ibm blueworks live terms and conditions for use...z125-8762-03 (04/2012) page 1 of 27 ibm blueworks...

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IBM Blueworks Live Terms and Conditions for Use

These Terms and Conditions for Use (the "Terms and Conditions" or “ToU”) set forth the terms under which IBM will provide Customer with access to and use of the IBM SaaS (as defined below). Please read these Terms and Conditions carefully before using the IBM SaaS and any associated Enabling Software (as defined below). Customer may use the IBM SaaS and Enabling Software only if Customer first accepts these Terms and Conditions, which constitute a binding agreement between Customer and IBM. By using the IBM SaaS or Enabling Software, Customer signify Customer’s agreement with these Terms and Conditions, including the applicable Service Description, the Acceptable Use Policy, and the Privacy Policy (each as defined below). These Terms and Conditions consist of three parts. Part I contains definitions of the capitalized terms used in these Terms and Conditions. Part II applies to Customer only if Customer has previously executed an IBM International Passport Advantage Agreement or an IBM International Passport Advantage Express Agreement with IBM and Customer is ordering the IBM SaaS under IBM's Passport Advantage program. Part III applies to all customers who use the IBM SaaS and Enabling Software. IF CUSTOMER DOES NOT AGREE WITH THESE TERMS AND CONDITIONS, DO NOT IN ANY MANNER USE THE IBM SAAS OR ENABLING SOFTWARE OR PARTICIPATE IN ANY OF THE FUNCTIONALITY OFFERED THEREIN.

PART I. DEFINITIONS Unless otherwise defined in this document, all capitalized terms used in these Terms and Conditions have the meanings set forth below. Acceptable Use Policy – the Acceptable Internet Use Policy for IBM Services, attached herein as Appendix A and located on the Internet at www.ibm.com/services/e-business/aup.html, and any subsequent modification. Affiliate – any legal entity that, by more than 50% owns, is owned by, or is under common ownership with IBM. Content – information, software, and data, including, without limitation, any Personal Data, hypertext markup language files, scripts, programs, recordings, sound, video, music, graphics, images, applets, or servlets that are created, provided, uploaded, or transferred by Customer or Customer’s Authorized Users (as defined in Part III, Subpart A, Section 3 below) in connection with Customer’s use of the IBM SaaS. Enabling Software – any Program and associated materials provided to Customer by IBM or a third party as part of the IBM SaaS offering in order to facilitate access to and use of IBM SaaS. Evaluation Period – such period that begins when Customer agrees to these Terms and Condition and ends upon the earliest of (i) the evaluation end date specified by IBM when Customer was provided access to the IBM SaaS, and (ii) the date on which Customer’s access to the IBM SaaS for evaluation is disabled by IBM. Should IBM provide Customer with an Evaluation Period, Customer may use the IBM SaaS or Enabling Software on a trial basis for no charge as specified in a Service Description and in accordance with these Terms and Conditions. Customer is authorized to use the IBM SaaS during the Evaluation Period specified in the Service Description. During an Evaluation Period or at the end of an Evaluation Period, Customer may order a IBM SaaS at the then current charges. IBM – the IBM entity (International Business Machines Corporation or one of its Affiliates) in the country in which Customer ordered the IBM SaaS. IBM Software as a Service (“IBM SaaS”) – offerings IBM makes available to Customer remotely through the Internet providing access to (i) functionality of Programs, (ii) infrastructure, and (iii) technical support. IBM SaaS is not a Program but may require Customer to download enabling software in order to use it. For Passport Advantage customers, IBM SaaS is an Eligible Product. Passport Advantage Unique Terms – the terms set forth in Part II of these Terms and Conditions. Personal Data – any information that can be used to identify a specific individual, such as name, email address, home address, or phone number that is provided to IBM to store, process, or transfer on Customer’s behalf. Privacy Policy – the IBM Online Privacy Statement, located on the Internet at www.ibm.com/privacy, and any subsequent modification.

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Program – the following, including the original and all whole or partial copies: 1) machine-readable instructions and data, 2) components, 3) audio-visual content (such as images, text, recordings, or pictures), 4) related license materials, and 5) license use documents or keys, and documentation. Proof of Entitlement or PoE – evidence of Customer’s r authorized use of the IBM SaaS. The PoE is also evidence of Customer’s r eligibility for warranty, future update prices, if any, and potential special or promotional opportunities. If IBM does not provide Customer with a PoE, then IBM may accept as the PoE the original paid sales receipt or other sales record from the party (either IBM or its reseller) from whom Customer obtained the IBM SaaS, provided that it specifies the IBM SaaS name and authorized use obtained.

PART II. PASSPORT ADVANTAGE UNIQUE TERMS These Passport Advantage Unique Terms apply to Customer only if Customer has previously executed an IBM International Passport Advantage Agreement or an IBM International Passport Advantage Express Agreement (as applicable, the "Agreement") with IBM and are ordering the IBM SaaS under IBM's Passport Advantage program. These Passport Advantage Unique Terms are in addition to, and where applicable modify, the terms set forth in Customer’s Agreement. For orders subject to the IBM International Passport Advantage Agreement, the Customer Originating Company (as defined in Customer’s r Agreement) and each of the participating Customer Sites (as defined in Customer’s r Agreement) accepts these Passport Advantage Unique Terms without modification with respect to the IBM SaaS by using the IBM SaaS or Enabling Software. Part III, Subpart A, Section 16(a) (Charges and Payment – Charges) and Part III, Subpart A, Section 20 (Limitation of Liability) shall not apply to Customer if Customer is a Passport Advantage Customer. Payment and liability terms are set forth in the Agreement. In all other cases, Part III of these Terms and Conditions shall prevail in the event of a conflict with Part II of these Terms and Conditions, the Agreement, or any applicable International Program License Agreement (an "IPLA").

1. Automatic Renewal Unless otherwise specified by IBM, the terms of the second paragraph of Automatic Annual Renewal of Software Subscription and Support and Selected Support (Software Subscription and Support may also be referred to as Software Maintenance) of the Agreement, including any applicable Country-unique Terms, do not apply to the IBM SaaS. If IBM specifies that such provisions are applicable to the IBM SaaS, then such provisions will apply to this section except that for purposes of this section the words "software subscription and support" or "Selected Support" are replaced by the words "the IBM SaaS". CUSTOMER MAY TERMINATE THE IBM SAAS AT ANY TIME DURING THE INITIAL SUBSCRIPTION PERIOD (AS DEFINED IN THE AGREEMENT) ON ONE MONTH'S WRITTEN NOTICE, EITHER DIRECTLY TO IBM OR THROUGH CUSTOMER’S IBM RESELLER, AS APPLICABLE. IF CUSTOMER ELECT TO TERMINATE THE IBM SAAS PURSUANT TO THIS PARAGRAPH, CUSTOMER WILL NOT RECEIVE A PRORATED REFUND OF ANY MONIES PREVIOUSLY PAID TO IBM OR CUSTOMER’S IBM RESELLER FOR THE REMAINDER OF THE UNFILLED TERM. CUSTOMER MAY TERMINATE THE IBM SAAS AT ANY TIME AFTER THE INITIAL SUBSCRIPTION PERIOD ON ONE MONTH'S WRITTEN NOTICE, EITHER DIRECTLY TO IBM OR THROUGH CUSTOMER’S IBM RESELLER, AS APPLICABLE. IN SUCH EVENT, CUSTOMER WILL RECEIVE A PRORATED REFUND OF ANY MONIES PREVIOUSLY PAID TO IBM OR CUSTOMER’S IBM RESELLER FOR THE REMAINDER OF THE UNFILLED TERM.

2. Anniversary Coordination Unless otherwise specified by IBM, the IBM SaaS is not eligible for anniversary coordination. If IBM specifies that the IBM SaaS is eligible for anniversary coordination, then for Passport Advantage customers entering into these Terms and Conditions for Subscription Periods of six months or more, initial or subsequent Subscription Periods entered into on a date other than the Anniversary may be renewed at the next Anniversary (as defined in Customer’s r Agreement) for an additional period, at a pro-rated renewal charge, in order to extend the Subscription Period to the following Anniversary. For customers acquiring this offering under the terms of Passport Advantage Express, this section does not apply.

Unless otherwise mutually agreed by Customer and IBM, for Passport Advantage customers who subscribe to the IBM SaaS on a date other than the date of Customer’s r Anniversary (as defined in the Agreement), Customer will be charged on a prorated annual basis based on the number of calendar

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months between the date on which Customer subscribes and the date of Customer’s r Anniversary. For Passport Advantage Express customers who acquire additional user entitlements to an initial Subscription Period or subsequent and still current Subscription Period, Customer will be charged on a prorated annual basis based on the number of calendar months between the date on which Customer’s r additional subscription order is processed and the end date as specified for the Subscription Period of the same IBM SaaS.

