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1 corsair 1.1 International License Agreement for Early Release of Programs
2    
3     Part 1 - General Terms
4    
5     BY DOWNLOADING, INSTALLING, COPYING, ACCESSING, OR USING THE PROGRAM YOU AGREE
6     TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ACCEPTING THESE TERMS ON BEHALF OF
7     ANOTHER PERSON OR A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT
8     THAT YOU HAVE FULL AUTHORITY TO BIND THAT PERSON, COMPANY, OR LEGAL ENTITY TO
9     THESE TERMS. IF YOU DO NOT AGREE TO THESE TERMS,
10    
11     - DO NOT DOWNLOAD, INSTALL, COPY, ACCESS, OR USE THE PROGRAM; AND
12    
13     - PROMPTLY RETURN THE PROGRAM TO THE PARTY FROM WHOM YOU ACQUIRED IT. IF YOU
14     DOWNLOADED THE PROGRAM, CONTACT THE PARTY FROM WHOM YOU ACQUIRED IT.
15    
16     "Early Release" means that the Program is not formally released or
17     commercially available. The term does not imply that the Program will be
18     formally released or made commercially available. IBM does not warrant that
19     should a Program be formally released or made commercially available that it
20     will be similar to, or compatible with, Early Release versions.
21    
22     "IBM" is International Business Machines Corporation or one of its
23     subsidiaries.
24    
25     "License Information" ("LI") is a document that provides information specific
26     to a Program. The Program's LI is available in a file in the Program's
27     directory, by the use of a system command, or as a booklet which accompanies
28     the Program. The LI may also be found at http://www.ibm.com/software/sla/ .
29    
30     "Program" is the following, including the original and all whole or partial
31     copies: 1) machine-readable instructions and data, 2) components, 3)
32     audio-visual content (such as images, text, recordings, or pictures), 4)
33     related licensed materials, and 5) license use documents or keys, and
34     documentation.
35    
36     "You" and "Your" refer either to an individual person or to a single legal
37     entity.
38    
39     This Agreement includes Part 1 - General Terms, Part 2 - Country-unique Terms
40     (if any), and License Information and is the complete agreement between You
41     and IBM regarding the use of the Program. It replaces any prior oral or
42     written communications between You and IBM concerning Your use of the Program.
43     The terms of Part 2 and License Information may replace or modify those of
44     Part 1.
45    
46     1. Entitlement
47    
48     License
49    
50     The Program is owned by IBM or an IBM supplier, and is copyrighted and
51     licensed, not sold.
52    
53     IBM grants You a nonexclusive license to use the Program when You lawfully
54     acquire it.
55    
56     You may 1) use the Program only for internal evaluation or testing purposes,
57     and 2) make and install a reasonable number of copies, including a backup
58     copy, of the Program to support such use. The terms of this license apply to
59     each copy You make. You will reproduce all copyright notices and all other
60     legends of ownership on each copy, or partial copy, of the Program.
61    
62     THE PROGRAM MAY CONTAIN A DISABLING DEVICE THAT WILL PREVENT IT FROM BEING
63     USED AFTER THE EVALUATION PERIOD ENDS. YOU WILL NOT TAMPER WITH THIS DISABLING
64     DEVICE OR THE PROGRAM. YOU SHOULD TAKE PRECAUTIONS TO AVOID ANY LOSS OF DATA
65     THAT MIGHT RESULT WHEN THE PROGRAM CAN NO LONGER BE USED.
66    
67     You will 1) maintain a record of all copies of the Program and 2) ensure that
68     anyone who uses the Program (accessed either locally or remotely) does so only
69     for Your authorized use and complies with the terms of this Agreement.
70    
71     You may not 1) use, copy, modify or distribute the Program except as provided
72     in this Agreement; 2) reverse assemble, reverse compile, or otherwise
73     translate the Program except as specifically permitted by law without the
74     possibility of contractual waiver; or 3) sublicense, rent, or lease the
75     Program.
76    
77     The evaluation period begins when You agree to the terms of this Agreement and
78     ends 1) as of the duration or date specified in the License Information, 2)
79     when the Program automatically disables itself, or 3) when IBM makes the
80     program commercially available. You will destroy the Program and all copies
81     made of it within ten days of the end of the evaluation period. There is no
82     charge for the use of Program for the duration of the evaluation period.
83    
84     IBM may terminate Your license if You fail to comply with the terms of this
85     Agreement. If IBM does so, You must destroy all copies of the Program.
86    
87     2. Rights In Data
88    
89     You assign to IBM all right, title, and interest (including ownership of
90     copyright) in any data, suggestions, and written materials that 1) is related
91     to Your use of the Program and 2) You provide to IBM. If IBM requires it, You
92     will sign an appropriate document to assign such rights. Neither party will
93     charge the other for rights in data or any work performed as a result of this
94     Agreement.
95    
96     3. No Warranty
97    
98     SUBJECT TO ANY STATUTORY WARRANTIES WHICH CANNOT BE EXCLUDED, IBM MAKES NO
99     WARRANTIES OR CONDITIONS EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED
100     TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A
101     PARTICULAR PURPOSE, AND NON-INFRINGEMENT, REGARDING THE PROGRAM OR TECHNICAL
102     SUPPORT, IF ANY.
103    
104     The exclusion also applies to any of IBM's Program developers and suppliers.
105    
106     Manufacturers, suppliers, or publishers of non-IBM Programs may provide their
107     own warranties.
