2282 lines
102 KiB
HTML
2282 lines
102 KiB
HTML
<HTML>
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<HEAD><META HTTP-EQUIV="content-type" CONTENT="text/html; charset=iso-8859-1">
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<TITLE>Software License</TITLE>
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</HEAD>
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<BODY>
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IMPORTANT: READ CAREFULLY<br>
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<br>
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Two license agreements are presented below.<br>
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<br>
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1. IBM International License Agreement for Evaluation of
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Programs<br>
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2. IBM International Program License Agreement<br>
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<br>
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If you are obtaining the Program for purposes of productive
|
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use (other than evaluation, testing, trial "try or buy," or
|
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demonstration): By clicking on the "Accept" button below, You accept the
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IBM International Program License Agreement, without
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modification.<br>
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<br>
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If you are obtaining the Program for the purpose of
|
|
evaluation, testing, trial "try or buy," or demonstration
|
|
(collectively, an "Evaluation"): By clicking on the "Accept" button below,
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You accept both (i) the IBM International License Agreement for
|
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Evaluation of Programs (the "Evaluation License"), without
|
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modification; and (ii) the IBM International Program License Agreement
|
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(the "IPLA"), without modification. <br>
|
|
<br>
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The Evaluation License will apply during the term of Your
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Evaluation. <br>
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<br>
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The IPLA will automatically apply if You elect to retain
|
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the Program after the Evaluation (or obtain additional copies
|
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of the Program for use after the Evaluation) by entering into
|
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a procurement agreement (e.g., the IBM International Passport
|
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Advantage or the IBM Passport Advantage Express agreements). <br>
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<br>
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The Evaluation License and the IPLA are not in effect
|
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concurrently; neither modifies the other; and each is independent of the
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other.<br>
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<br>
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The complete text of each of these two license agreements
|
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follow.<br>
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<br>
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<br>
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International License Agreement for Evaluation of Programs<br>
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<br>
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Part 1 - General Terms<br>
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<br>
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BY DOWNLOADING, INSTALLING, COPYING, ACCESSING, OR USING
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THE PROGRAM YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU
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ARE ACCEPTING THESE TERMS ON BEHALF OF ANOTHER PERSON OR A
|
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COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU
|
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HAVE FULL AUTHORITY TO BIND THAT PERSON, COMPANY, OR LEGAL
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ENTITY TO THESE TERMS. IF YOU DO NOT AGREE TO THESE TERMS, <br>
|
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<br>
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- DO NOT DOWNLOAD, INSTALL, COPY, ACCESS, OR USE THE
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PROGRAM; AND<br>
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<br>
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- PROMPTLY RETURN THE PROGRAM TO THE PARTY FROM WHOM YOU
|
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ACQUIRED IT. IF YOU DOWNLOADED THE PROGRAM, CONTACT THE PARTY FROM
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WHOM YOU ACQUIRED IT.<br>
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<br>
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"IBM" is International Business Machines Corporation or one
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of its subsidiaries.<br>
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<br>
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"License Information" ("LI") is a document that provides
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information specific to a Program. The Program's LI is available in a
|
|
file in the Program's directory, by the use of a system command,
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or as a booklet which accompanies the Program. The LI may also
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be found at http://www.ibm.com/software/sla/ .<br>
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<br>
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"Program" is the following, including the original and all
|
|
whole or partial copies: 1) machine-readable instructions and
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data, 2) components, 3) audio-visual content (such as images,
|
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text, recordings, or pictures), 4) related licensed materials,
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and 5) license use documents or keys, and documentation.<br>
|
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<br>
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"You" and "Your" refer either to an individual person or to
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a single legal entity.<br>
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<br>
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This Agreement includes Part 1 - General Terms, Part 2 -
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Country-unique Terms (if any), and License Information and is the
|
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complete agreement between You and IBM regarding the use of the
|
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Program. It replaces any prior oral or written communications
|
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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. <br>
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<br>
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1. Entitlement<br>
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<br>
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License<br>
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<br>
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The Program is owned by IBM or an IBM supplier, and is
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copyrighted and licensed, not sold.<br>
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<br>
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IBM grants You a nonexclusive license to use the Program
|
|
when You lawfully acquire it.<br>
|
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<br>
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You may 1) use the Program only for internal evaluation,
|
|
testing, or demonstration purposes, on a trial or "try-and-buy"
|
|
basis; and 2) make and install a reasonable number of copies,
|
|
including a backup copy, of the Program to support such use. The
|
|
terms of this license apply to each copy You make. You will
|
|
reproduce all copyright notices and all other legends of ownership on
|
|
each copy, or partial copy, of the Program.<br>
|
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<br>
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THE PROGRAM MAY CONTAIN A DISABLING DEVICE THAT WILL
|
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PREVENT IT FROM BEING USED AFTER THE EVALUATION PERIOD ENDS. YOU
|
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WILL NOT TAMPER WITH THIS DISABLING DEVICE OR THE PROGRAM. YOU
|
|
SHOULD TAKE PRECAUTIONS TO AVOID ANY LOSS OF DATA THAT MIGHT
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RESULT WHEN THE PROGRAM CAN NO LONGER BE USED.<br>
|
|
<br>
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You will 1) maintain a record of all copies of the Program
|
|
and 2) ensure that anyone who uses the Program (accessed either
|
|
locally or remotely) does so only for Your authorized use and
|
|
complies with the terms of this Agreement.<br>
|
|
<br>
|
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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.<br>
|
|
<br>
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The evaluation period begins when You agree to the terms of
|
|
this Agreement and ends 1) as of the duration or date specified
|
|
in the License Information, or 2) when the Program
|
|
automatically disables itself. There is no charge for the use of the
|
|
Program for the duration of the evaluation period. Unless IBM
|
|
specifies in the License Information that You may retain the Program,
|
|
You will destroy the Program and all copies made of it within
|
|
ten days of the end of the evaluation period. If IBM specifies
|
|
that You may retain the Program, and You elect to do so, the
|
|
Program will be then subject to a different license agreement, that
|
|
will be provided to You at that time. In addition, a charge may
|
|
apply.<br>
|
|
<br>
|
|
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.<br>
|
|
<br>
|
|
2. No Warranty<br>
|
|
<br>
|
|
SUBJECT TO ANY STATUTORY WARRANTIES WHICH CANNOT BE
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|
EXCLUDED, IBM MAKES NO WARRANTIES OR CONDITIONS EITHER EXPRESS OR
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IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR
|
|
CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND
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NON-INFRINGEMENT, REGARDING THE PROGRAM OR TECHNICAL SUPPORT,
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IF ANY.<br>
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<br>
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The exclusion also applies to any of IBM's Program
|
|
developers and suppliers.<br>
|
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<br>
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Manufacturers, suppliers, or publishers of non-IBM Programs
