789 lines
37 KiB
Text
789 lines
37 KiB
Text
International License Agreement for Early Release of Programs
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Part 1 - General Terms
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BY DOWNLOADING, INSTALLING, COPYING, ACCESSING, OR USING THE PROGRAM YOU AGREE
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TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ACCEPTING THESE TERMS ON BEHALF OF
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ANOTHER PERSON OR A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT
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THAT YOU HAVE FULL AUTHORITY TO BIND THAT PERSON, COMPANY, OR LEGAL ENTITY TO
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THESE TERMS. IF YOU DO NOT AGREE TO THESE TERMS,
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- DO NOT DOWNLOAD, INSTALL, COPY, ACCESS, OR USE THE PROGRAM; AND
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- PROMPTLY RETURN THE PROGRAM TO THE PARTY FROM WHOM YOU ACQUIRED IT. IF YOU
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DOWNLOADED THE PROGRAM, CONTACT THE PARTY FROM WHOM YOU ACQUIRED IT.
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"Early Release" means that the Program is not formally released or
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commercially available. The term does not imply that the Program will be
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formally released or made commercially available. IBM does not warrant that
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should a Program be formally released or made commercially available that it
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will be similar to, or compatible with, Early Release versions.
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"IBM" is International Business Machines Corporation or one of its
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subsidiaries.
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"License Information" ("LI") is a document that provides information specific
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to a Program. The Program's LI is available in a file in the Program's
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directory, by the use of a system command, or as a booklet which accompanies
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the Program. The LI may also be found at http://www.ibm.com/software/sla/ .
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"Program" is the following, including the original and all whole or partial
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copies: 1) machine-readable instructions and data, 2) components, 3)
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audio-visual content (such as images, text, recordings, or pictures), 4)
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related licensed materials, and 5) license use documents or keys, and
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documentation.
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"You" and "Your" refer either to an individual person or to a single legal
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entity.
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This Agreement includes Part 1 - General Terms, Part 2 - Country-unique Terms
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(if any), and License Information and is the complete agreement between You
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and IBM regarding the use of the Program. It replaces any prior oral or
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written communications between You and IBM concerning Your use of the Program.
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The terms of Part 2 and License Information may replace or modify those of
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Part 1.
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1. Entitlement
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License
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The Program is owned by IBM or an IBM supplier, and is copyrighted and
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licensed, not sold.
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IBM grants You a nonexclusive license to use the Program when You lawfully
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acquire it.
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You may 1) use the Program only for internal evaluation or testing purposes,
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and 2) make and install a reasonable number of copies, including a backup
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copy, of the Program to support such use. The terms of this license apply to
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each copy You make. You will reproduce all copyright notices and all other
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legends of ownership on each copy, or partial copy, of the Program.
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THE PROGRAM MAY CONTAIN A DISABLING DEVICE THAT WILL PREVENT IT FROM BEING
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USED AFTER THE EVALUATION PERIOD ENDS. YOU WILL NOT TAMPER WITH THIS DISABLING
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DEVICE OR THE PROGRAM. YOU SHOULD TAKE PRECAUTIONS TO AVOID ANY LOSS OF DATA
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THAT MIGHT RESULT WHEN THE PROGRAM CAN NO LONGER BE USED.
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You will 1) maintain a record of all copies of the Program and 2) ensure that
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anyone who uses the Program (accessed either locally or remotely) does so only
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for Your authorized use and complies with the terms of this Agreement.
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You may not 1) use, copy, modify or distribute the Program except as provided
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in this Agreement; 2) reverse assemble, reverse compile, or otherwise
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translate the Program except as specifically permitted by law without the
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possibility of contractual waiver; or 3) sublicense, rent, or lease the
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Program.
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The evaluation period begins when You agree to the terms of this Agreement and
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ends 1) as of the duration or date specified in the License Information, 2)
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when the Program automatically disables itself, or 3) when IBM makes the
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program commercially available. You will destroy the Program and all copies
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made of it within ten days of the end of the evaluation period. There is no
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charge for the use of Program for the duration of the evaluation period.
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IBM may terminate Your license if You fail to comply with the terms of this
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Agreement. If IBM does so, You must destroy all copies of the Program.
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2. Rights In Data
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You assign to IBM all right, title, and interest (including ownership of
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copyright) in any data, suggestions, and written materials that 1) is related
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to Your use of the Program and 2) You provide to IBM. If IBM requires it, You
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will sign an appropriate document to assign such rights. Neither party will
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charge the other for rights in data or any work performed as a result of this
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Agreement.
