| International License Agreement for Early Release of Programs |
| |
| Part 1 - General Terms |
| |
| BY DOWNLOADING, INSTALLING, COPYING, ACCESSING, OR USING THE PROGRAM YOU |
| AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ACCEPTING THESE TERMS |
| ON BEHALF OF ANOTHER PERSON OR A COMPANY OR OTHER LEGAL ENTITY, YOU |
| REPRESENT AND WARRANT THAT YOU HAVE FULL AUTHORITY TO BIND THAT PERSON, |
| COMPANY, OR LEGAL ENTITY TO THESE TERMS. IF YOU DO NOT AGREE TO THESE |
| TERMS, |
| |
| - DO NOT DOWNLOAD, INSTALL, COPY, ACCESS, OR USE THE PROGRAM; AND |
| |
| - PROMPTLY RETURN THE PROGRAM TO THE PARTY FROM WHOM YOU ACQUIRED IT. IF |
| YOU DOWNLOADED THE PROGRAM, CONTACT THE PARTY FROM WHOM YOU ACQUIRED IT. |
| |
| "Early Release" means that the Program is not formally released or |
| commercially available. The term does not imply that the Program will be |
| formally released or made commercially available. IBM does not warrant |
| that should a Program be formally released or made commercially |
| available that it will be similar to, or compatible with, Early Release |
| versions. |
| |
| "IBM" is International Business Machines Corporation or one of its |
| subsidiaries. |
| |
| "License Information" ("LI") is a document that provides information |
| specific to a Program. The Program's LI is available in a file in the |
| Program's directory, by the use of a system command, or as a booklet |
| which accompanies the Program. The LI may also be found at |
| http://www.ibm.com/software/sla/ . |
| |
| "Program" is the following, including the original and all whole or |
| partial copies: 1) machine-readable instructions and data, 2) |
| components, 3) audio-visual content (such as images, text, recordings, |
| or pictures), 4) related licensed materials, and 5) license use |
| documents or keys, and documentation. |
| |
| "You" and "Your" refer either to an individual person or to a single |
| legal entity. |
| |
| This Agreement includes Part 1 - General Terms, Part 2 - Country-unique |
| Terms (if any), and License Information and is the complete agreement |
| between You and IBM regarding the use of the Program. It replaces any |
| prior oral or written communications between You and IBM concerning Your |
| use of the Program. The terms of Part 2 and License Information may |
| replace or modify those of Part 1. |
| |
| 1. Entitlement |
| |
| License |
| |
| The Program is owned by IBM or an IBM supplier, and is copyrighted and |
| licensed, not sold. |
| |
| IBM grants You a nonexclusive license to use the Program when You |
| lawfully acquire it. |
| |
| You may 1) use the Program only for internal evaluation or testing |
| purposes, and 2) make and install a reasonable number of copies, |
| including a backup copy, of the Program to support such use. The terms |
| of this license apply to each copy You make. You will reproduce all |
| copyright notices and all other legends of ownership on each copy, or |
| partial copy, of the Program. |
| |
| THE PROGRAM MAY CONTAIN A DISABLING DEVICE THAT WILL PREVENT IT FROM |
| BEING USED AFTER THE EVALUATION PERIOD ENDS. YOU WILL NOT TAMPER WITH |
| THIS DISABLING DEVICE OR THE PROGRAM. YOU SHOULD TAKE PRECAUTIONS TO |
| AVOID ANY LOSS OF DATA THAT MIGHT RESULT WHEN THE PROGRAM CAN NO LONGER |
| BE USED. |
| |
| You will 1) maintain a record of all copies of the Program and 2) ensure |
| that anyone who uses the Program (accessed either locally or remotely) |
| does so only for Your authorized use and complies with the terms of this |
| Agreement. |
| |
| You may not 1) use, copy, modify or distribute the Program except as |
| provided in this Agreement; 2) reverse assemble, reverse compile, or |
| otherwise translate the Program except as specifically permitted by law |
| without the possibility of contractual waiver; or 3) sublicense, rent, |
| or lease the Program. |
| |
| The evaluation period begins when You agree to the terms of this |
| Agreement and ends 1) as of the duration or date specified in the |
| License Information, 2) when the Program automatically disables itself, |
| or 3) when IBM makes the program commercially available. You will |
| destroy the Program and all copies made of it within ten days of the end |
| of the evaluation period. There is no charge for the use of Program for |
| the duration of the evaluation period. |
| |
| IBM may terminate Your license if You fail to comply with the terms of |
| this Agreement. If IBM does so, You must destroy all copies of the Program. |
| |
| 2. Rights In Data |
| |
| You assign to IBM all right, title, and interest (including ownership of |
| copyright) in any data, suggestions, and written materials that 1) is |
| related to Your use of the Program and 2) You provide to IBM. If IBM |
| requires it, You will sign an appropriate document to assign such |
| rights. Neither party will charge the other for rights in data or any |
| work performed as a result of this Agreement. |
| |
| 3. No Warranty |
| |
| SUBJECT TO ANY STATUTORY WARRANTIES WHICH CANNOT BE EXCLUDED, IBM MAKES |
| NO WARRANTIES OR CONDITIONS EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT |
| LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, |
| FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, REGARDING THE |
| PROGRAM OR TECHNICAL SUPPORT, IF ANY. |
| |
| The exclusion also applies to any of IBM's Program developers and suppliers. |