|
|
may provide their own warranties.<br>
|
|
<br>
|
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IBM does not provide technical support, unless IBM
|
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specifies otherwise.<br>
|
|
<br>
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3. Limitation of Liability<br>
|
|
<br>
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Circumstances may arise where, because of a default on
|
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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
|
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subject of the claim.<br>
|
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<br>
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This limitation of liability also applies to IBM's Program
|
|
developers and suppliers. It is the maximum for which they and IBM are
|
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collectively responsible.<br>
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<br>
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UNDER NO CIRCUMSTANCES IS IBM, ITS PROGRAM DEVELOPERS OR
|
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SUPPLIERS LIABLE FOR ANY OF THE FOLLOWING, EVEN IF INFORMED OF THEIR
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POSSIBILITY: <br>
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<br>
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1. LOSS OF, OR DAMAGE TO, DATA;<br>
|
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<br>
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2. SPECIAL, INCIDENTAL, OR INDIRECT DAMAGES, OR FOR ANY
|
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ECONOMIC CONSEQUENTIAL DAMAGES; OR<br>
|
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<br>
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3. LOST PROFITS, BUSINESS, REVENUE, GOODWILL, OR
|
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ANTICIPATED SAVINGS.<br>
|
|
<br>
|
|
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.<br>
|
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<br>
|
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4. General<br>
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<br>
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1. Nothing in this Agreement affects any statutory rights
|
|
of consumers that cannot be waived or limited by contract.<br>
|
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<br>
|
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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.<br>
|
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<br>
|
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3. You may not export the Program.<br>
|
|
<br>
|
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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).<br>
|
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<br>
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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.<br>
|
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<br>
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6. Neither You nor IBM is responsible for failure to
|
|
fulfill any obligations due to causes beyond its control.<br>
|
|
<br>
|
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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
|
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IBM is legally liable.<br>
|
|
<br>
|
|
5. Governing Law, Jurisdiction, and Arbitration<br>
|
|
<br>
|
|
Governing Law<br>
|
|
<br>
|
|
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.<br>
|
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<br>
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The United Nations Convention on Contracts for the
|
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International Sale of Goods does not apply.<br>
|
|
<br>
|
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Jurisdiction<br>
|
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<br>
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All of our rights, duties, and obligations are subject to
|
|
the courts of the country in which You acquired the Program
|
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license.<br>
|
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<br>
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Part 2 - Country-unique Terms<br>
|
|
<br>
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AMERICAS<br>
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<br>
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ARGENTINA: Governing Law, Jurisdiction, and Arbitration
|
|
(Section 5): The following exception is added to this section:<br>
|
|
<br>
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Any litigation arising from this Agreement will be settled
|
|
exclusively by the Ordinary Commercial Court of the city of Buenos
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Aires.<br>
|
|
<br>
|
|
BRAZIL: Governing Law, Jurisdiction, and Arbitration
|
|
(Section 5): The following exception is added to this section:<br>
|
|
<br>
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|
Any litigation arising from this Agreement will be settled
|
|
exclusively by the court of Rio de Janeiro, RJ.<br>
|
|
<br>
|
|
CANADA: Limitation of Liability (Section 3): The following
|
|
replaces item 1 in the first paragraph of this section: <br>
|
|
<br>
|
|
1) damages for bodily injury (including death) and physical
|
|
harm to real property and tangible personal property caused by
|
|
IBM's negligence; and<br>
|
|
<br>
|
|
General (Section 4): The following replaces the terms in
|
|
item 7:<br>
|
|
<br>
|
|
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.<br>
|
|
<br>
|
|
Governing Law, Jurisdiction, and Arbitration (Section 5):
|
|
The phrase "the laws of the country in which You acquired the
|
|
Program license" in the Governing Law subsection is replaced by the
|
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following: <br>
|
|
<br>
|
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the laws in the Province of Ontario<br>
|
|
<br>
|
|
PERU: Limitation of Liability (Section 3): The following is
|
|
added at the end of this section: <br>
|
|
<br>
|
|
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
|
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("dolo") or gross negligence ("culpa inexcusable").<br>
|
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<br>
|
|
UNITED STATES OF AMERICA: General (Section 4): The
|
|
following is added to this section:<br>
|
|
<br>
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U.S. Government Users Restricted Rights - Use, duplication
|
|
or disclosure restricted by the GSA ADP Schedule Contract with
|
|
the IBM Corporation.<br>
|
|
<br>
|
|
Governing Law, Jurisdiction, and Arbitration (Section 5):
|
|
The phrase "the laws of the country in which You acquired the
|
|
Program license" in the Governing Law subsection is replaced by the
|
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following:<br>
|
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<br>
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the laws of the State of New York, United States of America<br>
|
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<br>
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|
ASIA PACIFIC<br>
|
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<br>
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|
AUSTRALIA: No Warranty (Section 2): The following is added:<br>
|
|
<br>
|
|
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.<br>
|
|
<br>
|
|
Limitation of Liability (Section 3): The following is added:<br>
|
|
<br>
|
|
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.<br>
|
|
<br>
|
|
Governing Law, Jurisdiction, and Arbitration (Section 5):
|
|
The phrase "the laws of the country in which You acquired the
|
|
Program license" in the Governing Law subsection is replaced by the
|
|
following:<br>
|
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<br>
|
|
the laws of the State or Territory in which You acquired
|
|
the Program license<br>
|
|
<br>
|
|
CAMBODIA, LAOS, and VIETNAM: Governing Law, Jurisdiction,
|
|
and Arbitration (Section 5): The phrase "the laws of the
|
|
country in which You acquired the Program license" in the Governing
|
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Law subsection is replaced by the following:<br>
|
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<br>
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the laws of the State of New York, United States of America<br>
|
|
<br>
|
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The following is added to this section:<br>
|
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<br>
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Arbitration<br>
|
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<br>
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Disputes arising out of or in connection with this
|
|
Agreement shall be finally settled by arbitration which shall be held
|
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in Singapore in accordance with the Arbitration Rules of
|
|
Singapore International Arbitration Center ("SIAC Rules") then in
|
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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.<br>
|
|
<br>
|
|
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.<br>
|
|
<br>
|
|
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.<br>
|
|
<br>
|
|
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.<br>
|
|
<br>
|
|
HONG KONG S.A.R. and MACAU S.A.R. of China: Governing Law,
|
|
Jurisdiction, and Arbitration (Section 5): The phrase "the laws of the
|
|
country in which You acquired the Program license" in the Governing
|
|
Law subsection is replaced by the following:<br>
|
|
<br>
|
|
the laws of Hong Kong Special Administrative Region of China<br>
|
|
<br>
|
|
INDIA: Limitation of Liability (Section 3): The following
|
|
replaces the terms of items 1 and 2 of the first paragraph:<br>
|
|
<br>
|
|
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.<br>
|
|
<br>
|
|
General (Section 4): The following replaces the terms of
|
|
item 5:<br>
|
|
<br>
|
|
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.<br>
|
|
<br>
|
|
Governing Law, Jurisdiction, and Arbitration (Section 5):
|
|
The following is added to this section:<br>
|
|
<br>
|
|
Arbitration<br>
|
|
<br>
|
|
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.<br>
|
|
<br>
|
|
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.<br>
|
|
<br>
|
|
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.<br>
|
|
<br>
|
|
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.<br>
|
|
<br>
|
|
JAPAN: General (Section 4): The following is inserted after
|
|
item 5:<br>
|
|
<br>
|
|
Any doubts concerning this Agreement will be initially
|
|
resolved between us in good faith and in accordance with the
|
|
principle of mutual trust.<br>
|
|
<br>
|
|
MALAYSIA: Limitation of Liability (Section 3): The word
|
|
"SPECIAL" in item 2 of the third paragraph is deleted:<br>
|
|
<br>
|
|
NEW ZEALAND: No Warranty (Section 2): The following is
|
|
added:<br>
|
|
<br>
|
|
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.<br>
|
|
<br>
|
|
Limitation of Liability (Section 3): The following is added:<br>
|
|
<br>
|
|
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.<br>
|
|
<br>
|
|
PEOPLE'S REPUBLIC OF CHINA: Governing Law, Jurisdiction,
|
|
and Arbitration (Section 5): The phrase "the laws of the
|
|
country in which You acquired the Program license" in the Governing
|
|
Law subsection is replaced by the following:<br>
|
|
<br>
|
|
