LICENSE
INFORMATION
The Programs listed below are licensed under the following License Information
terms and conditions in addition to the Program license terms previously agreed
to by Client and IBM. If Client does not have previously agreed to license terms
in effect for the Program, the International License Agreement for
Non-Warranted Programs (Z125-5589-05) applies.
Program Name: IBM(R) 32-bit SDK for AIX, Java(TM) Technology Edition, Version
8
Program Number: 6213-001
Program Name: IBM(R) 64-bit SDK for AIX, Java(TM) Technology Edition, Version
8
Program Number: 6213-001
Redistributables
If the Program includes components that are Redistributable, they will be
identified in the REDIST file that accompanies the Program. In addition to the
license rights granted in the Agreement, Licensee may distribute the
Redistributables subject to the following terms:
1) Redistribution must be in object code form only and must conform to all
directions, instruction and specifications in the Program's accompanying REDIST
or documentation;
2) If the Program's accompanying documentation expressly allows Licensee to
modify the Redistributables, such modification must conform to all directions,
instruction and specifications in that documentation and these modifications,
if any, must be treated as Redistributables;
3) Redistributables may be distributed only as part of Licensee's application
that was developed using the Program ("Licensee's Application") and
only to support Licensee's customers in connection with their use of Licensee's
Application. Licensee's Application must constitute significant value add such
that the Redistributables are not a substantial motivation for the acquisition
by end users of Licensee's software product;
4) If the Redistributables include a Java Runtime Environment, Licensee must
also include other non-Java Redistributables with Licensee's Application,
unless the Application is designed to run only on general computer devices (for
example, laptops, desktops and servers) and not on handheld or other pervasive
devices (i.e., devices that contain a microprocessor but do not have computing
as their primary purpose);
5) Licensee may not remove any copyright or notice files contained in the
Redistributables;
6) Licensee must hold IBM, its suppliers or distributors harmless from and
against any claim arising out of the use or distribution of Licensee's
Application;
7) Licensee may not use the same path name as the original Redistributable
files/modules;
8) Licensee may not use IBM's, its suppliers or distributors names or
trademarks in connection with the marketing of Licensee's Application without
IBM's or that supplier's or distributor's prior written consent;
9) IBM, its suppliers and distributors provide the Redistributables and related
documentation without obligation of support and "AS IS", WITH NO
WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING THE WARRANTY OF
TITLE, NON-INFRINGEMENT OR NON-INTERFERENCE AND THE IMPLIED WARRANTIES AND
CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE;
10) Licensee is responsible for all technical assistance for Licensee's
Application and any modifications to the Redistributables; and
11) Licensee's license agreement with the end user of Licensee's Application
must notify the end user that the Redistributables or their modifications may
not be i) used for any purpose other than to enable Licensee's Application, ii)
copied (except for backup purposes), iii) further distributed or transferred
without Licensee's Application or iv) reverse assembled, reverse compiled, or
otherwise translated except as specifically permitted by law and without the
possibility of a contractual waiver. Furthermore, Licensee's license agreement
must be at least as protective of IBM as the terms of this Agreement.
Technology Preview Code
Technology Preview Code (TPC) may be included or distributed with the Program
or updates to it but are not part of the Program. TPC is licensed under the
same terms as the Program, except as provided below. TPC will be identified as
such in the Notices File (or in an updated Notices File accompanying the
updates). Some or all of the TPC may not be made generally available by IBM as
or in a product. Licensee is permitted to use TPC only for internal use for
evaluation purposes and not for use in a production environment. The Notices
File may limit this evaluation use to an evaluation period. If so, at the end
of such evaluation period Licensee must cease using and uninstall the TPC. IBM
provides the TPC without obligation of support and "AS IS," WITHOUT
WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION,
THE WARRANTY OF TITLE, NON-INFRINGEMENT OR NON-INTERFERENCE AND ANY IMPLIED
WARRANTIES AND CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
Licensee may not transfer TPC to another party except as a transfer
accompanying the Program. TPC may contain a disabling device that will prevent
it from being used after the evaluation period ends. Licensee will not tamper
with this disabling device or the TPC. Licensee should take precautions to
avoid any loss of data that might result when the TPC can no longer be
used.
Program-unique Terms
No license is granted for use of the Program on a Pervasive Device, so Licensee
must ensure that the Program is not to be installed on a Pervasive Device. For
these purposes, the term "Pervasive Device" means a device that
contains an embedded microprocessor but which does not have computing as its
primary purpose. Current examples of Pervasive Devices include cell phones,
personal digital assistants (including BlackBerry devices), game consoles,
set-top boxes, embedded controllers in automobiles, smart appliances (household
appliances with embedded processors) and home gateways (fixed function devices
which manage data and media for a household and which cannot perform general
computing functions). By contrast, desktop computers, laptop computers, general
purpose computer servers, departmental servers, mainframe computers,
application servers, print servers, file servers and data storage devices are
examples of devices that are not Pervasive Devices.
