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requested by either of us. Your IBM Business Partner makes the Attachments available to you for signature. Transaction Documents For each business transaction, your IBM Business Partner will provide you with the appropriate "Transaction Documents" that confirm the specific details of the transaction. Transaction Documents will be signed by both of us if requested by either of us. The following are examples of Transaction Documents, with examples of the information they may contain: 1. statements of work (scope of Services, responsibilities, deliverables, completion criteria and estimated schedule or contract period ); and 2. supplements and order forms (Service type ordered, and contract period). Conflicting Terms If there is a conftict among the terms in the various documents, those of an Attachment prevail over those of this Agreement. The terms of a Transaction Document prevail over those of both of these documents. Our Acceptance of Your Request for Service A Service becomes subject to this Agreement when we accept your request for Service from your IBM Business Partner by: 1. providing you a transaction document, or 2. providing the Service. Your Acceptance of Additional Terms You accept the additional terms in an Attachment or Transaction Document by doing any of the following: 1. signing the Attachment or Transaction Document 2. using the Service, or allowing others to do so; or 3. making any payment to your IBM Business Partner for the Service. 1.3 Charges and Payment Your IBM Business Partner sets the charges and terms governing charges. You will make payment directly to your IBM Business Partner. However, we may charge you directly for expenses incurred to perform your Service request. e.g.. actual travel and living expenses. out-of-pocket expenses. We will not incur these expenses without your prior approval. 1.4 Changes to the Agreement Terms In order to maintain ftexibility in our Services, we may change the terms of this Agreement by giving you three months' written notice. However, these changes are not retroactive. They apply, as of the effective date we specify in the notice, only to new requests for Service and on-going transactions. Part 3 of this Agreement contains additional provisions for changes to the terms of individual Service transactions. Otherwise, for a change to be valid, both of us must sign it. Additional or different terms in any written communication from you are void. Z125-5774-OO 02/98 (MKOO2) 1.5 Limitation of Liability Circumstances may arise where, because of a default on our part or olher liability, you are entitled to recover damages from us. In each such instance, regardless of the basis on which you are entitled to claim damages from us (including fundamental breach, negligence, misrepresentation, or other contract or tort claim), we are liable for no more than 1. damages for bodily injury (including death) and damage to real property and tangible personal property; and 2. the amount of any other actual dired damages, up to the greater of U.S. $100,000 (or equivalent in local currency), or the charges (if recurring.. 12 months' charges apply) you paid to your IBM Business Partner for the Service that is the subject of the claim. This limit also applies to any of our subcontractors. It is the maximum for which we and our subcontractors are collectively responsible. Items for Which We are Not Liable Under no circumstances are we or our subcontractors liable for any of the following: 1. third-party claims against you for damages (other than those under the first item listed above); 2. loss of, or damage to. your records or data; or 3. special, incidental. or indirect damages or for any economic consequential damages (including lost profits or savings). even if we are informed of their possibility. 1.6 Mutual Responsibilities Both of us agree that under this Agreement: 1. neither of us grants the other the right to use its (or any of its Enterprise's) trademarks, trade names, or other designations in any promotion or publication without prior written consenl; 2. all information exchanged is nonconlidential. If either of us requires the exchange of confidential information, it will be made under a signed confidentiality agreement; 3. each is free to enter into similar agreements with others; 4. each grants the other only the licenses and rights specified. No other licenses or rights (including licenses or rights under patents) are granted; 5. each may communicate with the other by electronic means and such communication is acceptable as a signed writing to the extent permissible under applicable law. An identification code (called a "user 10") contained in an electronic document is sufficient 10 verify the sender's identity and the document's authenticity; 6. each will allow the other reasonable opportunity to comply before it claims that the other has not met its obligations; 7. neither of us will bring a legal action more than two years after the cause of action arose unless otherwise provided by local law without the possibility of contractual waiver or limitation; and 8. neither of us is responsible for failure to fulfill any obligations due to causes beyond its control. 1.7 Your Other Responsibilities You agree: 1. not 10 assign, or otherwise transfer, this Agreement or your rights under this Agreement, delegate your 12/05/2002 Page 2