You can not select more than 25 topics
Topics must start with a letter or number, can include dashes ('-') and can be up to 35 characters long.
874 lines
39 KiB
874 lines
39 KiB
International License Agreement for Early Release of Programs
|
|
|
|
Part 1 - General Terms
|
|
|
|
BY DOWNLOADING, INSTALLING, COPYING, ACCESSING, OR USING THE PROGRAM YOU
|
|
AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ACCEPTING THESE TERMS
|
|
ON BEHALF OF ANOTHER PERSON OR A COMPANY OR OTHER LEGAL ENTITY, YOU
|
|
REPRESENT AND WARRANT THAT YOU HAVE FULL AUTHORITY TO BIND THAT PERSON,
|
|
COMPANY, OR LEGAL ENTITY TO THESE TERMS. IF YOU DO NOT AGREE TO THESE
|
|
TERMS,
|
|
|
|
- DO NOT DOWNLOAD, INSTALL, COPY, ACCESS, OR USE THE PROGRAM; AND
|
|
|
|
- PROMPTLY RETURN THE PROGRAM TO THE PARTY FROM WHOM YOU ACQUIRED IT. IF
|
|
YOU DOWNLOADED THE PROGRAM, CONTACT THE PARTY FROM WHOM YOU ACQUIRED IT.
|
|
|
|
"Early Release" means that the Program is not formally released or
|
|
commercially available. The term does not imply that the Program will be
|
|
formally released or made commercially available. IBM does not warrant
|
|
that should a Program be formally released or made commercially
|
|
available that it will be similar to, or compatible with, Early Release
|
|
versions.
|
|
|
|
"IBM" is International Business Machines Corporation or one of its
|
|
subsidiaries.
|
|
|
|
"License Information" ("LI") is a document that provides information
|
|
specific to a Program. The Program's LI is available in a file in the
|
|
Program's directory, by the use of a system command, or as a booklet
|
|
which accompanies the Program. The LI may also be found at
|
|
http://www.ibm.com/software/sla/ .
|
|
|
|
"Program" is the following, including the original and all whole or
|
|
partial copies: 1) machine-readable instructions and data, 2)
|
|
components, 3) audio-visual content (such as images, text, recordings,
|
|
or pictures), 4) related licensed materials, and 5) license use
|
|
documents or keys, and documentation.
|
|
|
|
"You" and "Your" refer either to an individual person or to a single
|
|
legal entity.
|
|
|
|
This Agreement includes Part 1 - General Terms, Part 2 - Country-unique
|
|
Terms (if any), and License Information and is the complete agreement
|
|
between You and IBM regarding the use of the Program. It replaces any
|
|
prior oral or written communications between You and IBM concerning Your
|
|
use of the Program. The terms of Part 2 and License Information may
|
|
replace or modify those of Part 1.
|
|
|
|
1. Entitlement
|
|
|
|
License
|
|
|
|
The Program is owned by IBM or an IBM supplier, and is copyrighted and
|
|
licensed, not sold.
|
|
|
|
IBM grants You a nonexclusive license to use the Program when You
|
|
lawfully acquire it.
|
|
|
|
You may 1) use the Program only for internal evaluation or testing
|
|
purposes, and 2) make and install a reasonable number of copies,
|
|
including a backup copy, of the Program to support such use. The terms
|
|
of this license apply to each copy You make. You will reproduce all
|
|
copyright notices and all other legends of ownership on each copy, or
|
|
partial copy, of the Program.
|
|
|
|
THE PROGRAM MAY CONTAIN A DISABLING DEVICE THAT WILL PREVENT IT FROM
|
|
BEING USED AFTER THE EVALUATION PERIOD ENDS. YOU WILL NOT TAMPER WITH
|
|
THIS DISABLING DEVICE OR THE PROGRAM. YOU SHOULD TAKE PRECAUTIONS TO
|
|
AVOID ANY LOSS OF DATA THAT MIGHT RESULT WHEN THE PROGRAM CAN NO LONGER
|
|
BE USED.
