International License Agreement for Non-Warranted Programs
Part 1 - General Terms
BY DOWNLOADING, INSTALLING, COPYING, ACCESSING, OR USING THE
PROGRAM YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE
ACCEPTING THESE TERMS ON BEHALF OF ANOTHER PERSON OR A COMPANY OR
OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE FULL
AUTHORITY TO BIND THAT PERSON, COMPANY, OR LEGAL ENTITY TO THESE
TERMS. IF YOU DO NOT AGREE TO THESE TERMS,
- DO NOT DOWNLOAD, INSTALL, COPY, ACCESS, OR USE THE PROGRAM;
AND
- PROMPTLY RETURN THE PROGRAM AND PROOF OF ENTITLEMENT TO THE PARTY
FROM WHOM YOU ACQUIRED IT TO OBTAIN A REFUND OF THE AMOUNT YOU
PAID. IF YOU DOWNLOADED THE PROGRAM, CONTACT THE PARTY FROM WHOM
YOU ACQUIRED IT.
"IBM" is International Business Machines Corporation or one of its
subsidiaries.
"License Information" ("LI") is a document that provides
information specific to a Program. The Program's LI is available at
http://www.ibm.com/software/sla/ . The LI may also be found in a
file in the Program's directory, by the use of a system command, or
as a booklet which accompanies the Program.
"Program" is the following, including the original and all whole or
partial copies: 1) machine-readable instructions and data, 2)
components, 3) audio-visual content (such as images, text,
recordings, or pictures), 4) related licensed materials, and 5)
license use documents or keys, and documentation.
A "Proof of Entitlement" ("PoE") is evidence of Your authorization
to use a Program at a specified level. That level may be measured,
for example, by the number of processors or users. The PoE is also
evidence of Your eligibility for future upgrade prices, if any, and
potential special or promotional opportunities. If IBM does not
provide You with a PoE, then IBM may accept the original paid sales
receipt or other sales record from the party (either IBM or its
reseller) from whom You acquired the Program, provided that it
specifies the name of the Program and the usage level
acquired.
"You" and "Your" refer either to an individual person or to a
single legal entity.
This Agreement includes Part 1 - General Terms, Part 2 -
Country-unique Terms (if any), License Information, and Proof of
Entitlement and is the complete agreement between You and IBM
regarding the use of the Program. It replaces any prior oral or
written communications between You and IBM concerning Your use of
the Program. The terms of Part 2 and License Information may
replace or modify those of Part 1. To the extent there is a
conflict between the terms of this Agreement and those of the IBM
International Passport Advantage Agreement, the terms of the latter
agreement prevail.
1. Entitlement
License
The Program is owned by IBM or an IBM supplier, and is copyrighted
and licensed, not sold.
IBM grants You a nonexclusive license to use the Program when You
lawfully acquire it.
You may 1) use the Program up to the level of use specified in the
PoE and 2) make and install copies, including a backup copy, to
support such use. The terms of this license apply to each copy You
make. You will reproduce all copyright notices and all other
legends of ownership on each copy, or partial copy, of the
Program.
If You acquire the Program as a program upgrade, after You install
the upgrade You may not use the Program from which You upgraded or
transfer it to another party.
You will ensure that anyone who uses the Program (accessed either
locally or remotely) does so only for Your authorized use and
complies with the terms of this Agreement.
You may not 1) use, copy, modify, or distribute the Program except
as provided in this Agreement; 2) reverse assemble, reverse
compile, or otherwise translate the Program except as specifically
permitted by law without the possibility of contractual waiver; or
3) sublicense, rent, or lease the Program.
IBM may terminate Your license if You fail to comply with the terms
of this Agreement. If IBM does so, You must destroy all copies of
the Program and its PoE.
Money-back Guarantee
If for any reason You are dissatisfied with the Program and You are
the original licensee, You may obtain a refund of the amount You
paid for it, if within 30 days of Your invoice date You return the
Program and its PoE to the party from whom You obtained it. If You
downloaded the Program, You may contact the party from whom You
acquired it for instructions on how to obtain the refund.
Program Transfer
You may transfer a Program and all of Your license rights and
obligations to another party only if that party agrees to the terms
of this Agreement. When You transfer the Program, You must also
transfer a copy of this Agreement, including the Program's PoE.
After the transfer, You may not use the Program.
2. Charges
The amount payable for a Program license is a one-time
charge.
One-time charges are based on the level of use acquired which is
specified in the PoE. IBM does not give credits or refunds for
charges already due or paid, except as specified elsewhere in this
Agreement.
If You wish to increase the level of use, notify IBM or the party
from whom You acquired it and pay any applicable charges.
If any authority imposes a duty, tax, levy or fee, excluding those
based on IBM's net income, upon the Program, then You agree to pay
the amount specified or supply exemption documentation. You are
responsible for any personal property taxes for the Program from
the date that You acquire it.
3. No Warranty
SUBJECT TO ANY STATUTORY WARRANTIES WHICH CAN NOT BE EXCLUDED, IBM
MAKES NO WARRANTIES OR CONDITIONS EITHER EXPRESS OR IMPLIED,
INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS
OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND
NON-INFRINGEMENT, REGARDING THE PROGRAM OR TECHNICAL SUPPORT, IF
ANY.