108    
109     IBM does not provide technical support, unless IBM specifies otherwise.
110    
111     4. Limitation of Liability
112    
113     Circumstances may arise where, because of a default on IBM's part or other
114     liability, You are entitled to recover damages from IBM. In each such
115     instance, regardless of the basis on which You may be entitled to claim
116     damages from IBM, (including fundamental breach, negligence,
117     misrepresentation, or other contract or tort claim), IBM is liable for no more
118     than 1) damages for bodily injury (including death) and damage to real
119     property and tangible personal property and 2) the amount of any other actual
120     direct damages up to the charges for the Program that is the subject of the
121     claim.
122    
123     This limitation of liability also applies to IBM's Program developers and
124     suppliers. It is the maximum for which they and IBM are collectively
125     responsible.
126    
127     UNDER NO CIRCUMSTANCES IS IBM, ITS PROGRAM DEVELOPERS OR SUPPLIERS LIABLE FOR
128     ANY OF THE FOLLOWING, EVEN IF INFORMED OF THEIR POSSIBILITY:
129    
130     1. LOSS OF, OR DAMAGE TO, DATA;
131    
132     2. SPECIAL, INCIDENTAL, OR INDIRECT DAMAGES, OR FOR ANY ECONOMIC CONSEQUENTIAL
133     DAMAGES; OR
134    
135     3. LOST PROFITS, BUSINESS, REVENUE, GOODWILL, OR ANTICIPATED SAVINGS.
136    
137     SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR
138     CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO
139     YOU.
140    
141     5. General
142    
143     1. Nothing in this Agreement affects any statutory rights of consumers that
144     cannot be waived or limited by contract.
145    
146     2. In the event that any provision of this Agreement is held to be invalid or
147     unenforceable, the remaining provisions of this Agreement remain in full force
148     and effect.
149    
150     3. You may not export the Program.
151    
152     4. You agree to allow IBM to store and use Your contact information, including
153     names, phone numbers, and e-mail addresses, anywhere they do business. Such
154     information will be processed and used in connection with our business
155     relationship, and may be provided to contractors, Business Partners, and
156     assignees of IBM for uses consistent with their collective business
157     activities, including communicating with You (for example, for processing
158     orders, for promotions, and for market research).
159    
160     5. Neither You nor IBM will bring a legal action under this Agreement more
161     than two years after the cause of action arose unless otherwise provided by
162     local law without the possibility of contractual waiver or limitation.
163    
164     6. Neither You nor IBM is responsible for failure to fulfill any obligations
165     due to causes beyond its control.
166    
167     7. This Agreement will not create any right or cause of action for any third
168     party, nor will IBM be responsible for any third party claims against You
169     except, as permitted by the Limitation of Liability section above, for bodily
170     injury (including death) or damage to real or tangible personal property for
171     which IBM is legally liable.
172    
173     6. Governing Law, Jurisdiction, and Arbitration
174    
175     Governing Law
176    
177     Both You and IBM consent to the application of the laws of the country in
178     which You acquired the Program license to govern, interpret, and enforce all
179     of Your and IBM's rights, duties, and obligations arising from, or relating in
180     any manner to, the subject matter of this Agreement, without regard to
181     conflict of law principles.
182    
183     The United Nations Convention on Contracts for the International Sale of Goods
184     does not apply.
185    
186     Jurisdiction
187    
188     All of our rights, duties, and obligations are subject to the courts of the
189     country in which You acquired the Program license.
190    
191     Part 2 - Country-unique Terms
192    
193     AMERICAS
194    
195     ARGENTINA: Governing Law, Jurisdiction, and Arbitration (Section 6): The
196     following exception is added to this section:
197    
198     Any litigation arising from this Agreement will be settled exclusively by the
199     Ordinary Commercial Court of the city of Buenos Aires.
200    
201     BRAZIL: Governing Law, Jurisdiction, and Arbitration (Section 6): The
202     following exception is added to this section:
203    
204     Any litigation arising from this Agreement will be settled exclusively by the
205     court of Rio de Janeiro, RJ.
206    
207     CANADA: Limitation of Liability (Section 4): The following replaces item 1 in
208     the first paragraph of this section:
209    
210     1) damages for bodily injury (including death) and physical harm to real
211     property and tangible personal property caused by IBM's negligence; and
212    
213     General (Section 5): The following replaces the terms in item 7:
214    
215     7. This Agreement will not create any right or cause of action for any third
216     party, nor will IBM be responsible for any third party claims against You
217     except as permitted by the Limitation of Liability section above for bodily
218     injury (including death) or physical harm to real or tangible personal
219     property caused by IBM's negligence for which IBM is legally liable.
