IMPORTANT: READ CAREFULLY
Two license agreements are presented below.
1. International License Agreement for Evaluation of
Programs
2. International Program License Agreement
If Licensee is obtaining the Program for purposes of
productive use (other than evaluation, testing, trial "try or buy," or
demonstration): By clicking on the "Accept" button below, Licensee accepts
the International Program License Agreement, without
modification.
If Licensee is 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,
Licensee accepts both (i) the International License Agreement for
Evaluation of Programs (the "Evaluation License"), without
modification; and (ii) the International Program License Agreement (the
"IPLA"), without modification.
The Evaluation License will apply during the term of
Licensee's Evaluation.
The IPLA will automatically apply if Licensee elects to
retain the Program after the Evaluation (or obtain additional
copies of the Program for use after the Evaluation) by entering
into a procurement agreement (e.g., the IBM International
Passport Advantage or the IBM Passport Advantage Express
agreements).
The Evaluation License and the IPLA are not in effect
concurrently; neither modifies the other; and each is independent of the
other.
The complete text of each of these two license agreements
follow.
International License Agreement for Evaluation of Programs
Part 1 - General Terms
BY DOWNLOADING, INSTALLING, COPYING, ACCESSING, CLICKING ON
AN "ACCEPT" BUTTON, OR OTHERWISE USING THE PROGRAM, LICENSEE
AGREES TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ACCEPTING THESE
TERMS ON BEHALF OF LICENSEE, YOU REPRESENT AND WARRANT THAT YOU
HAVE FULL AUTHORITY TO BIND LICENSEE TO THESE TERMS. IF YOU DO
NOT AGREE TO THESE TERMS,
* DO NOT DOWNLOAD, INSTALL, COPY, ACCESS, CLICK ON AN
"ACCEPT" BUTTON, OR USE THE PROGRAM; AND
* PROMPTLY RETURN THE UNUSED MEDIA AND DOCUMENTATION TO THE
PARTY FROM WHOM IT WAS OBTAINED. IF THE PROGRAM WAS DOWNLOADED,
DESTROY ALL COPIES OF THE PROGRAM.
1. Definitions
"Authorized Use" - the specified level at which Licensee is
authorized to execute or run the Program. That level may be measured
by number of users, millions of service units ("MSUs"),
Processor Value Units ("PVUs"), or other level of use specified by
IBM in the "License Information" (see below).
"IBM" - International Business Machines Corporation or one
of its subsidiaries.
"License Information" ("LI") - a document that provides
information and any additional terms specific to a Program. The
Program's LI can be found in the Program's directory, by the use of a
system command, or as a booklet included with the Program.
"Program" - the following, including the original and all
whole or partial copies: 1) machine-readable instructions and
data, 2) components, files, and modules, 3) audio-visual content
(such as images, text, recordings, or pictures), and 4) related
licensed materials (such as keys and documentation).
2. Agreement Structure
This Agreement includes Part 1 - General Terms, Part 2 -
Country-unique Terms (if any) and the LI and is the complete
agreement between Licensee and IBM regarding the use of the Program.
It replaces any prior oral or written communications between
Licensee and IBM concerning Licensee's use of the Program. The terms
of Part 2 may replace or modify those of Part 1. To the extent
of any conflict, the LI prevails over both Parts.
3. License Grant
The Program is owned by IBM or an IBM supplier, and is
copyrighted and licensed, not sold.
IBM grants Licensee a limited, nonexclusive,
nontransferable license to 1) download, install, and use the Program during
the evaluation period up to the Authorized Use specified in the
LI solely for internal evaluation, testing, or demonstration
purposes on a trial basis; 2) make and install a reasonable number
of copies to support such Authorized Use, and 3) make a backup
copy, all provided that
a. Licensee has lawfully obtained the Program and complies
with the terms of this Agreement;
b. the backup copy does not execute unless the backed-up
Program cannot execute;
c. Licensee reproduces all copyright notices and other
legends of ownership on each copy, or partial copy, of the Program;
d. Licensee maintains a record of all copies of the Program
and ensures that anyone who uses the Program (accessed either
locally or remotely) 1) does so only on Licensee's behalf and 2)
complies with the terms of this Agreement;
e. Licensee does not 1) use the Program for productive
purposes or otherwise use, copy, modify, or distribute the Program
except as expressly permitted in this Agreement; 2) reverse
assemble, reverse compile, otherwise translate, or reverse engineer
the Program, except as expressly permitted by law without the
possibility of contractual waiver; 3) use any of the Program's
components, files, modules, audio-visual content, or related licensed
materials separately from that Program; 4) sublicense, rent, or lease
the Program; or 5) use the Program for commercial application
hosting; and
f. if Licensee obtains this Program as a Supporting
Program, Licensee uses this Program only to support the Principal
Program and subject to any limitations in the license to the
Principal Program, or, if Licensee obtains this Program as a
Principal Program, Licensee uses all Supporting Programs only to
support this Program, and subject to any limitations in this
Agreement. For purposes of this Item "f," a "Supporting Program" is a
Program that is part of another IBM Program ("Principal Program")
and identified as a Supporting Program in the Principal
Program's LI. (To obtain a separate license to a Supporting Program
without these restrictions, Licensee should contact the party from
whom Licensee obtained the Supporting Program.)
This license applies to each copy of the Program that
Licensee makes.
3.1 Updates, Fixes, and Patches
When Licensee obtains an update, fix, or patch to a
Program, Licensee accepts any additional or different terms that are
applicable to such update, fix, or patch that are specified in its LI.
If no additional or different terms are provided, then the
update, fix, or patch is subject solely to this Agreement. If the
Program is replaced by an update, Licensee agrees to promptly
discontinue use of the replaced Program.
3.2 Term and Termination
The evaluation period begins on the date Licensee agrees to
the terms of this Agreement and ends upon the earliest of 1)
the end of the duration or the date specified by IBM in either
the License Information or a transaction document or 2) the
date on which the Program automatically disables itself.
Licensee will destroy the Program and all copies made of it within
ten days of the end of the evaluation period. If IBM specifies
in the LI that Licensee may retain the Program, and Licensee
elects to do so, then the Program will be subject to a different
license agreement, which IBM will provide to Licensee. In addition,
a charge may apply.
IBM may terminate Licensee's license if Licensee fails to
comply with the terms of this Agreement. If the license is
terminated for any reason by either party, Licensee agrees to promptly
discontinue use of and destroy all of Licensee's copies of the Program.
Any terms of this Agreement that by their nature extend beyond
termination of this Agreement remain in effect until fulfilled, and
apply to both parties' respective successors and assignees.
THE PROGRAM MAY CONTAIN A DISABLING DEVICE THAT WILL
PREVENT IT FROM BEING USED AFTER THE EVALUATION PERIOD ENDS.
LICENSEE AGREES NOT TO TAMPER WITH THE DISABLING DEVICE OR THE
PROGRAM. LICENSEE SHOULD TAKE PRECAUTIONS TO AVOID ANY LOSS OF DATA
THAT MIGHT RESULT WHEN THE PROGRAM CAN NO LONGER BE USED.
4. Charges
There is no charge for the use of the Program for the
duration of the evaluation period.
5. No Warranties
SUBJECT TO ANY STATUTORY WARRANTIES THAT CANNOT BE
EXCLUDED, IBM MAKES NO WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED,
REGARDING THE PROGRAM OR SUPPORT, IF ANY, INCLUDING, BUT NOT LIMITED
TO, ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY,
SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, AND TITLE, AND
ANY WARRANTY OR CONDITION OF NON-INFRINGEMENT.
SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF
EXPRESS OR IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY
TO LICENSEE. IN THAT EVENT, SUCH WARRANTIES ARE LIMITED IN
DURATION TO THE MINIMUM PERIOD REQUIRED BY LAW. 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 LICENSEE. LICENSEE MAY HAVE OTHER RIGHTS
THAT VARY FROM STATE TO STATE OR JURISDICTION TO JURISDICTION.
THE DISCLAIMERS AND EXCLUSIONS IN THIS SECTION 5 ALSO APPLY
TO ANY OF IBM'S PROGRAM DEVELOPERS AND SUPPLIERS.
MANUFACTURERS, SUPPLIERS, OR PUBLISHERS OF NON-IBM PROGRAMS
MAY PROVIDE THEIR OWN WARRANTIES.
IBM DOES NOT PROVIDE SUPPORT OF ANY KIND, UNLESS IBM
SPECIFIES OTHERWISE. IN SUCH EVENT, ANY SUPPORT PROVIDED BY IBM IS
SUBJECT TO THE DISCLAIMERS AND EXCLUSIONS IN THIS SECTION 5.
6. Licensee Data and Databases
To assist Licensee in isolating the cause of a problem with
the Program, IBM may request that Licensee 1) allow IBM to
remotely access Licensee's system or 2) send Licensee information or
system data to IBM. However, IBM is not obligated to provide such
assistance unless IBM and Licensee enter a separate written agreement
under which IBM agrees to provide to Licensee that type of
support, which is beyond IBM's obligations in this Agreement. In any
event, IBM uses information about errors and problems to improve
its products and services, and assist with its provision of
related support offerings. For these purposes, IBM may use IBM
entities and subcontractors (including in one or more countries
other than the one in which Licensee is located), and Licensee
authorizes IBM to do so.
Licensee remains responsible for 1) any data and the
content of any database Licensee makes available to IBM, 2) the
selection and implementation of procedures and controls regarding
access, security, encryption, use, and transmission of data
(including any personally-identifiable data), and 3) backup and
recovery of any database and any stored data. Licensee will not send
or provide IBM access to any personally-identifiable
information, whether in data or any other form, and will be responsible
for reasonable costs and other amounts that IBM may incur
relating to any such information mistakenly provided to IBM or the
loss or disclosure of such information by IBM, including those
arising out of any third party claims.
7. Limitation of Liability
The limitations and exclusions in this Section 7
(Limitation of Liability) apply to the full extent they are not
prohibited by applicable law without the possibility of contractual
waiver.
7.1 Items for Which IBM May Be Liable
Circumstances may arise where, because of a default on
IBM's part or other liability, Licensee is entitled to recover
damages from IBM. Regardless of the basis on which Licensee is
entitled to claim damages from IBM (including fundamental breach,
negligence, misrepresentation, or other contract or tort claim), IBM's
entire liability for all claims in the aggregate arising from or
related to each Program or otherwise arising under this Agreement
will not exceed the amount of any 1) damages for bodily injury
(including death) and damage to real property and tangible personal
property and 2) other actual direct damages up to U.S. $10,000 (or
equivalent in local currency).
This limit also applies to any of IBM's Program developers
and suppliers. It is the maximum for which IBM and its Program
developers and suppliers are collectively responsible.
7.2 Items for Which IBM Is Not Liable
UNDER NO CIRCUMSTANCES IS IBM, ITS PROGRAM DEVELOPERS OR
SUPPLIERS LIABLE FOR ANY OF THE FOLLOWING, EVEN IF INFORMED OF THEIR
POSSIBILITY:
a. LOSS OF, OR DAMAGE TO, DATA;
b. SPECIAL, INCIDENTAL, EXEMPLARY, OR INDIRECT DAMAGES, OR
FOR ANY ECONOMIC CONSEQUENTIAL DAMAGES; OR
c. LOST PROFITS, BUSINESS, REVENUE, GOODWILL, OR
ANTICIPATED SAVINGS.
8. Compliance Verification
For purposes of this Section 8 (Compliance Verification),
"Evaluation Program Terms" means 1) this Agreement and applicable
amendments and transaction documents provided by IBM, and 2) IBM
software policies that may be found at the IBM Software Policy
website (www.ibm.com/softwarepolicies), including but not limited
to those policies concerning backup, sub-capacity pricing, and
migration.
