solidDB 6.0
International Program License Agreement
Part 1 - General Terms
BY DOWNLOADING, INSTALLING, COPYING, ACCESSING, OR USING THE PROGRAM
YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ACCEPTING THESE
TERMS ON BEHALF OF ANOTHER PERSON OR A COMPANY OR OTHER LEGAL ENTITY,
YOU REPRESENT AND WARRANT THAT YOU HAVE FULL AUTHORITY TO BIND THAT
PERSON, COMPANY, OR LEGAL ENTITY TO THESE TERMS. IF YOU DO NOT AGREE
TO THESE TERMS,
- DO NOT DOWNLOAD, INSTALL, COPY, ACCESS, OR USE THE PROGRAM; AND
- PROMPTLY RETURN THE PROGRAM AND PROOF OF ENTITLEMENT TO THE PARTY
FROM WHOM YOU ACQUIRED IT TO OBTAIN A REFUND OF THE AMOUNT YOU
PAID. IF YOU DOWNLOADED THE PROGRAM, CONTACT THE PARTY FROM WHOM YOU
ACQUIRED IT.
"IBM" is International Business Machines Corporation or one of its
subsidiaries.
"License Information" ("LI") is a document that provides information
specific to a Program. The Program's LI is available at
http://www.ibm.com/software/sla/ . The LI may also be found in a file
in the Program's directory, by the use of a system command, or as a
booklet which accompanies the Program.
"Program" is the following, including the original and all whole or
partial copies: 1) machine-readable instructions and data, 2)
components, 3) audio-visual content (such as images, text, recordings,
or pictures), 4) related licensed materials, and 5) license use
documents or keys, and documentation.
A "Proof of Entitlement" ("PoE") is evidence of Your authorization to
use a Program at a specified level. That level may be measured, for
example, by the number of processors or users. The PoE is also
evidence of Your eligibility for warranty, future upgrade prices, if
any, and potential special or promotional opportunities. If IBM does
not provide You with a PoE, then IBM may accept the original paid
sales receipt or other sales record from the party (either IBM or its
reseller) from whom You acquired the Program, provided that it
specifies the name of the Program and the usage level acquired.
"You" and "Your" refer either to an individual person or to a single
legal entity.
This Agreement includes Part 1 - General Terms, Part 2 -
Country-unique Terms (if any), License Information, and Proof of
Entitlement and is the complete agreement between You and IBM
regarding the use of the Program. It replaces any prior oral or
written communications between You and IBM concerning Your use of the
Program. The terms of Part 2 and License Information may replace or
modify those of Part 1. To the extent there is a conflict between the
terms of this Agreement and those of the IBM International Passport
Advantage Agreement, the terms of the latter agreement prevail.
1. Entitlement
License
The Program is owned by IBM or an IBM supplier, and is copyrighted and
licensed, not sold.
IBM grants You a nonexclusive license to use the Program when You
lawfully acquire it.
You may 1) use the Program up to the level of use specified in the PoE
and 2) make and install copies, including a backup copy, to support
such use. The terms of this license apply to each copy You make. You
will reproduce all copyright notices and all other legends of
ownership on each copy, or partial copy, of the Program.
If You acquire the Program as a program upgrade, after You install the
upgrade You may not use the Program from which You upgraded or
transfer it to another party.
You will ensure that anyone who uses the Program (accessed either
locally or remotely) does so only for Your authorized use and complies
with the terms of this Agreement.
You may not 1) use, copy, modify, or distribute the Program except as
provided in this Agreement; 2) reverse assemble, reverse compile, or
otherwise translate the Program except as specifically permitted by
law without the possibility of contractual waiver; or 3) sublicense,
rent, or lease the Program.
IBM may terminate Your license if You fail to comply with the terms of
this Agreement. If IBM does so, You must destroy all copies of the
Program and its PoE.
Money-back Guarantee
If for any reason You are dissatisfied with the Program and You are
the original licensee, You may obtain a refund of the amount You paid
for it, if within 30 days of Your invoice date You return the Program
and its PoE to the party from whom You obtained it. If You downloaded
the Program, You may contact the party from whom You acquired it for
instructions on how to obtain the refund.
Program Transfer
You may transfer a Program and all of Your license rights and
obligations to another party only if that party agrees to the terms of
this Agreement. When You transfer the Program, You must also transfer
a copy of this Agreement, including the Program's PoE. After the
transfer, You may not use the Program.
2. Charges
The amount payable for a Program license is a one-time charge.
One-time charges are based on the level of use acquired which is
specified in the PoE. IBM does not give credits or refunds for charges
already due or paid, except as specified elsewhere in this Agreement.
If You wish to increase the level of use, notify IBM or the party from
whom You acquired it and pay any applicable charges.
If any authority imposes a duty, tax, levy or fee, excluding those
based on IBM's net income, upon the Program, then You agree to pay the
amount specified or supply exemption documentation. You are
responsible for any personal property taxes for the Program from the
date that You acquire it.
3. Limited Warranty
IBM warrants that when the Program is used in the specified operating
environment it will conform to its specifications. The warranty
applies only to the unmodified portion of the Program. IBM does not
warrant uninterrupted or error-free operation of the Program or that
IBM will correct all Program defects. You are responsible for the
results obtained from the use of the Program.