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3. No Warranty
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SUBJECT TO ANY STATUTORY WARRANTIES WHICH CANNOT BE EXCLUDED, IBM MAKES NO
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WARRANTIES OR CONDITIONS EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED
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TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A
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PARTICULAR PURPOSE, AND NON-INFRINGEMENT, REGARDING THE PROGRAM OR TECHNICAL
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SUPPORT, IF ANY.
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The exclusion also applies to any of IBM's Program developers and suppliers.
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Manufacturers, suppliers, or publishers of non-IBM Programs may provide their
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own warranties.
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IBM does not provide technical support, unless IBM specifies otherwise.
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4. Limitation of Liability
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Circumstances may arise where, because of a default on IBM's part or other
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liability, You are entitled to recover damages from IBM. In each such
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instance, regardless of the basis on which You may be entitled to claim
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damages from IBM, (including fundamental breach, negligence,
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misrepresentation, or other contract or tort claim), IBM is liable for no more
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than 1) damages for bodily injury (including death) and damage to real
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property and tangible personal property and 2) the amount of any other actual
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direct damages up to the charges for the Program that is the subject of the
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claim.
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This limitation of liability also applies to IBM's Program developers and
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suppliers. It is the maximum for which they and IBM are collectively
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responsible.
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UNDER NO CIRCUMSTANCES IS IBM, ITS PROGRAM DEVELOPERS OR SUPPLIERS LIABLE FOR
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ANY OF THE FOLLOWING, EVEN IF INFORMED OF THEIR POSSIBILITY:
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1. LOSS OF, OR DAMAGE TO, DATA;
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2. SPECIAL, INCIDENTAL, OR INDIRECT DAMAGES, OR FOR ANY ECONOMIC CONSEQUENTIAL
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DAMAGES; OR
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3. LOST PROFITS, BUSINESS, REVENUE, GOODWILL, OR ANTICIPATED SAVINGS.
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SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR
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CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO
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YOU.
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5. General
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1. Nothing in this Agreement affects any statutory rights of consumers that
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cannot be waived or limited by contract.
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2. In the event that any provision of this Agreement is held to be invalid or
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unenforceable, the remaining provisions of this Agreement remain in full force
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and effect.
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3. You may not export the Program.
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4. You agree to allow IBM to store and use Your contact information, including
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names, phone numbers, and e-mail addresses, anywhere they do business. Such
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information will be processed and used in connection with our business
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relationship, and may be provided to contractors, Business Partners, and
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assignees of IBM for uses consistent with their collective business
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activities, including communicating with You (for example, for processing
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orders, for promotions, and for market research).
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5. Neither You nor IBM will bring a legal action under this Agreement more
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than two years after the cause of action arose unless otherwise provided by
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local law without the possibility of contractual waiver or limitation.
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6. Neither You nor IBM is responsible for failure to fulfill any obligations
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due to causes beyond its control.
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7. This Agreement will not create any right or cause of action for any third
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party, nor will IBM be responsible for any third party claims against You
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except, as permitted by the Limitation of Liability section above, for bodily
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injury (including death) or damage to real or tangible personal property for
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which IBM is legally liable.
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6. Governing Law, Jurisdiction, and Arbitration
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Governing Law
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Both You and IBM consent to the application of the laws of the country in
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which You acquired the Program license to govern, interpret, and enforce all
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of Your and IBM's rights, duties, and obligations arising from, or relating in
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any manner to, the subject matter of this Agreement, without regard to
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conflict of law principles.
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The United Nations Convention on Contracts for the International Sale of Goods
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does not apply.
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Jurisdiction
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All of our rights, duties, and obligations are subject to the courts of the
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country in which You acquired the Program license.
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Part 2 - Country-unique Terms
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AMERICAS
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ARGENTINA: Governing Law, Jurisdiction, and Arbitration (Section 6): The
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following exception is added to this section:
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Any litigation arising from this Agreement will be settled exclusively by the
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Ordinary Commercial Court of the city of Buenos Aires.
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BRAZIL: Governing Law, Jurisdiction, and Arbitration (Section 6): The
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following exception is added to this section:
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Any litigation arising from this Agreement will be settled exclusively by the
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court of Rio de Janeiro, RJ.