The rights and obligations set forth in this Section 8
remain in effect during the period the Program is licensed to
Licensee, and for two years thereafter.
8.1 Verification Process
Licensee agrees to create, retain, and provide to IBM and
its auditors accurate written records, system tool outputs, and
other system information sufficient to provide auditable
verification that Licensee's use of all Programs is in compliance with
the Evaluation Program Terms, including, without limitation,
all of IBM's applicable licensing and pricing qualification
terms. Licensee is responsible for 1) ensuring that it does not
exceed its Authorized Use, and 2) remaining in compliance with
Evaluation Program Terms.
Upon reasonable notice, IBM may verify Licensee's
compliance with Evaluation Program Terms at all sites and for all
environments in which Licensee uses (for any purpose) Programs subject
to Evaluation Program Terms. Such verification will be
conducted in a manner that minimizes disruption to Licensee's
business, and may be conducted on Licensee's premises, during normal
business hours. IBM may use an independent auditor to assist with
such verification, provided IBM has a written confidentiality
agreement in place with such auditor.
8.2 Resolution
IBM will notify Licensee in writing if any such
verification indicates that Licensee has used any Program in excess of
its Authorized Use or is otherwise not in compliance with the
Evaluation Program Terms. Licensee agrees to promptly pay directly to
IBM the charges that IBM specifies in an invoice for 1) any
such excess use, 2) support for such excess use for the lesser
of the duration of such excess use or two years, and 3) any
additional charges and other liabilities determined as a result of
such verification.
9. Third Party Notices
The Program may include third party code that IBM, not the
third party, licenses to Licensee under this Agreement. Notices,
if any, for the third party code ("Third Party Notices") are
included for Licensee's information only. These notices can be found
in the Program's NOTICES file(s). Information on how to obtain
source code for certain third party code can be found in the Third
Party Notices. If in the Third Party Notices IBM identifies third
party code as "Modifiable Third Party Code," IBM authorizes
Licensee to 1) modify the Modifiable Third Party Code and 2) reverse
engineer the Program modules that directly interface with the
Modifiable Third Party Code provided that it is only for the purpose
of debugging Licensee's modifications to such third party
code. IBM's service and support obligations, if any, apply only
to the unmodified Program.
10. General
a. Nothing in this Agreement affects any statutory rights
of consumers that cannot be waived or limited by contract.
b. If any provision of this Agreement is held to be invalid
or unenforceable, the remaining provisions of this Agreement
remain in full force and effect.
c. Licensee is prohibited from exporting the Program.
d. Licensee authorizes International Business Machines
Corporation and its subsidiaries (and their successors and assigns,
contractors and IBM Business Partners) to store and use Licensee's
business contact information wherever they do business, in
connection with IBM products and services, or in furtherance of IBM's
business relationship with Licensee.
e. Each party will allow the other reasonable opportunity
to comply before it claims that the other has not met its
obligations under this Agreement. The parties will attempt in good
faith to resolve all disputes, disagreements, or claims between
the parties relating to this Agreement.
f. Unless otherwise required by applicable law without the
possibility of contractual waiver or limitation: 1) neither party will
bring a legal action, regardless of form, for any claim arising
out of or related to this Agreement more than two years after
the cause of action arose; and 2) upon the expiration of such
time limit, any such claim and all respective rights related to
the claim lapse.
g. Neither Licensee nor IBM is responsible for failure to
fulfill any obligations due to causes beyond its control.
h. No right or cause of action for any third party is
created by this Agreement, nor is IBM responsible for any third
party claims against Licensee, except as permitted in Subsection
7.1 (Items for Which IBM May Be Liable) above for bodily injury
(including death) or damage to real or tangible personal property for
which IBM is legally liable to that third party.
i. In entering into this Agreement, neither party is
relying on any representation not specified in this Agreement,
including but not limited to any representation concerning: 1) the
performance or function of the Program, other than as expressly
warranted in Section 5 (No Warranties) above; 2) the experiences or
recommendations of other parties; or 3) any results or savings that
Licensee may achieve.
j. IBM has signed agreements with certain organizations
(called "IBM Business Partners") to promote, market, and support
certain Programs. IBM Business Partners remain independent and
separate from IBM. IBM is not responsible for the actions or
statements of IBM Business Partners or obligations they have to
Licensee.
k. The license and intellectual property indemnification
terms of Licensee's other agreements with IBM (such as the IBM
Customer Agreement) do not apply to Program licenses granted under
this Agreement.
11. Geographic Scope and Governing Law
11.1 Governing Law
Both parties agree to the application of the laws of the
country in which Licensee obtained the Program license to govern,
interpret, and enforce all of Licensee's and IBM's respective rights,
duties, and obligations arising from, or relating in any manner to,
the subject matter of this Agreement, without regard to
conflict of law principles.
The United Nations Convention on Contracts for the
International Sale of Goods does not apply.
11.2 Jurisdiction
All rights, duties, and obligations are subject to the
courts of the country in which Licensee obtained the Program
license.
Part 2 - Country-unique Terms
For licenses granted in the countries specified below, the
following terms replace or modify the referenced terms in Part 1. All
terms in Part 1 that are not changed by these amendments remain
unchanged and in effect. This Part 2 is organized as follows:
* Multiple country amendments to Part 1, Section 11
(Governing Law and Jurisdiction);
* Americas country amendments to other Agreement terms;
* Asia Pacific country amendments to other Agreement terms;
and
* Europe, Middle East, and Africa country amendments to
other Agreement terms.
Multiple country amendments to Part 1, Section 11
(Governing Law and Jurisdiction)
11.1 Governing Law
The phrase "the laws of the country in which Licensee
obtained the Program license" in the first paragraph of 11.1
Governing Law is replaced by the following phrases in the countries
below:
AMERICAS
(1) In Canada: the laws in the Province of Ontario;
(2) in Mexico: the federal laws of the Republic of Mexico;
(3) in the United States, Anguilla, Antigua/Barbuda, Aruba,
British Virgin Islands, Cayman Islands, Dominica, Grenada, Guyana,
Saint Kitts and Nevis, Saint Lucia, Saint Maarten, and Saint
Vincent and the Grenadines: the laws of the State of New York,
United States;
(4) in Venezuela: the laws of the Bolivarian Republic of
Venezuela;
ASIA PACIFIC
(5) in Cambodia and Laos: the laws of the State of New
York, United States;
(6) in Australia: the laws of the State or Territory in
which the transaction is performed;
(7) in Hong Kong SAR and Macau SAR: the laws of Hong Kong
Special Administrative Region ("SAR");
(8) in Taiwan: the laws of Taiwan;
EUROPE, MIDDLE EAST, AND AFRICA
(9) in Albania, Armenia, Azerbaijan, Belarus, Bosnia-
Herzegovina, Bulgaria, Croatia, Former Yugoslav Republic of Macedonia,
Georgia, Hungary, Kazakhstan, Kyrgyzstan, Moldova, Montenegro,
Poland, Romania, Russia, Serbia, Slovakia, Tajikistan,
Turkmenistan, Ukraine, and Uzbekistan: the laws of Austria;
(10) in Algeria, Andorra, 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 and Futuna: the laws of
France;
(11) in Estonia, Latvia, and Lithuania: the laws of Finland;
(12) in Angola, Bahrain, Botswana, Burundi, Egypt, Eritrea,
Ethiopia, Ghana, Jordan, Kenya, Kuwait, Liberia, Malawi, Malta,
Mozambique, Nigeria, Oman, Pakistan, Qatar, Rwanda, Sao Tome and
Principe, Saudi Arabia, Sierra Leone, Somalia, Tanzania, Uganda,
United Arab Emirates, the United Kingdom, West Bank/Gaza, Yemen,
Zambia, and Zimbabwe: the laws of England; and
(13) in South Africa, Namibia, Lesotho, and Swaziland: the
laws of the Republic of South Africa.
11.2 Jurisdiction
The following paragraph pertains to jurisdiction and
replaces Subsection 11.2 (Jurisdiction) as it applies for those
countries identified below:
All rights, duties, and obligations are subject to the
courts of the country in which Licensee obtained the Program
license except that in the countries identified below all disputes
arising out of or related to this Agreement, including summary
proceedings, will be brought before and subject to the exclusive
jurisdiction of the following courts of competent jurisdiction:
AMERICAS
(1) In Argentina: the Ordinary Commercial Court of the city
of Buenos Aires;
(2) in Brazil: the court of Rio de Janeiro, RJ;
(3) in Chile: the Civil Courts of Justice of Santiago;
(4) in Ecuador: the civil judges of Quito for executory or
summary proceedings (as applicable);
(5) in Mexico: the courts located in Mexico City, Federal
District;
(6) in Peru: the judges and tribunals of the judicial
district of Lima, Cercado;
(7) in Uruguay: the courts of the city of Montevideo;
(8) in Venezuela: the courts of the metropolitan area of
the city of Caracas;
EUROPE, MIDDLE EAST, AND AFRICA
(9) in Austria: the court of law in Vienna, Austria (Inner-
City);
(10) in Algeria, Andorra, Benin, Burkina Faso, Cameroon,
Cape Verde, Central African Republic, Chad, Comoros, Congo
Republic, Djibouti, Democratic Republic of Congo, Equatorial Guinea,
France, French Guiana, French Polynesia, Gabon, Gambia, Guinea,
Guinea-Bissau, Ivory Coast, Lebanon, Madagascar, Mali, Mauritania,
Mauritius, Mayotte, Monaco, Morocco, New Caledonia, Niger, Reunion,
Senegal, Seychelles, Togo, Tunisia, Vanuatu, and Wallis and Futuna:
the Commercial Court of Paris;
(11) in Angola, Bahrain, Botswana, Burundi, Egypt, Eritrea,
Ethiopia, Ghana, Jordan, Kenya, Kuwait, Liberia, Malawi, Malta,
Mozambique, Nigeria, Oman, Pakistan, Qatar, Rwanda, Sao Tome and
Principe, Saudi Arabia, Sierra Leone, Somalia, Tanzania, Uganda,
United Arab Emirates, the United Kingdom, West Bank/Gaza, Yemen,
Zambia, and Zimbabwe: the English courts;
(12) in South Africa, Namibia, Lesotho, and Swaziland: the
High Court in Johannesburg;
(13) in Greece: the competent court of Athens;
(14) in Israel: the courts of Tel Aviv-Jaffa;
(15) in Italy: the courts of Milan;
(16) in Portugal: the courts of Lisbon;
(17) in Spain: the courts of Madrid; and
(18) in Turkey: the Istanbul Central Courts and Execution
Directorates of Istanbul, the Republic of Turkey.
11.3 Arbitration
The following paragraph is added as a new Subsection 11.3
(Arbitration) as it applies for those countries identified below. The
provisions of this Subsection 11.3 prevail over those of Subsection
11.2 (Jurisdiction) to the extent permitted by the applicable
governing law and rules of procedure:
ASIA PACIFIC
(1) In Cambodia, India, Indonesia, Laos, Philippines, and
Vietnam:
Disputes arising out of or in connection with this
Agreement will be finally settled by arbitration which will be held
in Singapore in accordance with the Arbitration Rules of
Singapore International Arbitration Center ("SIAC Rules") then in
effect. The arbitration award will be final and binding for the
parties without appeal and will be in writing and set forth the
findings of fact and the conclusions of law.
The number of arbitrators will be three, with each side to
the dispute being entitled to appoint one arbitrator. The two
arbitrators appointed by the parties will appoint a third arbitrator
who will act as chairman of the proceedings. Vacancies in the
post of chairman will be filled by the president of the SIAC.
Other vacancies will be filled by the respective nominating
party. Proceedings will continue from the stage they were at when
the vacancy occurred.
If one of the parties refuses or otherwise fails to appoint
an arbitrator within 30 days of the date the other party
appoints its, the first appointed arbitrator will be the sole
arbitrator, provided that the arbitrator was validly and properly
appointed.
