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Revision 1.1 - (show annotations) (download)
Sun Dec 16 11:29:01 2012 UTC (3 years, 7 months ago) by pacho
Branch: MAIN
CVS Tags: HEAD
Add license file for tsm package as discussed with ulm in bug #444412

1 International Program License Agreement
2
3 Part 1 - General Terms
4
5 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,
6
7 - DO NOT DOWNLOAD, INSTALL, COPY, ACCESS, CLICK ON AN "ACCEPT" BUTTON, OR USE THE PROGRAM; AND
8
9 - PROMPTLY RETURN THE UNUSED MEDIA, DOCUMENTATION, AND PROOF OF ENTITLEMENT 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.
10
11 1. Definitions
12
13 "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.
14
15 "IBM" - International Business Machines Corporation or one of its subsidiaries.
16
17 "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.
18
19 "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).
20
21 "Proof of Entitlement" ("PoE") - evidence of Licensee's Authorized Use. The PoE is also evidence of Licensee's eligibility for warranty, future update prices, if any, and potential special or promotional opportunities. If IBM does not provide Licensee with a PoE, then IBM may accept as the PoE the original paid sales receipt or other sales record from the party (either IBM or its reseller) from whom Licensee obtained the Program, provided that it specifies the Program name and Authorized Use obtained.
22
23 "Warranty Period" - one year, starting on the date the original Licensee is granted the license.
24
25 2. Agreement Structure
26
27 This Agreement includes Part 1 - General Terms, Part 2 - Country-unique Terms (if any), the LI, and the PoE 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 PoE, 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.
68
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 are based on Authorized Use obtained, which is specified in the PoE. IBM does not give credits or refunds for charges already due or paid, except as specified elsewhere in this Agreement.
74
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 for the Program, provided that Licensee returns the Program and PoE to the party from whom Licensee obtained it within 30 days of the date the PoE was issued to Licensee. If the license is for a fixed term that is subject to renewal, then Licensee may obtain a refund only if the Program and its PoE are 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 and PoE. Immediately after the transfer, Licensee's license terminates.
88
89 8. Warranty and Exclusions
90
91 8.1 Limited Warranty
92
93 IBM warrants that the Program, when used in its specified operating environment, will conform to its specifications. The Program's specifications, and specified operating environment information, can be found in documentation accompanying the Program (such as a read-me file) or other information published by IBM (such as an announcement letter). Licensee agrees that such documentation and other Program content may be supplied only in the English language, unless otherwise required by local law without the possibility of contractual waiver or limitation.
94
95 The warranty applies only to the unmodified portion of the Program. 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.
96
97 During the Warranty Period, IBM provides Licensee with access to IBM databases containing information on known Program defects, defect corrections, restrictions, and bypasses at no additional charge. Consult the IBM Software Support Handbook for further information at www.ibm.com/software/support.
98
99 If the Program does not function as warranted during the Warranty Period and the problem cannot be resolved with information available in the IBM databases, Licensee may return the Program and its PoE to the party (either IBM or its reseller) from whom Licensee obtained it and receive a refund of the amount Licensee paid. After returning the Program, Licensee's license terminates. If Licensee downloaded the Program, Licensee should contact the party from whom Licensee obtained it for instructions on how to obtain the refund.
100
101 8.2 Exclusions
102
103 THESE WARRANTIES ARE LICENSEE'S EXCLUSIVE WARRANTIES AND REPLACE ALL OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND ANY WARRANTY OR CONDITION OF NON-INFRINGEMENT. SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF EXPRESS OR IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO LICENSEE. IN THAT EVENT, SUCH WARRANTIES ARE LIMITED IN DURATION TO THE WARRANTY PERIOD. 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.
104
105 THESE WARRANTIES GIVE LICENSEE SPECIFIC LEGAL RIGHTS. LICENSEE MAY ALSO HAVE OTHER RIGHTS THAT VARY FROM STATE TO STATE OR JURISDICTION TO JURISDICTION.
