International License Agreement for Early Release of Programs
Part 1 - General Terms
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,
* DO NOT DOWNLOAD, INSTALL, COPY, ACCESS, CLICK ON AN "ACCEPT"
BUTTON, OR USE THE PROGRAM; AND
* PROMPTLY RETURN THE UNUSED MEDIA AND DOCUMENTATION TO IBM. IF THE
PROGRAM WAS DOWNLOADED, DESTROY ALL COPIES OF THE PROGRAM.
1. Definitions
"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.
"Early Release" - a release of a Program for purposes of testing
prior to it being made commercially available that may still be
under development and therefore, potentially unreliable.
"IBM" - International Business Machines Corporation or one of its
subsidiaries.
"License Information" ("LI") - a document that provides information
and any additional terms specific to a Program. The Program's LI
can be found in the Program's directory, by the use of a system
command, or as a booklet included with the Program.
"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).
"Test Period" - the period during which the Licensee tests a
Program that has not been made commercially available to
customers.
2. Agreement Structure
This Agreement includes Part 1 - General Terms, Part 2 -
Country-unique Terms (if any) and the LI and is the complete
agreement between Licensee and IBM regarding the use of the
Program. It replaces any prior oral or written communications
between Licensee and IBM concerning Licensee's use of the Program.
The terms of Part 2 may replace or modify those of Part 1. To the
extent of any conflict, the LI prevails over both Parts.
3. License Grant
The Program is owned by IBM or an IBM supplier, and is copyrighted
and licensed, not sold.
IBM grants Licensee a limited, nonexclusive, nontransferable
license to 1) download, install, and use the Program during the
Test Period up to the Authorized Use specified in the LI solely for
test purposes and to provide feedback to IBM and 2) make a backup
copy, all provided that
a. Licensee has lawfully obtained the Program and complies with the
terms of this Agreement;
b. the backup copy does not execute unless the backed-up Program
cannot execute;
c. Licensee reproduces all copyright notices and other legends of
ownership on each copy, or partial copy, of the Program;
d. Licensee maintains a record of all copies of the Program and
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;
e. Licensee does not 1) use the Program for productive purposes or
otherwise 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; 4) sublicense, rent, or lease the
Program; or 5) use the Program for commercial application hosting;
and
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.)
This license applies to each copy of the Program that Licensee
makes.
3.1 Updates, Fixes, and Patches
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.
3.2 Term and Termination
The Test Period begins on the date Licensee agrees to the terms of
this Agreement and ends upon the earliest of 1) the end of the
duration or the date specified by IBM in either the License
Information or a transaction document, 2) the date on which the
Program automatically disables itself, or 3) the date on which IBM
makes the Program commercially available. Licensee's license to the
Program terminates at the end of the Test Period, and Licensee
agrees to promptly discontinue use of the Program and destroy all
of Licensee's copies of the Program within 10 days of the end of
the Test Period.
IBM may terminate Licensee's license if Licensee fails to comply
with the terms of this Agreement. 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.
THE PROGRAM MAY CONTAIN A DISABLING DEVICE THAT WILL PREVENT IT
FROM BEING USED AFTER THE TEST PERIOD ENDS. LICENSEE AGREES NOT TO
TAMPER WITH THE DISABLING DEVICE OR THE PROGRAM. LICENSEE SHOULD
TAKE PRECAUTIONS TO AVOID ANY LOSS OF DATA THAT MIGHT RESULT WHEN
THE PROGRAM CAN NO LONGER BE USED.
4. Charges
There is no charge for the use of the Program for the duration of
the Test Period.
5. Rights in Data
Licensee assigns to IBM all right, title, and interest (including
ownership of copyright) in any data, suggestions, or written
materials that 1) are related to the Program and 2) Licensee
provides to IBM. Upon IBM's request, Licensee will sign additional
documents necessary to assign such rights. In addition to the
foregoing, Licensee grants to IBM a non-exclusive, irrevocable,
unrestricted, worldwide and paid-up right and license to a) include
in any product or service any idea, know-how, concept, technique,
invention, discovery or improvement, whether or not patentable,
that Licensee provides to IBM related to the Program b) use,
manufacture and market any such product or service, and c) allow
others to do any of the foregoing.