| |
| Manufacturers, suppliers, or publishers of non-IBM Programs may provide |
| their own warranties. |
| |
| IBM does not provide technical support, unless IBM specifies otherwise. |
| |
| 4. Limitation of Liability |
| |
| Circumstances may arise where, because of a default on IBM's part or |
| other liability, You are entitled to recover damages from IBM. In each |
| such instance, regardless of the basis on which You may be entitled to |
| claim damages from IBM, (including fundamental breach, negligence, |
| misrepresentation, or other contract or tort claim), IBM is liable for |
| no more than 1) damages for bodily injury (including death) and damage |
| to real property and tangible personal property and 2) the amount of any |
| other actual direct damages up to the charges for the Program that is |
| the subject of the claim. |
| |
| This limitation of liability also applies to IBM's Program developers |
| and suppliers. It is the maximum for which they and IBM are collectively |
| responsible. |
| |
| UNDER NO CIRCUMSTANCES IS IBM, ITS PROGRAM DEVELOPERS OR SUPPLIERS |
| LIABLE FOR ANY OF THE FOLLOWING, EVEN IF INFORMED OF THEIR POSSIBILITY: |
| |
| 1. LOSS OF, OR DAMAGE TO, DATA; |
| |
| 2. SPECIAL, INCIDENTAL, OR INDIRECT DAMAGES, OR FOR ANY ECONOMIC |
| CONSEQUENTIAL DAMAGES; OR |
| |
| 3. LOST PROFITS, BUSINESS, REVENUE, GOODWILL, OR ANTICIPATED SAVINGS. |
| |
| SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF |
| INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR |
| EXCLUSION MAY NOT APPLY TO YOU. |
| |
| 5. General |
| |
| 1. Nothing in this Agreement affects any statutory rights of consumers |
| that cannot be waived or limited by contract. |
| |
| 2. In the event that any provision of this Agreement is held to be |
| invalid or unenforceable, the remaining provisions of this Agreement |
| remain in full force and effect. |
| |
| 3. You may not export the Program. |
| |
| 4. You agree to allow IBM to store and use Your contact information, |
| including names, phone numbers, and e-mail addresses, anywhere they do |
| business. Such information will be processed and used in connection with |
| our business relationship, and may be provided to contractors, Business |
| Partners, and assignees of IBM for uses consistent with their collective |
| business activities, including communicating with You (for example, for |
| processing orders, for promotions, and for market research). |
| |
| 5. Neither You nor IBM will bring a legal action under this Agreement |
| more than two years after the cause of action arose unless otherwise |
| provided by local law without the possibility of contractual waiver or |
| limitation. |
| |
| 6. Neither You nor IBM is responsible for failure to fulfill any |
| obligations due to causes beyond its control. |
| |
| 7. This Agreement will not create any right or cause of action for any |
| third party, nor will IBM be responsible for any third party claims |
| against You except, as permitted by the Limitation of Liability section |
| above, for bodily injury (including death) or damage to real or tangible |
| personal property for which IBM is legally liable. |
| |
| 6. Governing Law, Jurisdiction, and Arbitration |
| |
| Governing Law |
| |
| Both You and IBM consent to the application of the laws of the country |
| in which You acquired the Program license to govern, interpret, and |
| enforce all of Your and IBM's rights, duties, and obligations arising |
| from, or relating in any manner to, the subject matter of this |
| Agreement, without regard to conflict of law principles. |
| |
| The United Nations Convention on Contracts for the International Sale of |
| Goods does not apply. |
| |
| Jurisdiction |
| |
| All of our rights, duties, and obligations are subject to the courts of |
| the country in which You acquired the Program license. |
| |
| Part 2 - Country-unique Terms |
| |
| AMERICAS |
| |
| ARGENTINA: Governing Law, Jurisdiction, and Arbitration (Section 6): The |
| following exception is added to this section: |
| |
| Any litigation arising from this Agreement will be settled exclusively |
| by the Ordinary Commercial Court of the city of Buenos Aires. |
| |
| BRAZIL: Governing Law, Jurisdiction, and Arbitration (Section 6): The |
| following exception is added to this section: |
| |
| Any litigation arising from this Agreement will be settled exclusively |
| by the court of Rio de Janeiro, RJ. |
| |
| CANADA: Limitation of Liability (Section 4): The following replaces item |
| 1 in the first paragraph of this section: |
| |
| 1) damages for bodily injury (including death) and physical harm to real |
| property and tangible personal property caused by IBM's negligence; and |
| |
| General (Section 5): The following replaces the terms in item 7: |
| |
| 7. This Agreement will not create any right or cause of action for any |
| third party, nor will IBM be responsible for any third party claims |
| against You except as permitted by the Limitation of Liability section |
| above for bodily injury (including death) or physical harm to real or |
| tangible personal property caused by IBM's negligence for which IBM is |
| legally liable. |
| |
| Governing Law, Jurisdiction, and Arbitration (Section 6): The phrase |
| "the laws of the country in which You acquired the Program license" in |