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CANADA: Limitation of Liability (Section 4): The following replaces item 1 in
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the first paragraph of this section:
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1) damages for bodily injury (including death) and physical harm to real
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property and tangible personal property caused by IBM's negligence; and
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General (Section 5): The following replaces the terms in item 7:
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7. This Agreement will not create any right or cause of action for any third
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party, nor will IBM be responsible for any third party claims against You
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except as permitted by the Limitation of Liability section above for bodily
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injury (including death) or physical harm to real or tangible personal
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property caused by IBM's negligence for which IBM is legally liable.
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Governing Law, Jurisdiction, and Arbitration (Section 6): The phrase "the laws
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of the country in which You acquired the Program license" in the Governing Law
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subsection is replaced by the following:
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the laws in the Province of Ontario
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PERU: Limitation of Liability (Section 4): The following is added at the end
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of this section:
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In accordance with Article 1328 of the Peruvian Civil Code, the limitations
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and exclusions specified in this section will not apply to damages caused by
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IBM's willful misconduct ("dolo") or gross negligence ("culpa inexcusable").
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UNITED STATES OF AMERICA: General (Section 5): The following is added to this
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section:
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U.S. Government Users Restricted Rights - Use, duplication or disclosure
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restricted by the GSA ADP Schedule Contract with the IBM Corporation.
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Governing Law, Jurisdiction, and Arbitration (Section 6): The phrase "the laws
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of the country in which You acquired the Program license" in the Governing Law
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subsection is replaced by the following:
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the laws of the State of New York, United States of America
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ASIA PACIFIC
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AUSTRALIA: No Warranty (Section 3): The following is added:
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Although IBM specifies that there are no warranties, You may have certain
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rights under the Trade Practices Act 1974 or other legislation and are only
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limited to the extent permitted by the applicable legislation.
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Limitation of Liability (Section 4): The following is added:
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Where IBM is in breach of a condition or warranty implied by the Trade
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Practices Act 1974, IBM's liability is limited to the repair or replacement of
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the goods, or the supply of equivalent goods. Where that condition or warranty
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relates to right to sell, quiet possession or clear title, or the goods are of
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a kind ordinarily acquired for personal, domestic or household use or
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consumption, then none of the limitations in this paragraph apply.
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Governing Law, Jurisdiction, and Arbitration (Section 6): The phrase "the laws
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of the country in which You acquired the Program license" in the Governing Law
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subsection is replaced by the following:
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the laws of the State or Territory in which You acquired the Program license
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CAMBODIA, LAOS, and VIETNAM: Governing Law, Jurisdiction, and Arbitration
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(Section 6): The phrase "the laws of the country in which You acquired the
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Program license" in the Governing Law subsection is replaced by the following:
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the laws of the State of New York, United States of America
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The following is added to this section:
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Arbitration
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Disputes arising out of or in connection with this Agreement shall be finally
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settled by arbitration which shall be held in Singapore in accordance with the
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Arbitration Rules of Singapore International Arbitration Center ("SIAC Rules")
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then in effect. The arbitration award shall be final and binding for the
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parties without appeal and shall be in writing and set forth the findings of
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fact and the conclusions of law.
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The number of arbitrators shall be three, with each side to the dispute being
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entitled to appoint one arbitrator. The two arbitrators appointed by the
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parties shall appoint a third arbitrator who shall act as chairman of the
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proceedings. Vacancies in the post of chairman shall be filled by the
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president of the SIAC. Other vacancies shall be filled by the respective
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nominating party. Proceedings shall continue from the stage they were at when
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the vacancy occurred.
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If one of the parties refuses or otherwise fails to appoint an arbitrator
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within 30 days of the date the other party appoints its, the first appointed
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arbitrator shall be the sole arbitrator, provided that the arbitrator was
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validly and properly appointed.
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All proceedings shall be conducted, including all documents presented in such
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proceedings, in the English language. The English language version of this
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Agreement prevails over any other language version.
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HONG KONG S.A.R. and MACAU S.A.R. of China: Governing Law, Jurisdiction, and
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Arbitration (Section 6): The phrase "the laws of the country in which You
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acquired the Program license" in the Governing Law subsection is replaced by
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the following:
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the laws of Hong Kong Special Administrative Region of China
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INDIA: Limitation of Liability (Section 4): The following replaces the terms
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of items 1 and 2 of the first paragraph:
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1) liability for bodily injury (including death) or damage to real property
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and tangible personal property will be limited to that caused by IBM's
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negligence; and 2) as to any other actual damage arising in any situation
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involving nonperformance by IBM pursuant to, or in any way related to the
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subject of this Agreement, IBM's liability will be limited to the charge paid
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by You for the individual Program that is the subject of the claim.
