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Appendix A. Product warranties and notices

153

The two arbitrators appointed by the parties shall appoint a third arbitrator before
proceeding upon the reference. The third arbitrator shall act as chairman of the
proceedings. Vacancies in the post of chairman shall be filled by the president of the
ICC. Other vacancies shall be filled by the respective 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.

The English language version of this Agreement prevails over any other language
version.

HONG KONG AND MACAU

Governing Law:

The following replaces "laws of the country in which you acquired the

Machine" in the first sentence:
laws of Hong Kong Special Administrative Region.

INDIA

Limitation of Liability:

The following replaces items 1 and 2 of this Section:

liability for bodily injury (including death) or damage to real property and
tangible personal property will be limited to that caused by IBM’s negligence;

as to any other actual damage arising in any situation involving nonperformance
by IBM pursuant to, or in any way related to the subject of this Statement of
Limited Warranty, IBM’s liability will be limited to the charge paid by you for the
individual Machine that is the subject of the claim.

JAPAN

Governing Law:

The following sentence is added to this Section:

Any doubts concerning this Agreement will be initially resolved between us in good
faith and in accordance with the principle of mutual trust.

NEW ZEALAND

The IBM Warranty for Machines:

The following paragraph is added to this Section:

The warranties specified in this Section are in addition to any rights you 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 you require the goods for the purposes of a
business as defined in that Act.

Limitation of Liability:

The following is added to this Section:

Where Machines are not acquired 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 (PRC)

Governing Law:

The following replaces this Section:

Both you and IBM consent to the application of the laws of the State of New York
(except when local law requires otherwise) to govern, interpret, and enforce all your
and IBM’s rights, duties, and obligations arising from, or relating in any manner to,
the subject matter of this Agreement, without regard to conflict of law principles.

Any disputes arising from or in connection with this Agreement will first be resolved
by friendly negotiations, failing which either of us has the right to submit the dispute
to the China International Economic and Trade Arbitration Commission in Beijing, the