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International Software and Support Customer AgreementThis Lenovo International Software and Support Customer Agreement ("Agreement") includes Part 1 - General Terms andPart 2 - Country-unique Terms. Under this Agreement, Customer may order Eligible Products from Lenovo. Detailsregarding Eligible Products are provided in Attachments, Service Descriptions, Terms of Use and Transaction Documents("TDs"). This Agreement and applicable TDs are the complete agreement regarding the transaction by which Customeracquires Eligible Products. If there is a conflict, a TD prevails over the terms of this Agreement.Part 1 - General Terms1.General1.1Acceptance of TermsCustomer accepts this Agreement by accepting the terms of the associated Lenovo Customer Agreement or BYDOWNLOADING, INSTALLING, COPYING, ACCESSING, CLICKING ON AN “ACCEPT” BUTTON, OR OTHERWISEUSING THE PROGRAM, LICENSEE, ON BEHALF OF ITSELF AND ITS ASSIGNEES AND SUCCESSORS IN TITLE,AGREES TO THE TERMS OF THIS AGREEMENT.An Eligible Product is subject to this Agreement when Lenovo accepts an order from Customer or Customer’s Reseller by: i)sending an invoice or a Proof of Entitlement ("PoE") including the level of authorized use; ii) making the Program available;or iii) providing the support Services.1.2DefinitionsAppliance means a hardware Product which is any combination of Programs, Program Components, Machine Componentsand any applicable Machine Code Components offered together as a single offering and designed for a particular function.Customer means an entity that acquires Eligible Products for use within its Enterprise.Eligible Products mean an Appliance, Program or Service offering.Enterprise means a party to this Agreement, and any entity that is controlled by, controls, or is under common control orownership with such party, including its sister companies, parent, affiliates or subsidiaries.Fixed Term License means licenses that have a term that begins on the date that Customer’s order is accepted by Lenovo,or on the calendar day following the expiration of a prior fixed term. A Fixed Term License is for the definite time specified byLenovo in a TD.Lenovo means Lenovo PC HK Limited or an affiliate thereof.Machine Component means hardware parts of an Appliance such as processors, storage or other functionality.Monthly License means a monthly license charge.Monthly License Programs ("ML Programs") means Programs provided to Customer for a monthly license charge. MLPrograms have a term that begins on the date that Customer’s order is accepted by Lenovo and continues for a period ofmonths that Customer commits to pay Lenovo ("Commitment Term") as specified in the TD.Product means any Lenovo branded or third party hardware or software program that Lenovo makes available for purchaseby Customer under this Agreement.Program means a software program and the following, including the original and all whole or partial copies: 1) machinereadable instructions and data, 2) components, files, and modules, 3) audio-visual content (such as images, text, recordings,or pictures), and 4) related licensed materials (such as keys and documentation).Program Code means the actual code or documentation of a Program.Program Components means components, files or modules. Unless otherwise provided, terms that apply to a Programapply to the Program Components.Selected Support means Software Subscription and Support that may be available for: (i) third party Programs or for; (ii)Programs licensed under the Lenovo International License Agreement for Non-Warranted Programs (“Selected Programs”).Service means the performance of a task; the provision of advice or assistance; or access to a resource such as aninformation database that Lenovo makes available to Customer under this Agreement.Software Subscription and Support means support Services for defect corrections, restrictions, bypasses, and any newProgram versions, releases, or updates Lenovo makes generally available.1.3Payment and TaxesCustomer agrees to pay all applicable charges specified by Lenovo, charges for use in excess of authorizations, anycustoms or other duty, tax, levy, or fee imposed by any authority resulting from Customer’s acquisitions under thisAgreement, and any late payment fees. All amounts are due upon receipt of the invoice. Any amounts not received byLenovo within thirty (30) days of receipt of invoice shall be overdue. Customer shall pay a late payment fee of the lesser ofL814-0005-00 Lenovo International Software and Support Customer Agreement 6.206Page 1 of 8
