IMPORTANT: READ CAREFULLY
Two license agreements are presented below.
1. IBM International License Agreement for Evaluation of
Programs
2. IBM 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 IBM 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 IBM International License Agreement
for Evaluation of Programs (the "Evaluation License"), without
modification; and (ii) the IBM 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, OR USING
THE PROGRAM YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU
ARE ACCEPTING THESE TERMS ON BEHALF OF ANOTHER PERSON OR A
COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU
HAVE FULL AUTHORITY TO BIND THAT PERSON, COMPANY, OR LEGAL
ENTITY TO THESE TERMS. IF YOU DO NOT AGREE TO THESE TERMS,
- DO NOT DOWNLOAD, INSTALL, COPY, ACCESS, OR USE THE
PROGRAM; AND
- PROMPTLY RETURN THE PROGRAM TO THE PARTY FROM WHOM YOU
ACQUIRED IT. IF YOU DOWNLOADED THE PROGRAM, CONTACT THE PARTY FROM
WHOM YOU ACQUIRED IT.
"IBM" is International Business Machines Corporation or one
of its subsidiaries.
"License Information" ("LI") is a document that provides
information specific to a Program. The Program's LI is available in a
file in the Program's directory, by the use of a system command,
or as a booklet which accompanies the Program. The LI may also
be found at http://www.ibm.com/software/sla/ .
"Program" is the following, including the original and all
whole or partial copies: 1) machine-readable instructions and
data, 2) components, 3) audio-visual content (such as images,
text, recordings, or pictures), 4) related licensed materials,
and 5) license use documents or keys, and documentation.
"You" and "Your" refer either to an individual person or to
a single legal entity.
This Agreement includes Part 1 - General Terms, Part 2 -
Country-unique Terms (if any), and License Information and is the
complete agreement between You and IBM regarding the use of the
Program. It replaces any prior oral or written communications
between You and IBM concerning Your use of the Program. The terms
of Part 2 and License Information may replace or modify those
of Part 1.
1. Entitlement
License
The Program is owned by IBM or an IBM supplier, and is
copyrighted and licensed, not sold.
IBM grants You a nonexclusive license to use the Program
when You lawfully acquire it.
You may 1) use the Program only for internal evaluation,
testing, or demonstration purposes, on a trial or "try-and-buy"
basis; and 2) make and install a reasonable number of copies,
including a backup copy, of the Program to support such use. The
terms of this license apply to each copy You make. You will
reproduce all copyright notices and all other legends of ownership on
each copy, or partial copy, of the Program.
THE PROGRAM MAY CONTAIN A DISABLING DEVICE THAT WILL
PREVENT IT FROM BEING USED AFTER THE EVALUATION PERIOD ENDS. YOU
WILL NOT TAMPER WITH THIS DISABLING DEVICE OR THE PROGRAM. YOU
SHOULD TAKE PRECAUTIONS TO AVOID ANY LOSS OF DATA THAT MIGHT
RESULT WHEN THE PROGRAM CAN NO LONGER BE USED.
You will 1) maintain a record of all copies of the Program
and 2) ensure that anyone who uses the Program (accessed either
locally or remotely) does so only for Your authorized use and
complies with the terms of this Agreement.
You may not 1) use, copy, modify or distribute the Program
except as provided in this Agreement; 2) reverse assemble, reverse
compile, or otherwise translate the Program except as specifically
permitted by law without the possibility of contractual waiver; or 3)
sublicense, rent, or lease the Program.
The evaluation period begins when You agree to the terms of
this Agreement and ends 1) as of the duration or date specified
in the License Information, or 2) when the Program
automatically disables itself. There is no charge for the use of the
Program for the duration of the evaluation period. Unless IBM
specifies in the License Information that You may retain the Program,
You will destroy the Program and all copies made of it within
ten days of the end of the evaluation period. If IBM specifies
that You may retain the Program, and You elect to do so, the
Program will be then subject to a different license agreement, that
will be provided to You at that time. In addition, a charge may
apply.
IBM may terminate Your license if You fail to comply with
the terms of this Agreement. If IBM does so, You must destroy
all copies of the Program.
2. No Warranty
SUBJECT TO ANY STATUTORY WARRANTIES WHICH CANNOT BE
EXCLUDED, IBM MAKES NO WARRANTIES OR CONDITIONS EITHER EXPRESS OR
IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR
CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND
NON-INFRINGEMENT, REGARDING THE PROGRAM OR TECHNICAL SUPPORT,
IF ANY.
The exclusion also applies to any of IBM's Program
developers and suppliers.
Manufacturers, suppliers, or publishers of non-IBM Programs
may provide their own warranties.
IBM does not provide technical support, unless IBM
specifies otherwise.
3. Limitation of Liability
Circumstances may arise where, because of a default on
IBM's part or other liability, You are entitled to recover
damages from IBM. In each such instance, regardless of the basis on
which You may be entitled to claim damages from IBM, (including
fundamental breach, negligence, misrepresentation, or other contract or
tort claim), IBM is liable for no more than 1) damages for
bodily injury (including death) and damage to real property and
tangible personal property and 2) the amount of any other actual
direct damages up to the charges for the Program that is the
subject of the claim.
This limitation of liability also applies to IBM's Program
developers and suppliers. It is the maximum for which they and IBM are
collectively responsible.
UNDER NO CIRCUMSTANCES IS IBM, ITS PROGRAM DEVELOPERS OR
SUPPLIERS LIABLE FOR ANY OF THE FOLLOWING, EVEN IF INFORMED OF THEIR
POSSIBILITY:
1. LOSS OF, OR DAMAGE TO, DATA;
2. SPECIAL, INCIDENTAL, OR INDIRECT DAMAGES, OR FOR ANY
ECONOMIC CONSEQUENTIAL DAMAGES; OR
3. LOST PROFITS, BUSINESS, REVENUE, GOODWILL, OR
ANTICIPATED SAVINGS.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION
OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE
LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
4. General
1. Nothing in this Agreement affects any statutory rights
of consumers that cannot be waived or limited by contract.
2. In the event that any provision of this Agreement is
held to be invalid or unenforceable, the remaining provisions of
this Agreement remain in full force and effect.
3. You may not export the Program.
4. You agree to allow IBM to store and use Your contact
information, including names, phone numbers, and e-mail addresses,
anywhere they do business. Such information will be processed and
used in connection with our business relationship, and may be
provided to contractors, Business Partners, and assignees of IBM for
uses consistent with their collective business activities,
including communicating with You (for example, for processing orders,
for promotions, and for market research).
5. Neither You nor IBM will bring a legal action under this
Agreement more than two years after the cause of action arose unless
otherwise provided by local law without the possibility of
contractual waiver or limitation.
6. Neither You nor IBM is responsible for failure to
fulfill any obligations due to causes beyond its control.
7. This Agreement will not create any right or cause of
action for any third party, nor will IBM be responsible for any
third party claims against You except, as permitted by the
Limitation of Liability section above, for bodily injury (including
death) or damage to real or tangible personal property for which
IBM is legally liable.
5. Governing Law, Jurisdiction, and Arbitration
Governing Law
Both You and IBM consent to the application of the laws of
the country in which You acquired the Program license to
govern, interpret, and enforce all of Your and IBM's rights,
duties, and obligations arising from, or relating in any manner to,
the subject matter of this Agreement, without regard to
conflict of law principles.
The United Nations Convention on Contracts for the
International Sale of Goods does not apply.
Jurisdiction
All of our rights, duties, and obligations are subject to
the courts of the country in which You acquired the Program
license.
Part 2 - Country-unique Terms
AMERICAS
ARGENTINA: Governing Law, Jurisdiction, and Arbitration
(Section 5): The following exception is added to this section:
Any litigation arising from this Agreement will be settled
exclusively by the Ordinary Commercial Court of the city of Buenos
Aires.