IBM provides You with access to IBM databases containing information
on known Program defects, defect corrections, restrictions, and
bypasses at no additional charge. Consult the IBM Software Support
Guide for further information at http://www.ibm.com/software/support
. IBM will maintain this information for at least one year after the
original licensee acquires the Program ("Warranty Period").
If the Program does not function as warranted during the Warranty
Period and the problem cannot be resolved with information available
in the IBM databases, You may return the Program and its PoE to the
party (either IBM or its reseller) from whom You acquired it and
receive a refund in the amount You paid. If You downloaded the
Program, You may contact the party from whom You acquired it for
instructions on how to obtain the refund.
THESE WARRANTIES ARE YOUR EXCLUSIVE WARRANTIES AND REPLACE ALL OTHER
WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, BUT NOT
LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY
AND FITNESS FOR A PARTICULAR PURPOSE. SOME STATES OR JURISDICTIONS DO
NOT ALLOW THE EXCLUSION OF EXPRESS OR IMPLIED WARRANTIES, SO THE ABOVE
EXCLUSION MAY NOT APPLY TO YOU. IN THAT EVENT, SUCH WARRANTIES ARE
LIMITED IN DURATION TO THE WARRANTY PERIOD. NO WARRANTIES APPLY AFTER
THAT PERIOD. SOME STATES OR JURISDICTIONS DO NOT ALLOW LIMITATIONS ON
HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATION MAY NOT
APPLY TO YOU.
THESE WARRANTIES GIVE YOU SPECIFIC LEGAL RIGHTS AND YOU MAY ALSO HAVE
OTHER RIGHTS WHICH VARY FROM STATE TO STATE OR JURISDICTION TO
JURISDICTION.
4. Limitation of Liability
Circumstances may arise where, because of a default on IBM's part or
other liability, You are entitled to recover damages from IBM. In each
such instance, regardless of the basis on which You may be entitled to
claim damages from IBM, (including fundamental breach, negligence,
misrepresentation, or other contract or tort claim), IBM is liable for
no more than 1) damages for bodily injury (including death) and damage
to real property and tangible personal property and 2) the amount of
any other actual direct damages up to the charges for the Program that
is the subject of the claim.
This limitation of liability also applies to IBM's Program developers
and suppliers. It is the maximum for which they and IBM are
collectively responsible.
UNDER NO CIRCUMSTANCES IS IBM, ITS PROGRAM DEVELOPERS OR SUPPLIERS
LIABLE FOR ANY OF THE FOLLOWING, EVEN IF INFORMED OF THEIR
POSSIBILITY:
1. LOSS OF, OR DAMAGE TO, DATA;
2. SPECIAL, INCIDENTAL, OR INDIRECT DAMAGES, OR FOR ANY ECONOMIC
CONSEQUENTIAL DAMAGES; OR
3. LOST PROFITS, BUSINESS, REVENUE, GOODWILL, OR ANTICIPATED SAVINGS.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF
INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR
EXCLUSION MAY NOT APPLY TO YOU.
5. General
1. Nothing in this Agreement affects any statutory rights of consumers
that cannot be waived or limited by contract.
2. In the event that any provision of this Agreement is held to be
invalid or unenforceable, the remaining provisions of this Agreement
remain in full force and effect.
3. You agree to comply with all applicable export and import laws and
regulations.
4. You agree to allow IBM to store and use Your contact information,
including names, phone numbers, and e-mail addresses, anywhere they do
business. Such information will be processed and used in connection
with our business relationship, and may be provided to contractors,
Business Partners, and assignees of IBM for uses consistent with their
collective business activities, including communicating with You (for
example, for processing orders, for promotions, and for market
research).
5. Neither You nor IBM will bring a legal action under this Agreement
more than two years after the cause of action arose unless otherwise
provided by local law without the possibility of contractual waiver or
limitation.
6. Neither You nor IBM is responsible for failure to fulfill any
obligations due to causes beyond its control.
7. This Agreement will not create any right or cause of action for any
third party, nor will IBM be responsible for any third party claims
against You except, as permitted by the Limitation of Liability
section above, for bodily injury (including death) or damage to real
or tangible personal property for which IBM is legally liable.
6. Governing Law, Jurisdiction, and Arbitration
Governing Law
Both You and IBM consent to the application of the laws of the country
in which You acquired the Program license to govern, interpret, and
enforce all of Your and IBM's rights, duties, and obligations arising
from, or relating in any manner to, the subject matter of this
Agreement, without regard to conflict of law principles.
The United Nations Convention on Contracts for the International Sale
of Goods does not apply.
Jurisdiction
All of our rights, duties, and obligations are subject to the courts
of the country in which You acquired the Program license.
Part 2 - Country-unique Terms
AMERICAS
ARGENTINA: Governing Law, Jurisdiction, and Arbitration (Section 6):
The following exception is added to this section:
Any litigation arising from this Agreement will be settled exclusively
by the Ordinary Commercial Court of the city of Buenos Aires.
BRAZIL: Governing Law, Jurisdiction, and Arbitration (Section 6): The
following exception is added to this section:
Any litigation arising from this Agreement will be settled exclusively
by the court of Rio de Janeiro, RJ.
CANADA: General (Section 5): The following replaces item 7:
7. This Agreement will not create any right or cause of action for any
third party, nor will IBM be responsible for any third party claims
against You except as permitted by the Limitation of Liability section
above for bodily injury (including death) or physical harm to real or
tangible personal property caused by IBM's negligence for which IBM is
legally liable.
