| International License Agreement for Non-Warranted 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 AND PROOF OF ENTITLEMENT TO THE PARTY FROM WHOM |
| YOU ACQUIRED IT TO OBTAIN A REFUND OF THE AMOUNT YOU PAID. IF YOU DOWNLOADED THE |
| PROGRAM, CONTACT THE PARTY FROM WHOM YOU ACQUIRED IT. |
| |
| "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 at http://www.ibm.com/software/sla/ . |
| The LI may also be found in a file in the Program's directory, by the use of a |
| system command, or as a booklet which accompanies the Program. |
| |
| "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. |
| |
| A "Proof of Entitlement" ("PoE") is evidence of Your authorization to use a |
| Program at a specified level. That level may be measured, for example, by the |
| number of processors or users. The PoE is also evidence of Your eligibility for |
| future upgrade prices, if any, and potential special or promotional |
| opportunities. If IBM does not provide You with a PoE, then IBM may accept the |
| original paid sales receipt or other sales record from the party (either IBM or |
| its reseller) from whom You acquired the Program, provided that it specifies the |
| name of the Program and the usage level acquired. |
| |
| "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), License Information, and Proof of Entitlement 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. To the extent there is a conflict between the terms of this |
| Agreement and those of the IBM International Passport Advantage Agreement, the |
| terms of the latter agreement prevail. |
| |
| 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 up to the level of use specified in the PoE and 2) |
| make and install copies, including a backup copy, 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. |
| |
| If You acquire the Program as a program upgrade, after You install the upgrade |
| You may not use the Program from which You upgraded or transfer it to another |
| party. |
| |
| You will 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. |
| |
| 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 and its |
| PoE. |
| |
| Money-back Guarantee |
| |
| If for any reason You are dissatisfied with the Program and You are the original |
| licensee, You may obtain a refund of the amount You paid for it, if within 30 |
| days of Your invoice date You return the Program and its PoE to the party from |
| whom You obtained it. If You downloaded the Program, You may contact the party |
| from whom You acquired it for instructions on how to obtain the refund. |
| |
| Program Transfer |
| |
| You may transfer a Program and all of Your license rights and obligations to |
| another party only if that party agrees to the terms of this Agreement. When You |
| transfer the Program, You must also transfer a copy of this Agreement, including |
| the Program's PoE. After the transfer, You may not use the Program. |
| |
| 2. Charges |
| |
| The amount payable for a Program license is a one-time charge. |
| |
| One-time charges are based on the level of use acquired which is specified in |
| the PoE. IBM does not give credits or refunds for charges already due or paid, |
| except as specified elsewhere in this Agreement. |
| |
| If You wish to increase the level of use, notify IBM or the party from whom You |
| acquired it and pay any applicable charges. |
| |
| If any authority imposes a duty, tax, levy or fee, excluding those based on |
| IBM's net income, upon the Program, then You agree to pay the amount specified |
| or supply exemption documentation. You are responsible for any personal property |
| taxes for the Program from the date that You acquire it. |
| |
| 3. No Warranty |
| |
| SUBJECT TO ANY STATUTORY WARRANTIES WHICH CAN NOT 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 agree to comply with all applicable export and import laws and |
| regulations. |
| |
| 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: General (Section 5): The following replaces 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: Charges (Section 2): The following is added: |
| |
| All banking charges incurred in the People's Republic of China will be borne by |
| You and those incurred outside the People's Republic of China will be borne by |
| IBM. |
| |
| 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) |
| |
| 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, Azerbaijan, 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, for all disputes arising out of this Agreement or |
| related to its interpretation or its execution, only the law and the courts of |
| the capital of the country in which Your registered office and/or commercial |
| office is located 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, Azerbaijan, 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: No Warranty (Section 3): The terms of this section are completely |
| replaced by the following: |
| |
| The following limited warranty applies if You have paid a charge to obtain the |
| Program: |
| |
| The warranty period is twelve months from the date of delivery. The limitation |