one and one half (1.5%) percent per month or the maximum rate permitted by applicable law on the undisputed overduebalance of the invoice amount. Prepaid services must be used within the applicable period. Lenovo does not give credits orrefunds for any prepaid, one-time charges, or other charges already due or paid.Customer shall: i) pay withholding tax directly to the appropriate government entity where required by law; ii) furnish a taxcertificate evidencing such payment to Lenovo; iii) pay Lenovo only the net proceeds after tax; and iv) fully cooperate withLenovo in seeking a waiver or reduction of such taxes and promptly complete and file all relevant documents.1.4Lenovo ResellersLenovo resellers are independent from Lenovo, sell products and services to end user Customer's and unilaterally determinetheir prices and terms. Lenovo is not responsible for their actions, omissions, statements, or offerings.1.5Liability and IndemnityLenovo’s entire liability for all claims related to this Agreement will not exceed any actual direct damages incurredby Customer up to the amounts paid (if recurring charges, up to 12 months’ charges apply) for the product orservice that is the subject of the claim, regardless of the basis of the claim. This limit applies collectively toLenovo, its affiliates, contractors, and suppliers. Lenovo will not be liable for special, incidental, exemplary,indirect, or economic consequential damages, or lost profits, business, revenue, goodwill, or anticipated savings.The following amounts, if a party is legally liable for them, are not subject to the above cap: i) third party payments referred toin the paragraph below; ii) damages for body injury (including death); iii) damages to real property and tangible personalproperty; and iv) damages that cannot be limited under applicable law.If a third party asserts a claim against Customer that a Lenovo Eligible Product acquired under this Agreement infringes apatent or copyright, Lenovo will defend Customer against that claim and pay amounts finally awarded by a court againstCustomer or included in a settlement approved by Lenovo, provided that Customer promptly: (i) notifies Lenovo in writing ofthe claim; (ii) supplies information requested by Lenovo; and (iii) allows Lenovo to control, and reasonably cooperates in, thedefense and settlement, including mitigation efforts.Lenovo has no responsibility for claims based, in whole or part, on third party products, items not provided by Lenovo, or anyviolation of law or third party rights caused by Customer’s content, materials, designs, specifications, or use of a non-currentversion or release of a Lenovo Eligible Product when an infringement claim could have been avoided by using a currentversion or release. Each third party program is governed by the terms of the third party end user license agreement thataccompanies it. Lenovo is not a party to the third party end user license agreement and assumes no obligations under it.1.6GeneralParties will not disclose confidential information without a separate, signed confidentiality agreement. If confidentialinformation is exchanged, the confidentiality agreement is incorporated into, and subject to, this Agreement.Lenovo is an independent contractor, not Customer’s agent, joint venturer, partner, or fiduciary, and does not undertake toperform any of Customer’s regulatory obligations, or assume any responsibility for Customer’s business or operations. Eachparty determines the assignment of its personnel and contractors, their direction, control, and compensation.Customer is responsible for obtaining all necessary permissions to use, provide, store and process content in any services,maintenance, software or support, and grants Lenovo permission to do the same. Some of Customer’s content may besubject to governmental regulation or may require security measures beyond those specified by Lenovo for an offering.Customer will not input or provide such content unless Lenovo has first agreed in writing to implement additional requiredsecurity measures.Customer is responsible to pay communications charges associated with accessing Appliance Services, Lenovo SoftwareSubscription and Support and Select Support unless Lenovo specifies otherwise in writing.Lenovo,its affiliates and subcontractors may store, use and process business contact information of Customer, its employeesand contractors. Such information may be transferred by Lenovo to any country where Lenovo does business; and may beprovided to entities acting on Lenovo’s behalf in relation to this Agreement and the Products, Services and Software. Lenovomay also disclose such information where required by law. In the event that such information constitutes personal dataLenovo shall treat such personal data in accordance with applicable data protection requirements. You hereby consent andagree to the collection, processing and use by Lenovo of personal data of Customer, its employees and contractors for usein connection with this Agreement and agree you have obtained any necessary consents. Neither party may assign thisAgreement, in whole or in part, without the prior written consent of the other. Neither party shall unreasonably withhold