106
107 THE WARRANTIES IN THIS SECTION 8 (WARRANTY AND EXCLUSIONS) ARE PROVIDED SOLELY BY IBM. THE DISCLAIMERS IN THIS SUBSECTION 8.2 (EXCLUSIONS), HOWEVER, ALSO APPLY TO IBM'S SUPPLIERS OF THIRD PARTY CODE. THOSE SUPPLIERS PROVIDE SUCH CODE WITHOUT WARRANTIES OR CONDITION OF ANY KIND. THIS PARAGRAPH DOES NOT NULLIFY IBM'S WARRANTY OBLIGATIONS UNDER THIS AGREEMENT.
108
109 9. Licensee Data and Databases
110
111 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 technical support, which is beyond IBM's warranty 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.
112
113 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.
114
115 10. Limitation of Liability
116
117 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.
118
119 10.1 Items for Which IBM May Be Liable
120
121 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.
122
123 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.
124
125 10.2 Items for Which IBM Is Not Liable
126
127 UNDER NO CIRCUMSTANCES IS IBM, ITS PROGRAM DEVELOPERS OR SUPPLIERS LIABLE FOR ANY OF THE FOLLOWING, EVEN IF INFORMED OF THEIR POSSIBILITY:
128
129 a. LOSS OF, OR DAMAGE TO, DATA;
130
131 b. SPECIAL, INCIDENTAL, EXEMPLARY, OR INDIRECT DAMAGES, OR FOR ANY ECONOMIC CONSEQUENTIAL DAMAGES; OR
132
133 c. LOST PROFITS, BUSINESS, REVENUE, GOODWILL, OR ANTICIPATED SAVINGS.
134
135 11. Compliance Verification
136
137 For purposes of this Section 11 (Compliance Verification), "IPLA 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.
138
139 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.
140
141 11.1 Verification Process
142
143 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 IPLA 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 IPLA Program Terms.
144
145 Upon reasonable notice, IBM may verify Licensee's compliance with IPLA Program Terms at all sites and for all environments in which Licensee uses (for any purpose) Programs subject to IPLA 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.
146
147 11.2 Resolution
148
149 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 IPLA 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.
150
151 12. Third Party Notices
152
153 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.
154
155 13. General
156
157 a. Nothing in this Agreement affects any statutory rights of consumers that cannot be waived or limited by contract.
158
159 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.
160
161 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.
162
163 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.
164
165 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.
166
167 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.
168
169 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.
170
171 h. Neither Licensee nor IBM is responsible for failure to fulfill any obligations due to causes beyond its control.
172
173 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.
174
175 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, other than as expressly warranted in Section 8 (Warranty and Exclusions) above; 2) the experiences or recommendations of other parties; or 3) any results or savings that Licensee may achieve.
176
177 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.
178
179 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.
180
181 14. Geographic Scope and Governing Law
182
183 14.1 Governing Law
184
185 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.
186
187 The United Nations Convention on Contracts for the International Sale of Goods does not apply.
188
189 14.2 Jurisdiction
190
191 All rights, duties, and obligations are subject to the courts of the country in which Licensee obtained the Program license.
192
193 Part 2 - Country-unique Terms
194
195 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:
196
197 - Multiple country amendments to Part 1, Section 14 (Governing Law and Jurisdiction);
198
199 - Americas country amendments to other Agreement terms;
200
201 - Asia Pacific country amendments to other Agreement terms; and
202
203 - Europe, Middle East, and Africa country amendments to other Agreement terms.
204
205 Multiple country amendments to Part 1, Section 14 (Governing Law and Jurisdiction)
206
207 14.1 Governing Law
208
209 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:
210
211 AMERICAS
212
213 (1) in Canada: the laws in the Province of Ontario;
214
215 (2) in Mexico: the federal laws of the Republic of Mexico;
216
217 (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;
218
219 (4) in Venezuela: the laws of the Bolivarian Republic of Venezuela;
220
221 ASIA PACIFIC
222
223 (5) in Cambodia and Laos: the laws of the State of New York, United States;
224
225 (6) in Australia: the laws of the State or Territory in which the transaction is performed;
226
227 (7) in Hong Kong SAR and Macau SAR: the laws of Hong Kong Special Administrative Region ("SAR");
228
229 (8) in Taiwan: the laws of Taiwan
230
231 EUROPE, MIDDLE EAST, AND AFRICA
232
233 (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;
234
235 (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;
236
237 (11) in Estonia, Latvia, and Lithuania: the laws of Finland;
238
239 (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
240
241 (13) in South Africa, Namibia, Lesotho, and Swaziland: the laws of the Republic of South Africa.