L/N: L-SJAH-AA9DUQ
D/N: L-SJAH-AA9DUQ
P/N: L-SJAH-AA9DUQ
International License Agreement for Non-Warranted Programs
Part 1 - General Terms
BY DOWNLOADING, INSTALLING, COPYING, ACCESSING, CLICKING ON AN
"ACCEPT" BUTTON, OR OTHERWISE USING THE PROGRAM, LICENSEE AGREES TO
THE TERMS OF THIS AGREEMENT. IF YOU ARE ACCEPTING THESE TERMS ON BEHALF OF
LICENSEE, YOU REPRESENT AND WARRANT THAT YOU HAVE FULL AUTHORITY TO BIND
LICENSEE TO THESE TERMS. IF YOU DO NOT AGREE TO THESE TERMS,
* DO NOT DOWNLOAD, INSTALL, COPY, ACCESS, CLICK ON AN "ACCEPT"
BUTTON, OR USE THE PROGRAM; AND
* PROMPTLY RETURN THE UNUSED MEDIA AND DOCUMENTATION TO THE PARTY FROM WHOM IT
WAS OBTAINED 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).
2. Agreement Structure
This Agreement includes Part 1 - General Terms, Part 2 - Country-unique Terms
(if any) and the LI and is the complete agreement between Licensee and IBM
regarding the use of the Program. It replaces any prior oral or written
communications between Licensee and IBM concerning Licensee's use of the
Program. The terms of Part 2 may replace or modify those of Part 1. To the
extent of any conflict, the LI prevails over both Parts.
3. License Grant
The Program is owned by IBM or an IBM supplier, and is copyrighted and
licensed, not sold.
IBM grants Licensee a nonexclusive license to 1) use the Program up to the
Authorized Use specified in the invoice, 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, if any, are based on Authorized Use obtained, which is specified in
the invoice. 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, if any, for the Program, provided that Licensee returns the
Program to the party from whom Licensee obtained it within 30 days of the
invoice date. If the license is for a fixed term that is subject to renewal,
then Licensee may obtain a refund only if the Program is 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. Immediately after the transfer,
Licensee's license terminates.
8. No Warranties
SUBJECT TO ANY STATUTORY WARRANTIES THAT CANNOT BE EXCLUDED, IBM MAKES NO
WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, REGARDING THE PROGRAM OR SUPPORT,
IF ANY, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OR CONDITIONS OF
MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, AND
TITLE, AND ANY WARRANTY OR CONDITION OF NON-INFRINGEMENT.
SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF EXPRESS OR IMPLIED
WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO LICENSEE. IN THAT EVENT,
SUCH WARRANTIES ARE LIMITED IN DURATION TO THE MINIMUM PERIOD REQUIRED BY LAW.
NO WARRANTIES APPLY AFTER THAT PERIOD. SOME STATES OR JURISDICTIONS DO NOT
ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE
LIMITATION MAY NOT APPLY TO LICENSEE. LICENSEE MAY HAVE OTHER RIGHTS THAT VARY
FROM STATE TO STATE OR JURISDICTION TO JURISDICTION.
THE DISCLAIMERS AND EXCLUSIONS IN THIS SECTION 8 ALSO APPLY TO ANY OF IBM'S
PROGRAM DEVELOPERS AND SUPPLIERS.
MANUFACTURERS, SUPPLIERS, OR PUBLISHERS OF NON-IBM PROGRAMS MAY PROVIDE THEIR
OWN WARRANTIES.
IBM DOES NOT PROVIDE SUPPORT OF ANY KIND, UNLESS IBM SPECIFIES OTHERWISE. IN
SUCH EVENT, ANY SUPPORT PROVIDED BY IBM IS SUBJECT TO THE DISCLAIMERS AND
EXCLUSIONS IN THIS SECTION 8.
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
support, which is beyond IBM's obligations in this Agreement. In any event, IBM
uses information about errors and problems to improve its products and
services, and assist with its provision of related support offerings. For these
purposes, IBM may use IBM entities and subcontractors (including in one or more
countries other than the one in which Licensee is located), and Licensee
authorizes IBM to do so.
Licensee remains responsible for 1) any data and the content of any database
Licensee makes available to IBM, 2) the selection and implementation of procedures
and controls regarding access, security, encryption, use, and transmission of
data (including any personally-identifiable data), and 3) backup and recovery
of any database and any stored data. Licensee will not send or provide IBM
access to any personally-identifiable information, whether in data or any other
form, and will be responsible for reasonable costs and other amounts that IBM
may incur relating to any such information mistakenly provided to IBM or the
loss or disclosure of such information by IBM, including those arising out of
any third party claims.