the laws of the State of New York, United States of America
|
|
(except when local law requires otherwise)<br>
|
|
<br>
|
|
PHILIPPINES: Limitation of Liability (Section 3): The
|
|
following replaces the terms of item 2 of the third paragraph:<br>
|
|
<br>
|
|
2. special (including nominal and exemplary damages),
|
|
moral, incidental, or indirect damages or for any economic
|
|
consequential damages; or<br>
|
|
<br>
|
|
Governing Law, Jurisdiction, and Arbitration (Section 5):
|
|
The following is added to this section:<br>
|
|
<br>
|
|
Arbitration<br>
|
|
<br>
|
|
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.<br>
|
|
<br>
|
|
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.<br>
|
|
<br>
|
|
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.<br>
|
|
<br>
|
|
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.<br>
|
|
<br>
|
|
SINGAPORE: Limitation of Liability (Section 3): The words
|
|
"SPECIAL" and "ECONOMIC" are deleted from item 2 of the third
|
|
paragraph.<br>
|
|
<br>
|
|
General (Section 4): The following replaces the terms of
|
|
item 7:<br>
|
|
<br>
|
|
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.<br>
|
|
<br>
|
|
EUROPE, MIDDLE EAST, AFRICA (EMEA)<br>
|
|
<br>
|
|
No Warranty (Section 2): In the European Union, the
|
|
following is added at the beginning of this section:<br>
|
|
<br>
|
|
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.<br>
|
|
<br>
|
|
Limitation of Liability (Section 3): In Austria, Denmark,
|
|
Finland, Greece, Italy, Netherlands, Norway, Portugal, Spain, Sweden
|
|
and Switzerland, the following replaces the terms of this
|
|
section in its entirety:<br>
|
|
<br>
|
|
Except as otherwise provided by mandatory law:<br>
|
|
<br>
|
|
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.<br>
|
|
<br>
|
|
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.<br>
|
|
<br>
|
|
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. <br>
|
|
<br>
|
|
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. <br>
|
|
<br>
|
|
Limitation of Liability (Section 3): In France and Belgium,
|
|
the following replaces the terms of this section in its
|
|
entirety: <br>
|
|
<br>
|
|
Except as otherwise provided by mandatory law:<br>
|
|
<br>
|
|
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.<br>
|
|
<br>
|
|
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.<br>
|
|
<br>
|
|
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. <br>
|
|
<br>
|
|
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.<br>
|
|
<br>
|
|
Governing Law, Jurisdiction, and Arbitration (Section 5)<br>
|
|
<br>
|
|
Governing Law<br>
|
|
<br>
|
|
The phrase "the laws of the country in which You acquired
|
|
the Program license" is replaced by: <br>
|
|
1) "the laws of Austria" in Albania, Armenia, Azerbaijan,
|
|
Belarus, Bosnia-Herzegovina, Bulgaria, Croatia, Georgia, Hungary,
|
|
Kazakhstan, Kyrgyzstan, FYR Macedonia, Moldavia, Poland, Romania,
|
|
Russia, Slovakia, Slovenia, Tajikistan, Turkmenistan, Ukraine,
|
|
Uzbekistan, and FR Yugoslavia; <br>
|
|
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; <br>
|
|
3) "the laws of Finland" in Estonia, Latvia, and Lithuania; <br>
|
|
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 <br>
|
|
5) "the laws of South Africa" in South Africa, Namibia,
|
|
Lesotho and Swaziland.<br>
|
|
<br>
|
|
Jurisdiction<br>
|
|
<br>
|
|
The following exceptions are added to this section:<br>
|
|
<br>
|
|
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); <br>
|
|
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; <br>
|
|
3) in Belgium and Luxembourg, for all disputes arising out
|
|
of this Agreement or related to its interpretation or its
|
|
execution, only the law and the courts of the capital of the country
|
|
in which Your registered office and/or commercial office is
|
|
located are competent; <br>
|
|
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; <br>
|
|
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; <br>
|
|
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; <br>
|
|
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; <br>
|
|
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 <br>
|
|
9) in the United Kingdom both of us agree to submit all
|
|
disputes relating to this Agreement to the jurisdiction of the
|
|
English courts. <br>
|
|
<br>
|
|
Arbitration <br>
|
|
<br>
|
|
In Albania, Armenia, Azerbaijan, Belarus, Bosnia-
|
|
Herzegovina, Bulgaria, Croatia, Georgia, Hungary, Kazakhstan,
|
|
Kyrgyzstan, FYR Macedonia, Moldavia, Poland, Romania, Russia, Slovakia,
|
|
Slovenia, Tajikistan, Turkmenistan, Ukraine, Uzbekistan, and FR
|
|
Yugoslavia all disputes arising out of this Agreement or related to
|
|
its violation, termination or nullity will be finally settled
|
|
under the Rules of Arbitration and Conciliation of the
|
|
International Arbitral Center of the Federal Economic Chamber in Vienna
|
|
(Vienna Rules) by three arbitrators appointed in accordance with
|
|
these rules. <br>
|
|
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 instal<br>
|
|
lation.<br>
|
|
<br>
|
|
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.<br>
|
|
<br>
|
|
AUSTRIA: General (Section 4): The following is added to
|
|
item 4:<br>
|
|
<br>
|
|
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.<br>
|
|
<br>
|
|
GERMANY: Limitation of Liability (Section 3): The following
|
|
paragraph is added to this Section:<br>
|
|
<br>
|
|
The limitations and exclusions specified in this Section
|
|
will not apply to damages caused by IBM intentionally or by
|
|
gross negligence.<br>
|
|
<br>
|
|
General (Section 4): The following replaces the terms of
|
|
item 5:<br>
|
|
<br>
|
|
Any claims resulting from this Agreement are subject to a
|
|
statute of limitation of three years.<br>
|
|
<br>
|
|
HUNGARY: Limitation of Liability (Section 3): The following
|
|
is added at the end of this section:<br>
|
|
<br>
|
|
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.<br>
|
|
<br>
|
|
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.<br>
|
|
<br>
|
|
IRELAND: No Warranty (Section 2): The following is added to
|
|
this section:<br>
|
|
<br>
|
|
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).<br>
|
|
<br>
|
|
Limitation of Liability (Section 3): The following replaces
|
|
the terms of this section in its entirety:<br>
|
|
<br>
|
|
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.<br>
|
|
<br>
|
|
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.<br>
|
|
<br>
|
|
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.<br>
|
|
<br>
|
|
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 percent 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.<br>
|
|
<br>
|
|
Items for Which IBM is Not Liable<br>
|
|
<br>
|
|
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:<br>
|
|
<br>
|
|
1. loss of, or damage to, data;<br>
|
|
<br>
|
|
2. special, indirect, or consequential loss; or<br>
|
|
<br>
|
|
3. loss of profits, business, revenue, goodwill, or
|
|
anticipated savings.<br>
|
|
<br>
|
|
ITALY: General (Section 4): The following is added to this
|
|
section:<br>
|
|
<br>
|
|
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. <br>
|
|
<br>
|
|
SLOVAKIA: Limitation of Liability (Section 3): The
|
|
following is added to the end of the last paragraph:<br>
|
|
<br>
|
|
The limitations apply to the extent they are not prohibited
|
|
under Sections 373-386 of the Slovak Commercial Code.<br>
|
|
<br>
|
|
General (Section 4): The terms of item 5 are replaced with
|
|
the following:<br>
|
|
<br>
|
|
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.<br>
|
|
<br>
|
|
SWITZERLAND: General (Section 4): The following is added to
|
|
item 4:<br>
|
|
<br>
|
|
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.<br>
|
|
<br>
|
|
UNITED KINGDOM: No Warranty (Section 2): The following
|
|
replaces the first sentence in the first paragraph of this section:<br>
|
|
<br>
|
|
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.<br>
|
|
<br>
|
|
Limitation of Liability (Section 3): The following replaces
|
|
the terms of this section in its entirety: <br>
|
|
<br>
|
|
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.<br>
|
|
<br>
|
|
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.<br>
|
|
<br>
|
|
1. IBM will accept unlimited liability for:<br>
|
|
<br>
|
|
a. death or personal injury caused by the negligence of
|
|
IBM; <br>
|
|
<br>
|
|
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<br>
|
|
<br>
|
|
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.<br>
|
|
<br>
|
|
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) Pounds Sterling 75,000, or 2) 125 percent
|
|
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.<br>
|
|
<br>
|
|
Items for Which IBM is Not Liable<br>
|
|
<br>
|
|
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:<br>
|
|
<br>
|
|
1. loss of, or damage to, data;<br>
|
|
<br>
|
|
2. special, indirect, or consequential loss; or<br>
|
|
<br>
|
|
3. loss of profits, business, revenue, goodwill, or
|
|
anticipated savings.<br>
|
|
<br>
|
|
Z125-5543-03 (07/2008)<br>
|
|
<br>
|
|
<br>
|
|
<br>
|
|
International Program License Agreement<br>
|
|
<br>
|
|
Part 1 - General Terms<br>
|
|
<br>
|
|
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, <br>
|
|
<br>
|
|
- DO NOT DOWNLOAD, INSTALL, COPY, ACCESS, OR USE THE
|
|
PROGRAM; AND<br>
|
|
<br>
|
|
- 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.<br>
|
|
<br>
|
|
"IBM" is International Business Machines Corporation or one
|
|
of its subsidiaries.<br>
|
|
<br>
|
|
"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.<br>
|
|
<br>
|
|
"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.<br>
|
|
<br>
|
|
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 warranty, 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. <br>
|
|
<br>
|
|
"You" and "Your" refer either to an individual person or to
|
|
a single legal entity.<br>
|
|
<br>
|
|
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.<br>
|
|
<br>
|
|
1. Entitlement<br>
|
|
<br>
|
|
License<br>
|
|
<br>
|
|
The Program is owned by IBM or an IBM supplier, and is
|
|
copyrighted and licensed, not sold.<br>
|
|
<br>
|
|
IBM grants You a nonexclusive license to use the Program
|
|
when You lawfully acquire it.<br>
|
|
<br>
|
|
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.<br>
|
|
<br>
|
|
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.<br>
|
|
<br>
|
|
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.<br>
|
|
<br>
|
|
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.<br>
|
|
<br>
|
|
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.<br>
|
|
<br>
|
|
Money-back Guarantee<br>
|
|
<br>
|
|
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.<br>
|
|
<br>
|
|
Program Transfer<br>
|
|
<br>
|
|
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.<br>
|
|
<br>
|
|
2. Charges<br>
|
|
<br>
|
|
The amount payable for a Program license is a one-time
|
|
charge. <br>
|
|
<br>
|
|
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.<br>
|
|
<br>
|
|
If You wish to increase the level of use, notify IBM or the
|
|
party from whom You acquired it and pay any applicable charges. <br>
|
|
<br>
|
|
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.<br>
|
|
<br>
|
|
3. Limited Warranty<br>
|
|
<br>
|
|
IBM warrants that when the Program is used in the specified
|
|
operating environment it will conform to its specifications. The
|
|
warranty applies only to the unmodified portion of the Program. 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. <br>
|
|
<br>
|
|
IBM provides You with access to IBM databases containing
|
|
information on known Program defects, defect corrections, restrictions,
|
|
and bypasses at no additional charge. Consult the IBM Software
|
|
Support Guide for further information at http://www.ibm.