The exclusion also applies to any of IBM's Program developers and
suppliers.
Manufacturers, suppliers, or publishers of non-IBM Programs may
provide their own warranties.
IBM does not provide technical support, unless IBM specifies
otherwise.
4. Limitation of Liability
Circumstances may arise where, because of a default on IBM's part
or other liability, You are entitled to recover damages from IBM.
In each such instance, regardless of the basis on which You may be
entitled to claim damages from IBM, (including fundamental breach,
negligence, misrepresentation, or other contract or tort claim),
IBM is liable for no more than 1) damages for bodily injury
(including death) and damage to real property and tangible personal
property and 2) the amount of any other actual direct damages up to
the charges for the Program that is the subject of the claim.
This limitation of liability also applies to IBM's Program
developers and suppliers. It is the maximum for which they and IBM
are collectively responsible.
UNDER NO CIRCUMSTANCES IS IBM, ITS PROGRAM DEVELOPERS OR SUPPLIERS
LIABLE FOR ANY OF THE FOLLOWING, EVEN IF INFORMED OF THEIR
POSSIBILITY:
1. LOSS OF, OR DAMAGE TO, DATA;
2. SPECIAL, INCIDENTAL, OR INDIRECT DAMAGES, OR FOR ANY ECONOMIC
CONSEQUENTIAL DAMAGES; OR
3. LOST PROFITS, BUSINESS, REVENUE, GOODWILL, OR ANTICIPATED
SAVINGS.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF
INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR
EXCLUSION MAY NOT APPLY TO YOU.
5. General
1. Nothing in this Agreement affects any statutory rights of
consumers that cannot be waived or limited by contract.
2. In the event that any provision of this Agreement is held to be
invalid or unenforceable, the remaining provisions of this
Agreement remain in full force and effect.
3. You agree to comply with all applicable export and import laws
and regulations.
4. You agree to allow IBM to store and use Your contact
information, including names, phone numbers, and e-mail addresses,
anywhere they do business. Such information will be processed and
used in connection with our business relationship, and may be
provided to contractors, Business Partners, and assignees of IBM
for uses consistent with their collective business activities,
including communicating with You (for example, for processing
orders, for promotions, and for market research).
5. Neither You nor IBM will bring a legal action under this
Agreement more than two years after the cause of action arose
unless otherwise provided by local law without the possibility of
contractual waiver or limitation.
6. Neither You nor IBM is responsible for failure to fulfill any
obligations due to causes beyond its control.
7. This Agreement will not create any right or cause of action for
any third party, nor will IBM be responsible for any third party
claims against You except, as permitted by the Limitation of
Liability section above, for bodily injury (including death) or
damage to real or tangible personal property for which IBM is
legally liable.
6. Governing Law, Jurisdiction, and Arbitration
Governing Law
Both You and IBM consent to the application of the laws of the
country in which You acquired the Program license to govern,
interpret, and enforce all of Your and IBM's rights, duties, and
obligations arising from, or relating in any manner to, the subject
matter of this Agreement, without regard to conflict of law
principles.
The United Nations Convention on Contracts for the International
Sale of Goods does not apply.
Jurisdiction
All of our rights, duties, and obligations are subject to the
courts of the country in which You acquired the Program
license.
Part 2 - Country-unique Terms
AMERICAS
ARGENTINA: Governing Law, Jurisdiction, and Arbitration (Section
6): The following exception is added to this section:
Any litigation arising from this Agreement will be settled
exclusively by the Ordinary Commercial Court of the city of Buenos
Aires.
BRAZIL: Governing Law, Jurisdiction, and Arbitration (Section 6):
The following exception is added to this section:
Any litigation arising from this Agreement will be settled
exclusively by the court of Rio de Janeiro, RJ.
CANADA: General (Section 5): The following replaces item 7:
7. This Agreement will not create any right or cause of action for
any third party, nor will IBM be responsible for any third party
claims against You except as permitted by the Limitation of
Liability section above for bodily injury (including death) or
physical harm to real or tangible personal property caused by IBM's
negligence for which IBM is legally liable."
Governing Law, Jurisdiction, and Arbitration (Section 6): The
phrase "the laws of the country in which You acquired the Program
license" in the Governing Law subsection is replaced by the
following:
the laws in the Province of Ontario"
PERU: Limitation of Liability (Section 4): The following is added
at the end of this section:
In accordance with Article 1328 of the Peruvian Civil Code, the
limitations and exclusions specified in this section will not apply
to damages caused by IBM's willful misconduct ("dolo") or gross
negligence ("culpa inexcusable").
UNITED STATES OF AMERICA: General (Section 5): The following is
added to this section:
U.S. Government Users Restricted Rights - Use, duplication or
disclosure restricted by the GSA ADP Schedule Contract with the IBM
Corporation.