Governing Law, Jurisdiction, and Arbitration (Section 6): The phrase
"the laws of the country in which You acquired the Program license" in
the Governing Law subsection is replaced by the following:
the laws in the Province of Ontario
PERU: Limitation of Liability (Section 4): The following is added at
the end of this section:
In accordance with Article 1328 of the Peruvian Civil Code, the
limitations and exclusions specified in this section will not apply to
damages caused by IBM's willful misconduct ("dolo") or gross
negligence ("culpa inexcusable").
UNITED STATES OF AMERICA: General (Section 5): The following is added
to this section:
U.S. Government Users Restricted Rights - Use, duplication or
disclosure restricted by the GSA ADP Schedule Contract with the IBM
Corporation.
Governing Law, Jurisdiction, and Arbitration (Section 6): The phrase
"the laws of the country in which You acquired the Program license" in
the Governing Law subsection is replaced by the following:
the laws of the State of New York, United States of America
ASIA PACIFIC
AUSTRALIA: Limited Warranty (Section 3): The following is added:
The warranties specified in this Section are in addition to any rights
You may have under the Trade Practices Act 1974 or other legislation
and are only limited to the extent permitted by the applicable
legislation.
Limitation of Liability (Section 4): The following is added:
Where IBM is in breach of a condition or warranty implied by the Trade
Practices Act 1974, IBM's liability is limited to the repair or
replacement of the goods, or the supply of equivalent goods. Where
that condition or warranty relates to right to sell, quiet possession
or clear title, or the goods are of a kind ordinarily acquired for
personal, domestic or household use or consumption, then none of the
limitations in this paragraph apply.
Governing Law, Jurisdiction, and Arbitration (Section 6): The phrase
"the laws of the country in which You acquired the Program license" in
the Governing Law subsection is replaced by the following:
the laws of the State or Territory in which You acquired the Program
license
CAMBODIA, LAOS, and VIETNAM: Governing Law, Jurisdiction, and
Arbitration (Section 6): The phrase "the laws of the country in which
You acquired the Program license" in the Governing Law subsection is
replaced by the following:
the laws of the State of New York, United States of America
The following is added to this section:
Arbitration
Disputes arising out of or in connection with this Agreement shall be
finally settled by arbitration which shall be held in Singapore in
accordance with the Arbitration Rules of Singapore International
Arbitration Center ("SIAC Rules") then in effect. The arbitration
award shall be final and binding for the parties without appeal and
shall be in writing and set forth the findings of fact and the
conclusions of law.
The number of arbitrators shall be three, with each side to the
dispute being entitled to appoint one arbitrator. The two arbitrators
appointed by the parties shall appoint a third arbitrator who shall
act as chairman of the proceedings. Vacancies in the post of chairman
shall be filled by the president of the SIAC. Other vacancies shall be
filled by the respective nominating party. Proceedings shall continue
from the stage they were at when the vacancy occurred.
If one of the parties refuses or otherwise fails to appoint an
arbitrator within 30 days of the date the other party appoints its,
the first appointed arbitrator shall be the sole arbitrator, provided
that the arbitrator was validly and properly appointed.
All proceedings shall be conducted, including all documents presented
in such proceedings, in the English language. The English language
version of this Agreement prevails over any other language version.
HONG KONG S.A.R. and MACAU S.A.R. of China: Governing Law,
Jurisdiction, and Arbitration (Section 6): The phrase "the laws of the
country in which You acquired the Program license" in the Governing
Law subsection is replaced by the following:
the laws of Hong Kong Special Administrative Region of China
INDIA: Limitation of Liability (Section 4): The following replaces the
terms of items 1 and 2 of the first paragraph:
1) liability for bodily injury (including death) or damage to real
property and tangible personal property will be limited to that caused
by IBM's negligence; and 2) as to any other actual damage arising in
any situation involving nonperformance by IBM pursuant to, or in any
way related to the subject of this Agreement, IBM's liability will be
limited to the charge paid by You for the individual Program that is
the subject of the claim.
General (Section 5): The following replaces the terms of item 5:
If no suit or other legal action is brought, within three years after
the cause of action arose, in respect of any claim that either party
may have against the other, the rights of the concerned party in
respect of such claim will be forfeited and the other party will stand
released from its obligations in respect of such claim.
Governing Law, Jurisdiction, and Arbitration (Section 6): The
following is added to this section:
Arbitration
Disputes arising out of or in connection with this Agreement shall be
finally settled by arbitration which shall be held in Bangalore, India
in accordance with the laws of India then in effect. The arbitration
award shall be final and binding for the parties without appeal and
shall be in writing and set forth the findings of fact and the
conclusions of law.
The number of arbitrators shall be three, with each side to the
dispute being entitled to appoint one arbitrator. The two arbitrators
appointed by the parties shall appoint a third arbitrator who shall
act as chairman of the proceedings. Vacancies in the post of chairman
shall be filled by the president of the Bar Council of India. Other
vacancies shall be filled by the respective nominating
party. Proceedings shall continue from the stage they were at when the
vacancy occurred.
If one of the parties refuses or otherwise fails to appoint an
arbitrator within 30 days of the date the other party appoints its,
the first appointed arbitrator shall be the sole arbitrator, provided
that the arbitrator was validly and properly appointed.
All proceedings shall be conducted, including all documents presented
in such proceedings, in the English language. The English language
version of this Agreement prevails over any other language version.
