International Program License Agreement
Part 1 - General Terms
PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING THE
PROGRAM. IBM WILL LICENSE THE PROGRAM TO YOU ONLY IF YOU FIRST
ACCEPT THE TERMS OF THIS AGREEMENT. BY USING THE PROGRAM YOU AGREE
TO THESE TERMS. IF YOU DO NOT AGREE TO THE TERMS OF THIS
AGREEMENT, PROMPTLY RETURN THE UNUSED PROGRAM TO THE PARTY (EITHER IBM
OR ITS RESELLER) FROM WHOM YOU ACQUIRED IT TO RECEIVE A REFUND
OF THE AMOUNT YOU PAID.
The Program is owned by International Business Machines
Corporation or one of its subsidiaries (IBM) or an IBM supplier, and is
copyrighted and licensed, not sold.
The term "Program" means the original program and all whole
or partial copies of it. A Program consists of machine-
readable instructions, its components, data, audio-visual content
(such as images, text, recordings, or pictures), and related
licensed materials.
This Agreement includes Part 1 - General Terms, Part 2 -
Country-unique Terms, and "License Information" and is the complete
agreement regarding the use of this Program, and replaces any prior
oral or written communications between you and IBM. The terms of
Part 2 and License Information may replace or modify those of
Part 1.
1. License
Use of the Program
IBM grants you a nonexclusive license to use the Program.
You may 1) use the Program to the extent of authorizations
you have acquired and 2) make and install copies to support the
level of use authorized, providing you reproduce the copyright
notice and any other legends of ownership on each copy, or partial
copy, of the Program.
If you acquire this Program as a program upgrade, your
authorization to use the Program from which you upgraded is terminated.
You will ensure that anyone who uses the Program does so
only in compliance 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.
Transfer of Rights and Obligations
You may transfer all your license rights and obligations
under a Proof of Entitlement for the Program to another party by
transferring the Proof of Entitlement and a copy of this Agreement and
all documentation. The transfer of your license rights and
obligations terminates your authorization to use the Program under the
Proof of Entitlement.
2. Proof of Entitlement
The Proof of Entitlement for this Program is evidence of
your authorization to use this Program and of your eligibility
for warranty services, future upgrade program prices (if
announced), and potential special or promotional opportunities.
3. Charges and Taxes
IBM defines use for the Program for charging purposes and
specifies it in the Proof of Entitlement. Charges are based on extent
of use authorized. If you wish to increase the extent of use,
notify IBM or its reseller and pay any applicable charges. IBM
does not give refunds or credits for charges already due or paid.
If any authority imposes a duty, tax, levy or fee,
excluding those based on IBM's net income, upon the Program supplied
by IBM under this Agreement, then you agree to pay that amount
as IBM specifies or supply exemption documentation.
4. Limited Warranty
IBM warrants that when the Program is used in the specified
operating environment it will conform to its specifications. IBM does
not warrant uninterrupted or error-free operation of the
Program or that we will correct all Program defects. You are
responsible for the results obtained from the use of the Program. The
warranty period for the Program expires when its Program services
are no longer available. The License Information specifies the
duration of Program services.
During the warranty period warranty service is provided
without charge for the unmodified portion of the Program through
defect-related Program services. Program services are available
for at least one year following the Program's general
availability. Therefore, the duration of warranty service depends on when
you obtain your license. If the Program does not function as
warranted during the first year after you obtain your license and IBM
is unable to resolve the problem by providing a correction,
restriction, or bypass, you may return the Program to the party (either
IBM or its reseller) from whom you acquired it and receive a
refund in the amount you paid for it. To be eligible, you must
have acquired the Program while Program services (regardless of
the remaining duration) were available for it.
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.
These warranties give you specific legal rights, and you
may also have other rights which vary from jurisdiction to
jurisdiction. Some jurisdictions do not allow the exclusion or limitation
of implied warranties, so the above exclusion or limitation
may not apply to you. In that event such warranties are limited
in duration to the warranty period. No warranties apply after
that period.