220    
221     Governing Law, Jurisdiction, and Arbitration (Section 6): The phrase "the laws
222     of the country in which You acquired the Program license" in the Governing Law
223     subsection is replaced by the following:
224    
225     the laws in the Province of Ontario
226    
227     PERU: Limitation of Liability (Section 4): The following is added at the end
228     of this section:
229    
230     In accordance with Article 1328 of the Peruvian Civil Code, the limitations
231     and exclusions specified in this section will not apply to damages caused by
232     IBM's willful misconduct ("dolo") or gross negligence ("culpa inexcusable").
233    
234     UNITED STATES OF AMERICA: General (Section 5): The following is added to this
235     section:
236    
237     U.S. Government Users Restricted Rights - Use, duplication or disclosure
238     restricted by the GSA ADP Schedule Contract with the IBM Corporation.
239    
240     Governing Law, Jurisdiction, and Arbitration (Section 6): The phrase "the laws
241     of the country in which You acquired the Program license" in the Governing Law
242     subsection is replaced by the following:
243    
244     the laws of the State of New York, United States of America
245    
246     ASIA PACIFIC
247    
248     AUSTRALIA: No Warranty (Section 3): The following is added:
249    
250     Although IBM specifies that there are no warranties, You may have certain
251     rights under the Trade Practices Act 1974 or other legislation and are only
252     limited to the extent permitted by the applicable legislation.
253    
254     Limitation of Liability (Section 4): The following is added:
255    
256     Where IBM is in breach of a condition or warranty implied by the Trade
257     Practices Act 1974, IBM's liability is limited to the repair or replacement of
258     the goods, or the supply of equivalent goods. Where that condition or warranty
259     relates to right to sell, quiet possession or clear title, or the goods are of
260     a kind ordinarily acquired for personal, domestic or household use or
261     consumption, then none of the limitations in this paragraph apply.
262    
263     Governing Law, Jurisdiction, and Arbitration (Section 6): The phrase "the laws
264     of the country in which You acquired the Program license" in the Governing Law
265     subsection is replaced by the following:
266    
267     the laws of the State or Territory in which You acquired the Program license
268    
269     CAMBODIA, LAOS, and VIETNAM: Governing Law, Jurisdiction, and Arbitration
270     (Section 6): The phrase "the laws of the country in which You acquired the
271     Program license" in the Governing Law subsection is replaced by the following:
272    
273     the laws of the State of New York, United States of America
274    
275     The following is added to this section:
276    
277     Arbitration
278    
279     Disputes arising out of or in connection with this Agreement shall be finally
280     settled by arbitration which shall be held in Singapore in accordance with the
281     Arbitration Rules of Singapore International Arbitration Center ("SIAC Rules")
282     then in effect. The arbitration award shall be final and binding for the
283     parties without appeal and shall be in writing and set forth the findings of
284     fact and the conclusions of law.
285    
286     The number of arbitrators shall be three, with each side to the dispute being
287     entitled to appoint one arbitrator. The two arbitrators appointed by the
288     parties shall appoint a third arbitrator who shall act as chairman of the
289     proceedings. Vacancies in the post of chairman shall be filled by the
290     president of the SIAC. Other vacancies shall be filled by the respective
291     nominating party. Proceedings shall continue from the stage they were at when
292     the vacancy occurred.
293    
294     If one of the parties refuses or otherwise fails to appoint an arbitrator
295     within 30 days of the date the other party appoints its, the first appointed
296     arbitrator shall be the sole arbitrator, provided that the arbitrator was
297     validly and properly appointed.
298    
299     All proceedings shall be conducted, including all documents presented in such
300     proceedings, in the English language. The English language version of this
301     Agreement prevails over any other language version.
302    
303     HONG KONG S.A.R. and MACAU S.A.R. of China: Governing Law, Jurisdiction, and
304     Arbitration (Section 6): The phrase "the laws of the country in which You
305     acquired the Program license" in the Governing Law subsection is replaced by
306     the following:
307    
308     the laws of Hong Kong Special Administrative Region of China
309    
310     INDIA: Limitation of Liability (Section 4): The following replaces the terms
311     of items 1 and 2 of the first paragraph:
312    
313     1) liability for bodily injury (including death) or damage to real property
314     and tangible personal property will be limited to that caused by IBM's
315     negligence; and 2) as to any other actual damage arising in any situation
316     involving nonperformance by IBM pursuant to, or in any way related to the
317     subject of this Agreement, IBM's liability will be limited to the charge paid
318     by You for the individual Program that is the subject of the claim.
