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Revision 1.1 - (show annotations) (download)
Wed Jun 18 11:16:00 2014 UTC (6 months ago) by haubi
Branch: MAIN
licenses: ibm-jdk-bin has IBM-J7.1 for Linux, and IBM-J7.AIX; drop IBM-J7.0

1 http://www14.software.ibm.com/cgi-bin/weblap/lap.pl?la_formnum=&li_formnum=L-EWOD-99YA4J&title=IBM%C2%ÄSDK%2C+Java+Technology+Edition%2C+Version+7+Release+1&l=en
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3 IBMÂ%ÄSDK, Java Technology Edition, Version 7 Release 1
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5 International License Agreement for Non-Warranted Programs
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7 Part 1 - General Terms
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9 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,
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11 * DO NOT DOWNLOAD, INSTALL, COPY, ACCESS, CLICK ON AN "ACCEPT" BUTTON, OR USE THE PROGRAM; AND
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13 * 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.
14
15 1. Definitions
16
17 "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.
18
19 "IBM" - International Business Machines Corporation or one of its subsidiaries.
20
21 "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.
22
23 "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).
24
25 2. Agreement Structure
26
27 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.
28
29 3. License Grant
30
31 The Program is owned by IBM or an IBM supplier, and is copyrighted and licensed, not sold.
32
33 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
34
35 a. Licensee has lawfully obtained the Program and complies with the terms of this Agreement;
36
37 b. the backup copy does not execute unless the backed-up Program cannot execute;
38
39 c. Licensee reproduces all copyright notices and other legends of ownership on each copy, or partial copy, of the Program;
40
41 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;
42
43 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
44
45 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.)
46
47 This license applies to each copy of the Program that Licensee makes.
48
49 3.1 Trade-ups, Updates, Fixes, and Patches
50
51 3.1.1 Trade-ups
52
53 If the Program is replaced by a trade-up Program, the replaced Program's license is promptly terminated.
54
55 3.1.2 Updates, Fixes, and Patches
56
57 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.
58
59 3.2 Fixed Term Licenses
60
61 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.
62
63 3.3 Term and Termination
64
65 This Agreement is effective until terminated.
66
67 IBM may terminate Licensee's license if Licensee fails to comply with the terms of this Agreement.
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69 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.
70
71 4. Charges
72
73 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.
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75 If Licensee wishes to increase its Authorized Use, Licensee must notify IBM or an authorized IBM reseller in advance and pay any applicable charges.
76
77 5. Taxes
78
79 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.
80
81 6. Money-back Guarantee
82
83 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.
84
85 7. Program Transfer
86
87 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.
88
89 8. No Warranties
90
91 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.
92
93 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.
94
95 THE DISCLAIMERS AND EXCLUSIONS IN THIS SECTION 8 ALSO APPLY TO ANY OF IBM'S PROGRAM DEVELOPERS AND SUPPLIERS.
96
97 MANUFACTURERS, SUPPLIERS, OR PUBLISHERS OF NON-IBM PROGRAMS MAY PROVIDE THEIR OWN WARRANTIES.
98
99 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.
100
101 9. Licensee Data and Databases
102
103 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.
104
105 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.
106
107 10. Limitation of Liability
108
109 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.
110
111 10.1 Items for Which IBM May Be Liable
112
113 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.
114
115 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.
116
117 10.2 Items for Which IBM Is Not Liable
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119 UNDER NO CIRCUMSTANCES IS IBM, ITS PROGRAM DEVELOPERS OR SUPPLIERS LIABLE FOR ANY OF THE FOLLOWING, EVEN IF INFORMED OF THEIR POSSIBILITY:
120
121 a. LOSS OF, OR DAMAGE TO, DATA;
122
123 b. SPECIAL, INCIDENTAL, EXEMPLARY, OR INDIRECT DAMAGES, OR FOR ANY ECONOMIC CONSEQUENTIAL DAMAGES; OR
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125 c. LOST PROFITS, BUSINESS, REVENUE, GOODWILL, OR ANTICIPATED SAVINGS.
126
127 11. Compliance Verification
128
129 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.
130
131 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.
132
133 11.1 Verification Process
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135 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.
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137 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.
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139 11.2 Resolution
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141 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.
142
143 12. Third Party Notices
144
145 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.
146
147 13. General
148
149 a. Nothing in this Agreement affects any statutory rights of consumers that cannot be waived or limited by contract.
150
151 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.
152
153 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.
154
155 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.
156
157 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.
158
159 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.
160
161 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.
162
163 h. Neither Licensee nor IBM is responsible for failure to fulfill any obligations due to causes beyond its control.
164
165 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.
166
167 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.
168
169 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.
170
171 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.
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173 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.