BRAZIL: Governing Law, Jurisdiction, and Arbitration
(Section 5): The following exception is added to this section:
Any litigation arising from this Agreement will be settled
exclusively by the court of Rio de Janeiro, RJ.
CANADA: Limitation of Liability (Section 3): The following
replaces item 1 in the first paragraph of this section:
1) damages for bodily injury (including death) and physical
harm to real property and tangible personal property caused by
IBM's negligence; and
General (Section 4): The following replaces the terms in
item 7:
7. This Agreement will not create any right or cause of
action for any third party, nor will IBM be responsible for any
third party claims against You except as permitted by the
Limitation of Liability section above for bodily injury (including
death) or physical harm to real or tangible personal property
caused by IBM's negligence for which IBM is legally liable.
Governing Law, Jurisdiction, and Arbitration (Section 5):
The phrase "the laws of the country in which You acquired the
Program license" in the Governing Law subsection is replaced by the
following:
the laws in the Province of Ontario
PERU: Limitation of Liability (Section 3): The following is
added at the end of this section:
In accordance with Article 1328 of the Peruvian Civil Code,
the limitations and exclusions specified in this section will
not apply to damages caused by IBM's willful misconduct
("dolo") or gross negligence ("culpa inexcusable").
UNITED STATES OF AMERICA: General (Section 4): The
following is added to this section:
U.S. Government Users Restricted Rights - Use, duplication
or disclosure restricted by the GSA ADP Schedule Contract with
the IBM Corporation.
Governing Law, Jurisdiction, and Arbitration (Section 5):
The phrase "the laws of the country in which You acquired the
Program license" in the Governing Law subsection is replaced by the
following:
the laws of the State of New York, United States of America
ASIA PACIFIC
AUSTRALIA: No Warranty (Section 2): The following is added:
Although IBM specifies that there are no warranties, You
may have certain rights under the Trade Practices Act 1974 or
other legislation and are only limited to the extent permitted by
the applicable legislation.
Limitation of Liability (Section 3): The following is added:
Where IBM is in breach of a condition or warranty implied
by the Trade Practices Act 1974, IBM's liability is limited to
the repair or replacement of the goods, or the supply of
equivalent goods. Where that condition or warranty relates to right to
sell, quiet possession or clear title, or the goods are of a kind
ordinarily acquired for personal, domestic or household use or
consumption, then none of the limitations in this paragraph apply.
Governing Law, Jurisdiction, and Arbitration (Section 5):
The phrase "the laws of the country in which You acquired the
Program license" in the Governing Law subsection is replaced by the
following:
the laws of the State or Territory in which You acquired
the Program license
CAMBODIA, LAOS, and VIETNAM: Governing Law, Jurisdiction,
and Arbitration (Section 5): The phrase "the laws of the
country in which You acquired the Program license" in the Governing
Law subsection is replaced by the following:
the laws of the State of New York, United States of America
The following is added to this section:
Arbitration
Disputes arising out of or in connection with this
Agreement shall be finally settled by arbitration which shall be held
in Singapore in accordance with the Arbitration Rules of
Singapore International Arbitration Center ("SIAC Rules") then in
effect. The arbitration award shall be final and binding for the
parties without appeal and shall be in writing and set forth the
findings of fact and the conclusions of law.
The number of arbitrators shall be three, with each side to
the dispute being entitled to appoint one arbitrator. The two
arbitrators appointed by the parties shall appoint a third arbitrator
who shall act as chairman of the proceedings. Vacancies in the
post of chairman shall be filled by the president of the SIAC.
Other vacancies shall be filled by the respective nominating
party. Proceedings shall continue from the stage they were at when
the vacancy occurred.
If one of the parties refuses or otherwise fails to appoint
an arbitrator within 30 days of the date the other party
appoints its, the first appointed arbitrator shall be the sole
arbitrator, provided that the arbitrator was validly and properly
appointed.
All proceedings shall be conducted, including all documents
presented in such proceedings, in the English language. The English
language version of this Agreement prevails over any other language
version.
HONG KONG S.A.R. and MACAU S.A.R. of China: Governing Law,
Jurisdiction, and Arbitration (Section 5): The phrase "the laws of the
country in which You acquired the Program license" in the Governing
Law subsection is replaced by the following:
the laws of Hong Kong Special Administrative Region of China
INDIA: Limitation of Liability (Section 3): The following
replaces the terms of items 1 and 2 of the first paragraph:
1) liability for bodily injury (including death) or damage
to real property and tangible personal property will be
limited to that caused by IBM's negligence; and 2) as to any other
actual damage arising in any situation involving nonperformance by
IBM pursuant to, or in any way related to the subject of this
Agreement, IBM's liability will be limited to the charge paid by You
for the individual Program that is the subject of the claim.
General (Section 4): The following replaces the terms of
item 5:
If no suit or other legal action is brought, within three
years after the cause of action arose, in respect of any claim
that either party may have against the other, the rights of the
concerned party in respect of such claim will be forfeited and the
other party will stand released from its obligations in respect
of such claim.
Governing Law, Jurisdiction, and Arbitration (Section 5):
The following is added to this section:
Arbitration
Disputes arising out of or in connection with this
Agreement shall be finally settled by arbitration which shall be held
in Bangalore, India in accordance with the laws of India then
in effect. The arbitration award shall be final and binding
for the parties without appeal and shall be in writing and set
forth the findings of fact and the conclusions of law.
The number of arbitrators shall be three, with each side to
the dispute being entitled to appoint one arbitrator. The two
arbitrators appointed by the parties shall appoint a third arbitrator
who shall act as chairman of the proceedings. Vacancies in the
post of chairman shall be filled by the president of the Bar
Council of India. Other vacancies shall be filled by the respective
nominating party. Proceedings shall continue from the stage they were
at when the vacancy occurred.
If one of the parties refuses or otherwise fails to appoint
an arbitrator within 30 days of the date the other party
appoints its, the first appointed arbitrator shall be the sole
arbitrator, provided that the arbitrator was validly and properly
appointed.
All proceedings shall be conducted, including all documents
presented in such proceedings, in the English language. The English
language version of this Agreement prevails over any other language
version.
JAPAN: General (Section 4): The following is inserted after
item 5:
Any doubts concerning this Agreement will be initially
resolved between us in good faith and in accordance with the
principle of mutual trust.
MALAYSIA: Limitation of Liability (Section 3): The word
"SPECIAL" in item 2 of the third paragraph is deleted:
NEW ZEALAND: No Warranty (Section 2): The following is
added:
Although IBM specifies that there are no warranties, You
may have certain rights under the Consumer Guarantees Act 1993
or other legislation which cannot be excluded or limited. The
Consumer Guarantees Act 1993 will not apply in respect of any goods
which IBM provides, if You require the goods for the purposes of
a business as defined in that Act.
Limitation of Liability (Section 3): The following is added:
Where Programs are not acquired for the purposes of a
business as defined in the Consumer Guarantees Act 1993, the
limitations in this Section are subject to the limitations in that Act.
PEOPLE'S REPUBLIC OF CHINA: Governing Law, Jurisdiction,
and Arbitration (Section 5): The phrase "the laws of the
country in which You acquired the Program license" in the Governing
Law subsection is replaced by the following:
the laws of the State of New York, United States of America
(except when local law requires otherwise)
PHILIPPINES: Limitation of Liability (Section 3): The
following replaces the terms of item 2 of the third paragraph:
2. special (including nominal and exemplary damages),
moral, incidental, or indirect damages or for any economic
consequential damages; or
Governing Law, Jurisdiction, and Arbitration (Section 5):
The following is added to this section:
Arbitration
Disputes arising out of or in connection with this
Agreement shall be finally settled by arbitration which shall be held
in Metro Manila, Philippines in accordance with the laws of
the Philippines then in effect. The arbitration award shall be
final and binding for the parties without appeal and shall be in
writing and set forth the findings of fact and the conclusions of
law.
