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Add IBM-ILAR license for app-emulation/systemsim-cell

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

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