| the Governing Law subsection is replaced by the following: |
| |
| the laws in the Province of Ontario |
| |
| PERU: Limitation of Liability (Section 4): The following is added at the |
| end of this section: |
| |
| In accordance with Article 1328 of the Peruvian Civil Code, the |
| limitations and exclusions specified in this section will not apply to |
| damages caused by IBM's willful misconduct ("dolo") or gross negligence |
| ("culpa inexcusable"). |
| |
| UNITED STATES OF AMERICA: General (Section 5): The following is added to |
| this section: |
| |
| U.S. Government Users Restricted Rights - Use, duplication or disclosure |
| restricted by the GSA ADP Schedule Contract with the IBM Corporation. |
| |
| Governing Law, Jurisdiction, and Arbitration (Section 6): The phrase |
| "the laws of the country in which You acquired the Program license" in |
| the Governing Law subsection is replaced by the following: |
| |
| the laws of the State of New York, United States of America |
| |
| ASIA PACIFIC |
| |
| AUSTRALIA: No Warranty (Section 3): The following is added: |
| |
| Although IBM specifies that there are no warranties, You may have |
| certain rights under the Trade Practices Act 1974 or other legislation |
| and are only limited to the extent permitted by the applicable legislation. |
| |
| Limitation of Liability (Section 4): The following is added: |
| |
| Where IBM is in breach of a condition or warranty implied by the Trade |
| Practices Act 1974, IBM's liability is limited to the repair or |
| replacement of the goods, or the supply of equivalent goods. Where that |
| condition or warranty relates to right to sell, quiet possession or |
| clear title, or the goods are of a kind ordinarily acquired for |
| personal, domestic or household use or consumption, then none of the |
| limitations in this paragraph apply. |
| |
| Governing Law, Jurisdiction, and Arbitration (Section 6): The phrase |
| "the laws of the country in which You acquired the Program license" in |
| the Governing Law subsection is replaced by the following: |
| |
| the laws of the State or Territory in which You acquired the Program license |
| |
| CAMBODIA, LAOS, and VIETNAM: Governing Law, Jurisdiction, and |
| Arbitration (Section 6): The phrase "the laws of the country in which |
| You acquired the Program license" in the Governing Law subsection is |
| replaced by the following: |
| |
| the laws of the State of New York, United States of America |
| |
| The following is added to this section: |
| |
| Arbitration |
| |
| Disputes arising out of or in connection with this Agreement shall be |
| finally settled by arbitration which shall be held in Singapore in |
| accordance with the Arbitration Rules of Singapore International |
| Arbitration Center ("SIAC Rules") then in effect. The arbitration award |
| shall be final and binding for the parties without appeal and shall be |
| in writing and set forth the findings of fact and the conclusions of law. |
| |
| The number of arbitrators shall be three, with each side to the dispute |
| being entitled to appoint one arbitrator. The two arbitrators appointed |
| by the parties shall appoint a third arbitrator who shall act as |
| chairman of the proceedings. Vacancies in the post of chairman shall be |
| filled by the president of the SIAC. Other vacancies shall be filled by |
| the respective nominating party. Proceedings shall continue from the |
| stage they were at when the vacancy occurred. |
| |
| If one of the parties refuses or otherwise fails to appoint an |
| arbitrator within 30 days of the date the other party appoints its, the |
| first appointed arbitrator shall be the sole arbitrator, provided that |
| the arbitrator was validly and properly appointed. |
| |
| All proceedings shall be conducted, including all documents presented in |
| such proceedings, in the English language. The English language version |
| of this Agreement prevails over any other language version. |
| |
| HONG KONG S.A.R. and MACAU S.A.R. of China: Governing Law, Jurisdiction, |
| and Arbitration (Section 6): The phrase "the laws of the country in |
| which You acquired the Program license" in the Governing Law subsection |
| is replaced by the following: |
| |
| the laws of Hong Kong Special Administrative Region of China |
| |
| INDIA: Limitation of Liability (Section 4): The following replaces the |
| terms of items 1 and 2 of the first paragraph: |
| |
| 1) liability for bodily injury (including death) or damage to real |
| property and tangible personal property will be limited to that caused |
| by IBM's negligence; and 2) as to any other actual damage arising in any |
| situation involving nonperformance by IBM pursuant to, or in any way |
| related to the subject of this Agreement, IBM's liability will be |
| limited to the charge paid by You for the individual Program that is the |
| subject of the claim. |
| |
| General (Section 5): The following replaces the terms of item 5: |
| |
| If no suit or other legal action is brought, within three years after |
| the cause of action arose, in respect of any claim that either party may |
| have against the other, the rights of the concerned party in respect of |
| such claim will be forfeited and the other party will stand released |
| from its obligations in respect of such claim. |
| |
| Governing Law, Jurisdiction, and Arbitration (Section 6): The following |