JAPAN: General (Section 5): The following is inserted after item 5:
Any doubts concerning this Agreement will be initially resolved
between us in good faith and in accordance with the principle of
mutual trust.
MALAYSIA: Limitation of Liability (Section 4): The word "SPECIAL" in
item 2 of the third paragraph is deleted:
NEW ZEALAND: Limited Warranty (Section 3): The following is added:
The warranties specified in this Section are in addition to any rights
You may have under the Consumer Guarantees Act 1993 or other
legislation which cannot be excluded or limited. The Consumer
Guarantees Act 1993 will not apply in respect of any goods which IBM
provides, if You require the goods for the purposes of a business as
defined in that Act.
Limitation of Liability (Section 4): The following is added:
Where Programs are not acquired for the purposes of a business as
defined in the Consumer Guarantees Act 1993, the limitations in this
Section are subject to the limitations in that Act.
PEOPLE'S REPUBLIC OF CHINA: Charges (Section 2): The following is
added:
All banking charges incurred in the People's Republic of China will be
borne by You and those incurred outside the People's Republic of China
will be borne by IBM.
Governing Law, Jurisdiction, and Arbitration (Section 6): The phrase
"the laws of the country in which You acquired the Program license" in
the Governing Law subsection is replaced by the following:
the laws of the State of New York, United States of America (except
when local law requires otherwise)
PHILIPPINES: Limitation of Liability (Section 4): The following
replaces the terms of item 2 of the third paragraph:
2. special (including nominal and exemplary damages), moral,
incidental, or indirect damages or for any economic consequential
damages; or
Governing Law, Jurisdiction, and Arbitration (Section 6): The
following is added to this section:
Arbitration
Disputes arising out of or in connection with this Agreement shall be
finally settled by arbitration which shall be held in Metro Manila,
Philippines in accordance with the laws of the Philippines then in
effect. The arbitration award shall be final and binding for the
parties without appeal and shall be in writing and set forth the
findings of fact and the conclusions of law.
The number of arbitrators shall be three, with each side to the
dispute being entitled to appoint one arbitrator. The two arbitrators
appointed by the parties shall appoint a third arbitrator who shall
act as chairman of the proceedings. Vacancies in the post of chairman
shall be filled by the president of the Philippine Dispute Resolution
Center, Inc. Other vacancies shall be filled by the respective
nominating party. Proceedings shall continue from the stage they were
at when the vacancy occurred.
If one of the parties refuses or otherwise fails to appoint an
arbitrator within 30 days of the date the other party appoints its,
the first appointed arbitrator shall be the sole arbitrator, provided
that the arbitrator was validly and properly appointed.
All proceedings shall be conducted, including all documents presented
in such proceedings, in the English language. The English language
version of this Agreement prevails over any other language version.
SINGAPORE: Limitation of Liability (Section 4): The words "SPECIAL"
and "ECONOMIC" are deleted from item 2 of the third paragraph.
General (Section 5): The following replaces the terms of item 7:
Subject to the rights provided to IBM's suppliers and Program
developers as provided in Section 4 above (Limitation of Liability), a
person who is not a party to this Agreement shall have no right under
the Contracts (Right of Third Parties) Act to enforce any of its
terms.
TAIWAN: Limited Warranty (Section 3): The last paragraph is deleted.
EUROPE, MIDDLE EAST, AFRICA (EMEA)
Limited Warranty (Section 3): In the European Union, the following is
added:
In the European Union, consumers have legal rights under applicable
national legislation governing the sale of consumer goods. Such rights
are not affected by the Limited Warranty provision set out above at
section 3 of this Agreement. The territorial scope of the Limited
Warranty is worldwide.
Limitation of Liability (Section 4): In Austria, Denmark, Finland,
Greece, Italy, Netherlands, Norway, Portugal, Spain, Sweden and
Switzerland, the following replaces the terms of this section in its
entirety:
Except as otherwise provided by mandatory law:
1. IBM's liability for any damages and losses that may arise as a
consequence of the fulfillment of its obligations under or in
connection with this agreement or due to any other cause related to
this agreement is limited to the compensation of only those damages
and losses proved and actually arising as an immediate and direct
consequence of the non-fulfillment of such obligations (if IBM is at
fault) or of such cause, for a maximum amount equal to the charges You
paid for the Program.
The above limitation shall not apply to damages for bodily injuries
(including death) and damages to real property and tangible personal
property for which IBM is legally liable.
2. UNDER NO CIRCUMSTANCES IS IBM, OR ANY OF ITS PROGRAM DEVELOPERS,
LIABLE FOR ANY OF THE FOLLOWING, EVEN IF INFORMED OF THEIR
POSSIBILITY: 1) LOSS OF, OR DAMAGE TO, DATA; 2) INCIDENTAL OR INDIRECT
DAMAGES, OR FOR ANY ECONOMIC CONSEQUENTIAL DAMAGES; 3) LOST PROFITS,
EVEN IF THEY ARISE AS AN IMMEDIATE CONSEQUENCE OF THE EVENT THAT
GENERATED THE DAMAGES; OR 4) LOSS OF BUSINESS, REVENUE, GOODWILL, OR
ANTICIPATED SAVINGS.
3. The limitation and exclusion of liability herein agreed applies not
only to the activities performed by IBM but also to the activities
performed by its suppliers and Program developers, and represents the
maximum amount for which IBM as well as its suppliers and Program
developers, are collectively responsible.