242
243 14.2 Jurisdiction
244
245 The following paragraph pertains to jurisdiction and replaces Subsection 14.2 (Jurisdiction) as it applies for those countries identified in bold below:
246
247 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:
248
249 AMERICAS
250
251 (1) in Argentina: the Ordinary Commercial Court of the city of Buenos Aires,
252
253 (2) in Brazil: the court of Rio de Janeiro, RJ;
254
255 (3) in Chile: the Civil Courts of Justice of Santiago;
256
257 (4) in Ecuador: the civil judges of Quito for executory or summary proceedings (as applicable);
258
259 (5) in Mexico: the courts located in Mexico City, Federal District;
260
261 (6) in Peru: the judges and tribunals of the judicial district of Lima, Cercado;
262
263 (7) in Uruguay: the courts of the city of Montevideo;
264
265 (8) in Venezuela: the courts of the metropolitan area of the city of Caracas;
266
267 EUROPE, MIDDLE EAST, AND AFRICA
268
269 (9) in Austria: the court of law in Vienna, Austria (Inner-City);
270
271 (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;
272
273 (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;
274
275 (12) in South Africa, Namibia, Lesotho, and Swaziland: the High Court in Johannesburg;
276
277 (13) in Greece: the competent court of Athens;
278
279 (14) in Israel: the courts of Tel Aviv-Jaffa;
280
281 (15) in Italy: the courts of Milan;
282
283 (16) in Portugal: the courts of Lisbon;
284
285 (17) in Spain: the courts of Madrid; and
286
287 (18) in Turkey: the Istanbul Central Courts and Execution Directorates of Istanbul, the Republic of Turkey.
288
289 14.3 Arbitration
290
291 The following paragraph is added as a new Subsection 14.3 (Arbitration) as it applies for those countries identified in bold 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:
292
293 ASIA PACIFIC
294
295 (1) In Cambodia, India, Indonesia, Laos, Philippines, and Vietnam:
296
297 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.
298
299 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.
300
301 If one of the parties refuses or otherwise fails to appoint an arbitrator within 30 days of the date the other party appoints its, the first appointed arbitrator will be the sole arbitrator, provided that the arbitrator was validly and properly appointed. All proceedings will be conducted, including all documents presented in such proceedings, in the English language. The English language version of this Agreement prevails over any other language version.
302
303 (2) In the People's Republic of China:
304
305 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.
306
307 EUROPE, MIDDLE EAST, AND AFRICA
308
309 (3) 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:
310
311 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.
312
313 (4) In Estonia, Latvia, and Lithuania:
314
315 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.
316
317 AMERICAS COUNTRY AMENDMENTS
318
319 CANADA
320
321 10.1 Items for Which IBM May be Liable
322
323 The following replaces Item 1 in the first paragraph of this Subsection 10.1 (Items for Which IBM May be Liable):
324
325 1) damages for bodily injury (including death) and physical harm to real property and tangible personal property caused by IBM's negligence; and
326
327 13. General
328
329 The following replaces Item 13.d:
330
331 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.
332
333 The following replaces Item 13.i:
334
335 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.
336
337 The following is added as Item 13.m:
338
339 m. For purposes of this Item 13.m, "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:
340
341 (1) General
342
343 (a) Each party is responsible for complying with any obligations applying to it under applicable Canadian data privacy laws and regulations ("Laws").
344
345 (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.
346
347 (2) Security Safeguards
348
349 (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.
350
351 (b) Each party will ensure that Personal Data is protected in accordance with the security safeguards communicated and agreed to by the other.