3. Payment Payment for the IBM SaaS shall be in accordance with Section 1.6 (Payment) of Customer’s r Agreement. For the avoidance of doubt, any payment terms set forth in Part III of these Terms and Conditions, including but not limited to Part III, Subpart A, Section 2 (Service Descriptions and Service Orders), Part III, Subpart A, Section 5(a) (Access to IBM SaaS; Suspension and Cancellation) and Part III, Subpart A, Section 16 (Charges and Payment), shall not apply to Customer.

PART III. GENERALLY APPLICABLE TERMS AND CONDITIONS Subpart A – General Terms 1. Ownership

IBM and its suppliers own the IBM SaaS and the underlying Enabling Software. Customer agrees that title to, ownership of and all rights in and to patents, copyrights, trademarks, and all other intellectual property rights in the IBM SaaS, and any copy or part of the IBM SaaS, will remain with IBM and its suppliers. IBM may subcontract the IBM SaaS, or any part of it, including technical support, to subcontractors selected by IBM.

2. Service Descriptions and Service Orders a. Service Descriptions. IBM provides the IBM SaaS in accordance with an applicable set of terms

called a "Service Description". A Service Description describes the IBM SaaS, including available options, any applicable charges, and any additional terms applicable to such IBM SaaS. The current Service Description is set forth in Appendix B to these Terms and Conditions. Should the Service Description change, or if new or additional services are offered, Customer will have the opportunity to review the applicable Service Description prior to ordering. Each Service Description is part of these Terms and Conditions only for the particular IBM SaaS that it applies to and is independent of other Service Descriptions.

b. Service Orders on the IBM Blueworks Live Web Site. Customer may order the IBM SaaS electronically on the Blueworks Live Web Site. The Blueworks Live Web Site, information regarding the IBM SaaS, account information, and Service Descriptions may be presented only in English and may not be translated into Customer’s r local language. Despite any different allowances or practices of local laws or customs, (i) Customer agrees that orders made electronically on the Blueworks Live Web Site are valid and binding, and (ii) Customer represents that Customer understands terms written in English if terms are not made available translated into Customer’s r local language and agree that it is an appropriate language to conduct transactions under these Terms and Conditions. When Customer orders a IBM SaaS electronically, Customer will make selections during the electronic order process that may affect charges and terms of the IBM SaaS. Customer agrees that Customer will not order the IBM SaaS if Customer does not agree to these Terms and Conditions and the terms of the applicable Service Description. By placing an order to initiate the IBM SaaS Customer acknowledges and accepts that the applicable Service Description and these Terms and Conditions govern Customer’s access and use of the IBM SaaS.

3. General Charge Terms Authorized User is a unit of measure by which the IBM SaaS may be purchased. An Authorized User is a unique person who is given access to the IBM SaaS. The IBM SaaS may be installed or accessed on any number of computers or servers and each Authorized User may have simultaneous access to any number of instances of the IBM SaaS at one time. Customer must obtain separate, dedicated entitlements for each Authorized User accessing the IBM SaaS in any manner directly or indirectly (for example: via a multiplexing program, device, or application server) through any means. An entitlement for an Authorized User is unique to that Authorized User and may not be shared, nor may it be reassigned other than for the permanent transfer of the Authorized User entitlement to another person.

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4. Customer Account and Access When Customer registers for an account ("Account"), IBM will provide Customer an Account identification and password. Customer is responsible for managing and keeping Customer’s r Account information current, including maintaining Customer’s r current payment information. For any Personal Data Customer provides in connection with Customer’s r registration (including as part of Customer’s r Account profile) or Customer’s r use of the IBM SaaS, Customer is responsible for obtaining consents from the relevant persons to allow IBM to store, use, and transfer such Personal Data as part of our business relationship anywhere IBM does business, in accordance with the Privacy Policy. At any time Customer may request that any Personal Data Customer provides is corrected or removed from Customer’s account information and such Personal Data will be corrected or removed, but removal may prevent access to the IBM SaaS. Customer is responsible for protecting Customer’s r Account identification and password from misuse or disclosure and for controlling who may access Customer’s Account or use any IBM SaaS on Customer’s behalf. Customer is responsible for the actions of any person or entity that accesses any IBM SaaS on Customer’s behalf or otherwise uses Customer’s Account, whether or not expressly authorized by Customer, and for ensuring that each such person or entity complies with these Terms and Conditions.

5. Access to IBM SaaS; Suspension and Cancellation a. Subject to Customer’s compliance with these Terms and Conditions, IBM hereby grants Customer a

revocable, non-exclusive, nontransferable right to access and use the IBM SaaS for the term specified in Customer’s Proof of Entitlement. Customer agrees that IBM is not providing Customer with access to the Internet in order to use the IBM SaaS and that Customer remains responsible for Internet access. The IBM SaaS is provided with Restricted Rights for U.S. Government users. IBM reserves the right to suspend or discontinue the IBM SaaS, revoke Customer’s access to the IBM SaaS or delete Customer’s Content if IBM believes that Customer is in breach of these Terms and Conditions or the Acceptable Use Policy. IBM will provide Customer written notice of a suspension or discontinuation and the reason for such. In the event of a suspension for which the cause is reasonably capable or being remedied, IBM will inform Customer of what actions Customer must take in order to reinstate the IBM SaaS. If Customer fails to take such actions within a reasonable time, IBM may terminate a suspended IBM SaaS upon written notice. Upon any suspension, discontinuance or cancellation of the IBM SaaS or termination of these Terms and Conditions, Customer’s access and other rights to the IBM SaaS will be cancelled and cease. In such event Customer must cease any further use of the IBM SaaS and destroy any copies of associated Enabling Software within Customer’s possession or control. Charges will continue to accrue during any such suspension and Customer is responsible for paying all charges due and payable up to the date of termination. Customer may cancel the IBM SaaS at any time upon written notice to IBM, without any right of refund.

b. Customer may not assign these Terms and Conditions in whole or in part, without IBM's prior written consent. Any attempt to do so is void. IBM will not unreasonably withhold this consent. The assignment of these Terms and Conditions, in whole or in part, to an Affiliate 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 under these Terms and Conditions 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.

6. Restrictions Customer may use the IBM SaaS in accordance with these Terms and Conditions and Acceptable Use Policy, up to the specified level of use authorized in Customer’s Proof of Entitlement, on condition that:

a. Customer accepts these Terms and Conditions; b. Customer ensures that anyone who uses the IBM SaaS does so only on Customer’s behalf and

complies with these Terms and Conditions, and the Agreement, if applicable;

c. Customer does not: (1) use, copy, modify, or make the IBM SaaS available, in whole or in part, to third parties except

as expressly permitted in these Terms and Conditions and the Agreement, if applicable;

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(2) reverse assemble, reverse compile, otherwise translate, or reverse engineer the IBM SaaS or Enabling Software, unless expressly permitted by applicable law without the possibility of contractual waiver;

(3) use any of the IBM SaaS’s components, files, modules, audio-visual content, or related licensed materials separately from that of the IBM SaaS;

(4) rent, sublicense, or lease the IBM SaaS;

(5) create Internet “links” to or from the IBM SaaS offering; (6) “frame” or “mirror” any content forming part of the IBM SaaS, other than on Customer’s own

intranets in connection with Customer’s authorized use of the IBM SaaS; or (7) remove, deface, cover, alter, or obscure any copyright or trademark notices and/or legends or

other proprietary notices associated with the IBM SaaS, unless expressly permitted under another written agreement between Customer and IBM.

7. Scheduled Maintenance IBM will give reasonable advance notice to Customer of any scheduled maintenance of the IBM SaaS. IBM will attempt to schedule such maintenance to the extent reasonably practicable during the weekend hours or after normal business hours (i.e., between 8:00 pm Central time and 7:00 am Central time). IBM will post any scheduled maintenance hours on the Blueworks Live Web Site. IBM SaaS may not be available during these times. IBM reserves the right to interrupt IBM SaaS to perform emergency maintenance as needed. IBM may change scheduled maintenance hours and will post to the Blueworks Live Web Site any such changes, as well as any emergency maintenance information.