Governing Law, Jurisdiction, and Arbitration (Section 6): The
phrase "the laws of the country in which You acquired the Program
license" in the Governing Law subsection is replaced by the
following:
the laws of the State of New York, United States of America
ASIA PACIFIC
AUSTRALIA: No Warranty (Section 3): The following is added:
Although IBM specifies that there are no warranties, You may have
certain rights under the Trade Practices Act 1974 or other
legislation and are only limited to the extent permitted by the
applicable legislation.
Limitation of Liability (Section 4): The following is added:
Where IBM is in breach of a condition or warranty implied by the
Trade Practices Act 1974, IBM's liability is limited to the repair
or replacement of the goods, or the supply of equivalent goods.
Where that condition or warranty relates to right to sell, quiet
possession or clear title, or the goods are of a kind ordinarily
acquired for personal, domestic or household use or consumption,
then none of the limitations in this paragraph apply.
Governing Law, Jurisdiction, and Arbitration (Section 6): The
phrase "the laws of the country in which You acquired the Program
license" in the Governing Law subsection is replaced by the
following:
the laws of the State or Territory in which You acquired the
Program license
CAMBODIA, LAOS, and VIETNAM: Governing Law, Jurisdiction, and
Arbitration (Section 6): The phrase "the laws of the country in
which You acquired the Program license" in the Governing Law
subsection is replaced by the following:
the laws of the State of New York, United States of America
The following is added to this section:
Arbitration
Disputes arising out of or in connection with this Agreement shall
be finally settled by arbitration which shall be held in Singapore
in accordance with the Arbitration Rules of Singapore International
Arbitration Center ("SIAC Rules") then in effect. The arbitration
award shall be final and binding for the parties without appeal and
shall be in writing and set forth the findings of fact and the
conclusions of law.
The number of arbitrators shall be three, with each side to the
dispute being entitled to appoint one arbitrator. The two
arbitrators appointed by the parties shall appoint a third
arbitrator who shall act as chairman of the proceedings. Vacancies
in the post of chairman shall be filled by the president of the
SIAC. Other vacancies shall be filled by the respective nominating
party. Proceedings shall continue from the stage they were at when
the vacancy occurred.
If one of the parties refuses or otherwise fails to appoint an
arbitrator within 30 days of the date the other party appoints its,
the first appointed arbitrator shall be the sole arbitrator,
provided that the arbitrator was validly and properly
appointed.
All proceedings shall be conducted, including all documents
presented in such proceedings, in the English language. The English
language version of this Agreement prevails over any other language
version.
HONG KONG S.A.R. and MACAU S.A.R. of China: Governing Law,
Jurisdiction, and Arbitration (Section 6): The phrase "the laws of
the country in which You acquired the Program license" in the
Governing Law subsection is replaced by the following:
the laws of Hong Kong Special Administrative Region of China
INDIA: Limitation of Liability (Section 4): The following replaces
the terms of items 1 and 2 of the first paragraph:
1) liability for bodily injury (including death) or damage to real
property and tangible personal property will be limited to that
caused by IBM's negligence; and 2) as to any other actual damage
arising in any situation involving nonperformance by IBM pursuant
to, or in any way related to the subject of this Agreement, IBM's
liability will be limited to the charge paid by You for the
individual Program that is the subject of the claim.
General (Section 5): The following replaces the terms of item
5:
If no suit or other legal action is brought, within three years
after the cause of action arose, in respect of any claim that
either party may have against the other, the rights of the
concerned party in respect of such claim will be forfeited and the
other party will stand released from its obligations in respect of
such claim.
Governing Law, Jurisdiction, and Arbitration (Section 6): The
following is added to this section:
Arbitration
Disputes arising out of or in connection with this Agreement shall
be finally settled by arbitration which shall be held in Bangalore,
India in accordance with the laws of India then in effect. The
arbitration award shall be final and binding for the parties
without appeal and shall be in writing and set forth the findings
of fact and the conclusions of law.
The number of arbitrators shall be three, with each side to the
dispute being entitled to appoint one arbitrator. The two
arbitrators appointed by the parties shall appoint a third
arbitrator who shall act as chairman of the proceedings. Vacancies
in the post of chairman shall be filled by the president of the Bar
Council of India. Other vacancies shall be filled by the respective
nominating party. Proceedings shall continue from the stage they
were at when the vacancy occurred.
If one of the parties refuses or otherwise fails to appoint an
arbitrator within 30 days of the date the other party appoints its,
the first appointed arbitrator shall be the sole arbitrator,
provided that the arbitrator was validly and properly
appointed.
All proceedings shall be conducted, including all documents
presented in such proceedings, in the English language. The English
language version of this Agreement prevails over any other language
version.
JAPAN: General (Section 5): The following is inserted after item
5:
Any doubts concerning this Agreement will be initially resolved
between us in good faith and in accordance with the principle of
mutual trust.
MALAYSIA: Limitation of Liability (Section 4): The word "SPECIAL"
in item 2 of the third paragraph is deleted:
NEW ZEALAND: No Warranty (Section 3): The following is added:
Although IBM specifies that there are no warranties, You may have
certain rights under the Consumer Guarantees Act 1993 or other
legislation which cannot be excluded or limited. The Consumer
Guarantees Act 1993 will not apply in respect of any goods which
IBM provides, if You require the goods for the purposes of a
business as defined in that Act.