|
|
|
|
You will 1) maintain a record of all copies of the Program and 2) ensure
|
|
that anyone who uses the Program (accessed either locally or remotely)
|
|
does so only for Your authorized use and complies with the terms of this
|
|
Agreement.
|
|
|
|
You may not 1) use, copy, modify or distribute the Program except as
|
|
provided in this Agreement; 2) reverse assemble, reverse compile, or
|
|
otherwise translate the Program except as specifically permitted by law
|
|
without the possibility of contractual waiver; or 3) sublicense, rent,
|
|
or lease the Program.
|
|
|
|
The evaluation period begins when You agree to the terms of this
|
|
Agreement and ends 1) as of the duration or date specified in the
|
|
License Information, 2) when the Program automatically disables itself,
|
|
or 3) when IBM makes the program commercially available. You will
|
|
destroy the Program and all copies made of it within ten days of the end
|
|
of the evaluation period. There is no charge for the use of Program for
|
|
the duration of the evaluation period.
|
|
|
|
IBM may terminate Your license if You fail to comply with the terms of
|
|
this Agreement. If IBM does so, You must destroy all copies of the Program.
|
|
|
|
2. Rights In Data
|
|
|
|
You assign to IBM all right, title, and interest (including ownership of
|
|
copyright) in any data, suggestions, and written materials that 1) is
|
|
related to Your use of the Program and 2) You provide to IBM. If IBM
|
|
requires it, You will sign an appropriate document to assign such
|
|
rights. Neither party will charge the other for rights in data or any
|
|
work performed as a result of this Agreement.
|
|
|
|
3. No Warranty
|
|
|
|
SUBJECT TO ANY STATUTORY WARRANTIES WHICH CANNOT BE EXCLUDED, IBM MAKES
|
|
NO WARRANTIES OR CONDITIONS EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT
|
|
LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY,
|
|
FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, REGARDING THE
|
|
PROGRAM OR TECHNICAL SUPPORT, IF ANY.
|
|
|
|
The exclusion also applies to any of IBM's Program developers and suppliers.
|
|
|
|
Manufacturers, suppliers, or publishers of non-IBM Programs may provide
|
|
their own warranties.
|
|
|
|
IBM does not provide technical support, unless IBM specifies otherwise.
|
|
|
|
4. Limitation of Liability
|
|
|
|
Circumstances may arise where, because of a default on IBM's part or
|
|
other liability, You are entitled to recover damages from IBM. In each
|
|
such instance, regardless of the basis on which You may be entitled to
|
|
claim damages from IBM, (including fundamental breach, negligence,
|
|
misrepresentation, or other contract or tort claim), IBM is 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 direct damages up to the charges for the Program that is
|
|
the subject of the claim.
|
|
|
|
This limitation of liability also applies to IBM's Program developers
|
|
and suppliers. It is the maximum for which they and IBM are collectively
|
|
responsible.
|
|
|
|
UNDER NO CIRCUMSTANCES IS IBM, ITS PROGRAM DEVELOPERS OR SUPPLIERS
|
|
LIABLE FOR ANY OF THE FOLLOWING, EVEN IF INFORMED OF THEIR POSSIBILITY:
|
|
|
|
1. LOSS OF, OR DAMAGE TO, DATA;
|
|
|
|
2. SPECIAL, INCIDENTAL, OR INDIRECT DAMAGES, OR FOR ANY ECONOMIC
|
|
CONSEQUENTIAL DAMAGES; OR
|
|
|
|
3. LOST PROFITS, BUSINESS, REVENUE, GOODWILL, OR ANTICIPATED SAVINGS.
|
|
|
|
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF
|
|
INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR
|
|
EXCLUSION MAY NOT APPLY TO YOU.