8. Updates; Applicable Terms and Authorization for Auto Updates These Terms and Conditions apply to all updates, supplements, add-on components, features, or other functionality or messages related thereto, including without limitation alterations of functionality, features, storage, security, availability, content, and other information relating to the Enabling Software or IBM SaaS (collectively, "Updates") that IBM may provide or make available generally at no charge to its customers after the date that the IBM SaaS commences, subject to any additional terms provided by IBM applicable to such Updates. Customer hereby authorize IBM to, and agree that IBM may, in accordance with IBM's standard operating procedures, automatically and in good faith transmit, access, install, and otherwise provide Updates to the Enabling Software or IBM SaaS without further notice or need for consent. IBM has no obligation to, and nothing in these Terms and Conditions may be construed to require IBM to, create, provide, or install Updates.

9. Technical Support Technical support is offered via email only at [email protected]. Any enhancements, updates and other materials provided by IBM as part of any such technical support are considered to be part of the IBM SaaS or Enabling Software, as applicable, and therefore governed by these Terms and Conditions.

10. Data Privacy and Data Security a. Customer’s Obligations

In relation to all Personal Data provided by or through Customer to IBM, Customer will be responsible as the sole data controller complying with all applicable data protection or similar laws such as, but not limited to, EU Directive 95/46/EC (and laws implementing that Directive) that regulate the processing of Personal Data including special categories of data, as such terms are defined in that Directive (and laws implementing that Directive). Customer agrees to obtain all legally required consents, authorizations and approvals and make all necessary disclosures before (i) including any Personal Data in Content and (ii) using the Enabling Software and IBM SaaS. Customer confirms and acknowledges that it is solely responsible for any Personal Data that may be contained in Content, including any information which any IBM SaaS User shares with third parties on Customer’s behalf. Customer is solely responsible for determining the purposes and means of processing any Personal Data by IBM under these Terms of Use, including that such processing according to Customer’s instructions will not place IBM in breach of applicable data protection laws.

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IBM SaaS is not intended for the storage or receipt of any Sensitive Personal Information or Protected Health Information (as defined below), in any form, and Customer will be responsible for reasonable costs and other amounts IBM may incur relating to any such information provided to IBM or the loss or disclosure of such information by IBM, including those arising out of any third party claims. "Sensitive Personal Information" is; 1) Personal Data, the loss of which would trigger a data breach notification requirement, and includes, but is not limited to financial information, country identification number (e.g. Social Insurance Number (SIN), Social Security Number (SSN)) or other governmentally issued identification number such as driver's license or passport number, bank account number, credit card or debit card number; and 2) Personal Data relating to racial or ethnic origin, sexual orientation, or political opinions or religious, ideological or philosophical beliefs or activities or trade union membership. “Protected Health Information” is "individually identifiable health information" as defined under the Health Information Portability and Accountability Act of 1996 ("HIPAA"), as amended. Customer agrees that when IBM reasonably determines it to be useful in its provision of IBM SaaS, IBM may transfer Content, including any Personal Data, across a country border to the entities and countries notified to Customer. Customer consents to IBM SaaS being provided by such entities in such countries, and is solely responsible for determining that any transfer of any Personal Data across a country border under the terms of the Terms of Use complies with applicable data protection laws. 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. If IBM makes a change to the way it processes or secures Personal Data as part of IBM SaaS and the change causes Customer to be noncompliant with data protection laws applicable to it, Customer may terminate the current Subscription Period for the affected IBM SaaS, by providing written notice to IBM within thirty (30) days of IBM's notification of the change to Customer. Any such termination will not obligate IBM to issue a refund or credit to Customer.

b. IBM’s Obligations

IBM will only process Personal Data in a manner that is reasonably necessary to provide IBM SaaS and only for that purpose.

IBM will only process Personal Data in delivering IBM SaaS as described by IBM, and Customer agrees that the description provided by IBM is consistent with Customer’s processing instructions.

Upon Customer’s written request, following termination or expiry of either this ToU or the Agreement, IBM will destroy or return to Customer all Content that Customer identifies as Personal Data. If Customer or a Customer data controller is required by applicable data protection laws to provide information about or access to Personal Data to any individual or to a relevant authority, IBM will reasonably cooperate with Customer in providing such information or access.

c. Security Practices IBM maintains practices and procedures, which may be revised periodically, regarding the systems used to host and operate the IBM SaaS, which practices and procedures are designed to reduce the vulnerability of our systems to intrusions or wrongful conduct that may interfere with, misappropriate, or otherwise damage the Content or Customer’s use of the IBM SaaS. A description of the practices and procedures applicable to the IBM SaaS, including applicable technical and operational measures, is available to Customer upon request. Customer is responsible for determining whether these practices and procedures are adequate to meet Customer’s requirements. By using the IBM SaaS, Customer acknowledges its acceptance of the IBM practices and procedures and their adequacy for Customer’s purposes. Except as specifically provided in the Security Practices for the IBM SaaS, IBM makes no representations or warranties regarding any security functions or that IBM SaaS or Customer’s content are secure from any intrusions or wrongful conduct.

11. Business Contact Information Customer authorizes IBM and its subsidiaries (and their successors and assigns, contractors, IBM Business Partners, and resellers) to store and use Customer’s business contact information wherever they do business, in connection with the IBM SaaS or in furtherance of IBM's business relationship with Customer. For purposes of this Part III, Subpart A, Section 11 (Business Contact Information), "IBM

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Business Partners" means those certain organizations with whom International Business Machines Corporation (or a subsidiary thereof) has signed agreements to promote, market, and/or support certain software or services.

12. Ownership of Content Customer is solely responsible for the following:

a. ensuring the adequacy of the IBM SaaS elements to satisfy Customer’s requirements; b. all Content including, without limitation, its selection, creation, design, licensing, installation,

accuracy, maintenance, testing, backup and support, c. having all necessary authorizations to allow IBM and its subcontractors to host, cache, record, copy,

and display Content, and Customer represents that Customer has and will keep in effect during Customer’s use of the IBM SaaS all such authorizations and approvals necessary to grant IBM and its subcontractors these rights, and that such rights are provided at no charge to IBM; and

d. the selection and implementation of procedures and controls regarding access, security, encryption, use, transmission, and backup and recovery of Content.

IBM provides only services for the Content. IBM is not the publisher of Content transmitted within the IBM SaaS. By virtue of Customer’s agreeing to these Terms and Conditions, IBM does not claim ownership of any Content. Except as set forth in this Section 12, Customer retains your right, title, and interest in and to the Content, and to display and transfer Content. Customer hereby grants to IBM a nonexclusive, worldwide, royalty-free, fully-paid, transferable license to host, cache, record, copy, and display Content solely for the purpose of providing the IBM SaaS to Customer. IBM may not otherwise use or edit Content except as specifically permitted by these Terms and Conditions. If Customer chooses to transmit Customer’s Content to a third party site which may be linked to or accessible by the IBM SaaS, Customer is providing IBM with the consent to enable such transmission of Content, and Customer remains liable for such transmission.

Customer acknowledges that IBM and its subsidiaries (1) do not control the transfer of data over telecommunications facilities, including the Internet, and (2) in a public Internet environment cannot commit to particular confidentiality obligations. The exchange of any confidential information will be made under a separate, signed confidentiality agreement. The exchange of any confidential information made under any such agreement does not apply to Content. IBM assumes no confidentiality obligations regarding Content, including if Content is modified or lost, notwithstanding the terms of any separate confidentiality agreement between Customer and IBM.

13. Representations and Warranties About Content and Use of the IBM SaaS Customer represents and warrants that:

a. Customer is the owner or authorized licensee of any and all Content; b. you will not publish, post, upload, record, or otherwise distribute or transmit Content that violates the

Acceptable Use Policy or applicable law;

c. Customer’s use of the IBM SaaS will comply with the Acceptable Use Policy; and

d. Customer is the data owner or controller and have all required permissions and consents from any relevant authority and any third party whose Personal Data or other information Customer may have posted or uploaded to the IBM SaaS.

14. Return of Customer’s Content Customer may request that IBM return Customer’s Content within thirty (30) days of the effective date of termination of these Terms and Conditions if Customer is entitled to use the Professional Edition of the IBM SaaS (as described in the Service Description) at the time of termination. If so requested, IBM will create a file containing Customer’s Content and make it available to Customer for download for a period of fifteen (15) days. After the 30-day period following termination or if Customer does not download Customer’s Content within the 15-day period that IBM makes Customer’s Content available for download, IBM shall have no obligation to maintain or provide any of Customer’s Content and shall thereafter, unless legally prohibited, delete all of Customer’s Content in its systems or otherwise in its possession or under its control. The foregoing does not apply to any of Customer’s Content associated with a Free Edition or Evaluation Edition of the IBM SaaS (each as described in the Service Description), which IBM at its discretion may delete from its systems upon any termination of these Terms and Conditions or the IBM SaaS, unless legally prohibited.