The number of arbitrators shall be three, with each side to
the dispute being entitled to appoint one arbitrator. The two
arbitrators appointed by the parties shall appoint a third arbitrator
who shall act as chairman of the proceedings. Vacancies in the
post of chairman shall be filled by the president of the
Philippine Dispute Resolution Center, Inc. Other vacancies shall be
filled by the respective nominating party. Proceedings shall
continue from the stage they were at when the vacancy occurred.
If one of the parties refuses or otherwise fails to appoint
an arbitrator within 30 days of the date the other party
appoints its, the first appointed arbitrator shall be the sole
arbitrator, provided that the arbitrator was validly and properly
appointed.
All proceedings shall be conducted, including all documents
presented in such proceedings, in the English language. The English
language version of this Agreement prevails over any other language
version.
SINGAPORE: Limitation of Liability (Section 3): The words
"SPECIAL" and "ECONOMIC" are deleted from item 2 of the third
paragraph.
General (Section 4): The following replaces the terms of
item 7:
Subject to the rights provided to IBM's suppliers and
Program developers as provided in Section 4 above (Limitation of
Liability), a person who is not a party to this Agreement shall have no
right under the Contracts (Right of Third Parties) Act to enforce
any of its terms.
EUROPE, MIDDLE EAST, AFRICA (EMEA)
No Warranty (Section 2): In the European Union, the
following is added at the beginning of this section:
In the European Union, consumers have legal rights under
applicable national legislation governing the sale of consumer goods.
Such rights are not affected by the provisions of this Section 3.
Limitation of Liability (Section 3): In Austria, Denmark,
Finland, Greece, Italy, Netherlands, Norway, Portugal, Spain, Sweden
and Switzerland, the following replaces the terms of this
section in its entirety:
Except as otherwise provided by mandatory law:
1. IBM's liability for any damages and losses that may
arise as a consequence of the fulfillment of its obligations
under or in connection with this agreement or due to any other
cause related to this agreement is limited to the compensation of
only those damages and losses proved and actually arising as an
immediate and direct consequence of the non-fulfillment of such
obligations (if IBM is at fault) or of such cause, for a maximum amount
equal to the charges You paid for the Program.
The above limitation shall not apply to damages for bodily
injuries (including death) and damages to real property and tangible
personal property for which IBM is legally liable.
2. UNDER NO CIRCUMSTANCES IS IBM, OR ANY OF ITS PROGRAM
DEVELOPERS, LIABLE FOR ANY OF THE FOLLOWING, EVEN IF INFORMED OF THEIR
POSSIBILITY: 1) LOSS OF, OR DAMAGE TO, DATA; 2) INCIDENTAL OR INDIRECT
DAMAGES, OR FOR ANY ECONOMIC CONSEQUENTIAL DAMAGES; 3) LOST PROFITS,
EVEN IF THEY ARISE AS AN IMMEDIATE CONSEQUENCE OF THE EVENT THAT
GENERATED THE DAMAGES; OR 4) LOSS OF BUSINESS, REVENUE, GOODWILL, OR
ANTICIPATED SAVINGS.
3. The limitation and exclusion of liability herein agreed
applies not only to the activities performed by IBM but also to the
activities performed by its suppliers and Program developers, and
represents the maximum amount for which IBM as well as its suppliers
and Program developers, are collectively responsible.
Limitation of Liability (Section 3): In France and Belgium,
the following replaces the terms of this section in its
entirety:
Except as otherwise provided by mandatory law:
1. IBM's liability for any damages and losses that may
arise as a consequence of the fulfillment of its obligations
under or in connection with this agreement is limited to the
compensation of only those damages and losses proved and actually
arising as an immediate and direct consequence of the non-
fulfillment of such obligations (if IBM is at fault), for a maximum
amount equal to the charges You paid for the Program that has
caused the damages.
The above limitation shall not apply to damages for bodily
injuries (including death) and damages to real property and tangible
personal property for which IBM is legally liable.
2. UNDER NO CIRCUMSTANCES IS IBM, OR ANY OF ITS PROGRAM
DEVELOPERS, LIABLE FOR ANY OF THE FOLLOWING, EVEN IF INFORMED OF THEIR
POSSIBILITY: 1) LOSS OF, OR DAMAGE TO, DATA; 2) INCIDENTAL OR INDIRECT
DAMAGES, OR FOR ANY ECONOMIC CONSEQUENTIAL DAMAGES; 3) LOST PROFITS,
EVEN IF THEY ARISE AS AN IMMEDIATE CONSEQUENCE OF THE EVENT THAT
GENERATED THE DAMAGES; OR 4) LOSS OF BUSINESS, REVENUE, GOODWILL, OR
ANTICIPATED SAVINGS.
3. The limitation and exclusion of liability herein agreed
applies not only to the activities performed by IBM but also to the
activities performed by its suppliers and Program developers, and
represents the maximum amount for which IBM as well as its suppliers
and Program developers, are collectively responsible.
Governing Law, Jurisdiction, and Arbitration (Section 5)
Governing Law
The phrase "the laws of the country in which You acquired
the Program license" is replaced by:
1) "the laws of Austria" in Albania, Armenia, Azerbaijan,
Belarus, Bosnia-Herzegovina, Bulgaria, Croatia, Georgia, Hungary,
Kazakhstan, Kyrgyzstan, FYR Macedonia, Moldavia, Poland, Romania,
Russia, Slovakia, Slovenia, Tajikistan, Turkmenistan, Ukraine,
Uzbekistan, and FR Yugoslavia;
2) "the laws of France" in Algeria, Benin, Burkina Faso,
Cameroon, Cape Verde, Central African Republic, Chad, Comoros, Congo
Republic, Djibouti, Democratic Republic of Congo, Equatorial Guinea,
French Guiana, French Polynesia, Gabon, Gambia, Guinea, Guinea-
Bissau, Ivory Coast, Lebanon, Madagascar, Mali, Mauritania,
Mauritius, Mayotte, Morocco, New Caledonia, Niger, Reunion, Senegal,
Seychelles, Togo, Tunisia, Vanuatu, and Wallis & Futuna;
3) "the laws of Finland" in Estonia, Latvia, and Lithuania;
4) "the laws of England" in Angola, Bahrain, Botswana,
Burundi, Egypt, Eritrea, Ethiopia, Ghana, Jordan, Kenya, Kuwait,
Liberia, Malawi, Malta, Mozambique, Nigeria, Oman, Pakistan, Qatar,
Rwanda, Sao Tome, Saudi Arabia, Sierra Leone, Somalia, Tanzania,
Uganda, United Arab Emirates, the United Kingdom, West Bank/Gaza,
Yemen, Zambia, and Zimbabwe; and
5) "the laws of South Africa" in South Africa, Namibia,
Lesotho and Swaziland.