|
|
|
|
5. General
|
|
|
|
1. Nothing in this Agreement affects any statutory rights of consumers
|
|
that cannot be waived or limited by contract.
|
|
|
|
2. In the event that any provision of this Agreement is held to be
|
|
invalid or unenforceable, the remaining provisions of this Agreement
|
|
remain in full force and effect.
|
|
|
|
3. You may not export the Program.
|
|
|
|
4. You agree to allow IBM to store and use Your contact information,
|
|
including names, phone numbers, and e-mail addresses, anywhere they do
|
|
business. Such information will be processed and used in connection with
|
|
our business relationship, and may be provided to contractors, Business
|
|
Partners, and assignees of IBM for uses consistent with their collective
|
|
business activities, including communicating with You (for example, for
|
|
processing orders, for promotions, and for market research).
|
|
|
|
5. Neither You nor IBM will bring a legal action under this Agreement
|
|
more than two years after the cause of action arose unless otherwise
|
|
provided by local law without the possibility of contractual waiver or
|
|
limitation.
|
|
|
|
6. Neither You nor IBM is responsible for failure to fulfill any
|
|
obligations due to causes beyond its control.
|
|
|
|
7. This Agreement will not create any right or cause of action for any
|
|
third party, nor will IBM be responsible for any third party claims
|
|
against You except, as permitted by the Limitation of Liability section
|
|
above, for bodily injury (including death) or damage to real or tangible
|
|
personal property for which IBM is legally liable.
|
|
|
|
6. Governing Law, Jurisdiction, and Arbitration
|
|
|
|
Governing Law
|
|
|
|
Both You and IBM consent to the application of the laws of the country
|
|
in which You acquired the Program license to govern, interpret, and
|
|
enforce all of 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.
|
|
|
|
The United Nations Convention on Contracts for the International Sale of
|
|
Goods does not apply.
|
|
|
|
Jurisdiction
|
|
|
|
All of our rights, duties, and obligations are subject to the courts of
|
|
the country in which You acquired the Program license.
|
|
|
|
Part 2 - Country-unique Terms
|
|
|
|
AMERICAS
|
|
|
|
ARGENTINA: Governing Law, Jurisdiction, and Arbitration (Section 6): The
|
|
following exception is added to this section:
|
|
|
|
Any litigation arising from this Agreement will be settled exclusively
|
|
by the Ordinary Commercial Court of the city of Buenos Aires.
|
|
|
|
BRAZIL: Governing Law, Jurisdiction, and Arbitration (Section 6): The
|
|
following exception is added to this section:
|
|
|
|
Any litigation arising from this Agreement will be settled exclusively
|
|
by the court of Rio de Janeiro, RJ.
|
|
|
|
CANADA: Limitation of Liability (Section 4): The following replaces item
|
|
1 in the first paragraph of this section:
|
|
|
|
1) damages for bodily injury (including death) and physical harm to real
|
|
property and tangible personal property caused by IBM's negligence; and
|
|
|
|
General (Section 5): The following replaces the terms in item 7:
|
|
|
|
7. This Agreement will not create any right or cause of action for any
|
|
third party, nor will IBM be responsible for any third party claims
|
|
against You except as permitted by the Limitation of Liability section
|
|
above for bodily injury (including death) or physical harm to real or
|
|
tangible personal property caused by IBM's negligence for which IBM is
|
|
legally liable.
|
|
|
|
Governing Law, Jurisdiction, and Arbitration (Section 6): The phrase
|
|
"the laws of the country in which You acquired the Program license" in
|
|
the Governing Law subsection is replaced by the following:
|
|
|
|
the laws in the Province of Ontario
|
|
|
|
PERU: Limitation of Liability (Section 4): The following is added at the
|
|
end of this section:
|
|
|
|
In accordance with Article 1328 of the Peruvian Civil Code, the
|
|
limitations and exclusions specified in this section will not apply to
|
|
damages caused by IBM's willful misconduct ("dolo") or gross negligence
|
|
("culpa inexcusable").
