International Program License Agreement
Part 1 - General Terms
BY DOWNLOADING, INSTALLING, COPYING, ACCESSING, OR USING
THE PROGRAM YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU
ARE ACCEPTING THESE TERMS ON BEHALF OF ANOTHER PERSON OR A
COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU
HAVE FULL AUTHORITY TO BIND THAT PERSON, COMPANY, OR LEGAL
ENTITY TO THESE TERMS. IF YOU DO NOT AGREE TO THESE TERMS,
- DO NOT DOWNLOAD, INSTALL, COPY, ACCESS, OR USE THE
PROGRAM; AND
- PROMPTLY RETURN THE PROGRAM AND PROOF OF ENTITLEMENT TO
THE PARTY FROM WHOM YOU ACQUIRED IT TO OBTAIN A REFUND OF THE
AMOUNT YOU PAID. IF YOU DOWNLOADED THE PROGRAM, CONTACT THE PARTY
FROM WHOM YOU ACQUIRED IT.
"IBM" is International Business Machines Corporation or one
of its subsidiaries.
"License Information" ("LI") is a document that provides
information specific to a Program. The Program's LI is available at
http://www.ibm.com/software/sla/ . The LI may also be found in a
file in the Program's directory, by the use of a system command,
or as a booklet which accompanies the Program.
"Program" is the following, including the original and all
whole or partial copies: 1) machine-readable instructions and
data, 2) components, 3) audio-visual content (such as images,
text, recordings, or pictures), 4) related licensed materials,
and 5) license use documents or keys, and documentation.
A "Proof of Entitlement" ("PoE") is evidence of Your
authorization to use a Program at a specified level. That level may be
measured, for example, by the number of processors or users. The PoE
is also evidence of Your eligibility for warranty, future
upgrade prices, if any, and potential special or promotional
opportunities. If IBM does not provide You with a PoE, then IBM may accept
the original paid sales receipt or other sales record from the
party (either IBM or its reseller) from whom You acquired the
Program, provided that it specifies the name of the Program and the
usage level acquired.
"You" and "Your" refer either to an individual person or to
a single legal entity.
This Agreement includes Part 1 - General Terms, Part 2 -
Country-unique Terms (if any), License Information, and Proof of
Entitlement and is the complete agreement between You and IBM regarding
the use of the Program. It replaces any prior oral or written
communications between You and IBM concerning Your use of the Program. The
terms of Part 2 and License Information may replace or modify
those of Part 1. To the extent there is a conflict between the
terms of this Agreement and those of the IBM International
Passport Advantage Agreement, the terms of the latter agreement
prevail.
1. Entitlement
License
The Program is owned by IBM or an IBM supplier, and is
copyrighted and licensed, not sold.
IBM grants You a nonexclusive license to use the Program
when You lawfully acquire it.
You may 1) use the Program up to the level of use specified
in the PoE and 2) make and install copies, including a backup
copy, to support such use. The terms of this license apply to
each copy You make. You will reproduce all copyright notices and
all other legends of ownership on each copy, or partial copy,
of the Program.
If You acquire the Program as a program upgrade, after You
install the upgrade You may not use the Program from which You
upgraded or transfer it to another party.
You will ensure that anyone who uses the Program (accessed
either locally or remotely) does so only for Your authorized use
and complies with the terms of this Agreement.
You may not 1) use, copy, modify, or distribute the Program
except as provided in this Agreement; 2) reverse assemble, reverse
compile, or otherwise translate the Program except as specifically
permitted by law without the possibility of contractual waiver; or 3)
sublicense, rent, or lease the Program.
IBM may terminate Your license if You fail to comply with
the terms of this Agreement. If IBM does so, You must destroy
all copies of the Program and its PoE.
Money-back Guarantee
If for any reason You are dissatisfied with the Program and
You are the original licensee, You may obtain a refund of the
amount You paid for it, if within 30 days of Your invoice date You
return the Program and its PoE to the party from whom You obtained
it. If You downloaded the Program, You may contact the party
from whom You acquired it for instructions on how to obtain the
refund.
Program Transfer
You may transfer a Program and all of Your license rights
and obligations to another party only if that party agrees to
the terms of this Agreement. When You transfer the Program, You
must also transfer a copy of this Agreement, including the
Program's PoE. After the transfer, You may not use the Program.
2. Charges
The amount payable for a Program license is a one-time
charge.
One-time charges are based on the level of use acquired
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.
If You wish to increase the level of use, notify IBM or the
party from whom You acquired it and pay any applicable charges.
If any authority imposes a duty, tax, levy or fee,
excluding those based on IBM's net income, upon the Program, then You
agree to pay the amount specified or supply exemption
documentation. You are responsible for any personal property taxes for the
Program from the date that You acquire it.
3. Limited Warranty
IBM warrants that when the Program is used in the specified
operating environment it will conform to its specifications. 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. You are
responsible for the results obtained from the use of the Program.