6. No Warranties
SUBJECT TO ANY STATUTORY WARRANTIES THAT CANNOT BE EXCLUDED, IBM
MAKES NO WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, REGARDING
THE PROGRAM OR SUPPORT, IF ANY, INCLUDING, BUT NOT LIMITED TO, ANY
IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, SATISFACTORY
QUALITY, FITNESS FOR A PARTICULAR PURPOSE, AND TITLE, AND ANY
WARRANTY OR CONDITION OF NON-INFRINGEMENT.
SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF EXPRESS
OR IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO
LICENSEE. IN THAT EVENT, SUCH WARRANTIES ARE LIMITED IN DURATION TO
THE MINIMUM PERIOD REQUIRED BY LAW. NO WARRANTIES APPLY AFTER THAT
PERIOD. SOME STATES OR JURISDICTIONS DO NOT ALLOW LIMITATIONS ON
HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATION MAY NOT
APPLY TO LICENSEE. LICENSEE MAY HAVE OTHER RIGHTS THAT VARY FROM
STATE TO STATE OR JURISDICTION TO JURISDICTION.
THE DISCLAIMERS AND EXCLUSIONS IN THIS SECTION 6 ALSO APPLY TO ANY
OF IBM'S PROGRAM DEVELOPERS AND SUPPLIERS.
MANUFACTURERS, SUPPLIERS, OR PUBLISHERS OF NON-IBM PROGRAMS MAY
PROVIDE THEIR OWN WARRANTIES.
IBM DOES NOT PROVIDE SUPPORT OF ANY KIND, UNLESS IBM SPECIFIES
OTHERWISE. IN SUCH EVENT, ANY SUPPORT PROVIDED BY IBM IS SUBJECT TO
THE DISCLAIMERS AND EXCLUSIONS IN THIS SECTION 6.
7. Licensee Data and Databases
To assist Licensee in isolating the cause of a problem with the
Program, IBM may request that Licensee 1) allow IBM to remotely
access Licensee's system or 2) send Licensee information or system
data to IBM. However, IBM is not obligated to provide such
assistance unless IBM and Licensee enter a separate written
agreement under which IBM agrees to provide to Licensee that type
of support, which is beyond IBM's obligations in this Agreement. In
any event, IBM uses information about errors and problems to
improve its products and services, and assist with its provision of
related support offerings. For these purposes, IBM may use IBM
entities and subcontractors (including in one or more countries
other than the one in which Licensee is located), and Licensee
authorizes IBM to do so.
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.
8. Limitation of Liability
The limitations and exclusions in this Section 8 (Limitation of
Liability) apply to the full extent they are not prohibited by
applicable law without the possibility of contractual waiver.
8.1 Items for Which IBM May Be Liable
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 U.S. $10,000 (or
equivalent in local currency).
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.
8.2 Items for Which IBM Is Not Liable
UNDER NO CIRCUMSTANCES IS IBM, ITS PROGRAM DEVELOPERS OR SUPPLIERS
LIABLE FOR ANY OF THE FOLLOWING, EVEN IF INFORMED OF THEIR
POSSIBILITY:
a. LOSS OF, OR DAMAGE TO, DATA;
b. SPECIAL, INCIDENTAL, EXEMPLARY, OR INDIRECT DAMAGES, OR FOR ANY
ECONOMIC CONSEQUENTIAL DAMAGES; OR
c. LOST PROFITS, BUSINESS, REVENUE, GOODWILL, OR ANTICIPATED
SAVINGS.
9. Compliance Verification
For purposes of this Section 9 (Compliance Verification), "Early
Release 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.
The rights and obligations set forth in this Section 9 remain in
effect during the period the Program is licensed to Licensee, and
for two years thereafter.
9.1 Verification Process
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 Early
Release 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 Early Release Program
Terms.
Upon reasonable notice, IBM may verify Licensee's compliance with
Early Release Program Terms at all sites and for all environments
in which Licensee uses (for any purpose) Programs subject to Early
Release 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.
9.2 Resolution
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 Early
Release 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.
10. Third Party Notices
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.
11. General
a. Nothing in this Agreement affects any statutory rights of
consumers that cannot be waived or limited by contract.
b. 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.
c. Licensee is prohibited from exporting the Program.
d. 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.
e. 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.
f. 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.
g. Neither Licensee nor IBM is responsible for failure to fulfill
any obligations due to causes beyond its control.
h. 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 8.1 (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.
i. 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 6 (No Warranties) above; 2) the experiences or
recommendations of other parties; or 3) any results or savings that
Licensee may achieve.
j. 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.
k. 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.
l. IBM does not warrant that any version of the Program that is
formally released or made commercially available (if any) will be
similar to, or compatible with, Early Release versions.
m. Licensee may not assign this Agreement, in whole or in part,
without IBM's prior written consent. Any attempt to do so is
void.
n. 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.
o. Both parties agree that all information exchanged is
nonconfidential. If either party requires the exchange of
confidential information, it will be made under a signed
confidentiality agreement.