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General (Section 5): The following replaces the terms of item 5:
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If no suit or other legal action is brought, within three years after the
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cause of action arose, in respect of any claim that either party may have
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against the other, the rights of the concerned party in respect of such claim
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will be forfeited and the other party will stand released from its obligations
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in respect of such claim.
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Governing Law, Jurisdiction, and Arbitration (Section 6): The following is
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added to this section:
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Arbitration
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Disputes arising out of or in connection with this Agreement shall be finally
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settled by arbitration which shall be held in Bangalore, India in accordance
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with the laws of India then in effect. The arbitration award shall be final
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and binding for the parties without appeal and shall be in writing and set
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forth the findings of fact and the conclusions of law.
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The number of arbitrators shall be three, with each side to the dispute being
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entitled to appoint one arbitrator. The two arbitrators appointed by the
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parties shall appoint a third arbitrator who shall act as chairman of the
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proceedings. Vacancies in the post of chairman shall be filled by the
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president of the Bar Council of India. Other vacancies shall be filled by the
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respective nominating party. Proceedings shall continue from the stage they
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were at when the vacancy occurred.
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If one of the parties refuses or otherwise fails to appoint an arbitrator
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within 30 days of the date the other party appoints its, the first appointed
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arbitrator shall be the sole arbitrator, provided that the arbitrator was
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validly and properly appointed.
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All proceedings shall be conducted, including all documents presented in such
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proceedings, in the English language. The English language version of this
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Agreement prevails over any other language version.
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JAPAN: General (Section 5): The following is inserted after item 5:
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Any doubts concerning this Agreement will be initially resolved between us in
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good faith and in accordance with the principle of mutual trust.
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MALAYSIA: Limitation of Liability (Section 4): The word "SPECIAL" in item 2 of
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the third paragraph is deleted:
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NEW ZEALAND: No Warranty (Section 3): The following is added:
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Although IBM specifies that there are no warranties, You may have certain
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rights under the Consumer Guarantees Act 1993 or other legislation which
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cannot be excluded or limited. The Consumer Guarantees Act 1993 will not apply
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in respect of any goods which IBM provides, if You require the goods for the
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purposes of a business as defined in that Act.
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Limitation of Liability (Section 4): The following is added:
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Where Programs are not acquired for the purposes of a business as defined in
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the Consumer Guarantees Act 1993, the limitations in this Section are subject
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to the limitations in that Act.
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PEOPLE'S REPUBLIC OF CHINA: Governing Law, Jurisdiction, and Arbitration
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(Section 6): The phrase "the laws of the country in which You acquired the
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Program license" in the Governing Law subsection is replaced by the following:
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the laws of the State of New York, United States of America (except when local
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law requires otherwise)
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PHILIPPINES: Limitation of Liability (Section 4): The following replaces the
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terms of item 2 of the third paragraph:
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2. special (including nominal and exemplary damages), moral, incidental, or
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indirect damages or for any economic consequential damages; or
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Governing Law, Jurisdiction, and Arbitration (Section 6): The following is
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added to this section:
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Arbitration
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Disputes arising out of or in connection with this Agreement shall be finally
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settled by arbitration which shall be held in Metro Manila, Philippines in
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accordance with the laws of the Philippines then in effect. The arbitration
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award shall be final and binding for the parties without appeal and shall be
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in writing and set forth the findings of fact and the conclusions of law.
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The number of arbitrators shall be three, with each side to the dispute being
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entitled to appoint one arbitrator. The two arbitrators appointed by the
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parties shall appoint a third arbitrator who shall act as chairman of the
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proceedings. Vacancies in the post of chairman shall be filled by the
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president of the Philippine Dispute Resolution Center, Inc. Other vacancies
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shall be filled by the respective nominating party. Proceedings shall continue
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from the stage they were at when the vacancy occurred.
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If one of the parties refuses or otherwise fails to appoint an arbitrator
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within 30 days of the date the other party appoints its, the first appointed
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arbitrator shall be the sole arbitrator, provided that the arbitrator was
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validly and properly appointed.
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All proceedings shall be conducted, including all documents presented in such
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proceedings, in the English language. The English language version of this
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Agreement prevails over any other language version.