| is added to this section: |
| |
| Arbitration |
| |
| Disputes arising out of or in connection with this Agreement shall be |
| finally settled by arbitration which shall be held in Bangalore, India |
| in accordance with the laws of India then in effect. The arbitration |
| award shall be final and binding for the parties without appeal and |
| shall be in writing and set forth the findings of fact and the |
| conclusions of law. |
| |
| The number of arbitrators shall be three, with each side to the dispute |
| being entitled to appoint one arbitrator. The two arbitrators appointed |
| by the parties shall appoint a third arbitrator who shall act as |
| chairman of the proceedings. Vacancies in the post of chairman shall be |
| filled by the president of the Bar Council of India. Other vacancies |
| shall be filled by the respective nominating party. Proceedings shall |
| continue from the stage they were at when the vacancy occurred. |
| |
| If one of the parties refuses or otherwise fails to appoint an |
| arbitrator within 30 days of the date the other party appoints its, the |
| first appointed arbitrator shall be the sole arbitrator, provided that |
| the arbitrator was validly and properly appointed. |
| |
| All proceedings shall be conducted, including all documents presented in |
| such proceedings, in the English language. The English language version |
| of this Agreement prevails over any other language version. |
| |
| JAPAN: General (Section 5): The following is inserted after item 5: |
| |
| Any doubts concerning this Agreement will be initially resolved between |
| us in good faith and in accordance with the principle of mutual trust. |
| |
| MALAYSIA: Limitation of Liability (Section 4): The word "SPECIAL" in |
| item 2 of the third paragraph is deleted: |
| |
| NEW ZEALAND: No Warranty (Section 3): The following is added: |
| |
| Although IBM specifies that there are no warranties, You may have |
| certain rights under the Consumer Guarantees Act 1993 or other |
| legislation which cannot be excluded or limited. The Consumer Guarantees |
| Act 1993 will not apply in respect of any goods which IBM provides, if |
| You require the goods for the purposes of a business as defined in that Act. |
| |
| Limitation of Liability (Section 4): The following is added: |
| |
| Where Programs are not acquired for the purposes of a business as |
| defined in the Consumer Guarantees Act 1993, the limitations in this |
| Section are subject to the limitations in that Act. |
| |
| PEOPLE'S REPUBLIC OF CHINA: Governing Law, Jurisdiction, and Arbitration |
| (Section 6): The phrase "the laws of the country in which You acquired |
| the Program license" in the Governing Law subsection is replaced by the |
| following: |
| |
| the laws of the State of New York, United States of America (except when |
| local law requires otherwise) |
| |
| PHILIPPINES: Limitation of Liability (Section 4): The following replaces |
| the terms of item 2 of the third paragraph: |
| |
| 2. special (including nominal and exemplary damages), moral, incidental, |
| or indirect damages or for any economic consequential damages; or |
| |
| Governing Law, Jurisdiction, and Arbitration (Section 6): The following |
| is added to this section: |
| |
| Arbitration |
| |
| Disputes arising out of or in connection with this Agreement shall be |
| finally settled by arbitration which shall be held in Metro Manila, |
| Philippines in accordance with the laws of the Philippines then in |
| effect. The arbitration award shall be final and binding for the parties |
| without appeal and shall be in writing and set forth the findings of |
| fact and the conclusions of law. |
| |
| The number of arbitrators shall be three, with each side to the dispute |
| being entitled to appoint one arbitrator. The two arbitrators appointed |
| by the parties shall appoint a third arbitrator who shall act as |
| chairman of the proceedings. Vacancies in the post of chairman shall be |
| filled by the president of the Philippine Dispute Resolution Center, |
| Inc. Other vacancies shall be filled by the respective nominating party. |
| Proceedings shall continue from the stage they were at when the vacancy |
| occurred. |
| |
| If one of the parties refuses or otherwise fails to appoint an |
| arbitrator within 30 days of the date the other party appoints its, the |
| first appointed arbitrator shall be the sole arbitrator, provided that |
| the arbitrator was validly and properly appointed. |
| |
| All proceedings shall be conducted, including all documents presented in |
| such proceedings, in the English language. The English language version |
| of this Agreement prevails over any other language version. |
| |
| SINGAPORE: Limitation of Liability (Section 4): The words "SPECIAL" and |
| "ECONOMIC" are deleted from item 2 of the third paragraph. |
| |
| General (Section 5): The following replaces the terms of item 7: |
| |
| Subject to the rights provided to IBM's suppliers and Program developers |
| as provided in Section 4 above (Limitation of Liability), a person who |
| is not a party to this Agreement shall have no right under the Contracts |
| (Right of Third Parties) Act to enforce any of its terms. |
| |
| EUROPE, MIDDLE EAST, AFRICA (EMEA) |
| |
| Rights in Data (Section 2): In EMEA, the following replaces the terms of |
| this section in their entirety: |