IBM provides You 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 Guide for further information at http://www.ibm.
com/software/support . IBM will maintain this information for at least one year
after the original licensee acquires the Program ("Warranty
Period").
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, You may return the Program and its
PoE to the party (either IBM or its reseller) from whom You
acquired it and receive a refund in the amount You paid. If You
downloaded the Program, You may contact the party from whom You
acquired it for instructions on how to obtain the refund.
THESE WARRANTIES ARE YOUR EXCLUSIVE WARRANTIES AND REPLACE
ALL OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED,
INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. SOME STATES OR
JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF EXPRESS OR IMPLIED
WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. 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 YOU.
THESE WARRANTIES GIVE YOU SPECIFIC LEGAL RIGHTS AND YOU MAY
ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE OR
JURISDICTION TO JURISDICTION.
4. Limitation of Liability
Circumstances may arise where, because of a default on
IBM's part or other liability, You are entitled to recover
damages from IBM. In each such instance, regardless of the basis on
which You may be entitled to claim damages from IBM, (including
fundamental breach, negligence, misrepresentation, or other contract or
tort claim), IBM is liable for no more than 1) damages for
bodily injury (including death) and damage to real property and
tangible personal property and 2) the amount of any other actual
direct damages up to the charges for the Program that is the
subject of the claim.
This limitation of liability also applies to IBM's Program
developers and suppliers. It is the maximum for which they and IBM are
collectively responsible.
UNDER NO CIRCUMSTANCES IS IBM, ITS PROGRAM DEVELOPERS OR
SUPPLIERS LIABLE FOR ANY OF THE FOLLOWING, EVEN IF INFORMED OF THEIR
POSSIBILITY:
1. LOSS OF, OR DAMAGE TO, DATA;
2. SPECIAL, INCIDENTAL, OR INDIRECT DAMAGES, OR FOR ANY
ECONOMIC CONSEQUENTIAL DAMAGES; OR
3. LOST PROFITS, BUSINESS, REVENUE, GOODWILL, OR
ANTICIPATED SAVINGS.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION
OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE
LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
5. General
1. Nothing in this Agreement affects any statutory rights
of consumers that cannot be waived or limited by contract.
2. In the event that any provision of this Agreement is
held to be invalid or unenforceable, the remaining provisions of
this Agreement remain in full force and effect.
3. You agree to comply with all applicable export and
import laws and regulations.
4. You agree to allow IBM to store and use Your contact
information, including names, phone numbers, and e-mail addresses,
anywhere they do business. Such information will be processed and
used in connection with our business relationship, and may be
provided to contractors, Business Partners, and assignees of IBM for
uses consistent with their collective business activities,
including communicating with You (for example, for processing orders,
for promotions, and for market research).
5. Neither You nor IBM will bring a legal action under this
Agreement more than two years after the cause of action arose unless
otherwise provided by local law without the possibility of
contractual waiver or limitation.
6. Neither You nor IBM is responsible for failure to
fulfill any obligations due to causes beyond its control.
7. This Agreement will not create any right or cause of
action for any third party, nor will IBM be responsible for any
third party claims against You except, as permitted by the
Limitation of Liability section above, for bodily injury (including
death) or damage to real or tangible personal property for which
IBM is legally liable.
6. Governing Law, Jurisdiction, and Arbitration
Governing Law
Both You and IBM consent to the application of the laws of
the country in which You acquired the Program license to
govern, interpret, and enforce all of Your and IBM's 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.
The United Nations Convention on Contracts for the
International Sale of Goods does not apply.
Jurisdiction
All of our rights, duties, and obligations are subject to
the courts of the country in which You acquired the Program
license.
Part 2 - Country-unique Terms
AMERICAS
ARGENTINA: Governing Law, Jurisdiction, and Arbitration
(Section 6): The following exception is added to this section:
Any litigation arising from this Agreement will be settled
exclusively by the Ordinary Commercial Court of the city of Buenos
Aires.
BRAZIL: Governing Law, Jurisdiction, and Arbitration
(Section 6): The following exception is added to this section:
Any litigation arising from this Agreement will be settled
exclusively by the court of Rio de Janeiro, RJ.
CANADA: General (Section 5): The following replaces item 7:
7. This Agreement will not create any right or cause of
action for any third party, nor will IBM be responsible for any
third party claims against You 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.
Governing Law, Jurisdiction, and Arbitration (Section 6):
The phrase "the laws of the country in which You acquired the
Program license" in the Governing Law subsection is replaced by the
following:
the laws in the Province of Ontario
PERU: Limitation of Liability (Section 4): The following is
added at the end of this section:
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").
UNITED STATES OF AMERICA: General (Section 5): The
following is added to this section:
U.S. Government Users Restricted Rights - Use, duplication
or disclosure restricted by the GSA ADP Schedule Contract with
the IBM Corporation.
Governing Law, Jurisdiction, and Arbitration (Section 6):
The phrase "the laws of the country in which You acquired the
Program license" in the Governing Law subsection is replaced by the
following:
the laws of the State of New York, United States of America
ASIA PACIFIC
AUSTRALIA: Limited Warranty (Section 3): The following is
added:
The warranties specified in this Section are in addition to
any rights You may have under the Trade Practices Act 1974 or
other legislation and are only limited to the extent permitted by
the applicable legislation.