All proceedings will 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.
(2) In the People's Republic of China:
In case no settlement can be reached, the disputes will be
submitted to China International Economic and Trade Arbitration
Commission for arbitration according to the then effective rules of
the said Arbitration Commission. The arbitration will take
place in Beijing and be conducted in Chinese. The arbitration
award will be final and binding on both parties. During the
course of arbitration, this agreement will continue to be
performed except for the part which the parties are disputing and
which is undergoing arbitration.
EUROPE, MIDDLE EAST, AND AFRICA
(3) In Albania, Armenia, Azerbaijan, Belarus, Bosnia-
Herzegovina, Bulgaria, Croatia, Former Yugoslav Republic of Macedonia,
Georgia, Hungary, Kazakhstan, Kyrgyzstan, Moldova, Montenegro,
Poland, Romania, Russia, Serbia, Slovakia, Tajikistan,
Turkmenistan, Ukraine, and Uzbekistan:
All disputes arising out of this Agreement or related to
its violation, termination or nullity will be finally settled
under the Rules of Arbitration and Conciliation of the
International Arbitral Center of the Federal Economic Chamber in Vienna
(Vienna Rules) by three arbitrators appointed in accordance with
these rules. The arbitration will be held in Vienna, Austria, and
the official language of the proceedings will be English. The
decision of the arbitrators will be final and binding upon both
parties. Therefore, pursuant to paragraph 598 (2) of the Austrian
Code of Civil Procedure, the parties expressly waive the
application of paragraph 595 (1) figure 7 of the Code. IBM may,
however, institute proceedings in a competent court in the country
of installation.
(4) 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.
AMERICAS COUNTRY AMENDMENTS
CANADA
7.1 Items for Which IBM May Be Liable
The following replaces Item 1 in the first paragraph of
this Subsection 7.1 (Items for Which IBM May Be Liable):
1) damages for bodily injury (including death) and physical
harm to real property and tangible personal property caused by
IBM's negligence; and
10. General
The following replaces Item 10.h:
h. No right or cause of action for any third party is
created by this Agreement or any transaction under it, nor is IBM
responsible for any third party claims against Licensee 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 to that third party.
The following is added as Item 10.l:
l. For purposes of this Item 10.l, "Personal Data" refers
to information relating to an identified or identifiable
individual made available by one of the parties, its personnel or any
other individual to the other in connection with this Agreement.
The following provisions apply in the event that one party
makes Personal Data available to the other:
(1) General
(a) Each party is responsible for complying with any
obligations applying to it under applicable Canadian data privacy laws
and regulations ("Laws").
(b) Neither party will request Personal Data beyond what is
necessary to fulfill the purpose(s) for which it is requested. The
purpose(s) for requesting Personal Data must be reasonable. Each party
will agree in advance as to the type of Personal Data that is
required to be made available.
(2) Security Safeguards
(a) Each party acknowledges that it is solely responsible
for determining and communicating to the other the appropriate
technological, physical and organizational security measures required to
protect Personal Data.
(b) Each party will ensure that Personal Data is protected
in accordance with the security safeguards communicated and
agreed to by the other.
(c) Each party will ensure that any third party to whom
Personal Data is transferred is bound by the applicable terms of
this section.
(d) Additional or different services required to comply
with the Laws will be deemed a request for new services.
(3) Use
Each party agrees that Personal Data will only be used,
accessed, managed, transferred, disclosed to third parties or
otherwise processed to fulfill the purpose(s) for which it was made
available.
(4) Access Requests
(a) Each party agrees to reasonably cooperate with the
other in connection with requests to access or amend Personal
Data.
(b) Each party agrees to reimburse the other for any
reasonable charges incurred in providing each other assistance.
(c) Each party agrees to amend Personal Data only upon
receiving instructions to do so from the other party or its personnel.
(5) Retention
Each party will promptly return to the other or destroy all
Personal Data that is no longer necessary to fulfill the purpose(s)
for which it was made available, unless otherwise instructed by
the other or its personnel or required by law.
(6) Public Bodies Who Are Subject to Public Sector Privacy
Legislation
For Licensees who are public bodies subject to public
sector privacy legislation, this Item 10.l applies only to
Personal Data made available to Licensee in connection with this
Agreement, and the obligations in this section apply only to Licensee,
except that: 1) section (2)(a) applies only to IBM; 2) sections (1)
(a) and (4)(a) apply to both parties; and 3) section (4)(b) and
the last sentence in (1)(b) do not apply.
PERU
7. Limitation of Liability
The following is added to the end of this Section 7
(Limitation of Liability):
Except as expressly required by law without the possibility
of contractual waiver, Licensee and IBM intend that the
limitation of liability in this Limitation of Liability section
applies to damages caused by all types of claims and causes of
action. If any limitation on or exclusion from liability in this
section is held by a court of competent jurisdiction to be
unenforceable with respect to a particular claim or cause of action, the
parties intend that it nonetheless apply to the maximum extent
permitted by applicable law to all other claims and causes of action.
7.1 Items for Which IBM May Be Liable
The following is added to the end of this Subsection 7.1:
In accordance with Article 1328 of the Peruvian Civil Code,
the limitations and exclusions specified in this section will
not apply to damages caused by IBM's willful misconduct
("dolo") or gross negligence ("culpa inexcusable").
UNITED STATES OF AMERICA
10. General
The following is added to Section 10 as Item 10.l:
l. U.S. Government Users Restricted Rights - Use,
duplication or disclosure is restricted by the GSA IT Schedule 70
Contract with the IBM Corporation.
The following is added to Item 10.e:
Each party waives any right to a jury trial in any
proceeding arising out of or related to this Agreement.
ASIA PACIFIC COUNTRY AMENDMENTS
AUSTRALIA
5. No Warranties
The following is added to the first paragraph of Section 5
(No Warranties):
Although IBM specifies that there are no warranties,
Licensee 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.
7.1 Items for Which IBM May Be Liable
The following is added to Subsection 7.1 (Items for Which
IBM May Be Liable):
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 obtained for personal, domestic or household use or
consumption, then none of the limitations in this paragraph apply.
HONG KONG SAR, MACAU SAR, AND TAIWAN
As applies to licenses obtained in Taiwan and the special
administrative regions, phrases throughout this Agreement containing the
word "country" (for example, "the country in which the original
Licensee was granted the license" and "the country in which Licensee
obtained the Program license") are replaced with the following:
(1) In Hong Kong SAR: "Hong Kong SAR"
(2) In Macau SAR: "Macau SAR" except in the Governing Law
clause (Section 11.1)
(3) In Taiwan: "Taiwan."
INDIA
7.1 Items for Which IBM May Be Liable
The following replaces the terms of Items 1 and 2 of the
first paragraph:
1) liability for bodily injury (including death) or damage
to real property and tangible personal property will be
limited to that caused by IBM's negligence; and 2) as to any other
actual damage arising in any situation involving nonperformance by
IBM pursuant to, or in any way related to the subject of this
Agreement, IBM's liability will be limited to the charge paid by
Licensee for the individual Program that is the subject of the claim.
10. General
The following replaces the terms of Item 10.f:
f. 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.
INDONESIA
3.2 Term and Termination
The following is added to the last paragraph:
Both parties waive the provision of article 1266 of the
Indonesian Civil Code, to the extent the article provision requires
such court decree for the termination of an agreement creating
mutual obligations.
JAPAN
10. General
The following is added as Item 10.l:
l. Any doubts concerning this Agreement will be initially
resolved between us in good faith and in accordance with the
principle of mutual trust.
MALAYSIA
7.2 Items for Which IBM Is Not Liable
The word "SPECIAL" in Item 7.2b is deleted.
NEW ZEALAND
5. No Warranties
The following is added to the first paragraph of this
Section 5 (No Warranties):
Although IBM specifies that there are no warranties,
Licensee 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 Licensee requires the goods
for the purposes of a business as defined in that Act.
7. Limitation of Liability
The following is added:
Where Programs are not obtained 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.
PHILIPPINES
7.2 Items for Which IBM Is Not Liable
The following replaces the terms of Item 7.2b:
b. special (including nominal and exemplary damages),
moral, incidental, or indirect damages or for any economic
consequential damages; or
SINGAPORE
7.2 Items for Which IBM Is Not Liable
The words "SPECIAL" and "ECONOMIC" are deleted from Item 7.2
b.
10. General
The following replaces the terms of Item 10.h:
h. Subject to the rights provided to IBM's suppliers and
Program developers as provided in Section 7 above (Limitation of
Liability), a person who is not a party to this Agreement will have no
right under the Contracts (Right of Third Parties) Act to enforce
any of its terms.
TAIWAN
7.1 Items for Which IBM May Be Liable
The following sentences are deleted:
This limit also applies to any of IBM's subcontractors and
Program developers. It is the maximum for which IBM and its
subcontractors and Program developers are collectively responsible.
EUROPE, MIDDLE EAST, AFRICA (EMEA) COUNTRY AMENDMENTS
EUROPEAN UNION MEMBER STATES
5. No Warranties
The following is added to Section 5 (No Warranties):
In the European Union ("EU"), consumers have legal rights
under applicable national legislation governing the sale of
consumer goods. Such rights are not affected by the provisions set
out in this Section 5 (No Warranties).
EU MEMBER STATES AND THE COUNTRIES IDENTIFIED BELOW
Iceland, Liechtenstein, Norway, Switzerland, Turkey, and
any other European country that has enacted local data privacy
or protection legislation similar to the EU model.
10. General
The following replaces Item 10.d:
(1) Definitions - For the purposes of this Item 10.d, the
following additional definitions apply:
(a) Business Contact Information - business-related contact
information disclosed by Licensee to IBM, including names, job titles,
business addresses, telephone numbers and email addresses of
Licensee's employees and contractors. For Austria, Italy and
Switzerland, Business Contact Information also includes information
about Licensee and its contractors as legal entities (for
example, Licensee's revenue data and other transactional information)
(b) Business Contact Personnel - Licensee employees and
contractors to whom the Business Contact Information relates.
(c) Data Protection Authority - the authority established
by the Data Protection and Electronic Communications
Legislation in the applicable country or, for non-EU countries, the
authority responsible for supervising the protection of personal data
in that country, or (for any of the foregoing) any duly
appointed successor entity thereto.
(d) Data Protection & Electronic Communications Legislation
- (i) the applicable local legislation and regulations in
force implementing the requirements of EU Directive 95/46/EC (on
the protection of individuals with regard to the processing of
personal data and on the free movement of such data) and of EU
Directive 2002/58/EC (concerning the processing of personal data and
the protection of privacy in the electronic communications
sector); or (ii) for non-EU countries, the legislation and/or
regulations passed in the applicable country relating to the protection
of personal data and the regulation of electronic
communications involving personal data, including (for any of the
foregoing) any statutory replacement or modification thereof.
(e) IBM Group - International Business Machines Corporation
of Armonk, New York, USA, its subsidiaries, and their
respective Business Partners and subcontractors.
(2) Licensee authorizes IBM:
(a) to process and use Business Contact Information within
IBM Group in support of Licensee including the provision of
support services, and for the purpose of furthering the business
relationship between Licensee and IBM Group, including, without
limitation, contacting Business Contact Personnel (by email or
otherwise) and marketing IBM Group products and services (the
"Specified Purpose"); and
(b) to disclose Business Contact Information to other
members of IBM Group in pursuit of the Specified Purpose only.
(3) IBM agrees that all Business Contact Information will
be processed in accordance with the Data Protection &
Electronic Communications Legislation and will be used only for the
Specified Purpose.