319    
320     General (Section 5): The following replaces the terms of item 5:
321    
322     If no suit or other legal action is brought, within three years after the
323     cause of action arose, in respect of any claim that either party may have
324     against the other, the rights of the concerned party in respect of such claim
325     will be forfeited and the other party will stand released from its obligations
326     in respect of such claim.
327    
328     Governing Law, Jurisdiction, and Arbitration (Section 6): The following is
329     added to this section:
330    
331     Arbitration
332    
333     Disputes arising out of or in connection with this Agreement shall be finally
334     settled by arbitration which shall be held in Bangalore, India in accordance
335     with the laws of India then in effect. The arbitration award shall be final
336     and binding for the parties without appeal and shall be in writing and set
337     forth the findings of fact and the conclusions of law.
338    
339     The number of arbitrators shall be three, with each side to the dispute being
340     entitled to appoint one arbitrator. The two arbitrators appointed by the
341     parties shall appoint a third arbitrator who shall act as chairman of the
342     proceedings. Vacancies in the post of chairman shall be filled by the
343     president of the Bar Council of India. Other vacancies shall be filled by the
344     respective nominating party. Proceedings shall continue from the stage they
345     were at when the vacancy occurred.
346    
347     If one of the parties refuses or otherwise fails to appoint an arbitrator
348     within 30 days of the date the other party appoints its, the first appointed
349     arbitrator shall be the sole arbitrator, provided that the arbitrator was
350     validly and properly appointed.
351    
352     All proceedings shall be conducted, including all documents presented in such
353     proceedings, in the English language. The English language version of this
354     Agreement prevails over any other language version.
355    
356     JAPAN: General (Section 5): The following is inserted after item 5:
357    
358     Any doubts concerning this Agreement will be initially resolved between us in
359     good faith and in accordance with the principle of mutual trust.
360    
361     MALAYSIA: Limitation of Liability (Section 4): The word "SPECIAL" in item 2 of
362     the third paragraph is deleted:
363    
364     NEW ZEALAND: No Warranty (Section 3): The following is added:
365    
366     Although IBM specifies that there are no warranties, You may have certain
367     rights under the Consumer Guarantees Act 1993 or other legislation which
368     cannot be excluded or limited. The Consumer Guarantees Act 1993 will not apply
369     in respect of any goods which IBM provides, if You require the goods for the
370     purposes of a business as defined in that Act.
371    
372     Limitation of Liability (Section 4): The following is added:
373    
374     Where Programs are not acquired for the purposes of a business as defined in
375     the Consumer Guarantees Act 1993, the limitations in this Section are subject
376     to the limitations in that Act.
377    
378     PEOPLE'S REPUBLIC OF CHINA: Governing Law, Jurisdiction, and Arbitration
379     (Section 6): The phrase "the laws of the country in which You acquired the
380     Program license" in the Governing Law subsection is replaced by the following:
381    
382     the laws of the State of New York, United States of America (except when local
383     law requires otherwise)
384    
385     PHILIPPINES: Limitation of Liability (Section 4): The following replaces the
386     terms of item 2 of the third paragraph:
387    
388     2. special (including nominal and exemplary damages), moral, incidental, or
389     indirect damages or for any economic consequential damages; or
390    
391     Governing Law, Jurisdiction, and Arbitration (Section 6): The following is
392     added to this section:
393    
394     Arbitration
395    
396     Disputes arising out of or in connection with this Agreement shall be finally
397     settled by arbitration which shall be held in Metro Manila, Philippines in
398     accordance with the laws of the Philippines then in effect. The arbitration
399     award shall be final and binding for the parties without appeal and shall be
400     in writing and set forth the findings of fact and the conclusions of law.
401    
402     The number of arbitrators shall be three, with each side to the dispute being
403     entitled to appoint one arbitrator. The two arbitrators appointed by the
404     parties shall appoint a third arbitrator who shall act as chairman of the
405     proceedings. Vacancies in the post of chairman shall be filled by the
406     president of the Philippine Dispute Resolution Center, Inc. Other vacancies
407     shall be filled by the respective nominating party. Proceedings shall continue
408     from the stage they were at when the vacancy occurred.
409    
410     If one of the parties refuses or otherwise fails to appoint an arbitrator
411     within 30 days of the date the other party appoints its, the first appointed
412     arbitrator shall be the sole arbitrator, provided that the arbitrator was
413     validly and properly appointed.
414    
415     All proceedings shall be conducted, including all documents presented in such
416     proceedings, in the English language. The English language version of this
417     Agreement prevails over any other language version.
418    
419     SINGAPORE: Limitation of Liability (Section 4): The words "SPECIAL" and
420     "ECONOMIC" are deleted from item 2 of the third paragraph.