Limitation of Liability (Section 4): The following is added:
Where Programs are not acquired for the purposes of a business as
defined in the Consumer Guarantees Act 1993, the limitations in
this Section are subject to the limitations in that Act.
PEOPLE'S REPUBLIC OF CHINA: Charges (Section 2): The following is
added:
All banking charges incurred in the People's Republic of China will
be borne by You and those incurred outside the People's Republic of
China will be borne by IBM.
Governing Law, Jurisdiction, and Arbitration (Section 6): The
phrase "the laws of the country in which You acquired the Program
license" in the Governing Law subsection is replaced by the
following:
the laws of the State of New York, United States of America (except
when local law requires otherwise)
PHILIPPINES: Limitation of Liability (Section 4): The following
replaces the terms of item 2 of the third paragraph:
2. special (including nominal and exemplary damages), moral,
incidental, or indirect damages or for any economic consequential
damages; or
Governing Law, Jurisdiction, and Arbitration (Section 6): The
following is added to this section:
Arbitration
Disputes arising out of or in connection with this Agreement shall
be finally settled by arbitration which shall be held in Metro
Manila, Philippines in accordance with the laws of the Philippines
then in effect. The arbitration award shall be final and binding
for the parties without appeal and shall be in writing and set
forth the findings of fact and the conclusions of law.
The number of arbitrators shall be three, with each side to the
dispute being entitled to appoint one arbitrator. The two
arbitrators appointed by the parties shall appoint a third
arbitrator who shall act as chairman of the proceedings. Vacancies
in the post of chairman shall be filled by the president of the
Philippine Dispute Resolution Center, Inc. Other vacancies shall be
filled by the respective nominating party. Proceedings shall
continue from the stage they were at when the vacancy
occurred.
If one of the parties refuses or otherwise fails to appoint an
arbitrator within 30 days of the date the other party appoints its,
the first appointed arbitrator shall be the sole arbitrator,
provided that the arbitrator was validly and properly
appointed.
All proceedings shall be conducted, including all documents
presented in such proceedings, in the English language. The English
language version of this Agreement prevails over any other language
version.
SINGAPORE: Limitation of Liability (Section 4): The words "SPECIAL"
and "ECONOMIC" are deleted from item 2 of the third
paragraph.
General (Section 5): The following replaces the terms of item
7:
Subject to the rights provided to IBM's suppliers and Program
developers as provided in Section 4 above (Limitation of
Liability), a person who is not a party to this Agreement shall
have no right under the Contracts (Right of Third Parties) Act to
enforce any of its terms.
EUROPE, MIDDLE EAST, AFRICA (EMEA)
No Warranty (Section 3): In the European Union, the following is
added at the beginning of this section:
In the European Union, consumers have legal rights under applicable
national legislation governing the sale of consumer goods. Such
rights are not affected by the provisions of this Section 3.
Limitation of Liability (Section 4): In Austria, Denmark, Finland,
Greece, Italy, Netherlands, Norway, Portugal, Spain, Sweden and
Switzerland, the following replaces the terms of this section in
its entirety:
Except as otherwise provided by mandatory law:
1. IBM's liability for any damages and losses that may arise as a
consequence of the fulfillment of its obligations under or in
connection with this agreement or due to any other cause related to
this agreement is limited to the compensation of only those damages
and losses proved and actually arising as an immediate and direct
consequence of the non-fulfillment of such obligations (if IBM is
at fault) or of such cause, for a maximum amount equal to the
charges You paid for the Program.
The above limitation shall not apply to damages for bodily injuries
(including death) and damages to real property and tangible
personal property for which IBM is legally liable.
2. UNDER NO CIRCUMSTANCES IS IBM, OR ANY OF ITS PROGRAM DEVELOPERS,
LIABLE FOR ANY OF THE FOLLOWING, EVEN IF INFORMED OF THEIR
POSSIBILITY: 1) LOSS OF, OR DAMAGE TO, DATA; 2) INCIDENTAL OR
INDIRECT DAMAGES, OR FOR ANY ECONOMIC CONSEQUENTIAL DAMAGES; 3)
LOST PROFITS, EVEN IF THEY ARISE AS AN IMMEDIATE CONSEQUENCE OF THE
EVENT THAT GENERATED THE DAMAGES; OR 4) LOSS OF BUSINESS, REVENUE,
GOODWILL, OR ANTICIPATED SAVINGS.
3. The limitation and exclusion of liability herein agreed applies
not only to the activities performed by IBM but also to the
activities performed by its suppliers and Program developers, and
represents the maximum amount for which IBM as well as its
suppliers and Program developers, are collectively
responsible.
Limitation of Liability (Section 4): In France and Belgium, the
following replaces the terms of this section in its entirety:
Except as otherwise provided by mandatory law:
1. IBM's liability for any damages and losses that may arise as a
consequence of the fulfillment of its obligations under or in
connection with this agreement is limited to the compensation of
only those damages and losses proved and actually arising as an
immediate and direct consequence of the non- fulfillment of such
obligations (if IBM is at fault), for a maximum amount equal to the
charges You paid for the Program that has caused the damages.