(4) To the extent required by the Data Protection &
Electronic Communications Legislation, Licensee represents that (a) it
has obtained (or will obtain) any consents from (and has issued
(or will issue) any notices to) the Business Contact Personnel
as are necessary in order to enable IBM Group to process and
use the Business Contact Information for the Specified Purpose.
(5) Licensee authorizes IBM to transfer Business Contact
Information outside the European Economic Area, provided that the
transfer is made on contractual terms approved by the Data
Protection Authority or the transfer is otherwise permitted under the
Data Protection & Electronic Communications Legislation.
AUSTRIA
7. Limitation of Liability
The following is added:
The following limitations and exclusions of IBM's liability
do not apply for damages caused by gross negligence or willful
misconduct.
7.1 Items for Which IBM May Be Liable
The following replaces the first sentence in the first
paragraph:
Circumstances may arise where, because of a default by IBM
in the performance of its obligations under this Agreement or
other liability, Licensee is entitled to recover damages from IBM.
In the second sentence of the first paragraph, delete
entirely the parenthetical phrase:
"(including fundamental breach, negligence,
misrepresentation, or other contract or tort claim)".
7.2 Items for Which IBM Is Not Liable
The following replaces Item 7.2b:
b. indirect damages or consequential damages; or
BELGIUM, FRANCE, ITALY, AND LUXEMBOURG
7. Limitation of Liability
The following replaces the terms of Section 7 (Limitation
of Liability) in its entirety:
Except as otherwise provided by mandatory law:
7.1 Items for Which IBM May Be Liable
IBM's entire liability for all claims in the aggregate 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 of EUR 500,000 (five hundred
thousand euro).
The above limitation will not apply to damages for bodily
injuries (including death) and damages to real property and tangible
personal property for which IBM is legally liable.
7.2 Items for Which IBM Is Not Liable
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, EXEMPLARY OR
INDIRECT DAMAGES, OR FOR ANY ECONOMIC CONSEQUENTIAL DAMAGES; AND /
OR 3) LOST PROFITS, BUSINESS, REVENUE, GOODWILL, OR
ANTICIPATED SAVINGS, EVEN IF THEY ARISE AS AN IMMEDIATE CONSEQUENCE OF
THE EVENT THAT GENERATED THE DAMAGES.
7.3 Suppliers and Program Developers
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.
GERMANY
7. Limitation of Liability
The following replaces this Section 7 (Limitation of
Liability) in its entirety:
a. IBM will be liable without limit for 1) loss or damage
caused by a breach of an express guarantee; 2) damages or losses
resulting in bodily injury (including death); and 3) damages caused
intentionally or by gross negligence.
b. In the event of loss, damage and frustrated expenditures
caused by slight negligence or in breach of essential contractual
obligations, IBM will be liable, regardless of the basis on which
Licensee is entitled to claim damages from IBM (including
fundamental breach, negligence, misrepresentation, or other contract or
tort claim), per claim only up to 500,000 euro for the Program
that caused the loss or damage. A number of defaults which
together result in, or contribute to, substantially the same loss or
damage will be treated as one default.
c. In the event of loss, damage and frustrated expenditures
caused by slight negligence, IBM will not be liable for indirect
or consequential damages, even if IBM was informed about the
possibility of such loss or damage.
d. In case of delay on IBM's part: 1) IBM will pay to
Licensee an amount not exceeding the loss or damage caused by IBM's
delay and 2) IBM will be liable only in respect of the resulting
damages that Licensee suffers, subject to the provisions of Items a
and b above.
10. General
The following replaces the provisions of 10.f:
f. Any claims resulting from this Agreement are subject to
a limitation period of three years, except as stated in
Section 5 (No Warranties) of this Agreement.
The following replaces the provisions of 10.h:
h. No right or cause of action for any third party is
created by this Agreement, nor is IBM responsible for any third
party claims against Licensee, except (to the extent permitted in
Section 7 (Limitation of Liability)) for: i) bodily injury
(including death); or ii) damage to real or tangible personal property
for which (in either case) IBM is legally liable to that third
party.
IRELAND
5. No Warranties
The following paragraph is added to the second paragraph of
this Section 5 (No Warranties):
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 or 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).
IRELAND AND UNITED KINGDOM
2. Agreement Structure
The following sentence is added:
Nothing in this paragraph shall have the effect of
excluding or limiting liability for fraud.
7.1 Items for Which IBM May Be Liable
The following replaces the first paragraph of the
Subsection:
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 Licensee, whether
in contract or in tort. A number of Defaults which together
result in, or contribute to, substantially the same loss or damage
will be treated as one Default.
Circumstances may arise where, because of a Default by IBM
in the performance of its obligations under this Agreement or
other liability, Licensee is entitled to recover damages from
IBM. Regardless of the basis on which Licensee is entitled to
claim damages from IBM and except as expressly required by law
without the possibility of contractual waiver, IBM's entire
liability for any one Default will not exceed the amount of any
direct damages, to the extent actually suffered by Licensee as an
immediate and direct consequence of the Default, up to 500,000 euro
(or the equivalent in local currency) for the Program that is
the subject of the claim. Notwithstanding the foregoing, the
amount of any damages for bodily injury (including death) and
damage to real property and tangible personal property for which
IBM is legally liable is not subject to such limitation.
7.2 Items for Which IBM Is Not Liable
The following replaces Items 7.2b and 7.2c:
b. special, incidental, exemplary, or indirect damages or
consequential damages; or
c. wasted management time or lost profits, business,
revenue, goodwill, or anticipated savings.
Z125-5543-04 (12/2009)
International Program License Agreement
Part 1 - General Terms
BY DOWNLOADING, INSTALLING, COPYING, ACCESSING, CLICKING ON
AN "ACCEPT" BUTTON, OR OTHERWISE USING THE PROGRAM, LICENSEE
AGREES TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ACCEPTING THESE
TERMS ON BEHALF OF LICENSEE, YOU REPRESENT AND WARRANT THAT YOU
HAVE FULL AUTHORITY TO BIND LICENSEE TO THESE TERMS. IF YOU DO
NOT AGREE TO THESE TERMS,
- DO NOT DOWNLOAD, INSTALL, COPY, ACCESS, CLICK ON AN
"ACCEPT" BUTTON, OR USE THE PROGRAM; AND
- PROMPTLY RETURN THE UNUSED MEDIA, DOCUMENTATION, AND
PROOF OF ENTITLEMENT TO THE PARTY FROM WHOM IT WAS OBTAINED FOR A
REFUND OF THE AMOUNT PAID. IF THE PROGRAM WAS DOWNLOADED, DESTROY
ALL COPIES OF THE PROGRAM.
1. Definitions
"Authorized Use" - the specified level at which Licensee is
authorized to execute or run the Program. That level may be measured
by number of users, millions of service units ("MSUs"),
Processor Value Units ("PVUs"), or other level of use specified by
IBM.
"IBM" - International Business Machines Corporation or one
of its subsidiaries.
"License Information" ("LI") - a document that provides
information and any additional terms specific to a Program. The
Program's LI is available at www.ibm.com/software/sla. The LI can
also be found in the Program's directory, by the use of a system
command, or as a booklet included with the Program.
"Program" - the following, including the original and all
whole or partial copies: 1) machine-readable instructions and
data, 2) components, files, and modules, 3) audio-visual content
(such as images, text, recordings, or pictures), and 4) related
licensed materials (such as keys and documentation).
"Proof of Entitlement" ("PoE") - evidence of Licensee's
Authorized Use. The PoE is also evidence of Licensee's eligibility for
warranty, future update prices, if any, and potential special or
promotional opportunities. If IBM does not provide Licensee with a PoE,
then IBM may accept as the PoE the original paid sales receipt
or other sales record from the party (either IBM or its
reseller) from whom Licensee obtained the Program, provided that it
specifies the Program name and Authorized Use obtained.
"Warranty Period" - one year, starting on the date the
original Licensee is granted the license.
2. Agreement Structure
This Agreement includes Part 1 - General Terms, Part 2 -
Country-unique Terms (if any), the LI, and the PoE and is the
complete agreement between Licensee and IBM regarding the use of the
Program. It replaces any prior oral or written communications
between Licensee and IBM concerning Licensee's use of the Program.
The terms of Part 2 may replace or modify those of Part 1. To
the extent of any conflict, the LI prevails over both Parts.
3. License Grant
The Program is owned by IBM or an IBM supplier, and is
copyrighted and licensed, not sold.
IBM grants Licensee a nonexclusive license to 1) use the
Program up to the Authorized Use specified in the PoE, 2) make and
install copies to support such Authorized Use, and 3) make a backup
copy, all provided that
a. Licensee has lawfully obtained the Program and complies
with the terms of this Agreement;
b. the backup copy does not execute unless the backed-up
Program cannot execute;
c. Licensee reproduces all copyright notices and other
legends of ownership on each copy, or partial copy, of the Program;
d. Licensee ensures that anyone who uses the Program
(accessed either locally or remotely) 1) does so only on Licensee's
behalf and 2) complies with the terms of this Agreement;
e. Licensee does not 1) use, copy, modify, or distribute
the Program except as expressly permitted in this Agreement; 2)
reverse assemble, reverse compile, otherwise translate, or reverse
engineer the Program, except as expressly permitted by law without
the possibility of contractual waiver; 3) use any of the
Program's components, files, modules, audio-visual content, or
related licensed materials separately from that Program; or 4)
sublicense, rent, or lease the Program; and
f. if Licensee obtains this Program as a Supporting
Program, Licensee uses this Program only to support the Principal
Program and subject to any limitations in the license to the
Principal Program, or, if Licensee obtains this Program as a
Principal Program, Licensee uses all Supporting Programs only to
support this Program, and subject to any limitations in this
Agreement. For purposes of this Item "f," a "Supporting Program" is a
Program that is part of another IBM Program ("Principal Program")
and identified as a Supporting Program in the Principal
Program's LI. (To obtain a separate license to a Supporting Program
without these restrictions, Licensee should contact the party from
whom Licensee obtained the Supporting Program.)
This license applies to each copy of the Program that
Licensee makes.
3.1 Trade-ups, Updates, Fixes, and Patches
3.1.1 Trade-ups
If the Program is replaced by a trade-up Program, the
replaced Program's license is promptly terminated.
3.1.2 Updates, Fixes, and Patches
When Licensee receives an update, fix, or patch to a
Program, Licensee accepts any additional or different terms that are
applicable to such update, fix, or patch that are specified in its LI.
If no additional or different terms are provided, then the
update, fix, or patch is subject solely to this Agreement. If the
Program is replaced by an update, Licensee agrees to promptly
discontinue use of the replaced Program.
3.2 Fixed Term Licenses
If IBM licenses the Program for a fixed term, Licensee's
license is terminated at the end of the fixed term, unless Licensee
and IBM agree to renew it.
3.3 Term and Termination
This Agreement is effective until terminated.
IBM may terminate Licensee's license if Licensee fails to
comply with the terms of this Agreement.
If the license is terminated for any reason by either
party, Licensee agrees to promptly discontinue use of and destroy
all of Licensee's copies of the Program. Any terms of this
Agreement that by their nature extend beyond termination of this
Agreement remain in effect until fulfilled, and apply to both
parties' respective successors and assignees.
4. Charges
Charges are based on Authorized Use obtained, which is
specified in the PoE. IBM does not give credits or refunds for
charges already due or paid, except as specified elsewhere in this
Agreement.
If Licensee wishes to increase its Authorized Use, Licensee
must notify IBM or an authorized IBM reseller in advance and pay
any applicable charges.
5. Taxes
If any authority imposes on the Program a duty, tax, levy,
or fee, excluding those based on IBM's net income, then
Licensee agrees to pay that amount, as specified in an invoice, or
supply exemption documentation. Licensee is responsible for any
personal property taxes for the Program from the date that Licensee
obtains it. If any authority imposes a customs duty, tax, levy, or
fee for the import into or the export, transfer, access, or use
of the Program outside the country in which the original
Licensee was granted the license, then Licensee agrees that it is
responsible for, and will pay, any amount imposed.