suchconsent. The assignment of this Agreement, in whole or in part, by either party to an affiliate or to a successor organizationby merger or acquisition, does not require the consent of the other party. Lenovo may assign this agreement in its entirety toan affiliate without notice or Customer’s consent.Unless specified otherwise by Lenovo, Eligible Products are for use within the Customer's Enterprise only, and may not beassigned, resold, rented, leased, or transferred to third parties. Any attempt to do so is void.All notices under this Agreement must be in writing and sent to the address below, unless a party designates in writing adifferent address. The parties consent to use electronic means and facsimile transmissions for communications as a signedwriting. Any reproduction of this Agreement made by reliable means is considered an original. This Agreement supersedesany course of dealing, discussions or representations between the parties.Lenovo may change the terms of this Agreement on one (1) month's written notice to Customer. In such event, Customermay terminate this Agreement effective upon the last day of the notice period.L814-0005-00 Lenovo International Software and Support Customer Agreement 6.206Page 2 of 8
No right or cause of action for any third party is created by this Agreement or any transaction under it. Neither party will bringa legal action arising out of or related to this Agreement more than two (2) years after the cause of action arose. Neitherparty is responsible for failure to fulfill its non-monetary obligations due to causes beyond its control. Each party will allowthe other reasonable opportunity to comply before it claims the other has not met its obligations. Where approval,acceptance, consent, access, cooperation or similar action by either party is required, such action will not be unreasonablydelayed or withheld.1.7Governing Laws and Geographic ScopeEach party is responsible for complying with: i) laws and regulations applicable to its business and content, and ii) import,export and economic sanction laws and regulations, including those of the United States that prohibit or restrict the export,re-export, or transfer of products, technology, services or data, directly or indirectly, to or for certain countries, end uses orend users. Customer is responsible for its use of Lenovo Eligible Products and any third party products.Both parties agree to the application of the laws of the country where the transaction is performed (or for services, the lawsof the country of Lenovo’s business address ) under this Agreement, without regard to conflict of law principles. All rights,duties and obligations of each party are subject to the courts of the country where the transaction is performed or, if Lenovoagrees, the country where the Eligible Product is placed in productive use, except all licenses are valid as specificallygranted.If any provision is invalid or unenforceable, the remaining provisions remain in full force and effect. Nothing in this Agreementaffects statutory rights of consumers that cannot be waived or limited by contract.The United Nations Convention on Contracts for the International Sale of Goods does not apply to transactions under thisAgreement.1.8Eligible ProductsLenovo determines Eligible Products, and can add or withdraw Eligible Products, or add or withdraw a license metric for anEligible Product at any time.For an Eligible Product, Lenovo may withdraw a Fixed Term License, Lenovo Software Subscription and Support, and SelectSupport, Monthly License in its entirety, or an Appliance Service in its entirety (collectively "Options") on twelve (12) months’written notice to all then current Customers by published announcement, letter, or e-mail.If Lenovo withdraws an Option, Customer understands that as of the effective date of such withdrawal, Customer may notincrease its level of use beyond the authorizations already acquired without Lenovo’s written consent, renew or purchasethat Option; and if Customer renewed the Option prior to the notice of withdrawal, Customer may either: (a) continue touse/receive that Option until the end of the then current term; or (b) obtain a prorated refund.1.9RenewalThe term for a Fixed Term License, Lenovo Software Subscription and Support, Selected Support or ApplianceServices automatically renews at then current charges, unless Customer provides written notice of terminationprior to expiration of the term.Lenovo may pro-rate charges for Lenovo Software Subscription and Support, Selected Support, Fixed Term Licenses of sixmonths or more, and Appliance Services to align with Customer’s Software and Support Customer anniversary.To reinstate any expired Software Subscription and Support coverage, Selected Support, a Fixed Term License or ApplianceServices, Customer may not renew and must acquire Software Subscription and Support reinstatement, Selected