Limitation of Liability (Section 4): In France and Belgium, the
following replaces the terms of this section in its entirety:
Except as otherwise provided by mandatory law:
1. IBM's liability for any damages and losses that may arise as a
consequence of the fulfillment of its obligations under or in
connection with this agreement is limited to the compensation of only
those damages and losses proved and actually arising as an immediate
and direct consequence of the non-fulfillment of such obligations (if
IBM is at fault), for a maximum amount equal to the charges You paid
for the Program that has caused the damages.
The above limitation shall not apply to damages for bodily injuries
(including death) and damages to real property and tangible personal
property for which IBM is legally liable.
2. UNDER NO CIRCUMSTANCES IS IBM, OR ANY OF ITS PROGRAM DEVELOPERS,
LIABLE FOR ANY OF THE FOLLOWING, EVEN IF INFORMED OF THEIR
POSSIBILITY: 1) LOSS OF, OR DAMAGE TO, DATA; 2) INCIDENTAL OR INDIRECT
DAMAGES, OR FOR ANY ECONOMIC CONSEQUENTIAL DAMAGES; 3) LOST PROFITS,
EVEN IF THEY ARISE AS AN IMMEDIATE CONSEQUENCE OF THE EVENT THAT
GENERATED THE DAMAGES; OR 4) LOSS OF BUSINESS, REVENUE, GOODWILL, OR
ANTICIPATED SAVINGS.
3. The limitation and exclusion of liability herein agreed applies not
only to the activities performed by IBM but also to the activities
performed by its suppliers and Program developers, and represents the
maximum amount for which IBM as well as its suppliers and Program
developers, are collectively responsible
Governing Law, Jurisdiction, and Arbitration (Section 6)
Governing Law
The phrase "the laws of the country in which You acquired the Program
license" is replaced by:
1) "the laws of Austria" in Albania, Armenia, Azerbaijan, Belarus,
Bosnia-Herzegovina, Bulgaria, Croatia, Georgia, Hungary,
Kazakhstan, Kyrgyzstan, FYR Macedonia, Moldavia, Poland, Romania,
Russia, Slovakia, Slovenia, Tajikistan, Turkmenistan, Ukraine,
Uzbekistan, and FR Yugoslavia;
2) "the laws of France" in Algeria, Benin, Burkina Faso, Cameroon,
Cape Verde, Central African Republic, Chad, Comoros, Congo
Republic, Djibouti, Democratic Republic of Congo, Equatorial
Guinea, French Guiana, French Polynesia, Gabon, Gambia, Guinea,
Guinea-Bissau, Ivory Coast, Lebanon, Madagascar, Mali, Mauritania,
Mauritius, Mayotte, Morocco, New Caledonia, Niger, Reunion,
Senegal, Seychelles, Togo, Tunisia, Vanuatu, and Wallis & Futuna;
3) "the laws of Finland" in Estonia, Latvia, and Lithuania;
4) "the laws of England" in Angola, Bahrain, Botswana, Burundi, Egypt,
Eritrea, Ethiopia, Ghana, Jordan, Kenya, Kuwait, Liberia, Malawi,
Malta, Mozambique, Nigeria, Oman, Pakistan, Qatar, Rwanda, Sao
Tome, Saudi Arabia, Sierra Leone, Somalia, Tanzania, Uganda, United
Arab Emirates, the United Kingdom, West Bank/Gaza, Yemen, Zambia,
and Zimbabwe; and
5) "the laws of South Africa" in South Africa, Namibia, Lesotho and
Swaziland.
Jurisdiction
The following exceptions are added to this section:
1) In Austria the choice of jurisdiction for all disputes arising out
of this Agreement and relating thereto, including its existence, will
be the competent court of law in Vienna, Austria (Inner-City);
2) in Angola, Bahrain, Botswana, Burundi, Egypt, Eritrea, Ethiopia,
Ghana, Jordan, Kenya, Kuwait, Liberia, Malawi, Malta, Mozambique,
Nigeria, Oman, Pakistan, Qatar, Rwanda, Sao Tome, Saudi Arabia, Sierra
Leone, Somalia, Tanzania, Uganda, United Arab Emirates, West
Bank/Gaza, Yemen, Zambia, and Zimbabwe all disputes arising out of
this Agreement or related to its execution, including summary
proceedings, will be submitted to the exclusive jurisdiction of the
English courts;
3) in Belgium and Luxembourg, for all disputes arising out of this
Agreement or related to its interpretation or its execution, only the
law and the courts of the capital of the country in which Your
registered office and/or commercial office is located are competent;
4) in France, Algeria, Benin, Burkina Faso, Cameroon, Cape Verde,
Central African Republic, Chad, Comoros, Congo Republic, Djibouti,
Democratic Republic of Congo, Equatorial Guinea, French Guiana, French
Polynesia, Gabon, Gambia, Guinea, Guinea-Bissau, Ivory Coast, Lebanon,
Madagascar, Mali, Mauritania, Mauritius, Mayotte, Morocco, New
Caledonia, Niger, Reunion, Senegal, Seychelles, Togo, Tunisia,
Vanuatu, and Wallis & Futuna all disputes arising out of this
Agreement or related to its violation or execution, including summary
proceedings, will be settled exclusively by the Commercial Court of
Paris;
5) in Russia, all disputes arising out of or in relation to the
interpretation, the violation, the termination, the nullity of the
execution of this Agreement shall be settled by Arbitration Court of
Moscow;
6) in South Africa, Namibia, Lesotho and Swaziland, both of us agree
to submit all disputes relating to this Agreement to the jurisdiction
of the High Court in Johannesburg;
7) in Turkey all disputes arising out of or in connection with this
Agreement shall be resolved by the Istanbul Central (Sultanahmet)
Courts and Execution Directorates of Istanbul, the Republic of Turkey;
8) in each of the following specified countries, any legal claim
arising out of this Agreement will be brought before, and settled
exclusively by, the competent court of a) Athens for Greece, b) Tel
Aviv-Jaffa for Israel, c) Milan for Italy, d) Lisbon for Portugal, and
e) Madrid for Spain; and
9) in the United Kingdom, both of us agree to submit all disputes
relating to this Agreement to the jurisdiction of the English courts.