6. Money-back Guarantee
If Licensee is dissatisfied with the Program for any reason
and is the original Licensee, Licensee may terminate the
license and obtain a refund of the amount Licensee paid for the
Program, provided that Licensee returns the Program and PoE to the
party from whom Licensee obtained it within 30 days of the date
the PoE was issued to Licensee. If the license is for a fixed
term that is subject to renewal, then Licensee may obtain a
refund only if the Program and its PoE are returned within the
first 30 days of the initial term. If Licensee downloaded the
Program, Licensee should contact the party from whom Licensee
obtained it for instructions on how to obtain the refund.
7. Program Transfer
Licensee may transfer the Program and all of Licensee's
license rights and obligations to another party only if that party
agrees to the terms of this Agreement. If the license is
terminated for any reason by either party, Licensee is prohibited from
transferring the Program to another party. Licensee may not transfer a
portion of 1) the Program or 2) the Program's Authorized Use. When
Licensee transfers the Program, Licensee must also transfer a hard
copy of this Agreement, including the LI and PoE. Immediately
after the transfer, Licensee's license terminates.
8. Warranty and Exclusions
8.1 Limited Warranty
IBM warrants that the Program, when used in its specified
operating environment, will conform to its specifications. The
Program's specifications, and specified operating environment
information, can be found in documentation accompanying the Program
(such as a read-me file) or other information published by IBM
(such as an announcement letter). Licensee agrees that such
documentation and other Program content may be supplied only in the
English language, unless otherwise required by local law without
the possibility of contractual waiver or limitation.
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.
Licensee is responsible for the results obtained from the use of the
Program.
During the Warranty Period, IBM provides Licensee 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 Handbook for
further information at www.ibm.com/software/support.
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, Licensee may return the Program and
its PoE to the party (either IBM or its reseller) from whom
Licensee obtained it and receive a refund of the amount Licensee
paid. After returning the Program, Licensee's license terminates.
If Licensee downloaded the Program, Licensee should contact
the party from whom Licensee obtained it for instructions on
how to obtain the refund.
8.2 Exclusions
THESE WARRANTIES ARE LICENSEE'S EXCLUSIVE WARRANTIES AND
REPLACE ALL OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED,
INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OR CONDITIONS OF
MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE,
TITLE, AND ANY WARRANTY OR CONDITION OF NON-INFRINGEMENT. SOME
STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF EXPRESS OR
IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO
LICENSEE. 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 LICENSEE.
THESE WARRANTIES GIVE LICENSEE SPECIFIC LEGAL RIGHTS.
LICENSEE MAY ALSO HAVE OTHER RIGHTS THAT VARY FROM STATE TO STATE OR
JURISDICTION TO JURISDICTION.
THE WARRANTIES IN THIS SECTION 8 (WARRANTY AND EXCLUSIONS)
ARE PROVIDED SOLELY BY IBM. THE DISCLAIMERS IN THIS SUBSECTION
8.2 (EXCLUSIONS), HOWEVER, ALSO APPLY TO IBM'S SUPPLIERS OF
THIRD PARTY CODE. THOSE SUPPLIERS PROVIDE SUCH CODE WITHOUT
WARRANTIES OR CONDITION OF ANY KIND. THIS PARAGRAPH DOES NOT NULLIFY
IBM'S WARRANTY OBLIGATIONS UNDER THIS AGREEMENT.
9. Licensee Data and Databases
To assist Licensee in isolating the cause of a problem with
the Program, IBM may request that Licensee 1) allow IBM to
remotely access Licensee's system or 2) send Licensee information or
system data to IBM. However, IBM is not obligated to provide such
assistance unless IBM and Licensee enter a separate written agreement
under which IBM agrees to provide to Licensee that type of
technical support, which is beyond IBM's warranty obligations in this
Agreement. In any event, IBM uses information about errors and
problems to improve its products and services, and assist with its
provision of related support offerings. For these purposes, IBM may
use IBM entities and subcontractors (including in one or more
countries other than the one in which Licensee is located), and
Licensee authorizes IBM to do so.
Licensee remains responsible for 1) any data and the
content of any database Licensee makes available to IBM, 2) the
selection and implementation of procedures and controls regarding
access, security, encryption, use, and transmission of data
(including any personally-identifiable data), and 3) backup and
recovery of any database and any stored data. Licensee will not send
or provide IBM access to any personally-identifiable
information, whether in data or any other form, and will be responsible
for reasonable costs and other amounts that IBM may incur
relating to any such information mistakenly provided to IBM or the
loss or disclosure of such information by IBM, including those
arising out of any third party claims.
10. Limitation of Liability
The limitations and exclusions in this Section 10
(Limitation of Liability) apply to the full extent they are not
prohibited by applicable law without the possibility of contractual
waiver.
10.1 Items for Which IBM May Be Liable
Circumstances may arise where, because of a default on
IBM's part or other liability, Licensee is entitled to recover
damages from IBM. Regardless of the basis on which Licensee is
entitled to claim damages from IBM (including fundamental breach,
negligence, misrepresentation, or other contract or tort claim), IBM's
entire liability for all claims in the aggregate arising from or
related to each Program or otherwise arising under this Agreement
will not exceed the amount of any 1) damages for bodily injury
(including death) and damage to real property and tangible personal
property and 2) other actual direct damages up to the charges (if
the Program is subject to fixed term charges, up to twelve
months' charges) Licensee paid for the Program that is the subject
of the claim.
This limit also applies to any of IBM's Program developers
and suppliers. It is the maximum for which IBM and its Program
developers and suppliers are collectively responsible.
10.2 Items for Which IBM Is Not Liable
UNDER NO CIRCUMSTANCES IS IBM, ITS PROGRAM DEVELOPERS OR
SUPPLIERS LIABLE FOR ANY OF THE FOLLOWING, EVEN IF INFORMED OF THEIR
POSSIBILITY:
a. LOSS OF, OR DAMAGE TO, DATA;
b. SPECIAL, INCIDENTAL, EXEMPLARY, OR INDIRECT DAMAGES, OR
FOR ANY ECONOMIC CONSEQUENTIAL DAMAGES; OR
c. LOST PROFITS, BUSINESS, REVENUE, GOODWILL, OR
ANTICIPATED SAVINGS.
11. Compliance Verification
For purposes of this Section 11 (Compliance Verification),
"IPLA Program Terms" means 1) this Agreement and applicable
amendments and transaction documents provided by IBM, and 2) IBM
software policies that may be found at the IBM Software Policy
website (www.ibm.com/softwarepolicies), including but not limited
to those policies concerning backup, sub-capacity pricing, and
migration.
The rights and obligations set forth in this Section 11
remain in effect during the period the Program is licensed to
Licensee, and for two years thereafter.
11.1 Verification Process
Licensee agrees to create, retain, and provide to IBM and
its auditors accurate written records, system tool outputs, and
other system information sufficient to provide auditable
verification that Licensee's use of all Programs is in compliance with
the IPLA Program Terms, including, without limitation, all of
IBM's applicable licensing and pricing qualification terms.
Licensee is responsible for 1) ensuring that it does not exceed its
Authorized Use, and 2) remaining in compliance with IPLA Program Terms.
Upon reasonable notice, IBM may verify Licensee's
compliance with IPLA Program Terms at all sites and for all
environments in which Licensee uses (for any purpose) Programs subject
to IPLA Program Terms. Such verification will be conducted in
a manner that minimizes disruption to Licensee's business,
and may be conducted on Licensee's premises, during normal
business hours. IBM may use an independent auditor to assist with
such verification, provided IBM has a written confidentiality
agreement in place with such auditor.
11.2 Resolution
IBM will notify Licensee in writing if any such
verification indicates that Licensee has used any Program in excess of
its Authorized Use or is otherwise not in compliance with the
IPLA Program Terms. Licensee agrees to promptly pay directly to
IBM the charges that IBM specifies in an invoice for 1) any
such excess use, 2) support for such excess use for the lesser
of the duration of such excess use or two years, and 3) any
additional charges and other liabilities determined as a result of
such verification.
12. Third Party Notices
The Program may include third party code that IBM, not the
third party, licenses to Licensee under this Agreement. Notices,
if any, for the third party code ("Third Party Notices") are
included for Licensee's information only. These notices can be found
in the Program's NOTICES file(s). Information on how to obtain
source code for certain third party code can be found in the Third
Party Notices. If in the Third Party Notices IBM identifies third
party code as "Modifiable Third Party Code," IBM authorizes
Licensee to 1) modify the Modifiable Third Party Code and 2) reverse
engineer the Program modules that directly interface with the
Modifiable Third Party Code provided that it is only for the purpose
of debugging Licensee's modifications to such third party
code. IBM's service and support obligations, if any, apply only
to the unmodified Program.
13. General
a. Nothing in this Agreement affects any statutory rights
of consumers that cannot be waived or limited by contract.
b. For Programs IBM provides to Licensee in tangible form,
IBM fulfills its shipping and delivery obligations upon the
delivery of such Programs to the IBM-designated carrier, unless
otherwise agreed to in writing by Licensee and IBM.
c. If any provision of this Agreement is held to be invalid
or unenforceable, the remaining provisions of this Agreement
remain in full force and effect.
d. Licensee agrees to comply with all applicable export and
import laws and regulations, including U.S. embargo and sanctions
regulations and prohibitions on export for certain end uses or to
certain users.
e. Licensee authorizes International Business Machines
Corporation and its subsidiaries (and their successors and assigns,
contractors and IBM Business Partners) to store and use Licensee's
business contact information wherever they do business, in
connection with IBM products and services, or in furtherance of IBM's
business relationship with Licensee.
f. Each party will allow the other reasonable opportunity
to comply before it claims that the other has not met its
obligations under this Agreement. The parties will attempt in good
faith to resolve all disputes, disagreements, or claims between
the parties relating to this Agreement.
g. Unless otherwise required by applicable law without the
possibility of contractual waiver or limitation: 1) neither party will
bring a legal action, regardless of form, for any claim arising
out of or related to this Agreement more than two years after
the cause of action arose; and 2) upon the expiration of such
time limit, any such claim and all respective rights related to
the claim lapse.
h. Neither Licensee nor IBM is responsible for failure to
fulfill any obligations due to causes beyond its control.
i. No right or cause of action for any third party is
created by this Agreement, nor is IBM responsible for any third
party claims against Licensee, except as permitted in Subsection
10.1 (Items for Which IBM May Be Liable) above for bodily injury
(including death) or damage to real or tangible personal property for
which IBM is legally liable to that third party.
j. In entering into this Agreement, neither party is
relying on any representation not specified in this Agreement,
including but not limited to any representation concerning: 1) the
performance or function of the Program, other than as expressly
warranted in Section 8 (Warranty and Exclusions) above; 2) the
experiences or recommendations of other parties; or 3) any results or
savings that Licensee may achieve.
k. IBM has signed agreements with certain organizations
(called "IBM Business Partners") to promote, market, and support
certain Programs. IBM Business Partners remain independent and
separate from IBM. IBM is not responsible for the actions or
statements of IBM Business Partners or obligations they have to
Licensee.
l. The license and intellectual property indemnification
terms of Licensee's other agreements with IBM (such as the IBM
Customer Agreement) do not apply to Program licenses granted under
this Agreement.
14. Geographic Scope and Governing Law
14.1 Governing Law
Both parties agree to the application of the laws of the
country in which Licensee obtained the Program license to govern,
interpret, and enforce all of Licensee's and IBM's respective rights,
duties, and obligations arising from, or relating in any manner to,
the subject matter of this Agreement, without regard to
conflict of law principles.
The United Nations Convention on Contracts for the
International Sale of Goods does not apply.