|
|
|
|
UNITED STATES OF AMERICA: General (Section 5): The following is added to
|
|
this section:
|
|
|
|
U.S. Government Users Restricted Rights - Use, duplication or disclosure
|
|
restricted by the GSA ADP Schedule Contract with the IBM Corporation.
|
|
|
|
Governing Law, Jurisdiction, and Arbitration (Section 6): The phrase
|
|
"the laws of the country in which You acquired the Program license" in
|
|
the Governing Law subsection is replaced by the following:
|
|
|
|
the laws of the State of New York, United States of America
|
|
|
|
ASIA PACIFIC
|
|
|
|
AUSTRALIA: No Warranty (Section 3): The following is added:
|
|
|
|
Although IBM specifies that there are no warranties, You may have
|
|
certain rights under the Trade Practices Act 1974 or other legislation
|
|
and are only limited to the extent permitted by the applicable legislation.
|
|
|
|
Limitation of Liability (Section 4): The following is added:
|
|
|
|
Where IBM is in breach of a condition or warranty implied by the Trade
|
|
Practices Act 1974, IBM's liability is limited to the repair or
|
|
replacement of the goods, or the supply of equivalent goods. Where that
|
|
condition or warranty relates to right to sell, quiet possession or
|
|
clear title, or the goods are of a kind ordinarily acquired for
|
|
personal, domestic or household use or consumption, then none of the
|
|
limitations in this paragraph apply.
|
|
|
|
Governing Law, Jurisdiction, and Arbitration (Section 6): The phrase
|
|
"the laws of the country in which You acquired the Program license" in
|
|
the Governing Law subsection is replaced by the following:
|
|
|
|
the laws of the State or Territory in which You acquired the Program license
|
|
|
|
CAMBODIA, LAOS, and VIETNAM: Governing Law, Jurisdiction, and
|
|
Arbitration (Section 6): The phrase "the laws of the country in which
|
|
You acquired the Program license" in the Governing Law subsection is
|
|
replaced by the following:
|
|
|
|
the laws of the State of New York, United States of America
|
|
|
|
The following is added to this section:
|
|
|
|
Arbitration
|
|
|
|
Disputes arising out of or in connection with this Agreement shall be
|
|
finally settled by arbitration which shall be held in Singapore in
|
|
accordance with the Arbitration Rules of Singapore International
|
|
Arbitration Center ("SIAC Rules") then in effect. The arbitration award
|
|
shall be final and binding for the parties 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 two arbitrators appointed
|
|
by the parties shall appoint a third arbitrator who shall act as
|
|
chairman of the proceedings. Vacancies in the post of chairman shall be
|
|
filled by the president of the SIAC. 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.
|
|
|
|
All proceedings shall be conducted, including all documents presented in
|
|
such proceedings, in the English language. The English language version
|
|
of this Agreement prevails over any other language version.
|
|
|
|
HONG KONG S.A.R. and MACAU S.A.R. of China: Governing Law, Jurisdiction,
|
|
and Arbitration (Section 6): The phrase "the laws of the country in
|
|
which You acquired the Program license" in the Governing Law subsection
|
|
is replaced by the following:
|
|
|
|
the laws of Hong Kong Special Administrative Region of China
|
|
|
|
INDIA: Limitation of Liability (Section 4): The following replaces the
|
|
terms of items 1 and 2 of the first paragraph:
|
|
|
|
1) 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; and 2) 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 Agreement, IBM's liability will be
|
|
limited to the charge paid by You for the individual Program that is the
|
|
subject of the claim.
|
|
|
|
General (Section 5): The following replaces the terms of item 5:
|
|
|
|
If no suit or other legal action is brought, within three years after
|
|
the cause of action arose, in respect of any claim that either party may
|
|
have against the other, the rights of the concerned party in respect of
|
|
such claim will be forfeited and the other party will stand released
|
|
from its obligations in respect of such claim.
