Apple 2003 Annual Report Download - page 97

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appointing a Designee, Apple will have executed an appropriate agreement with such Designee establishing the limited agency described in this
Section, establishing that the Designee is not a third party beneficiary of this Agreement, protecting the confidentiality of any terms or
conditions of this Agreement that Apple may disclose to the Designee pursuant to this Section
, as well as any Confidential Information (as that
term is defined in the Confidentiality Agreement (Mutual), Agreement No. X1329, as amended, signed by IBM and Apple with an effective
date of April 1, 1999) that may be disclosed to the Designee, and securing such Designee’s agreement to be bound to those terms and
conditions set forth in Exhibit 2. No Designee may receive Confidential Information prior to executing an agreement with the party disclosing
the Confidential Information to the Designee, such agreement including restrictions on nondisclosure and nonuse at least as stringent as those
restrictions in Agreement No. X1329 . Each Designee shall be subject to all of the obligations and responsibilities of “Apple” under this
Agreement with respect to the terms and conditions in Exhibit 2. Apple, not its Designee, will remain responsible for fulfilling all of its other
obligations under the Agreement not delegated to such Designee pursuant to this Section. Should any Designee fail to pay an invoice from
IBM or a Plant within fifteen (15) days after IBM provided written notice to the Designee and to Apple that such invoice was overdue, IBM
will provide Apple written notice of such Designee’
s continued failure to so pay, and Apple agrees to pay, or cause the Designee to pay, in full,
all of such sums due and unpaid, together with interest from the date payment was due from the Designee, within thirty (30) days after receipt
of said later notice. IBM will not be obligated to exhaust remedies against any Designee for breach of any of its obligations before seeking
enforcement directly against Apple except as expressly set forth in this Section. Apple shall hold harmless IBM from and against any and all
claims or actions of any kind made by any Designee against IBM, which claims or actions in any way arise out of or are related to any such
Designee’s role hereunder or Apple’s termination of such role. Apple may withdraw a Designee by providing IBM ten (10) days prior written
notice; and thereafter (i) the Designee will no longer be authorized to purchase Product on Apple’s behalf or perform any other of the tasks
described in this Section, and (ii) Apple will either cancel any open Purchase Orders placed on its behalf by such withdrawn Designee and pay
any applicable cancellation charges therefor or take delivery of and pay for any Products covered by such Purchase Orders.
2.6 Notwithstanding any other provision hereof, for US sales (sales for which IBM ships to the Authorized Purchaser or Designee and
title transfers within the United States), the contract of sale for Products purchased under this Agreement will be between IBM and the
Authorized Purchaser or, in the case of Designees, Apple. For non-U.S. sales (sales for which IBM ships to the Authorized Purchaser or
Designee with shipment and title transfer outside of the United States), the contract of sale for Products purchased under this Agreement will be
between the IBM Related Company that will supply the Products (“the Plant”) and the Authorized Purchaser or, in the case of Designees,
Apple, as the case may be. It is agreed that all such Purchase Orders will incorporate the terms and conditions of this Agreement whether
expressly referenced or not and will only be accepted subject to the terms and conditions of this Agreement. Purchase Orders will be accepted
by the Plant when it issues the Sales Acknowledgment accepting the Purchase Order, thereby creating the contract of sale for the Products.
Apple reserves the right to
[**] = information redacted pursuant to a confidential treatment request. Such omitted information has been filed separately with the Securities
and Exchange Commission.