<br />submitting an IBM International Passport Advantage Enrollment Form to IBM or Client's chosen reseller(s). This
<br />Agreement is effective on the date IBM accepts the initial order under this Agreement (the Effective Date) and remains in
<br />effect until the Client Originating Company or the IBM Originating Company terminates it under this Agreement.
<br />An EP is subject to this Agreement when IBM accepts Client's order by i) sending an invoice or a Proof of Entitlement
<br />(PoE) including the level of authorized use, ii) making the Program or IBM SaaS available, iii) shipping the Appliance, or
<br />iv) providing the support, service, or solution.
<br />1.2 Changes to Agreement Terms
<br />Because this Agreement may apply to many future orders, IBM reserves the right to modify it by providing Client at least
<br />three months' written notice. Changes are not retroactive; they apply, as of the effective date, only to new orders and
<br />renewals. Client accepts changes by placing new orders after the change effective date or allowing transactions to renew
<br />after receipt of the change notice. Except as otherwise provided in this Agreement, all changes must be in writing,
<br />signed by both parties.
<br />1.3 Payment and Taxes
<br />Client agrees to pay all applicable charges specified by IBM, charges for use in excess of authorizations, any customs or
<br />other duty, tax, levy, or fee imposed by any authority resulting from Client's acquisitions under this Agreement, and any
<br />late payment fees. Amounts are due upon receipt of the invoice and payable within 30 days of the invoice date to an
<br />account specified by IBM. Prepaid services must be used within the applicable period. IBM does not give credits or
<br />refunds for any prepaid, one-time charges, or other charges already due or paid.
<br />Client agrees to: i) pay withholding tax directly to the appropriate government entity where required by law; ii) furnish a
<br />tax certificate evidencing such payment to IBM; iii) pay IBM only the net proceeds after tax; and iv) fully cooperate with
<br />IBM in seeking a waiver or reduction of such taxes and promptly complete and file all relevant documents.
<br />1.4 IBM Business Partners and Resellers
<br />IBM Business Partners and resellers are independent from IBM and unilaterally determine their prices and terms. IBM is
<br />not responsible for their actions, omissions, statements, or offerings.
<br />1.5 Liability and Indemnity
<br />IBM's entire liability for all claims related to this Agreement will not exceed any actual direct damages incurred
<br />by Client up to the amounts paid (if recurring charges, up to 12 months' charges apply) for the product or
<br />service that is the subject of the claim, regardless of the basis of the claim. This limit applies collectively to IBM,
<br />its subsidiaries, contractors, and suppliers. IBM will not be liable for special, incidental, exemplary, indirect, or
<br />economic consequential damages, or lost profits, business, revenue, goodwill, or anticipated savings.
<br />The following amounts, if a party is legally liable for them, are not subject to the above cap: i) third party payments
<br />referred to in the paragraph below; ii) damages for body injury (including death); and iii) damages to real property and
<br />tangible personal property; and iv) damages that cannot be limited under applicable law.
<br />If a third party asserts a claim against Client that an IBM Product acquired under this Agreement infringes a patent or
<br />copyright, IBM will defend Client against that claim and pay amounts finally awarded by a court against Client or included
<br />in a settlement approved by IBM, provided that Client promptly (i) notifies IBM in writing of the claim, (H) supplies
<br />information requested by IBM, and (iii) allows IBM to control, and reasonably cooperates in, the defense and settlement,
<br />including mitigation efforts.
<br />IBM has no responsibility for claims based, in whole or part, on Non -IBM Products, items not provided by IBM, or any
<br />violation of law or third party rights caused by Client's content, materials, designs, specifications, or use of a non -current
<br />version or release of an IBM Product when an infringement claim could have been avoided by using a current version or
<br />release. Each Non -IBM Program is governed by the terms of the third party end user license agreement that
<br />accompanies it. IBM is not a party to the third party end user license agreement and assumes no obligations under it.
<br />1.6 General Principles
<br />Parties will not disclose confidential information without a separate, signed confidentiality agreement. If confidential
<br />information is exchanged, the confidentiality agreement is incorporated into, and subject to, this Agreement.
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