12. Geographic Scope and Governing Law
12.1 Governing Law
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.
The United Nations Convention on Contracts for the International
Sale of Goods does not apply.
12.2 Jurisdiction
All rights, duties, and obligations are subject to the courts of
the country in which Licensee obtained the Program license.
Part 2 - Country-unique Terms
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:
* Multiple country amendments to Part 1, Section 12 (Governing Law
and Jurisdiction);
* Americas country amendments to other Agreement terms;
* Asia Pacific country amendments to other Agreement terms;
and
* Europe, Middle East, and Africa country amendments to other
Agreement terms.
Multiple country amendments to Part 1, Section 12 (Governing Law
and Jurisdiction)
12.1 Governing Law
The phrase "the laws of the country in which Licensee obtained the
Program license" in the first paragraph of 12.1 Governing Law is
replaced by the following phrases in the countries below:
AMERICAS
(1) In Canada: the laws in the Province of Ontario;
(2) in Mexico: the federal laws of the Republic of Mexico;
(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;
(4) in Venezuela: the laws of the Bolivarian Republic of
Venezuela;
ASIA PACIFIC
(5) in Cambodia and Laos: the laws of the State of New York, United
States;
(6) in Australia: the laws of the State or Territory in which the
transaction is performed;
(7) in Hong Kong SAR and Macau SAR: the laws of Hong Kong Special
Administrative Region ("SAR");
(8) in Taiwan: the laws of Taiwan;
EUROPE, MIDDLE EAST, AND AFRICA
(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;
(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;
(11) in Estonia, Latvia, and Lithuania: the laws of Finland;
(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
(13) in South Africa, Namibia, Lesotho, and Swaziland: the laws of
the Republic of South Africa.
12.2 Jurisdiction
The following paragraph pertains to jurisdiction and replaces
Subsection 12.2 (Jurisdiction) as it applies for those countries
identified below:
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:
AMERICAS
(1) In Argentina: the Ordinary Commercial Court of the city of
Buenos Aires;
(2) in Brazil: the court of Rio de Janeiro, RJ;
(3) in Chile: the Civil Courts of Justice of Santiago;
(4) in Ecuador: the civil judges of Quito for executory or summary
proceedings (as applicable);
(5) in Mexico: the courts located in Mexico City, Federal
District;
(6) in Peru: the judges and tribunals of the judicial district of
Lima, Cercado;
(7) in Uruguay: the courts of the city of Montevideo;
(8) in Venezuela: the courts of the metropolitan area of the city
of Caracas;
EUROPE, MIDDLE EAST, AND AFRICA
(9) in Austria: the court of law in Vienna, Austria (Inner-
City);
(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;
(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;
(12) in South Africa, Namibia, Lesotho, and Swaziland: the High
Court in Johannesburg;
(13) in Greece: the competent court of Athens;
(14) in Israel: the courts of Tel Aviv-Jaffa;
(15) in Italy: the courts of Milan;
(16) in Portugal: the courts of Lisbon;
(17) in Spain: the courts of Madrid; and
(18) in Turkey: the Istanbul Central Courts and Execution
Directorates of Istanbul, the Republic of Turkey.
12.3 Arbitration
The following paragraph is added as a new Subsection 12.3
(Arbitration) as it applies for those countries identified below.
The provisions of this Subsection 12.3 prevail over those of
Subsection 12.2 (Jurisdiction) to the extent permitted by the
applicable governing law and rules of procedure:
ASIA PACIFIC
(1) In Cambodia, India, Laos, Philippines, and Vietnam:
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.
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.
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.
(2) In the People's Republic of China:
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.
(3) In Indonesia:
Each party will allow the other reasonable opportunity to comply
before it claims that the other has not met its obligations under
this Agreement. The parties will attempt in good faith to resolve
all disputes, disagreements, or claims between the parties relating
to this Agreement. Unless otherwise required by applicable law
without the possibility of contractual waiver or limitation, i)
neither party will bring a legal action, regardless of form,
arising out of or related to this Agreement or any transaction
under it more than two years after the cause of action arose; and
ii) after such time limit, any legal action arising out of this
Agreement or any transaction under it and all respective rights
related to any such action lapse.