The above limitation shall not apply to damages for bodily injuries
(including death) and damages to real property and tangible
personal property for which IBM is legally liable.
2. UNDER NO CIRCUMSTANCES IS IBM, OR ANY OF ITS PROGRAM DEVELOPERS,
LIABLE FOR ANY OF THE FOLLOWING, EVEN IF INFORMED OF THEIR
POSSIBILITY: 1) LOSS OF, OR DAMAGE TO, DATA; 2) INCIDENTAL OR
INDIRECT DAMAGES, OR FOR ANY ECONOMIC CONSEQUENTIAL DAMAGES; 3)
LOST PROFITS, EVEN IF THEY ARISE AS AN IMMEDIATE CONSEQUENCE OF THE
EVENT THAT GENERATED THE DAMAGES; OR 4) LOSS OF BUSINESS, REVENUE,
GOODWILL, OR ANTICIPATED SAVINGS.
3. The limitation and exclusion of liability herein agreed applies
not only to the activities performed by IBM but also to the
activities performed by its suppliers and Program developers, and
represents the maximum amount for which IBM as well as its
suppliers and Program developers, are collectively
responsible.
Governing Law, Jurisdiction, and Arbitration (Section 6)
Governing Law
The phrase "the laws of the country in which You acquired the
Program license" is replaced by:
1) "the laws of Austria" in Albania, Armenia, Azerbeijan, Belarus,
Bosnia-Herzegovina, Bulgaria, Croatia, Georgia, Hungary,
Kazakhstan, Kyrgyzstan, FYR Macedonia, Moldavia, Poland, Romania,
Russia, Slovakia, Slovenia, Tajikistan, Turkmenistan, Ukraine,
Uzbekistan, and FR Yugoslavia;
2) "the laws of France" in Algeria, Benin, Burkina Faso, Cameroon,
Cape Verde, Central African Republic, Chad, Comoros, Congo
Republic, Djibouti, Democratic Republic of Congo, Equatorial
Guinea, French Guiana, French Polynesia, Gabon, Gambia, Guinea,
Guinea- Bissau, Ivory Coast, Lebanon, Madagascar, Mali, Mauritania,
Mauritius, Mayotte, Morocco, New Caledonia, Niger, Reunion,
Senegal, Seychelles, Togo, Tunisia, Vanuatu, and Wallis &
Futuna;
3) "the laws of Finland" in Estonia, Latvia, and Lithuania;
4) "the laws of England" in Angola, Bahrain, Botswana, Burundi,
Egypt, Eritrea, Ethiopia, Ghana, Jordan, Kenya, Kuwait, Liberia,
Malawi, Malta, Mozambique, Nigeria, Oman, Pakistan, Qatar, Rwanda,
Sao Tome, Saudi Arabia, Sierra Leone, Somalia, Tanzania, Uganda,
United Arab Emirates, the United Kingdom, West Bank/Gaza, Yemen,
Zambia, and Zimbabwe; and
5) "the laws of South Africa" in South Africa, Namibia, Lesotho and
Swaziland.
Jurisdiction
The following exceptions are added to this section:
1) In Austria the choice of jurisdiction for all disputes arising
out of this Agreement and relating thereto, including its
existence, will be the competent court of law in Vienna, Austria
(Inner-City);
2) in Angola, Bahrain, Botswana, Burundi, Egypt, Eritrea, Ethiopia,
Ghana, Jordan, Kenya, Kuwait, Liberia, Malawi, Malta, Mozambique,
Nigeria, Oman, Pakistan, Qatar, Rwanda, Sao Tome, Saudi Arabia,
Sierra Leone, Somalia, Tanzania, Uganda, United Arab Emirates, West
Bank/Gaza, Yemen, Zambia, and Zimbabwe all disputes arising out of
this Agreement or related to its execution, including summary
proceedings, will be submitted to the exclusive jurisdiction of the
English courts;
3) in Belgium and Luxembourg, all disputes arising out of this
Agreement or related to its interpretation or its execution, the
law, and the courts of the capital city, of the country of Your
registered office and/or commercial site location only are
competent;
4) in France, Algeria, Benin, Burkina Faso, Cameroon, Cape Verde,
Central African Republic, Chad, Comoros, Congo Republic, Djibouti,
Democratic Republic of Congo, Equatorial Guinea, French Guiana,
French Polynesia, Gabon, Gambia, Guinea, Guinea-Bissau, Ivory
Coast, Lebanon, Madagascar, Mali, Mauritania, Mauritius, Mayotte,
Morocco, New Caledonia, Niger, Reunion, Senegal, Seychelles, Togo,
Tunisia, Vanuatu, and Wallis & Futuna all disputes arising out
of this Agreement or related to its violation or execution,
including summary proceedings, will be settled exclusively by the
Commercial Court of Paris;
5) in Russia, all disputes arising out of or in relation to the
interpretation, the violation, the termination, the nullity of the
execution of this Agreement shall be settled by Arbitration Court
of Moscow;
6) in South Africa, Namibia, Lesotho and Swaziland, both of us
agree to submit all disputes relating to this Agreement to the
jurisdiction of the High Court in Johannesburg;
7) in Turkey all disputes arising out of or in connection with this
Agreement shall be resolved by the Istanbul Central (Sultanahmet)
Courts and Execution Directorates of Istanbul, the Republic of
Turkey;
8) in each of the following specified countries, any legal claim
arising out of this Agreement will be brought before, and settled
exclusively by, the competent court of a) Athens for Greece, b) Tel
Aviv-Jaffa for Israel, c) Milan for Italy, d) Lisbon for Portugal,
and e) Madrid for Spain; and
9) in the United Kingdom, both of us agree to submit all disputes
relating to this Agreement to the jurisdiction of the English
courts.
