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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: IBM developerWorks Subscription
Program Number: 5724-G77
Authorization for Use on Home/Portable Computer: 1
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.
Program-unique Terms
(1) License Information
License Information consists of the License Information
for the developerWorks Subscription specified in this
section (including the Program-Unique Terms), as well as
the License Information available for specific Programs
within the developerWorks Subscription. In the event of
a conflict in terms, the terms of the License
Information for developerWorks Subscription prevail over
the terms of the License Information for a specific
Program, unless the specific program is one specified as
"Individual Program License Applies" described in
section 7 below. In this case, the terms and conditions
specified as "Individual Program License Applies" shall
apply if there is an inconsistency with the terms and
conditions in the developerWorks Subscription License
Information.
If you obtained the Offering via membership in the IBM
PartnerWorld program, the terms of the PartnerWorld
agreement and its attachments shall apply if there is an
inconsistency with other terms and conditions.
If you obtained the Offering via membership in the IBM
Scholars Offering, the terms of the Scholars Offering
agreement and its attachments shall apply if there is an
inconsistency with other terms and conditions.
(2) The Offering
The IBM developerWorks Subscription (Offering) (formerly
IBM developerWorks Toolbox subscription) includes,
without limitation, all object code, sample source code,
publications, documentation and Programs. Offering
contents may be downloaded and viewed from the Offering
Web site or may be contained on the Offering media. IBM
may add contents to the Offering or remove contents from
the Offering at any time, and may make selected Offering
contents available at the Web site, or on Offering
media, or both.
(3) IBM PartnerWorld Members
If you obtained your license to the Offering through
your membership in IBM PartnerWorld, then you are not
only subject to the terms and conditions of this
Agreement, but you are also subject to the terms and
conditions of your PartnerWorld Agreement and any
applicable attachments, including the Software Usage
Attachment. Refer to the PartnerWorld website at ibm.
com/partnerworld/developer/member/admin-guide/SoftwareUsageAttachment.html
to review this agreement and attachment(s). If
PartnerWorld Agreement terms or conditions are
inconsistent with terms and conditions of this
Agreement, then the terms and conditions contained in
the PartnerWorld Agreement shall apply in those cases.
(4) IBM Scholars Program Members
If you obtained your license to the Offering through
your membership in the IBM Scholars Program, then you
are not only subject to the terms and conditions of this
Agreement, but you are also subject to the terms and
conditions of your Agreement for IBM Scholars Offering.
If your Agreement for IBM Scholars Offering terms or
conditions are inconsistent with terms and conditions of
this Agreement, then the terms and conditions contained
in the Agreement for IBM Scholars Offering shall apply
in those cases.
(5) Usage
You may only use the Offering for the sole purposes of
developing, testing, demonstrating and evaluating
application Programs. The Offering may not be used for
production use or deployed for any other purposes.
Testing, as defined in this Agreement, only includes the
use of the Offering Programs with simulated test data
for verification of an application prior to the
deployment or sale of the application. Testing, as
defined in this Agreement, does NOT include the use of
the Offering Programs (except development
tools/compilers): with production data, with operational
data, in a pre-production environment, or in a staging
environment. The use of a development tool debugger for
diagnosing application program failures is permitted for
all data environments/sources.
If you acquired your license to the Offering through
your membership in IBM PartnerWorld, then any additional
restrictions as specified in the IBM PartnerWorld
Agreement-International, including the Software Usage
Attachment, also apply to your use of the Offering.
These restrictions include, but are not limited to:
- the types of activities, generally non-production and
non- fee earning, (except where specifically indicated
otherwise) that the Offering may be used for;
- the numbers of copies that may be made and their
location;
- the time period during which the Offering may be used;
- applicable charges; and
- registration requirements.
If you acquired your license to the Offering through
your membership in IBM Scholars Program, then any
additional restrictions as specified in the applicable
IBM Scholars Program Agreement also apply to your use of
the Offering.
If you acquired your license to the Offering as a
Promotional Copy, then your usage is restricted to
evaluation only.
(6) Transfer of Rights and Obligations
You may transfer all your rights in the Offering to
another party except that:
a) if you acquired your license to the Offering through
your membership in the IBM Scholars Program or as a
Promotional Copy, then you may not transfer the
Offering; and
b) if you acquired your license to the Offering through
your membership in IBM PartnerWorld, then you may
transfer the Offering only as specified in the
applicable IBM PartnerWorld Agreement-International
Software Usage Attachment.