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15. Compliance with Applicable Export Law Regardless of Customer’s location when Customer accesses the IBM SaaS, Customer agrees to comply with all applicable export and import laws and regulations, including without limitation United States embargo and sanction regulations and prohibitions on export for certain end users or to certain users. Customer may not export, re-export, divert, transfer, disclose or permit access to any portion of the IBM SaaS, Enabling Software or technical information, directly or indirectly, in violation of any applicable export control or sanctions law or regulation. Customer is also responsible for complying with all other laws, rules, and regulations that may be applicable to Customer’s use of the IBM SaaS and Enabling Software. Customer agrees that the IBM SaaS shall not be used in support of any prohibited end uses, including but not limited to, nuclear facilities, space or missile, and weapons systems (including chemical and biological) or by any prohibited end users, including but not limited to, nationals of Country Group E, identified in Supplement No. 1 to Section 740 of the U.S. Export Administration Regulations, wherever they may be located. Customer understands and acknowledges that IBM may use its global resources, including but not limited to, IBM Affiliates and personnel located in various countries, for the delivery of the IBM SaaS. Customer shall provide IBM with advance written notice prior to posting Content that requires an export license for IBM to provide the IBM SaaS as contemplated herein, including access by IBM or IBM Affiliates worldwide.

16. Charges and Payment a. Charges. Customer’s order will specify the charges, if any, and the charge period for the applicable

IBM SaaS. Charges will begin for a IBM SaaS when the IBM SaaS is enabled and ready for Customer’s use and will continue until the IBM SaaS expires, terminates, or is withdrawn. Customer agrees to pay all applicable charges and any taxes for such IBM SaaS. Recurring charges will be billed at the beginning of each charge period (e.g. monthly, quarterly, or annual) specified in the Service Description or Customer’s order and will be prorated for when a IBM SaaS begins or ends. At the end of the term of a charge period, Customer will be billed for an additional charge period equal in length to the previous charge period and Customer agrees to pay the charges applicable to each additional term, unless Customer notifies IBM thirty (30) days prior to the end of the charge period that Customer would like to cancel Customer’s IBM SaaS. IBM will bill applicable charges to Customer’s credit card on file for Customer’s Account, unless other arrangements have been agreed to by IBM. If IBM provides Customer an invoice, instead of charging Customer’s credit card, amounts are due upon receipt of invoice and payable as specified in the invoice, including late payment fees. IBM SaaS for which Customer prepays must be used within the applicable IBM SaaS period. IBM does not give credits or refunds for any prepayment or other charges already due or paid.

b. Taxes. If any authority imposes upon any IBM SaaS (including the import into or export, transfer, access or use of such IBM SaaS outside the country where these Terms and Conditions were agreed to) a duty, tax, levy, or fee, excluding those based on IBM net income, then Customer agrees to pay that amount as specified in an invoice, unless Customer supplies exemption documentation. For any such amounts, IBM will charge Customer’s credit card, or if applicable, provide an invoice for payment.

17. Indemnification a. Customer agrees to defend, indemnify, and hold harmless IBM and its Affiliates and their officers,

directors, employees, consultants, agents, and suppliers from and against any and all third party claims, liabilities, damages, and/or costs (including, but not limited to, fees, costs and other expenses of attorneys and expert witnesses) arising out of or related to:

(1) Customer’s use of the IBM SaaS or the Enabling Software, including without limitation any unauthorized use by Customer or someone using Customer’s Account;

(2) any violation of these Terms and Conditions or applicable law by Customer; or (3) actual or alleged infringement by Customer, or any person accessing the IBM SaaS using

Customer’s Account, of any intellectual property or privacy or other right of any third party.

b. For indemnification under this Part III, Subpart A, Section 17 (Indemnification), IBM will:

(1) promptly notify Customer in writing of the claim; and (2) allow Customer to control, and will cooperate with Customer in, the defense and any related

settlement negotiations.

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18. Disclaimer of Warranties IBM DOES NOT WARRANT UNINTERRUPTED OR ERROR-FREE OPERATION OF ANY IBM SAAS OR THAT IBM WILL CORRECT ALL DEFECTS. THE IBM SAAS AND ENABLING SOFTWARE (INCLUDING ANY ASSOCIATED DOCUMENTATION, INFORMATION AND MATERIALS) ARE PROVIDED TO CUSTOMER "AS IS" AND IBM, ITS AFFILIATES AND SUPPLIERS EXPRESSLY DISCLAIM ALL WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, 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 CUSTOMER. IN THAT EVENT, SUCH WARRANTIES ARE LIMITED IN DURATION TO THE MINIMUM WARRANTY 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 CUSTOMER.

19. Acceptance of Risk Customer acknowledges and agrees that: (i) use of the IBM SaaS is at Customer’s sole risk; (ii) any material and/or data created, downloaded, or otherwise obtained through the use of the IBM SaaS is at Customer’s own discretion and risk; (iii) Customer will be solely responsible for any damages to Customer resulting from Customer’s use of the IBM SaaS; and (vi) the entire risk arising out of use or performance of the IBM SaaS remains with Customer.

20. Limitation of Liability The limitations and exclusions in this Part III, Subpart A, Section 20 (Limitation of Liability) apply to the full extent they are not prohibited by applicable law without the possibility of contractual waiver.

a. 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 the IBM SaaS, the Enabling Software or otherwise arising under these Terms and Conditions will not exceed the amount of any (i) damages for bodily injury (including death) and damage to real property and tangible personal property and (ii) other actual direct damages, up to the charges (if the IBM SaaS is subject to fixed term charges, up to twelve months' charges) Customer paid for the IBM SaaS or if IBM has provided Customer with access to the IBM SaaS for use during an Evaluation Period then other actual direct damages, up to U.S. $1,000 (or equivalent in local currency).

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

b. Items for Which IBM is Not Liable.

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

(1) LOSS OF, OR DAMAGE TO, DATA; (2) SPECIAL, INCIDENTAL, EXEMPLARY, OR INDIRECT DAMAGES, OR FOR ANY

ECONOMIC CONSEQUENTIAL DAMAGES; OR

(3) LOST PROFITS, BUSINESS, REVENUE, GOODWILL, OR ANTICIPATED SAVINGS.

21. Termination; Withdrawal of IBM SaaS Subject to Part III, Subpart A, Section 5 (Access to IBM SaaS; Suspension and Cancellation), either of us may terminate these Terms and Conditions if the other does not comply with any of its obligations, provided the one who is not complying is given written notice and reasonable time to comply. Notwithstanding anything to the contrary in these Terms and Conditions, if IBM terminates Customer’s

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access to the IBM SaaS due to Customer’s breach of any of the applicable Terms and Conditions (and, in the case of Passport Advantage customers, Customer’s Agreement), IBM is not obligated to issue a refund or credit for any unused portion of the IBM SaaS. Any provisions of these Terms and Conditions which by their nature extend beyond the termination remain in effect until fulfilled, and apply to both of our respective successors and assignees. IBM may withdraw the IBM SaaS in its entirety on written notice to all then current Authorized Users by letter or e-mail. Such notice of withdrawal will be equal in length to the then applicable charge period for the IBM SaaS (e.g., 1 month if monthly, 3 months if quarterly, or 12 months if annually).

22. Governing Law; Exclusive Forum Customer and IBM agree to the application of the laws of the country in which the transaction is performed 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 these Terms and Conditions, without regard to any conflict of law principles or provisions. Customer expressly waives any right to a jury trial for disputes related to the subject matter of these Terms and Conditions. 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 these Terms and Conditions or any transaction under it more than two (2) years after the cause of action arose; and (ii) after such time limit, any such claim and all respective rights related to the claim lapse.

23. Miscellaneous These Terms and Conditions and the IBM SaaS provided hereunder 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. Each party grants only the licenses and rights specified in these Terms and Conditions. No other licenses or rights (including licenses or rights under patents) are granted either directly, by implication, or otherwise. If any part of these Terms and Conditions is determined to be invalid or unenforceable, the remainder of the Terms and Conditions will continue in effect. If any provision(s) is found to be invalid, unenforceable, or contrary to law, then such provision(s) will be construed, as nearly as possible, to reflect the intentions of the parties with the other provisions remaining in full force and effect. IBM's failure to exercise or enforce any right or provision of these Terms and Conditions will not constitute a waiver of such right or provision unless agreed to by IBM in a writing signed by a duly authorized representative of IBM. Nothing in these Terms and Conditions affects any statutory rights of consumers that cannot be waived or limited by contract. Neither party is responsible for failure to fulfill any obligations due to causes beyond its control. No right or cause of action for any third party is created by these Terms and Conditions, nor is IBM responsible for any third party claims against Customer, except as permitted in Part III, Subpart A, Section 20.a. (Items for Which IBM May Be Liable) above for bodily injury (including death) or damage to real or tangible personal property for which IBM is legally liable to that third party. IBM reserves the right to modify these Terms and Conditions, and related Acceptable Use Policy at any time by providing such revised terms to Customer. Customer’s continued use of the Enabling Software or IBM SaaS constitutes Customer’s acceptance to be bound by any such revised terms.