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SINGAPORE: Limitation of Liability (Section 4): The words "SPECIAL" and
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"ECONOMIC" are deleted from item 2 of the third paragraph.
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General (Section 5): The following replaces the terms of item 7:
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Subject to the rights provided to IBM's suppliers and Program developers as
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provided in Section 4 above (Limitation of Liability), a person who is not a
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party to this Agreement shall have no right under the Contracts (Right of
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Third Parties) Act to enforce any of its terms.
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EUROPE, MIDDLE EAST, AFRICA (EMEA)
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Rights in Data (Section 2): In EMEA, the following replaces the terms of this
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section in their entirety:
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You assign to IBM all rights, title, and interest throughout the world
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(including ownership of copyright) in any data, suggestions, and written
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materials that 1) is related to Your use of the Program and 2) You provide to
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IBM. Such assignment of rights includes, but is not limited to, assignment of
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the rights to prepare and have prepared derivative works of the written
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materials, and to use, have used, execute, reproduce, transmit, display,
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perform, transfer, distribute and license the written materials and such
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derivative works in any medium or distribution technology, and to grant others
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some or all of the rights granted herein, for the duration of all such rights,
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title and interest. If IBM requires it, You will sign an appropriate document
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to assign such rights. Neither party will charge the other for rights in data
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or any work performed as a result of this Agreement.
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No Warranty (Section 3): In the European Union, the following is added at the
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beginning of this section:
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In the European Union, consumers have legal rights under applicable national
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legislation governing the sale of consumer goods. Such rights are not affected
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by the provisions of this Section 3.
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Limitation of Liability (Section 4): In Austria, Denmark, Finland, Greece,
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Italy, Netherlands, Norway, Portugal, Spain, Sweden and Switzerland, the
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following replaces the terms of this section in its entirety:
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Except as otherwise provided by mandatory law:
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1. IBM's liability for any damages and losses that may arise as a consequence
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of the fulfillment of its obligations under or in connection with this
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agreement or due to any other cause related to this agreement is limited to
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the compensation of only those damages and losses proved and actually arising
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as an immediate and direct consequence of the non-fulfillment of such
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obligations (if IBM is at fault) or of such cause, for a maximum amount equal
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to the charges You paid for the Program.
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The above limitation shall not apply to damages for bodily injuries (including
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death) and damages to real property and tangible personal property for which
|
|
IBM is legally liable.
|
|
|
|
2. 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 OR INDIRECT DAMAGES, OR FOR ANY ECONOMIC
|
|
CONSEQUENTIAL DAMAGES; 3) LOST PROFITS, EVEN IF THEY ARISE AS AN IMMEDIATE
|
|
CONSEQUENCE OF THE EVENT THAT GENERATED THE DAMAGES; OR 4) LOSS OF BUSINESS,
|
|
REVENUE, GOODWILL, OR ANTICIPATED SAVINGS.
|
|
|
|
3. 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.
|
|
|
|
Limitation of Liability (Section 4): In France and Belgium, the following
|
|
replaces the terms of this section in its entirety:
|
|
|
|
Except as otherwise provided by mandatory law:
|
|
|
|
1. IBM's liability for any damages and losses that may arise as a consequence
|
|
of the fulfillment of its obligations under or in connection with this
|
|
agreement 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), for a maximum amount
|
|
equal to the charges You paid for the Program that has caused the damages.
|
|
|
|
The above limitation shall not apply to damages for bodily injuries (including
|
|
death) and damages to real property and tangible personal property for which
|
|
IBM is legally liable.
|
|
|
|
2. 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 OR INDIRECT DAMAGES, OR FOR ANY ECONOMIC
|
|
CONSEQUENTIAL DAMAGES; 3) LOST PROFITS, EVEN IF THEY ARISE AS AN IMMEDIATE
|
|
CONSEQUENCE OF THE EVENT THAT GENERATED THE DAMAGES; OR 4) LOSS OF BUSINESS,
|
|
REVENUE, GOODWILL, OR ANTICIPATED SAVINGS.
|
|
|
|
3. 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.
