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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
6 AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ACCEPTING THESE TERMS
7 ON BEHALF OF ANOTHER PERSON OR A COMPANY OR OTHER LEGAL ENTITY, YOU
8 REPRESENT AND WARRANT THAT YOU HAVE FULL AUTHORITY TO BIND THAT PERSON,
9 COMPANY, OR LEGAL ENTITY TO THESE TERMS. IF YOU DO NOT AGREE TO THESE
10 TERMS,
11
12 - DO NOT DOWNLOAD, INSTALL, COPY, ACCESS, OR USE THE PROGRAM; AND
13
14 - PROMPTLY RETURN THE PROGRAM TO THE PARTY FROM WHOM YOU ACQUIRED IT. IF
15 YOU DOWNLOADED THE PROGRAM, CONTACT THE PARTY FROM WHOM YOU ACQUIRED IT.
16
17 "Early Release" means that the Program is not formally released or
18 commercially available. The term does not imply that the Program will be
19 formally released or made commercially available. IBM does not warrant
20 that should a Program be formally released or made commercially
21 available that it will be similar to, or compatible with, Early Release
22 versions.
23
24 "IBM" is International Business Machines Corporation or one of its
25 subsidiaries.
26
27 "License Information" ("LI") is a document that provides information
28 specific to a Program. The Program's LI is available in a file in the
29 Program's directory, by the use of a system command, or as a booklet
30 which accompanies the Program. The LI may also be found at
31 http://www.ibm.com/software/sla/ .
32
33 "Program" is the following, including the original and all whole or
34 partial copies: 1) machine-readable instructions and data, 2)
35 components, 3) audio-visual content (such as images, text, recordings,
36 or pictures), 4) related licensed materials, and 5) license use
37 documents or keys, and documentation.
38
39 "You" and "Your" refer either to an individual person or to a single
40 legal entity.
41
42 This Agreement includes Part 1 - General Terms, Part 2 - Country-unique
43 Terms (if any), and License Information and is the complete agreement
44 between You and IBM regarding the use of the Program. It replaces any
45 prior oral or written communications between You and IBM concerning Your
46 use of the Program. The terms of Part 2 and License Information may
47 replace or modify those of Part 1.
48
49 1. Entitlement
50
51 License
52
53 The Program is owned by IBM or an IBM supplier, and is copyrighted and
54 licensed, not sold.
55
56 IBM grants You a nonexclusive license to use the Program when You
57 lawfully acquire it.
58
59 You may 1) use the Program only for internal evaluation or testing
60 purposes, and 2) make and install a reasonable number of copies,
61 including a backup copy, of the Program to support such use. The terms
62 of this license apply to each copy You make. You will reproduce all
63 copyright notices and all other legends of ownership on each copy, or
64 partial copy, of the Program.
65
66 THE PROGRAM MAY CONTAIN A DISABLING DEVICE THAT WILL PREVENT IT FROM
67 BEING USED AFTER THE EVALUATION PERIOD ENDS. YOU WILL NOT TAMPER WITH
68 THIS DISABLING DEVICE OR THE PROGRAM. YOU SHOULD TAKE PRECAUTIONS TO
69 AVOID ANY LOSS OF DATA THAT MIGHT RESULT WHEN THE PROGRAM CAN NO LONGER
70 BE USED.
71
72 You will 1) maintain a record of all copies of the Program and 2) ensure
73 that anyone who uses the Program (accessed either locally or remotely)
74 does so only for Your authorized use and complies with the terms of this
75 Agreement.
76
77 You may not 1) use, copy, modify or distribute the Program except as
78 provided in this Agreement; 2) reverse assemble, reverse compile, or
79 otherwise translate the Program except as specifically permitted by law
80 without the possibility of contractual waiver; or 3) sublicense, rent,
81 or lease the Program.
82
83 The evaluation period begins when You agree to the terms of this
84 Agreement and ends 1) as of the duration or date specified in the
85 License Information, 2) when the Program automatically disables itself,
86 or 3) when IBM makes the program commercially available. You will
87 destroy the Program and all copies made of it within ten days of the end
88 of the evaluation period. There is no charge for the use of Program for
89 the duration of the evaluation period.
90
91 IBM may terminate Your license if You fail to comply with the terms of
92 this Agreement. If IBM does so, You must destroy all copies of the Program.
93
94 2. Rights In Data
95
96 You assign to IBM all right, title, and interest (including ownership of
97 copyright) in any data, suggestions, and written materials that 1) is
98 related to Your use of the Program and 2) You provide to IBM. If IBM
99 requires it, You will sign an appropriate document to assign such
100 rights. Neither party will charge the other for rights in data or any
101 work performed as a result of this Agreement.
102
103 3. No Warranty
104
105 SUBJECT TO ANY STATUTORY WARRANTIES WHICH CANNOT BE EXCLUDED, IBM MAKES
106 NO WARRANTIES OR CONDITIONS EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT
107 LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY,
108 FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, REGARDING THE
109 PROGRAM OR TECHNICAL SUPPORT, IF ANY.
110
111 The exclusion also applies to any of IBM's Program developers and suppliers.
112
113 Manufacturers, suppliers, or publishers of non-IBM Programs may provide
114 their own warranties.