Limitation of Liability (Section 4): The following is added:
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 acquired for personal, domestic or household use or
consumption, then none of the limitations in this paragraph apply.
Governing Law, Jurisdiction, and Arbitration (Section 6):
The phrase "the laws of the country in which You acquired the
Program license" in the Governing Law subsection is replaced by the
following:
the laws of the State or Territory in which You acquired
the Program license
CAMBODIA, LAOS, and VIETNAM: Governing Law, Jurisdiction,
and Arbitration (Section 6): The phrase "the laws of the
country in which You acquired the Program license" in the Governing
Law subsection is replaced by the following:
the laws of the State of New York, United States of America
The following is added to this section:
Arbitration
Disputes arising out of or in connection with this
Agreement shall be finally settled by arbitration which shall be held
in Singapore in accordance with the Arbitration Rules of
Singapore International Arbitration Center ("SIAC Rules") then in
effect. The arbitration award shall be final and binding for the
parties without appeal and shall be in writing and set forth the
findings of fact and the conclusions of law.
The number of arbitrators shall be three, with each side to
the dispute being entitled to appoint one arbitrator. The two
arbitrators appointed by the parties shall appoint a third arbitrator
who shall act as chairman of the proceedings. Vacancies in the
post of chairman shall be filled by the president of the SIAC.
Other vacancies shall be filled by the respective nominating
party. Proceedings shall continue from the stage they were at when
the vacancy occurred.
If one of the parties refuses or otherwise fails to appoint
an arbitrator within 30 days of the date the other party
appoints its, the first appointed arbitrator shall be the sole
arbitrator, provided that the arbitrator was validly and properly
appointed.
All proceedings shall 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.
HONG KONG S.A.R. and MACAU S.A.R. of China: Governing Law,
Jurisdiction, and Arbitration (Section 6): The phrase "the laws of the
country in which You acquired the Program license" in the Governing
Law subsection is replaced by the following:
the laws of Hong Kong Special Administrative Region of China
INDIA: Limitation of Liability (Section 4): The following
replaces the terms of items 1 and 2 of the first paragraph:
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 You
for the individual Program that is the subject of the claim.
General (Section 5): The following replaces the terms of
item 5:
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.
Governing Law, Jurisdiction, and Arbitration (Section 6):
The following is added to this section:
Arbitration
Disputes arising out of or in connection with this
Agreement shall be finally settled by arbitration which shall be held
in Bangalore, India in accordance with the laws of India then
in effect. The arbitration award shall be final and binding
for the parties without appeal and shall be in writing and set
forth the findings of fact and the conclusions of law.
The number of arbitrators shall be three, with each side to
the dispute being entitled to appoint one arbitrator. The two
arbitrators appointed by the parties shall appoint a third arbitrator
who shall act as chairman of the proceedings. Vacancies in the
post of chairman shall be filled by the president of the Bar
Council of India. Other vacancies shall be filled by the respective
nominating party. Proceedings shall continue from the stage they were
at when the vacancy occurred.
If one of the parties refuses or otherwise fails to appoint
an arbitrator within 30 days of the date the other party
appoints its, the first appointed arbitrator shall be the sole
arbitrator, provided that the arbitrator was validly and properly
appointed.
All proceedings shall 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.
JAPAN: General (Section 5): The following is inserted after
item 5:
Any doubts concerning this Agreement will be initially
resolved between us in good faith and in accordance with the
principle of mutual trust.
MALAYSIA: Limitation of Liability (Section 4): The word
"SPECIAL" in item 2 of the third paragraph is deleted:
NEW ZEALAND: Limited Warranty (Section 3): The following is
added:
The warranties specified in this Section are in addition to
any rights You 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 You require the goods for the purposes of
a business as defined in that Act.
Limitation of Liability (Section 4): The following is added:
Where Programs are not acquired 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.
PEOPLE'S REPUBLIC OF CHINA: Charges (Section 2): The
following is added:
All banking charges incurred in the People's Republic of
China will be borne by You and those incurred outside the
People's Republic of China will be borne by IBM.
Governing Law, Jurisdiction, and Arbitration (Section 6):
The phrase "the laws of the country in which You acquired the
Program license" in the Governing Law subsection is replaced by the
following:
the laws of the State of New York, United States of America
(except when local law requires otherwise)
PHILIPPINES: Limitation of Liability (Section 4): The
following replaces the terms of item 2 of the third paragraph:
2. special (including nominal and exemplary damages),
moral, incidental, or indirect damages or for any economic
consequential damages; or
Governing Law, Jurisdiction, and Arbitration (Section 6):
The following is added to this section:
Arbitration
Disputes arising out of or in connection with this
Agreement shall be finally settled by arbitration which shall be held
in Metro Manila, Philippines in accordance with the laws of
the Philippines then in effect. The arbitration award shall be
final and binding for the parties without appeal and shall be in
writing and set forth the findings of fact and the conclusions of
law.