174
175 14. Geographic Scope and Governing Law
176
177 14.1 Governing Law
178
179 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.
180
181 The United Nations Convention on Contracts for the International Sale of Goods does not apply.
182
183 14.2 Jurisdiction
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185 All rights, duties, and obligations are subject to the courts of the country in which Licensee obtained the Program license.
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187 Part 2 - Country-unique Terms
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189 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:
190
191 * Multiple country amendments to Part 1, Section 14 (Governing Law and Jurisdiction);
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193 * Americas country amendments to other Agreement terms;
194
195 * Asia Pacific country amendments to other Agreement terms; and
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197 * Europe, Middle East, and Africa country amendments to other Agreement terms.
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199 Multiple country amendments to Part 1, Section 14 (Governing Law and Jurisdiction)
200
201 14.1 Governing Law
202
203 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:
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205 AMERICAS
206
207 (1) In Canada: the laws in the Province of Ontario;
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209 (2) in Mexico: the federal laws of the Republic of Mexico;
210
211 (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;
212
213 (4) in Venezuela: the laws of the Bolivarian Republic of Venezuela;
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215 ASIA PACIFIC
216
217 (5) in Cambodia and Laos: the laws of the State of New York, United States;
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219 (6) in Australia: the laws of the State or Territory in which the transaction is performed;
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221 (7) in Hong Kong SAR and Macau SAR: the laws of Hong Kong Special Administrative Region ("SAR");
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223 (8) in Taiwan: the laws of Taiwan;
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225 EUROPE, MIDDLE EAST, AND AFRICA
226
227 (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;
228
229 (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;
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231 (11) in Estonia, Latvia, and Lithuania: the laws of Finland;
232
233 (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
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235 (13) in South Africa, Namibia, Lesotho, and Swaziland: the laws of the Republic of South Africa.
236
237 14.2 Jurisdiction
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239 The following paragraph pertains to jurisdiction and replaces Subsection 14.2 (Jurisdiction) as it applies for those countries identified below:
240
241 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:
242
243 AMERICAS
244
245 (1) In Argentina: the Ordinary Commercial Court of the city of Buenos Aires;
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247 (2) in Brazil: the court of Rio de Janeiro, RJ;
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249 (3) in Chile: the Civil Courts of Justice of Santiago;
250
251 (4) in Ecuador: the civil judges of Quito for executory or summary proceedings (as applicable);
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253 (5) in Mexico: the courts located in Mexico City, Federal District;
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255 (6) in Peru: the judges and tribunals of the judicial district of Lima, Cercado;
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257 (7) in Uruguay: the courts of the city of Montevideo;
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259 (8) in Venezuela: the courts of the metropolitan area of the city of Caracas;
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261 EUROPE, MIDDLE EAST, AND AFRICA
262
263 (9) in Austria: the court of law in Vienna, Austria (Inner-City);
264
265 (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;
266
267 (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;
268
269 (12) in South Africa, Namibia, Lesotho, and Swaziland: the High Court in Johannesburg;
270
271 (13) in Greece: the competent court of Athens;
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273 (14) in Israel: the courts of Tel Aviv-Jaffa;
274
275 (15) in Italy: the courts of Milan;
276
277 (16) in Portugal: the courts of Lisbon;
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279 (17) in Spain: the courts of Madrid; and
280
281 (18) in Turkey: the Istanbul Central Courts and Execution Directorates of Istanbul, the Republic of Turkey.
282
283 14.3 Arbitration
284
285 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:
286
287 ASIA PACIFIC
288
289 (1) In Cambodia, India, Laos, Philippines, and Vietnam:
290
291 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.
292
293 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.
294
295 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.
296
297 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.
298
299 (2) In the People's Republic of China:
300
301 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.
302
303 (3) In Indonesia:
304
305 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.
306
307 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.
308
309 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.
310
311 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.
312
313 All proceedings shall be conducted, including all documents presented in such proceedings, in the English and/or Indonesian language.
314
315 EUROPE, MIDDLE EAST, AND AFRICA
316
317 (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:
318
319 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.
320
321 (5) In Estonia, Latvia, and Lithuania:
322
323 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.
324
325 AMERICAS COUNTRY AMENDMENTS
326
327 CANADA
328
329 10.1 Items for Which IBM May Be Liable
330
331 The following replaces Item 1 in the first paragraph of this Subsection 10.1 (Items for Which IBM May Be Liable):
332
333 1) damages for bodily injury (including death) and physical harm to real property and tangible personal property caused by IBM's negligence; and
334
335 13. General
336
337 The following replaces Item 13.d:
338
339 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.
340
341 The following replaces Item 13.i:
342
343 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.