115
116 IBM does not provide technical support, unless IBM specifies otherwise.
117
118 4. Limitation of Liability
119
120 Circumstances may arise where, because of a default on IBM's part or
121 other liability, You are entitled to recover damages from IBM. In each
122 such instance, regardless of the basis on which You may be entitled to
123 claim damages from IBM, (including fundamental breach, negligence,
124 misrepresentation, or other contract or tort claim), IBM is liable for
125 no more than 1) damages for bodily injury (including death) and damage
126 to real property and tangible personal property and 2) the amount of any
127 other actual direct damages up to the charges for the Program that is
128 the subject of the claim.
129
130 This limitation of liability also applies to IBM's Program developers
131 and suppliers. It is the maximum for which they and IBM are collectively
132 responsible.
133
134 UNDER NO CIRCUMSTANCES IS IBM, ITS PROGRAM DEVELOPERS OR SUPPLIERS
135 LIABLE FOR ANY OF THE FOLLOWING, EVEN IF INFORMED OF THEIR POSSIBILITY:
136
137 1. LOSS OF, OR DAMAGE TO, DATA;
138
139 2. SPECIAL, INCIDENTAL, OR INDIRECT DAMAGES, OR FOR ANY ECONOMIC
140 CONSEQUENTIAL DAMAGES; OR
141
142 3. LOST PROFITS, BUSINESS, REVENUE, GOODWILL, OR ANTICIPATED SAVINGS.
143
144 SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF
145 INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR
146 EXCLUSION MAY NOT APPLY TO YOU.
147
148 5. General
149
150 1. Nothing in this Agreement affects any statutory rights of consumers
151 that cannot be waived or limited by contract.
152
153 2. In the event that any provision of this Agreement is held to be
154 invalid or unenforceable, the remaining provisions of this Agreement
155 remain in full force and effect.
156
157 3. You may not export the Program.
158
159 4. You agree to allow IBM to store and use Your contact information,
160 including names, phone numbers, and e-mail addresses, anywhere they do
161 business. Such information will be processed and used in connection with
162 our business relationship, and may be provided to contractors, Business
163 Partners, and assignees of IBM for uses consistent with their collective
164 business activities, including communicating with You (for example, for
165 processing orders, for promotions, and for market research).
166
167 5. Neither You nor IBM will bring a legal action under this Agreement
168 more than two years after the cause of action arose unless otherwise
169 provided by local law without the possibility of contractual waiver or
170 limitation.
171
172 6. Neither You nor IBM is responsible for failure to fulfill any
173 obligations due to causes beyond its control.
174
175 7. This Agreement will not create any right or cause of action for any
176 third party, nor will IBM be responsible for any third party claims
177 against You except, as permitted by the Limitation of Liability section
178 above, for bodily injury (including death) or damage to real or tangible
179 personal property for which IBM is legally liable.
180
181 6. Governing Law, Jurisdiction, and Arbitration
182
183 Governing Law
184
185 Both You and IBM consent to the application of the laws of the country
186 in which You acquired the Program license to govern, interpret, and
187 enforce all of Your and IBM's rights, duties, and obligations arising
188 from, or relating in any manner to, the subject matter of this
189 Agreement, without regard to conflict of law principles.
190
191 The United Nations Convention on Contracts for the International Sale of
192 Goods does not apply.
193
194 Jurisdiction
195
196 All of our rights, duties, and obligations are subject to the courts of
197 the country in which You acquired the Program license.
198
199 Part 2 - Country-unique Terms
200
201 AMERICAS
202
203 ARGENTINA: Governing Law, Jurisdiction, and Arbitration (Section 6): The
204 following exception is added to this section:
205
206 Any litigation arising from this Agreement will be settled exclusively
207 by the Ordinary Commercial Court of the city of Buenos Aires.
208
209 BRAZIL: Governing Law, Jurisdiction, and Arbitration (Section 6): The
210 following exception is added to this section:
211
212 Any litigation arising from this Agreement will be settled exclusively
213 by the court of Rio de Janeiro, RJ.
214
215 CANADA: Limitation of Liability (Section 4): The following replaces item
216 1 in the first paragraph of this section:
217
218 1) damages for bodily injury (including death) and physical harm to real
219 property and tangible personal property caused by IBM's negligence; and
220
221 General (Section 5): The following replaces the terms in item 7:
222
223 7. This Agreement will not create any right or cause of action for any
224 third party, nor will IBM be responsible for any third party claims
225 against You except as permitted by the Limitation of Liability section
226 above for bodily injury (including death) or physical harm to real or
227 tangible personal property caused by IBM's negligence for which IBM is
228 legally liable.
229
230 Governing Law, Jurisdiction, and Arbitration (Section 6): The phrase
231 "the laws of the country in which You acquired the Program license" in
232 the Governing Law subsection is replaced by the following:
233
234 the laws in the Province of Ontario
235
236 PERU: Limitation of Liability (Section 4): The following is added at the
237 end of this section:
238
239 In accordance with Article 1328 of the Peruvian Civil Code, the
240 limitations and exclusions specified in this section will not apply to
241 damages caused by IBM's willful misconduct ("dolo") or gross negligence
242 ("culpa inexcusable").