| |
| You assign to IBM all rights, title, and interest throughout the world |
| (including ownership of copyright) in any data, suggestions, and written |
| materials that 1) is related to Your use of the Program and 2) You |
| provide to IBM. Such assignment of rights includes, but is not limited |
| to, assignment of the rights to prepare and have prepared derivative |
| works of the written materials, and to use, have used, execute, |
| reproduce, transmit, display, perform, transfer, distribute and license |
| the written materials and such derivative works in any medium or |
| distribution technology, and to grant others some or all of the rights |
| granted herein, for the duration of all such rights, title and interest. |
| If IBM requires it, You will sign an appropriate document to assign such |
| rights. Neither party will charge the other for rights in data or any |
| work performed as a result of this Agreement. |
| |
| No Warranty (Section 3): In the European Union, the following is added |
| at the beginning of this section: |
| |
| In the European Union, consumers have legal rights under applicable |
| national legislation governing the sale of consumer goods. Such rights |
| are not affected by the provisions of this Section 3. |
| |
| Limitation of Liability (Section 4): In Austria, Denmark, Finland, |
| Greece, Italy, Netherlands, Norway, Portugal, Spain, Sweden and |
| Switzerland, the following replaces the terms of this section in its |
| entirety: |
| |
| Except as otherwise provided by mandatory law: |
| |
| 1. IBM's liability for any damages and losses that may arise as a |
| consequence of the fulfillment of its obligations under or in connection |
| with this agreement or due to any other cause related to this agreement |
| is limited to the compensation of only those damages and losses proved |
| and actually arising as an immediate and direct consequence of the |
| non-fulfillment of such obligations (if IBM is at fault) or of such |
| cause, for a maximum amount equal to the charges You paid for the Program. |
| |
| The above limitation shall not apply to damages for bodily injuries |
| (including death) and damages to real property and tangible personal |
| property for which IBM is legally liable. |
| |
| 2. UNDER NO CIRCUMSTANCES IS IBM, OR ANY OF ITS PROGRAM DEVELOPERS, |
| LIABLE FOR ANY OF THE FOLLOWING, EVEN IF INFORMED OF THEIR POSSIBILITY: |
| 1) LOSS OF, OR DAMAGE TO, DATA; 2) INCIDENTAL OR INDIRECT DAMAGES, OR |
| FOR ANY ECONOMIC CONSEQUENTIAL DAMAGES; 3) LOST PROFITS, EVEN IF THEY |
| ARISE AS AN IMMEDIATE CONSEQUENCE OF THE EVENT THAT GENERATED THE |
| DAMAGES; OR 4) LOSS OF BUSINESS, REVENUE, GOODWILL, OR ANTICIPATED SAVINGS. |
| |
| 3. The limitation and exclusion of liability herein agreed applies not |
| only to the activities performed by IBM but also to the activities |
| performed by its suppliers and Program developers, and represents the |
| maximum amount for which IBM as well as its suppliers and Program |
| developers, are collectively responsible. |
| |
| Limitation of Liability (Section 4): In France and Belgium, the |
| following replaces the terms of this section in its entirety: |
| |
| Except as otherwise provided by mandatory law: |
| |
| 1. IBM's liability for any damages and losses that may arise as a |
| consequence of the fulfillment of its obligations under or in connection |
| with this agreement is limited to the compensation of only those damages |
| and losses proved and actually arising as an immediate and direct |
| consequence of the non- fulfillment of such obligations (if IBM is at |
| fault), for a maximum amount equal to the charges You paid for the |
| Program that has caused the damages. |
| |
| The above limitation shall not apply to damages for bodily injuries |
| (including death) and damages to real property and tangible personal |
| property for which IBM is legally liable. |
| |
| 2. UNDER NO CIRCUMSTANCES IS IBM, OR ANY OF ITS PROGRAM DEVELOPERS, |
| LIABLE FOR ANY OF THE FOLLOWING, EVEN IF INFORMED OF THEIR POSSIBILITY: |
| 1) LOSS OF, OR DAMAGE TO, DATA; 2) INCIDENTAL OR INDIRECT DAMAGES, OR |
| FOR ANY ECONOMIC CONSEQUENTIAL DAMAGES; 3) LOST PROFITS, EVEN IF THEY |
| ARISE AS AN IMMEDIATE CONSEQUENCE OF THE EVENT THAT GENERATED THE |
| DAMAGES; OR 4) LOSS OF BUSINESS, REVENUE, GOODWILL, OR ANTICIPATED SAVINGS. |
| |
| 3. The limitation and exclusion of liability herein agreed applies not |
| only to the activities performed by IBM but also to the activities |
| performed by its suppliers and Program developers, and represents the |
| maximum amount for which IBM as well as its suppliers and Program |
| developers, are collectively responsible. |
| |
| Governing Law, Jurisdiction, and Arbitration (Section 6) |
| |
| Governing Law |
| |
| The phrase "the laws of the country in which You acquired the Program |
| license" is replaced by: |
| 1) "the laws of Austria" in Albania, Armenia, Azerbeijan, Belarus, |
| Bosnia-Herzegovina, Bulgaria, Croatia, Georgia, Hungary, Kazakhstan, |
| Kyrgyzstan, FYR Macedonia, Moldavia, Poland, Romania, Russia, Slovakia, |
| Slovenia, Tajikistan, Turkmenistan, Ukraine, Uzbekistan, and FR Yugoslavia; |
| 2) "the laws of France" in Algeria, Benin, Burkina Faso, Cameroon, Cape |
| Verde, Central African Republic, Chad, Comoros, Congo Republic, |