14.2 Jurisdiction
All rights, duties, and obligations are subject to the
courts of the country in which Licensee obtained the Program
license.
Part 2 - Country-unique Terms
For licenses granted in the countries specified below, the
following terms replace or modify the referenced terms in Part 1. All
terms in Part 1 that are not changed by these amendments remain
unchanged and in effect. This Part 2 is organized as follows:
- Multiple country amendments to Part 1, Section 14
(Governing Law and Jurisdiction);
- Americas country amendments to other Agreement terms;
- Asia Pacific country amendments to other Agreement terms;
and
- Europe, Middle East, and Africa country amendments to
other Agreement terms.
Multiple country amendments to Part 1, Section 14
(Governing Law and Jurisdiction)
14.1 Governing Law
The phrase "the laws of the country in which Licensee
obtained the Program license" in the first paragraph of 14.1
Governing Law is replaced by the following phrases in the countries
below:
AMERICAS
(1) in Canada: the laws in the Province of Ontario;
(2) in Mexico: the federal laws of the Republic of Mexico;
(3) in the United States, Anguilla, Antigua/Barbuda, Aruba,
British Virgin Islands, Cayman Islands, Dominica, Grenada, Guyana,
Saint Kitts and Nevis, Saint Lucia, Saint Maarten, and Saint
Vincent and the Grenadines: the laws of the State of New York,
United States;
(4) in Venezuela: the laws of the Bolivarian Republic of
Venezuela;
ASIA PACIFIC
(5) in Cambodia and Laos: the laws of the State of New
York, United States;
(6) in Australia: the laws of the State or Territory in
which the transaction is performed;
(7) in Hong Kong SAR and Macau SAR: the laws of Hong Kong
Special Administrative Region ("SAR");
(8) in Taiwan: the laws of Taiwan
EUROPE, MIDDLE EAST, AND AFRICA
(9) in Albania, Armenia, Azerbaijan, Belarus, Bosnia-
Herzegovina, Bulgaria, Croatia, Former Yugoslav Republic of Macedonia,
Georgia, Hungary, Kazakhstan, Kyrgyzstan, Moldova, Montenegro,
Poland, Romania, Russia, Serbia, Slovakia, Tajikistan,
Turkmenistan, Ukraine, and Uzbekistan: the laws of Austria;
(10) in Algeria, Andorra, 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 and Futuna: the laws of
France;
(11) in Estonia, Latvia, and Lithuania: the laws of Finland;
(12) in Angola, Bahrain, Botswana, Burundi, Egypt, Eritrea,
Ethiopia, Ghana, Jordan, Kenya, Kuwait, Liberia, Malawi, Malta,
Mozambique, Nigeria, Oman, Pakistan, Qatar, Rwanda, Sao Tome and
Principe, Saudi Arabia, Sierra Leone, Somalia, Tanzania, Uganda,
United Arab Emirates, the United Kingdom, West Bank/Gaza, Yemen,
Zambia, and Zimbabwe: the laws of England; and
(13) in South Africa, Namibia, Lesotho, and Swaziland: the
laws of the Republic of South Africa.
14.2 Jurisdiction
The following paragraph pertains to jurisdiction and
replaces Subsection 14.2 (Jurisdiction) as it applies for those
countries identified in bold below:
All rights, duties, and obligations are subject to the
courts of the country in which Licensee obtained the Program
license except that in the countries identified below all disputes
arising out of or related to this Agreement, including summary
proceedings, will be brought before and subject to the exclusive
jurisdiction of the following courts of competent jurisdiction:
AMERICAS
(1) in Argentina: the Ordinary Commercial Court of the city
of Buenos Aires,
(2) in Brazil: the court of Rio de Janeiro, RJ;
(3) in Chile: the Civil Courts of Justice of Santiago;
(4) in Ecuador: the civil judges of Quito for executory or
summary proceedings (as applicable);
(5) in Mexico: the courts located in Mexico City, Federal
District;
(6) in Peru: the judges and tribunals of the judicial
district of Lima, Cercado;
(7) in Uruguay: the courts of the city of Montevideo;
(8) in Venezuela: the courts of the metropolitan area of
the city of Caracas;
EUROPE, MIDDLE EAST, AND AFRICA
(9) in Austria: the court of law in Vienna, Austria (Inner-
City);
(10) in Algeria, Andorra, Benin, Burkina Faso, Cameroon,
Cape Verde, Central African Republic, Chad, Comoros, Congo
Republic, Djibouti, Democratic Republic of Congo, Equatorial Guinea,
France, French Guiana, French Polynesia, Gabon, Gambia, Guinea,
Guinea-Bissau, Ivory Coast, Lebanon, Madagascar, Mali, Mauritania,
Mauritius, Mayotte, Monaco, Morocco, New Caledonia, Niger, Reunion,
Senegal, Seychelles, Togo, Tunisia, Vanuatu, and Wallis and Futuna:
the Commercial Court of Paris;
(11) in Angola, Bahrain, Botswana, Burundi, Egypt, Eritrea,
Ethiopia, Ghana, Jordan, Kenya, Kuwait, Liberia, Malawi, Malta,
Mozambique, Nigeria, Oman, Pakistan, Qatar, Rwanda, Sao Tome and
Principe, Saudi Arabia, Sierra Leone, Somalia, Tanzania, Uganda,
United Arab Emirates, the United Kingdom, West Bank/Gaza, Yemen,
Zambia, and Zimbabwe: the English courts;
(12) in South Africa, Namibia, Lesotho, and Swaziland: the
High Court in Johannesburg;
(13) in Greece: the competent court of Athens;
(14) in Israel: the courts of Tel Aviv-Jaffa;
(15) in Italy: the courts of Milan;
(16) in Portugal: the courts of Lisbon;
(17) in Spain: the courts of Madrid; and
(18) in Turkey: the Istanbul Central Courts and Execution
Directorates of Istanbul, the Republic of Turkey.
14.3 Arbitration
The following paragraph is added as a new Subsection 14.3
(Arbitration) as it applies for those countries identified in bold below.
The provisions of this Subsection 14.3 prevail over those of
Subsection 14.2 (Jurisdiction) to the extent permitted by the
applicable governing law and rules of procedure:
ASIA PACIFIC
(1) In Cambodia, India, Indonesia, Laos, Philippines, and
Vietnam:
Disputes arising out of or in connection with this
Agreement will be finally settled by arbitration which will be held
in Singapore in accordance with the Arbitration Rules of
Singapore International Arbitration Center ("SIAC Rules") then in
effect. The arbitration award will be final and binding for the
parties without appeal and will be in writing and set forth the
findings of fact and the conclusions of law.
The number of arbitrators will be three, with each side to
the dispute being entitled to appoint one arbitrator. The two
arbitrators appointed by the parties will appoint a third arbitrator
who will act as chairman of the proceedings. Vacancies in the
post of chairman will be filled by the president of the SIAC.
Other vacancies will be filled by the respective nominating
party. Proceedings will continue from the stage they were at when
the vacancy occurred.
If one of the parties refuses or otherwise fails to appoint
an arbitrator within 30 days of the date the other party
appoints its, the first appointed arbitrator will be the sole
arbitrator, provided that the arbitrator was validly and properly
appointed. All proceedings will 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.
(2) In the People's Republic of China:
In case no settlement can be reached, the disputes will be
submitted to China International Economic and Trade Arbitration
Commission for arbitration according to the then effective rules of
the said Arbitration Commission. The arbitration will take
place in Beijing and be conducted in Chinese. The arbitration
award will be final and binding on both parties. During the
course of arbitration, this agreement will continue to be
performed except for the part which the parties are disputing and
which is undergoing arbitration.
EUROPE, MIDDLE EAST, AND AFRICA
(3) In Albania, Armenia, Azerbaijan, Belarus, Bosnia-
Herzegovina, Bulgaria, Croatia, Former Yugoslav Republic of Macedonia,
Georgia, Hungary, Kazakhstan, Kyrgyzstan, Moldova, Montenegro,
Poland, Romania, Russia, Serbia, Slovakia, Tajikistan,
Turkmenistan, Ukraine, and Uzbekistan:
All disputes arising out of this Agreement or related to
its violation, termination or nullity will be finally settled
under the Rules of Arbitration and Conciliation of the
International Arbitral Center of the Federal Economic Chamber in Vienna
(Vienna Rules) by three arbitrators appointed in accordance with
these rules. The arbitration will be held in Vienna, Austria, and
the official language of the proceedings will be English. The
decision of the arbitrators will be final and binding upon both
parties. Therefore, pursuant to paragraph 598 (2) of the Austrian
Code of Civil Procedure, the parties expressly waive the
application of paragraph 595 (1) figure 7 of the Code. IBM may,
however, institute proceedings in a competent court in the country
of installation.
(4) 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.
AMERICAS COUNTRY AMENDMENTS
CANADA
10.1 Items for Which IBM May be Liable
The following replaces Item 1 in the first paragraph of
this Subsection 10.1 (Items for Which IBM May be Liable):
1) damages for bodily injury (including death) and physical
harm to real property and tangible personal property caused by
IBM's negligence; and
13. General
The following replaces Item 13.d:
d. Licensee agrees to comply with all applicable export and
import laws and regulations, including those of that apply to
goods of United States origin and that prohibit or limit export
for certain uses or to certain users.
The following replaces Item 13.i:
i. No right or cause of action for any third party is
created by this Agreement or any transaction under it, nor is IBM
responsible for any third party claims against Licensee 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 to that third party.
The following is added as Item 13.m:
m. For purposes of this Item 13.m, "Personal Data" refers
to information relating to an identified or identifiable
individual made available by one of the parties, its personnel or any
other individual to the other in connection with this Agreement.
The following provisions apply in the event that one party
makes Personal Data available to the other:
(1) General
(a) Each party is responsible for complying with any
obligations applying to it under applicable Canadian data privacy laws
and regulations ("Laws").
(b) Neither party will request Personal Data beyond what is
necessary to fulfill the purpose(s) for which it is requested. The
purpose(s) for requesting Personal Data must be reasonable. Each party
will agree in advance as to the type of Personal Data that is
required to be made available.
(2) Security Safeguards
(a) Each party acknowledges that it is solely responsible
for determining and communicating to the other the appropriate
technological, physical and organizational security measures required to
protect Personal Data.
(b) Each party will ensure that Personal Data is protected
in accordance with the security safeguards communicated and
agreed to by the other.
(c) Each party will ensure that any third party to whom
Personal Data is transferred is bound by the applicable terms of
this section.
(d) Additional or different services required to comply
with the Laws will be deemed a request for new services.
(3) Use
Each party agrees that Personal Data will only be used,
accessed, managed, transferred, disclosed to third parties or
otherwise processed to fulfill the purpose(s) for which it was made
available.
(4) Access Requests
(a) Each party agrees to reasonably cooperate with the
other in connection with requests to access or amend Personal
Data.
(b) Each party agrees to reimburse the other for any
reasonable charges incurred in providing each other assistance.
(c) Each party agrees to amend Personal Data only upon
receiving instructions to do so from the other party or its personnel.
(5) Retention
Each party will promptly return to the other or destroy all
Personal Data that is no longer necessary to fulfill the purpose(s)
for which it was made available, unless otherwise instructed by
the other or its personnel or required by law.
(6) Public Bodies Who Are Subject to Public Sector Privacy
Legislation
For Customers who are public bodies subject to public
sector privacy legislation, this Item 13.m applies only to
Personal Data made available to Customer in connection with this
Agreement, and the obligations in this section apply only to Customer,
except that: 1) section (2)(a) applies only to IBM; 2) sections (1)
(a) and (4)(a) apply to both parties; and 3) section (4)(b) and
the last sentence in (1)(b) do not apply.