|
|
|
|
Governing Law, Jurisdiction, and Arbitration (Section 6)
|
|
|
|
Governing Law
|
|
|
|
The phrase "the laws of the country in which You acquired the Program license"
|
|
is replaced by:
|
|
1) "the laws of Austria" in Albania, Armenia, Azerbeijan, Belarus,
|
|
Bosnia-Herzegovina, Bulgaria, Croatia, Georgia, Hungary, Kazakhstan,
|
|
Kyrgyzstan, FYR Macedonia, Moldavia, Poland, Romania, Russia, Slovakia,
|
|
Slovenia, Tajikistan, Turkmenistan, Ukraine, Uzbekistan, and FR Yugoslavia;
|
|
2) "the laws of France" in Algeria, 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 & Futuna;
|
|
3) "the laws of Finland" in Estonia, Latvia, and Lithuania;
|
|
4) "the laws of England" in Angola, Bahrain, Botswana, Burundi, Egypt,
|
|
Eritrea, Ethiopia, Ghana, Jordan, Kenya, Kuwait, Liberia, Malawi, Malta,
|
|
Mozambique, Nigeria, Oman, Pakistan, Qatar, Rwanda, Sao Tome, Saudi Arabia,
|
|
Sierra Leone, Somalia, Tanzania, Uganda, United Arab Emirates, the United
|
|
Kingdom, West Bank/Gaza, Yemen, Zambia, and Zimbabwe; and
|
|
5) "the laws of South Africa" in South Africa, Namibia, Lesotho and Swaziland.
|
|
|
|
Jurisdiction
|
|
|
|
The following exceptions are added to this section:
|
|
|
|
1) In Austria the choice of jurisdiction for all disputes arising out of this
|
|
Agreement and relating thereto, including its existence, will be the competent
|
|
court of law in Vienna, Austria (Inner-City);
|
|
2) in Angola, Bahrain, Botswana, Burundi, Egypt, Eritrea, Ethiopia, Ghana,
|
|
Jordan, Kenya, Kuwait, Liberia, Malawi, Malta, Mozambique, Nigeria, Oman,
|
|
Pakistan, Qatar, Rwanda, Sao Tome, Saudi Arabia, Sierra Leone, Somalia,
|
|
Tanzania, Uganda, United Arab Emirates, West Bank/Gaza, Yemen, Zambia, and
|
|
Zimbabwe all disputes arising out of this Agreement or related to its
|
|
execution, including summary proceedings, will be submitted to the exclusive
|
|
jurisdiction of the English courts;
|
|
3) in Belgium and Luxembourg all disputes arising out of this Agreement or
|
|
related to its interpretation or its execution, the law, and the courts of the
|
|
capital city, of the country of Your registered office and/or commercial site
|
|
location only are competent;
|
|
4) in France, Algeria, 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 & Futuna all disputes arising
|
|
out of this Agreement or related to its violation or execution, including
|
|
summary proceedings, will be settled exclusively by the Commercial Court of
|
|
Paris;
|
|
5) in Russia all disputes arising out of or in relation to the interpretation,
|
|
the violation, the termination, the nullity of the execution of this Agreement
|
|
shall be settled by Arbitration Court of Moscow;
|
|
6) in South Africa, Namibia, Lesotho and Swaziland both of us agree to submit
|
|
all disputes relating to this Agreement to the jurisdiction of the High Court
|
|
in Johannesburg;
|
|
7) in Turkey all disputes arising out of or in connection with this Agreement
|
|
shall be resolved by the Istanbul Central (Sultanahmet) Courts and Execution
|
|
Directorates of Istanbul, the Republic of Turkey;
|
|
8) in each of the following specified countries, any legal claim arising out
|
|
of this Agreement will be brought before, and settled exclusively by, the
|
|
competent court of a) Athens for Greece, b) Tel Aviv-Jaffa for Israel, c)
|
|
Milan for Italy, d) Lisbon for Portugal, and e) Madrid for Spain; and
|
|
9) in the United Kingdom both of us agree to submit all disputes relating to
|
|
this Agreement to the jurisdiction of the English courts.
|
|
|
|
Arbitration
|
|
|
|
In Albania, Armenia, Azerbeijan, Belarus, Bosnia-Herzegovina, Bulgaria,
|
|
Croatia, Georgia, Hungary, Kazakhstan, Kyrgyzstan, FYR Macedonia, Moldavia,
|
|
Poland, Romania, Russia, Slovakia, Slovenia, Tajikistan, Turkmenistan,
|
|
Ukraine, Uzbekistan, and FR Yugoslavia all disputes arising out of this
|
|
Agreement 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.
|
|
|
|
In Estonia, Latvia and Lithuania all disputes arising in connection with this
|
|
Agreement 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.