24. Entire Agreement Customer agrees that these Terms and Conditions, any applicable IPLA, and, for Passport Advantage customers only, Customer’s Agreement, constitute the entire agreement between IBM and Customer with respect to the IBM SaaS and supersede all other (prior or contemporaneous) communications and proposals, whether electronic, oral, or non-electronic, between IBM and Customer regarding the IBM SaaS. In the event of a conflict between these Terms and Conditions, the IPLA, if applicable, or the Agreement, if applicable, these Terms and Conditions shall prevail. In entering into this agreement, neither party is relying on any representation not specified in this agreement, including without limitation any representations concerning: i) performance or function of the IBM SaaS, ii) the experiences or recommendations of other parties; or iii) results or savings Customer may achieve. Any terms or conditions contained in any document, including but not limited to a purchase order, acknowledgement, email, or other document that Customer may now or later provide to IBM, will have no effect. These Terms and Conditions may only be amended as set forth herein.

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Subpart B – Country-Unique Terms

The following terms replace or modify the referenced terms in Subpart A. All terms in Subpart A that are not changed by these amendments remain unmodified and in effect. This Subpart B is organized as follows:

� Americas country amendments;

� Asia Pacific country amendments; and

� Europe, Middle East, and Africa country amendments. AMERICAS COUNTRY AMENDMENTS

Multiple country amendments to Part III, Section 22 (Governing Law; Exclusive Forum) 22. Governing Law; Exclusive Forum The phrase "the laws of the country in which the transaction is performed" in the first sentence of Section 22 (Governing Law; Exclusive Forum) is replaced by the following phrases in the countries below:

(1) in Canada: the laws in the Province of Ontario;

(2) in Mexico: the federal laws of the Republic of Mexico; (3) 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;

(4) in Venezuela: the laws of the Bolivarian Republic of Venezuela; The following paragraph pertains and replaces the second sentence in Section 22 (Governing Law; Exclusive Forum) as it applies to those countries identified in bold below:

All rights, duties, and obligations are subject to the courts of the country in which Customer obtained the IBM SaaS license except that in the countries identified below all disputes arising out of or related to these Terms and Conditions, including summary proceedings, will be brought before and subject to the exclusive jurisdiction of the following courts of competent jurisdiction: (1) in Argentina: the Ordinary Commercial Court of the city of Buenos Aires,

(2) in Brazil: the court of Rio de Janeiro, RJ;

(3) in Chile: the Civil Courts of Justice of Santiago;

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

(5) in Mexico: the courts located in Mexico City, Federal District;

(6) in Peru: the judges and tribunals of the judicial district of Lima, Cercado;

(7) in Uruguay: the courts of the city of Montevideo;

(8) in Venezuela: the courts of the metropolitan area of the city of Caracas;

(9) In the United States: the state or federal courts of the State of New York.

ARGENTINA, CHILE, COLUMBIA, ECUADOR, MEXICO, PERU, VENEZUELA, URUGUAY 16. Charges and Payment The following replaces the second paragraph of Section 16.a:

Amounts are due upon receipt of invoice and payable as IBM specifies in a Proof of Entitlement. The currency for payment of amounts due is US dollars or the equivalent in local currency as follows: 1. As long as the country operates in a free currency exchange market, Customer and IBM agree that IBM will accept payment in the applicable country national currency calculated at the country official exchange rate published by the bank specified in a Proof of Entitlement on the date payment is made.

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2. If the government of a country establishes any restriction or limitation on its free currency exchange markets, Customer agrees to make payments to IBM in US dollars to a bank account in New York, NY, USA, designated by IBM in the Proof of Entitlement, provided that such payment is not illegal under country law. If such method of payment is forbidden by country law, Customer agrees to pay the amount indicated in the Proof of Entitlement in country national currency, calculated at the official exchange rate that is in use for the remittance of dividends and net earnings to foreign investors outside the country. 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.

BRAZIL 16. Charges and Payment The following replaces the second paragraph of Section 16.a :

Amounts due are expressed in local currency. Amounts are due upon receipt of invoice and payable in local currency as IBM specifies in a Proof of Entitlement. Customer agrees to pay accordingly, including any 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: 1. two percent of the delinquent amount due per the first thirty day period during which any delinquent balance remains unpaid, plus

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

CANADA 20.a Items for Which IBM May be Liable The following replaces the last sentence in second first paragraph of this Section 20.a (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 for which IBM is legally liable are not subject to a cap on the amount of damages. 23. Miscellaneous The following replaces the antepenultimate sentence of Section 23:

No right or cause of action for any third party is created by these Terms and Conditions, nor is IBM responsible for any third party claims against Customer, except as permitted in Part III, Subpart A, Section 20.a. (Items for Which IBM May Be Liable) 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.

PERU 20. Limitation of Liability The following is added to the end of this Section 20 (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. 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").

ASIA PACIFIC COUNTRY AMENDMENTS

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AUSTRALIA PART I. DEFINITIONS The definition of “Personal Data” is amended and replaced with the following:

Personal Data – any information that can be used to identify a specific individual, such as name, email address, home address, or phone number, that is provided to IBM to tore, process, or transfer and includes Personal Information as defined by the Privacy Act 1988 (Cth). 12. Ownership of Content. The following paragraph is added after the second paragraph of Section 12:

To the extent IBM is collecting any Personal Data, Customer acknowledges that in disclosing the Personal Data to IBM, Customer has undertaken all steps necessary to comply with the disclosure and collection requirements of the National Privacy Principles contained in the Privacy Act 1988, Customer agrees and acknowledges that Customer has taken reasonable steps to disclose to the relevant individuals such information about IBM that is prescribed under National Privacy Principle 1.3 that Customer reasonably believes is necessary for Customer to comply with the National Privacy Principle. 16. Charges and Payment The following paragraph is added after 16.a:

All charges or other amounts payable under these Terms and Conditions are specified to include applicable goods and services tax ("GST").

The following paragraph replaces the first sentence of 16.b in its entirety:

If any government or authority imposes a duty, tax (other than income tax), levy, or fee, on these Terms and Conditions or on the IBM SaaS itself, that is not otherwise provided for in the amount payable, Customer agrees to pay it when IBM invoices Customer. If the rate of GST changes, IBM may adjust the charge or other amount payable to take into account that change from the date the change becomes effective.

18. Disclaimer of Warranties The following is added to the end of Section 18:

The warranties specified this Section are in addition to any rights Customer may have under the Competition and Consumer Act 2010 or other legislation and are only limited to the extent permitted by the applicable legislation. The reference to warranties and conditions throughout these Terms and Conditions includes a reference to guarantees for the purpose of the Competition and Consumer Act 2010.

20.a Items for Which IBM May be Liable The following is added to Section 20.a (Items for Which IBM Maybe Liable):

Where IBM is in breach of a guarantee implied by the Competition and Consumer Act 2010, IBM’s liability is limited to, at IBM’s discretion:

(a) for services:

(1) the supplying of the services again, or

(2) the payment of the cost of having the services supplied again; and

(b) for goods:

(1) the repair or replacement of the goods or the supply of equivalent goods, or

(2) the payment of the cost of replacing the goods or having the goods repaired. Where a guarantee relates to the right to sell, quiet possession, or clear title of a good under schedule 2 of the Competition and Consumer Act 2010, 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.

22. Governing Law; Exclusive Forum The phrase "the laws of the country in which the transaction is performed" in the first sentence of Section 22 (Governing Law; Exclusive Forum) is replaced by the following:

the laws of the State or Territory in which the transaction is performed.

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CAMBODIA AND LOAS 22. Governing Law; Exclusive Forum The phrase "the laws of the country in which the transaction is performed" in the first sentence of Section 22 (Governing Law; Exclusive Forum) is replaced by the following:

the laws of the State of New York, United States CAMBODIA, LAOS, AND VIETNAM

22. Governing Law; Exclusive Forum The following paragraph is added as a new paragraph to Section 22 (Governing Law; Exclusive Forum). The provisions of the following paragraph prevail over those provisions regarding jurisdiction in the second sentence of Section 22, to the extent permitted by the applicable governing law and rules of procedure:

Disputes arising out of or in connection with these Terms and Conditions 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 these Terms and Conditions prevails over any other language version.