Jurisdiction
The following exceptions are added to this section:
1) In Austria the choice of jurisdiction for all disputes
arising out of this Agreement and relating thereto, including its
existence, will be the competent court of law in Vienna, Austria
(Inner-City);
2) in Angola, Bahrain, Botswana, Burundi, Egypt, Eritrea,
Ethiopia, Ghana, Jordan, Kenya, Kuwait, Liberia, Malawi, Malta,
Mozambique, Nigeria, Oman, Pakistan, Qatar, Rwanda, Sao Tome, Saudi
Arabia, Sierra Leone, Somalia, Tanzania, Uganda, United Arab
Emirates, West Bank/Gaza, Yemen, Zambia, and Zimbabwe all disputes
arising out of this Agreement or related to its execution,
including summary proceedings, will be submitted to the exclusive
jurisdiction of the English courts;
3) in Belgium and Luxembourg, for all disputes arising out
of this Agreement or related to its interpretation or its
execution, only the law and the courts of the capital of the country
in which Your registered office and/or commercial office is
located are competent;
4) in France, Algeria, Benin, Burkina Faso, Cameroon, Cape
Verde, Central African Republic, Chad, Comoros, Congo Republic,
Djibouti, Democratic Republic of Congo, Equatorial Guinea, French
Guiana, French Polynesia, Gabon, Gambia, Guinea, Guinea-Bissau,
Ivory Coast, Lebanon, Madagascar, Mali, Mauritania, Mauritius,
Mayotte, Morocco, New Caledonia, Niger, Reunion, Senegal,
Seychelles, Togo, Tunisia, Vanuatu, and Wallis & Futuna all disputes
arising out of this Agreement or related to its violation or
execution, including summary proceedings, will be settled exclusively
by the Commercial Court of Paris;
5) in Russia all disputes arising out of or in relation to
the interpretation, the violation, the termination, the nullity
of the execution of this Agreement shall be settled by
Arbitration Court of Moscow;
6) in South Africa, Namibia, Lesotho and Swaziland both of
us agree to submit all disputes relating to this Agreement to
the jurisdiction of the High Court in Johannesburg;
7) in Turkey all disputes arising out of or in connection
with this Agreement shall be resolved by the Istanbul Central
(Sultanahmet) Courts and Execution Directorates of Istanbul, the Republic
of Turkey;
8) in each of the following specified countries, any legal
claim arising out of this Agreement will be brought before, and
settled exclusively by, the competent court of a) Athens for
Greece, b) Tel Aviv-Jaffa for Israel, c) Milan for Italy, d) Lisbon
for Portugal, and e) Madrid for Spain; and
9) in the United Kingdom both of us agree to submit all
disputes relating to this Agreement to the jurisdiction of the
English courts.
Arbitration
In Albania, Armenia, Azerbaijan, Belarus, Bosnia-
Herzegovina, Bulgaria, Croatia, Georgia, Hungary, Kazakhstan,
Kyrgyzstan, FYR Macedonia, Moldavia, Poland, Romania, Russia, Slovakia,
Slovenia, Tajikistan, Turkmenistan, Ukraine, Uzbekistan, and FR
Yugoslavia all disputes arising out of this Agreement or related to
its violation, termination or nullity will be finally settled
under the Rules of Arbitration and Conciliation of the
International Arbitral Center of the Federal Economic Chamber in Vienna
(Vienna Rules) by three arbitrators appointed in accordance with
these rules.
The arbitration will be held in Vienna, Austria, and the
official language of the proceedings will be English. The decision
of the arbitrators will be final and binding upon both
parties. Therefore, pursuant to paragraph 598 (2) of the Austrian
Code of Civil Procedure, the parties expressly waive the
application of paragraph 595 (1) figure 7 of the Code. IBM may,
however, institute proceedings in a competent court in the country
of instal
lation.
In Estonia, Latvia and Lithuania all disputes arising in
connection with this Agreement will be finally settled in arbitration
that will be held in Helsinki, Finland in accordance with the
arbitration laws of Finland then in effect. Each party will appoint one
arbitrator. The arbitrators will then jointly appoint the chairman. If
arbitrators cannot agree on the chairman, then the Central Chamber of
Commerce in Helsinki will appoint the chairman.
AUSTRIA: General (Section 4): The following is added to
item 4:
For purposes of this clause, contact information will also
include information about You as a legal entity, for example
revenue data and other transactional information.
GERMANY: Limitation of Liability (Section 3): The following
paragraph is added to this Section:
The limitations and exclusions specified in this Section
will not apply to damages caused by IBM intentionally or by
gross negligence.
General (Section 4): The following replaces the terms of
item 5:
Any claims resulting from this Agreement are subject to a
statute of limitation of three years.
HUNGARY: Limitation of Liability (Section 3): The following
is added at the end of this section:
The limitation and exclusion specified herein shall not
apply to liability for a breach of contract damaging life,
physical well-being, or health that has been caused intentionally,
by gross negligence, or by a criminal act.
The parties accept the limitations of liability as valid
provisions and state that the Section 314.(2) of the Hungarian Civil
Code applies as the acquisition price as well as other
advantages arising out of the present Agreement balance this
limitation of liability.
IRELAND: No Warranty (Section 2): The following is added to
this section:
Except as expressly provided in these terms and conditions,
or section 12 of the Sale of Goods Act 1893 (as amended by the
Sale of Goods and Supply of Services Act 1980 ("the 1980 Act")),
all conditions and warranties (express or implied, statutory or
otherwise) are hereby excluded including, without limitation, any
warranties implied by the Sale of Goods Act 1893 as amended by the
1980 Act (including, for the avoidance of doubt, section 39 of
the 1980 Act).
Limitation of Liability (Section 3): The following replaces
the terms of this section in its entirety:
For the purposes of this section, a "Default" means any
act, statement, omission, or negligence on the part of IBM in
connection with, or in relation to, the subject matter of an Agreement
in respect of which IBM is legally liable to You whether in
contract or tort. A number of Defaults which together result in, or
contribute to, substantially the same loss or damage will be treated
as one Default occurring on the date of occurrence of the last
such Default.
Circumstances may arise where, because of a Default, You
are entitled to recover damages from IBM. This section sets out
the extent of IBM's liability and Your sole remedy.
1. IBM will accept unlimited liability for (a) death or
personal injury caused by the negligence of IBM, and (b) subject
always to the Items for Which IBM is Not Liable below, for
physical damage to Your tangible property resulting from the
negligence of IBM.
2. Except as provided in item 1 above, IBM's entire
liability for actual damages for any one Default will not in any
event exceed the greater of 1) EUR 125,000, or 2) 125 percent of
the amount You paid for the Program directly relating to the
Default. These limits also apply to any of IBM's suppliers and
Program developers. They state the maximum for which IBM and such
suppliers and Program developers are collectively responsible.
Items for Which IBM is Not Liable
Save with respect to any liability referred to in item 1
above, under no circumstances is IBM or any of its suppliers or
Program developers liable for any of the following, even if IBM or
they were informed of the possibility of such losses:
1. loss of, or damage to, data;
2. special, indirect, or consequential loss; or
3. loss of profits, business, revenue, goodwill, or
anticipated savings.
ITALY: General (Section 4): The following is added to this
section:
IBM and Customer (hereinafter, individually, "Party") shall
comply with all the obligations of the applicable provisions of
law and/or regulation on personal data protection. Each of the
Parties will indemnify and keep the other Party harmless from any
damage, claim, cost or expense incurred by the latter, directly and
or indirectly, as a consequence of an infringement of the
other Party of the mentioned provisions of law and/or
regulations.
SLOVAKIA: Limitation of Liability (Section 3): The
following is added to the end of the last paragraph:
The limitations apply to the extent they are not prohibited
under Sections 373-386 of the Slovak Commercial Code.
General (Section 4): The terms of item 5 are replaced with
the following:
THE PARTIES AGREE THAT, AS DEFINED BY APPLICABLE LOCAL LAW,
ANY LEGAL OR OTHER ACTION RELATED TO A BREACH OF THIS AGREEMENT
MUST BE COMMENCED NO LATER THAN FOUR YEARS FROM THE DATE ON
WHICH THE CAUSE OF ACTION AROSE.
SWITZERLAND: General (Section 4): The following is added to
item 4:
For purposes of this clause, contact information will also
include information about You as a legal entity, for example
revenue data and other transactional information.
UNITED KINGDOM: No Warranty (Section 2): The following
replaces the first sentence in the first paragraph of this section:
SUBJECT TO ANY STATUTORY WARRANTIES WHICH CANNOT BE
EXCLUDED, IBM MAKES NO WARRANTY OR CONDITION EITHER EXPRESS OR
IMPLIED, INCLUDING (WITHOUT LIMITATION) THE IMPLIED WARRANTIES OF
SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-
INFRINGEMENT, REGARDING THE PROGRAM.
