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LICENSE
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LICENSE INFORMATION
The Programs listed below are licensed under the following
License Information terms and conditions in addition to the
Program license terms previously agreed to by Client and
IBM. If Client does not have previously agreed to license
terms in effect for the Program, the IBM International
License Agreement for Non-Warranted Programs (Z125-5589-05)
applies.
Program Name: IBM Mobile Application Content Manager SDK 8.5
Program Number: 5725-W35
Third Party Data and Services
The Program may contain links to or be used to access third
party data services, databases, web services, software, or
other third party content (all, "content"). Access to this
content is provided "AS-IS", WITH NO WARRANTY OF ANY KIND,
EXPRESS OR IMPLIED, INCLUDING THE WARRANTY OF TITLE,
NON-INFRINGEMENT OR NON-INTERFERENCE AND THE IMPLIED
WARRANTIES AND CONDITIONS OF MERCHANTABILITY AND FITNESS
FOR A PARTICULAR PURPOSE. Access can be terminated by the
relevant third parties at their sole discretion at any
time. Licensee may be required to enter into separate
agreements with the third parties for the access to or use
of such content. IBM is not a party to any such separate
agreements and as an express condition of this license
Licensee agrees to comply with the terms of such separate
agreements.
L/N: L-HMBE-A4RPUN
D/N: L-HMBE-A4RPUN
P/N: L-HMBE-A4RPUN
International License Agreement for Non-Warranted 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 THE
PARTY FROM WHOM IT WAS OBTAINED FOR A REFUND OF THE AMOUNT
PAID. 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.
"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 is available at www.ibm.com/software/sla.
The LI can also 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).
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 nonexclusive license to 1) use the
Program up to the Authorized Use specified in the invoice,
2) make and install copies to support such Authorized Use,
and 3) 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 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, 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; or 4) sublicense,
rent, or lease the Program; 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 Trade-ups, Updates, Fixes, and Patches
3.1.1 Trade-ups
If the Program is replaced by a trade-up Program, the
replaced Program's license is promptly terminated.
3.1.2 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 Fixed Term Licenses
If IBM licenses the Program for a fixed term, Licensee's
license is terminated at the end of the fixed term, unless
Licensee and IBM agree to renew it.
3.3 Term and Termination
This Agreement is effective until terminated.
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. 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.
4. Charges
Charges, if any, are based on Authorized Use obtained,
which is specified in the invoice. IBM does not give
credits or refunds for charges already due or paid, except
as specified elsewhere in this Agreement.
If Licensee wishes to increase its Authorized Use, Licensee
must notify IBM or an authorized IBM reseller in advance
and pay any applicable charges.
5. Taxes
If any authority imposes on the Program a duty, tax, levy,
or fee, excluding those based on IBM's net income, then
Licensee agrees to pay that amount, as specified in an
invoice, or supply exemption documentation. Licensee is
responsible for any personal property taxes for the Program
from the date that Licensee obtains it. If any authority
imposes a customs duty, tax, levy, or fee for the import
into or the export, transfer, access, or use of the Program
outside the country in which the original Licensee was
granted the license, then Licensee agrees that it is
responsible for, and will pay, any amount imposed.
6. Money-back Guarantee
If Licensee is dissatisfied with the Program for any reason
and is the original Licensee, Licensee may terminate the
license and obtain a refund of the amount Licensee paid, if
any, for the Program, provided that Licensee returns the
Program to the party from whom Licensee obtained it within
30 days of the invoice date. If the license is for a fixed
term that is subject to renewal, then Licensee may obtain a
refund only if the Program is returned within the first 30
days of the initial term. If Licensee downloaded the
Program, Licensee should contact the party from whom
Licensee obtained it for instructions on how to obtain the
refund.
7. Program Transfer
Licensee may transfer the Program and all of Licensee's
license rights and obligations to another party only if
that party agrees to the terms of this Agreement. If the
license is terminated for any reason by either party,
Licensee is prohibited from transferring the Program to
another party. Licensee may not transfer a portion of 1)
the Program or 2) the Program's Authorized Use. When
Licensee transfers the Program, Licensee must also transfer
a hard copy of this Agreement, including the LI.