|
|
com/software/support . IBM will maintain this information for at least one year
|
|
after the original licensee acquires the Program ("Warranty
|
|
Period").<br>
|
|
<br>
|
|
If the Program does not function as warranted during the
|
|
Warranty Period and the problem cannot be resolved with information
|
|
available in the IBM databases, You may return the Program and its
|
|
PoE to the party (either IBM or its reseller) 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 for instructions on how to obtain the refund. <br>
|
|
<br>
|
|
THESE WARRANTIES ARE YOUR EXCLUSIVE WARRANTIES AND REPLACE
|
|
ALL OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED,
|
|
INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF
|
|
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. SOME STATES OR
|
|
JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF EXPRESS OR IMPLIED
|
|
WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. IN THAT EVENT,
|
|
SUCH WARRANTIES ARE LIMITED IN DURATION TO THE WARRANTY PERIOD.
|
|
NO WARRANTIES APPLY AFTER THAT PERIOD. SOME STATES OR
|
|
JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY
|
|
LASTS, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.<br>
|
|
<br>
|
|
THESE WARRANTIES GIVE YOU SPECIFIC LEGAL RIGHTS AND YOU MAY
|
|
ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE OR
|
|
JURISDICTION TO JURISDICTION.<br>
|
|
<br>
|
|
4. Limitation of Liability<br>
|
|
<br>
|
|
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.<br>
|
|
<br>
|
|
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.<br>
|
|
<br>
|
|
UNDER NO CIRCUMSTANCES IS IBM, ITS PROGRAM DEVELOPERS OR
|
|
SUPPLIERS LIABLE FOR ANY OF THE FOLLOWING, EVEN IF INFORMED OF THEIR
|
|
POSSIBILITY: <br>
|
|
<br>
|
|
1. LOSS OF, OR DAMAGE TO, DATA;<br>
|
|
<br>
|
|
2. SPECIAL, INCIDENTAL, OR INDIRECT DAMAGES, OR FOR ANY
|
|
ECONOMIC CONSEQUENTIAL DAMAGES; OR<br>
|
|
<br>
|
|
3. LOST PROFITS, BUSINESS, REVENUE, GOODWILL, OR
|
|
ANTICIPATED SAVINGS.<br>
|
|
<br>
|
|
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.<br>
|
|
<br>
|
|
5. General<br>
|
|
<br>
|
|
1. Nothing in this Agreement affects any statutory rights
|
|
of consumers that cannot be waived or limited by contract.<br>
|
|
<br>
|
|
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.<br>
|
|
<br>
|
|
3. You agree to comply with all applicable export and
|
|
import laws and regulations.<br>
|
|
<br>
|
|
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).<br>
|
|
<br>
|
|
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.<br>
|
|
<br>
|
|
6. Neither You nor IBM is responsible for failure to
|
|
fulfill any obligations due to causes beyond its control.<br>
|
|
<br>
|
|
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.<br>
|
|
<br>
|
|
6. Governing Law, Jurisdiction, and Arbitration<br>
|
|
<br>
|
|
Governing Law<br>
|
|
<br>
|
|
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.<br>
|
|
<br>
|
|
The United Nations Convention on Contracts for the
|
|
International Sale of Goods does not apply.<br>
|
|
<br>
|
|
Jurisdiction<br>
|
|
<br>
|
|
All of our rights, duties, and obligations are subject to
|
|
the courts of the country in which You acquired the Program
|
|
license.<br>
|
|
<br>
|
|
Part 2 - Country-unique Terms<br>
|
|
<br>
|
|
AMERICAS<br>
|
|
<br>
|
|
ARGENTINA: Governing Law, Jurisdiction, and Arbitration
|
|
(Section 6): The following exception is added to this section:<br>
|
|
<br>
|
|
Any litigation arising from this Agreement will be settled
|
|
exclusively by the Ordinary Commercial Court of the city of Buenos
|
|
Aires.<br>
|
|
<br>
|
|
BRAZIL: Governing Law, Jurisdiction, and Arbitration
|
|
(Section 6): The following exception is added to this section:<br>
|
|
<br>
|
|
Any litigation arising from this Agreement will be settled
|
|
exclusively by the court of Rio de Janeiro, RJ.<br>
|
|
<br>
|
|
CANADA: General (Section 5): The following replaces item 7:<br>
|
|
<br>
|
|
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.<br>
|
|
<br>
|
|
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: <br>
|
|
<br>
|
|
the laws in the Province of Ontario<br>
|
|
<br>
|
|
PERU: Limitation of Liability (Section 4): The following is
|
|
added at the end of this section: <br>
|
|
<br>
|
|
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").<br>
|
|
<br>
|
|
UNITED STATES OF AMERICA: General (Section 5): The
|
|
following is added to this section:<br>
|
|
<br>
|
|
U.S. Government Users Restricted Rights - Use, duplication
|
|
or disclosure restricted by the GSA ADP Schedule Contract with
|
|
the IBM Corporation.<br>
|
|
<br>
|
|
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:<br>
|
|
<br>
|
|
the laws of the State of New York, United States of America<br>
|
|
<br>
|
|
ASIA PACIFIC<br>
|
|
<br>
|
|
AUSTRALIA: Limited Warranty (Section 3): The following is
|
|
added:<br>
|
|
<br>
|
|
The warranties specified in this Section are in addition to
|
|
any rights You may have under the Trade Practices Act 1974 or
|
|
other legislation and are only limited to the extent permitted by
|
|
the applicable legislation.<br>
|
|
<br>
|
|
Limitation of Liability (Section 4): The following is added:<br>
|
|
<br>
|
|
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.<br>
|
|
<br>
|
|
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:<br>
|
|
<br>
|
|
the laws of the State or Territory in which You acquired
|
|
the Program license<br>
|
|
<br>
|
|
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:<br>
|
|
<br>
|
|
the laws of the State of New York, United States of America<br>
|
|
<br>
|
|
The following is added to this section:<br>
|
|
<br>
|
|
Arbitration<br>
|
|
<br>
|
|
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.<br>
|
|
<br>
|
|
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.<br>
|
|
<br>
|
|
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.<br>
|
|
<br>
|
|
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.<br>
|
|
<br>
|
|
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:<br>
|
|
<br>
|
|
the laws of Hong Kong Special Administrative Region of China<br>
|
|
<br>
|
|
INDIA: Limitation of Liability (Section 4): The following
|
|
replaces the terms of items 1 and 2 of the first paragraph:<br>
|
|
<br>
|
|
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.<br>
|
|
<br>
|
|
General (Section 5): The following replaces the terms of
|
|
item 5:<br>
|
|
<br>
|
|
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.<br>
|
|
<br>
|
|
Governing Law, Jurisdiction, and Arbitration (Section 6):
|
|
The following is added to this section:<br>
|
|
<br>
|
|
Arbitration<br>
|
|
<br>
|
|
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.<br>
|
|
<br>
|
|
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.<br>
|
|
<br>
|
|
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.<br>
|
|
<br>
|
|
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.<br>
|
|
<br>
|
|
JAPAN: General (Section 5): The following is inserted after
|
|
item 5:<br>
|
|
<br>
|
|
Any doubts concerning this Agreement will be initially
|
|
resolved between us in good faith and in accordance with the
|
|
principle of mutual trust.<br>
|
|
<br>
|
|
MALAYSIA: Limitation of Liability (Section 4): The word
|
|
"SPECIAL" in item 2 of the third paragraph is deleted:<br>
|
|
<br>
|
|
NEW ZEALAND: Limited Warranty (Section 3): The following is
|
|
added:<br>
|
|
<br>
|
|
The warranties specified in this Section are in addition to
|
|
any rights You may have 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.<br>
|
|
<br>
|
|
Limitation of Liability (Section 4): The following is added:<br>
|
|
<br>
|
|
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.<br>
|
|
<br>
|
|
PEOPLE'S REPUBLIC OF CHINA: Charges (Section 2): The
|
|
following is added:<br>
|
|
<br>
|
|
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.<br>
|
|
<br>
|
|
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:<br>
|
|
<br>
|
|
the laws of the State of New York, United States of America
|
|
(except when local law requires otherwise)<br>