243
244 UNITED STATES OF AMERICA: General (Section 5): The following is added to
245 this section:
246
247 U.S. Government Users Restricted Rights - Use, duplication or disclosure
248 restricted by the GSA ADP Schedule Contract with the IBM Corporation.
249
250 Governing Law, Jurisdiction, and Arbitration (Section 6): The phrase
251 "the laws of the country in which You acquired the Program license" in
252 the Governing Law subsection is replaced by the following:
253
254 the laws of the State of New York, United States of America
255
256 ASIA PACIFIC
257
258 AUSTRALIA: No Warranty (Section 3): The following is added:
259
260 Although IBM specifies that there are no warranties, You may have
261 certain rights under the Trade Practices Act 1974 or other legislation
262 and are only limited to the extent permitted by the applicable legislation.
263
264 Limitation of Liability (Section 4): The following is added:
265
266 Where IBM is in breach of a condition or warranty implied by the Trade
267 Practices Act 1974, IBM's liability is limited to the repair or
268 replacement of the goods, or the supply of equivalent goods. Where that
269 condition or warranty relates to right to sell, quiet possession or
270 clear title, or the goods are of a kind ordinarily acquired for
271 personal, domestic or household use or consumption, then none of the
272 limitations in this paragraph apply.
273
274 Governing Law, Jurisdiction, and Arbitration (Section 6): The phrase
275 "the laws of the country in which You acquired the Program license" in
276 the Governing Law subsection is replaced by the following:
277
278 the laws of the State or Territory in which You acquired the Program license
279
280 CAMBODIA, LAOS, and VIETNAM: Governing Law, Jurisdiction, and
281 Arbitration (Section 6): The phrase "the laws of the country in which
282 You acquired the Program license" in the Governing Law subsection is
283 replaced by the following:
284
285 the laws of the State of New York, United States of America
286
287 The following is added to this section:
288
289 Arbitration
290
291 Disputes arising out of or in connection with this Agreement shall be
292 finally settled by arbitration which shall be held in Singapore in
293 accordance with the Arbitration Rules of Singapore International
294 Arbitration Center ("SIAC Rules") then in effect. The arbitration award
295 shall be final and binding for the parties without appeal and shall be
296 in writing and set forth the findings of fact and the conclusions of law.
297
298 The number of arbitrators shall be three, with each side to the dispute
299 being entitled to appoint one arbitrator. The two arbitrators appointed
300 by the parties shall appoint a third arbitrator who shall act as
301 chairman of the proceedings. Vacancies in the post of chairman shall be
302 filled by the president of the SIAC. Other vacancies shall be filled by
303 the respective nominating party. Proceedings shall continue from the
304 stage they were at when the vacancy occurred.
305
306 If one of the parties refuses or otherwise fails to appoint an
307 arbitrator within 30 days of the date the other party appoints its, the
308 first appointed arbitrator shall be the sole arbitrator, provided that
309 the arbitrator was validly and properly appointed.
310
311 All proceedings shall be conducted, including all documents presented in
312 such proceedings, in the English language. The English language version
313 of this Agreement prevails over any other language version.
314
315 HONG KONG S.A.R. and MACAU S.A.R. of China: Governing Law, Jurisdiction,
316 and Arbitration (Section 6): The phrase "the laws of the country in
317 which You acquired the Program license" in the Governing Law subsection
318 is replaced by the following:
319
320 the laws of Hong Kong Special Administrative Region of China
321
322 INDIA: Limitation of Liability (Section 4): The following replaces the
323 terms of items 1 and 2 of the first paragraph:
324
325 1) liability for bodily injury (including death) or damage to real
326 property and tangible personal property will be limited to that caused
327 by IBM's negligence; and 2) as to any other actual damage arising in any
328 situation involving nonperformance by IBM pursuant to, or in any way
329 related to the subject of this Agreement, IBM's liability will be
330 limited to the charge paid by You for the individual Program that is the
331 subject of the claim.
332
333 General (Section 5): The following replaces the terms of item 5:
334
335 If no suit or other legal action is brought, within three years after
336 the cause of action arose, in respect of any claim that either party may
337 have against the other, the rights of the concerned party in respect of
338 such claim will be forfeited and the other party will stand released
339 from its obligations in respect of such claim.
340
341 Governing Law, Jurisdiction, and Arbitration (Section 6): The following
342 is added to this section:
343
344 Arbitration
345
346 Disputes arising out of or in connection with this Agreement shall be
347 finally settled by arbitration which shall be held in Bangalore, India
348 in accordance with the laws of India then in effect. The arbitration
349 award shall be final and binding for the parties without appeal and
350 shall be in writing and set forth the findings of fact and the
351 conclusions of law.
352
353 The number of arbitrators shall be three, with each side to the dispute
354 being entitled to appoint one arbitrator. The two arbitrators appointed
355 by the parties shall appoint a third arbitrator who shall act as
356 chairman of the proceedings. Vacancies in the post of chairman shall be
357 filled by the president of the Bar Council of India. Other vacancies
358 shall be filled by the respective nominating party. Proceedings shall
359 continue from the stage they were at when the vacancy occurred.
