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, 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: 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 (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 Non-Warranted Programs.
Program Name:
ServerGuide Scripting Toolkit
Program Number: 1.0
Authorization for Use on Home/Portable
Computer: 2
EXPLANATIONS OF TERMS:
Authorization for Use on Home/Portable
Computer:
"1" means that 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.
"2" means that you may not copy and use
this Program on another computer without paying additional license fees.
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.
Excluded Components
Notwithstanding the terms and conditions of
any other agreement you may have with IBM or any of its related or affiliated
companies (collectively "IBM") or with any of the third parties that
provide IBM products ("Third Parties"), the following terms and
conditions apply to all "Excluded Components" identified below: (a)
all Excluded Components are provided on an "AS IS" basis; (b) IBM AND
THIRD PARTIES DISCLAIM ANY AND ALL EXPRESS AND IMPLIED WARRANTIES AND
CONDITIONS INCLUDING, BUT NOT LIMITED TO, THE WARRANTY OF NON-INFRINGEMENT OR
INTERFERENCE AND THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE; (c) IBM and Third Parties will not be liable
to you or indemnify you for any claims related to the Excluded Components; and
(d) IBM and Third Parties will not be liable for any direct, indirect,
incidental, special, exemplary, punitive or consequential damages with respect
to the Excluded Components.
The following are Excluded Components:
For the ServerGuide Scritpting Toolkit
components of the Program, the Excluded Components include:
(a) all
third party components, including third party components included or embedded
in the Program and components referenced in any LICENSE.TXT file included with
the Program or a fixpack or update to the Program, and
(b)
all source code included with the Program.
Third Party Code
The Program and future updates and fixpacks to
the Program may contain certain third party components which are provided to
you under terms and conditions which are different from this Agreement, or
which require IBM or third parties that provide IBM products ("Third
Parties") to provide you with certain notices and/or information. For each
such third party component, either IBM or Third Parties will identify such
third party component in a "README" file (or in an updated
"README" file accompanying the fixpack or update), or in a file or
files referenced in such "README" files (and shall include any
associated license agreement, notices and other related information therein),
or the third party component will contain or be accompanied by its own license
agreement (for example, provided when installing or starting such component, or
accompanying such component in a file entitled "README",
"COPYING", "LICENSE" or a substantially similar title, or
included among the Program's paper documentation, if any). Your use of each
third party component which contains or is accompanied by its own license
agreement, or for which IBM or Third Parties have identified a license
agreement in one of the above "README" files (or in a file or files
referenced therein), will be subject to the terms and conditions of such other
license agreement, and not this Agreement. By using or not uninstalling such
third party components after the initial installation of such third party
components (thereby giving you access to the applicable license agreements,
notices and information), you acknowledge and agree to all such license
agreements, notices and information, including those provided only in the
English language. You agree to review any updated "README" files
which accompany updates and fixpacks to the Program.
The Program contains the following third party
components:
For the ServerGuide Scritpting Toolkit
components of the Program, the Third Party Code includes the following:
"All third party components, including
third party components included or embedded in the Program and components
referenced in any LICENSE.TXT file included with the Program or a fixpack or
update to the Program."
D/N:
L-5SYUZU
P/N:
L-5SYUZU