|
|
<br>
|
|
PHILIPPINES: Limitation of Liability (Section 4): The
|
|
following replaces the terms of item 2 of the third paragraph:<br>
|
|
<br>
|
|
2. special (including nominal and exemplary damages),
|
|
moral, incidental, or indirect damages or for any economic
|
|
consequential damages; or<br>
|
|
<br>
|
|
Governing Law, Jurisdiction, and Arbitration (Section 6):
|
|
The following is added to this section:<br>
|
|
<br>
|
|
Arbitration<br>
|
|
<br>
|
|
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.<br>
|
|
<br>
|
|
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.<br>
|
|
<br>
|
|
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.<br>
|
|
<br>
|
|
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.<br>
|
|
<br>
|
|
SINGAPORE: Limitation of Liability (Section 4): The words
|
|
"SPECIAL" and "ECONOMIC" are deleted from item 2 of the third
|
|
paragraph.<br>
|
|
<br>
|
|
General (Section 5): The following replaces the terms of
|
|
item 7:<br>
|
|
<br>
|
|
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.<br>
|
|
<br>
|
|
TAIWAN: Limited Warranty (Section 3): The last paragraph is
|
|
deleted.<br>
|
|
<br>
|
|
EUROPE, MIDDLE EAST, AFRICA (EMEA)<br>
|
|
<br>
|
|
Limited Warranty (Section 3): In the European Union, the
|
|
following is added:<br>
|
|
<br>
|
|
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 Limited Warranty provision
|
|
set out above at section 3 of this Agreement. The territorial
|
|
scope of the Limited Warranty is worldwide.<br>
|
|
<br>
|
|
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:<br>
|
|
<br>
|
|
Except as otherwise provided by mandatory law:<br>
|
|
<br>
|
|
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.<br>
|
|
<br>
|
|
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.<br>
|
|
<br>
|
|
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. <br>
|
|
<br>
|
|
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. <br>
|
|
<br>
|
|
Limitation of Liability (Section 4): In France and Belgium,
|
|
the following replaces the terms of this section in its
|
|
entirety: <br>
|
|
<br>
|
|
Except as otherwise provided by mandatory law:<br>
|
|
<br>
|
|
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.<br>
|
|
<br>
|
|
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.<br>
|
|
<br>
|
|
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. <br>
|
|
<br>
|
|
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<br>
|
|
<br>
|
|
Governing Law, Jurisdiction, and Arbitration (Section 6)<br>
|
|
<br>
|
|
Governing Law<br>
|
|
<br>
|
|
The phrase "the laws of the country in which You acquired
|
|
the Program license" is replaced by: <br>
|
|
1) "the laws of Austria" in Albania, Armenia, Azerbaijan,
|
|
Belarus, Bosnia-Herzegovina, Bulgaria, Croatia, Georgia, Hungary,
|
|
Kazakhstan, Kyrgyzstan, FYR Macedonia, Moldavia, Poland, Romania,
|
|
Russia, Slovakia, Slovenia, Tajikistan, Turkmenistan, Ukraine,
|
|
Uzbekistan, and FR Yugoslavia; <br>
|
|
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; <br>
|
|
3) "the laws of Finland" in Estonia, Latvia, and Lithuania; <br>
|
|
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 <br>
|
|
5) "the laws of South Africa" in South Africa, Namibia,
|
|
Lesotho and Swaziland.<br>
|
|
<br>
|
|
Jurisdiction<br>
|
|
<br>
|
|
The following exceptions are added to this section:<br>
|
|
<br>
|
|
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); <br>
|
|
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; <br>
|
|
3) in Belgium and Luxembourg, for all disputes arising out
|
|
of this Agreement or related to its interpretation or its
|
|
execution, only the law and the courts of the capital of the country
|
|
in which Your registered office and/or commercial office is
|
|
located are competent; <br>
|
|
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; <br>
|
|
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; <br>
|
|
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; <br>
|
|
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; <br>
|
|
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 <br>
|
|
9) in the United Kingdom, both of us agree to submit all
|
|
disputes relating to this Agreement to the jurisdiction of the
|
|
English courts. <br>
|
|
<br>
|
|
Arbitration <br>
|
|
<br>
|
|
In Albania, Armenia, Azerbaijan, Belarus, Bosnia-
|
|
Herzegovina, Bulgaria, Croatia, Georgia, Hungary, Kazakhstan,
|
|
Kyrgyzstan, FYR Macedonia, Moldavia, Poland, Romania, Russia, Slovakia,
|
|
Slovenia, Tajikistan, Turkmenistan, Ukraine, Uzbekistan, and FR
|
|
Yugoslavia all disputes arising out of this Agreement or related to
|
|
its violation, termination or nullity will be finally settled
|
|
under the Rules of Arbitration and Conciliation of the
|
|
International Arbitral Center of the Federal Economic Chamber in Vienna
|
|
(Vienna Rules) by three arbitrators appointed in accordance with
|
|
these rules. <br>
|
|
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.<br>
|
|
<br>
|
|
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.<br>
|
|
<br>
|
|
AUSTRIA: Limited Warranty (Section 3): The following is
|
|
inserted at the beginning of this Section:<br>
|
|
<br>
|
|
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.<br>
|
|
<br>
|
|
The warranty for a Program covers the functionality of the
|
|
Program for its normal use and the Program's conformity to its
|
|
specifications.<br>
|
|
<br>
|
|
The final two paragraphs are replaced with the following:<br>
|
|
<br>
|
|
This is our sole obligation to You, except as otherwise
|
|
required by applicable statutory law.<br>
|
|
<br>
|
|
General (Section 5): The following is added to item 4:<br>
|
|
<br>
|
|
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.<br>
|
|
<br>
|
|
GERMANY: Limited Warranty (Section 3): The same changes
|
|
apply as those in Limited Warranty (Section 3) under Austria
|
|
above.<br>
|
|
<br>
|
|
Limitation of Liability (Section 4): The following
|
|
paragraph is added to this Section:<br>
|
|
<br>
|
|
The limitations and exclusions specified in this Section
|
|
will not apply to damages caused by IBM intentionally or by
|
|
gross negligence.<br>
|
|
<br>
|
|
General (Section 5): The following replace the terms of
|
|
item 5:<br>
|
|
<br>
|
|
Any claims resulting from this Agreement are subject to a
|
|
statute of limitation of three years, except as stated in Section 3
|
|
(Limited Warranty) of this Agreement.<br>
|
|
<br>
|
|
HUNGARY: Limitation of Liability (Section 4): The following
|
|
is added at the end of this section:<br>
|
|
<br>
|
|
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.<br>
|
|
<br>
|
|
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.<br>
|
|
<br>
|
|
IRELAND: Limited Warranty (Section 3): The following is
|
|
added to this section:<br>
|
|
<br>
|
|
Except as expressly provided in these terms and conditions,
|
|
all statutory conditions, including all warranties implied, but
|
|
without prejudice to the generality of the foregoing, all
|
|
warranties implied by the Sale of Goods Act 1893 or the Sale of Goods
|
|
and Supply of Services Act 1980 are hereby excluded.<br>
|
|
<br>
|
|
Limitation of Liability (Section 4): The following replaces
|
|
the terms of this section in its entirety:<br>
|
|
<br>
|
|
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.<br>
|
|
<br>
|
|
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.<br>
|
|
<br>
|
|
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.<br>
|
|
<br>
|
|
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 percent 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.<br>
|
|
<br>
|
|
Items for Which IBM is Not Liable<br>
|
|
<br>
|
|
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:<br>
|
|
<br>
|
|
1. loss of, or damage to, data;<br>
|
|
<br>
|
|
2. special, indirect, or consequential loss; or<br>
|
|
<br>
|
|
3. loss of profits, business, revenue, goodwill, or
|
|
anticipated savings.<br>
|
|
<br>
|
|
ITALY: General (Section 5): The following is added to this
|
|
section:<br>
|
|
<br>
|
|