360
361 If one of the parties refuses or otherwise fails to appoint an
362 arbitrator within 30 days of the date the other party appoints its, the
363 first appointed arbitrator shall be the sole arbitrator, provided that
364 the arbitrator was validly and properly appointed.
365
366 All proceedings shall be conducted, including all documents presented in
367 such proceedings, in the English language. The English language version
368 of this Agreement prevails over any other language version.
369
370 JAPAN: General (Section 5): The following is inserted after item 5:
371
372 Any doubts concerning this Agreement will be initially resolved between
373 us in good faith and in accordance with the principle of mutual trust.
374
375 MALAYSIA: Limitation of Liability (Section 4): The word "SPECIAL" in
376 item 2 of the third paragraph is deleted:
377
378 NEW ZEALAND: No Warranty (Section 3): The following is added:
379
380 Although IBM specifies that there are no warranties, You may have
381 certain rights under the Consumer Guarantees Act 1993 or other
382 legislation which cannot be excluded or limited. The Consumer Guarantees
383 Act 1993 will not apply in respect of any goods which IBM provides, if
384 You require the goods for the purposes of a business as defined in that Act.
385
386 Limitation of Liability (Section 4): The following is added:
387
388 Where Programs are not acquired for the purposes of a business as
389 defined in the Consumer Guarantees Act 1993, the limitations in this
390 Section are subject to the limitations in that Act.
391
392 PEOPLE'S REPUBLIC OF CHINA: Governing Law, Jurisdiction, and Arbitration
393 (Section 6): The phrase "the laws of the country in which You acquired
394 the Program license" in the Governing Law subsection is replaced by the
395 following:
396
397 the laws of the State of New York, United States of America (except when
398 local law requires otherwise)
399
400 PHILIPPINES: Limitation of Liability (Section 4): The following replaces
401 the terms of item 2 of the third paragraph:
402
403 2. special (including nominal and exemplary damages), moral, incidental,
404 or indirect damages or for any economic consequential damages; or
405
406 Governing Law, Jurisdiction, and Arbitration (Section 6): The following
407 is added to this section:
408
409 Arbitration
410
411 Disputes arising out of or in connection with this Agreement shall be
412 finally settled by arbitration which shall be held in Metro Manila,
413 Philippines in accordance with the laws of the Philippines then in
414 effect. The arbitration award shall be final and binding for the parties
415 without appeal and shall be in writing and set forth the findings of
416 fact and the conclusions of law.
417
418 The number of arbitrators shall be three, with each side to the dispute
419 being entitled to appoint one arbitrator. The two arbitrators appointed
420 by the parties shall appoint a third arbitrator who shall act as
421 chairman of the proceedings. Vacancies in the post of chairman shall be
422 filled by the president of the Philippine Dispute Resolution Center,
423 Inc. Other vacancies shall be filled by the respective nominating party.
424 Proceedings shall continue from the stage they were at when the vacancy
425 occurred.
426
427 If one of the parties refuses or otherwise fails to appoint an
428 arbitrator within 30 days of the date the other party appoints its, the
429 first appointed arbitrator shall be the sole arbitrator, provided that
430 the arbitrator was validly and properly appointed.
431
432 All proceedings shall be conducted, including all documents presented in
433 such proceedings, in the English language. The English language version
434 of this Agreement prevails over any other language version.
435
436 SINGAPORE: Limitation of Liability (Section 4): The words "SPECIAL" and
437 "ECONOMIC" are deleted from item 2 of the third paragraph.
438
439 General (Section 5): The following replaces the terms of item 7:
440
441 Subject to the rights provided to IBM's suppliers and Program developers
442 as provided in Section 4 above (Limitation of Liability), a person who
443 is not a party to this Agreement shall have no right under the Contracts
444 (Right of Third Parties) Act to enforce any of its terms.
445
446 EUROPE, MIDDLE EAST, AFRICA (EMEA)
447
448 Rights in Data (Section 2): In EMEA, the following replaces the terms of
449 this section in their entirety:
450
451 You assign to IBM all rights, title, and interest throughout the world
452 (including ownership of copyright) in any data, suggestions, and written
453 materials that 1) is related to Your use of the Program and 2) You
454 provide to IBM. Such assignment of rights includes, but is not limited
455 to, assignment of the rights to prepare and have prepared derivative
456 works of the written materials, and to use, have used, execute,
457 reproduce, transmit, display, perform, transfer, distribute and license
458 the written materials and such derivative works in any medium or
459 distribution technology, and to grant others some or all of the rights
460 granted herein, for the duration of all such rights, title and interest.
461 If IBM requires it, You will sign an appropriate document to assign such
462 rights. Neither party will charge the other for rights in data or any
463 work performed as a result of this Agreement.
464
465 No Warranty (Section 3): In the European Union, the following is added
466 at the beginning of this section:
467
468 In the European Union, consumers have legal rights under applicable
469 national legislation governing the sale of consumer goods. Such rights
470 are not affected by the provisions of this Section 3.