| period for consumers in action for breach of warranty is the statutory period as |
| a minimum. |
| |
| The warranty for an IBM Program covers the functionality of the Program for its |
| normal use and the Program's conformity to its specifications. |
| |
| IBM warrants that when the Program is used in the specified operating |
| environment it will conform to its specifications. IBM does not warrant |
| uninterrupted or error-free operation of the Program or that IBM will correct |
| all Program defects. You are responsible for the results obtained from the use |
| of the Program. |
| |
| The warranty applies only to the unmodified portion of the Program. |
| |
| If the Program does not function as warranted during the warranty period and the |
| problem cannot be resolved with information available. You may return the |
| Program to the party from whom You acquired it and receive a refund in the |
| amount You paid. If You downloaded the Program, You may contact the party from |
| whom You acquired it to obtain the refund. |
| |
| This is our sole obligation to You, except as otherwise required by applicable |
| statutory law. |
| |
| 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: No Warranty (Section 3): The same changes apply as those in No Warranty |
| (Section 3) under Austria above. |
| |
| 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, except as stated in Section 3 (No Warranty) of this Agreement. |
| |
| 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. |
| |
| Z125-5589-03 (06/2006) |
| |
| |
| |
| LICENSE INFORMATION |
| |
| The Programs listed below are licensed under the following terms and conditions |
| in addition to those of the International License Agreement for Non-Warranted |
| Programs. |
| |
| Program Name: IBM(R) 32-bit SDK for Linux(R) on Intel(R) architecture, Java(TM) |
| Technology Edition, Version 6 |
| Program Number: 6207-001 |
| Authorization for Use on Home/Portable Computer: The Program may be stored on |
| the primary machine and another machine, provided that the Program is not in |
| active use on both machines at the same time. |
| |
| Program Name: IBM(R) 64-bit SDK for Linux(R) on AMD64 / EM64T architecture, |
| Java(TM) Technology Edition, Version 6 |
| Program Number: 6207-001 |
| Authorization for Use on Home/Portable Computer: The Program may be stored on |
| the primary machine and another machine, provided that the Program is not in |
| active use on both machines at the same time. |
| |
| Program Name: IBM(R) 32-bit SDK for Linux(R) on System i(TM) and System p(TM) |
| architecture, Java(TM) Technology Edition, Version 6 |
| Program Number: 6207-001 |
| Authorization for Use on Home/Portable Computer: The Program may be stored on |
| the primary machine and another machine, provided that the Program is not in |
| active use on both machines at the same time. |
| |
| Program Name: IBM(R) 64-bit SDK for Linux(R) on System i(TM) and System p(TM) |
| architecture, Java(TM) Technology Edition, Version 6 |
| Program Number: 6207-001 |
| Authorization for Use on Home/Portable Computer: The Program may be stored on |
| the primary machine and another machine, provided that the Program is not in |
| active use on both machines at the same time. |
| |
| Program Name: IBM(R) 31-bit SDK for Linux(R) on System z(TM) architecture, |
| Java(TM) Technology Edition, Version 6 |
| Program Number: 6207-001 |
| Authorization for Use on Home/Portable Computer: The Program may be stored on |
| the primary machine and another machine, provided that the Program is not in |
| active use on both machines at the same time. |
| |
| Program Name: IBM(R) 64-bit SDK for Linux(R) on System z(TM) architecture, |
| Java(TM) Technology Edition, Version 6 |
| Program Number: 6207-001 |
| Authorization for Use on Home/Portable Computer: The Program may be stored on |
| the primary machine and another machine, provided that the Program is not in |
| active use on both machines at the same time. |
| |
| Program Name: IBM(R) 32-bit Runtime Environment for Linux(R) on Intel(R) |
| architecture, Java(TM) Technology Edition, Version 6 |
| Program Number: 6207-001 |
| Authorization for Use on Home/Portable Computer: The Program may be stored on |
| the primary machine and another machine, provided that the Program is not in |
| active use on both machines at the same time. |
| |
| Program Name: IBM(R) 64-bit Runtime Environment for Linux(R) on AMD64 / EM64T |
| architecture, Java(TM) Technology Edition, Version 6 |
| Program Number: 6207-001 |
| Authorization for Use on Home/Portable Computer: The Program may be stored on |
| the primary machine and another machine, provided that the Program is not in |
| active use on both machines at the same time. |
| |
| Program Name: IBM(R) 32-bit Runtime Environment for Linux(R) on System i(TM) and |
| System p(TM), Java(TM) Technology Edition, Version 6 |
| Program Number: 6207-001 |
| Authorization for Use on Home/Portable Computer: The Program may be stored on |
| the primary machine and another machine, provided that the Program is not in |
| active use on both machines at the same time. |
| |