The number of arbitrators shall be three, with each side to
the dispute being entitled to appoint one arbitrator. The two
arbitrators appointed by the parties shall appoint a third arbitrator
who shall act as chairman of the proceedings. Vacancies in the
post of chairman shall be filled by the president of the
Philippine Dispute Resolution Center, Inc. Other vacancies shall be
filled by the respective nominating party. Proceedings shall
continue from the stage they were at when the vacancy occurred.
If one of the parties refuses or otherwise fails to appoint
an arbitrator within 30 days of the date the other party
appoints its, the first appointed arbitrator shall be the sole
arbitrator, provided that the arbitrator was validly and properly
appointed.
All proceedings shall 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.
SINGAPORE: Limitation of Liability (Section 4): The words
"SPECIAL" and "ECONOMIC" are deleted from item 2 of the third
paragraph.
General (Section 5): The following replaces the terms of
item 7:
Subject to the rights provided to IBM's suppliers and
Program developers as provided in Section 4 above (Limitation of
Liability), a person who is not a party to this Agreement shall have no
right under the Contracts (Right of Third Parties) Act to enforce
any of its terms.
TAIWAN: Limited Warranty (Section 3): The last paragraph is
deleted.
EUROPE, MIDDLE EAST, AFRICA (EMEA)
Limited Warranty (Section 3): In the European Union, the
following is added:
In the European Union, consumers have legal rights under
applicable national legislation governing the sale of consumer goods.
Such rights are not affected by the Limited Warranty provision
set out above at section 3 of this Agreement. The territorial
scope of the Limited Warranty is worldwide.
Limitation of Liability (Section 4): In Austria, Denmark,
Finland, Greece, Italy, Netherlands, Norway, Portugal, Spain, Sweden
and Switzerland, the following replaces the terms of this
section in its entirety:
Except as otherwise provided by mandatory law:
1. IBM's liability 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 You paid for the Program.
The above limitation shall not apply to damages for bodily
injuries (including death) and damages to real property and tangible
personal property for which IBM is legally liable.
2. 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 OR INDIRECT
DAMAGES, OR FOR ANY ECONOMIC CONSEQUENTIAL DAMAGES; 3) LOST PROFITS,
EVEN IF THEY ARISE AS AN IMMEDIATE CONSEQUENCE OF THE EVENT THAT
GENERATED THE DAMAGES; OR 4) LOSS OF BUSINESS, REVENUE, GOODWILL, OR
ANTICIPATED SAVINGS.
3. 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.
Limitation of Liability (Section 4): In France and Belgium,
the following replaces the terms of this section in its
entirety:
Except as otherwise provided by mandatory law:
1. IBM's liability for any damages and losses that may
arise as a consequence of the fulfillment of its obligations
under or in connection with 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), for a maximum
amount equal to the charges You paid for the Program that has
caused the damages.
The above limitation shall not apply to damages for bodily
injuries (including death) and damages to real property and tangible
personal property for which IBM is legally liable.
2. 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 OR INDIRECT
DAMAGES, OR FOR ANY ECONOMIC CONSEQUENTIAL DAMAGES; 3) LOST PROFITS,
EVEN IF THEY ARISE AS AN IMMEDIATE CONSEQUENCE OF THE EVENT THAT
GENERATED THE DAMAGES; OR 4) LOSS OF BUSINESS, REVENUE, GOODWILL, OR
ANTICIPATED SAVINGS.
3. 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
Governing Law, Jurisdiction, and Arbitration (Section 6)
Governing Law
The phrase "the laws of the country in which You acquired
the Program license" is replaced by:
1) "the laws of Austria" in Albania, Armenia, Azerbeijan,
Belarus, Bosnia-Herzegovina, Bulgaria, Croatia, Georgia, Hungary,
Kazakhstan, Kyrgyzstan, FYR Macedonia, Moldavia, Poland, Romania,
Russia, Slovakia, Slovenia, Tajikistan, Turkmenistan, Ukraine,
Uzbekistan, and FR Yugoslavia;
2) "the laws of France" in Algeria, 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 & Futuna;
3) "the laws of Finland" in Estonia, Latvia, and Lithuania;
4) "the laws of England" in Angola, Bahrain, Botswana,
Burundi, Egypt, Eritrea, Ethiopia, Ghana, Jordan, Kenya, Kuwait,
Liberia, Malawi, Malta, Mozambique, Nigeria, Oman, Pakistan, Qatar,
Rwanda, Sao Tome, Saudi Arabia, Sierra Leone, Somalia, Tanzania,
Uganda, United Arab Emirates, the United Kingdom, West Bank/Gaza,
Yemen, Zambia, and Zimbabwe; and
5) "the laws of South Africa" in South Africa, Namibia,
Lesotho and Swaziland.