Supportreinstatement, Appliance Services reinstatement or a new Fixed Term License.For a Monthly License, Customer selects a renewal option at the time of order.1.10Compliance VerificationCustomer shall: i) maintain, and provide upon request, records and system tools output, and access to Customer’s premises,as reasonably necessary for Lenovo and its independent auditor to verify Customer’s compliance with this Agreement,Program licenses and metrics, such as sub-capacity usage; and ii) promptly order any required entitlements and payadditional charges at Lenovo’s then current rates, (including uses in excess of Customer’s authorizations or entitlements,and associated Lenovo Subscription and Support and Selected Support), and other liabilities determined as a result of suchverification. These compliance verification obligations remain in effect during the term of this Agreement and for two (2)years thereafter. Customer is responsible for retaining adequate records. If Customer's records are inadequate to determineLenovo Subscription and Support or Selected Support charges, Lenovo's charges for any excess usage will include two (2)years of associated maintenance and Lenovo Subscription and Support or Selected Support.1.11Eligible Products in a Virtualization EnvironmentEligible Products that meet the operating system, processor technology, and virtualization environment requirements for subcapacity usage may be licensed based on Processor Value Units ("PVUs") under sub-capacity licensing terms ("EligibleSub-Capacity Product") ms. Eligible Product deployments that cannotmeet sub-capacity licensing requirements must be licensed using full capacity terms.L814-0005-00 Lenovo International Software and Support Customer Agreement 6.206Page 3 of 8
PVU based licenses for Eligible Sub-Capacity Products must be acquired for the total number of PVUs associated with software/subcaplicensing/valueunitcalculator.Prior to an increase in an Eligible Sub-Capacity Product’s virtualization capacity, Customer must first acquire sufficientlicenses, including Lenovo Software Subscription and Support, if applicable, to cover that increase.1.12Customer Reporting ResponsibilitiesFor sub-capacity usage of Eligible Products, Customer is required to manually manage and track Customer’s licenses asdescribed in Section 1.10 Compliance Verification above.For all PVU based Eligible Product licenses, reports must contain the information in the example audit report ("Audit Report")available at itreport. . Audit Reports must be prepared and deliveredto Lenovo at least once per quarter. Failure to generate such Audit Reports or provide Audit Reports to Lenovo will causeLenovo to begin charging Customer under full capacity for the total number of physical processor cores activated andavailable for use on the Customer's server.Customer will assign a person in Customer’s organization with authority to manage and promptly resolve questions on AuditReports or inconsistencies between Audit Report contents, license or entitlement. Customer's assigned person shallpromptly place an order with Lenovo or Customer’s Lenovo reseller if Audit Reports reflect Eligible Product use overCustomer’s authorized level. Lenovo Software Subscription and Support and Selected Support coverage will be charged asof the date Customer exceeded Customer’s authorized level.2.WarrantiesUnless Lenovo specifies otherwise, the following warranties apply only in the country of acquisition.The warranty for a Program is stated in its license agreement.Lenovo warrants it provides Lenovo Software Subscription and Support, Selected Support and Appliance Services usingreasonable care and skill.Lenovo does not warrant uninterrupted or error-free operation of an Eligible Product or that Lenovo will correct alldefects or prevent third party disruptions or unauthorized third party access to an Eligible Product.These warranties are the exclusive warranties from Lenovo and replace all other warranties, including the impliedwarranties or conditions of satisfactory quality, merchantability, non-infringement, and fitness for a particularpurpose. Lenovo warranties will not apply if there has been misuse, modification, damage not caused by Lenovo, orfailure to comply with instructions provided by Lenovo. [duplicates below].Lenovo will identify Eligible Products it does not warrant, in the EULA.Unless otherwise specified in an Attachment or TD, Lenovo provides third party Eligible Products, WITHOUT WARRANTIESOR CONDITIONS OF ANY KIND. THIRD PARTY MANUFACTURERS, SUPPLIERS, DEVELOPERS, SERVICEPROVIDERS, LICENSORS OR PUBLISHERS MAY PROVIDE THEIR OWN WARRANTIES TO CUSTOMER.3.Programs and Lenovo Software Subscription and SupportLenovo Programs acquired under this Agreement are subject to Lenovo’s International Program License Agreement("IPLA").With the exception of certain Programs that Lenovo designates as platform or operating