352
353 (c) Each party will ensure that any third party to whom Personal Data is transferred is bound by the applicable terms of this section.
354
355 (d) Additional or different services required to comply with the Laws will be deemed a request for new services.
356
357 (3) Use
358
359 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.
360
361 (4) Access Requests
362
363 (a) Each party agrees to reasonably cooperate with the other in connection with requests to access or amend Personal Data.
364
365 (b) Each party agrees to reimburse the other for any reasonable charges incurred in providing each other assistance.
366
367 (c) Each party agrees to amend Personal Data only upon receiving instructions to do so from the other party or its personnel.
368
369 (5) Retention
370
371 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.
372
373 (6) Public Bodies Who Are Subject to Public Sector Privacy Legislation
374
375 For Customers who are public bodies subject to public sector privacy legislation, this Item 13.m applies only to Personal Data made available to Customer in connection with this Agreement, and the obligations in this section apply only to Customer, 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.
376
377 PERU
378
379 10. Limitation of Liability
380
381 The following is added to the end of this Section 10 (Limitation of Liability):
382
383 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.
384
385 10.1 Items for Which IBM May be Liable
386
387 The following is added at the end of this Subsection 10.1:
388
389 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").
390
391 UNITED STATES OF AMERICA:
392
393 5. Taxes
394
395 The following is added at the end of this Section 5 (Taxes)
396
397 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.
398
399 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.
400
401 13. General
402
403 The following is added to Section 13 as Item 13.m:
404
405 U.S. Government Users Restricted Rights - Use, duplication or disclosure is restricted by the GSA IT Schedule 70 Contract with the IBM Corporation.
406
407 The following is added to Item 13.f:
408
409 Each party waives any right to a jury trial in any proceeding arising out of or related to this Agreement.
410
411 ASIA PACIFIC COUNTRY AMENDMENTS
412
413 AUSTRALIA:
414
415 5. Taxes
416
417 The following sentences replace the first two sentences of Section 5 (Taxes):
418
419 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.
420
421 8.1 Limited Warranty
422
423 The following is added Subsection 8.1 (Limited Warranty):
424
425 The warranties specified this Section are in addition to any rights Licensee may have under the Trade Practices Act 1974 or other legislation and are only limited to the extent permitted by the applicable legislation.
426
427 10.1 Items for Which IBM May be Liable
428
429 The following is added to Subsection 10.1 (Items for Which IBM Maybe Liable):
430
431 Where IBM is in breach of a condition or warranty implied by the Trade Practices Act 1974, 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.
432
433 HONG KONG SAR, MACAU SAR, AND TAIWAN
434
435 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:
436
437 (1) In Hong Kong SAR: "Hong Kong SAR"
438
439 (2) In Macau SAR: "Macau SAR" except in the Governing Law clause (Section 14.1)
440
441 (3) In Taiwan: "Taiwan."
442
443 INDIA
444
445 10.1 Items for Which IBM May be Liable
446
447 The following replaces the terms of Items 1 and 2 of the first paragraph:
448
449 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.
450
451 13. General
452
453 The following replaces the terms of Item 13.g:
454
455 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.
456
457 INDONESIA
458
459 3.3 Term and Termination
460
461 The following is added to the last paragraph:
462
463 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.
464
465 JAPAN
466
467 13. General
468
469 The following is inserted after Item 13.f:
470
471 Any doubts concerning this Agreement will be initially resolved between us in good faith and in accordance with the principle of mutual trust.
472
473 MALAYSIA
474
475 10.2 Items for Which IBM Is not Liable
476
477 The word "SPECIAL" in Item 10.2b is deleted.
478
479 NEW ZEALAND
480
481 8.1 Limited Warranty
482
483 The following is added:
484
485 The warranties specified in this Section are in addition to any rights Licensee may have 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.
486
487 10. Limitation of Liability
488
489 The following is added:
490
491 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.
492
493 PEOPLE'S REPUBLIC OF CHINA
494
495 4. Charges
496
497 The following is added:
498
499 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.