Limitation of Liability (Section 3): The following replaces
the terms of this section in its entirety:
For the purposes of this section, a "Default" means any
act, statement, omission, or negligence on the part of IBM in
connection with, or in relation to, the subject matter of an Agreement
in respect of which IBM is legally liable to You, whether in
contract or tort. A number of Defaults which together result in, or
contribute to, substantially the same loss or damage will be treated
as one Default.
Circumstances may arise where, because of a Default, You
are entitled to recover damages from IBM. This section sets out
the extent of IBM's liability and Your sole remedy.
1. IBM will accept unlimited liability for:
a. death or personal injury caused by the negligence of
IBM;
b. any breach of its obligations implied by Section 12 of
the Sale of Goods Act 1979 or Section 2 of the Supply of Goods
and Services Act 1982, or any statutory modification or re-
enactment of either such Section; and
c. subject always to the Items for Which IBM is Not Liable
below, for physical damage to Your tangible property resulting
from the negligence of IBM.
2. IBM's entire liability for actual damages for any one
Default will not in any event, except as provided in item 1 above,
exceed the greater of 1) Pounds Sterling 75,000, or 2) 125 percent
of the amount You paid for the Program directly relating to
the Default. These limits also apply to IBM's suppliers and
Program developers. They state the maximum for which IBM and such
suppliers and Program developers are collectively responsible.
Items for Which IBM is Not Liable
Save with respect to any liability referred to in item 1
above, under no circumstances is IBM or any of its suppliers or
Program developers liable for any of the following, even if IBM or
they were informed of the possibility of such losses:
1. loss of, or damage to, data;
2. special, indirect, or consequential loss; or
3. loss of profits, business, revenue, goodwill, or
anticipated savings.
Z125-5543-03 (07/2008)
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 Team Concert 2.0
Program Number: 5724-V04
Evaluation Period
The evaluation period begins on the date that You agree to
the terms of this Agreement and ends after 60 days.
Limited Use Rights for Other IBM Programs
If You acquired this Program as part of another IBM Program
("Principal Program") that lists this Program under "Other IBM
Programs", You received this Program only in support of the Principal
Program and Your rights to use this Program will be limited by the
license of the Principal Program. Please contact Your IBM Sales
Representative if You wish to acquire a separate license to this Program
not limited by the Principal Program's license terms.
Other IBM Programs
The Program is licensed as a multi-product package and
includes other products distributed with the Program ("Other IBM
Programs"). You are authorized to install and use such Other IBM
Programs only in association with Your licensed use of the Program
under this Agreement. The Other IBM Programs may not be used for
any other purpose. You are not authorized to transfer or
remarket the Other IBM Programs. The terms of the Program's
Agreement may replace or modify the license terms for the Other IBM
Programs. In the event of conflict, the Program's terms supersede the
terms of the license agreement which accompanies the Other IBM
Programs. When Your right to use the Program expires or terminates,
You must discontinue use, destroy or promptly return all copies
of the Other IBM Programs to the party from whom You acquired
it; if You downloaded the Other IBM Programs contact the party
from whom You acquired it. If You wish to license the Other IBM
Programs for any use beyond the limits set forth above, please
contact an IBM Sales Representative or the party from whom You
acquired it to obtain the appropriate licenses.
The following are Other IBM Programs licensed with the
Programs:
1. IBM DB2 Workgroup Server Edition Version 9.5
2. IBM Installation Manager and Packaging Utility for the
Rational Software Development Platform 1.3
Separately Licensed Code
The provisions of this paragraph do not apply to the extent
they are held to be invalid or unenforceable under the law that
governs this license. Each of the components listed below is
considered "Separately Licensed Code". IBM Separately Licensed Code is
licensed to You under the terms of the applicable third party
license agreement(s) set forth in the NON_IBM_LICENSE file(s) that
accompanies the Program. Notwithstanding any of the terms in the
Agreement, or any other agreement You may have with IBM, the terms of
such third party license agreement(s) governs Your use of all
Separately Licensed Code unless otherwise noted below.
Future Program updates or fixpacks may contain additional
Separately Licensed Code. Such additional Separately Licensed Code and
related licenses are listed in another NON_IBM_LICENSE file that
accompanies the Program update or fixpack. You acknowledge that You
have read and agree to the license agreements contained in the
NON_IBM_LICENSE file(s). If You do not agree to the terms of these third
party license agreements, You may not use the Separately Licensed
Code.
For Programs acquired under the International Program
License Agreement ("IPLA") or International Program License
Agreement for Non Warranted Program ("ILAN") and You are the original
licensee of the Program, if You do not agree with the third party
license agreements, You may return the Program in accordance with
the terms of, and within the specified time frames stated in,
the "Money-back Guarantee" section of the IPLA or ILAN IBM
Agreement.
Note: Notwithstanding any of the terms in the third party
license agreement, the Agreement, or any other agreement You may
have with IBM:
(a) IBM provides this Separately Licensed Code to You
WITHOUT WARRANTIES OF ANY KIND;
(b) IBM DISCLAIMS ANY AND ALL EXPRESS AND IMPLIED
WARRANTIES AND CONDITIONS INCLUDING, BUT NOT LIMITED TO, THE WARRANTY
OF TITLE, NON-INFRINGEMENT OR INTERFERENCE AND THE IMPLIED
WARRANTIES AND CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE, WITH RESPECT TO THE SEPARATELY LICENSED CODE;
(c) IBM is not liable to You, and will not defend,
indemnify, or hold You harmless for any claims arising from or related
to the Separately Licensed Code; and
(d) IBM is not liable for any direct, indirect, incidental,
special, exemplary, punitive or consequential damages including, but
not limited to, lost data, lost savings, and lost profits, with
respect to the Separately Licensed Code.
Notwithstanding these exclusions, in Germany and Austria,
IBM's warranty and liability for the Separately Licensed Code is
governed only by the respective terms applicable for Germany and
Austria in IBM license agreements.
Note: IBM may provide limited support for some Separately
Licensed Code. If such support is available, the details and any
additional terms related to such support will be set forth in the
License Information document.
The following are Separately Licensed Code:
JUnit 3.8.1
Specified Operating Environment
The Program's specifications and specified operating
environment information may be found in documentation accompanying the
Program, if available, such as a read-me file, or other information
published by IBM, such as an announcement letter. You agree that such
documentation and other Program content may be supplied only in the
English language.
Program-unique Terms
Bundled DB2 Limited Use License
This Program is bundled with the data server component of
the edition(s) of IBM DB2 specified in the "Supporting
Programs" section of this License Information (the "Bundled DB2
Edition"), which is subject to the following limited use license.
Licensee is authorized to install and use one instance of
the Bundled DB2 Edition only in association with Licensee's
licensed use of the Program, and only for the storage and management
of data used and generated by the Program, and not for other
data management purposes. The Bundled DB2 Edition is to be used
only by the internal components of the Program. The Bundled DB2
Edition may be used as a repository for configuration information
generated by the Program. Licensee may not use the Bundled DB2
Edition to build or extend custom applications that store business
data. Licensee is not permitted to make inbound connections to
the Bundled DB2 Edition database from other applications for
queries or report generation. Licensee may only use up to a maximum
of 4 GB of instance memory with the Bundled DB2 Edition.
Licensee's use of the Bundled DB2 Edition may not exceed
the number of Client Access Licenses for which Licensee is
licensed to use the Program under its Proof of Entitlement.
Licensee is authorized to use the High Availability and
Disaster Recovery (HADR) component only with the single instance of
the Bundled DB2 Edition that Licensee is entitled to install
and use as set out above, and only on the same machine on which
Licensee has installed the Bundled DB2 Edition. If Licensee
purchases an additional 100 DB2 Processor Value Units, Licensee may
use the HADR component on a second server in an Idle Standby
configuration only. In an "Idle Standby" configuration, idle standby
servers have DB2 installed, however, they do not service user
transactions or query workloads. A DB2 server is considered idle if it
is used exclusively for administrative actions that assist in
failover scenarios such as having a database in rollforward pending
state to support log shipping, or in making a flash copy of a DB2
database and then performing a database backup of this copy on
another server, or in keeping a standby database synchronized using
the HADR component.