Jurisdiction
The following exceptions are added to this section:
1) In Austria the choice of jurisdiction for all disputes
arising out of this Agreement and relating thereto, including its
existence, will be the competent court of law in Vienna, Austria
(Inner-City);
2) in Angola, Bahrain, Botswana, Burundi, Egypt, Eritrea,
Ethiopia, Ghana, Jordan, Kenya, Kuwait, Liberia, Malawi, Malta,
Mozambique, Nigeria, Oman, Pakistan, Qatar, Rwanda, Sao Tome, Saudi
Arabia, Sierra Leone, Somalia, Tanzania, Uganda, United Arab
Emirates, West Bank/Gaza, Yemen, Zambia, and Zimbabwe all disputes
arising out of this Agreement or related to its execution,
including summary proceedings, will be submitted to the exclusive
jurisdiction of the English courts;
3) in Belgium and Luxembourg, all disputes arising out of
this Agreement or related to its interpretation or its
execution, the law, and the courts of the capital city, of the country
of Your registered office and/or commercial site location only
are competent;
4) in France, Algeria, 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 & Futuna all disputes
arising out of this Agreement or related to its violation or
execution, including summary proceedings, will be settled exclusively
by the Commercial Court of Paris;
5) in Russia, all disputes arising out of or in relation to
the interpretation, the violation, the termination, the nullity
of the execution of this Agreement shall be settled by
Arbitration Court of Moscow;
6) in South Africa, Namibia, Lesotho and Swaziland, both of
us agree to submit all disputes relating to this Agreement to
the jurisdiction of the High Court in Johannesburg;
7) in Turkey all disputes arising out of or in connection
with this Agreement shall be resolved by the Istanbul Central
(Sultanahmet) Courts and Execution Directorates of Istanbul, the Republic
of Turkey;
8) in each of the following specified countries, any legal
claim arising out of this Agreement will be brought before, and
settled exclusively by, the competent court of a) Athens for
Greece, b) Tel Aviv-Jaffa for Israel, c) Milan for Italy, d) Lisbon
for Portugal, and e) Madrid for Spain; and
9) in the United Kingdom, both of us agree to submit all
disputes relating to this Agreement to the jurisdiction of the
English courts.
Arbitration
In Albania, Armenia, Azerbeijan, Belarus, Bosnia-
Herzegovina, Bulgaria, Croatia, Georgia, Hungary, Kazakhstan,
Kyrgyzstan, FYR Macedonia, Moldavia, Poland, Romania, Russia, Slovakia,
Slovenia, Tajikistan, Turkmenistan, Ukraine, Uzbekistan, and FR
Yugoslavia 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.
In Estonia, Latvia and Lithuania 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.
AUSTRIA: Limited Warranty (Section 3): The following is
inserted at the beginning of this Section:
The Warranty Period is twelve months from the date of
delivery. The limitation period for consumers in action for breach of
warranty is the statutory period as a minimum.
The warranty for a Program covers the functionality of the
Program for its normal use and the Program's conformity to its
specifications.
The final two paragraphs are replaced with the following:
This is our sole obligation to You, except as otherwise
required by applicable statutory law.
General (Section 5): The following is added to item 4:
For purposes of this clause, contact information will also
include information about You as a legal entity, for example
revenue data and other transactional information.
GERMANY: Limited Warranty (Section 3): The same changes
apply as those in Limited Warranty (Section 3) under Austria
above.
Limitation of Liability (Section 4): The following
paragraph is added to this Section:
The limitations and exclusions specified in this Section
will not apply to damages caused by IBM intentionally or by
gross negligence.
General (Section 5): The following replace the terms of
item 5:
Any claims resulting from this Agreement are subject to a
statute of limitation of three years, except as stated in Section 3
(Limited Warranty) of this Agreement.
HUNGARY: Limitation of Liability (Section 4): The following
is added at the end of this section:
The limitation and exclusion specified herein shall not
apply to liability for a breach of contract damaging life,
physical well-being, or health that has been caused intentionally,
by gross negligence, or by a criminal act.
The parties accept the limitations of liability as valid
provisions and state that the Section 314.(2) of the Hungarian Civil
Code applies as the acquisition price as well as other
advantages arising out of the present Agreement balance this
limitation of liability.
IRELAND: Limited Warranty (Section 3): The following is
added to this section:
Except as expressly provided in these terms and conditions,
all statutory conditions, including all warranties implied, but
without prejudice to the generality of the foregoing, all
warranties implied by the Sale of Goods Act 1893 or the Sale of Goods
and Supply of Services Act 1980 are hereby excluded.
Limitation of Liability (Section 4): The following replaces
the terms of this section in its entirety:
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 You whether in
contract or tort. A number of Defaults which together result in, or
contribute to, substantially the same loss or damage will be treated
as one Default occurring on the date of occurrence of the last
such Default.
Circumstances may arise where, because of a Default, You
are entitled to recover damages from IBM. This section sets out
the extent of IBM's liability and Your sole remedy.