Arbitration
In Albania, Armenia, Azerbaijan, Belarus, Bosnia-Herzegovina,
Bulgaria, Croatia, Georgia, Hungary, Kazakhstan, Kyrgyzstan, FYR
Macedonia, Moldavia, Poland, Romania, Russia, Slovakia, Slovenia,
Tajikistan, Turkmenistan, Ukraine, Uzbekistan, and FR Yugoslavia all
disputes arising out of this Agreement or related to its violation,
termination or nullity will be finally settled under the Rules of
Arbitration and Conciliation of the International Arbitral Center of
the Federal Economic Chamber in Vienna (Vienna Rules) by three
arbitrators appointed in accordance with these rules.
The arbitration will be held in Vienna, Austria, and the official
language of the proceedings will be English. The decision of the
arbitrators will be final and binding upon both parties. Therefore,
pursuant to paragraph 598 (2) of the Austrian Code of Civil Procedure,
the parties expressly waive the application of paragraph 595 (1)
figure 7 of the Code. IBM may, however, institute proceedings in a
competent court in the country of installation.
In Estonia, Latvia and Lithuania all disputes arising in connection
with this Agreement will be finally settled in arbitration that will
be held in Helsinki, Finland in accordance with the arbitration laws
of Finland then in effect. Each party will appoint one arbitrator. The
arbitrators will then jointly appoint the chairman. If arbitrators
cannot agree on the chairman, then the Central Chamber of Commerce in
Helsinki will appoint the chairman.
AUSTRIA: Limited Warranty (Section 3): The following is inserted at
the beginning of this Section:
The Warranty Period is twelve months from the date of delivery. The
limitation period for consumers in action for breach of warranty is
the statutory period as a minimum.
The warranty for a Program covers the functionality of the Program for
its normal use and the Program's conformity to its specifications.
The final two paragraphs are replaced with the following:
This is our sole obligation to You, except as otherwise required by
applicable statutory law.
General (Section 5): The following is added to item 4:
For purposes of this clause, contact information will also include
information about You as a legal entity, for example revenue data and
other transactional information.
GERMANY: Limited Warranty (Section 3): The same changes apply as those
in Limited Warranty (Section 3) under Austria above.
Limitation of Liability (Section 4): The following paragraph is added
to this Section:
The limitations and exclusions specified in this Section will not
apply to damages caused by IBM intentionally or by gross negligence.
General (Section 5): The following replace the terms of item 5:
Any claims resulting from this Agreement are subject to a statute of
limitation of three years, except as stated in Section 3 (Limited
Warranty) of this Agreement.
HUNGARY: Limitation of Liability (Section 4): The following is added
at the end of this section:
The limitation and exclusion specified herein shall not apply to
liability for a breach of contract damaging life, physical well-being,
or health that has been caused intentionally, by gross negligence, or
by a criminal act.
The parties accept the limitations of liability as valid provisions
and state that the Section 314.(2) of the Hungarian Civil Code applies
as the acquisition price as well as other advantages arising out of
the present Agreement balance this limitation of liability.
IRELAND: Limited Warranty (Section 3): The following is added to this
section:
Except as expressly provided in these terms and conditions, all
statutory conditions, including all warranties implied, but without
prejudice to the generality of the foregoing, all warranties implied
by the Sale of Goods Act 1893 or the Sale of Goods and Supply of
Services Act 1980 are hereby excluded.
Limitation of Liability (Section 4): The following replaces the terms
of this section in its entirety:
For the purposes of this section, a "Default" means any act,
statement, omission, or negligence on the part of IBM in connection
with, or in relation to, the subject matter of an Agreement in respect
of which IBM is legally liable to You whether in contract or tort. A
number of Defaults which together result in, or contribute to,
substantially the same loss or damage will be treated as one Default
occurring on the date of occurrence of the last such Default.
Circumstances may arise where, because of a Default, You are entitled
to recover damages from IBM. This section sets out the extent of IBM's
liability and Your sole remedy.
1. IBM will accept unlimited liability for (a) death or personal
injury caused by the negligence of IBM, and (b) subject always to the
Items for Which IBM is Not Liable below, for physical damage to Your
tangible property resulting from the negligence of IBM.
2. Except as provided in item 1 above, IBM's entire liability for
actual damages for any one Default will not in any event exceed the
greater of 1) EUR 125,000, or 2) 125% of the amount You paid for the
Program directly relating to the Default. These limits also apply to
any of IBM's suppliers and Program developers. They state the maximum
for which IBM and such suppliers and Program developers are
collectively responsible.