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), "ILAN 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 ILAN 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 ILAN Program Terms.
Upon reasonable notice, IBM may verify Licensee's compliance with ILAN Program
Terms at all sites and for all environments in which Licensee uses (for any
purpose) Programs subject to ILAN 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 ILAN 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;
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.
m. Both parties agree that all information exchanged is nonconfidential. If either
party requires the exchange of confidential information, it will be made under
a signed confidentiality 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 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 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, 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.
(3) In Indonesia:
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. Unless otherwise
required by applicable law without the possibility of contractual waiver or
limitation, i) neither party will bring a legal action, regardless of form,
arising out of or related to this Agreement or any transaction under it more
than two years after the cause of action arose; and ii) after such time limit,
any legal action arising out of this Agreement or any transaction under it and
all respective rights related to any such action lapse.
Disputes arising out of or in connection with this Agreement shall be finally
settled by arbitration that shall be held in Jakarta, Indonesia in accordance
with the rules of Board of the Indonesian National Board of Arbitration (Badan
Arbitrase Nasional Indonesia or "BANI") 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 chairman
of the BANI. 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 and/or Indonesian language.
EUROPE, MIDDLE EAST, AND AFRICA
(4) 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.
(5) 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.n:
n. For purposes of this Item 13.n, "Personal Data" refers to
information relating to an identified or identifiable individual made available
by one of the parties, its personnel or any other individual to the other in
connection with this Agreement. The following provisions apply in the event
that one party makes Personal Data available to the other:
(1) General
(a) Each party is responsible for complying with any obligations applying to it
under applicable Canadian data privacy laws and regulations
("Laws").
(b) Neither party will request Personal Data beyond what is necessary to
fulfill the purpose(s) for which it is requested. The purpose(s) for requesting
Personal Data must be reasonable. Each party will agree in advance as to the
type of Personal Data that is required to be made available.
(2) Security Safeguards
(a) Each party acknowledges that it is solely responsible for determining and
communicating to the other the appropriate technological, physical and
organizational security measures required to protect Personal Data.
(b) Each party will ensure that Personal Data is protected in accordance with
the security safeguards communicated and agreed to by the other.
(c) Each party will ensure that any third party to whom Personal Data is
transferred is bound by the applicable terms of this section.
(d) Additional or different services required to comply with the Laws will be
deemed a request for new services.
(3) Use
Each party agrees that Personal Data will only be used, accessed, managed,
transferred, disclosed to third parties or otherwise processed to fulfill the
purpose(s) for which it was made available.
(4) Access Requests
(a) Each party agrees to reasonably cooperate with the other in connection with
requests to access or amend Personal Data.
(b) Each party agrees to reimburse the other for any reasonable charges
incurred in providing each other assistance.
(c) Each party agrees to amend Personal Data only upon receiving instructions
to do so from the other party or its personnel.
(5) Retention
Each party will promptly return to the other or destroy all Personal Data that
is no longer necessary to fulfill the purpose(s) for which it was made
available, unless otherwise instructed by the other or its personnel or
required by law.
(6) Public Bodies Who Are Subject to Public Sector Privacy Legislation
For Licensees who are public bodies subject to public sector privacy
legislation, this Item 13.n applies only to Personal Data made available to
Licensee in connection with this Agreement, and the obligations in this section
apply only to Licensee, except that: 1) section (2)(a) applies only to IBM; 2)
sections (1)(a) and (4)(a) apply to both parties; and 3) section (4)(b) and the
last sentence in (1)(b) do not apply.
PERU
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 to 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 to 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.n:
n. 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. No Warranties
The following is added to the first paragraph of Section 8 (No
Warranties):
Although IBM specifies that there are no warranties, Licensee may have certain
rights under the Competition and Consumer Act 2010 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 Competition
and Consumer Act 2010, 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:
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 as Item 13.n:
n. 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. No Warranties
The following is added to the first paragraph of this Section 8 (No
Warranties):
Although IBM specifies that there are no warranties, Licensee may have certain
rights under the Consumer Guarantees Act 1993 or other legislation which cannot
be excluded or limited. The Consumer Guarantees Act 1993 will not apply in
respect of any goods which IBM provides, if Licensee requires the goods for the
purposes of a business as defined in that Act.
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:
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
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. No Warranties
The following is added to Section 8 (No Warranties):
In the European Union ("EU"), consumers have legal rights under
applicable national legislation governing the sale of consumer goods. Such
rights are not affected by the provisions set out in this Section 8 (No
Warranties).