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. <br>
|
|
<br>
|
|
SLOVAKIA: Limitation of Liability (Section 4): The
|
|
following is added to the end of the last paragraph:<br>
|
|
<br>
|
|
The limitations apply to the extent they are not prohibited
|
|
under Sections 373-386 of the Slovak Commercial Code.<br>
|
|
<br>
|
|
General (Section 5): The terms of item 5 are replaced with
|
|
the following:<br>
|
|
<br>
|
|
THE PARTIES AGREE THAT ANY LEGAL OR OTHER ACTION RELATED TO
|
|
A BREACH OF THIS AGREEMENT MUST BE COMMENCED NO LATER AS
|
|
DEFINED BY THE LOCAL LAW (4 YEARS) FROM THE DATE ON WHICH THE CAUSE
|
|
OF ACTION AROSE.<br>
|
|
<br>
|
|
SOUTH AFRICA, NAMIBIA, LESOTHO, SWAZILAND: Limited Warranty
|
|
(Section 3): The following is added at the end of the first
|
|
paragraph:<br>
|
|
<br>
|
|
notwithstanding any advice or assistance that IBM may have
|
|
given to You prior to the selection of such Programs.<br>
|
|
<br>
|
|
SWITZERLAND: General (Section 5): The following is added to
|
|
item 4:<br>
|
|
<br>
|
|
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.<br>
|
|
<br>
|
|
UNITED KINGDOM: Limited Warranty (Section 3): The following
|
|
replaces the first sentence in the fourth paragraph of this section:<br>
|
|
<br>
|
|
THESE WARRANTIES ARE YOUR EXCLUSIVE WARRANTIES AND REPLACE
|
|
ALL OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED,
|
|
INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF
|
|
SATISFACTORY QUALITY, MERCHANTABILITY AND FITNESS FOR A PARTICULAR
|
|
PURPOSE.<br>
|
|
<br>
|
|
Limitation of Liability (Section 4): The following replaces
|
|
the terms of this section in its entirety: <br>
|
|
<br>
|
|
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.<br>
|
|
<br>
|
|
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.<br>
|
|
<br>
|
|
1. IBM will accept unlimited liability for:<br>
|
|
<br>
|
|
(a) death or personal injury caused by the negligence of
|
|
IBM; <br>
|
|
<br>
|
|
(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<br>
|
|
<br>
|
|
(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.<br>
|
|
<br>
|
|
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) Pounds Sterling 75,000, or 2) 125 percent
|
|
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.<br>
|
|
<br>
|
|
Items for Which IBM is Not Liable<br>
|
|
<br>
|
|
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:<br>
|
|
<br>
|
|
1. loss of, or damage to, data;<br>
|
|
<br>
|
|
2. special, indirect, or consequential loss; or<br>
|
|
<br>
|
|
3. loss of profits, business, revenue, goodwill, or
|
|
anticipated savings.<br>
|
|
<br>
|
|
Z125-3301-12 (07/2008)<br>
|
|
LICENSE INFORMATION<br>
|
|
<br>
|
|
The Programs listed below are licensed under the following
|
|
terms and conditions in addition to those of the International
|
|
License Agreement for Evaluation of Programs.<br>
|
|
<br>
|
|
Program Name: IBM Rational AppScan Developer Edition v7.7.0<br>
|
|
Program Number: 5724V93<br>
|
|
<br>
|
|
Program Name: IBM Rational AppScan Build Edition v7.7.0<br>
|
|
Program Number: 5724V94<br>
|
|
<br>
|
|
Evaluation Period<br>
|
|
<br>
|
|
The evaluation period begins on the date that You agree to
|
|
the terms of this Agreement and ends after 30 days.<br>
|
|
<br>
|
|
Limited Use Rights for Other IBM Programs<br>
|
|
<br>
|
|
If You acquired this Program as part of another IBM Program
|
|
("Principal Program") that lists this Program under "Other IBM
|
|
Programs", You received this Program only in support of the Principal
|
|
Program, and Your rights to use this Program will be limited by the
|
|
license of the Principal Program. Please contact Your IBM Sales
|
|
Representative if You wish to acquire a separate license to this Program
|
|
not limited by the Principal Program's license terms.<br>
|
|
<br>
|
|
Excluded Components<br>
|
|
<br>
|
|
The provisions of this paragraph do not apply to the extent
|
|
they are held to be invalid or unenforceable under the law that
|
|
governs this license. The components listed below are "Excluded
|
|
Components." Notwithstanding any of the terms in the Agreement or any
|
|
other agreement You may have with IBM:<br>
|
|
(a) the third party suppliers of such Excluded Components
|
|
("Suppliers") provide the components WITHOUT WARRANTIES OF ANY KIND and,
|
|
such Suppliers DISCLAIM ANY AND ALL EXPRESS AND IMPLIED
|
|
WARRANTIES AND CONDITIONS INCLUDING, BUT NOT LIMITED TO, THE WARRANTY
|
|
OF TITLE, NON-INFRINGEMENT OR INTERFERENCE AND THE IMPLIED
|
|
WARRANTIES AND CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A
|
|
PARTICULAR PURPOSE, WITH RESPECT TO THE EXCLUDED COMPONENTS;<br>
|
|
(b) in no event are the Suppliers liable for any direct,
|
|
indirect, incidental, special, exemplary, punitive or consequential
|
|
damages, including but not limited to lost data, lost savings, and
|
|
lost profits, with respect to the Excluded Components; and,<br>
|
|
(c) IBM and the Suppliers are not liable to You, and will
|
|
not defend, indemnify, or hold You harmless for any claims
|
|
arising from or related to the Excluded Components.<br>
|
|
<br>
|
|
Notwithstanding these exclusions, in Germany and Austria,
|
|
IBM's warranty and liability for the Excluded Components is
|
|
governed only by the respective terms applicable for Germany and
|
|
Austria in the IBM license agreements.<br>
|
|
<br>
|
|
Notices and important information that IBM is required to
|
|
provide to You with respect to the Excluded Components, including
|
|
instructions for obtaining source code for certain Excluded Components,
|
|
may be found in the NOTICES file(s) that accompanies the
|
|
Program.<br>
|
|
<br>
|
|
Your use of the Excluded Components is governed by the
|
|
terms of the Agreement and not by any terms that may be contained
|
|
in the NOTICES file(s). The terms contained in the Agreement
|
|
are offered by IBM and not by any other party. Future Program
|
|
updates or fixpacks may contain additional Excluded Components.
|
|
Such additional Excluded Components, and related notices and
|
|
information, if any, will be listed in another NOTICES file that
|
|
accompanies the Program update or fixpack.<br>
|
|
<br>
|
|
The following are Excluded Components:<br>
|
|
1. Apache Derby<br>
|
|
2. Castor 1.0.5<br>
|
|
3. Expat 1.95.8<br>
|
|
4. Firebird 2.0.3<br>
|
|
5. Firebird Net Provider 2.0.1<br>
|
|
6. Microsoft .NET Framework 2.0/3.0<br>
|
|
7. Microsoft Windows Media Technologies<br>
|
|
8. Moby Words<br>
|
|
9. Mozilla 1.7.3 (Subset)<br>
|
|
10. Open SSL 0.9.8e<br>
|
|
11. PCRE 6.4<br>
|
|
12. Python for .NET 1.0<br>
|
|
13. String Analysis<br>
|
|
14. TPTP 4.2.2<br>
|
|
15. TreeView Print Utility<br>
|
|
16. TSWizard 1f.1<br>
|
|
17. WALA 1.2<br>
|
|
<br>
|
|
Specified Operating Environment<br>
|
|
<br>
|
|
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. You agree that such
|
|
documentation and other Program content may be supplied only in the
|
|
English language.<br>
|
|
<br>
|
|
Program-unique Terms<br>
|
|
<br>
|
|
Based upon the Program license obtained, You may use the
|
|
Program as follows:<br>
|
|
<br>
|
|
MULTI-PROGRAM OFFERING<br>
|
|
<br>
|
|
Programs may be licensed as part of a 'suite' or a multi-
|
|
program offering. The separate Programs comprising the suite or
|
|
multi-program offering may not be used simultaneously by
|
|
different users, and may be used by only one user at a time. If third
|
|
party software is included with any Program, the third party
|
|
software may not be separated from, or used independently of, the
|
|
Program.<br>
|
|
<br>
|
|
Some of the components of the Program may be provided in
|
|
source-code form. Notwithstanding anything to the contrary in the
|
|
Agreement, You may modify the components of the Program provided in
|
|
source-code form; provided, however, that Support is only provided
|
|
for the unmodified, binary code versions of these components
|
|
included in Program packaging, and not for the source-code for these
|
|
components or for any modifications of such components You may create.