Arbitration
In Albania, Armenia, Azerbeijan, Belarus, Bosnia- Herzegovina,
Bulgaria, Croatia, Georgia, Hungary, Kazakhstan, Kyrgyzstan, FYR
Macedonia, Moldavia, Poland, Romania, Russia, Slovakia, Slovenia,
Tajikistan, Turkmenistan, Ukraine, Uzbekistan, and FR Yugoslavia
all disputes arising out of this Agreement or related to its
violation, termination or nullity will be finally settled under the
Rules of Arbitration and Conciliation of the International Arbitral
Center of the Federal Economic Chamber in Vienna (Vienna Rules) by
three arbitrators appointed in accordance with these rules.
The arbitration will be held in Vienna, Austria, and the official
language of the proceedings will be English. The decision of the
arbitrators will be final and binding upon both parties. Therefore,
pursuant to paragraph 598 (2) of the Austrian Code of Civil
Procedure, the parties expressly waive the application of paragraph
595 (1) figure 7 of the Code. IBM may, however, institute
proceedings in a competent court in the country of
installation.
In Estonia, Latvia and Lithuania all disputes arising in connection
with this Agreement will be finally settled in arbitration that
will be held in Helsinki, Finland in accordance with the
arbitration laws of Finland then in effect. Each party will appoint
one arbitrator. The arbitrators will then jointly appoint the
chairman. If arbitrators cannot agree on the chairman, then the
Central Chamber of Commerce in Helsinki will appoint the
chairman.
AUSTRIA: No Warranty (Section 3): The terms of this section are
completely replaced by the following:
The following limited warranty applies if You have paid a charge to
obtain the Program:
The warranty period is twelve months from the date of delivery. The
limitation period for consumers in action for breach of warranty is
the statutory period as a minimum.
The warranty for an IBM Program covers the functionality of the
Program for its normal use and the Program's conformity to its
specifications.
IBM warrants that when the Program is used in the specified
operating environment it will conform to its specifications. IBM
does not warrant uninterrupted or error-free operation of the
Program or that IBM will correct all Program defects. You are
responsible for the results obtained from the use of the
Program.
The warranty applies only to the unmodified portion of the
Program.
If the Program does not function as warranted during the warranty
period and the problem cannot be resolved with information
available. You may return the Program to the party from whom You
acquired it and receive a refund in the amount You paid. If You
downloaded the Program, You may contact the party from whom You
acquired it to obtain the refund.
This is our sole obligation to You, except as otherwise required by
applicable statutory law.
General (Section 5): The following is added to item 4:
For purposes of this clause, contact information will also include
information about You as a legal entity, for example revenue data
and other transactional information.
GERMANY: No Warranty (Section 3): The same changes apply as those
in No Warranty (Section 3) under Austria above.
Limitation of Liability (Section 4): The following paragraph is
added to this Section:
The limitations and exclusions specified in this Section will not
apply to damages caused by IBM intentionally or by gross
negligence.
General (Section 5): The following replaces the terms of item
5:
Any claims resulting from this Agreement are subject to a statute
of limitation of three years, except as stated in Section 3 (No
Warranty) of this Agreement.
HUNGARY: Limitation of Liability (Section 4): The following is
added at the end of this section:
The limitation and exclusion specified herein shall not apply to
liability for a breach of contract damaging life, physical
well-being, or health that has been caused intentionally, by gross
negligence, or by a criminal act.
The parties accept the limitations of liability as valid provisions
and state that the Section 314.(2) of the Hungarian Civil Code
applies as the acquisition price as well as other advantages
arising out of the present Agreement balance this limitation of
liability.
IRELAND: No Warranty (Section 3): The following is added to this
section:
Except as expressly provided in these terms and conditions, or
section 12 of the Sale of Goods Act 1893 (as amended by the Sale of
Goods and Supply of Services Act 1980 ("the 1980 Act")), all
conditions and warranties (express or implied, statutory or
otherwise) are hereby excluded including, without limitation, any
warranties implied by the Sale of Goods Act 1893 as amended by the
1980 Act (including, for the avoidance of doubt, section 39 of the
1980 Act).
Limitation of Liability (Section 4): The following replaces the
terms of this section in its entirety:
For the purposes of this section, a "Default" means any act,
statement, omission, or negligence on the part of IBM in connection
with, or in relation to, the subject matter of an Agreement in
respect of which IBM is legally liable to You whether in contract
or tort. A number of Defaults which together result in, or
contribute to, substantially the same loss or damage will be
treated as one Default occurring on the date of occurrence of the
last such Default.
