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: WebSphere Application Server Developer Tools
for Eclipse 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 90 days.
L/N: L-SWIS-9GXQRV
D/N: L-SWIS-9GXQRV
P/N: L-SWIS-9GXQRV