|
|
|
|
Governing Law, Jurisdiction, and Arbitration (Section 6): The following
|
|
is added to this section:
|
|
|
|
Arbitration
|
|
|
|
Disputes arising out of or in connection with this Agreement shall be
|
|
finally settled by arbitration which shall be held in Bangalore, India
|
|
in accordance with the laws of India then in effect. The arbitration
|
|
award shall be final and binding for the parties 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 two arbitrators appointed
|
|
by the parties shall appoint a third arbitrator who shall act as
|
|
chairman of the proceedings. Vacancies in the post of chairman shall be
|
|
filled by the president of the Bar Council of India. 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.
|
|
|
|
All proceedings shall be conducted, including all documents presented in
|
|
such proceedings, in the English language. The English language version
|
|
of this Agreement prevails over any other language version.
|
|
|
|
JAPAN: General (Section 5): The following is inserted after item 5:
|
|
|
|
Any doubts concerning this Agreement will be initially resolved between
|
|
us in good faith and in accordance with the principle of mutual trust.
|
|
|
|
MALAYSIA: Limitation of Liability (Section 4): The word "SPECIAL" in
|
|
item 2 of the third paragraph is deleted:
|
|
|
|
NEW ZEALAND: No Warranty (Section 3): The following is added:
|
|
|
|
Although IBM specifies that there are no warranties, You may have
|
|
certain rights 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 (Section 4): The following is added:
|
|
|
|
Where Programs 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: Governing Law, Jurisdiction, and Arbitration
|
|
(Section 6): The phrase "the laws of the country in which You acquired
|
|
the Program license" in the Governing Law subsection is replaced by the
|
|
following:
|
|
|
|
the laws of the State of New York, United States of America (except when
|
|
local law requires otherwise)
|
|
|
|
PHILIPPINES: Limitation of Liability (Section 4): The following replaces
|
|
the terms of item 2 of the third paragraph:
|
|
|
|
2. special (including nominal and exemplary damages), moral, incidental,
|
|
or indirect damages or for any economic consequential damages; or
|
|
|
|
Governing Law, Jurisdiction, and Arbitration (Section 6): The following
|
|
is added to this section:
|
|
|
|
Arbitration
|
|
|
|
Disputes arising out of or in connection with this Agreement shall be
|
|
finally settled by arbitration which shall be held in Metro Manila,
|
|
Philippines in accordance with the laws of the Philippines then in
|
|
effect. The arbitration award shall be final and binding for the parties
|
|
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 two arbitrators appointed
|
|
by the parties shall appoint a third arbitrator who shall act as
|
|
chairman of the proceedings. Vacancies in the post of chairman shall be
|
|
filled by the president of the Philippine Dispute Resolution Center,
|
|
Inc. 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.
|
|
|
|
All proceedings shall be conducted, including all documents presented in
|
|
such proceedings, in the English language. The English language version
|
|
of this Agreement prevails over any other language version.
|
|
|
|
SINGAPORE: Limitation of Liability (Section 4): The words "SPECIAL" and
|
|
"ECONOMIC" are deleted from item 2 of the third paragraph.
|
|
|
|
General (Section 5): The following replaces the terms of item 7:
|
|
|
|
Subject to the rights provided to IBM's suppliers and Program developers
|
|
as provided in Section 4 above (Limitation of Liability), a person who
|
|
is not a party to this Agreement shall have no right under the Contracts
|
|
(Right of Third Parties) Act to enforce any of its terms.
