| 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: 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 |