1. IBM will accept unlimited liability for (a) death or
personal injury caused by the negligence of IBM, and (b) subject
always to the Items for Which IBM is Not Liable below, for
physical damage to Your tangible property resulting from the
negligence of IBM.
2. Except as provided in item 1 above, IBM's entire
liability for actual damages for any one Default will not in any
event exceed the greater of 1) EUR 125,000, or 2) 125% of the
amount You paid for the Program directly relating to the Default.
These limits also apply to any of IBM's suppliers and Program
developers. They state the maximum for which IBM and such suppliers and
Program developers are collectively responsible.
Items for Which IBM is Not Liable
Save with respect to any liability referred to in item 1
above, under no circumstances is IBM or any of its suppliers or
Program developers liable for any of the following, even if IBM or
they were informed of the possibility of such losses:
1. loss of, or damage to, data;
2. special, indirect, or consequential loss; or
3. loss of profits, business, revenue, goodwill, or
anticipated savings.
ITALY: General (Section 5): The following is added to this
section:
IBM and Customer (hereinafter, individually, "Party") shall
comply with all the obligations of the applicable provisions of
law and/or regulation on personal data protection. Each of the
Parties will indemnify and keep the other Party harmless from any
damage, claim, cost or expense incurred by the latter, directly and
or indirectly, as a consequence of an infringement of the
other Party of the mentioned provisions of law and/or
regulations.
SLOVAKIA: Limitation of Liability (Section 4): The
following is added to the end of the last paragraph:
The limitations apply to the extent they are not prohibited
under §§ 373-386 of the Slovak Commercial Code.
General (Section 5): The terms of item 5 are replaced with
the following:
THE PARTIES AGREE THAT ANY LEGAL OR OTHER ACTION RELATED TO
A BREACH OF THIS AGREEMENT MUST BE COMMENCED NO LATER AS
DEFINED BY THE LOCAL LAW (4 YEARS) FROM THE DATE ON WHICH THE CAUSE
OF ACTION AROSE.
SOUTH AFRICA, NAMIBIA, LESOTHO, SWAZILAND: Limited Warranty
(Section 3): The following is added at the end of the first
paragraph:
notwithstanding any advice or assistance that IBM may have
given to You prior to the selection of such Programs.
SWITZERLAND: General (Section 5): The following is added to
item 4:
For purposes of this clause, contact information will also
include information about You as a legal entity, for example
revenue data and other transactional information.
UNITED KINGDOM: Limited Warranty (Section 3): The following
replaces the first sentence in the fourth paragraph of this section:
THESE WARRANTIES ARE YOUR EXCLUSIVE WARRANTIES AND REPLACE
ALL OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED,
INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF
SATISFACTORY QUALITY, MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE.
Limitation of Liability (Section 4): The following replaces
the terms of this section in its entirety:
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 You, whether in
contract or tort. A number of Defaults which together result in, or
contribute to, substantially the same loss or damage will be treated
as one Default.
Circumstances may arise where, because of a Default, You
are entitled to recover damages from IBM. This section sets out
the extent of IBM's liability and Your sole remedy.
1. IBM will accept unlimited liability for:
(a) death or personal injury caused by the negligence of
IBM;
(b) any breach of its obligations implied by Section 12 of
the Sale of Goods Act 1979 or Section 2 of the Supply of Goods
and Services Act 1982, or any statutory modification or re-
enactment of either such Section; and
(c) subject always to the Items for Which IBM is Not Liable
below, for physical damage to Your tangible property resulting
from the negligence of IBM.
2. IBM's entire liability for actual damages for any one
Default will not in any event, except as provided in item 1 above,
exceed the greater of 1) £75,000, or 2) 125% of the amount You
paid for the Program directly relating to the Default. These
limits also apply to IBM's suppliers and Program developers. They
state the maximum for which IBM and such suppliers and Program
developers are collectively responsible.
Items for Which IBM is Not Liable
Save with respect to any liability referred to in item 1
above, under no circumstances is IBM or any of its suppliers or
Program developers liable for any of the following, even if IBM or
they were informed of the possibility of such losses:
1. loss of, or damage to, data;
2. special, indirect, or consequential loss; or
3. loss of profits, business, revenue, goodwill, or
anticipated savings.
Z125-3301-12 (11/2002)
LICENSE INFORMATION
The Programs listed below are licensed under the following
terms and conditions in addition to those of the International
Program License Agreement.
Program Name: IBM Rational Software Programs
Program Number: N/A
Authorization for Use on Home/Portable Computer: 1
EXPLANATIONS OF TERMS:
Authorization for Use on Home/Portable Computer:
"1" means that the Program may be stored on the primary
machine and another machine, provided that the Program is not in
active use on both machines at the same time.
"2" means that You may not copy and use this Program on
another computer without paying additional license fees.
Specified Operating Environment
The Program's specifications and specified operating
environment information may be found in documentation accompanying the
Program, if available, such as a read-me file, or other information
published by IBM, such as an announcement letter.