Circumstances may arise where, because of a Default, You are
entitled to recover damages from IBM. This section sets out the
extent of IBM's liability and Your sole remedy.
1. IBM will accept unlimited liability for (a) death or personal
injury caused by the negligence of IBM, and (b) subject always to
the Items for Which IBM is Not Liable below, for physical damage to
Your tangible property resulting from the negligence of IBM.
2. Except as provided in item 1 above, IBM's entire liability for
actual damages for any one Default will not in any event exceed the
greater of 1) EUR 125,000, or 2) 125% of the amount You paid for
the Program directly relating to the Default. These limits also
apply to any of IBM's suppliers and Program developers. They state
the maximum for which IBM and such suppliers and Program developers
are collectively responsible.
Items for Which IBM is Not Liable
Save with respect to any liability referred to in item 1 above,
under no circumstances is IBM or any of its suppliers or Program
developers liable for any of the following, even if IBM or they
were informed of the possibility of such losses:
1. loss of, or damage to, data;
2. special, indirect, or consequential loss; or
3. loss of profits, business, revenue, goodwill, or anticipated
savings.
ITALY: General (Section 5): The following is added to this
section:
IBM and Customer (hereinafter, individually, "Party") shall comply
with all the obligations of the applicable provisions of law and/or
regulation on personal data protection. Each of the Parties will
indemnify and keep the other Party harmless from any damage, claim,
cost or expense incurred by the latter, directly and or indirectly,
as a consequence of an infringement of the other Party of the
mentioned provisions of law and/or regulations.
SLOVAKIA: Limitation of Liability (Section 4): The following is
added to the end of the last paragraph:
The limitations apply to the extent they are not prohibited under
§§ 373-386 of the Slovak Commercial Code.
General (Section 5): The terms of item 5 are replaced with the
following:
THE PARTIES AGREE THAT, AS DEFINED BY APPLICABLE LOCAL LAW, ANY
LEGAL OR OTHER ACTION RELATED TO A BREACH OF THIS AGREEMENT MUST BE
COMMENCED NO LATER THAN FOUR YEARS FROM THE DATE ON WHICH THE CAUSE
OF ACTION AROSE.
SWITZERLAND: General (Section 5): The following is added to item
4:
For purposes of this clause, contact information will also include
information about You as a legal entity, for example revenue data
and other transactional information.
UNITED KINGDOM: No Warranty (Section 3): The following replaces the
first sentence in the first paragraph of this section:
SUBJECT TO ANY STATUTORY WARRANTIES WHICH CANNOT BE EXCLUDED, IBM
MAKES NO WARRANTY OR CONDITION EITHER EXPRESS OR IMPLIED, INCLUDING
(WITHOUT LIMITATION) THE IMPLIED WARRANTIES OF SATISFACTORY
QUALITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON- INFRINGEMENT,
REGARDING THE PROGRAM.
Limitation of Liability (Section 4): The following replaces the
terms of this section in its entirety:
For the purposes of this section, a "Default" means any act,
statement, omission, or negligence on the part of IBM in connection
with, or in relation to, the subject matter of an Agreement in
respect of which IBM is legally liable to You, whether in contract
or tort. A number of Defaults which together result in, or
contribute to, substantially the same loss or damage will be
treated as one Default.
Circumstances may arise where, because of a Default, You are
entitled to recover damages from IBM. This section sets out the
extent of IBM's liability and Your sole remedy.
1. IBM will accept unlimited liability for:
a. death or personal injury caused by the negligence of IBM;
b. any breach of its obligations implied by Section 12 of the Sale
of Goods Act 1979 or Section 2 of the Supply of Goods and Services
Act 1982, or any statutory modification or re- enactment of either
such Section; and
c. subject always to the Items for Which IBM is Not Liable below,
for physical damage to Your tangible property resulting from the
negligence of IBM.
2. IBM's entire liability for actual damages for any one Default
will not in any event, except as provided in item 1 above, exceed
the greater of 1) £75,000, or 2) 125% of the amount You paid for
the Program directly relating to the Default. These limits also
apply to IBM's suppliers and Program developers. They state the
maximum for which IBM and such suppliers and Program developers are
collectively responsible.
Items for Which IBM is Not Liable
Save with respect to any liability referred to in item 1 above,
under no circumstances is IBM or any of its suppliers or Program
developers liable for any of the following, even if IBM or they
were informed of the possibility of such losses:
1. loss of, or damage to, data;
2. special, indirect, or consequential loss; or
3. loss of profits, business, revenue, goodwill, or anticipated
savings.
Z125-5589-03 (11/2002)
LICENSE INFORMATION
The Programs listed below are licensed under the following terms
and conditions in addition to those of the International License
Agreement for Non-Warranted Programs.