system specific, Customer may useand install Programs in any commercially available national language for any platform or operating system available fromLenovo up to the level of Customer’s authorizations.Customer agrees to promptly discontinue use of and destroy all of Customer’s copies of a Program upon termination of alicense grant.3.1Conflict between this Agreement and the IPLAIf there is a conflict between the terms of this Agreement, including its Attachments and TDs, and those of the IPLA, theterms of this Agreement prevail. The IPLA is available on the Internet at http://www.lenovo.com/sla.3.2Lenovo Software Subscription and SupportLenovo Software Subscription and Support is available for an additional charge with each Lenovo Program licensed underthe IPLA.Lenovo Software Subscription and Support begins on the date of Program acquisition and ends on the last day of thecorresponding month in the following year, unless the date of acquisition is the first day of the month, in which case coverageends on the last day of the month, twelve (12) months from acquisition.Lenovo Software Subscription and Support includes defect corrections, restrictions, bypasses, and any new versions,releases, or updates Lenovo makes generally available.Lenovo provides Customer assistance for Customer’s: i) routine, short duration installation and usage (how-to) questions;and ii) code-related questions (together “Support”). Consult the Lenovo Software Support Handbook for details athttp://www.support.lenovo.com. Support for a particular version or release of a Program is available only until Lenovowithdraws Support for that Program’s version or release. When Support is withdrawn, Customer must upgrade to aL814-0005-00 Lenovo International Software and Support Customer Agreement 6.206Page 4 of 8
supported version or release of the Program to continue to receive Support. The Lenovo “Software Support Lifecycle” policyis available at http://www.lenovo.com/software/supportlifecycle.If Customer elects to continue Lenovo Software Subscription and Support for a Program at a designated Customer Site,Customer must maintain Lenovo Software Subscription and Support for all uses and installations of the Program at that Site.If Customer requests to renew expiring Lenovo Software Subscription and Support at a lesser quantity of Program uses andinstallations than the expiring quantity, Customer must provide a report that verifies current Program usage and installation,and may be required to provide other compliance verification information.Customer shall not use Lenovo Software Subscription and Support benefits for Programs for which Customer has not fullypaid for such Software Subscription and Support. If Customer does, Customer must acquire Lenovo Software Subscriptionand Support reinstatement sufficient to cover all such unauthorized use at then current Lenovo prices or charges.3.3Selected SupportSelected Support may be available for: (i) third party Programs or for; (ii) Programs licensed under the Lenovo InternationalLicense Agreement for Non-Warranted Programs (“Selected Programs”).The Lenovo Software Subscription and Support section above applies to Selected Programs under Selected Support exceptthat: 1) Lenovo may provide Customer with assistance in designing and developing applications based on Customer’ssubscription level; 2) the Lenovo “Software Support Lifecycle” policy does not apply; and 3) no new versions, releases orupdates are provided by Lenovo.4.AppliancesLenovo provides Appliance Services for Appliances consisting of Machine Component maintenance and Lenovo Softwareand Support as a single offering.One year of Appliance Services, starting on the original date of purchase of the Appliance as specified on a sales receipt,purchase invoice or in a TD, is included with the purchase of an Appliance. Thereafter, automatic renewal terms apply. Allrenewals will be fulfilled with Appliance Services offered at the same level of service, if available, that Customer was entitledto during that first year. Machine Components removed or exchanged for upgrade, warranty service, or maintenance areLenovo property and must be returned to Lenovo within thirty (30) days. A replacement Machine Component assumes thewarranty or maintenance status of the replaced Machine Component. When Customer returns an Appliance to Lenovo,Customer shall remove all features or parts not supported under Appliance Services, securely erase all data, and ensure thatit is free of any legal restrictions that would prevent its return.Appliance Services cover undamaged and properly maintained and installed Appliances used as authorized by Lenovo withunaltered identification labels. Appliance Services do not cover alterations, accessories, supply items, consumables (suchas batteries), structural parts (such as frames and covers), or failures caused by a product for which Lenovo is notresponsible.L814-0005-00 Lenovo International Software and Support Customer Agreement 6.206Page 5 of 8