| Djibouti, Democratic Republic of Congo, Equatorial Guinea, French |
| Guiana, French Polynesia, Gabon, Gambia, Guinea, Guinea- Bissau, Ivory |
| Coast, Lebanon, Madagascar, Mali, Mauritania, Mauritius, Mayotte, |
| Morocco, New Caledonia, Niger, Reunion, Senegal, Seychelles, Togo, |
| Tunisia, Vanuatu, and Wallis & Futuna; |
| 3) "the laws of Finland" in Estonia, Latvia, and Lithuania; |
| 4) "the laws of England" in Angola, Bahrain, Botswana, Burundi, Egypt, |
| Eritrea, Ethiopia, Ghana, Jordan, Kenya, Kuwait, Liberia, Malawi, Malta, |
| Mozambique, Nigeria, Oman, Pakistan, Qatar, Rwanda, Sao Tome, Saudi |
| Arabia, Sierra Leone, Somalia, Tanzania, Uganda, United Arab Emirates, |
| the United Kingdom, West Bank/Gaza, Yemen, Zambia, and Zimbabwe; and |
| 5) "the laws of South Africa" in South Africa, Namibia, Lesotho and |
| Swaziland. |
| |
| Jurisdiction |
| |
| The following exceptions are added to this section: |
| |
| 1) In Austria the choice of jurisdiction for all disputes arising out of |
| this Agreement and relating thereto, including its existence, will be |
| the competent court of law in Vienna, Austria (Inner-City); |
| 2) in Angola, Bahrain, Botswana, Burundi, Egypt, Eritrea, Ethiopia, |
| Ghana, Jordan, Kenya, Kuwait, Liberia, Malawi, Malta, Mozambique, |
| Nigeria, Oman, Pakistan, Qatar, Rwanda, Sao Tome, Saudi Arabia, Sierra |
| Leone, Somalia, Tanzania, Uganda, United Arab Emirates, West Bank/Gaza, |
| Yemen, Zambia, and Zimbabwe all disputes arising out of this Agreement |
| or related to its execution, including summary proceedings, will be |
| submitted to the exclusive jurisdiction of the English courts; |
| 3) in Belgium and Luxembourg all disputes arising out of this Agreement |
| or related to its interpretation or its execution, the law, and the |
| courts of the capital city, of the country of Your registered office |
| and/or commercial site location only are competent; |
| 4) in France, Algeria, Benin, Burkina Faso, Cameroon, Cape Verde, |
| Central African Republic, Chad, Comoros, Congo Republic, Djibouti, |
| Democratic Republic of Congo, Equatorial Guinea, French Guiana, French |
| Polynesia, Gabon, Gambia, Guinea, Guinea-Bissau, Ivory Coast, Lebanon, |
| Madagascar, Mali, Mauritania, Mauritius, Mayotte, Morocco, New |
| Caledonia, Niger, Reunion, Senegal, Seychelles, Togo, Tunisia, Vanuatu, |
| and Wallis & Futuna all disputes arising out of this Agreement or |
| related to its violation or execution, including summary proceedings, |
| will be settled exclusively by the Commercial Court of Paris; |
| 5) in Russia all disputes arising out of or in relation to the |
| interpretation, the violation, the termination, the nullity of the |
| execution of this Agreement shall be settled by Arbitration Court of |
| Moscow; |
| 6) in South Africa, Namibia, Lesotho and Swaziland both of us agree to |
| submit all disputes relating to this Agreement to the jurisdiction of |
| the High Court in Johannesburg; |
| 7) in Turkey all disputes arising out of or in connection with this |
| Agreement shall be resolved by the Istanbul Central (Sultanahmet) Courts |
| and Execution Directorates of Istanbul, the Republic of Turkey; |
| 8) in each of the following specified countries, any legal claim arising |
| out of this Agreement will be brought before, and settled exclusively |
| by, the competent court of a) Athens for Greece, b) Tel Aviv-Jaffa for |
| Israel, c) Milan for Italy, d) Lisbon for Portugal, and e) Madrid for |
| Spain; and |
| 9) in the United Kingdom both of us agree to submit all disputes |
| relating to this Agreement to the jurisdiction of the English courts. |
| |
| Arbitration |
| |
| In Albania, Armenia, Azerbeijan, Belarus, Bosnia- Herzegovina, Bulgaria, |
| Croatia, Georgia, Hungary, Kazakhstan, Kyrgyzstan, FYR Macedonia, |
| Moldavia, Poland, Romania, Russia, Slovakia, Slovenia, Tajikistan, |
| Turkmenistan, Ukraine, Uzbekistan, and FR Yugoslavia all disputes |
| arising out of this Agreement or related to its violation, termination |
| or nullity will be finally settled under the Rules of Arbitration and |
| Conciliation of the International Arbitral Center of the Federal |
| Economic Chamber in Vienna (Vienna Rules) by three arbitrators appointed |
| in accordance with these rules. |
| The arbitration will be held in Vienna, Austria, and the official |
| language of the proceedings will be English. The decision of the |
| arbitrators will be final and binding upon both parties. Therefore, |
| pursuant to paragraph 598 (2) of the Austrian Code of Civil Procedure, |
| the parties expressly waive the application of paragraph 595 (1) figure |
| 7 of the Code. IBM may, however, institute proceedings in a competent |
| court in the country of installation. |
| |
| In Estonia, Latvia and Lithuania all disputes arising in connection with |
| this Agreement will be finally settled in arbitration that will be held |
| in Helsinki, Finland in accordance with the arbitration laws of Finland |
| then in effect. Each party will appoint one arbitrator. The arbitrators |
| will then jointly appoint the chairman. If arbitrators cannot agree on |
| the chairman, then the Central Chamber of Commerce in Helsinki will |
| appoint the chairman. |
| |
| AUSTRIA: General (Section 5): The following is added to item 4: |
| |
| For purposes of this clause, contact information will also include |