344
345 The following is added as Item 13.n:
346
347 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:
348
349 (1) General
350
351 (a) Each party is responsible for complying with any obligations applying to it under applicable Canadian data privacy laws and regulations ("Laws").
352
353 (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.
354
355 (2) Security Safeguards
356
357 (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.
358
359 (b) Each party will ensure that Personal Data is protected in accordance with the security safeguards communicated and agreed to by the other.
360
361 (c) Each party will ensure that any third party to whom Personal Data is transferred is bound by the applicable terms of this section.
362
363 (d) Additional or different services required to comply with the Laws will be deemed a request for new services.
364
365 (3) Use
366
367 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.
368
369 (4) Access Requests
370
371 (a) Each party agrees to reasonably cooperate with the other in connection with requests to access or amend Personal Data.
372
373 (b) Each party agrees to reimburse the other for any reasonable charges incurred in providing each other assistance.
374
375 (c) Each party agrees to amend Personal Data only upon receiving instructions to do so from the other party or its personnel.
376
377 (5) Retention
378
379 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.
380
381 (6) Public Bodies Who Are Subject to Public Sector Privacy Legislation
382
383 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.
384
385 PERU
386
387 10. Limitation of Liability
388
389 The following is added to the end of this Section 10 (Limitation of Liability):
390
391 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.
392
393 10.1 Items for Which IBM May Be Liable
394
395 The following is added to the end of this Subsection 10.1:
396
397 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").
398
399 UNITED STATES OF AMERICA
400
401 5. Taxes
402
403 The following is added to the end of this Section 5 (Taxes):
404
405 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.
406
407 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.
408
409 13. General
410
411 The following is added to Section 13 as Item 13.n:
412
413 n. U.S. Government Users Restricted Rights - Use, duplication or disclosure is restricted by the GSA IT Schedule 70 Contract with the IBM Corporation.
414
415 The following is added to Item 13.f:
416
417 Each party waives any right to a jury trial in any proceeding arising out of or related to this Agreement.
418
419 ASIA PACIFIC COUNTRY AMENDMENTS
420
421 AUSTRALIA
422
423 5. Taxes
424
425 The following sentences replace the first two sentences of Section 5 (Taxes):
426
427 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.
428
429 8. No Warranties
430
431 The following is added to the first paragraph of Section 8 (No Warranties):
432
433 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.
434
435 10.1 Items for Which IBM May Be Liable
436
437 The following is added to Subsection 10.1 (Items for Which IBM Maybe Liable):
438
439 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.
440
441 HONG KONG SAR, MACAU SAR, AND TAIWAN
442
443 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:
444
445 (1) In Hong Kong SAR: "Hong Kong SAR"
446
447 (2) In Macau SAR: "Macau SAR" except in the Governing Law clause (Section 14.1)
448
449 (3) In Taiwan: "Taiwan."
450
451 INDIA
452
453 10.1 Items for Which IBM May Be Liable
454
455 The following replaces the terms of Items 1 and 2 of the first paragraph:
456
457 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.
458
459 13. General
460
461 The following replaces the terms of Item 13.g:
462
463 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.
464
465 INDONESIA
466
467 3.3 Term and Termination
468
469 The following is added to the last paragraph:
470
471 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.
472
473 JAPAN
474
475 13. General
476
477 The following is inserted as Item 13.n:
478
479 n. Any doubts concerning this Agreement will be initially resolved between us in good faith and in accordance with the principle of mutual trust.
480
481 MALAYSIA
482
483 10.2 Items for Which IBM Is Not Liable
484
485 The word "SPECIAL" in Item 10.2b is deleted.
486
487 NEW ZEALAND
488
489 8. No Warranties
490
491 The following is added to the first paragraph of this Section 8 (No Warranties):
492
493 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.
494
495 10. Limitation of Liability
496
497 The following is added:
498
499 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.
500
501 PEOPLE'S REPUBLIC OF CHINA
502
503 4. Charges
504
505 The following is added:
506
507 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.
508
509 PHILIPPINES
510
511 10.2 Items for Which IBM Is Not Liable
512
513 The following replaces the terms of Item 10.2b:
514
515 b. special (including nominal and exemplary damages), moral, incidental, or indirect damages or for any economic consequential damages; or
516
517 SINGAPORE
518
519 10.2 Items for Which IBM Is Not Liable
520
521 The words "SPECIAL" and "ECONOMIC" are deleted from Item 10.2b.
522
523 13. General
524
525 The following replaces the terms of Item 13.i:
526
527 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.
528
529 TAIWAN
530
531 10.1 Items for Which IBM May Be Liable
532
533 The following sentences are deleted:
534
535 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.