Software and Support Customer Part 2 - Country-unique TermsAMERICASSection 1,7 Governing Laws and Geographic Scope – In the second paragraph, replace the phrase, “the laws of thecountry where the transaction is performed (or for services, the laws of the country of Customer’s business address)” with:Canada: the laws of the Province of Ontario.United States, Anguilla, Antigua/Barbuda, Aruba, British Virgin Islands, Cayman Islands, Dominica, Grenada,Guyana, Saint Kitts and Nevis, Saint Lucia, Saint Maarten, Saint Vincent and the Grenadines: the laws of the State ofNew York, United States.Section 1.1 Acceptance of Terms – Add the following as a second paragraph:Latin America (all countries): Customer accepts the terms in Attachments and Transaction Documents by signing theAttachments and Transaction Documents.Canada, in Province of Quebec add: Both parties agree to write this Agreement, Attachments, Service Descriptions andTransaction Documents in English.ASIA PACIFICSection 1.7 Governing Laws and Geographic Scope – In the second paragraph, replace the phrase, “the laws of thecountry where the transaction is performed (or for services, the laws of the country of Customer’s business address)” with:Brunei, Cambodia, Korea, Laos, Myanmar, Singapore and Vietnam: the laws of Singapore;Australia: the laws of the State or Territory in which the transaction is performed;Hong Kong S.A.R and Macau S.A.R: the laws of Hong Kong Special Administrative Region (“S.A.R”);Taiwan: the laws of Taiwan.Section 1.7 Governing Laws and Geographic Scope– Add as a new paragraph:Brunei, Cambodia, Korea, Laos, Myanmar, Singapore and Vietnam: Disputes arising out of or in connection with thisAgreement will be finally settled by arbitration which will be held in Singapore in accordance with the Arbitration Rules ofSingapore International Arbitration Center (“SIAC Rules”) then in effect. The arbitration award will be final and binding forthe 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 twoarbitrators appointed by the parties will appoint a third arbitrator who will act as chairman of the proceedings. Vacancies inthe post of chairman will be filled by the president of the SIAC. Other vacancies will be filled by the respective nominatingparty. 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. Allproceedings will be conducted, including all documents presented in such proceedings, in the English language. TheEnglish language version of this Agreement prevails over any other language version.India: Disputes arising out of or in connection with this Agreement shall be finally settled by arbitration which shall be held inBangalore, India in accordance with the laws of India then in effect. The arbitration award shall be final and binding for theparties without appeal and shall be in writing and set forth the findings of fact and the conclusions of law.The number of arbitrators shall be three, with each side to the dispute being entitled to appoint one arbitrator. The twoarbitrators appointed by the parties shall appoint a third arbitrator who shall act as chairman of the proceedings. Vacancies inthe post of chairman shall be filled by the president of the Bar Council of India. Other vacancies shall be filled by therespective nominating party. Proceedings shall 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 shall be the sole arbitrator, provided that the arbitrator was validly and properly appointed.All proceedings shall be conducted, including all documents presented in such proceedings, in the English language. TheEnglish language version of this Agreement prevails over any other language version.Indonesia: Disputes will be finally settled by arbitration, held in Jakarta, Indonesia, in accordance with the rules of the Boardof the Indonesian National Board of Arbitration (Badan Arbitrase Nasional Indonesia or “BANI”) then in effect.Malaysia: Disputes will be finally settled by arbitration held in Kuala Lumpur in accordance with the Arbitration Rules of theKuala Lumpur Regional Centre for Arbitration ("KLRCA Rules") then in effect.People’s Republic of China: Either party has the right to submit the dispute to the China International Economic and TradeArbitration Commission in Beijing, the PRC, for arbitration in accordance with arbitration rules in force at the time.EMEA offshore countriesSection 1.7 Governing Laws and Geographic Scope – Replace Both parties agree to the application of the laws of thecountry where the transaction is perfor
Lenovo means Lenovo PC HK Limited or an affiliate thereof. Machine Component means hardware parts of an Appliance such as processors, storage or other functionality. Monthly License means a monthly license charge. Monthly License Programs ("ML Programs") means Programs provided to Customer for a monthly license charge. ML