In addition to the above, Licensee is authorized to use the
following functions or features with the Bundled DB2 Edition:
- pureXML
Licensee is not authorized to use the following functions
or features with the Bundled DB2 Edition
- DB2 Database Partitioning Feature
- Table Partitioning
- Backup compression
- Materialized Query Tables (MQT)
- Multi-dimensional Clustering (MDC)
Except as expressly set out above, Licensee is not
authorized to install or use any separate features available for the
fully licensed IBM DB2 edition unless Licensee acquires the fully
licensed version.
If Licensee uses the Program with a separately licensed IBM
DB2 edition, the license terms of that edition apply to
Licensee's use of the Bundled DB2 Edition, and not the terms of this
limited use license.
Micro Broker
The Program may include IBM's Micro Broker software.
Licensee is authorized to utilize the Micro Broker software only in
association with Licensee's authorized use of the Program.
Updating Common Components
Certain portions of this Program have been internally
designated by IBM as common component(s) that may be shared between
multiple IBM programs. Licensee hereby acknowledges and agrees that
installation of this Program, future updates to this Program, or other
IBM programs that use such common component(s) may cause the
common component(s) to be updated across multiple IBM programs.
Use Restriction
IBM grants Licensee a limited, nonexclusive,
nontransferable license to download, install, and use the Program:
1. as a tool Licensee will use to develop Licensee's
software projects or products;
2. as a platform on which Licensee will develop Licensee's
extensions to the Program;
3. for research where Licensee is a student or faculty
member at an accredited educational institution and:
a) Licensee is studying the use of the Program;
b) Licensee is using the Program as a platform to develop
experimental or prototype tools;
4. to undertake academic study at an accredited educational
institution where the course curriculum requires the use of the Program.
Licensee may make modifications to the source code
(including sample code) provided with the Program for these purposes
only. Licensee may not copy or distribute the Program or any
portions of it, including modifications.
Extension Interfaces
The Program contains interfaces and other technology
("Extension Interfaces") that may permit software Licensee develops
("Extensions") to work in conjunction with the Program. Extension
Interfaces are subject to change in future releases of the Program.
IBM may change or cancel its plans to further develop Extension
Interfaces at any time, so any use by Licensee of Extension Interfaces
is solely at Licensee's own risk. IBM does not warrant or
represent that Extension Interfaces will meet Licensee's requirements
and/or that Licensee's Extensions developed using Extension
Interfaces will be compatible with subsequent versions of the Program,
if any.
Jazz Team Server License
Each valid license for the server Program will authorize
Licensee to run a single instance of the Jazz Team Server Program on
a single server. Each authorized server is defined as a "Jazz
Team Server".
Licensee may not bypass a Jazz Team Server to directly
access a Jazz Team Server repository. Such attempts may compromise
the integrity of a Jazz Team Server's data store.
Licensee may only use the server Program in conjunction
with a valid Jazz Team Server key. Any Jazz Team Server key
issued to Licensee will provide the number of authorized user IDs
to which Licensee may assign valid Client Access Licenses.
Licensee may not bypass, disable, remove, or otherwise attempt to
circumvent the Jazz Team Server key authorization code.
Client Access Licenses
Every valid Client Access License will include a designated
authorization for one individual user or one automated process to
directly or indirectly access the Jazz Team Server for use of the
Program per the terms of this Agreement. In addition, unless
otherwise stated in this Agreement, a Client Access License will
grant Licensee a specified level of read-write functionality. If
a user or automated process directly or indirectly accesses
the Jazz Team Server without a Client Access License such user
or automated process will be granted read-only access. A
Client Access License is valid on only one Jazz Team Server at any
one time.
Any Client Access License that is included with Licensee's
valid license for the Program may only be used to access the Jazz
Team Server licensed to Licensee under this Agreement.
Licensee may not bypass, disable, remove, or otherwise
attempt to circumvent the Client Access License authorization code
in the Program.
Unless specifically authorized by IBM, Licensee may only
use Licensee's Client Access Licenses to provide Licensee
access to the version of the Program for which the Client Access
Licenses were obtained or to earlier versions of the Program. If
Licensee needs to access later versions of the Program, Licensee
must upgrade Licensee's Client Access Licenses or obtain new
Client Access Licenses.
Unless Licensee is granted permission in writing by IBM or
a third-party authorized by IBM, Licensee may not multiplex,
pool or use any kind of gateway, replicator, bridge, or adapter
that reduces the number of automated processes or users that
directly access a Jazz Team Server, in order to reduce the number of
Client Access Licenses that Licensee requires.
Authorized User Client Access License: An Authorized User
Client Access License may be assigned to one user or automated
process and thereafter may only be reassigned to facilitate a long-
term re-designation of assignment.
Floating User Client Access License: Licensee may access
the Jazz Team Server provided that the total number of
concurrent users or concurrent automated processes that access
Licensee's validly licensed Jazz Team Servers in aggregate do not
exceed the total number of Floating User Client Access Licenses
validly obtained for the Program. Licensee is required to provide a
report of all installed and/or assigned Client Access Licenses to
IBM upon IBM's reasonable request. If Licensee obtains Floating
User Client Access Licenses, Licensee is permitted for each
valid license for the server Program, to run one additional
instance (and only one instance regardless of the number of Floating
User Client Access Licenses Licensee obtains) of the Jazz Team
Server solely as a Floating User Client Access License server;
Licensee may not use this additional Jazz Team Server instance for
any other purpose (including no development or similar
functions.)
Developer Client Access License
Every valid Developer Client Access License will include a
designated authorization for one user or automated process to directly
or indirectly access the Jazz Team Server with read-write
access. Each Developer Client Access License will count towards the
number of authorized user IDs provided by a Jazz Team Server key.
A Developer Client Access License may be made available as
either an Authorized User or Floating User license type.
Contributor Client Access License
Every valid Contributor Client Access License will include
a designated authorization for one user or automated process
to directly or indirectly access the Jazz Team Server with
read access and limited write access. Each Contributor Client
Access License will NOT count towards the number of authorized
user IDs provided by a Jazz Team Server key. A Contributor
Client Access License may be made available as either an
Authorized User or Floating User license type.
Build System Client Access License
Every valid Build System Client Access License will include
a designated authorization for one or more automated
processes to access the Jazz Team Server for the purposes of running
automated software builds. Licensee may not assign such Build System
Client Access Licenses for the purpose of allowing users access to
a Jazz Team Server except to configure such automated
software builds provided that Licensee has acquired a Developer
Client Access License for any user performing such configuration.
Each Build System Client Access License will NOT count towards
the number of authorized user IDs provided by a Jazz Team
Server key.
ClearCase and ClearQuest Connector Client Access Licenses
IBM may provide a Connector Client Access License to permit
a device running an automated process to act as a replicator
or bridge ("Connector Device") between a Jazz Team Server and
another identified multi-user device or server specifically
authorized by IBM (for example a ClearCase server or ClearQuest
server) ("Other Authorized Server"). In such instances, the
Connector Device is authorized if:
1. Licensee obtains such Connector Client Access License
from IBM or such Connector Client Access License is included
with the edition of the Program Licensee is licensing; and
2. the Connector Device has a valid license to access the
Other Authorized Server; and
3. each user of the Other Authorized Server that is
accessing the Jazz Team Server through the Connector Device has a
valid license to the Other Authorized Server.
Each Connector Client Access License will NOT count towards
the number of authorized user IDs provided by a Jazz Team
Server key.