|
|
|
|
AUSTRIA: General (Section 5): The following is added to item 4:
|
|
|
|
For purposes of this clause, contact information will also include information
|
|
about You as a legal entity, for example revenue data and other transactional
|
|
information.
|
|
|
|
GERMANY: Limitation of Liability (Section 4): The following paragraph is added
|
|
to this Section:
|
|
|
|
The limitations and exclusions specified in this Section will not apply to
|
|
damages caused by IBM intentionally or by gross negligence.
|
|
|
|
General (Section 5): The following replaces the terms of item 5:
|
|
|
|
Any claims resulting from this Agreement are subject to a statute of
|
|
limitation of three years.
|
|
|
|
HUNGARY: Limitation of Liability (Section 4): The following is added at the
|
|
end of this section:
|
|
|
|
The limitation and exclusion specified herein shall not apply to liability for
|
|
a breach of contract damaging life, physical well-being, or health that has
|
|
been caused intentionally, by gross negligence, or by a criminal act.
|
|
|
|
The parties accept the limitations of liability as valid provisions and state
|
|
that the Section 314.(2) of the Hungarian Civil Code applies as the
|
|
acquisition price as well as other advantages arising out of the present
|
|
Agreement balance this limitation of liability.
|
|
|
|
IRELAND: No Warranty (Section 3): The following is added to this section:
|
|
|
|
Except as expressly provided in these terms and conditions, or section 12 of
|
|
the Sale of Goods Act 1893 (as amended by the Sale of Goods and Supply of
|
|
Services Act 1980 ("the 1980 Act")), all conditions and warranties (express or
|
|
implied, statutory or otherwise) are hereby excluded including, without
|
|
limitation, any warranties implied by the Sale of Goods Act 1893 as amended by
|
|
the 1980 Act (including, for the avoidance of doubt, section 39 of the 1980
|
|
Act).
|
|
|
|
Limitation of Liability (Section 4): The following replaces the terms of this
|
|
section in its entirety:
|
|
|
|
For the purposes of this section, a "Default" means any act, statement,
|
|
omission, or negligence on the part of IBM in connection with, or in relation
|
|
to, the subject matter of an Agreement in respect of which IBM is legally
|
|
liable to You whether in contract or tort. A number of Defaults which together
|
|
result in, or contribute to, substantially the same loss or damage will be
|
|
treated as one Default occurring on the date of occurrence of the last such
|
|
Default.
|
|
|
|
Circumstances may arise where, because of a Default, You are entitled to
|
|
recover damages from IBM. This section sets out the extent of IBM's liability
|
|
and Your sole remedy.
|
|
|
|
1. IBM will accept unlimited liability for (a) death or personal injury caused
|
|
by the negligence of IBM, and (b) subject always to the Items for Which IBM is
|
|
Not Liable below, for physical damage to Your tangible property resulting from
|
|
the negligence of IBM.
|
|
|
|
2. Except as provided in item 1 above, IBM's entire liability for actual
|
|
damages for any one Default will not in any event exceed the greater of 1) EUR
|
|
125,000, or 2) 125% of the amount You paid for the Program directly relating
|
|
to the Default. These limits also apply to any of IBM's suppliers and Program
|
|
developers. They state the maximum for which IBM and such suppliers and
|
|
Program developers are collectively responsible.
|
|
|
|
Items for Which IBM is Not Liable
|
|
|
|
Save with respect to any liability referred to in item 1 above, under no
|
|
circumstances is IBM or any of its suppliers or Program developers liable for
|
|
any of the following, even if IBM or they were informed of the possibility of
|
|
such losses:
|
|
|
|
1. loss of, or damage to, data;
|
|
|
|
2. special, indirect, or consequential loss; or
|
|
|
|
3. loss of profits, business, revenue, goodwill, or anticipated savings.
|
|
|
|
ITALY: General (Section 5): The following is added to this section:
|
|
|
|
IBM and Customer (hereinafter, individually, "Party") shall comply with all
|
|
the obligations of the applicable provisions of law and/or regulation on
|
|
personal data protection. Each of the Parties will indemnify and keep the
|
|
other Party harmless from any damage, claim, cost or expense incurred by the
|
|
latter, directly and or indirectly, as a consequence of an infringement of the
|
|
other Party of the mentioned provisions of law and/or regulations.
