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, 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 Centra
l (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 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% 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 §§ 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) £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.
Z125-5543-03 (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 Evaluation of
Programs.
Program Name: IBM WebSphere Studio for Windows, technology
preview, Version 5.0
Program Number: 5724-D14
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.
Evaluation Period
The evaluation
period begins on the date that you agree to the terms of this Agreement and ends
after 180 days.
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:
(a) all third party
code, including third party code included or embedded in the Program and
components referenced in any LICENSE.TXT file (or file of a like name such as
LICENSETHIRDPARTY. TXT) included with the Program or a fixpack or update to the
Program, and (b) all source code included with the Program.
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:
(Please see "Excluded Components" and the information
provided in that section of the license.)
Program-unique Terms
For
purposes of this License Information document, the "Program" consists of the
components on the WebSphere Studio CD-ROM or electronic download specified above
under "Program Name", except for any third party code provided under separate
terms and condition as specified under "Third Party Code".
ADDITIONAL
TERMS: Your use of the Program components is subject to the terms and conditions
in this License Information document, and to any terms and conditions applicable
to the Program. Except for the sections "Third Party Code" and "Excluded
Components", which take precedence over the terms and conditions of any other
agreement you may have with IBM or any of its related or affiliated companies,
the terms applicable to the Product as a whole take precedence over this License
Information document. There is no commitment that any of the function in the
Product represents the early release of supported software in a future release
of any product. Neither is there a commitment that any of the function in the
Product represents a guarantee of inclusion of supported software in a future
release of any product.
AUTHORIZED USE: N/A
SOURCE CODE: Some of
the components of the Program may be provided in source code form.
Notwithstanding anything to the contrary in this Agreement, Program services are
only provided for the unmodified, binary code versions of these components
included in the Program packaging, and not for the source code for these
components or for any modifications of such components you may
create.
D/N: L-TATN-5HMPC2
P/N: L-TATN-5HMPC2