| Program Name: IBM(R) 64-bit Runtime Environment for Linux(R) on System i(TM) and |
| System p(TM), Java(TM) Technology Edition, Version 6 |
| Program Number: 6207-001 |
| Authorization for Use on Home/Portable Computer: The Program may be stored on |
| the primary machine and another machine, provided that the Program is not in |
| active use on both machines at the same time. |
| |
| Program Name: IBM(R) 31-bit Runtime Environment for Linux(R) on System z(TM), |
| Java(TM) Technology Edition, Version 6 |
| Program Number: 6207-001 |
| Authorization for Use on Home/Portable Computer: The Program may be stored on |
| the primary machine and another machine, provided that the Program is not in |
| active use on both machines at the same time. |
| |
| Program Name: IBM(R) 64-bit Runtime Environment for Linux(R) on System z(TM), |
| Java(TM) Technology Edition, Version 6 |
| Program Number: 6207-001 |
| Authorization for Use on Home/Portable Computer: The Program may be stored on |
| the primary machine and another machine, provided that the Program is not in |
| active use on both machines at the same time. |
| |
| Limited Use Rights for Other IBM Programs |
| |
| If You acquired this Program as part of another IBM Program ("Principal |
| Program") that lists this Program under "Other IBM Programs", You received this |
| Program only in support of the Principal Program, and Your rights to use this |
| Program will be limited by the license of the Principal Program. Please contact |
| Your IBM Sales Representative if You wish to acquire a separate license to this |
| Program not limited by the Principal Program's license terms. |
| |
| Excluded Components |
| |
| The provisions of this paragraph do not apply to the extent they are held to be |
| invalid or unenforceable under the law that governs this license. The components |
| listed below are "Excluded Components." Notwithstanding any of the terms in the |
| Agreement or any other agreement You may have with IBM: |
| (a) the third party suppliers of such Excluded Components ("Suppliers") provide |
| the components WITHOUT WARRANTIES OF ANY KIND and, such Suppliers DISCLAIM ANY |
| AND ALL EXPRESS AND IMPLIED WARRANTIES AND CONDITIONS INCLUDING, BUT NOT LIMITED |
| TO, THE WARRANTY OF TITLE, NON-INFRINGEMENT OR INTERFERENCE AND THE IMPLIED |
| WARRANTIES AND CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR |
| PURPOSE, WITH RESPECT TO THE EXCLUDED COMPONENTS; |
| (b) in no event are the Suppliers liable for any direct, indirect, incidental, |
| special, exemplary, punitive or consequential damages, including but not limited |
| to lost data, lost savings, and lost profits, with respect to the Excluded |
| Components; and, |
| (c) IBM and the Suppliers are not liable to You, and will not defend, indemnify, |
| or hold You harmless for any claims arising from or related to the Excluded |
| Components. |
| |
| Notwithstanding these exclusions, in Germany and Austria, IBM's warranty and |
| liability for the Excluded Components is governed only by the respective terms |
| applicable for Germany and Austria in the IBM license agreements. |
| |
| Notices and important information that IBM is required to provide to You with |
| respect to the Excluded Components, including instructions for obtaining source |
| code for certain Excluded Components, may be found in the NOTICES file(s) that |
| accompanies the Program. |
| |
| Your use of the Excluded Components is governed by the terms of the Agreement |
| and not by any terms that may be contained in the NOTICES file(s). The terms |
| contained in the Agreement are offered by IBM and not by any other party. Future |
| Program updates or fixpacks may contain additional Excluded Components. Such |
| additional Excluded Components, and related notices and information, if any, |
| will be listed in another NOTICES file that accompanies the Program update or |
| fixpack. |
| |
| The following are Excluded Components: |
| Apache Harmony :- |
| * Annotation (Subversion: r573440 2007-09-11 (Arena R4745)) |
| * Beans (Subversion: r573440 2007-09-11 (Arena R4745)) |
| * jndi (Subversion: r573440 2007-09-11 (Arena R4745)) |
| * lang-management (Subversion: r573440 2007-09-11 (Arena R4745)) |
| * logging (Subversion: r573440 2007-09-11 (Arena R4745)) |
| * security (Subversion: r573440 2007-09-11 (Arena R4745)) |
| * sql (Subversion: r573440 2007-09-11 (Arena R4745)) |
| * java.util (part of luni) (Subversion: r573440 2007-09-11 (Arena R4745)) |
| |
| 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. |
| |
| Program-unique Terms |
| |
| 1. GENERAL |
| |
| To the extent of any conflict between the terms of the International License |
| Agreement for Non-Warranted Programs and this License Information, the terms of |
| this License Information shall prevail. |
| |
| WHERE THE PROGRAM HAS BEEN PROVIDED TO YOU SEPARATELY BY IBM, IT IS PROVIDED AT |
| NO CHARGE. |
| |
| The Program consists of binary code that executes on the operating system(s) |
| specified in Readme files that accompany the Program. |
| |
| 3. 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-RVEK-75GKYF |
| P/N: L-RVEK-75GKYF |