421    
422     General (Section 5): The following replaces the terms of item 7:
423    
424     Subject to the rights provided to IBM's suppliers and Program developers as
425     provided in Section 4 above (Limitation of Liability), a person who is not a
426     party to this Agreement shall have no right under the Contracts (Right of
427     Third Parties) Act to enforce any of its terms.
428    
429     EUROPE, MIDDLE EAST, AFRICA (EMEA)
430    
431     Rights in Data (Section 2): In EMEA, the following replaces the terms of this
432     section in their entirety:
433    
434     You assign to IBM all rights, title, and interest throughout the world
435     (including ownership of copyright) in any data, suggestions, and written
436     materials that 1) is related to Your use of the Program and 2) You provide to
437     IBM. Such assignment of rights includes, but is not limited to, assignment of
438     the rights to prepare and have prepared derivative works of the written
439     materials, and to use, have used, execute, reproduce, transmit, display,
440     perform, transfer, distribute and license the written materials and such
441     derivative works in any medium or distribution technology, and to grant others
442     some or all of the rights granted herein, for the duration of all such rights,
443     title and interest. If IBM requires it, You will sign an appropriate document
444     to assign such rights. Neither party will charge the other for rights in data
445     or any work performed as a result of this Agreement.
446    
447     No Warranty (Section 3): In the European Union, the following is added at the
448     beginning of this section:
449    
450     In the European Union, consumers have legal rights under applicable national
451     legislation governing the sale of consumer goods. Such rights are not affected
452     by the provisions of this Section 3.
453    
454     Limitation of Liability (Section 4): In Austria, Denmark, Finland, Greece,
455     Italy, Netherlands, Norway, Portugal, Spain, Sweden and Switzerland, the
456     following replaces the terms of this section in its entirety:
457    
458     Except as otherwise provided by mandatory law:
459    
460     1. IBM's liability for any damages and losses that may arise as a consequence
461     of the fulfillment of its obligations under or in connection with this
462     agreement or due to any other cause related to this agreement is limited to
463     the compensation of only those damages and losses proved and actually arising
464     as an immediate and direct consequence of the non-fulfillment of such
465     obligations (if IBM is at fault) or of such cause, for a maximum amount equal
466     to the charges You paid for the Program.
467    
468     The above limitation shall not apply to damages for bodily injuries (including
469     death) and damages to real property and tangible personal property for which
470     IBM is legally liable.
471    
472     2. UNDER NO CIRCUMSTANCES IS IBM, OR ANY OF ITS PROGRAM DEVELOPERS, LIABLE FOR
473     ANY OF THE FOLLOWING, EVEN IF INFORMED OF THEIR POSSIBILITY: 1) LOSS OF, OR
474     DAMAGE TO, DATA; 2) INCIDENTAL OR INDIRECT DAMAGES, OR FOR ANY ECONOMIC
475     CONSEQUENTIAL DAMAGES; 3) LOST PROFITS, EVEN IF THEY ARISE AS AN IMMEDIATE
476     CONSEQUENCE OF THE EVENT THAT GENERATED THE DAMAGES; OR 4) LOSS OF BUSINESS,
477     REVENUE, GOODWILL, OR ANTICIPATED SAVINGS.
478    
479     3. The limitation and exclusion of liability herein agreed applies not only to
480     the activities performed by IBM but also to the activities performed by its
481     suppliers and Program developers, and represents the maximum amount for which
482     IBM as well as its suppliers and Program developers, are collectively
483     responsible.
484    
485     Limitation of Liability (Section 4): In France and Belgium, the following
486     replaces the terms of this section in its entirety:
487    
488     Except as otherwise provided by mandatory law:
489    
490     1. IBM's liability for any damages and losses that may arise as a consequence
491     of the fulfillment of its obligations under or in connection with this
492     agreement is limited to the compensation of only those damages and losses
493     proved and actually arising as an immediate and direct consequence of the
494     non-fulfillment of such obligations (if IBM is at fault), for a maximum amount
495     equal to the charges You paid for the Program that has caused the damages.
496    
497     The above limitation shall not apply to damages for bodily injuries (including
498     death) and damages to real property and tangible personal property for which
499     IBM is legally liable.
500    
501     2. UNDER NO CIRCUMSTANCES IS IBM, OR ANY OF ITS PROGRAM DEVELOPERS, LIABLE FOR
502     ANY OF THE FOLLOWING, EVEN IF INFORMED OF THEIR POSSIBILITY: 1) LOSS OF, OR
503     DAMAGE TO, DATA; 2) INCIDENTAL OR INDIRECT DAMAGES, OR FOR ANY ECONOMIC
504     CONSEQUENTIAL DAMAGES; 3) LOST PROFITS, EVEN IF THEY ARISE AS AN IMMEDIATE
505     CONSEQUENCE OF THE EVENT THAT GENERATED THE DAMAGES; OR 4) LOSS OF BUSINESS,
506     REVENUE, GOODWILL, OR ANTICIPATED SAVINGS.
507    
508     3. The limitation and exclusion of liability herein agreed applies not only to
509     the activities performed by IBM but also to the activities performed by its
510     suppliers and Program developers, and represents the maximum amount for which
511     IBM as well as its suppliers and Program developers, are collectively
512     responsible.