5. 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 greater of U.S. $100,000 (or equivalent
in your local currency) or the charges for the Program that is
the subject of the claim.
IBM WILL NOT BE LIABLE FOR ANY SPECIAL, INCIDENTAL, OR
INDIRECT DAMAGES OR FOR ANY ECONOMIC CONSEQUENTIAL DAMAGES
(INCLUDING LOST PROFITS OR SAVINGS), EVEN IF IBM, OR ITS RESELLER, HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 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.
IBM will not be liable for 1) loss of, or damage to, your
records or data or 2) any damages claimed by you based on any third
party claim.
This limitation of liability also applies to any developer
of a Program supplied to IBM. It is the maximum for which IBM
and its suppliers are collectively responsible.
6. General
Nothing in this Agreement affects any statutory rights of
consumers that cannot be waived or limited by contract.
IBM may terminate your license if you fail to comply with
the terms of this Agreement. If IBM does so, your authorization
to use the Program is also terminated.
You agree to comply with applicable export laws and
regulations.
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.
Neither you nor IBM is responsible for failure to fulfill
any obligations due to causes beyond its control.
The laws of the country in which you acquire the Program
govern this Agreement, except 1) in Australia, the laws of the
State or Territory in which the transaction is performed govern
this Agreement; 2) in Albania, Armenia, Belarus,
Bosnia/Herzegovina, Bulgaria, Croatia, Czech Republic, Georgia, Hungary,
Kazakhstan, Kirghizia, Former Yugoslav Republic of Macedonia (FYROM),
Moldova, Poland, Romania, Russia, Slovak Republic, Slovenia,
Ukraine, and Federal Republic of Yugoslavia, the laws of Austria
govern this Agreement; 3) in the United Kingdom, all disputes
relating to this Agreement will be governed by English Law and will
be submitted to the exclusive jurisdiction of the English
courts; 4) in Canada, the laws in the Province of Ontario govern
this Agreement; and 5) in the United States and Puerto Rico, and
People's Republic of China, the laws of the State of New York govern
this Agreement.
Part 2 - Country-unique Terms
AUSTRALIA:
Limited Warranty (Section 4):
The following paragraph is added to this Section:
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 5):
The following paragraph is added to this Section:
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.
EGYPT:
Limitation of Liability (Section 5):
The following replaces item 2 in the first paragraph of
this Section:
2) as to any other actual direct damages, IBM's liability
will be limited to the total amount you paid for the Program
that is the subject of the claim.
FRANCE :
Limitation of Liability (Section 5):
The following replaces the second sentence in the first
paragraph of this Section:
In such instances, regardless of the basis on which you are
entitled to claim damages from IBM, 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 greater of a) U.
S. $100,000 (or equivalent in local currency) or b) the
charges for the Program which is the subject of the claim.
GERMANY:
Limited Warranty (Section 4):
The following paragraphs are added to this Section:
The minimum warranty period for Programs is six months.
In case a Program is delivered without Specifications, we
will only warrant that the Program information correctly
describes the Program and that the Program can be used according to
the Program information. You have to check the usability
according to the Program information within the "money-back guaranty"
period.
The following replaces the first sentence of the first
paragraph of this Section:
The warranty for an IBM Program covers the functionality of
the Program for its normal use and the Program's conformity to
its Specifications.
Limitation of Liability (Section 5):
The following paragraph is added to the Section:
The limitations and exclusions specified in the Agreement
will not apply to damages caused by IBM with fraud or gross
negligence, and for express warranty.
In item 2, replace "U.S. $100,000" with "DEM 1.000.000".
The following sentence is added to the end of item 2 of the
first paragraph:
IBM's liability under this item is limited to the violation
of essential contractual terms in cases of ordinary negligence.
INDIA:
Limitation of Liability (Section 5):
The following replaces items 1 and 2 in 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 6):
The following replaces the fourth paragraph of this Section:
If no suit or other legal action is brought, within two
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.