PERU
10. Limitation of Liability
The following is added to the end of this Section 10
(Limitation of Liability):
Except as expressly required by law without the possibility
of contractual waiver, Licensee and IBM intend that the
limitation of liability in this Limitation of Liability section
applies to damages caused by all types of claims and causes of
action. If any limitation on or exclusion from liability in this
section is held by a court of competent jurisdiction to be
unenforceable with respect to a particular claim or cause of action, the
parties intend that it nonetheless apply to the maximum extent
permitted by applicable law to all other claims and causes of action.
10.1 Items for Which IBM May be Liable
The following is added at the end of this Subsection 10.1:
In accordance with Article 1328 of the Peruvian Civil Code,
the limitations and exclusions specified in this section will
not apply to damages caused by IBM's willful misconduct
("dolo") or gross negligence ("culpa inexcusable").
UNITED STATES OF AMERICA:
5. Taxes
The following is added at the end of this Section 5 (Taxes)
For Programs delivered electronically in the United States
for which Licensee claims a state sales and use tax exemption,
Licensee agrees not to receive any tangible personal property (e.g.,
media and publications) associated with the electronic program.
Licensee agrees to be responsible for any sales and use tax
liabilities that may arise as a result of Licensee's subsequent
redistribution of Programs after delivery by IBM.
13. General
The following is added to Section 13 as Item 13.m:
U.S. Government Users Restricted Rights - Use, duplication
or disclosure is restricted by the GSA IT Schedule 70 Contract
with the IBM Corporation.
The following is added to Item 13.f:
Each party waives any right to a jury trial in any
proceeding arising out of or related to this Agreement.
ASIA PACIFIC COUNTRY AMENDMENTS
AUSTRALIA:
5. Taxes
The following sentences replace the first two sentences of
Section 5 (Taxes):
If any government or authority imposes a duty, tax (other
than income tax), levy, or fee, on this Agreement or on the
Program itself, that is not otherwise provided for in the amount
payable, Licensee agrees to pay it when IBM invoices Licensee. If
the rate of GST changes, IBM may adjust the charge or other
amount payable to take into account that change from the date the
change becomes effective.
8.1 Limited Warranty
The following is added Subsection 8.1 (Limited Warranty):
The warranties specified this Section are in addition to
any rights Licensee may have under the Trade Practices Act 1974
or other legislation and are only limited to the extent
permitted by the applicable legislation.
10.1 Items for Which IBM May be Liable
The following is added to Subsection 10.1 (Items for Which
IBM Maybe Liable):
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 obtained for personal, domestic or household use or
consumption, then none of the limitations in this paragraph apply.
HONG KONG SAR, MACAU SAR, AND TAIWAN
As applies to licenses obtained in Taiwan and the special
administrative regions, phrases throughout this Agreement containing the
word "country" (for example, "the country in which the original
Licensee was granted the license" and "the country in which Licensee
obtained the Program license") are replaced with the following:
(1) In Hong Kong SAR: "Hong Kong SAR"
(2) In Macau SAR: "Macau SAR" except in the Governing Law
clause (Section 14.1)
(3) In Taiwan: "Taiwan."
INDIA
10.1 Items for Which IBM May be Liable
The following replaces the terms of Items 1 and 2 of the
first paragraph:
1) liability for bodily injury (including death) or damage
to real property and tangible personal property will be
limited to that caused by IBM's negligence; and 2) as to any other
actual damage arising in any situation involving nonperformance by
IBM pursuant to, or in any way related to the subject of this
Agreement, IBM's liability will be limited to the charge paid by
Licensee for the individual Program that is the subject of the claim.
13. General
The following replaces the terms of Item 13.g:
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.
INDONESIA
3.3 Term and Termination
The following is added to the last paragraph:
Both parties waive the provision of article 1266 of the
Indonesian Civil Code, to the extent the article provision requires
such court decree for the termination of an agreement creating
mutual obligations.
JAPAN
13. General
The following is inserted after Item 13.f:
Any doubts concerning this Agreement will be initially
resolved between us in good faith and in accordance with the
principle of mutual trust.
MALAYSIA
10.2 Items for Which IBM Is not Liable
The word "SPECIAL" in Item 10.2b is deleted.
NEW ZEALAND
8.1 Limited Warranty
The following is added:
The warranties specified in this Section are in addition to
any rights Licensee 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 Licensee requires the goods
for the purposes of a business as defined in that Act.
10. Limitation of Liability
The following is added:
Where Programs are not obtained for the purposes of a
business as defined in the Consumer Guarantees Act 1993, the
limitations in this Section are subject to the limitations in that Act.
PEOPLE'S REPUBLIC OF CHINA
4. Charges
The following is added:
All banking charges incurred in the People's Republic of
China will be borne by Licensee and those incurred outside the
People's Republic of China will be borne by IBM.
PHILIPPINES
10.2 Items for Which IBM Is not Liable
The following replaces the terms of Item 10.2b:
b. special (including nominal and exemplary damages),
moral, incidental, or indirect damages or for any economic
consequential damages; or
SINGAPORE
10.2 Items for Which IBM Is not Liable
The words "SPECIAL" and "ECONOMIC" are deleted from Item
10.2b.
13. General
The following replaces the terms of Item 13.i:
Subject to the rights provided to IBM's suppliers and
Program developers as provided in Section 10 above (Limitation of
Liability), a person who is not a party to this Agreement will have no
right under the Contracts (Right of Third Parties) Act to enforce
any of its terms.
TAIWAN
8.1 Limited Warranty
The last paragraph is deleted.
10.1 Items for Which IBM May Be Liable
The following sentences are deleted
This limit also applies to any of IBM's subcontractors and
Program developers. It is the maximum for which IBM and its
subcontractors and Program developers are collectively responsible.
EUROPE, MIDDLE EAST, AFRICA (EMEA) COUNTRY AMENDMENTS
EUROPEAN UNION MEMBER STATES
8. Warranty and Exclusions
The following is added to Section 8 (Warranty and
Exclusion):
In the European Union ("EU"), consumers have legal rights
under applicable national legislation governing the sale of
consumer goods. Such rights are not affected by the provisions set
out in this Section 8 Warranty and Exclusions. The territorial
scope of the Limited Warranty is worldwide.
EU MEMBER STATES AND THE COUNTRIES IDENTIFIED BELOW
Iceland, Liechtenstein, Norway, Switzerland, Turkey, and
any other European country that has enacted local data privacy
or protection legislation similar to the EU model.
13. General
The following replaces Item 13.e:
(1) Definitions - For the purposes of this Item 13.e, the
following additional definitions apply:
(a) Business Contact Information - business-related contact
information disclosed by Licensee to IBM, including names, job titles,
business addresses, telephone numbers and email addresses of
Licensee's employees and contractors. For Austria, Italy and
Switzerland, Business Contact Information also includes information
about Customer and its contractors as legal entities (for
example, Customer's revenue data and other transactional information)
(b) Business Contact Personnel - Licensee employees and
contractors to whom the Business Contact Information relates.
(c) Data Protection Authority - the authority established
by the Data Protection and Electronic Communications
Legislation in the applicable country or, for non-EU countries, the
authority responsible for supervising the protection of personal data
in that country, or (for any of the foregoing) any duly
appointed successor entity thereto.
(d) Data Protection & Electronic Communications Legislation
- (i) the applicable local legislation and regulations in
force implementing the requirements of EU Directive 95/46/EC (on
the protection of individuals with regard to the processing of
personal data and on the free movement of such data) and of EU
Directive 2002/58/EC (concerning the processing of personal data and
the protection of privacy in the electronic communications
sector); or (ii) for non-EU countries, the legislation and/or
regulations passed in the applicable country relating to the protection
of personal data and the regulation of electronic
communications involving personal data, including (for any of the
foregoing) any statutory replacement or modification thereof.
(e) IBM Group - International Business Machines Corporation
of Armonk, New York, USA, its subsidiaries, and their
respective Business Partners and subcontractors.
(2) Licensee authorises IBM:
(a) to process and use Business Contact Information within
IBM Group in support of Licensee including the provision of
support services, and for the purpose of furthering the business
relationship between Licensee and IBM Group, including, without
limitation, contacting Business Contact Personnel (by email or
otherwise) and marketing IBM Group products and services (the
"Specified Purpose"); and
(b) to disclose Business Contact Information to other
members of IBM Group in pursuit of the Specified Purpose only.
(3) IBM agrees that all Business Contact Information will
be processed in accordance with the Data Protection &
Electronic Communications Legislation and will be used only for the
Specified Purpose.
(4) To the extent required by the Data Protection &
Electronic Communications Legislation, Licensee represents that (a) it
has obtained (or will obtain) any consents from (and has issued
(or will issue) any notices to) the Business Contact Personnel
as are necessary in order to enable IBM Group to process and
use the Business Contact Information for the Specified Purpose.
(5) Licensee authorises IBM to transfer Business Contact
Information outside the European Economic Area, provided that the
transfer is made on contractual terms approved by the Data
Protection Authority or the transfer is otherwise permitted under the
Data Protection & Electronic Communications Legislation.
AUSTRIA
8.2 Exclusions
The following is deleted from the first paragraph:
MERCHANTABILITY, SATISFACTORY QUALITY
10. Limitation of Liability
The following is added:
The following limitations and exclusions of IBM's liability
do not apply for damages caused by gross negligence or willful
misconduct.
10.1 Items for Which IBM May Be Liable
The following replaces the first sentence in the first
paragraph:
Circumstances may arise where, because of a default by IBM
in the performance of its obligations under this Agreement or
other liability, Licensee is entitled to recover damages from IBM.
In the second sentence of the first paragraph, delete
entirely the parenthetical phrase:
"(including fundamental breach, negligence,
misrepresentation, or other contract or tort claim)".
10.2 Items for Which IBM Is Not Liable
The following replaces Item 10.2b:
b. indirect damages or consequential damages; or
BELGIUM, FRANCE, ITALY, AND LUXEMBOURG
10. Limitation of Liability
The following replaces the terms of Section 10 (Limitation
of Liability) in its entirety:
Except as otherwise provided by mandatory law:
10.1 Items for Which IBM May Be Liable
IBM's entire liability for all claims in the aggregate 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 (if
the Program is subject to fixed term charges, up to twelve
months' charges) Licensee paid for the Program that has caused the
damages.
The above limitation will not apply to damages for bodily
injuries (including death) and damages to real property and tangible
personal property for which IBM is legally liable.
10.2 Items for Which IBM Is Not Liable
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, EXEMPLARY OR
INDIRECT DAMAGES, OR FOR ANY ECONOMIC CONSEQUENTIAL DAMAGES; AND /
OR 3) LOST PROFITS, BUSINESS, REVENUE, GOODWILL, OR
ANTICIPATED SAVINGS, EVEN IF THEY ARISE AS AN IMMEDIATE CONSEQUENCE OF
THE EVENT THAT GENERATED THE DAMAGES.
10.3 Suppliers and Program Developers
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.
GERMANY
8.1 Limited Warranty
The following is inserted at the beginning of Section 8.1:
The Warranty Period is twelve months from the date of
delivery of the Program to the original Licensee.
8.2 Exclusions
Section 8.2 is deleted in its entirety and replaced with
the following:
Section 8.1 defines IBM's entire warranty obligations to
Licensee except as otherwise required by applicable statutory law.