EU MEMBER STATES AND THE COUNTRIES IDENTIFIED BELOW
Iceland, Liechtenstein, Norway, Switzerland, Turkey, and any other European
country that has enacted local data privacy or protection legislation similar
to the EU model.
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 Licensee and its contractors as legal entities (for example,
Licensee's revenue data and other transactional information)
(b) Business Contact Personnel - Licensee employees and contractors to whom the
Business Contact Information relates.
(c) Data Protection Authority - the authority established by the Data
Protection and Electronic Communications Legislation in the applicable country
or, for non-EU countries, the authority responsible for supervising the
protection of personal data in that country, or (for any of the foregoing) any
duly appointed successor entity thereto.
(d) Data Protection & Electronic Communications Legislation - (i) the
applicable local legislation and regulations in force implementing the
requirements of EU Directive 95/46/EC (on the protection of individuals with
regard to the processing of personal data and on the free movement of such
data) and of EU Directive 2002/58/EC (concerning the processing of personal
data and the protection of privacy in the electronic communications sector); or
(ii) for non-EU countries, the legislation and/or regulations passed in the
applicable country relating to the protection of personal data and the
regulation of electronic communications involving personal data, including (for
any of the foregoing) any statutory replacement or modification thereof.
(e) IBM Group - International Business Machines Corporation of Armonk, New
York, USA, its subsidiaries, and their respective Business Partners and
subcontractors.
(2) Licensee authorizes IBM:
(a) to process and use Business Contact Information within IBM Group in support
of Licensee including the provision of support services, and for the purpose of
furthering the business relationship between Licensee and IBM Group, including,
without limitation, contacting Business Contact Personnel (by email or
otherwise) and marketing IBM Group products and services (the "Specified
Purpose"); and
(b) to disclose Business Contact Information to other members of IBM Group in
pursuit of the Specified Purpose only.
(3) IBM agrees that all Business Contact Information will be processed in
accordance with the Data Protection & Electronic Communications Legislation
and will be used only for the Specified Purpose.
(4) To the extent required by the Data Protection & Electronic
Communications Legislation, Licensee represents that (a) it has obtained (or
will obtain) any consents from (and has issued (or will issue) any notices to)
the Business Contact Personnel as are necessary in order to enable IBM Group to
process and use the Business Contact Information for the Specified
Purpose.
(5) Licensee authorizes IBM to transfer Business Contact Information outside
the European Economic Area, provided that the transfer is made on contractual
terms approved by the Data Protection Authority or the transfer is otherwise
permitted under the Data Protection & Electronic Communications
Legislation.
AUSTRIA
8. No Warranties
In Austria (and Germany) the following replaces Section 8 (No Warranties) in
its entirety, including its title, if Licensee paid a charge to obtain the
Program.
8. Warranties and Exclusions
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. Licensee is 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, Licensee may return
the Program to the party from whom Licensee acquired it and receive a refund of
the amount Licensee paid. If Licensee down loaded the Program, Licensee may
contact the party from whom Licensee acquired it to obtain the refund.
This is IBM's sole obligation to Licensee, except as otherwise required by
applicable statutory law.
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. No Warranties
This Section 8 (No Warranties) is amended as specified for AUSTRIA.
10. Limitation of Liability
The following replaces this Section 10 (Limitation of Liability) in its
entirety:
a. IBM will be liable without limit for 1) loss or damage caused by a breach of
an express guarantee; 2) damages or losses resulting in bodily injury
(including death); and 3) damages caused intentionally or by gross
negligence.
b. In the event of loss, damage and frustrated expenditures caused by slight
negligence or in breach of essential contractual obligations, IBM will be
liable, regardless of the basis on which Licensee is entitled to claim damages
from IBM (including fundamental breach, negligence, misrepresentation, or other
contract or tort claim), per claim only up to 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:
g. Any claims resulting from this Agreement are subject to a limitation period
of three years, except as stated in Section 8 (No Warranties) of this
Agreement.
The following replaces the provisions of 13.i:
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. No Warranties
The following sentence is added to the second paragraph of this Section 8 (No
Warranties):
Except as expressly provided in these terms and conditions, or Section 12 of
the Sale of Goods Act 1893 as amended by the Sale of Goods and Supply of
Services Act, 1980 (the "1980 Act"), all conditions or warranties
(express or implied, statutory or otherwise) are hereby excluded including,
without limitation, any warranties implied by the Sale of Goods Act 1893 as
amended by the 1980 Act (including, for the avoidance of doubt, Section 39 of
the 1980 Act).
IRELAND AND UNITED KINGDOM
2. Agreement Structure
The following sentence is added:
Nothing in this paragraph shall have the effect of excluding or limiting
liability for fraud.
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.
Z125-5589-05 (07/2011)