| information about You as a legal entity, for example revenue data and |
| other transactional information. |
| |
| GERMANY: Limitation of Liability (Section 4): The following paragraph is |
| added to this Section: |
| |
| The limitations and exclusions specified in this Section will not apply |
| to damages caused by IBM intentionally or by gross negligence. |
| |
| General (Section 5): The following replaces the terms of item 5: |
| |
| Any claims resulting from this Agreement are subject to a statute of |
| limitation of three years. |
| |
| HUNGARY: Limitation of Liability (Section 4): The following is added at |
| the end of this section: |
| |
| The limitation and exclusion specified herein shall not apply to |
| liability for a breach of contract damaging life, physical well-being, |
| or health that has been caused intentionally, by gross negligence, or by |
| a criminal act. |
| |
| The parties accept the limitations of liability as valid provisions and |
| state that the Section 314.(2) of the Hungarian Civil Code applies as |
| the acquisition price as well as other advantages arising out of the |
| present Agreement balance this limitation of liability. |
| |
| IRELAND: No Warranty (Section 3): The following is added to this section: |
| |
| Except as expressly provided in these terms and conditions, or section |
| 12 of the Sale of Goods Act 1893 (as amended by the Sale of Goods and |
| Supply of Services Act 1980 ("the 1980 Act")), all conditions and |
| warranties (express or implied, statutory or otherwise) are hereby |
| excluded including, without limitation, any warranties implied by the |
| Sale of Goods Act 1893 as amended by the 1980 Act (including, for the |
| avoidance of doubt, section 39 of the 1980 Act). |
| |
| Limitation of Liability (Section 4): The following replaces the terms of |
| this section in its entirety: |
| |
| For the purposes of this section, a "Default" means any act, statement, |
| omission, or negligence on the part of IBM in connection with, or in |
| relation to, the subject matter of an Agreement in respect of which IBM |
| is legally liable to You whether in contract or tort. A number of |
| Defaults which together result in, or contribute to, substantially the |
| same loss or damage will be treated as one Default occurring on the date |
| of occurrence of the last such Default. |
| |
| Circumstances may arise where, because of a Default, You are entitled to |
| recover damages from IBM. This section sets out the extent of IBM's |
| liability and Your sole remedy. |
| |
| 1. IBM will accept unlimited liability for (a) death or personal injury |
| caused by the negligence of IBM, and (b) subject always to the Items for |
| Which IBM is Not Liable below, for physical damage to Your tangible |
| property resulting from the negligence of IBM. |
| |
| 2. Except as provided in item 1 above, IBM's entire liability for actual |
| damages for any one Default will not in any event exceed the greater of |
| 1) EUR 125,000, or 2) 125% of the amount You paid for the Program |
| directly relating to the Default. These limits also apply to any of |
| IBM's suppliers and Program developers. They state the maximum for which |
| IBM and such suppliers and Program developers are collectively responsible. |
| |
| Items for Which IBM is Not Liable |
| |
| Save with respect to any liability referred to in item 1 above, under no |
| circumstances is IBM or any of its suppliers or Program developers |
| liable for any of the following, even if IBM or they were informed of |
| the possibility of such losses: |
| |
| 1. loss of, or damage to, data; |
| |
| 2. special, indirect, or consequential loss; or |
| |
| 3. loss of profits, business, revenue, goodwill, or anticipated savings. |
| |
| ITALY: General (Section 5): The following is added to this section: |
| |
| IBM and Customer (hereinafter, individually, "Party") shall comply with |
| all the obligations of the applicable provisions of law and/or |
| regulation on personal data protection. Each of the Parties will |
| indemnify and keep the other Party harmless from any damage, claim, cost |
| or expense incurred by the latter, directly and or indirectly, as a |
| consequence of an infringement of the other Party of the mentioned |
| provisions of law and/or regulations. |
| |
| SLOVAKIA: Limitation of Liability (Section 4): The following is added to |
| the end of the last paragraph: |
| |
| The limitations apply to the extent they are not prohibited under §§ |
| 373-386 of the Slovak Commercial Code. |
| |
| General (Section 5): The terms of item 5 are replaced with the following: |
| |
| THE PARTIES AGREE THAT, AS DEFINED BY APPLICABLE LOCAL LAW, ANY LEGAL OR |
| OTHER ACTION RELATED TO A BREACH OF THIS AGREEMENT MUST BE COMMENCED NO |
| LATER THAN FOUR YEARS FROM THE DATE ON WHICH THE CAUSE OF ACTION AROSE. |
| |
| SWITZERLAND: General (Section 5): The following is added to item 4: |
| |
| For purposes of this clause, contact information will also include |
| information about You as a legal entity, for example revenue data and |
| other transactional information. |
| |
| UNITED KINGDOM: No Warranty (Section 3): The following replaces the |
| first sentence in the first paragraph of this section: |
| |
| SUBJECT TO ANY STATUTORY WARRANTIES WHICH CANNOT BE EXCLUDED, IBM MAKES |
| NO WARRANTY OR CONDITION EITHER EXPRESS OR IMPLIED, INCLUDING (WITHOUT |