|
|
|
|
EUROPE, MIDDLE EAST, AFRICA (EMEA)
|
|
|
|
Rights in Data (Section 2): In EMEA, the following replaces the terms of
|
|
this section in their entirety:
|
|
|
|
You assign to IBM all rights, title, and interest throughout the world
|
|
(including ownership of copyright) in any data, suggestions, and written
|
|
materials that 1) is related to Your use of the Program and 2) You
|
|
provide to IBM. Such assignment of rights includes, but is not limited
|
|
to, assignment of the rights to prepare and have prepared derivative
|
|
works of the written materials, and to use, have used, execute,
|
|
reproduce, transmit, display, perform, transfer, distribute and license
|
|
the written materials and such derivative works in any medium or
|
|
distribution technology, and to grant others some or all of the rights
|
|
granted herein, for the duration of all such rights, title and interest.
|
|
If IBM requires it, You will sign an appropriate document to assign such
|
|
rights. Neither party will charge the other for rights in data or any
|
|
work performed as a result of this Agreement.
|
|
|
|
No Warranty (Section 3): In the European Union, the following is added
|
|
at the beginning of this section:
|
|
|
|
In the European Union, consumers have legal rights under applicable
|
|
national legislation governing the sale of consumer goods. Such rights
|
|
are not affected by the provisions of this Section 3.
|
|
|
|
Limitation of Liability (Section 4): In Austria, Denmark, Finland,
|
|
Greece, Italy, Netherlands, Norway, Portugal, Spain, Sweden and
|
|
Switzerland, 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 or due to any other cause related to 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) or of such
|
|
cause, for a maximum amount equal to the charges You paid for the Program.
|
|
|
|
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.
|
|
|
|
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: IBM(R) SDK, Java(TM) 2 Technology Edition, Version 5.0
|
|
Early Access Release
|
|
Program Number: 6205-001
|
|
|
|
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.
|
|
|
|
Program-unique Terms
|
|
|
|
1. GENERAL
|
|
|
|
a) To the extent of any conflict between the terms of the International
|
|
License Agreement for Early Release of Programs and this License
|
|
Information, the terms of this License Information shall prevail.
|
|
|
|
b) Where the Program has been provided to you separately by IBM, it is
|
|
provided at no charge.
|
|
|
|
c) The Program consists of binary code that executes on the operating
|
|
system(s) specified in Readme files that accompany the Program.
|
|
|
|
d) You are not authorized to use the Program or any component thereof
|
|
for executing any production workload.
|
|
|
|
e) No right is granted to you under this license to redistribute any
|
|
part of the Program.
|
|
|
|
f) In the event of any defect in the Program being reported by you to
|
|
IBM, IBM makes no commitment to upgrade the Program or to remedy such
|
|
defect.
|
|
|
|
g) You agree to comply with all applicable export and import laws and
|
|
regulations.
|
|
|
|
h) You may not without IBM's prior written consent (i) use (or allow the
|
|
use of) the Program, or of any of its components, for the purposes of
|
|
benchmarking against any other version or implementation of Java 5; or
|
|
(ii) publish, disclose or otherwise communicate to any third party the
|
|
results of any benchmarking of the Program.
|
|
|
|
2. TRADEMARKS AND COPYRIGHT: YOUR RESPONSIBILITIES
|
|
|
|
a) You shall not modify, delete, suppress, or obscure any copyright,
|
|
trademark or other legal notice (whether from IBM or any third party)
|
|
which may be displayed by or included within the Program.
|
|
|
|
b) Java and all Java-based Trademarks are trademarks of Sun
|
|
Microsystems, Inc. in the United States, other countries, or both.
|
|
|
|
c) You recognize IBM's and Sun Microsystems, Inc.'s ownership and title
|
|
to their respective trademarks and of any goodwill attaching thereto,
|
|
including goodwill resulting from use. You will not use or attempt to
|
|
register any trademark which is confusingly similar to such IBM or Sun
|
|
trademarks.
|
|
|
|
3. PROOF OF ENTITLEMENT
|
|
|
|
This License Agreement constitutes your Proof of Entitlement.
|
|
|
|
|
|
|
|
D/N: L-ADAN-63KLDA
|
|
P/N: L-ADAN-63KLDA
|