|
|
IBM is providing this source-code on an "AS IS" BASIS, WITHOUT
|
|
WARRANTY OF ANY KIND (EITHER EXPRESS OR IMPLIED) INCLUDING, WITHOUT
|
|
LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY AND FITNESS FOR A
|
|
PARTICULAR PURPOSE AND ANY WARRANTY OF NON-INFRINGMENT.<br>
|
|
<br>
|
|
You shall not, directly or indirectly:<br>
|
|
<br>
|
|
a. use the Program to provide hosting, outsourcing or
|
|
subscription services to third parties;<br>
|
|
<br>
|
|
b. use the Product: (i) to publish or provide to a third
|
|
party any scan results, reports or benchmark tests (excluding
|
|
independent contractors engaged by you to provide website related
|
|
services to you); (ii) otherwise process or permit to be processed
|
|
the data and/or applications of a third party; or, (iii)
|
|
provide training to third parties. However, if your POE designates
|
|
that you have a Consultant Term License, items b(i) and b(ii)
|
|
shall not apply to your use of the Program under such license.<br>
|
|
<br>
|
|
The Money-back Guarantee in the IPLA does not apply to the
|
|
Program when acquired under a Consultant Term License.<br>
|
|
<br>
|
|
The program contains CodeBase.dll and CodeBaseBackEnd.dll
|
|
libraries. You shall not use these libraries for the purposes of
|
|
computer programming.<br>
|
|
<br>
|
|
Further, you represent and warrant that you shall not use
|
|
the Product to scan any websites and/or applications other than
|
|
websites and/or applications owned by you or those that you have the
|
|
right and authority to scan.<br>
|
|
<br>
|
|
YOU ACKNOWLEDGE AND AGREE THAT THE PRODUCT MAY DISCLOSE OR
|
|
CREATE PROBLEMS IN THE OPERATION OF THE SCANNED WEB
|
|
INFRASTRUCTURE, INCLUDING BUT NOT LIMITED TO, WEBSITES, APPLICATIONS OR
|
|
SYSTEMS.<br>
|
|
<br>
|
|
If you have purchased IBM Rational AppScan Build Edition,
|
|
your license to the Program entitles you to install the Program
|
|
on a single server. If you wish to install the Program on
|
|
additional servers, you must acquire additional Proofs of Entitlement. <br>
|
|
<br>
|
|
SAMPLES<br>
|
|
The Program may contain sample source code or programs,
|
|
which illustrate programming techniques. You may copy, modify,
|
|
and distribute these samples, or their modifications, in any
|
|
form, internally or as part of your application or related
|
|
documentation. These samples have not been tested under all conditions and
|
|
are provided to you by IBM without obligation of support of any
|
|
kind. IBM PROVIDES THESE SAMPLES "AS IS" SUBJECT TO ANY STATUTORY
|
|
WARRANTIES THAT CANNOT BE EXCLUDED. IBM MAKES NO WARRANTIES OR
|
|
CONDITIONS, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO,
|
|
THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY,
|
|
FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT REGARDING
|
|
THESE SAMPLES OR TECHNICAL SUPPORT, IF ANY. You will indemnify
|
|
IBM or third parties that provide IBM products ("Third
|
|
Parties") from and against any third party claim arising out of the
|
|
use, modification or distribution of these samples with your
|
|
application. You may not use the same path name as the original
|
|
files/modules. You must not alter or delete any copyright information in
|
|
the Samples<br>
|
|
<br>
|
|
<br>
|
|
STRING ANALYSIS<br>
|
|
<br>
|
|
The IBM String Analysis Component is an add on technology
|
|
preview component to the IBM Rational AppScan Developer Edition
|
|
offering. It is an advanced static analysis technique that can
|
|
improve the accuracy of the results.<br>
|
|
<br>
|
|
No Support/Warranty<br>
|
|
<br>
|
|
The Feature Component is a technology preview component
|
|
which has not been tested under all conditions and is provided to
|
|
you by IBM without obligation of support of any kind. IBM
|
|
PROVIDES THE PROGRAM "AS IS" 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 FEATURE
|
|
COMPONENT.<br>
|
|
<br>
|
|
.<br>
|
|
<br>
|
|
D/N: L-KHUY-7H4SDS<br>
|
|
P/N: L-KHUY-7H4SDS <br>
|
|
<br>
|
|
<br>
|
|
<br>
|
|
LICENSE INFORMATION<br>
|
|
<br>
|
|
The Programs listed below are licensed under the following
|
|
terms and conditions in addition to those of the International
|
|
Program License Agreement.<br>
|
|
<br>
|
|
Program Name: IBM Rational AppScan Developer Edition v7.7.0<br>
|
|
Program Number: 5724V93<br>
|
|
Authorization for Use on Home/Portable Computer: The
|
|
Program may be stored on the primary machine and another machine,
|
|
provided that the Program is not in active use on both machines at
|
|
the same time.<br>
|
|
<br>
|
|
Program Name: IBM Rational AppScan Build Edition v7.7.0<br>
|
|
Program Number: 5724V94<br>
|
|
Authorization for Use on Home/Portable Computer: The
|
|
Program may be stored on the primary machine and another machine,
|
|
provided that the Program is not in active use on both machines at
|
|
the same time.<br>
|
|
<br>
|
|
Limited Use Rights for Other IBM Programs<br>
|
|
<br>
|
|
If You acquired this Program as part of another IBM Program
|
|
("Principal Program") that lists this Program under "Other IBM
|
|
Programs", You received this Program only in support of the Principal
|
|
Program, and Your rights to use this Program will be limited by the
|
|
license of the Principal Program. Please contact Your IBM Sales
|
|
Representative if You wish to acquire a separate license to this Program
|
|
not limited by the Principal Program's license terms.<br>
|
|
<br>
|
|
Excluded Components<br>
|
|
<br>
|
|
The provisions of this paragraph do not apply to the extent
|
|
they are held to be invalid or unenforceable under the law that
|
|
governs this license. The components listed below are "Excluded
|
|
Components." Notwithstanding any of the terms in the Agreement or any
|
|
other agreement You may have with IBM:<br>
|
|
(a) the third party suppliers of such Excluded Components
|
|
("Suppliers") provide the components WITHOUT WARRANTIES OF ANY KIND and,
|
|
such Suppliers DISCLAIM ANY AND ALL EXPRESS AND IMPLIED
|
|
WARRANTIES AND CONDITIONS INCLUDING, BUT NOT LIMITED TO, THE WARRANTY
|
|
OF TITLE, NON-INFRINGEMENT OR INTERFERENCE AND THE IMPLIED
|
|
WARRANTIES AND CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A
|
|
PARTICULAR PURPOSE, WITH RESPECT TO THE EXCLUDED COMPONENTS;<br>
|
|
(b) in no event are the Suppliers liable for any direct,
|
|
indirect, incidental, special, exemplary, punitive or consequential
|
|
damages, including but not limited to lost data, lost savings, and
|
|
lost profits, with respect to the Excluded Components; and,<br>
|
|
(c) IBM and the Suppliers are not liable to You, and will
|
|
not defend, indemnify, or hold You harmless for any claims
|
|
arising from or related to the Excluded Components.<br>
|
|
<br>
|
|
Notwithstanding these exclusions, in Germany and Austria,
|
|
IBM's warranty and liability for the Excluded Components is
|
|
governed only by the respective terms applicable for Germany and
|
|
Austria in the IBM license agreements.<br>
|
|
<br>
|
|
Notices and important information that IBM is required to
|
|
provide to You with respect to the Excluded Components, including
|
|
instructions for obtaining source code for certain Excluded Components,
|
|
may be found in the NOTICES file(s) that accompanies the
|
|
Program.<br>
|
|
<br>
|
|
Your use of the Excluded Components is governed by the
|
|
terms of the Agreement and not by any terms that may be contained
|
|
in the NOTICES file(s). The terms contained in the Agreement
|
|
are offered by IBM and not by any other party. Future Program
|
|
updates or fixpacks may contain additional Excluded Components.