High Availability
For each valid license of the Enterprise Edition of the
Jazz Team Server ("Primary Jazz Team Server"), Licensee is
permitted to run one additional instance of the Jazz Team Server
("Standby Jazz Team Server") that does not service user transactions,
except for the purpose of administering the Standby Jazz Team
Server to act in place of the Primary Jazz Team Server if that
server should fail ("Failover Period"). In the event and only for
the length of a Failover Period, Licensee may operate the
Standby Jazz Team Server to service user transactions. Furthermore,
during the Failover Period, Licensee may not operate the Primary
Jazz Team Server to service user transactions, other than those
necessary for administrative actions that assist in recovering from
the Failover Period.
Any Client Access Licenses included with Licensee's valid
license for the server Program are also valid for the Standby Jazz
Team Server for the sole purpose of administering the Standby
Jazz Team Server to prepare for a Failover Period. Any
additional valid Client Access Licenses obtained separately from the
valid license for the server Program and installed on the Standby
Jazz Team Server are, during the Failover Period, only valid on
the Standby Jazz Team Server and not valid on the Primary Jazz
Team Server.
Unless other licenses are expressly granted under this
Agreement, Licensee's permission to run a Standby Jazz Team Server
does not include any of the licenses that may be required for
additional instances of software required by a Standby Jazz Team
Server, such as, but not limited to, DB2 Workgroup Edition.
D/N: L-KHUY-7RURAM
P/N: L-KHUY-7RURAM
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 Team Concert 2.0
Program Number: 5724-V04
Supporting Programs
The Program is licensed as a multi-product package and
includes other products distributed with the Program ("Supporting
Programs"). Licensee is authorized to install and use such Supporting
Programs only in association with Licensee's licensed use of the
Program under this Agreement. The Supporting Programs may not be
used for any other purpose. Licensee is not authorized to
transfer or remarket the Supporting Programs. The terms of the
Program's Agreement may replace or modify the license terms for the
Supporting Programs. In the event of conflict, the Program's 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 it; if Licensee downloaded the
Supporting Programs contact the party from whom Licensee acquired it.
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 it
to obtain the appropriate licenses.
The definition of Supporting Programs replaces any previous
references to Other IBM Programs.
The following are Supporting Programs licensed with the
Programs:
1. IBM DB2 Workgroup Server Edition Version 9.5
2. IBM Installation Manager and Packaging Utility for the
Rational Software Development Platform 1.3
Separately Licensed Code
The provisions of this paragraph do not apply to the extent
they are held to be invalid or unenforceable under the law that
governs this license. Each of the components listed below is
considered "Separately Licensed Code". IBM Separately Licensed Code is
licensed to Licensee under the terms of the applicable third party
license agreement(s) set forth in the NON_IBM_LICENSE file(s) that
accompanies the Program. Notwithstanding any of the terms in the
Agreement, or any other agreement Licensee may have with IBM, the
terms of such third party license agreement(s) governs Licensee's
use of all Separately Licensed Code unless otherwise noted
below.
Future Program updates or fixes may contain additional
Separately Licensed Code. Such additional Separately Licensed Code and
related licenses are listed in another NON_IBM_LICENSE file that
accompanies the Program update or fix. Licensee acknowledges that
Licensee has read and agrees to the license agreements contained in
the NON_IBM_LICENSE file(s). If Licensee does not agree to the
terms of these third party license agreements, Licensee may not
use the Separately Licensed Code.
For Programs acquired under the International Program
License Agreement ("IPLA") or International Program License
Agreement for Non Warranted Program ("ILAN") and Licensee is the
original licensee of the Program, if Licensee does not agree with
the third party license agreements, Licensee may return the
Program in accordance with the terms of, and within the specified
time frames stated in, the "Money-back Guarantee" section of the
IPLA or ILAN IBM Agreement.
Note: Notwithstanding any of the terms in the third party
license agreement, the Agreement, or any other agreement Licensee
may have with IBM:
(a) IBM provides this Separately Licensed Code to Licensee
WITHOUT WARRANTIES OF ANY KIND;
(b) IBM DISCLAIMS ANY AND ALL EXPRESS AND IMPLIED
WARRANTIES AND CONDITIONS INCLUDING, BUT NOT LIMITED TO, THE WARRANTY
OF TITLE, NON-INFRINGEMENT OR INTERFERENCE AND THE IMPLIED
WARRANTIES AND CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE, WITH RESPECT TO THE SEPARATELY LICENSED CODE;
(c) IBM is not liable to Licensee, and will not defend,
indemnify, or hold Licensee harmless for any claims arising from or
related to the Separately Licensed Code; and
(d) IBM is not liable for any direct, indirect, incidental,
special, exemplary, punitive or consequential damages including, but
not limited to, lost data, lost savings, and lost profits, with
respect to the Separately Licensed Code.
Notwithstanding these exclusions, in Germany and Austria,
IBM's warranty and liability for the Separately Licensed Code is
governed only by the respective terms applicable for Germany and
Austria in IBM license agreements.
Note: IBM may provide limited support for some Separately
Licensed Code. If such support is available, the details and any
additional terms related to such support will be set forth in the
License Information document.
The following are Separately Licensed Code:
JUnit 3.8.1
Program-unique Terms
Bundled DB2 Limited Use License
This Program is bundled with the data server component of
the edition(s) of IBM DB2 specified in the "Supporting
Programs" section of this License Information (the "Bundled DB2
Edition"), which is subject to the following limited use license.
Licensee is authorized to install and use one instance of
the Bundled DB2 Edition only in association with Licensee's
licensed use of the Program, and only for the storage and management
of data used and generated by the Program, and not for other
data management purposes. The Bundled DB2 Edition is to be used
only by the internal components of the Program. The Bundled DB2
Edition may be used as a repository for configuration information
generated by the Program. Licensee may not use the Bundled DB2
Edition to build or extend custom applications that store business
data. Licensee is not permitted to make inbound connections to
the Bundled DB2 Edition database from other applications for
queries or report generation. Licensee may only use up to a maximum
of 4 GB of instance memory with the Bundled DB2 Edition.
Licensee's use of the Bundled DB2 Edition may not exceed
the number of Client Access Licenses for which Licensee is
licensed to use the Program under its Proof of Entitlement.
Licensee is authorized to use the High Availability and
Disaster Recovery (HADR) component only with the single instance of
the Bundled DB2 Edition that Licensee is entitled to install
and use as set out above, and only on the same machine on which
Licensee has installed the Bundled DB2 Edition. If Licensee
purchases an additional 100 DB2 Processor Value Units, Licensee may
use the HADR component on a second server in an Idle Standby
configuration only. In an "Idle Standby" configuration, idle standby
servers have DB2 installed, however, they do not service user
transactions or query workloads. A DB2 server is considered idle if it
is used exclusively for administrative actions that assist in
failover scenarios such as having a database in rollforward pending
state to support log shipping, or in making a flash copy of a DB2
database and then performing a database backup of this copy on
another server, or in keeping a standby database synchronized using
the HADR component.
In addition to the above, Licensee is authorized to use the
following functions or features with the Bundled DB2 Edition:
- pureXML
Licensee is not authorized to use the following functions
or features with the Bundled DB2 Edition
- DB2 Database Partitioning Feature
- Table Partitioning
- Backup compression
- Materialized Query Tables (MQT)
- Multi-dimensional Clustering (MDC)
Except as expressly set out above, Licensee is not
authorized to install or use any separate features available for the
fully licensed IBM DB2 edition unless Licensee acquires the fully
licensed version.
If Licensee uses the Program with a separately licensed IBM
DB2 edition, the license terms of that edition apply to
Licensee's use of the Bundled DB2 Edition, and not the terms of this
limited use license.
Micro Broker
The Program may include IBM's Micro Broker software.
Licensee is authorized to utilize the Micro Broker software only in
association with Licensee's authorized use of the Program.