HONG KONG SAR AND MACAU SAR, AND TAIWAN 16. Charges and Payment As applies to IBM SaaS obtained in Taiwan and the special administrative regions, phrases throughout these Terms and Conditions containing the word "country" (for example, "the country where these Terms and Conditions were agreed to") are replaced with the following:

(1) In Hong Kong SAR: "Hong Kong SAR"

(2) In Macau SAR: "Macau SAR" except in the Governing Law clause (Section 20)

(3) In Taiwan: "Taiwan."

22. Governing Law; Exclusive Forum The phrase "the laws of the country in which the transaction is performed" in the first sentence of Section 22 (Governing Law; Exclusive Forum) is replaced by the following phrases in the countries below:

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

(2) in Taiwan: the laws of Taiwan INDIA


Disputes arising out of or in connection with these Terms and Conditions 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

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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 these Terms and Conditions prevails over any other language version.

The following replaces the last sentence of Section 22:

If no suit or other legal action is brought, within three years after the cause of action arose, in respect of any claim that either party may have against the other, the rights of the concerned party in respect of such claim will be forfeited and the other party will stand released from its obligations in respect of such claim.

INDONESIA 5. Access to IBM SaaS; Suspension and Cancellation The following is added to the last paragraph:

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.

The sentence "IBM reserves the right to suspend or discontinue the IBM SaaS, revoke Customer’s access to the IBM SaaS or delete Customer’s Content if IBM believes that Customer is in breach of these Terms and Conditions or the Acceptable Use Policy" should read:

IBM reserves the right to suspend or discontinue the IBM SaaS or terminate these Terms and Conditions between Customer and IBM, revoke Customer’s access to the IBM SaaS or delete Customer’s Content if IBM believes that Customer is in breach of these Terms and Conditions or the Acceptable Use Policy.



JAPAN

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16. Charges and Payment Add the following sentence:

Customer agrees to pay within 30 days from our invoice date. 21. Termination; Withdrawal of IBM SaaS. The following paragraph is added to this section:

When all or a substantial portion of either party’s assets, credits, or businesses are so changed as to make continued performance of that partys’ obligations impracticable or impossible, the other party may terminate these Terms and Conditions with prior written notice.

MALAYSIA 20.b Items for Which IBM Is not Liable

The word "SPECIAL" in Section 20.b is deleted. NEW ZEALAND

PART I. DEFINITIONS The definition of “Personal Data” is amended and replaced with the following:

Personal Data – any information that can be used to identify a specific individual, such as name, email address, home address, or phone number, that is provided to IBM to tore, process, or transfer and includes Personal Information as defined by the Privacy and Personal Information Protection Act.

16. Charges and Payment The following paragraph is added after 16.a:

All charges or other amounts payable under these Terms and Conditions are specified to include applicable goods and services tax ("GST").

The following paragraph replaces the first sentence of 16.b in its entirety:

If any government or authority imposes a duty, tax (other than income tax), levy, or fee, on this Agreement or on the Eligible Product itself, that is not otherwise provided for in the amount payable, Customer agrees to pay it when IBM invoices Customer. If the rate of GST changes, IBM may adjust the charge or other amount payable to take into account that change from the date the change becomes effective.

18. Disclaimer of Warranties The following is added to this Section:

The warranties specified in this Section are in addition to any rights Customer may have under the Consumer Guarantees Act 1993 or other legislation which cannot be excluded or limited. The Consumer Guarantees Act 1993 will not apply in respect of any goods which IBM provides, if Customer requires the goods for the purposes of a business as defined in that Act.

20. Limitation of Liability The following is added:

Where the IBM SaaS is 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.

PEOPLE'S REPUBLIC OF CHINA 22. Governing Law; Exclusive Forum The following paragraph is added as a new paragraph to Section 22 (Governing Law; Exclusive Forum). The provisions of the following paragraph prevail over those provisions regarding jurisdiction in the second sentence of Section 22, to the extent permitted by the applicable governing law and rules of procedure:

In the event of a dispute, 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, these Terms and Conditions will continue to be performed except for the part which the parties are disputing and which is undergoing arbitration.

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PHILIPPINES 22. Governing Law; Exclusive Forum The following paragraph is added as a new paragraph to Section 22 (Governing Law; Exclusive Forum). The provisions of the following paragraph prevail over those provisions regarding jurisdiction in the second sentence of Section 22, to the extent permitted by the applicable governing law and rules of procedure:


EUROPE, MIDDLE EAST, AFRICA (EMEA) COUNTRY AMENDMENTS EMEA-WIDE

16. Charges and Payment The following replaces the second paragraph of Section 16.a for the following countries except as noted:

Amounts are due and payable upon receipt of invoice. Customer agrees to pay accordingly, including any late payment charges. If payment is not made 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 payment charges.

The late payment charges are calculated as follows: Belgium and Luxembourg: Replace the first sentence in the second paragraph of the above EMEA-wide text with the following:

Any amounts not paid within the terms stated on the IBM invoice will be subject to a late payment fee that will be equal to 1% per period of 30 days, based on the outstanding balance VAT included, until paid in full. Late payment fees due will have to be paid at the end of each period of 30 days.

Denmark and Sweden: Interest according to the Late Payment Interest Act apportioned to the number of days of delay.

Estonia, Latvia and Lithuania: 2% per month apportioned to the number of days of delay.

Finland: Interest according to the Act on interest rate apportioned to the number of days of delay.

France: In compliance with the law of May 15th, 2001 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 7 points.

Germany: Late payment fees will be calculated according to the German statutory rate.

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In the second paragraph of the above EMEA-wide text replace both usages of "date of invoice" with the following:

due date Greece: The following replaces the above EMEA-wide text:

Amounts are due and payable upon receipt of invoice. If payment is not made within 30 days from the date of invoice, Customer may be subject to late payment fees. The late payment fees will be calculated, per day of actual delay, from the due date of the invoice, based on the maximum rate of late payment fee allowed by law.

Italy: Replace the final paragraph of the above EMEA-wide text with the following:

The late payment charges will be calculated, per day of actual delay, based on the prime rate published by the Italian Banking Association ABI in effect on the last day of the month the payment has been received by IBM, increased by three points.

In case of no payment or partial payment and following a formal credit claim procedure or trial IBM might initiate, the late payment fee will be calculated from the due date of the invoice based on the prime rate published by the Italian Banking Association ABI in effect on the last day of the month the payment was due, increased by three points. IBM can transfer the credit to a factoring company; if we do so we will advise Customer in writing.

Netherlands: The following replaces the second and third sentences of the EMEA-wide text:

If payment is not made within 30 days from the date of invoice, Customer will be in default without the necessity of a default notice. In such case Customer will be subject to late payment fees of 1% per month.

Norway: Interest according to the Late Payment Interest Act apportioned to the number of days of delay.

South Africa, Namibia, Lesotho, Swaziland: Such charges shall accrue daily from the date payment must have been received by IBM, and will be equal to 2% (two percent) above the ruling prime rate (of a bank designated by IBM) on any outstanding payment.

Spain:

Such fees will be calculated applying 1% of the charges per month to the number of days of delay. UK and Ireland:

Such charges will be calculated at a monthly rate of 2% of the invoice amount, or as permitted by applicable law.

UK, Ireland, South Africa, Namibia, Lesotho, Swaziland: Add the following:

IBM's rights relating to late payment charges shall be in addition to any other right that IBM may have in the event that Customer failes to make any payment due to IBM under these Terms and Conditions.