Excluded Components
Notwithstanding the terms and conditions of any other
agreement You may have with IBM or any of its related or affiliated
companies (collectively "IBM") or with any of the third parties that
provide IBM products ("Third Parties"), the following terms and
conditions apply to all "Excluded Components" identified below: (a)
all Excluded Components are provided on an "AS IS" basis; (b)
IBM AND THIRD PARTIES DISCLAIM ANY AND ALL EXPRESS AND IMPLIED
WARRANTIES AND CONDITIONS INCLUDING, BUT NOT LIMITED TO, THE WARRANTY
OF NON-INFRINGEMENT OR INTERFERENCE AND THE IMPLIED WARRANTIES
AND CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR
PURPOSE; (c) IBM and Third Parties will not be liable to You or
indemnify You for any claims related to the Excluded Components; and
(d) IBM and Third Parties will not be liable for any direct,
indirect, incidental, special, exemplary, punitive or consequential
damages with respect to the Excluded Components.
The following are Excluded Components:
1. Refer to "Legal Readme" file, "Excluded Components"
section.
Third Party Code
The Program and future updates and fixpacks to the Program
may contain certain third party components which are provided
to You under terms and conditions which are different from
this Agreement, or which require IBM or third parties that
provide IBM products ("Third Parties") to provide You with certain
notices and/or information. For each such third party component,
either IBM or Third Parties will identify such third party
component in a "README" file (or in an updated "README" file
accompanying the fixpack or update), or in a file or files referenced in
such "README" files (and shall include any associated license
agreement, notices and other related information therein), or the
third party component will contain or be accompanied by its own
license agreement (for example, provided when installing or
starting such component, or accompanying such component in a file
entitled "README", "COPYING", "LICENSE" or a substantially similar
title, or included among the Program's paper documentation, if
any). Your use of each third party component which contains or is
accompanied by its own license agreement, or for which IBM or Third
Parties have identified a license agreement in one of the above
"README" files (or in a file or files referenced therein), will be
subject to the terms and conditions of such other license
agreement, and not this Agreement. By using or not uninstalling such
third party components after the initial installation of such
third party components (thereby giving You access to the
applicable license agreements, notices and information), You
acknowledge and agree to all such license agreements, notices and
information, including those provided only in the English language. You
agree to review any updated "README" files which accompany
updates and fixpacks to the Program.
The Program contains the following third party components:
1. Refer to "Legal Readme" file, "Third Party Components"
section.
Program-unique Terms
License Type - Floating User License
You may utilize the Program, including installation of the
Program on multiple servers, provided that use of the Program
occurs via a license server, and the total number of concurrent
users does not exceed the total number of Floating User licenses
obtained for the Program.
License Type - Authorized User License
An Authorized User License must be obtained for each
individual user accessing the Program in any manner. Each Authorized
User License is attributable to one and only one individual
user. An Authorized User License may only be reassigned for the
long-term replacement of personnel. A Program licensed under an
Authorized User License may be installed on a single computer, and
accessed by multiple users, provided that an Authorized User License
has been obtained for each individual user. The Program may be
installed and used on a server, provided that a separate Authorized
User License is obtained for each individual user accessing the
Program.
IBM Rational Suites and Multi-Program Bundles
Programs may be licensed as part of an IBM Rational Suite,
or a multi-Program bundle. The separate Programs comprising
the suite or bundle may not be used simultaneously by different
users, and may be used by only one user at a time. Each separate
Program that is included as part of an IBM Rational Suite shall be
subject to all licensing properties of the IBM Rational Suite. If
third party software is bundled with any Program, the third party
software may not be unbundled from, or used independently of, the
Program.
IBM Rational ClearCase Runtime Components
If the Program is the IBM Rational ClearCase, You may not
create any software program which links, embeds or makes direct
function calls to the Program runtime components licensed to IBM by
third parties.
IBM Rational Test RealTime
If the Program is the IBM Rational Test RealTime, the
Program is licensed for internal use only; no portion of the
Program is redistributable in any manner. The Program contains
certain libraries, scripts, utilities, or add-ins that You may use
to make and modify executable code. However, you may not
distribute the executable code created from these runtime components.
IBM Rational Unified Process
If the Program is the IBM Rational Unified Process, the
Program is offered only under an Authorized User License with
additional restrictions. In addition to the terms of the Authorized
User License described above, a Authorized User License must be
obtained for each member of a project following the IBM Rational
Unified Process. You may create derivative works of the Program
only for internal business purposes, provided that each
individual user creating and/or utilizing such derivative works must
have a valid Authorized User License for the Program. Such
derivative works may not be distributed to any third party without the
prior written consent of IBM.
Redistribution of Runtime Components
The Programs listed below may include certain files or
modules that are designed to be redistributed as part of Your
application, e.g., runtime libraries, scripts, utilities or add-ins
("Runtime Components"). Unless such files or modules are subject to
other licenses provided with this license agreement, You may
distribute the Runtime Components if you have developed an application
that is dependent upon them, provided that (1) the Runtime
Components are in object code form, (2) they are redistributed as part
of Your application and not as standalone code, (3) You will
indemnify IBM from and against any third party claim arising out of
the use or distribution of your application, and (4) You may
not use the same path name as the original Runtime Component.