|
|
|
|
SLOVAKIA: Limitation of Liability (Section 4): The following is added to the
|
|
end of the last paragraph:
|
|
|
|
The limitations apply to the extent they are not prohibited under §§ 373-386
|
|
of the Slovak Commercial Code.
|
|
|
|
General (Section 5): The terms of item 5 are replaced with the following:
|
|
|
|
THE PARTIES AGREE THAT, AS DEFINED BY APPLICABLE LOCAL LAW, ANY LEGAL OR OTHER
|
|
ACTION RELATED TO A BREACH OF THIS AGREEMENT MUST BE COMMENCED NO LATER THAN
|
|
FOUR YEARS FROM THE DATE ON WHICH THE CAUSE OF ACTION AROSE.
|
|
|
|
SWITZERLAND: General (Section 5): The following is added to item 4:
|
|
|
|
For purposes of this clause, contact information will also include information
|
|
about You as a legal entity, for example revenue data and other transactional
|
|
information.
|
|
|
|
UNITED KINGDOM: No Warranty (Section 3): The following replaces the first
|
|
sentence in the first paragraph of this section:
|
|
|
|
SUBJECT TO ANY STATUTORY WARRANTIES WHICH CANNOT BE EXCLUDED, IBM MAKES NO
|
|
WARRANTY OR CONDITION EITHER EXPRESS OR IMPLIED, INCLUDING (WITHOUT
|
|
LIMITATION) THE IMPLIED WARRANTIES OF SATISFACTORY QUALITY, FITNESS FOR A
|
|
PARTICULAR PURPOSE, AND NON-INFRINGEMENT, REGARDING THE PROGRAM.
|
|
|
|
Limitation of Liability (Section 4): The following replaces the terms of this
|
|
section in its entirety:
|
|
|
|
For the purposes of this section, a "Default" means any act, statement,
|
|
omission, or negligence on the part of IBM in connection with, or in relation
|
|
to, the subject matter of an Agreement in respect of which IBM is legally
|
|
liable to You, whether in contract or 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, You are entitled to
|
|
recover damages from IBM. This section sets out the extent of IBM's liability
|
|
and Your sole remedy.
|
|
|
|
1. IBM will accept unlimited liability for:
|
|
|
|
a. death or personal injury caused by the negligence of IBM;
|
|
|
|
b. any breach of its obligations implied by Section 12 of the Sale of Goods
|
|
Act 1979 or Section 2 of the Supply of Goods and Services Act 1982, or any
|
|
statutory modification or re-enactment of either such Section; and
|
|
|
|
c. subject always to the Items for Which IBM is Not Liable below, for physical
|
|
damage to Your tangible property resulting from the negligence of IBM.
|
|
|
|
2. IBM's entire liability for actual damages for any one Default will not in
|
|
any event, except as provided in item 1 above, exceed the greater of 1)
|
|
£75,000, or 2) 125% of the amount You paid for the Program directly relating
|
|
to the Default. These limits also apply to IBM's suppliers and Program
|
|
developers. They state the maximum for which IBM and such suppliers and
|
|
Program developers are collectively responsible.
|
|
|
|
Items for Which IBM is Not Liable
|
|
|
|
Save with respect to any liability referred to in item 1 above, under no
|
|
circumstances is IBM or any of its suppliers or Program developers liable for
|
|
any of the following, even if IBM or they were informed of the possibility of
|
|
such losses:
|
|
|
|
1. loss of, or damage to, data;
|
|
|
|
2. special, indirect, or consequential loss; or
|
|
|
|
3. loss of profits, business, revenue, goodwill, or anticipated savings.
|
|
|
|
Z125-5544-02 (11/2002)
|
|
|
|
LICENSE INFORMATION
|
|
|
|
The Programs listed below are licensed under the following terms and
|
|
conditions in addition to those of the International License Agreement for
|
|
Early Release of Programs.
|
|
|
|
Program Name: alphaWorks Emerging Technology
|
|
Program Number: 100608
|
|
|
|
Specified Operating Environment
|
|
|
|
The Program's specifications and specified operating environment information
|
|
may be found in documentation accompanying the Program, if available, such as
|
|
a read-me file, or other information published by IBM, such as an announcement
|
|
letter.
|
|
|
|
Evaluation Period
|
|
|
|
The evaluation period begins on the date that you agree to the terms of this
|
|
Agreement and ends after 90 days.
|
|
|
|
|
|
D/N: L-APAL-5L22XX
|
|
P/N: L-APAL-5L22XX
|