The transfer of your license rights terminates your
authorization to use the Offering. When you transfer
your license rights, you must also transfer any Offering
media and other materials that were provided to you, and
you must provide IBM with the: name, address, phone
number, and company of the person to whom you are
transferring the license rights. The transfer of your
license rights to the Offering does not change the
status of the subscription.
(7) Additional Terms and Conditions
For Programs in the Offering that are designated
"Individual Program License Applies", you agree that
prior to using that Program, you will first read its
license. The Program's license may contain additional
terms and conditions that apply to that particular
Program. If any such additional terms or conditions are
inconsistent with terms and conditions of this
Agreement, the additional terms and conditions contained
in the Program's license shall apply in those cases.
Using the Program shall indicate your agreement to be
bound by its additional terms and conditions if any.
(8) Copies
You, as an individual, have a personal license to make
and use copies of the Offering provided that you are the
only individual using the Offering and its copies. You
may make and use up to ten (10) copies of each of the
Programs in the Offering for the sole purposes of
developing, testing, demonstrating, and evaluating
application Programs. You may make an unlimited number
of copies of the content items, in the Offering, that
are not Programs. You must reproduce the copyright
notice(s) on all additional copies of the Offering. The
terms and conditions of this Agreement shall apply to
and govern all such additional copies of the Offering.
If you acquired your license to the Offering through
your membership in the IBM Scholars Program, then the
terms of your Agreement for IBM Scholars Offering apply
to the number of copies that you may make.
If you acquired your license to the Offering through
your membership in the IBM PartnerWorld Program, then
the terms of the IBM PartnerWorld
Agreement-International and its applicable attachments,
including the Software Usage Attachment, apply to the
number of copies that you may make.
(9) Technical Support
The Offering is provided on an "as is" basis without
technical support. Technical support for some Programs
may be available under a separate agreement for an
additional fee.
(10) License Expiration
Unless the license and/or agreement under which you
acquired the Offering specifies otherwise, your license
to use the individual Offering Programs will continue
under the terms of this Agreement after your
subscription has expired or if individual Programs are
removed from the Offering. Your license to use
individual Offering Programs that contain prerelease
code will terminate as specified in the individual
Program license for the prerelease code. If no
termination is specified for the prerelease Program,
then your license will terminate when such individual
Programs are removed from the Offering.
(11) New Contents
IBM may provide you with new contents to the Offering,
and may make selected, new contents available at the
Offering Web site, or on Offering media, or both. The
terms and conditions of this Agreement shall apply to
any such new contents to the Offering.
(12) Subscription Levels
The terms and conditions of this Agreement shall apply
to the Offering regardless of your subscription level
(i.e. Starter, Professional and Enterprise Levels).
(13) Sample Programs
The Offering may contain sample Programs that are
furnished by IBM. These examples have not been
thoroughly tested under all conditions. IBM, therefore,
cannot guarantee or imply reliability, serviceability,
or function of these sample Programs. You may copy,
modify, and distribute these sample Programs in any form
without payment to IBM, for the purposes of developing,
using, marketing and distributing application Programs
conforming to the application programming interface for
the operating platform for which the sample Programs are
written, provided that: 1) you agree to defend, hold
harmless and indemnify IBM from and against any and all
claims, liabilities, damages, expenses and costs arising
out of or in connection with your use or distribution of
the sample Programs, modifications thereof, or your
application program(s); and 2) you do not state that IBM
certifies or guarantees the operation of the sample
Programs or modifications thereof, with any hardware
and/or software. Each copy or partial copy of sample
Programs or any modifications thereof, must include a
copyright notice as follows: "(C) Copyright (your
company name) (year). Portions of this code are derived
from IBM Sample Programs. (C) Copyright IBM Corp.
1997-2004. All rights reserved."
(14) Prerelease Code
The Offering may include Programs that contain
prerelease code which may be modified substantially
before general availability. These prerelease Programs
may not be at the level of performance or compatibility
of generally available IBM Programs. IBM does not
guarantee that any of the prerelease Programs contained
in the Offering will ever be made generally available.
Programs that contain prerelease code are designated as
"Individual Program License Applies", and are licensed
under the prerelease license terms available with such
Programs.
(15) Disabling Devices
The Offering may include Programs that contain a
disabling device which will prevent them from being used
after the expiration of a period of time. You will not
tamper with these disabling devices or the Programs. You
should take precautions to avoid any loss of data that
might result when the Programs can no longer be used.
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