513    
514     Governing Law, Jurisdiction, and Arbitration (Section 6)
515    
516     Governing Law
517    
518     The phrase "the laws of the country in which You acquired the Program license"
519     is replaced by:
520     1) "the laws of Austria" in Albania, Armenia, Azerbeijan, Belarus,
521     Bosnia-Herzegovina, Bulgaria, Croatia, Georgia, Hungary, Kazakhstan,
522     Kyrgyzstan, FYR Macedonia, Moldavia, Poland, Romania, Russia, Slovakia,
523     Slovenia, Tajikistan, Turkmenistan, Ukraine, Uzbekistan, and FR Yugoslavia;
524     2) "the laws of France" in Algeria, Benin, Burkina Faso, Cameroon, Cape Verde,
525     Central African Republic, Chad, Comoros, Congo Republic, Djibouti, Democratic
526     Republic of Congo, Equatorial Guinea, French Guiana, French Polynesia, Gabon,
527     Gambia, Guinea, Guinea-Bissau, Ivory Coast, Lebanon, Madagascar, Mali,
528     Mauritania, Mauritius, Mayotte, Morocco, New Caledonia, Niger, Reunion,
529     Senegal, Seychelles, Togo, Tunisia, Vanuatu, and Wallis & Futuna;
530     3) "the laws of Finland" in Estonia, Latvia, and Lithuania;
531     4) "the laws of England" in Angola, Bahrain, Botswana, Burundi, Egypt,
532     Eritrea, Ethiopia, Ghana, Jordan, Kenya, Kuwait, Liberia, Malawi, Malta,
533     Mozambique, Nigeria, Oman, Pakistan, Qatar, Rwanda, Sao Tome, Saudi Arabia,
534     Sierra Leone, Somalia, Tanzania, Uganda, United Arab Emirates, the United
535     Kingdom, West Bank/Gaza, Yemen, Zambia, and Zimbabwe; and
536     5) "the laws of South Africa" in South Africa, Namibia, Lesotho and Swaziland.
537    
538     Jurisdiction
539    
540     The following exceptions are added to this section:
541    
542     1) In Austria the choice of jurisdiction for all disputes arising out of this
543     Agreement and relating thereto, including its existence, will be the competent
544     court of law in Vienna, Austria (Inner-City);
545     2) in Angola, Bahrain, Botswana, Burundi, Egypt, Eritrea, Ethiopia, Ghana,
546     Jordan, Kenya, Kuwait, Liberia, Malawi, Malta, Mozambique, Nigeria, Oman,
547     Pakistan, Qatar, Rwanda, Sao Tome, Saudi Arabia, Sierra Leone, Somalia,
548     Tanzania, Uganda, United Arab Emirates, West Bank/Gaza, Yemen, Zambia, and
549     Zimbabwe all disputes arising out of this Agreement or related to its
550     execution, including summary proceedings, will be submitted to the exclusive
551     jurisdiction of the English courts;
552     3) in Belgium and Luxembourg all disputes arising out of this Agreement or
553     related to its interpretation or its execution, the law, and the courts of the
554     capital city, of the country of Your registered office and/or commercial site
555     location only are competent;
556     4) in France, Algeria, Benin, Burkina Faso, Cameroon, Cape Verde, Central
557     African Republic, Chad, Comoros, Congo Republic, Djibouti, Democratic Republic
558     of Congo, Equatorial Guinea, French Guiana, French Polynesia, Gabon, Gambia,
559     Guinea, Guinea-Bissau, Ivory Coast, Lebanon, Madagascar, Mali, Mauritania,
560     Mauritius, Mayotte, Morocco, New Caledonia, Niger, Reunion, Senegal,
561     Seychelles, Togo, Tunisia, Vanuatu, and Wallis & Futuna all disputes arising
562     out of this Agreement or related to its violation or execution, including
563     summary proceedings, will be settled exclusively by the Commercial Court of
564     Paris;
565     5) in Russia all disputes arising out of or in relation to the interpretation,
566     the violation, the termination, the nullity of the execution of this Agreement
567     shall be settled by Arbitration Court of Moscow;
568     6) in South Africa, Namibia, Lesotho and Swaziland both of us agree to submit
569     all disputes relating to this Agreement to the jurisdiction of the High Court
570     in Johannesburg;
571     7) in Turkey all disputes arising out of or in connection with this Agreement
572     shall be resolved by the Istanbul Central (Sultanahmet) Courts and Execution
573     Directorates of Istanbul, the Republic of Turkey;
574     8) in each of the following specified countries, any legal claim arising out
575     of this Agreement will be brought before, and settled exclusively by, the
576     competent court of a) Athens for Greece, b) Tel Aviv-Jaffa for Israel, c)
577     Milan for Italy, d) Lisbon for Portugal, and e) Madrid for Spain; and
578     9) in the United Kingdom both of us agree to submit all disputes relating to
579     this Agreement to the jurisdiction of the English courts.