471
472 Limitation of Liability (Section 4): In Austria, Denmark, Finland,
473 Greece, Italy, Netherlands, Norway, Portugal, Spain, Sweden and
474 Switzerland, the following replaces the terms of this section in its
475 entirety:
476
477 Except as otherwise provided by mandatory law:
478
479 1. IBM's liability for any damages and losses that may arise as a
480 consequence of the fulfillment of its obligations under or in connection
481 with this agreement or due to any other cause related to this agreement
482 is limited to the compensation of only those damages and losses proved
483 and actually arising as an immediate and direct consequence of the
484 non-fulfillment of such obligations (if IBM is at fault) or of such
485 cause, for a maximum amount equal to the charges You paid for the Program.
486
487 The above limitation shall not apply to damages for bodily injuries
488 (including death) and damages to real property and tangible personal
489 property for which IBM is legally liable.
490
491 2. UNDER NO CIRCUMSTANCES IS IBM, OR ANY OF ITS PROGRAM DEVELOPERS,
492 LIABLE FOR ANY OF THE FOLLOWING, EVEN IF INFORMED OF THEIR POSSIBILITY:
493 1) LOSS OF, OR DAMAGE TO, DATA; 2) INCIDENTAL OR INDIRECT DAMAGES, OR
494 FOR ANY ECONOMIC CONSEQUENTIAL DAMAGES; 3) LOST PROFITS, EVEN IF THEY
495 ARISE AS AN IMMEDIATE CONSEQUENCE OF THE EVENT THAT GENERATED THE
496 DAMAGES; OR 4) LOSS OF BUSINESS, REVENUE, GOODWILL, OR ANTICIPATED SAVINGS.
497
498 3. The limitation and exclusion of liability herein agreed applies not
499 only to the activities performed by IBM but also to the activities
500 performed by its suppliers and Program developers, and represents the
501 maximum amount for which IBM as well as its suppliers and Program
502 developers, are collectively responsible.
503
504 Limitation of Liability (Section 4): In France and Belgium, the
505 following replaces the terms of this section in its entirety:
506
507 Except as otherwise provided by mandatory law:
508
509 1. IBM's liability for any damages and losses that may arise as a
510 consequence of the fulfillment of its obligations under or in connection
511 with this agreement is limited to the compensation of only those damages
512 and losses proved and actually arising as an immediate and direct
513 consequence of the non- fulfillment of such obligations (if IBM is at
514 fault), for a maximum amount equal to the charges You paid for the
515 Program that has caused the damages.
516
517 The above limitation shall not apply to damages for bodily injuries
518 (including death) and damages to real property and tangible personal
519 property for which IBM is legally liable.
520
521 2. UNDER NO CIRCUMSTANCES IS IBM, OR ANY OF ITS PROGRAM DEVELOPERS,
522 LIABLE FOR ANY OF THE FOLLOWING, EVEN IF INFORMED OF THEIR POSSIBILITY:
523 1) LOSS OF, OR DAMAGE TO, DATA; 2) INCIDENTAL OR INDIRECT DAMAGES, OR
524 FOR ANY ECONOMIC CONSEQUENTIAL DAMAGES; 3) LOST PROFITS, EVEN IF THEY
525 ARISE AS AN IMMEDIATE CONSEQUENCE OF THE EVENT THAT GENERATED THE
526 DAMAGES; OR 4) LOSS OF BUSINESS, REVENUE, GOODWILL, OR ANTICIPATED SAVINGS.
527
528 3. The limitation and exclusion of liability herein agreed applies not
529 only to the activities performed by IBM but also to the activities
530 performed by its suppliers and Program developers, and represents the
531 maximum amount for which IBM as well as its suppliers and Program
532 developers, are collectively responsible.
533
534 Governing Law, Jurisdiction, and Arbitration (Section 6)
535
536 Governing Law
537
538 The phrase "the laws of the country in which You acquired the Program
539 license" is replaced by:
540 1) "the laws of Austria" in Albania, Armenia, Azerbeijan, Belarus,
541 Bosnia-Herzegovina, Bulgaria, Croatia, Georgia, Hungary, Kazakhstan,
542 Kyrgyzstan, FYR Macedonia, Moldavia, Poland, Romania, Russia, Slovakia,
543 Slovenia, Tajikistan, Turkmenistan, Ukraine, Uzbekistan, and FR Yugoslavia;
544 2) "the laws of France" in Algeria, Benin, Burkina Faso, Cameroon, Cape
545 Verde, Central African Republic, Chad, Comoros, Congo Republic,
546 Djibouti, Democratic Republic of Congo, Equatorial Guinea, French
547 Guiana, French Polynesia, Gabon, Gambia, Guinea, Guinea- Bissau, Ivory
548 Coast, Lebanon, Madagascar, Mali, Mauritania, Mauritius, Mayotte,
549 Morocco, New Caledonia, Niger, Reunion, Senegal, Seychelles, Togo,
550 Tunisia, Vanuatu, and Wallis & Futuna;
551 3) "the laws of Finland" in Estonia, Latvia, and Lithuania;