You may not use IBM's name or trademarks in connection with the
marketing of your applications without IBM's prior approval. IBM
provides copies of the Runtime Components "AS IS," i.e., You are
responsible for all technical assistance for Your application. In Your
license agreement with the recipient, You will notify the recipient
that these Runtime Components may not be (1) used for any
purpose other than to enable the application, (2) copied, except
for backup purposes, (3) further distributed, or (4) reverse
assembled, reverse compiled, or otherwise translated. Your application
containing a copy of the Runtime Components must be labeled as
follows: "Contains Runtime Modules of [Program Name] (c)Copyright
IBM Corporation 1987, 2003 All Rights Reserved."
Further, the Programs listed below may contain files or
modules that are provided in source code form, are marked as
restricted or provided as sample code ("Restricted Files"). Unless
such files or modules are subject to other licenses provided
with this license agreement, You may use such Restricted Files
internally and only to resolve problems related to the use of the
Program, to modify the Program or to create executables that are to
be included in Your application. You may not copy or
redistribute such Restricted Files themselves. You may reproduce and
distribute Your application with the executable code created from such
Restricted Files, provided that the executable code shall not
constitute a major portion of the value of Your application.
IBM Rational Ada Developer
IBM Rational Ada Developer Enterprise Edition
IBM Rational Ada Developer Interface for AXI
IBM Rational Ada Embedded Developer*
IBM Rational Ada Embedded Developer Enterprise Edition*
IBM Rational Rose Technical Developer
IBM Rational Suite for Technical Developers
IBM Rational Rapid Developer
IBM Rational PurifyPlus for Windows or UNIX
IBM Rational PurifyPlus Enterprise Edition
The IBM Rational Ada Embedded Developer and IBM Rational
Ada Embedded Developer Enterprise Edition Programs contain
certain Runtime Components identified as the Apex Embedded Ada
Runtime System that link to Your application. For each Program
license obtained, You may use these certain Runtime Components
internally, and You may make and distribute only one copy, and only in
object code form. For additional distribution of Your application
that contains these certain Runtime Components, You must obtain
the right to sublicense, for additional fees, for each copy of
Your application sold, transferred, or placed into use.
Eclipse Components
The following subset of Excluded Components was obtained
from Eclipse.org: Eclipse Help System 3.0, Ant 1.6.1, SAX, DOM,
Tomcat 4.1.30, MX4J, Lucine 1.3, Eclipse Rich Client Platform 3.0,
Mozilla API and SWT 3.0 (herein collectively referred to as
"Eclipse Code"). Notices and important information, including
instructions for obtaining source code, for the Eclipse Code may be
found in associated "about.html" files ("About Files") located in
a directory for the Eclipse Code.
THE FOLLOWING ADDITIONAL TERMS AND CONDITIONS APPLY TO
ECLIPSE HELP SYSTEM 3.0, AND THE ECLIPSE RICH CLIENT PLATFORM 3.0,
and SWT 3.0 including its components, WHICH ARE ACTUAL PROJECTS
MAINTAINED BY ECLIPSE.ORG ITSELF (COLLECTIVELY "ECLIPSE PROJECTS")
THE ECLIPSE PROJECTS WERE LICENSED BY IBM FROM ECLIPSE.ORG
UNDER THE TERMS OF THE COMMON PUBLIC LICENSE ("CPL"). THE
CONTRIBUTORS (AS DEFINED IN THE CPL) OF SUCH ECLIPSE PROJECTS HAVE
PROVIDED THEIR CONTRIBUTIONS "AS IS" WITHOUT WARRANTY OR CONDITION
OF ANY KIND EITHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING,
BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OR CONDITIONS OF
TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-
INFRINGEMENT. IN NO EVENT WILL THE CONTRIBUTORS BE LIABLE FOR ANY LOST
PROFITS, LOST SAVINGS, LOST REVENUE, LOST DATA, OR FOR ANY DIRECT,
INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, EVEN IF IBM
OR THE CONTRIBUTORS HAVE BEEN ADVISED OF THE POSSIBILITY OF
SUCH LOSSES OR DAMAGES. ANY PROVISIONS IN THE IBM PROGRAM
LICENSE AGREEMENT OR OTHER IBM END USER LICENSE THAT RELATE TO THE
ECLIPSE PROJECTS WHICH DIFFER FROM THE CPL ARE OFFERED BY IBM ALONE
AND NOT BY ANY OTHER PARTY INCLUDING, WITHOUT LIMITATION, ANY
CONTRIBUTOR.
Notwithstanding anything to the contrary in the About
Files, the following licenses apply to your use of the Eclipse
Code and Eclipse Project.
Your use of the object code is governed by the terms of
this end user license agreement unless otherwise set forth
above, subject to the Excluded Components provision(s).
D/N: L-TPAD-65JPAK
P/N: L-TPAD-65JPAK