Disputes arising out of or in connection with this Agreement shall
be finally settled by arbitration that shall be held in Jakarta,
Indonesia in accordance with the rules of Board of the Indonesian
National Board of Arbitration (Badan Arbitrase Nasional Indonesia
or "BANI") then in effect. The arbitration award shall be final and
binding for the parties without appeal and shall be in writing and
set forth the findings of fact and the conclusions of law.
The number of arbitrators shall be three, with each side to the
dispute being entitled to appoint one arbitrator. The two
arbitrators appointed by the parties shall appoint a third
arbitrator who shall act as chairman of the proceedings. Vacancies
in the post of chairman shall be filled by the chairman of the
BANI. Other vacancies shall be filled by the respective nominating
party. Proceedings shall continue from the stage they were at when
the vacancy occurred.
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 and/or Indonesian
language.
EUROPE, MIDDLE EAST, AND AFRICA
(4) In Albania, Armenia, Azerbaijan, Belarus, Bosnia- Herzegovina,
Bulgaria, Croatia, Former Yugoslav Republic of Macedonia, Georgia,
Hungary, Kazakhstan, Kyrgyzstan, Moldova, Montenegro, Poland,
Romania, Russia, Serbia, Slovakia, Tajikistan, Turkmenistan,
Ukraine, and Uzbekistan:
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.
(5) 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.
AMERICAS COUNTRY AMENDMENTS
CANADA
8.1 Items for Which IBM May Be Liable
The following replaces Item 1 in the first paragraph of this
Subsection 8.1 (Items for Which IBM May Be Liable):
1) damages for bodily injury (including death) and physical harm to
real property and tangible personal property caused by IBM's
negligence; and
11. General
The following replaces Item 11.h:
h. 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.
The following is added as Item 11.p:
p. For purposes of this Item 11.p, "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:
(1) General
(a) Each party is responsible for complying with any obligations
applying to it under applicable Canadian data privacy laws and
regulations ("Laws").
(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.
(2) Security Safeguards
(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.
(b) Each party will ensure that Personal Data is protected in
accordance with the security safeguards communicated and agreed to
by the other.
(c) Each party will ensure that any third party to whom Personal
Data is transferred is bound by the applicable terms of this
section.
(d) Additional or different services required to comply with the
Laws will be deemed a request for new services.
(3) Use
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.
(4) Access Requests
(a) Each party agrees to reasonably cooperate with the other in
connection with requests to access or amend Personal Data.
(b) Each party agrees to reimburse the other for any reasonable
charges incurred in providing each other assistance.
(c) Each party agrees to amend Personal Data only upon receiving
instructions to do so from the other party or its personnel.
(5) Retention
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.
(6) Public Bodies Who Are Subject to Public Sector Privacy
Legislation
For Licensees who are public bodies subject to public sector
privacy legislation, this Item 11.p applies only to Personal Data
made available to Licensee in connection with this Agreement, and
the obligations in this section apply only to Licensee, except
that: 1) section (2)(a) applies only to IBM; 2) sections (1) (a)
and (4)(a) apply to both parties; and 3) section (4)(b) and the
last sentence in (1)(b) do not apply.
PERU
8. Limitation of Liability
The following is added to the end of this Section 8 (Limitation of
Liability):
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.
8.1 Items for Which IBM May Be Liable
The following is added to the end of this Subsection 8.1:
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
11. General
The following is added to Section 11 as Item 11.p:
p. U.S. Government Users Restricted Rights - Use, duplication or
disclosure is restricted by the GSA IT Schedule 70 Contract with
the IBM Corporation.
The following is added to Item 11.e:
Each party waives any right to a jury trial in any proceeding
arising out of or related to this Agreement.
ASIA PACIFIC COUNTRY AMENDMENTS
AUSTRALIA
6. No Warranties
The following is added to the first paragraph of Section 6 (No
Warranties):
Although IBM specifies that there are no warranties, Licensee may
have certain rights under the Competition and Consumer Act 2010 or
other legislation and are only limited to the extent permitted by
the applicable legislation.