552 4) "the laws of England" in Angola, Bahrain, Botswana, Burundi, Egypt,
553 Eritrea, Ethiopia, Ghana, Jordan, Kenya, Kuwait, Liberia, Malawi, Malta,
554 Mozambique, Nigeria, Oman, Pakistan, Qatar, Rwanda, Sao Tome, Saudi
555 Arabia, Sierra Leone, Somalia, Tanzania, Uganda, United Arab Emirates,
556 the United Kingdom, West Bank/Gaza, Yemen, Zambia, and Zimbabwe; and
557 5) "the laws of South Africa" in South Africa, Namibia, Lesotho and
558 Swaziland.
559
560 Jurisdiction
561
562 The following exceptions are added to this section:
563
564 1) In Austria the choice of jurisdiction for all disputes arising out of
565 this Agreement and relating thereto, including its existence, will be
566 the competent court of law in Vienna, Austria (Inner-City);
567 2) in Angola, Bahrain, Botswana, Burundi, Egypt, Eritrea, Ethiopia,
568 Ghana, Jordan, Kenya, Kuwait, Liberia, Malawi, Malta, Mozambique,
569 Nigeria, Oman, Pakistan, Qatar, Rwanda, Sao Tome, Saudi Arabia, Sierra
570 Leone, Somalia, Tanzania, Uganda, United Arab Emirates, West Bank/Gaza,
571 Yemen, Zambia, and Zimbabwe all disputes arising out of this Agreement
572 or related to its execution, including summary proceedings, will be
573 submitted to the exclusive jurisdiction of the English courts;
574 3) in Belgium and Luxembourg all disputes arising out of this Agreement
575 or related to its interpretation or its execution, the law, and the
576 courts of the capital city, of the country of Your registered office
577 and/or commercial site location only are competent;
578 4) in France, Algeria, Benin, Burkina Faso, Cameroon, Cape Verde,
579 Central African Republic, Chad, Comoros, Congo Republic, Djibouti,
580 Democratic Republic of Congo, Equatorial Guinea, French Guiana, French
581 Polynesia, Gabon, Gambia, Guinea, Guinea-Bissau, Ivory Coast, Lebanon,
582 Madagascar, Mali, Mauritania, Mauritius, Mayotte, Morocco, New
583 Caledonia, Niger, Reunion, Senegal, Seychelles, Togo, Tunisia, Vanuatu,
584 and Wallis & Futuna all disputes arising out of this Agreement or
585 related to its violation or execution, including summary proceedings,
586 will be settled exclusively by the Commercial Court of Paris;
587 5) in Russia all disputes arising out of or in relation to the
588 interpretation, the violation, the termination, the nullity of the
589 execution of this Agreement shall be settled by Arbitration Court of
590 Moscow;
591 6) in South Africa, Namibia, Lesotho and Swaziland both of us agree to
592 submit all disputes relating to this Agreement to the jurisdiction of
593 the High Court in Johannesburg;
594 7) in Turkey all disputes arising out of or in connection with this
595 Agreement shall be resolved by the Istanbul Central (Sultanahmet) Courts
596 and Execution Directorates of Istanbul, the Republic of Turkey;
597 8) in each of the following specified countries, any legal claim arising
598 out of this Agreement will be brought before, and settled exclusively
599 by, the competent court of a) Athens for Greece, b) Tel Aviv-Jaffa for
600 Israel, c) Milan for Italy, d) Lisbon for Portugal, and e) Madrid for
601 Spain; and
602 9) in the United Kingdom both of us agree to submit all disputes
603 relating to this Agreement to the jurisdiction of the English courts.
604
605 Arbitration
606
607 In Albania, Armenia, Azerbeijan, Belarus, Bosnia- Herzegovina, Bulgaria,
608 Croatia, Georgia, Hungary, Kazakhstan, Kyrgyzstan, FYR Macedonia,
609 Moldavia, Poland, Romania, Russia, Slovakia, Slovenia, Tajikistan,
610 Turkmenistan, Ukraine, Uzbekistan, and FR Yugoslavia all disputes
611 arising out of this Agreement or related to its violation, termination
612 or nullity will be finally settled under the Rules of Arbitration and
613 Conciliation of the International Arbitral Center of the Federal
614 Economic Chamber in Vienna (Vienna Rules) by three arbitrators appointed
615 in accordance with these rules.
616 The arbitration will be held in Vienna, Austria, and the official
617 language of the proceedings will be English. The decision of the
618 arbitrators will be final and binding upon both parties. Therefore,
619 pursuant to paragraph 598 (2) of the Austrian Code of Civil Procedure,
620 the parties expressly waive the application of paragraph 595 (1) figure
621 7 of the Code. IBM may, however, institute proceedings in a competent
622 court in the country of installation.
623
624 In Estonia, Latvia and Lithuania all disputes arising in connection with
625 this Agreement will be finally settled in arbitration that will be held
626 in Helsinki, Finland in accordance with the arbitration laws of Finland
627 then in effect. Each party will appoint one arbitrator. The arbitrators
628 will then jointly appoint the chairman. If arbitrators cannot agree on
629 the chairman, then the Central Chamber of Commerce in Helsinki will
630 appoint the chairman.