IBM reserves the right to require payment in advance of delivery or other security for payment. 20. Limitation of Liability The following term applies to all countries in Europe, the Middle East, and Africa, unless a specific country term states otherwise:

20.a. Items for which IBM May be Liable. In the first paragraph, the following replaces “U.S. $100,000”:

EUR 500,000 (five hundred thousand euro) 22. Governing Law; Exclusive Forum

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The phrase "the laws of the State of country in which the transaction is performed" in the first sentence of Section 22 (Governing Law; Exclusive Forum) is replaced by the following phrases in the countries below:

(1) in Albania, Armenia, Azerbaijan, Belarus, Bosnia-Herzegovina, Bulgaria, Croatia, Former Yugoslav Republic of Macedonia, Georgia, Hungary, Kazakhstan, Kyrgyzstan, Moldova, Montenegro, Poland, Romania, Russia, Serbia, Slovakia, Tajikistan, Turkmenistan, Ukraine, and Uzbekistan: the laws of Austria;

(2) in Algeria, Andorra, Benin, Burkina Faso, 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;

(3) in Estonia, Latvia, and Lithuania: the laws of Finland; (4) in Angola, Bahrain, Botswana, Burundi, Egypt, Eritrea, Ethiopia, 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

(5) in South Africa, Namibia, Lesotho and Swaziland: the laws of the Republic of South Africa The following paragraph pertains to jurisdiction and replaces the second sentence in Section 22 (Governing Law; Exclusive Forum) as it applies for those countries identified in bold below:

All rights, duties, and obligations are subject to the courts of the country in which Licensee obtained the Program license except that in the countries identified below all disputes arising out of or related to these Terms and Conditions, including summary proceedings, will be brought before and subject to the exclusive jurisdiction of the following courts of competent jurisdiction: (1) in Austria: the court of law in Vienna, Austria (Inner-City); (2) 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; (3) in Angola, Bahrain, Botswana, Burundi, Egypt, Eritrea, Ethiopia, 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 English courts; (4) in South Africa, Namibia, Lesotho and Swaziland: the High Court in Johannesburg;

(5) in Greece: the competent court of Athens;

(6) in Israel: the courts of Tel Aviv-Jaffa;

(7) in Italy: the courts of Milan;

(8) in Portugal: the courts of Lisbon;

(9) in Spain: the courts of Madrid; and (10) in Turkey: the Istanbul Central Courts and Execution Directorates of Istanbul, the Republic of Turkey.

The following paragraph is added as a new paragraph as it applies for those countries identified in bold below. The provisions of this paragraph prevail over those provisions regarding jurisdiction in the second sentence of Section 22, to the extent permitted by the applicable governing law and rules of procedure:

(1) In Albania, Armenia, Azerbaijan, Belarus, Bosnia-Herzegovina, Bulgaria, Croatia, Former Yugoslav Republic of Macedonia, Georgia, Hungary, Kazakhstan, Kyrgyzstan, Moldova, Montenegro, Poland, Romania, Russia, Serbia, Slovakia, Tajikistan, Turkmenistan, Ukraine, and Uzbekistan:

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All disputes arising out of these Terms and Conditions or related to its violation, termination or nullity will be finally settled under the Rules of Arbitration and Conciliation of the International Arbitral Center of the Federal Economic Chamber in Vienna (Vienna Rules) by three arbitrators appointed in accordance with these rules. The arbitration will be held in Vienna, Austria, and the official language of the proceedings will be English. The decision of the arbitrators will be final and binding upon both parties. Therefore, pursuant to paragraph 598 (2) of the Austrian Code of Civil Procedure, the parties expressly waive the application of paragraph 595 (1) figure 7 of the Code. IBM may, however, institute proceedings in a competent court in the country of installation. (2) In Estonia, Latvia, and Lithuania:

All disputes arising in connection with these Terms and Conditions 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.

EUROPEAN UNION MEMBER STATES The following is added to Section 18: Disclaimer of Warranties

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 18: Disclaimer of Warranties.

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 10: Privacy as a new section c.

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) provided by or through Customer to IBM. "EU Data Protection Laws" means the Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to processing of personal data and on the free movement of such data, as well as the data protection Acts and developing legislation in the EU 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 IBM SaaS and only for that purpose. IBM will follow Customer’s reasonable processing instructions with respect to the Personal Data and IBM will use its reasonable endeavours to apply the security measures as set forth in this Terms and Conditions or as notified to IBM in writing in advance. Customer is responsible for determining that these measures provide an appropriate level of protection. Customer agrees that IBM, in providing the IBM SaaS, may transfer Customer’s data, including Personal Data, across a country border, including outside the European Economic Area (EEA), if IBM reasonably considers such transfer appropriate or useful for IBM's performance of the IBM SaaS and reasonably cooperates with Customer to meet legal requirements. Customer is solely responsible for determining that any transfer by IBM or Customer of Personal Data, across a country border under these Terms and Conditions complies with the applicable data protection laws.

The following language is added as Section 25: Business Contact Information

25. Business Contact Information (1) Definitions – For the purposes of this Section 25, the following additional definitions apply:

(a) Business Contact Information – business-related contact information disclosed by Customer to IBM, including names, job titles, business addresses, telephone numbers and email addresses of Customer’s employees and contractors. For Austria, Italy and Switzerland, Business Contact Information also includes information about Customer and Customer’s contractors as legal entities (for example, Customer’s revenue data and other transactional information) (b) Business Contact Personnel – Customer’s employees and contractors to whom the Business Contact Information relates. (c) Data Protection Authority – the authority established by the Data Protection and Electronic Communications Legislation in the applicable country or, for non-EU countries, the authority

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responsible for supervising the protection of personal data in that country, or (for any of the foregoing) any duly appointed successor entity thereto. (d) Data Protection & Electronic Communications Legislation – (i) the applicable local legislation and regulations in force implementing the requirements of EU Directive 95/46/EC (on the protection of individuals with regard to the processing of personal data and on the free movement of such data) and of EU Directive 2002/58/EC (concerning the processing of personal data and the protection of privacy in the electronic communications sector); or (ii) for non-EU countries, the legislation and/or regulations passed in the applicable country relating to the protection of personal data and the regulation of electronic communications involving personal data, including (for any of the foregoing) any statutory replacement or modification thereof. (e) IBM Group – International Business Machines Corporation of Armonk, New York, USA, its subsidiaries, and their respective Business Partners and subcontractors.

(2) Customer authorizes IBM to: (a) process and use Business Contact Information within IBM Group in support of Customer including the provision of support services, and for the purpose of furthering the business relationship between Customer and IBM Group, including, without limitation, contacting Business Contact Personnel (by email or otherwise) and marketing IBM Group products and services (the "Specified Purpose"); and

(b) disclose Business Contact Information to other members of IBM Group in pursuit of the Specified Purpose only.

(3) IBM agrees that all Business Contact Information will be processed in accordance with the Data Protection & Electronic Communications Legislation and will be used only for the Specified Purpose. (4) To the extent required by the Data Protection & Electronic Communications Legislation, Customer represents that (a) Customer has obtained (or will obtain) any consents from (and have issued (or will issue) any notices to) the Business Contact Personnel as are necessary in order to enable IBM Group to process and use the Business Contact Information for the Specified Purpose. (5) Customer authorizes IBM to transfer Business Contact Information outside the European Economic Area, provided that the transfer is made on contractual terms approved by the Data Protection Authority or the transfer is otherwise permitted under the Data Protection & Electronic Communications Legislation.

AUSTRIA 16. Charges and Payment Replace the above EMEA-wide text in the second paragraph of Section 16.a with the following:

Payment in full is due and payable without deduction upon receipt of invoice. Customer agrees to pay accordingly, including any late payment fees. If the invoice amount is not received on IBM's account within 30 days, upon due date, IBM may charge late payment fees at the rate indicated in the Proof of Entitlement.

18. Disclaimer of Warranties If Customer paid a charge for the IBM SaaS then the Section 18 (Disclaimer of Warranties) is renamed "Warranties and Exclusions" and is replaced in its entirety by the following:

18. Warranties and Exclusions IBM provides the IBM SaaS in conformity with its descriptions as contained in the Service Description Appendix of this Terms and Conditions as well as at the IBM Blueworks Live web site and maintains it in this condition for the term of the IBM SaaS. IBM, its Affiliates and suppliers disclaim all further warranties ("Ausschluß der Gewährleistung"). Warranties, if any, for Enabling Software supplied as part of this IBM SaaS may be found in their license agreements.

20. 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.

20.a Items for Which IBM May Be Liable

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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 these Terms and Conditions or other liability, Customer 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)". 20.b Items for Which IBM Is Not Liable The following replaces Section 20.b(2):

b. indirect damages or consequential damages; or Austria, Denmark, Estonia, Finland, Latvia, Lithuania, Norway, Sweden: 16. Charges and Payment The following is omitted in 16.b:

(excluding those based on IBM's net income) Belgium, France, UK, Ireland, South Africa, Namibia, Lesotho, Swaziland: 16. Charges and Payment Delete16.b.

BELGIUM, FRANCE, ITALY, AND LUXEMBOURG (FOR EVALUATION PERIODS ONLY) 20. Limitation of Liability The following replaces the terms of Section 20 (Limitation of Liability) in its entirely, when the IBM SaaS is used during an Evaluation Period only.

Except as required by mandatory law:

20.1 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 these Terms and Conditions or due to any other cause related to these Terms and Conditions 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 of EUR 500,000 (five hundred thousand eruo). 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.