580    
581     Arbitration
582    
583     In Albania, Armenia, Azerbeijan, Belarus, Bosnia-Herzegovina, Bulgaria,
584     Croatia, Georgia, Hungary, Kazakhstan, Kyrgyzstan, FYR Macedonia, Moldavia,
585     Poland, Romania, Russia, Slovakia, Slovenia, Tajikistan, Turkmenistan,
586     Ukraine, Uzbekistan, and FR Yugoslavia all disputes arising out of this
587     Agreement or related to its violation, termination or nullity will be finally
588     settled under the Rules of Arbitration and Conciliation of the International
589     Arbitral Center of the Federal Economic Chamber in Vienna (Vienna Rules) by
590     three arbitrators appointed in accordance with these rules.
591     The arbitration will be held in Vienna, Austria, and the official language of
592     the proceedings will be English. The decision of the arbitrators will be final
593     and binding upon both parties. Therefore, pursuant to paragraph 598 (2) of the
594     Austrian Code of Civil Procedure, the parties expressly waive the application
595     of paragraph 595 (1) figure 7 of the Code. IBM may, however, institute
596     proceedings in a competent court in the country of installation.
597    
598     In Estonia, Latvia and Lithuania all disputes arising in connection with this
599     Agreement will be finally settled in arbitration that will be held in
600     Helsinki, Finland in accordance with the arbitration laws of Finland then in
601     effect. Each party will appoint one arbitrator. The arbitrators will then
602     jointly appoint the chairman. If arbitrators cannot agree on the chairman,
603     then the Central Chamber of Commerce in Helsinki will appoint the chairman.
604    
605     AUSTRIA: General (Section 5): The following is added to item 4:
606    
607     For purposes of this clause, contact information will also include information
608     about You as a legal entity, for example revenue data and other transactional
609     information.
610    
611     GERMANY: Limitation of Liability (Section 4): The following paragraph is added
612     to this Section:
613    
614     The limitations and exclusions specified in this Section will not apply to
615     damages caused by IBM intentionally or by gross negligence.
616    
617     General (Section 5): The following replaces the terms of item 5:
618    
619     Any claims resulting from this Agreement are subject to a statute of
620     limitation of three years.
621    
622     HUNGARY: Limitation of Liability (Section 4): The following is added at the
623     end of this section:
624    
625     The limitation and exclusion specified herein shall not apply to liability for
626     a breach of contract damaging life, physical well-being, or health that has
627     been caused intentionally, by gross negligence, or by a criminal act.
628    
629     The parties accept the limitations of liability as valid provisions and state
630     that the Section 314.(2) of the Hungarian Civil Code applies as the
631     acquisition price as well as other advantages arising out of the present
632     Agreement balance this limitation of liability.
633    
634     IRELAND: No Warranty (Section 3): The following is added to this section:
635    
636     Except as expressly provided in these terms and conditions, or section 12 of
637     the Sale of Goods Act 1893 (as amended by the Sale of Goods and Supply of
638     Services Act 1980 ("the 1980 Act")), all conditions and warranties (express or
639     implied, statutory or otherwise) are hereby excluded including, without
640     limitation, any warranties implied by the Sale of Goods Act 1893 as amended by
641     the 1980 Act (including, for the avoidance of doubt, section 39 of the 1980
642     Act).
643    
644     Limitation of Liability (Section 4): The following replaces the terms of this
645     section in its entirety:
646    
647     For the purposes of this section, a "Default" means any act, statement,
648     omission, or negligence on the part of IBM in connection with, or in relation
649     to, the subject matter of an Agreement in respect of which IBM is legally
650     liable to You whether in contract or tort. A number of Defaults which together
651     result in, or contribute to, substantially the same loss or damage will be
652     treated as one Default occurring on the date of occurrence of the last such
653     Default.
654    
655     Circumstances may arise where, because of a Default, You are entitled to
656     recover damages from IBM. This section sets out the extent of IBM's liability
657     and Your sole remedy.
658    
659     1. IBM will accept unlimited liability for (a) death or personal injury caused
660     by the negligence of IBM, and (b) subject always to the Items for Which IBM is
661     Not Liable below, for physical damage to Your tangible property resulting from
662     the negligence of IBM.
663    
664     2. Except as provided in item 1 above, IBM's entire liability for actual
665     damages for any one Default will not in any event exceed the greater of 1) EUR
666     125,000, or 2) 125% of the amount You paid for the Program directly relating
667     to the Default. These limits also apply to any of IBM's suppliers and Program
668     developers. They state the maximum for which IBM and such suppliers and
669     Program developers are collectively responsible.
670    
671     Items for Which IBM is Not Liable
672    
673     Save with respect to any liability referred to in item 1 above, under no
674     circumstances is IBM or any of its suppliers or Program developers liable for
675     any of the following, even if IBM or they were informed of the possibility of
676     such losses:
677    
678     1. loss of, or damage to, data;
679    
680     2. special, indirect, or consequential loss; or
681    
682     3. loss of profits, business, revenue, goodwill, or anticipated savings.