10. Limitation of Liability
The following replaces the Limitation of Liability section
in its entirety:
a. IBM will be liable without limit for 1) loss or damage
caused by a breach of an express guarantee; 2) damages or losses
resulting in bodily injury (including death); and 3) damages caused
intentionally or by gross negligence.
b. In the event of loss, damage and frustrated expenditures
caused by slight negligence or in breach of essential contractual
obligations, IBM will be liable, regardless of the basis on which
Licensee is entitled to claim damages from IBM (including
fundamental breach, negligence, misrepresentation, or other contract or
tort claim), per claim only up to the greater of 500,000 euro or
the charges (if the Program is subject to fixed term charges,
up to 12 months' charges) Licensee paid for the Program that
caused the loss or damage. A number of defaults which together
result in, or contribute to, substantially the same loss or damage
will be treated as one default.
c. In the event of loss, damage and frustrated expenditures
caused by slight negligence, IBM will not be liable for indirect
or consequential damages, even if IBM was informed about the
possibility of such loss or damage.
d. In case of delay on IBM's part: 1) IBM will pay to
Licensee an amount not exceeding the loss or damage caused by IBM's
delay and 2) IBM will be liable only in respect of the resulting
damages that Licensee suffers, subject to the provisions of Items a
and b above.
13. General
The following replaces the provisions of 13.g:
Any claims resulting from this Agreement are subject to a
limitation period of three years, except as stated in Section 8.1
(Limited Warranty) of this Agreement.
The following replaces the provisions of 13.i:
No right or cause of action for any third party is created
by this Agreement, nor is IBM responsible for any third party
claims against Licensee, except (to the extent permitted in
Section 10 (Limitation of Liability)) for: i) bodily injury
(including death); or ii) damage to real or tangible personal property
for which (in either case) IBM is legally liable to that third
party.
IRELAND
8.2 Exclusions
The following paragraph is added:
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 or 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).
IRELAND AND UNITED KINGDOM
2. Agreement Structure
The following sentence is added:
Nothing in this paragraph shall have the effect of
excluding or limiting liability for fraud.
10.1 Items for Which IBM May Be Liable
The following replaces the first paragraph of the
Subsection:
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 Licensee, whether
in contract or in tort. A number of Defaults which together
result in, or contribute to, substantially the same loss or damage
will be treated as one Default.
Circumstances may arise where, because of a Default by IBM
in the performance of its obligations under this Agreement or
other liability, Licensee is entitled to recover damages from
IBM. Regardless of the basis on which Licensee is entitled to
claim damages from IBM and except as expressly required by law
without the possibility of contractual waiver, IBM's entire
liability for any one Default will not exceed the amount of any
direct damages, to the extent actually suffered by Licensee as an
immediate and direct consequence of the default, up to the greater of
(1) 500,000 euro (or the equivalent in local currency) or (2)
125% of the charges (if the Program is subject to fixed term
charges, up to 12 months' charges) for the Program that is the
subject of the claim. Notwithstanding the foregoing, the amount of
any damages for bodily injury (including death) and damage to
real property and tangible personal property for which IBM is
legally liable is not subject to such limitation.
10.2 Items for Which IBM is Not Liable
The following replaces Items 10.2b and 10.2c:
b. special, incidental, exemplary, or indirect damages or
consequential damages; or
c. wasted management time or lost profits, business,
revenue, goodwill, or anticipated savings.
Z125-3301-13 (05/2009)
LICENSE INFORMATION
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.
Program Name: IBM Rational Method Composer 7.5.1
Program Number: 5724-G52
Evaluation Period
The evaluation period begins on the date that Licensee
agrees to the terms of this Agreement and ends after 30 days.
Supporting Programs
The Program is licensed as a multi-product package and
includes the Supporting Programs identified below. Licensee is
authorized to install and use such Supporting Programs only to support
Licensee's use of the Principal Program under this Agreement and
within the limits of the Proofs of Entitlement for the Program
(unless broader rights are provided elsewhere in this License
Information document). The phrase "to support Licensee's use" would
include only those uses that are necessary or otherwise directly
related to a licensed use of the Principal Program or another
Supporting Program. The Supporting Programs may not be used for any
other purpose. Licensee is not authorized to transfer or remarket
the Supporting Programs separate from the Principal Program.
The terms of this Agreement may replace or modify the license
terms for the Supporting Programs. In the event of conflict,
these terms supersede the terms of the license agreement which
accompanies the Supporting Programs. When Licensee's right to use the
Program expires or terminates, Licensee must discontinue use,
destroy or promptly return all copies of the Supporting Programs to
the party from whom Licensee acquired the Program. If Licensee
downloaded the Supporting Programs, Licensee should contact the party
from whom Licensee acquired the Program. If Licensee wishes to
license the Supporting Programs for any use beyond the limits set
forth above, please contact an IBM Sales Representative or the
party from whom Licensee acquired the Program to obtain the
appropriate license.
The following are Supporting Programs licensed with the
Program:
IBM Installation Manager and Packaging Utility for the
Rational Software Development Platform 1.4.1
Source Components
The Program may include some components in source code form
("Source Components"). Licensee may copy and modify Source
Components for internal use only provided such use is within the
limits of the license rights under this Agreement, provided
however that Licensee may not alter or delete any copyright
information or notices contained in the Source Components. IBM provides
the Source Components without obligation of support and "AS
IS", WITH NO WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED,
INCLUDING THE WARRANTY OF TITLE, NON-INFRINGEMENT OR NON-INTERFERENCE
AND THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY
AND FITNESS FOR A PARTICULAR PURPOSE.
Program Keys
For Programs which require keys to operate, Licensee may
not have more keys to the Program in Licensee's Enterprise than
Licensee has entitlements.
Program-unique Terms
MULTI-PROGRAM OFFERING
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.
The Program may allow Licensee to obtain additional Program-
related modules (herein called "Delivered Content") via one or more
asset manager functionalities contained in the Program. All
Delivered Content is subject to the terms of this license and the
following additional terms: Each individual user utilizing such
Delivered Content must have a valid License for the Program. The
Delivered Content will be provided to Licensee by IBM without
obligation of support of any kind. IBM PROVIDES DELIVERED CONTENT "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 DELIVERED CONTENT OR TECHNICAL
SUPPORT, IF ANY.
D/N: L-KHUY-88FPMW
P/N: L-KHUY-88FPMW
LICENSE INFORMATION
The Programs listed below are licensed under the following
terms and conditions in addition to those of the International
Program License Agreement.
Program Name: IBM Rational Method Composer 7.5.1
Program Number: 5724-G52
Supporting Programs
The Program is licensed as a multi-product package and
includes the Supporting Programs identified below. Licensee is
authorized to install and use such Supporting Programs only to support
Licensee's use of the Principal Program under this Agreement and
within the limits of the Proofs of Entitlement for the Program
(unless broader rights are provided elsewhere in this License
Information document). The phrase "to support Licensee's use" would
include only those uses that are necessary or otherwise directly
related to a licensed use of the Principal Program or another
Supporting Program. The Supporting Programs may not be used for any
other purpose. Licensee is not authorized to transfer or remarket
the Supporting Programs separate from the Principal Program.
The terms of this Agreement may replace or modify the license
terms for the Supporting Programs. In the event of conflict,
these terms supersede the terms of the license agreement which
accompanies the Supporting Programs. When Licensee's right to use the
Program expires or terminates, Licensee must discontinue use,
destroy or promptly return all copies of the Supporting Programs to
the party from whom Licensee acquired the Program. If Licensee
downloaded the Supporting Programs, Licensee should contact the party
from whom Licensee acquired the Program. If Licensee wishes to
license the Supporting Programs for any use beyond the limits set
forth above, please contact an IBM Sales Representative or the
party from whom Licensee acquired the Program to obtain the
appropriate license.
The following are Supporting Programs licensed with the
Program:
IBM Installation Manager and Packaging Utility for the
Rational Software Development Platform 1.4.1
Source Components
The Program may include some components in source code form
("Source Components"). Licensee may copy and modify Source
Components for internal use only provided such use is within the
limits of the license rights under this Agreement, provided
however that Licensee may not alter or delete any copyright
information or notices contained in the Source Components. IBM provides
the Source Components without obligation of support and "AS
IS", WITH NO WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED,
INCLUDING THE WARRANTY OF TITLE, NON-INFRINGEMENT OR NON-INTERFERENCE
AND THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY
AND FITNESS FOR A PARTICULAR PURPOSE.
Program Keys
For Programs which require keys to operate, Licensee may
not have more keys to the Program in Licensee's Enterprise than
Licensee has entitlements.
Authorized User
Authorized User is a unit of measure by which the Program
can be licensed. An Authorized User is a unique person who is
given access to the Program. The Program may be installed on any
number of computers or servers and each Authorized User may have
simultaneous access to any number of instances of the Program at one
time. Licensee must obtain separate, dedicated entitlements for
each Authorized User accessing the Program in any manner
directly or indirectly (for example: via a multiplexing program,
device, or application server) through any means. An entitlement
for an Authorized User is unique to that Authorized User and
may not be shared, nor may it be reassigned other than for the
permanent transfer of the Authorized User entitlement to another
person.
Authorized User Single Install
Authorized User Single Install is a unit of measure by
which the Program can be licensed. An Authorized User is a unique
person who is given access to the Program. An Install is an
installed copy of the Program on a physical or virtual disk made
available to be executed on a computer. The Program may be installed
on any number of computers or servers, but if the Authorized
User has accessed or has access to more than one Install of the
Program, the Authorized User requires a separate entitlement for
each such Install. Licensee must obtain separate, dedicated
entitlements for each Authorized User accessing the Program on each
Install in any manner directly or indirectly (for example: via a
multiplexing program, device, or application server) through any means.
An entitlement for an Authorized User is unique to that
Authorized User and may not be shared, nor may it be reassigned other
than for the permanent transfer of the Authorized User
entitlement to another person.
Any computing device that requests the execution of or
receives for execution a set of commands, procedures, or
applications from the Program or that is otherwise managed by the
Program is considered a separate User of the Program and requires
an entitlement as if that device were a person.
Floating User Single Install
Floating User Single Install is a unit of measure by which
the Program can be licensed. A Floating User is a person who is
accessing the Program at any particular point in time. An Install is
an installed copy of the Program on a physical or virtual disk
made available to be executed on a computer. The Program may be
installed on any number of computers or servers, but if the Floating
User simultaneously accesses more than one Install of the
Program, the Floating User requires a separate entitlement for each
such Install. Licensee must obtain separate entitlements for
each Floating User simultaneously accessing the Program on each
Install in any manner directly or indirectly (for example: via a
multiplexing program, device, or application server) through any means.
Any computing device that requests the execution of or
receives for execution a set of commands, procedures, or
applications from the Program or that is otherwise managed by the
Program is considered a separate User of the Program and requires
an entitlement as if that device were a person.
Program-unique Terms
MULTI-PROGRAM OFFERING
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.
RATIONAL METHOD COMPOSER - ADDITIONAL RESTRICTIONS
The Program includes
i) a process authoring tool; and
ii) associated libraries of content ("RMC Content"),
including but not limited to the following:
a. data files, such as but not limited to, HTML files and
document files;
b. process and practice guidance, such as but not limited
to the Rational Unified Process and associated plugins; and
c. embedded process assets, such as but not limited to,
utilities and scripts, artifact templates, and example artifacts.
A user with a valid license for IBM Rational Method
Composer is authorized to use and/or access the process authoring
tool and RMC Content, and may create derivative works of the RMC
Content within the limits of the terms of this license. A user with
a valid license for IBM Rational Method Composer Content
Reader is authorized only to utilize and/or access RMC Content, or
derivative works thereof.
The Program may allow Licensee to obtain additional Program-
related modules (herein called "Delivered Content") via one or more
asset manager functionalities contained in the Program. All
Delivered Content is subject to the terms of this license and the
following additional terms: Each individual user utilizing such
Delivered Content must have a valid License for the Program. The
Delivered Content will be provided to Licensee by IBM without
obligation of support of any kind. IBM PROVIDES DELIVERED CONTENT "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 DELIVERED CONTENT OR TECHNICAL
SUPPORT, IF ANY.
D/N: L-KHUY-88FPMW
P/N: L-KHUY-88FPMW