20.2 Items for Which IBM Is Not Liable UNDER NO CIRCUMSTANCES IS IBM OR ANY OF ITS PROGRAM DEVELOPERS LIABLE FOR ANY OF THE FOLLOWING, EVEN IF INFORMED OF THEIR POSSIBILITY: 1) LOSS OF, OR DAMAGE TO, DATA; 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.

20.3 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 suppliers and Program developers, and represents the maximum amount for which IBM as well as its suppliers and Program developers are collectively responsible

GERMANY 18. Disclaimer of Warranties If Customer paid a charge for the IBM SaaS then the Section 18 (Disclaimer of Warranties) is renamed "Warranties and Exclusions" and is replaced in its entirety by the following;

18. Warranties and Exclusions IBM provides the IBM SaaS in conformity with its descriptions as contained in the Service Description Appendix of this Terms and Conditions as well as at the IBM Blueworks Live web site

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and maintains it in this condition for the term of the IBM SaaS. IBM, its Affiliates and suppliers disclaim all further warranties ("Ausschluß der Gewährleistung"). Warranties, if any, for Enabling Software supplied as part of this IBM SaaS may be found in their license agreements.

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

a. IBM will be liable without limit for 1) loss or damage caused by a breach of an express guarantee; 2) 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 Customer is 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 500,000 euro or the charges (if the Program is subject to fixed term charges, up to 12 months' charges) Customer paid for the IBM SaaS 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: 1) IBM will pay to Customer an amount not exceeding the loss or damage caused by IBM's delay and 2) IBM will be liable only in respect of the resulting damages that Customer suffers, subject to the provisions of Items a and b above.

FRANCE 23. Miscellaneous The following is added to the end of this section:

If Customer disagrees with the change, Customer may terminate the transaction by notifying IBM, in writing, within 15 days after the date of IBM’s notification to Customer of the change. All notices will be sent to the other party by registered letter.

IRELAND AND UNITED KINGDOM 20. Limitation of Liability The following is added:

Nothing in this Section shall have the effect of excluding or limiting liability for fraud. 20.a Items for Which IBM May Be Liable The following replaces the first paragraph of Section 20.a:

For the purposes of this section, a "Default" means any act, statement, omission or negligence on the part of IBM in connection with, or relating to, any Program license granted, any goods sold, or services rendered by IBM under these Terms and Conditions in respect of which IBM is legally liable to Customer, 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 these Terms and Conditions 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 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 Customer as an immediate and direct consequence of the Default, up to the greater of (1) 500,000 euro (or the equivalent in local currency) or (2) 125% of the charges (if the IBM SaaS is subject to fixed term charges, up to 12 months' charges) for the IBM SaaS 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.

20.b Items for Which IBM is Not Liable The following replaces Sections 20.b(2) and 20.b(3):

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

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

16. Charges and Payment Add the following paragraphs to 16.a:

We may apply Customer’s payment to Customer’s other outstanding invoices. Our rights relating to late payment charges shall be in addition to any other right that we may have in the event that Customer fails to make any payment due to us under these Terms and Conditions. We reserve the right to also base our decision on the conclusion of an agreement with Customer on Customer’s solvency and to require payment in advance of delivery or other security for payment. Customer’s obligation to pay is unconditional and shall not be subject to any abatement, reduction, set-off, defense, counter-claim interruption, deferment or recoupment.

Replace 16.b with the following:

Customer agrees to pay all taxes and duties, regardless of their qualification, unless specified otherwise on the invoice.

SOUTH AFRICA, NAMIBIA, LESOTHO, SWAZILAND 16. Charges and Payment Add the following additional sentence:

When Customer makes payment by cheque, payment is deemed to have been made only when Customer’s cheque has been received by IBM and our relevant account has been credited by IBM's authorised bankers.

TURKEY 16. Charges and Payment The following replaces the second paragraph of Section 16.a

Amounts are due and payable upon receipt of invoice. Customer agrees to pay accordingly, including any late payment charges. If payment is not made within 30 days from the date of invoice, Customer may be subject to late payment charges.

Add the following to the end of this section:

Customer is responsible for all banking charges (including, but not limited to, LC charges, commissions, stamps, and extensions) incurred within and outside of Turkey.

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Appendix A

Acceptable Internet Use Policy for IBM Services

This Acceptable Use Policy ("Policy") outlines unacceptable use of IBM services which interact with, or access, the Internet (the "Internet Services"). This Policy is in addition to any other terms and conditions under which IBM provides the Internet Services to Customer. IBM may make reasonable modifications to this Policy from time to time by posting a new version of this document on the IBM Web site at "http://www.ibm.com/services/aup.html" (or any successor URL(s)). Revisions are effective immediately upon posting. Accordingly, we recommend that Customer visits the IBM Web site regularly to ensure that Customer’s activities conform to the most recent version. Questions about this Policy (e.g., whether any contemplated use is permitted) and reports of violations of this Policy should be directed to [email protected]. The examples listed in this Policy are not exhaustive. Prohibited uses and activities include, without limitation, any use of the Internet Services in a manner that, in IBM's reasonable judgment, involves, facilitates, or attempts any of the following:

a. violating any law of, or committing conduct that is tortious or unlawful in, any applicable jurisdiction;

b. gambling activities; c. displaying, performing, sending, receiving or storing any content that is obscene, pornographic,

lewd, lascivious, or excessively violent, regardless of whether the material or its dissemination is unlawful;

d. advocating or encouraging violence against any government, organization, group, individual or property, or providing instruction, information, or assistance in causing or carrying out such violence, regardless of whether such activity is unlawful;

e. accessing, sending, receiving, displaying, performing, disclosing, storing, or executing any content (1) in violation of any copyright, right of publicity, patent, trademark, service mark, trade name,

trade secret or other intellectual property right,

(2) in violation of any applicable agreement, or

(3) without authorization; f. deleting or altering author attributions, copyright notices, or trademark notices, unless expressly

permitted in writing by the owner;

g. obtaining unauthorized access to any system, network, service, or account; h. interfering with service to any user, site, account, system, or network by use of any program, script,

command, or otherwise;

i. introducing or activating any viruses, worms, harmful code and/or Trojan horses;

j. sending or posting unsolicited messages or e-mail, whether commercial or not, a) to any recipients who have requested that messages not be sent to them, or b) to a large number of recipients, including users, newsgroups, or bulletin boards, at one time;

k. evading spam filters, or sending or posting a message or e-mail with deceptive, absent, or forged header or sender identification information;

l. propagating chain letters or pyramid schemes, whether or not the recipient wishes to receive such mailings;

m. holding IBM, its Affiliates, officers, employees and/or shareholders up to public scorn or ridicule; and/or

n. reselling IBM's services, in whole or in part, to any entity or individual, without IBM's prior written consent, or misrepresenting Customer’s relationship with IBM.

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Appendix B

Service Description The IBM Blueworks Live IBM SaaS is a web-based business process discovery and documentation tool available at www.blueworkslive.com. The IBM SaaS consists of either the Professional Edition, the Free Edition or the Evaluation Edition, as described below. IBM reserves the right to modify the IBM SaaS and/or any components thereof, the User Guide, its support policies and service levels, its security and privacy policies and any other information and/or policies as set forth and described at the foregoing websites at its sole discretion and without prior notice, but this will not affect the security procedures and controls Customer has applied to protect Customer’s Content.

The IBM SaaS is available for use by three different types of Authorized Users.

a. Community Authorized User

� View and Post Messages in a Community

b. Contributor Authorized User

� View and Post Messages in a Community

� Configure Process Templates

� View, Comment On, and Run Processes

� Collaboration

c. Editor Authorized User

� All Contributor Features

� Create, Edit, and Share Processes

� Visio Import of Processes

� Export Processes

� File Attachments

� IBM WebSphere Lombardi Edition Integration

1. Editions Customer must purchase at least one (1) Blueworks Live Editor or Contributor Authorized User in order to access and use the Professional Edition of the IBM SaaS.

1.1 Free Edition � 1 Editor Authorized User

� Community Authorized Users

� 10 Process Maps

� Technical Support: Not available

1.2 Professional Edition � Editor Authorized Users

� Contributor Authorized Users

� Community Authorized Users

� IBM WebSphere Lombardi Edition Integration

� Technical Support: e-mail only

1.3 Evaluation Edition If IBM has provided Customer with access to the IBM SaaS for use on a trial basis, then Customer may only access and use the IBM SaaS during the Evaluation Period.

� Evaluation Period = 30 Days

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� Technical Support: e-mail only

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