683    
684     ITALY: General (Section 5): The following is added to this section:
685    
686     IBM and Customer (hereinafter, individually, "Party") shall comply with all
687     the obligations of the applicable provisions of law and/or regulation on
688     personal data protection. Each of the Parties will indemnify and keep the
689     other Party harmless from any damage, claim, cost or expense incurred by the
690     latter, directly and or indirectly, as a consequence of an infringement of the
691     other Party of the mentioned provisions of law and/or regulations.
692    
693     SLOVAKIA: Limitation of Liability (Section 4): The following is added to the
694     end of the last paragraph:
695    
696     The limitations apply to the extent they are not prohibited under §§ 373-386
697     of the Slovak Commercial Code.
698    
699     General (Section 5): The terms of item 5 are replaced with the following:
700    
701     THE PARTIES AGREE THAT, AS DEFINED BY APPLICABLE LOCAL LAW, ANY LEGAL OR OTHER
702     ACTION RELATED TO A BREACH OF THIS AGREEMENT MUST BE COMMENCED NO LATER THAN
703     FOUR YEARS FROM THE DATE ON WHICH THE CAUSE OF ACTION AROSE.
704    
705     SWITZERLAND: General (Section 5): The following is added to item 4:
706    
707     For purposes of this clause, contact information will also include information
708     about You as a legal entity, for example revenue data and other transactional
709     information.
710    
711     UNITED KINGDOM: No Warranty (Section 3): The following replaces the first
712     sentence in the first paragraph of this section:
713    
714     SUBJECT TO ANY STATUTORY WARRANTIES WHICH CANNOT BE EXCLUDED, IBM MAKES NO
715     WARRANTY OR CONDITION EITHER EXPRESS OR IMPLIED, INCLUDING (WITHOUT
716     LIMITATION) THE IMPLIED WARRANTIES OF SATISFACTORY QUALITY, FITNESS FOR A
717     PARTICULAR PURPOSE, AND NON-INFRINGEMENT, REGARDING THE PROGRAM.
718    
719     Limitation of Liability (Section 4): The following replaces the terms of this
720     section in its entirety:
721    
722     For the purposes of this section, a "Default" means any act, statement,
723     omission, or negligence on the part of IBM in connection with, or in relation
724     to, the subject matter of an Agreement in respect of which IBM is legally
725     liable to You, whether in contract or tort. A number of Defaults which
726     together result in, or contribute to, substantially the same loss or damage
727     will be treated as one Default.
728    
729     Circumstances may arise where, because of a Default, You are entitled to
730     recover damages from IBM. This section sets out the extent of IBM's liability
731     and Your sole remedy.
732    
733     1. IBM will accept unlimited liability for:
734    
735     a. death or personal injury caused by the negligence of IBM;
736    
737     b. any breach of its obligations implied by Section 12 of the Sale of Goods
738     Act 1979 or Section 2 of the Supply of Goods and Services Act 1982, or any
739     statutory modification or re-enactment of either such Section; and
740    
741     c. subject always to the Items for Which IBM is Not Liable below, for physical
742     damage to Your tangible property resulting from the negligence of IBM.
743    
744     2. IBM's entire liability for actual damages for any one Default will not in
745     any event, except as provided in item 1 above, exceed the greater of 1)
746     £75,000, or 2) 125% of the amount You paid for the Program directly relating
747     to the Default. These limits also apply to IBM's suppliers and Program
748     developers. They state the maximum for which IBM and such suppliers and
749     Program developers are collectively responsible.
750    
751     Items for Which IBM is Not Liable
752    
753     Save with respect to any liability referred to in item 1 above, under no
754     circumstances is IBM or any of its suppliers or Program developers liable for
755     any of the following, even if IBM or they were informed of the possibility of
756     such losses:
757    
758     1. loss of, or damage to, data;
759    
760     2. special, indirect, or consequential loss; or
761    
762     3. loss of profits, business, revenue, goodwill, or anticipated savings.
763    
764     Z125-5544-02 (11/2002)
765    
766     LICENSE INFORMATION
767    
768     The Programs listed below are licensed under the following terms and
769     conditions in addition to those of the International License Agreement for
770     Early Release of Programs.
771    
772     Program Name: alphaWorks Emerging Technology
773     Program Number: 100608
774    
775     Specified Operating Environment
776    
777     The Program's specifications and specified operating environment information
778     may be found in documentation accompanying the Program, if available, such as
779     a read-me file, or other information published by IBM, such as an announcement
780     letter.
781    
782     Evaluation Period
783    
784     The evaluation period begins on the date that you agree to the terms of this
785     Agreement and ends after 90 days.
786    
787    
788     D/N: L-APAL-5L22XX
789     P/N: L-APAL-5L22XX

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