500
501 PHILIPPINES
502
503 10.2 Items for Which IBM Is not Liable
504
505 The following replaces the terms of Item 10.2b:
506
507 b. special (including nominal and exemplary damages), moral, incidental, or indirect damages or for any economic consequential damages; or
508
509 SINGAPORE
510
511 10.2 Items for Which IBM Is not Liable
512
513 The words "SPECIAL" and "ECONOMIC" are deleted from Item 10.2b.
514
515 13. General
516
517 The following replaces the terms of Item 13.i:
518
519 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.
520
521 TAIWAN
522
523 8.1 Limited Warranty
524
525 The last paragraph is deleted.
526
527 10.1 Items for Which IBM May Be Liable
528
529 The following sentences are deleted
530
531 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.
532
533 EUROPE, MIDDLE EAST, AFRICA (EMEA) COUNTRY AMENDMENTS
534
535 EUROPEAN UNION MEMBER STATES
536
537 8. Warranty and Exclusions
538
539 The following is added to Section 8 (Warranty and Exclusion):
540
541 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 Warranty and Exclusions. The territorial scope of the Limited Warranty is worldwide.
542
543 EU MEMBER STATES AND THE COUNTRIES IDENTIFIED BELOW
544
545 Iceland, Liechtenstein, Norway, Switzerland, Turkey, and any other European country that has enacted local data privacy or protection legislation similar to the EU model.
546
547 13. General
548
549 The following replaces Item 13.e:
550
551 (1) Definitions - For the purposes of this Item 13.e, the following additional definitions apply:
552
553 (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 Customer and its contractors as legal entities (for example, Customer's revenue data and other transactional information)
554
555 (b) Business Contact Personnel - Licensee employees and contractors to whom the Business Contact Information relates.
556
557 (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.
558
559 (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.
560
561 (e) IBM Group - International Business Machines Corporation of Armonk, New York, USA, its subsidiaries, and their respective Business Partners and subcontractors.
562
563 (2) Licensee authorises IBM:
564
565 (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
566
567 (b) to disclose Business Contact Information to other members of IBM Group in pursuit of the Specified Purpose only.
568
569 (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.
570
571 (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.
572
573 (5) Licensee authorises 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.
574
575 AUSTRIA
576
577 8.2 Exclusions
578
579 The following is deleted from the first paragraph:
580
581 MERCHANTABILITY, SATISFACTORY QUALITY
582
583 10. Limitation of Liability
584
585 The following is added:
586
587 The following limitations and exclusions of IBM's liability do not apply for damages caused by gross negligence or willful misconduct.
588
589 10.1 Items for Which IBM May Be Liable
590
591 The following replaces the first sentence in the first paragraph:
592
593 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.
594
595 In the second sentence of the first paragraph, delete entirely the parenthetical phrase:
596
597 "(including fundamental breach, negligence, misrepresentation, or other contract or tort claim)".
598
599 10.2 Items for Which IBM Is Not Liable
600
601 The following replaces Item 10.2b:
602
603 b. indirect damages or consequential damages; or
604
605 BELGIUM, FRANCE, ITALY, AND LUXEMBOURG
606
607 10. Limitation of Liability
608
609 The following replaces the terms of Section 10 (Limitation of Liability) in its entirety:
610
611 Except as otherwise provided by mandatory law:
612
613 10.1 Items for Which IBM May Be Liable
614
615 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.
616
617 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.
618
619 10.2 Items for Which IBM Is Not Liable
620
621 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.
622
623 10.3 Suppliers and Program Developers
624
625 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.
626
627 GERMANY
628
629 8.1 Limited Warranty
630
631 The following is inserted at the beginning of Section 8.1:
632
633 The Warranty Period is twelve months from the date of delivery of the Program to the original Licensee.
634
635 8.2 Exclusions
636
637 Section 8.2 is deleted in its entirety and replaced with the following:
638
639 Section 8.1 defines IBM's entire warranty obligations to Licensee except as otherwise required by applicable statutory law.
640
641 10. Limitation of Liability
642
643 The following replaces the Limitation of Liability section in its entirety:
644
645 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.
646
647 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.
648
649 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.
650
651 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.