631
632 AUSTRIA: General (Section 5): The following is added to item 4:
633
634 For purposes of this clause, contact information will also include
635 information about You as a legal entity, for example revenue data and
636 other transactional information.
637
638 GERMANY: Limitation of Liability (Section 4): The following paragraph is
639 added to this Section:
640
641 The limitations and exclusions specified in this Section will not apply
642 to damages caused by IBM intentionally or by gross negligence.
643
644 General (Section 5): The following replaces the terms of item 5:
645
646 Any claims resulting from this Agreement are subject to a statute of
647 limitation of three years.
648
649 HUNGARY: Limitation of Liability (Section 4): The following is added at
650 the end of this section:
651
652 The limitation and exclusion specified herein shall not apply to
653 liability for a breach of contract damaging life, physical well-being,
654 or health that has been caused intentionally, by gross negligence, or by
655 a criminal act.
656
657 The parties accept the limitations of liability as valid provisions and
658 state that the Section 314.(2) of the Hungarian Civil Code applies as
659 the acquisition price as well as other advantages arising out of the
660 present Agreement balance this limitation of liability.
661
662 IRELAND: No Warranty (Section 3): The following is added to this section:
663
664 Except as expressly provided in these terms and conditions, or section
665 12 of the Sale of Goods Act 1893 (as amended by the Sale of Goods and
666 Supply of Services Act 1980 ("the 1980 Act")), all conditions and
667 warranties (express or implied, statutory or otherwise) are hereby
668 excluded including, without limitation, any warranties implied by the
669 Sale of Goods Act 1893 as amended by the 1980 Act (including, for the
670 avoidance of doubt, section 39 of the 1980 Act).
671
672 Limitation of Liability (Section 4): The following replaces the terms of
673 this section in its entirety:
674
675 For the purposes of this section, a "Default" means any act, statement,
676 omission, or negligence on the part of IBM in connection with, or in
677 relation to, the subject matter of an Agreement in respect of which IBM
678 is legally liable to You whether in contract or tort. A number of
679 Defaults which together result in, or contribute to, substantially the
680 same loss or damage will be treated as one Default occurring on the date
681 of occurrence of the last such Default.
682
683 Circumstances may arise where, because of a Default, You are entitled to
684 recover damages from IBM. This section sets out the extent of IBM's
685 liability and Your sole remedy.
686
687 1. IBM will accept unlimited liability for (a) death or personal injury
688 caused by the negligence of IBM, and (b) subject always to the Items for
689 Which IBM is Not Liable below, for physical damage to Your tangible
690 property resulting from the negligence of IBM.
691
692 2. Except as provided in item 1 above, IBM's entire liability for actual
693 damages for any one Default will not in any event exceed the greater of
694 1) EUR 125,000, or 2) 125% of the amount You paid for the Program
695 directly relating to the Default. These limits also apply to any of
696 IBM's suppliers and Program developers. They state the maximum for which
697 IBM and such suppliers and Program developers are collectively responsible.
698
699 Items for Which IBM is Not Liable
700
701 Save with respect to any liability referred to in item 1 above, under no
702 circumstances is IBM or any of its suppliers or Program developers
703 liable for any of the following, even if IBM or they were informed of
704 the possibility of such losses:
705
706 1. loss of, or damage to, data;
707
708 2. special, indirect, or consequential loss; or
709
710 3. loss of profits, business, revenue, goodwill, or anticipated savings.
711
712 ITALY: General (Section 5): The following is added to this section:
713
714 IBM and Customer (hereinafter, individually, "Party") shall comply with
715 all the obligations of the applicable provisions of law and/or
716 regulation on personal data protection. Each of the Parties will
717 indemnify and keep the other Party harmless from any damage, claim, cost
718 or expense incurred by the latter, directly and or indirectly, as a
719 consequence of an infringement of the other Party of the mentioned
720 provisions of law and/or regulations.
721
722 SLOVAKIA: Limitation of Liability (Section 4): The following is added to
723 the end of the last paragraph:
724
725 The limitations apply to the extent they are not prohibited under §§
726 373-386 of the Slovak Commercial Code.
727
728 General (Section 5): The terms of item 5 are replaced with the following:
729
730 THE PARTIES AGREE THAT, AS DEFINED BY APPLICABLE LOCAL LAW, ANY LEGAL OR
731 OTHER ACTION RELATED TO A BREACH OF THIS AGREEMENT MUST BE COMMENCED NO
732 LATER THAN FOUR YEARS FROM THE DATE ON WHICH THE CAUSE OF ACTION AROSE.
733
734 SWITZERLAND: General (Section 5): The following is added to item 4:
735
736 For purposes of this clause, contact information will also include
737 information about You as a legal entity, for example revenue data and
738 other transactional information.