IRELAND:
Limited Warranty (Section 4):
The following paragraph 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 5):
The following replaces items 1 and 2 in the first paragraph
of this Section:
1) death or personal injury or physical damage to your real
property solely caused by IBM's negligence; and 2) the amount of any
other actual direct damages, up to the greater of Irish Pounds
75,000 in respect of Programs or 125 percent of the charges for
the Program that is the subject of the claim or which otherwise
gives rise to the claim.
The following paragraph is added at the end of this Section:
IBM's entire liability and your sole remedy, whether in
contract or in tort, in respect of any default will be limited to
damages.
ITALY:
Limitation of Liability (Section 5):
The following replaces the second sentence in the first
paragraph:
In each such instance unless otherwise provided by
mandatory law, IBM is liable for no more than damages for bodily
injury (including death) and damage to real property and tangible
personal property and 2) as to any other actual damage arising in
all situations involving non-performance by IBM pursuant to, or
in any way related to the subject matter of this Agreement,
IBM's liability, will be limited to the total amount you paid for
the Program that is the subject of the claim.
NEW ZEALAND:
Limited Warranty (Section 4):
The following paragraph is added to this Section:
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
or services which IBM provides, if you require the goods or
services for the purposes of a business as defined in that Act.
Limitation of Liability (Section 5):
The following paragraph is added to this Section:
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 3):
The following paragraph is added to the Section:
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.
UNITED KINGDOM:
Limitation of Liability (Section 5):
The following replaces items 1 and 2 in the first paragraph
of this Section:
1) death or personal injury or physical damage to your real
property solely caused by IBM's negligence; 2) the amount of any
other actual direct damages, up to the greater of Pounds Sterling
75,000 in respect of Programs or 125 percent of the charges for
the Program that is the subject of the claim or which otherwise
gives rise to the claim.
The following item is added:
3) breach of IBM's obligations implied by Section 12 of the
Sale of Goods Act 1979 or Section 2 of the Supply of Goods and
Services Act 1982.
The following paragraph is added at the end of this Section:
IBM's entire liability and your sole remedy, whether in
contract or in tort, in respect of any default will be limited to
damages.
Z125-3301-10 (10/97)
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: Remote Agent Controller (RAC)
Program Number: 5724-B39
Guarantee: 1
Authorization for Use on Home/Portable Computer: 1
Program Services End Date: 2003/12/31
Y2K Readiness: 2
EXPLANATIONS OF TERMS:
Guarantee:
The Program has a money-back guarantee. If for any reason
you are unsatisfied with the Program, you may return it to the
party (either IBM or its resellers) from whom you acquired it, to
receive a refund of the amount you paid.
"1" means that this Program has a 30 day money-back
guarantee.
"2" means that this Program has a 2 month money-back
guarantee.
Authorization for Use on Home/Portable Computer:
"1" means that the Program may be stored on the primary
machine and another machine, provided that the Program is not in
active use on both machines at the same time.
"2" means that you may not copy and use this Program on
another computer without paying additional license fees.
Program Services End Date:
The Program is warranted and program services will be
available until the end date specified above.
Year 2000 Readiness:
"1" means that this Program does not have date dependencies
and is therefore Year 2000 ready.
"2" means that this Program, when used in accordance with
its associated documentation, is capable of correctly
processing, providing and/or receiving date data within and between the
twentieth and twenty-first centuries, provided that all products (for
example, hardware, software, and firmware) used with this IBM
Program properly exchange accurate date data with it.
Specified Operating Environment
The Program Specifications and Specified Operating
Environment information may be found in documentation accompanying the
Program such as the Installation/Users Guide.
U.S. Government Users Restricted Rights
U.S. Government Users Restricted Rights - Use, duplication,
or disclosure restricted by the GSA ADP Schedule Contract with
the IBM Corporation.
D/N: 5724B39
P/N: L-TATN-555JEK