652
653 13. General
654
655 The following replaces the provisions of 13.g:
656
657 Any claims resulting from this Agreement are subject to a limitation period of three years, except as stated in Section 8.1 (Limited Warranty) of this Agreement.
658
659 The following replaces the provisions of 13.i:
660
661 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.
662
663 IRELAND
664
665 8.2 Exclusions
666
667 The following paragraph is added:
668
669 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).
670
671 IRELAND AND UNITED KINGDOM
672
673 2. Agreement Structure
674
675 The following sentence is added:
676
677 Nothing in this paragraph shall have the effect of excluding or limiting liability for fraud.
678
679 10.1 Items for Which IBM May Be Liable
680
681 The following replaces the first paragraph of the Subsection:
682
683 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.
684
685 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.
686
687 10.2 Items for Which IBM is Not Liable
688
689 The following replaces Items 10.2b and 10.2c:
690
691 b. special, incidental, exemplary, or indirect damages or consequential damages; or
692
693 c. wasted management time or lost profits, business, revenue, goodwill, or anticipated savings.
694
695 Z125-3301-13 (05/2009)
696
697
698 LICENSE INFORMATION
699
700 The Programs listed below are licensed under the following terms and conditions in addition to those of the International Program License Agreement.
701
702 Program Name: IBM Tivoli Storage Manager V6.3
703 Program Number: 5608-E01
704
705 Supporting Programs
706
707 The Program is licensed as a multi-product package and includes the Supporting Programs identified below. Licensee is authorized to install and use such Supporting Programs only to support Licensee's use of the Principal Program under this Agreement and within the limits of the Proofs of Entitlement for the Program (unless broader rights are provided elsewhere in this License Information document). The phrase "to support Licensee's use" would include only those uses that are necessary or otherwise directly related to a licensed use of the Principal Program or another Supporting Program. The Supporting Programs may not be used for any other purpose. Licensee is not authorized to transfer or remarket the Supporting Programs separate from the Principal Program. The terms of this Agreement may replace or modify the license terms for the Supporting Programs. In the event of conflict, these terms supersede the terms of the license agreement which accompanies the Supporting Programs. When Licensee's right to use the Program expires or terminates, Licensee must discontinue use, destroy or promptly return all copies of the Supporting Programs to the party from whom Licensee acquired the Program. If Licensee downloaded the Supporting Programs, Licensee should contact the party from whom Licensee acquired the Program. If Licensee wishes to license the Supporting Programs for any use beyond the limits set forth above, please contact an IBM Sales Representative or the party from whom Licensee acquired the Program to obtain the appropriate license.
708
709 The following are Supporting Programs licensed with the Program:
710 IBM DB2 Enterprise Server Edition V9.7 for Linux, UNIX, and Windows
711 eWAS - embedded version of IBM WebSphere Application Server ("embedded WebSphere Application Server"). [version 7.0.0.x]
712 IBM Tivoli Common Reporting v2.1
713 IBM Tivoli Monitoring, Version 6
714
715
716 Prohibited Components
717
718 Notwithstanding any provision in the Agreement, Licensee is not authorized to use any of the following components or functions of the Program:
719 SET ARCHIVERETENTIONPROTECTION command
720 Disaster Recovery Manager
721 Network Data Management Protocol (NDMP) Backup
722 Node replication (and use of the REPLICATE NODE command as a target server)
723 Geodetic Data Management Feature (of IBM DB2)
724 Homogeneous Replication Feature (of IBM DB2)
725 Advanced Access Control Feature (of IBM DB2)
726 Performance Optimization Feature (of IBM DB2)
727
728 Separately Licensed Code
729
730 The provisions of this paragraph do not apply to the extent they are held to be invalid or unenforceable under the law that governs this license. Each of the components listed below is considered "Separately Licensed Code". IBM Separately Licensed Code is licensed to Licensee under the terms of the applicable third party license agreement(s) set forth in the NON_IBM_LICENSE file(s) that accompanies the Program. Notwithstanding any of the terms in the Agreement, or any other agreement Licensee may have with IBM, the terms of such third party license agreement(s) governs Licensee's use of all Separately Licensed Code unless otherwise noted below.