8.1 Items for Which IBM May Be Liable
The following is added to Subsection 8.1 (Items for Which IBM May
Be Liable):
Where IBM is in breach of a condition or warranty implied by the
Competition and Consumer Act 2010, IBM's liability is limited to
the repair or replacement of the goods, or the supply of equivalent
goods. Where that condition or warranty relates to right to sell,
quiet possession or clear title, or the goods are of a kind
ordinarily obtained for personal, domestic or household use or
consumption, then none of the limitations in this paragraph
apply.
HONG KONG SAR, MACAU SAR, AND TAIWAN
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:
(1) In Hong Kong SAR: "Hong Kong SAR"
(2) In Macau SAR: "Macau SAR" except in the Governing Law clause
(Section 12.1)
(3) In Taiwan: "Taiwan."
INDIA
8.1 Items for Which IBM May Be Liable
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 Licensee for the
individual Program that is the subject of the claim.
11. General
The following replaces the terms of Item 11.f:
f. 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.
INDONESIA
3.2 Term and Termination
The following is added to the last paragraph:
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.
JAPAN
11. General
The following is added as Item 11.p:
p. Any doubts concerning this Agreement will be initially resolved
between us in good faith and in accordance with the principle of
mutual trust.
MALAYSIA
8.2 Items for Which IBM Is Not Liable
The word "SPECIAL" in Item 8.2b is deleted.
NEW ZEALAND
6. No Warranties
The following is added to the first paragraph of this Section 6 (No
Warranties):
Although IBM specifies that there are no warranties, Licensee may
have certain rights under the Consumer Guarantees Act 1993 or other
legislation which cannot be excluded or limited. The Consumer
Guarantees Act 1993 will not apply in respect of any goods which
IBM provides, if Licensee requires the goods for the purposes of a
business as defined in that Act.
8. Limitation of Liability
The following is added:
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.
PHILIPPINES
8.2 Items for Which IBM Is Not Liable
The following replaces the terms of Item 8.2b:
b. special (including nominal and exemplary damages), moral,
incidental, or indirect damages or for any economic consequential
damages; or
SINGAPORE
8.2 Items for Which IBM Is Not Liable
The words "SPECIAL" and "ECONOMIC" are deleted from Item 8.2
b.
11. General
The following replaces the terms of Item 11.h:
h. Subject to the rights provided to IBM's suppliers and Program
developers as provided in Section 8 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.
TAIWAN
8.1 Items for Which IBM May Be Liable
The following sentences are deleted:
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.
EUROPE, MIDDLE EAST, AFRICA (EMEA) COUNTRY AMENDMENTS
EUROPEAN UNION MEMBER STATES
6. No Warranties
The following is added to Section 6 (No Warranties):
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 6 (No Warranties).
EU MEMBER STATES AND THE COUNTRIES IDENTIFIED BELOW
Iceland, Liechtenstein, Norway, Switzerland, Turkey, and any other
European country that has enacted local data privacy or protection
legislation similar to the EU model.
11. General
The following replaces Item 11.d:
(1) Definitions - For the purposes of this Item 11.d, the following
additional definitions apply:
(a) Business Contact Information - business-related contact
information disclosed by Licensee to IBM, including names, job
titles, business addresses, telephone numbers and email addresses
of Licensee's employees and contractors. For Austria, Italy and
Switzerland, Business Contact Information also includes information
about Licensee and its contractors as legal entities (for example,
Licensee's revenue data and other transactional information)
(b) Business Contact Personnel - Licensee employees and contractors
to whom the Business Contact Information relates.
(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.
(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.
(e) IBM Group - International Business Machines Corporation of
Armonk, New York, USA, its subsidiaries, and their respective
Business Partners and subcontractors.
(2) Licensee authorizes IBM:
(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
(b) to disclose Business Contact Information to other members of
IBM Group in pursuit of the Specified Purpose only.
(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.
(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.
(5) Licensee authorizes IBM to transfer Business Contact
Information outside the European Economic Area, provided that the
transfer is made on contractual terms approved by the Data
Protection Authority or the transfer is otherwise permitted under
the Data Protection & Electronic Communications
Legislation.
AUSTRIA
8. Limitation of Liability
The following is added:
The following limitations and exclusions of IBM's liability do not
apply for damages caused by gross negligence or willful
misconduct.
8.1 Items for Which IBM May Be Liable
The following replaces the first sentence in the first
paragraph:
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.
In the second sentence of the first paragraph, delete entirely the
parenthetical phrase:
"(including fundamental breach, negligence, misrepresentation, or
other contract or tort claim)".