Items for Which IBM is Not Liable
Save with respect to any liability referred to in item 1 above, under
no circumstances is IBM or any of its suppliers or Program developers
liable for any of the following, even if IBM or they were informed of
the possibility of such losses:
1. loss of, or damage to, data;
2. special, indirect, or consequential loss; or
3. loss of profits, business, revenue, goodwill, or anticipated
savings.
ITALY: General (Section 5): The following is added to this section:
IBM and Customer (hereinafter, individually, "Party") shall comply
with all the obligations of the applicable provisions of law and/or
regulation on personal data protection. Each of the Parties will
indemnify and keep the other Party harmless from any damage, claim,
cost or expense incurred by the latter, directly and or indirectly, as
a consequence of an infringement of the other Party of the mentioned
provisions of law and/or regulations.
SLOVAKIA: Limitation of Liability (Section 4): The following is added
to the end of the last paragraph:
The limitations apply to the extent they are not prohibited under §§
373-386 of the Slovak Commercial Code.
General (Section 5): The terms of item 5 are replaced with the
following:
THE PARTIES AGREE THAT ANY LEGAL OR OTHER ACTION RELATED TO A BREACH
OF THIS AGREEMENT MUST BE COMMENCED NO LATER AS DEFINED BY THE LOCAL
LAW (4 YEARS) FROM THE DATE ON WHICH THE CAUSE OF ACTION AROSE.
SOUTH AFRICA, NAMIBIA, LESOTHO, SWAZILAND: Limited Warranty (Section
3): The following is added at the end of the first paragraph:
notwithstanding any advice or assistance that IBM may have given to
You prior to the selection of such Programs.
SWITZERLAND: General (Section 5): The following is added to item 4:
For purposes of this clause, contact information will also include
information about You as a legal entity, for example revenue data and
other transactional information.
UNITED KINGDOM: Limited Warranty (Section 3): The following replaces
the first sentence in the fourth paragraph of this section:
THESE WARRANTIES ARE YOUR EXCLUSIVE WARRANTIES AND REPLACE ALL OTHER
WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, BUT NOT
LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF SATISFACTORY
QUALITY, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
Limitation of Liability (Section 4): The following replaces the terms
of this section in its entirety:
For the purposes of this section, a "Default" means any act,
statement, omission, or negligence on the part of IBM in connection
with, or in relation to, the subject matter of an Agreement in respect
of which IBM is legally liable to You, whether in contract or tort. A
number of Defaults which together result in, or contribute to,
substantially the same loss or damage will be treated as one Default.
Circumstances may arise where, because of a Default, You are entitled
to recover damages from IBM. This section sets out the extent of IBM's
liability and Your sole remedy.
1. IBM will accept unlimited liability for:
(a) death or personal injury caused by the negligence of IBM;
(b) any breach of its obligations implied by Section 12 of the Sale of
Goods Act 1979 or Section 2 of the Supply of Goods and Services Act
1982, or any statutory modification or re-enactment of either such
Section; and
(c) subject always to the Items for Which IBM is Not Liable below, for
physical damage to Your tangible property resulting from the
negligence of IBM.
2. IBM's entire liability for actual damages for any one Default will
not in any event, except as provided in item 1 above, exceed the
greater of 1) £75,000, or 2) 125% of the amount You paid for the
Program directly relating to the Default. These limits also apply to
IBM's suppliers and Program developers. They state the maximum for
which IBM and such suppliers and Program developers are collectively
responsible.
Items for Which IBM is Not Liable
Save with respect to any liability referred to in item 1 above, under
no circumstances is IBM or any of its suppliers or Program developers
liable for any of the following, even if IBM or they were informed of
the possibility of such losses:
1. loss of, or damage to, data;
2. special, indirect, or consequential loss; or
3. loss of profits, business, revenue, goodwill, or anticipated
savings.
Z125-3301-12 (06/2006)
LICENSE INFORMATION
The Programs listed below are licensed under the following terms and
conditions in addition to those of the International Program License
Agreement.
Program Name: IBM solidDB 4.5
Program Number: 5724-V11
Authorization for Use on Home/Portable Computer: The Program may be
stored on the primary machine and another machine, provided that the
Program is not in active use on both machines at the same time.
Program Name: IBM solidDB 6.0
Program Number: 5724-V11
Authorization for Use on Home/Portable Computer: The Program may be
stored on the primary machine and another machine, provided that the
Program is not in active use on both machines at the same time.
Limited Use Rights for Other IBM Programs
If You acquired this Program as part of another IBM Program
("Principal Program") that lists this Program under "Other IBM
Programs", You received this Program only in support of the Principal
Program, and Your rights to use this Program will be limited by the
license of the Principal Program. Please contact Your IBM Sales
Representative if You wish to acquire a separate license to this
Program not limited by the Principal Program's license terms.
Excluded Components
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. The components listed below are "Excluded Components."
Notwithstanding any of the terms in the Agreement or any other
agreement You may have with IBM:
(a) the third party suppliers of such Excluded Components
("Suppliers") provide the components WITHOUT WARRANTIES OF ANY
KIND and, such Suppliers DISCLAIM 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 EXCLUDED COMPONENTS;
(b) in no event are the Suppliers 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 Excluded Components; and,
(c) IBM and the Suppliers are not liable to You, and will not defend,
indemnify, or hold You harmless for any claims arising from or
related to the Excluded Components.
Notwithstanding these exclusions, in Germany and Austria, IBM's
warranty and liability for the Excluded Components is governed only by
the respective terms applicable for Germany and Austria in the IBM
license agreements.