731
732 Future Program updates or fixes may contain additional Separately Licensed Code. Such additional Separately Licensed Code and related licenses are listed in another NON_IBM_LICENSE file that accompanies the Program update or fix. Licensee acknowledges that Licensee has read and agrees to the license agreements contained in the NON_IBM_LICENSE file(s). If Licensee does not agree to the terms of these third party license agreements, Licensee may not use the Separately Licensed Code.
733
734 For Programs acquired under the International Program License Agreement ("IPLA") or International Program License Agreement for Non Warranted Program ("ILAN") and Licensee is the original licensee of the Program, if Licensee does not agree with the third party license agreements, Licensee may return the Program in accordance with the terms of, and within the specified time frames stated in, the "Money-back Guarantee" section of the IPLA or ILAN IBM Agreement.
735
736 Note: Notwithstanding any of the terms in the third party license agreement, the Agreement, or any other agreement Licensee may have with IBM:
737 (a) IBM provides this Separately Licensed Code to Licensee WITHOUT WARRANTIES OF ANY KIND;
738 (b) IBM DISCLAIMS ANY AND ALL EXPRESS AND IMPLIED WARRANTIES AND CONDITIONS INCLUDING, BUT NOT LIMITED TO, THE WARRANTY OF TITLE, NON-INFRINGEMENT OR INTERFERENCE AND THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE SEPARATELY LICENSED CODE;
739 (c) IBM is not liable to Licensee, and will not defend, indemnify, or hold Licensee harmless for any claims arising from or related to the Separately Licensed Code; and
740 (d) IBM is not liable for any direct, indirect, incidental, special, exemplary, punitive or consequential damages including, but not limited to, lost data, lost savings, and lost profits, with respect to the Separately Licensed Code.
741
742 Notwithstanding these exclusions, in Germany and Austria, IBM's warranty and liability for the Separately Licensed Code is governed only by the respective terms applicable for Germany and Austria in IBM license agreements.
743
744 Note: IBM may provide limited support for some Separately Licensed Code. If such support is available, the details and any additional terms related to such support will be set forth in the License Information document.
745
746 The following are Separately Licensed Code:
747 Linux Filepath 1.0.0
748
749 Source Components and Sample Materials
750
751 The Program may include some components in source code form ("Source Components") and other materials identified as Sample Materials. Licensee may copy and modify Source Components and Sample Materials for internal use only provided such use is within the limits of the license rights under this Agreement, provided however that Licensee may not alter or delete any copyright information or notices contained in the Source Components or Sample Materials. IBM provides the Source Components and Sample Materials without obligation of support and "AS IS", WITH NO WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING THE WARRANTY OF TITLE, NON-INFRINGEMENT OR NON-INTERFERENCE AND THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
752
753 Export and Import Restrictions
754
755 This Program may contain cryptography. Transfer to, or use by, users of the Program may be prohibited or subject to export or import laws, regulations or policies, including those of the United States Export Administration Regulations. Licensee assumes all responsibility for complying with all applicable laws, regulations, and policies regarding the export, import, or use of this Program, including but not limited to, U.S. restrictions on exports or reexports. To obtain the export classification of this Program refer to: https://www.ibm.com/products/exporting/.
756
757 Client Device
758
759 Client Device is a unit of measure by which the Program can be licensed. A Client Device is a single user computing device or special purpose sensor or telemetry device that requests the execution of or receives for execution a set of commands, procedures, or applications from or provides data to another computer system that is typically referred to as a server or is otherwise managed by the server. Multiple Client Devices may share access to a common server. A Client Device may have some processing capability or be programmable to allow a user to do work. Examples include, but are not limited to actuators, appliances, automated teller machines, automatic meter readers, cash registers, disk drives, desktop computers, kiosks, notebook computers, personal digital assistant, point-of-sale terminals, sensors, smart meters, tape drives, and technical workstations. Licensee must obtain entitlements for every Client Device which runs, provides data to, uses services provided by, or otherwise accesses the Program and for every other computer or server on which the Program is installed.