Program Name: WebSphere Help System V2.1.1
Program Number: 2.1.1
Authorization for Use on Home/Portable Computer: 2
EXPLANATIONS OF TERMS:
Authorization for Use on Home/Portable Computer:
"1" means that the Program may be stored on the primary machine and
another machine, provided that the Program is not in active use on
both machines at the same time.
"2" means that you may not copy and use this Program on another
computer without paying additional license fees.
Specified Operating Environment
The Program's specifications and specified operating environment
information may be found in documentation accompanying the Program,
if available, such as a read-me file, or other information
published by IBM, such as an announcement letter.
Excluded Components
Notwithstanding the terms and conditions of any other agreement you
may have with IBM or any of its related or affiliated companies
(collectively "IBM"), the following terms and conditions apply to
all "Excluded Components" identified below: (a) all Excluded
Components are provided on an "AS IS" basis; (b) IBM DISCLAIMS ANY
AND ALL EXPRESS AND IMPLIED WARRANTIES AND CONDITIONS INCLUDING,
BUT NOT LIMITED TO, THE WARRANTY OF NON-INFRINGEMENT OR
INTERFERENCE AND THE IMPLIED WARRANTIES AND CONDITIONS OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE; (c) IBM will
not be liable to you or indemnify you for any claims related to the
Excluded Components; and (d) IBM will not be liable for any direct,
indirect, incidental, special, exemplary, punitive or consequential
damages with respect to the Excluded Components.
The following are Excluded Components:
1. Lucene 1.2
2. XML4J 4.0.13
3. Tomcat 4.0.6
Third Party Code
The Program and future updates and fixpacks to the Program may
contain certain third party components which are provided to you
under terms and conditions which are different from this Agreement,
or which require IBM to provide you with certain notices and/or
information. For each such third party component, either IBM will
identify such third party component in a "README" file (or in an
updated "README" file accompanying the fixpack or update), or in a
file or files referenced in such "README" files (and shall include
any associated license agreement, notices and other related
information therein), or the third party component will contain or
be accompanied by its own license agreement (for example, provided
when installing or starting such component, or accompanying such
component in a file entitled "README", "COPYING", "LICENSE" or a
substantially similar title, or included among the Program's paper
documentation, if any). Your use of each third party component
which contains or is accompanied by its own license agreement, or
for which IBM has identified a license agreement in one of the
above "README" files (or in a file or files referenced therein),
will be subject to the terms and conditions of such other license
agreement, and not this Agreement. By using or not uninstalling
such third party components after the initial installation of such
third party components (thereby giving you access to the applicable
license agreements, notices and information), you acknowledge and
agree to all such license agreements, notices and information,
including those provided only in the English language. You agree to
review any updated "README" files which accompany updates and
fixpacks to the Program.
The Program contains the following third party components:
1. Lucene 1.2
2. XML4J 4.0.13
3. Tomcat 4.0.6
Program-unique Terms
(1) CERTAIN COMPONENTS OF THE PROGRAM ARE BASED ON CODE LICENSED BY
IBM UNDER THE COMMON PUBLIC LICENSE ("CPL") FROM ECLIPSE. ORG.
("ECLIPSE BASED CODE"). THE CONTRIBUTORS (AS DEFINED IN THE CPL) OF
SUCH CODE, HAVE PROVIDED THEIR CONTRIBUTIONS (AS DEFINED IN THE
CPL) TO IBM, AND TO YOU AS PART OF THE ECLIPSE BASED CODE, "AS IS"
WITHOUT WARRANTY OR CONDITION OF ANY KIND EITHER EXPRESS, IMPLIED,
OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES
OR CONDITIONS OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR
PURPOSE AND NON-INFRINGEMENT. IN NO EVENT WILL THE CONTRIBUTORS BE
LIABLE FOR ANY LOST PROFITS, LOST SAVINGS, LOST REVENUE, LOST DATA,
OR FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL
DAMAGES, EVEN IF IBM OR THE CONTRIBUTORS HAVE BEEN ADVISED OF THE
POSSIBILITY OF SUCH LOSSES OR DAMAGES. ANY PROVISIONS IN THE IBM
PROGRAM LICENSE AGREEMENT THAT RELATE TO THE ECLIPSE BASED CODE
WHICH DIFFER FROM THE CPL ARE OFFERED BY IBM ALONE AND NOT BY ANY
OTHER PARTY INCLUDING, WITHOUT LIMITATION, ANY CONTRIBUTOR. YOU MAY
DOWNLOAD THE SOURCE CODE RELATED TO THESE CONTRIBUTIONS FROM THE
ECLIPSE.ORG WEB-SITE (WWW. ECLIPSE.ORG). A COPY OF THE CPL CAN BE
FOUND IN THE CPL/V1.0.HTML FILE THAT IS PART OF THE ECLIPSE BASED
CODE DOWNLOAD.
(2) The Third Party Code identified below is distributed with but
not a part of the Program:
Lucene 1.2
XML4J 4.0.13
Tomcat 4.0.6
The terms and conditions associated with the use of such Third
Party Code are contained in the associated "about.html" files in
the directories associated with the applicable Third Party
Code.
D/N: N/A
P/N: N/A