Notices and important information that IBM is required to provide to
You with respect to the Excluded Components, including instructions
for obtaining source code for certain Excluded Components, may be
found in the NOTICES file(s) that accompanies the Program.
Your use of the Excluded Components is governed by the terms of the
Agreement and not by any terms that may be contained in the NOTICES
file(s). The terms contained in the Agreement are offered by IBM and
not by any other party. Future Program updates or fixpacks may contain
additional Excluded Components. Such additional Excluded Components,
and related notices and information, if any, will be listed in another
NOTICES file that accompanies the Program update or fixpack.
The following are Excluded Components:
* CRC32
* DES, Java Implementation
* Qsort
* zlib v. 1.2.3
Specified Operating Environment
The Program's specifications and specified operating environment
information may be found in documentation accompanying the Program, if
available, such as a read-me file, or other information published by
IBM, such as an announcement letter. You agree that such documentation
and other Program content may be supplied only in the English
language.
Program-unique Terms
1) License Key Registration
Before using this Program, You agree to register the appropriate
license keys. The license keys are included with Your Proof of
Entitlement (PoE).
2) Charge Metrics
Charges for this Program are based on one of the following
metrics. Consult Your PoE to determine which usage terms apply to this
Program.
2.1) Processor Package
If You have acquired this Program based upon Processor Packages, then
this Program is licensed based on the number of single core or
multi-core processors (in either case, a "Processor Package") that are
attached or available to the data server or servers on which it is
installed. You must acquire separate processor licenses for each of
the Processor Packages that are attached or available to the server.
2.2) Value Units (VU)
If You have acquired this Program based upon Value Units, then this
Program is licensed based on the number of Value Units that apply to
the processor cores that are attached or available to the servers on
which this Program is installed. You must acquire separate Value Unit
licenses for each of the processor cores that are attached or
available to the server.
The total number of processors attached or available may not exceed
the number authorized by the applicable Value Unit PoE(s).
The Value Unit licensing model is described at the following URL:
http://www.ibm.com/software/sw-lotus/services/cwepassport.nsf/wdocs/pvu_licensing_for_customers
3) High Availability/Failover Configurations
You must license all servers that participate in these configurations
under the same charge metric. In this Section 3, the term "Charge
Unit" refers to either a Processor Package or to a Value Unit, as
applicable depending on the applicable charge metric specified in Your
PoE as described in Section 2 above.
After a server is fully licensed, it can be used to service user
workload. In High Availability configurations this server is called a
Primary server; additional servers acting as backups are called
Standby servers that may be deployed in Hot, Idle or Cold
configurations.
In Hot, Idle or Cold Standby configurations, You must acquire a
correct number of Charge Units in addition to the Charge Units You
obtained for the Primary server.
3.1) Hot Standby
In a Hot Standby configuration, the Program is operational on all
servers to service user transactions or queries. Because each of the
Hot Standby servers is used to operate the Program for user
transactions or queries before and after a failure, the Program must
be fully licensed on all Hot Standby Servers.
In Hot Standby, You must license the Program for the number of Charge
Units that apply to the processors attached or available to all Hot
Standby server(s). For example, consider an environment with two
servers, one Primary server with four processors and one Hot Standby
server with two processors. This environment must be licensed for the
Charge Units that apply to all six processors (four for the Primary
server and two for the Hot Standby server).
3.2) Idle Standby
In an Idle Standby configuration, Idle Standby servers have the
Program installed, however, they do not have the Program servicing
user transactions or query workloads. A server is considered Idle if
it is used exclusively for administrative actions that assist in
failover scenarios.
If You are licensing under the Value Unit charge metric, then in Idle
Standby, You must license the Program for 100 Value Units per Idle
Standby server only, regardless of the number of processor cores
attached or available to the server. For example, consider an
environment with two servers, one Primary server with four processors
and one Idle Standby server with two processors. This environment must
be licensed for the Value Units that apply to the four processors on
the Primary server plus an additional 100 Value Units for the Idle
Standby server.
If You are licensing under the Processor Package charge metric, then
in Idle Standby, You must license the Program for one Processor
Package per Idle Standby server only, regardless of the number of
processor cores attached or available to the server. For example,
consider an environment with two servers, one Primary server with four
Processor Packages and one Idle Standby server with two Processor
Packages. This environment must be licensed for four Processor
Packages on the Primary server plus an additional one Processor
Package for the Idle Standby server.
3.3) Cold Standby
In a Cold Standby configuration, Cold Standby servers may have the
Program installed, however, they do not have the Program powered on. A
server is considered Cold if, to use it, You must run the command
"solid" to instantiate the solidDB server.
There are no charges for the Program on Cold Standby servers.
4) Program Components
The Program contains components which are provided to support Your
authorized use of the Program on server machines within Your
organization. If You want to perform multiple installations and/or
distribution of these components You must contact IBM or its reseller
to obtain the appropriate licenses. The following are the exceptions:
4.1) Documentation
Documentation is provided with this Program. You may make copies of
this documentation in support of Your authorized use of the Program
within Your organization.
4.2) Client Drivers
The IBM Solid ODBC driver and IBM Solid JDBC driver are provided with
the Program. You may use the IBM Solid ODBC driver and the IBM Solid
JDBC driver for connecting to a properly licensed solidDB server.
D/N: L-CLAW-7DZSTW
P/N: L-CLAW-7DZSTW
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