Immediately after the transfer, Licensee's license
terminates.
8. 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 8 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 8.
9. 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.
10. Limitation of Liability
The limitations and exclusions in this Section 10
(Limitation of Liability) apply to the full extent they are
not prohibited by applicable law without the possibility of
contractual waiver.
10.1 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
the charges (if the Program is subject to fixed term
charges, up to twelve months' charges) Licensee paid for
the Program that is the subject of the claim.
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.
10.2 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.
11. Compliance Verification
For purposes of this Section 11 (Compliance Verification),
"ILAN 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 11
remain in effect during the period the Program is licensed
to Licensee, and for two years thereafter.
11.1 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 ILAN 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 ILAN Program Terms.
Upon reasonable notice, IBM may verify Licensee's
compliance with ILAN Program Terms at all sites and for all
environments in which Licensee uses (for any purpose)
Programs subject to ILAN 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.
11.2 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 ILAN 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.
12. 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.
13. General
a. Nothing in this Agreement affects any statutory rights
of consumers that cannot be waived or limited by contract.
b. For Programs IBM provides to Licensee in tangible form,
IBM fulfills its shipping and delivery obligations upon the
delivery of such Programs to the IBM-designated carrier,
unless otherwise agreed to in writing by Licensee and IBM.
c. 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.
d. Licensee agrees to comply with all applicable export and
import laws and regulations, including U.S. embargo and
sanctions regulations and prohibitions on export for
certain end uses or to certain users.
e. 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.
f. 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.
g. 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.
h. Neither Licensee nor IBM is responsible for failure to
fulfill any obligations due to causes beyond its control.
i. 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 10.1 (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.
j. 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;
2) the experiences or recommendations of other parties; or
3) any results or savings that Licensee may achieve.
k. 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.
l. 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.
m. 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.
14. Geographic Scope and Governing Law
14.1 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.
14.2 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 14
(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 14
(Governing Law and Jurisdiction)
14.1 Governing Law
The phrase "the laws of the country in which Licensee
obtained the Program license" in the first paragraph of
14.1 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.
14.2 Jurisdiction
The following paragraph pertains to jurisdiction and
replaces Subsection 14.2 (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.
14.3 Arbitration
The following paragraph is added as a new Subsection 14.3
(Arbitration) as it applies for those countries identified
below. The provisions of this Subsection 14.3 prevail over
those of Subsection 14.2 (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
10.1 Items for Which IBM May Be Liable
The following replaces Item 1 in the first paragraph of
this Subsection 10.1 (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
13. General
The following replaces Item 13.d:
d. Licensee agrees to comply with all applicable export and
import laws and regulations, including those of that apply
to goods of United States origin and that prohibit or limit
export for certain uses or to certain users.
The following replaces Item 13.i:
i. 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 13.n:
n. For purposes of this Item 13.n, "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 13.n 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
10. Limitation of Liability
The following is added to the end of this Section 10
(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.
10.1 Items for Which IBM May Be Liable
The following is added to the end of this Subsection 10.1:
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
5. Taxes
The following is added to the end of this Section 5 (Taxes):
For Programs delivered electronically in the United States
for which Licensee claims a state sales and use tax
exemption, Licensee agrees not to receive any tangible
personal property (e.g., media and publications) associated
with the electronic program.
Licensee agrees to be responsible for any sales and use tax
liabilities that may arise as a result of Licensee's
subsequent redistribution of Programs after delivery by IBM.
13. General
The following is added to Section 13 as Item 13.n:
n. 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 13.f:
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
5. Taxes
The following sentences replace the first two sentences of
Section 5 (Taxes):
If any government or authority imposes a duty, tax (other
than income tax), levy, or fee, on this Agreement or on the
Program itself, that is not otherwise provided for in the
amount payable, Licensee agrees to pay it when IBM invoices
Licensee. If the rate of GST changes, IBM may adjust the
charge or other amount payable to take into account that
change from the date the change becomes effective.
8. No Warranties
The following is added to the first paragraph of Section 8