8.2 Items for Which IBM Is Not Liable
The following replaces Item 8.2b:
b. indirect damages or consequential damages; or
BELGIUM, FRANCE, ITALY, AND LUXEMBOURG
8. Limitation of Liability
The following replaces the terms of Section 8 (Limitation of
Liability) in its entirety:
Except as otherwise provided by mandatory law:
8.1 Items for Which IBM May Be Liable
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 of EUR 500,000 (five hundred thousand
euro).
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.
8.2 Items for Which IBM Is Not Liable
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.
8.3 Suppliers and Program Developers
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.
GERMANY
8. Limitation of Liability
The following replaces this Section 8 (Limitation of Liability) in
its entirety:
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.
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 500,000 euro 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.
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.
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.
11. General
The following replaces the provisions of 11.f:
f. Any claims resulting from this Agreement are subject to a
limitation period of three years, except as stated in Section 6 (No
Warranties) of this Agreement.
The following replaces the provisions of 11.h:
h. 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 8
(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.
IRELAND
6. No Warranties
The following paragraph is added to the second paragraph of this
Section 5 (No Warranties):
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).
IRELAND AND UNITED KINGDOM
2. Agreement Structure
The following sentence is added:
Nothing in this paragraph shall have the effect of excluding or
limiting liability for fraud.
8.1 Items for Which IBM May Be Liable
The following replaces the first paragraph of the Subsection:
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.
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 500,000 euro (or the
equivalent in local currency) 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.
8.2 Items for Which IBM Is Not Liable
The following replaces Items 8.2b and 8.2c:
b. special, incidental, exemplary, or indirect damages or
consequential damages; or
c. wasted management time or lost profits, business, revenue,
goodwill, or anticipated savings.
Z125-5544-05 (07/2011)
LICENSE INFORMATION
The Programs listed below are licensed under the following terms
and conditions in addition to those of the IBM International
License Agreement for Early Release of Programs (IBM form number
Z125-5544-05).
Program Name: IBM Integration Bus V10.0 Open Beta
Program Number: Early Release
Program Name: IBM Integration Bus for z/OS V10.0 Open Beta
Program Number: Early Release
Test Period
The test period begins on the date that Licensee agrees to the
terms of this Agreement and ends after 180 days.
Supporting Programs
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. A
Supporting Program may be accompanied by license terms, and those
terms, if any, apply to Licensee's use of that Supporting Program.
In the event of conflict, the terms in this License Information
document supersede the Supporting Program's terms. 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.
The following are Supporting Programs licensed with the
Program:
- IBM Support Assistant Data Collector V2.0.1
- IBM WebSphere Adapter for JD Edwards EnterpriseOne V7.5
- IBM WebSphere Adapter for PeopleSoft Enterprise V7.5
- IBM WebSphere Adapter for SAP Software V7.5
- IBM WebSphere Adapter for Siebel Business Applications V7.
5
- IBM WebSphere MQ V7.5
Separately Licensed Code
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.
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.
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.
Note: Notwithstanding any of the terms in the third party license
agreement, the Agreement, or any other agreement Licensee may have
with IBM:
(a) IBM provides this Separately Licensed Code to Licensee WITHOUT
WARRANTIES OF ANY KIND;
(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;
(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
(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.
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.
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.
The following are Separately Licensed Code:
HL7
Sandcastle Help File Builder
Source Components and Sample Materials
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.
Program-unique Terms
Distributable Microsoft Code
The distribution of the Program that is released for Microsoft
Windows operating systems contains some distributable code (source
code and DLLs) from Microsoft Corporation ('Microsoft Code').
Licensee may not exploit any distributable Microsoft Code (i.e.,
source code and DLLs), unless Licensee separately downloads (or
otherwise properly obtains) its own copy of the Microsoft source
and DLLs directly from Microsoft. Licensee will be subject to the
terms and conditions of the Microsoft license that accompanies such
Microsoft source code and DLLs (and not the terms and conditions of
this license), which will apply to the use and distribution (if
any) by Licensee of such material downloaded or otherwise by
Licensee.
The Program contains sample source code that is derived from the
distributable Microsoft Code in source code form. Licensee must not
include any such sample source code derived from distributable
Microsoft Code in any malicious, deceptive or unlawful program.
L/N: L-ACRR-9GYFPA
D/N: L-ACRR-9GYFPA
P/N: L-ACRR-9GYFPA
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