|
|
Such additional Excluded Components, and related notices and
|
|
information, if any, will be listed in another NOTICES file that
|
|
accompanies the Program update or fixpack.<br>
|
|
<br>
|
|
The following are Excluded Components:<br>
|
|
1. Apache Derby<br>
|
|
2. Castor 1.0.5<br>
|
|
3. Expat 1.95.8<br>
|
|
4. Firebird 2.0.3<br>
|
|
5. Firebird Net Provider 2.0.1<br>
|
|
6. Microsoft .NET Framework 2.0/3.0<br>
|
|
7. Microsoft Windows Media Technologies<br>
|
|
8. Moby Words<br>
|
|
9. Mozilla 1.7.3 (Subset)<br>
|
|
10. Open SSL 0.9.8e<br>
|
|
11. PCRE 6.4<br>
|
|
12. Python for .NET 1.0<br>
|
|
13. String Analysis<br>
|
|
14. TPTP 4.2.2<br>
|
|
15. TreeView Print Utility<br>
|
|
16. TSWizard 1f.1<br>
|
|
17. WALA 1.2<br>
|
|
<br>
|
|
Specified Operating Environment<br>
|
|
<br>
|
|
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. You agree that such
|
|
documentation and other Program content may be supplied only in the
|
|
English language.<br>
|
|
<br>
|
|
Program-unique Terms<br>
|
|
<br>
|
|
<br>
|
|
Based upon the Program license obtained, You may use the
|
|
Program as follows:<br>
|
|
<br>
|
|
License Type - Floating User License:<br>
|
|
<br>
|
|
You may utilize the Program, including installation of the
|
|
Program on multiple clients or servers, provided that the total
|
|
number of concurrent users does not exceed the total number of
|
|
Floating User licenses obtained for the Program. You are required to
|
|
provide a report of all Program use to IBM upon IBM's reasonable
|
|
request.<br>
|
|
<br>
|
|
License Type - Authorized User License:<br>
|
|
<br>
|
|
An Authorized User License must be obtained for each
|
|
individual user accessing the Program in any manner. Each Authorized
|
|
User License is attributable to one and only one individual
|
|
user. An Authorized User License may only be reassigned for the
|
|
long-term replacement of personnel. A Program licensed under an
|
|
Authorized User License may be installed on a single computer, and
|
|
accessed by multiple users, provided that an Authorized User License
|
|
has been obtained for each individual user. The Program may be
|
|
installed and used on a server, provided that a separate Authorized
|
|
User License is obtained for each individual user accessing the
|
|
Program. You are required to provide a report of all Program use to
|
|
IBM upon IBM's reasonable request.<br>
|
|
<br>
|
|
FIXED TERM LICENSE<br>
|
|
<br>
|
|
If you acquire the Program under a Fixed Term License the
|
|
following terms apply: You may use the Program only for a limited
|
|
period of time, called "Fixed Term". The Fixed Term will be
|
|
specified in your PoE. At the end of the Fixed Term, Your
|
|
authorization to use the Program terminates and You agree to discontinue
|
|
use of the Program and destroy all copies of the Program. IBM
|
|
may agree to extend the Fixed Term for an additional payment.
|
|
If You wish to continue to use the Program beyond the Fixed
|
|
Term, contact IBM or your Rational reseller prior to the
|
|
expiration of the Fixed Term.<br>
|
|
<br>
|
|
MULTI-PROGRAM OFFERING<br>
|
|
<br>
|
|
Programs may be licensed as part of a 'suite' or a multi-
|
|
program offering. The separate Programs comprising the suite or
|
|
multi-program offering may not be used simultaneously by
|
|
different users, and may be used by only one user at a time. If third
|
|
party software is included with any Program, the third party
|
|
software may not be separated from, or used independently of, the
|
|
Program.<br>
|
|
<br>
|
|
Some of the components of the Program may be provided in
|
|
source-code form. Notwithstanding anything to the contrary in the
|
|
Agreement, You may modify the components of the Program provided in
|
|
source-code form; provided, however, that Support is only provided
|
|
for the unmodified, binary code versions of these components
|
|
included in Program packaging, and not for the source-code for these
|
|
components or for any modifications of such components You may create.
|
|
IBM is providing this source-code on an "AS IS" BASIS, WITHOUT
|
|
WARRANTY OF ANY KIND (EITHER EXPRESS OR IMPLIED) INCLUDING, WITHOUT
|
|
LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY AND FITNESS FOR A
|
|
PARTICULAR PURPOSE AND ANY WARRANTY OF NON-INFRINGMENT.<br>
|
|
<br>
|
|
You shall not, directly or indirectly:<br>
|
|
<br>
|
|
a. use the Program to provide hosting, outsourcing or
|
|
subscription services to third parties;<br>
|
|
<br>
|
|
b. use the Product: (i) to publish or provide to a third
|
|
party any scan results, reports or benchmark tests (excluding
|
|
independent contractors engaged by you to provide website related
|
|
services to you); (ii) otherwise process or permit to be processed
|
|
the data and/or applications of a third party; or, (iii)
|
|
provide training to third parties. However, if your POE designates
|
|
that you have a Consultant Term License, items b(i) and b(ii)
|
|
shall not apply to your use of the Program under such license.<br>
|
|
<br>
|
|
The Money-back Guarantee in the IPLA does not apply to the
|
|
Program when acquired under a Consultant Term License.<br>
|
|
<br>
|
|
The program contains CodeBase.dll and CodeBaseBackEnd.dll
|
|
libraries. You shall not use these libraries for the purposes of
|
|
computer programming.<br>
|
|
<br>
|
|
Further, you represent and warrant that you shall not use
|
|
the Product to scan any websites and/or applications other than
|
|
websites and/or applications owned by you or those that you have the
|
|
right and authority to scan.<br>
|
|
<br>
|
|
YOU ACKNOWLEDGE AND AGREE THAT THE PRODUCT MAY DISCLOSE OR
|
|
CREATE PROBLEMS IN THE OPERATION OF THE SCANNED WEB
|
|
INFRASTRUCTURE, INCLUDING BUT NOT LIMITED TO, WEBSITES, APPLICATIONS OR
|
|
SYSTEMS.<br>
|
|
<br>
|
|
If you have purchased IBM Rational AppScan Build Edition,
|
|
your license to the Program entitles you to install the Program
|
|
on a single server. If you wish to install the Program on
|
|
additional servers, you must acquire additional Proofs of Entitlement. <br>
|
|
<br>
|
|
SAMPLES<br>
|
|
The Program may contain sample source code or programs,
|
|
which illustrate programming techniques. You may copy, modify,
|
|
and distribute these samples, or their modifications, in any
|
|
form, internally or as part of your application or related
|
|
documentation. These samples have not been tested under all conditions and
|
|
are provided to you by IBM without obligation of support of any
|
|
kind. IBM PROVIDES THESE SAMPLES "AS IS" SUBJECT TO ANY STATUTORY
|
|
WARRANTIES THAT CANNOT BE EXCLUDED. IBM MAKES NO WARRANTIES OR
|
|
CONDITIONS, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO,
|
|
THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY,
|
|
FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT REGARDING
|
|
THESE SAMPLES OR TECHNICAL SUPPORT, IF ANY. You will indemnify
|
|
IBM or third parties that provide IBM products ("Third
|
|
Parties") from and against any third party claim arising out of the
|
|
use, modification or distribution of these samples with your
|
|
application. You may not use the same path name as the original
|
|
files/modules. You must not alter or delete any copyright information in
|
|
the Samples<br>
|
|
<br>
|
|
<br>
|
|
STRING ANALYSIS<br>
|
|
<br>
|
|
The IBM String Analysis Component is an add on technology
|
|
preview component to the IBM Rational AppScan Developer Edition
|
|
offering. It is an advanced static analysis technique that can
|
|
improve the accuracy of the results.<br>
|
|
<br>
|
|
No Support/Warranty<br>
|
|
<br>
|
|
The Feature Component is a technology preview component
|
|
which has not been tested under all conditions and is provided to
|
|
you by IBM without obligation of support of any kind. IBM
|
|
PROVIDES THE PROGRAM "AS IS" 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 FEATURE
|
|
COMPONENT.<br>
|
|
<br>
|
|
.<br>
|
|
<br>
|
|
D/N: L-KHUY-7H4SDS<br>
|
|
P/N: L-KHUY-7H4SDS <br>
|
|
</BODY>
|
|
</HTML>
|