| LIMITATION) THE IMPLIED WARRANTIES OF SATISFACTORY QUALITY, FITNESS FOR |
| A PARTICULAR PURPOSE, AND NON- INFRINGEMENT, REGARDING THE PROGRAM. |
| |
| Limitation of Liability (Section 4): The following replaces the terms of |
| this section in its entirety: |
| |
| For the purposes of this section, a "Default" means any act, statement, |
| omission, or negligence on the part of IBM in connection with, or in |
| relation to, the subject matter of an Agreement in respect of which IBM |
| is legally liable to You, whether in contract or tort. A number of |
| Defaults which together result in, or contribute to, substantially the |
| same loss or damage will be treated as one Default. |
| |
| Circumstances may arise where, because of a Default, You are entitled to |
| recover damages from IBM. This section sets out the extent of IBM's |
| liability and Your sole remedy. |
| |
| 1. IBM will accept unlimited liability for: |
| |
| a. death or personal injury caused by the negligence of IBM; |
| |
| b. any breach of its obligations implied by Section 12 of the Sale of |
| Goods Act 1979 or Section 2 of the Supply of Goods and Services Act |
| 1982, or any statutory modification or re- enactment of either such |
| Section; and |
| |
| c. subject always to the Items for Which IBM is Not Liable below, for |
| physical damage to Your tangible property resulting from the negligence |
| of IBM. |
| |
| 2. IBM's entire liability for actual damages for any one Default will |
| not in any event, except as provided in item 1 above, exceed the greater |
| of 1) £75,000, or 2) 125% of the amount You paid for the Program |
| directly relating to the Default. These limits also apply to IBM's |
| suppliers and Program developers. They state the maximum for which IBM |
| and such suppliers and Program developers are collectively responsible. |
| |
| Items for Which IBM is Not Liable |
| |
| Save with respect to any liability referred to in item 1 above, under no |
| circumstances is IBM or any of its suppliers or Program developers |
| liable for any of the following, even if IBM or they were informed of |
| the possibility of such losses: |
| |
| 1. loss of, or damage to, data; |
| |
| 2. special, indirect, or consequential loss; or |
| |
| 3. loss of profits, business, revenue, goodwill, or anticipated savings. |
| |
| Z125-5544-02 (11/2002) |
| LICENSE INFORMATION |
| |
| The Programs listed below are licensed under the following terms and |
| conditions in addition to those of the International License Agreement |
| for Early Release of Programs. |
| |
| Program Name: IBM(R) SDK, Java(TM) 2 Technology Edition, Version 5.0 |
| Early Access Release |
| Program Number: 6205-001 |
| |
| Specified Operating Environment |
| |
| The Program's specifications and specified operating environment |
| information may be found in documentation accompanying the Program, if |
| available, such as a read-me file, or other information published by |
| IBM, such as an announcement letter. |
| |
| Evaluation Period |
| |
| The evaluation period begins on the date that You agree to the terms of |
| this Agreement and ends after 90 days. |
| |
| Program-unique Terms |
| |
| 1. GENERAL |
| |
| a) To the extent of any conflict between the terms of the International |
| License Agreement for Early Release of Programs and this License |
| Information, the terms of this License Information shall prevail. |
| |
| b) Where the Program has been provided to you separately by IBM, it is |
| provided at no charge. |
| |
| c) The Program consists of binary code that executes on the operating |
| system(s) specified in Readme files that accompany the Program. |
| |
| d) You are not authorized to use the Program or any component thereof |
| for executing any production workload. |
| |
| e) No right is granted to you under this license to redistribute any |
| part of the Program. |
| |
| f) In the event of any defect in the Program being reported by you to |
| IBM, IBM makes no commitment to upgrade the Program or to remedy such |
| defect. |
| |
| g) You agree to comply with all applicable export and import laws and |
| regulations. |
| |
| h) You may not without IBM's prior written consent (i) use (or allow the |
| use of) the Program, or of any of its components, for the purposes of |
| benchmarking against any other version or implementation of Java 5; or |
| (ii) publish, disclose or otherwise communicate to any third party the |
| results of any benchmarking of the Program. |
| |
| 2. TRADEMARKS AND COPYRIGHT: YOUR RESPONSIBILITIES |
| |
| a) You shall not modify, delete, suppress, or obscure any copyright, |
| trademark or other legal notice (whether from IBM or any third party) |
| which may be displayed by or included within the Program. |
| |
| b) Java and all Java-based Trademarks are trademarks of Sun |
| Microsystems, Inc. in the United States, other countries, or both. |
| |
| c) You recognize IBM's and Sun Microsystems, Inc.'s ownership and title |
| to their respective trademarks and of any goodwill attaching thereto, |
| including goodwill resulting from use. You will not use or attempt to |
| register any trademark which is confusingly similar to such IBM or Sun |
| trademarks. |
| |
| 3. PROOF OF ENTITLEMENT |
| |
| This License Agreement constitutes your Proof of Entitlement. |
| |
| |
| |
| D/N: L-ADAN-63KLDA |
| P/N: L-ADAN-63KLDA |