760
761 Processor Value Unit (PVU)
762
763 Processor Value Unit (PVU) is a unit of measure by which the Program can be licensed. The number of PVU entitlements required is based on the processor technology (defined within the PVU Table by Processor Vendor, Brand, Type and Model Number at http://www.ibm.com/software/lotus/passportadvantage/pvu_licensing_for_customers.html) and the number of processors made available to the Program. IBM continues to define a processor, for the purpose of PVU-based licensing, to be each processor core on a chip. A dual-core processor chip, for example, has two processor cores.
764
765 Licensee can deploy the Program using either Full Capacity licensing or Virtualization Capacity (Sub-Capacity) licensing according to the Passport Advantage Sub-Capacity Licensing Terms (see webpage below). If using Full Capacity licensing, Licensee must obtain PVU entitlements sufficient to cover all activated processor cores* in the physical hardware environment made available to or managed by the Program, except for those servers from which the Program has been permanently removed. If using Virtualization Capacity licensing, Licensee must obtain entitlements sufficient to cover all activated processor cores made available to or managed by the Program, as defined according to the Virtualization Capacity License Counting Rules at http://www.ibm.com/software/lotus/passportadvantage/Counting_Software_licenses_using_specific_virtualization_technologies.html.
766
767 * An Activated processor core is a processor core that is available for use in a physical or virtual server, regardless of whether the capacity of the processor core can be or is limited through virtualization technologies, operating system commands, BIOS settings, or similar restrictions.
768
769 In addition to the entitlements required for the Program directly, Licensee must obtain PVU entitlements for this Program sufficient to cover the processor cores for the systems on which the resources managed or processed by the Program reside.
770
771 Program-unique Terms
772
773 Licensee is not permitted to use the Program to support tape libraries (including Virtual Tape Libraries) with more than four drives or more than 48 slots.
774
775 Supporting Program Details - IBM DB2
776
777 The following applies to use of the IBM DB2 edition(s) specified in the Supporting Programs section of this License Information:
778
779 - Entitlement: Ratio 1/1
780 - Use Limitations: Use by Principal Program
781
782 "Ratio n/m" means that Licensee receives some number ('n') entitlements for the Supporting Program for every specified number ('m') entitlements of the Principal Program as a whole. Unless otherwise specified, the number of entitlements for the Supporting Program is rounded up to a multiple of 'n'. For example, if a Program includes 100 PVUs for a Supporting Program for every 500 PVUs obtained of the Principal Program and Licensee acquires 1,200 PVUs of the Program, Licensee may install the Supporting Program and have processor cores available to or managed by it of up to 300 PVUs. Those PVUs would not need to be counted as part of the total PVU requirement for Licensee's installation of the Program on account of the installation of the Supporting Program (although those PVUs might need to be counted for other reasons, such as the processor cores being made available to the Principal Program, as well).
783
784 "Use by Principal Program" means that the Supporting Program is provided exclusively for use by the Principal Program. Neither Licensee nor any application, program or device is authorized to directly use or access the services of the Supporting Program except Licensee may access the Supporting Program to perform administrative functions for the Supporting Program such as backup, recovery and authorized configuration
785
786 The Program is accompanied by an embedded version of IBM WebSphere Application Server ("embedded WAS").
787
788 Disabling Device
789
790 The embedded Program may include a disabling device that will prevent certain features from being used. Licensee will not tamper with such disabling device or otherwise change the embedded Program.
791
792 Unlimited Copy Components
793
794 Licensee is authorized to install and use an unlimited number of copies of the Administrative Scripting Program component on any Licensee machines to support your authorized use of the other components of the embedded Program.
795
796 Source Code
797
798 Some of the components of the Program may be provided in source code form. Notwithstanding anything to the contrary in this Agreement, support is only provided for the unmodified, binary code versions of these components included in the Program packaging, and not for the source code for these components or for any modifications of such components Licensee may create.
799
800
801 D/N: L-BEBY-8DWSC7
802 P/N: L-BEBY-8DWSC7

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