Updating Common Components
Certain portions of this Program have been internally
designated by IBM as common component(s) that may be shared between
multiple IBM programs. Licensee hereby acknowledges and agrees that
installation of this Program, future updates to this Program, or other
IBM programs that use such common component(s) may cause the
common component(s) to be updated across multiple IBM programs.
Use Restriction
IBM grants Licensee a limited, nonexclusive,
nontransferable license to download, install, and use the Program:
1. as a tool Licensee will use to develop Licensee's
software projects or products;
2. as a platform on which Licensee will develop Licensee's
extensions to the Program;
3. for research where Licensee is a student or faculty
member at an accredited educational institution and:
a) Licensee is studying the use of the Program;
b) Licensee is using the Program as a platform to develop
experimental or prototype tools;
4. to undertake academic study at an accredited educational
institution where the course curriculum requires the use of the Program.
Licensee may make modifications to the source code
(including sample code) provided with the Program for these purposes
only. Licensee may not copy or distribute the Program or any
portions of it, including modifications.
Extension Interfaces
The Program contains interfaces and other technology
("Extension Interfaces") that may permit software Licensee develops
("Extensions") to work in conjunction with the Program. Extension
Interfaces are subject to change in future releases of the Program.
IBM may change or cancel its plans to further develop Extension
Interfaces at any time, so any use by Licensee of Extension Interfaces
is solely at Licensee's own risk. IBM does not warrant or
represent that Extension Interfaces will meet Licensee's requirements
and/or that Licensee's Extensions developed using Extension
Interfaces will be compatible with subsequent versions of the Program,
if any.
Jazz Team Server License
Each valid license for the server Program will authorize
Licensee to run a single instance of the Jazz Team Server Program on
a single server. Each authorized server is defined as a "Jazz
Team Server".
Licensee may not bypass a Jazz Team Server to directly
access a Jazz Team Server repository. Such attempts may compromise
the integrity of a Jazz Team Server's data store.
Licensee may only use the server Program in conjunction
with a valid Jazz Team Server key. Any Jazz Team Server key
issued to Licensee will provide the number of authorized user IDs
to which Licensee may assign valid Client Access Licenses.
Licensee may not bypass, disable, remove, or otherwise attempt to
circumvent the Jazz Team Server key authorization code.
Client Access Licenses
Every valid Client Access License will include a designated
authorization for one individual user or one automated process to
directly or indirectly access the Jazz Team Server for use of the
Program per the terms of this Agreement. In addition, unless
otherwise stated in this Agreement, a Client Access License will
grant Licensee a specified level of read-write functionality. If
a user or automated process directly or indirectly accesses
the Jazz Team Server without a Client Access License such user
or automated process will be granted read-only access. A
Client Access License is valid on only one Jazz Team Server at any
one time.
Any Client Access License that is included with Licensee's
valid license for the Program may only be used to access the Jazz
Team Server licensed to Licensee under this Agreement.
Licensee may not bypass, disable, remove, or otherwise
attempt to circumvent the Client Access License authorization code
in the Program.
Unless specifically authorized by IBM, Licensee may only
use Licensee's Client Access Licenses to provide Licensee
access to the version of the Program for which the Client Access
Licenses were obtained or to earlier versions of the Program. If
Licensee needs to access later versions of the Program, Licensee
must upgrade Licensee's Client Access Licenses or obtain new
Client Access Licenses.
Unless Licensee is granted permission in writing by IBM or
a third-party authorized by IBM, Licensee may not multiplex,
pool or use any kind of gateway, replicator, bridge, or adapter
that reduces the number of automated processes or users that
directly access a Jazz Team Server, in order to reduce the number of
Client Access Licenses that Licensee requires.
Authorized User Client Access License: An Authorized User
Client Access License may be assigned to one user or automated
process and thereafter may only be reassigned to facilitate a long-
term re-designation of assignment.
Floating User Client Access License: Licensee may access
the Jazz Team Server provided that the total number of
concurrent users or concurrent automated processes that access
Licensee's validly licensed Jazz Team Servers in aggregate do not
exceed the total number of Floating User Client Access Licenses
validly obtained for the Program. Licensee is required to provide a
report of all installed and/or assigned Client Access Licenses to
IBM upon IBM's reasonable request. If Licensee obtains Floating
User Client Access Licenses, Licensee is permitted for each
valid license for the server Program, to run one additional
instance (and only one instance regardless of the number of Floating
User Client Access Licenses Licensee obtains) of the Jazz Team
Server solely as a Floating User Client Access License server;
Licensee may not use this additional Jazz Team Server instance for
any other purpose (including no development or similar
functions.)
Developer Client Access License
Every valid Developer Client Access License will include a
designated authorization for one user or automated process to directly
or indirectly access the Jazz Team Server with read-write
access. Each Developer Client Access License will count towards the
number of authorized user IDs provided by a Jazz Team Server key.
A Developer Client Access License may be made available as
either an Authorized User or Floating User license type.
Contributor Client Access License
Every valid Contributor Client Access License will include
a designated authorization for one user or automated process
to directly or indirectly access the Jazz Team Server with
read access and limited write access. Each Contributor Client
Access License will NOT count towards the number of authorized
user IDs provided by a Jazz Team Server key. A Contributor
Client Access License may be made available as either an
Authorized User or Floating User license type.
Build System Client Access License
Every valid Build System Client Access License will include
a designated authorization for one or more automated
processes to access the Jazz Team Server for the purposes of running
automated software builds. Licensee may not assign such Build System
Client Access Licenses for the purpose of allowing users access to
a Jazz Team Server except to configure such automated
software builds provided that Licensee has acquired a Developer
Client Access License for any user performing such configuration.
Each Build System Client Access License will NOT count towards
the number of authorized user IDs provided by a Jazz Team
Server key.
ClearCase and ClearQuest Connector Client Access Licenses
IBM may provide a Connector Client Access License to permit
a device running an automated process to act as a replicator
or bridge ("Connector Device") between a Jazz Team Server and
another identified multi-user device or server specifically
authorized by IBM (for example a ClearCase server or ClearQuest
server) ("Other Authorized Server"). In such instances, the
Connector Device is authorized if:
1. Licensee obtains such Connector Client Access License
from IBM or such Connector Client Access License is included
with the edition of the Program Licensee is licensing; and
2. the Connector Device has a valid license to access the
Other Authorized Server; and
3. each user of the Other Authorized Server that is
accessing the Jazz Team Server through the Connector Device has a
valid license to the Other Authorized Server.
Each Connector Client Access License will NOT count towards
the number of authorized user IDs provided by a Jazz Team
Server key.
High Availability
For each valid license of the Enterprise Edition of the
Jazz Team Server ("Primary Jazz Team Server"), Licensee is
permitted to run one additional instance of the Jazz Team Server
("Standby Jazz Team Server") that does not service user transactions,
except for the purpose of administering the Standby Jazz Team
Server to act in place of the Primary Jazz Team Server if that
server should fail ("Failover Period"). In the event and only for
the length of a Failover Period, Licensee may operate the
Standby Jazz Team Server to service user transactions. Furthermore,
during the Failover Period, Licensee may not operate the Primary
Jazz Team Server to service user transactions, other than those
necessary for administrative actions that assist in recovering from
the Failover Period.
Any Client Access Licenses included with Licensee's valid
license for the server Program are also valid for the Standby Jazz
Team Server for the sole purpose of administering the Standby
Jazz Team Server to prepare for a Failover Period. Any
additional valid Client Access Licenses obtained separately from the
valid license for the server Program and installed on the Standby
Jazz Team Server are, during the Failover Period, only valid on
the Standby Jazz Team Server and not valid on the Primary Jazz
Team Server.
Unless other licenses are expressly granted under this
Agreement, Licensee's permission to run a Standby Jazz Team Server
does not include any of the licenses that may be required for
additional instances of software required by a Standby Jazz Team
Server, such as, but not limited to, DB2 Workgroup Edition.
D/N: L-KHUY-7RURAM
P/N: L-KHUY-7RURAM