536
537 EUROPE, MIDDLE EAST, AFRICA (EMEA) COUNTRY AMENDMENTS
538
539 EUROPEAN UNION MEMBER STATES
540
541 8. No Warranties
542
543 The following is added to Section 8 (No Warranties):
544
545 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).
546
547 EU MEMBER STATES AND THE COUNTRIES IDENTIFIED BELOW
548
549 Iceland, Liechtenstein, Norway, Switzerland, Turkey, and any other European country that has enacted local data privacy or protection legislation similar to the EU model.
550
551 13. General
552
553 The following replaces Item 13.e:
554
555 (1) Definitions - For the purposes of this Item 13.e, the following additional definitions apply:
556
557 (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)
558
559 (b) Business Contact Personnel - Licensee employees and contractors to whom the Business Contact Information relates.
560
561 (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.
562
563 (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.
564
565 (e) IBM Group - International Business Machines Corporation of Armonk, New York, USA, its subsidiaries, and their respective Business Partners and subcontractors.
566
567 (2) Licensee authorizes IBM:
568
569 (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
570
571 (b) to disclose Business Contact Information to other members of IBM Group in pursuit of the Specified Purpose only.
572
573 (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.
574
575 (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.
576
577 (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.
578
579 AUSTRIA
580
581 8. No Warranties
582
583 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.
584
585 8. Warranties and Exclusions
586
587 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.
588
589 The warranty for an IBM Program covers the functionality of the Program for its normal use and the Program's conformity to its specifications.
590
591 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.
592
593 The warranty applies only to the unmodified portion of the Program.
594
595 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.
596
597 This is IBM's sole obligation to Licensee, except as otherwise required by applicable statutory law.
598
599 10. Limitation of Liability
600
601 The following is added:
602
603 The following limitations and exclusions of IBM's liability do not apply for damages caused by gross negligence or willful misconduct.
604
605 10.1 Items for Which IBM May Be Liable
606
607 The following replaces the first sentence in the first paragraph:
608
609 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.
610
611 In the second sentence of the first paragraph, delete entirely the parenthetical phrase:
612
613 "(including fundamental breach, negligence, misrepresentation, or other contract or tort claim)".
614
615 10.2 Items for Which IBM Is Not Liable
616
617 The following replaces Item 10.2b:
618
619 b. indirect damages or consequential damages; or
620
621 BELGIUM, FRANCE, ITALY, AND LUXEMBOURG
622
623 10. Limitation of Liability
624
625 The following replaces the terms of Section 10 (Limitation of Liability) in its entirety:
626
627 Except as otherwise provided by mandatory law:
628
629 10.1 Items for Which IBM May Be Liable
630
631 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.
632
633 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.
634
635 10.2 Items for Which IBM Is Not Liable
636
637 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.
638
639 10.3 Suppliers and Program Developers
640
641 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.
642
643 GERMANY
644
645 8. No Warranties
646
647 This Section 8 (No Warranties) is amended as specified for AUSTRIA.
648
649 10. Limitation of Liability
650
651 The following replaces this Section 10 (Limitation of Liability) in its entirety:
652
653 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.
654
655 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.
656
657 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.
658
659 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.
660
661 13. General
662
663 The following replaces the provisions of 13.g:
664
665 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.
666
667 The following replaces the provisions of 13.i:
668
669 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.
670
671 IRELAND
672
673 8. No Warranties
674
675 The following sentence is added to the second paragraph of this Section 8 (No Warranties):
676
677 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).
678
679 IRELAND AND UNITED KINGDOM
680
681 2. Agreement Structure
682
683 The following sentence is added:
684
685 Nothing in this paragraph shall have the effect of excluding or limiting liability for fraud.
686
687 10.1 Items for Which IBM May Be Liable
688
689 The following replaces the first paragraph of the Subsection:
690
691 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.
692
693 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.
694
695 10.2 Items for Which IBM Is Not Liable
696
697 The following replaces Items 10.2b and 10.2c:
698
699 b. special, incidental, exemplary, or indirect damages or consequential damages; or
700
701 c. wasted management time or lost profits, business, revenue, goodwill, or anticipated savings.
702
703 Z125-5589-05 (07/2011)
704
705 LICENSE INFORMATION
706
707 The Programs listed below are licensed under the following terms and conditions in addition to those of the IBM International License Agreement for Non-Warranted Programs (IBM form number Z125-5589-05).
708
709 Program Name: IBM(R) Software Development Kit, Java(TM) Technology Edition, Version 7 Release 1
710
711 Program Number: 6210-001
712
713 Technology Preview Code
714
715 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.
716
717 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.
718
719 L/N: L-EWOD-99YA4J
720
721 D/N: L-EWOD-99YA4J
722
723 P/N: L-EWOD-99YA4J

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