739
740 UNITED KINGDOM: No Warranty (Section 3): The following replaces the
741 first sentence in the first paragraph of this section:
742
743 SUBJECT TO ANY STATUTORY WARRANTIES WHICH CANNOT BE EXCLUDED, IBM MAKES
744 NO WARRANTY OR CONDITION EITHER EXPRESS OR IMPLIED, INCLUDING (WITHOUT
745 LIMITATION) THE IMPLIED WARRANTIES OF SATISFACTORY QUALITY, FITNESS FOR
746 A PARTICULAR PURPOSE, AND NON- INFRINGEMENT, REGARDING THE PROGRAM.
747
748 Limitation of Liability (Section 4): The following replaces the terms of
749 this section in its entirety:
750
751 For the purposes of this section, a "Default" means any act, statement,
752 omission, or negligence on the part of IBM in connection with, or in
753 relation to, the subject matter of an Agreement in respect of which IBM
754 is legally liable to You, whether in contract or tort. A number of
755 Defaults which together result in, or contribute to, substantially the
756 same loss or damage will be treated as one Default.
757
758 Circumstances may arise where, because of a Default, You are entitled to
759 recover damages from IBM. This section sets out the extent of IBM's
760 liability and Your sole remedy.
761
762 1. IBM will accept unlimited liability for:
763
764 a. death or personal injury caused by the negligence of IBM;
765
766 b. any breach of its obligations implied by Section 12 of the Sale of
767 Goods Act 1979 or Section 2 of the Supply of Goods and Services Act
768 1982, or any statutory modification or re- enactment of either such
769 Section; and
770
771 c. subject always to the Items for Which IBM is Not Liable below, for
772 physical damage to Your tangible property resulting from the negligence
773 of IBM.
774
775 2. IBM's entire liability for actual damages for any one Default will
776 not in any event, except as provided in item 1 above, exceed the greater
777 of 1) £75,000, or 2) 125% of the amount You paid for the Program
778 directly relating to the Default. These limits also apply to IBM's
779 suppliers and Program developers. They state the maximum for which IBM
780 and such suppliers and Program developers are collectively responsible.
781
782 Items for Which IBM is Not Liable
783
784 Save with respect to any liability referred to in item 1 above, under no
785 circumstances is IBM or any of its suppliers or Program developers
786 liable for any of the following, even if IBM or they were informed of
787 the possibility of such losses:
788
789 1. loss of, or damage to, data;
790
791 2. special, indirect, or consequential loss; or
792
793 3. loss of profits, business, revenue, goodwill, or anticipated savings.
794
795 Z125-5544-02 (11/2002)
796 LICENSE INFORMATION
797
798 The Programs listed below are licensed under the following terms and
799 conditions in addition to those of the International License Agreement
800 for Early Release of Programs.
801
802 Program Name: IBM(R) SDK, Java(TM) 2 Technology Edition, Version 5.0
803 Early Access Release
804 Program Number: 6205-001
805
806 Specified Operating Environment
807
808 The Program's specifications and specified operating environment
809 information may be found in documentation accompanying the Program, if
810 available, such as a read-me file, or other information published by
811 IBM, such as an announcement letter.
812
813 Evaluation Period
814
815 The evaluation period begins on the date that You agree to the terms of
816 this Agreement and ends after 90 days.
817
818 Program-unique Terms
819
820 1. GENERAL
821
822 a) To the extent of any conflict between the terms of the International
823 License Agreement for Early Release of Programs and this License
824 Information, the terms of this License Information shall prevail.
825
826 b) Where the Program has been provided to you separately by IBM, it is
827 provided at no charge.
828
829 c) The Program consists of binary code that executes on the operating
830 system(s) specified in Readme files that accompany the Program.
831
832 d) You are not authorized to use the Program or any component thereof
833 for executing any production workload.
834
835 e) No right is granted to you under this license to redistribute any
836 part of the Program.
837
838 f) In the event of any defect in the Program being reported by you to
839 IBM, IBM makes no commitment to upgrade the Program or to remedy such
840 defect.
841
842 g) You agree to comply with all applicable export and import laws and
843 regulations.
844
845 h) You may not without IBM's prior written consent (i) use (or allow the
846 use of) the Program, or of any of its components, for the purposes of
847 benchmarking against any other version or implementation of Java 5; or
848 (ii) publish, disclose or otherwise communicate to any third party the
849 results of any benchmarking of the Program.
850
851 2. TRADEMARKS AND COPYRIGHT: YOUR RESPONSIBILITIES
852
853 a) You shall not modify, delete, suppress, or obscure any copyright,
854 trademark or other legal notice (whether from IBM or any third party)
855 which may be displayed by or included within the Program.
856
857 b) Java and all Java-based Trademarks are trademarks of Sun
858 Microsystems, Inc. in the United States, other countries, or both.
859
860 c) You recognize IBM's and Sun Microsystems, Inc.'s ownership and title
861 to their respective trademarks and of any goodwill attaching thereto,
862 including goodwill resulting from use. You will not use or attempt to
863 register any trademark which is confusingly similar to such IBM or Sun
864 trademarks.
865
866 3. PROOF OF ENTITLEMENT
867
868 This License Agreement constitutes your Proof of Entitlement.
869
870
871
872 D/N: L-ADAN-63KLDA
873 P/N: L-ADAN-63KLDA

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