Z125-3301-14 7/2011
Page 1 of 17
International Program License Agreement
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, DOCUMENTATION, AND PROOF OF ENTITLEMENT 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
http://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).
“
Proof of Entitlement
” (“
PoE
”) – evidence of Licensee’s Authorized Use. The PoE is also evidence of
Licensee’s eligibility for warranty, future update prices, if any, and potential special or promotional
opportunities. If IBM does not provide Licensee with a PoE, then IBM may accept as the PoE the original
paid sales receipt or other sales record from the party (either IBM or its reseller) from whom Licensee
obtained the Program, provided that it specifies the Program name and Authorized Use obtained.
“Warranty Period”
– one year, starting on the date the original Licensee is granted the license.
2.
Agreement Structure
This Agreement includes
Part 1 - General Terms
,
Part 2 - Country-unique Terms
(if any), the LI, and
the PoE 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 PoE, 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
Z125-3301-14 7/2011
Page 2 of 17
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 are based on Authorized Use obtained, 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 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 for the Program, provided that
Licensee returns the Program and PoE to the party from whom Licensee obtained it within 30 days of the
date the PoE was issued to Licensee. If the license is for a fixed term that is subject to renewal, then
Licensee may obtain a refund only if the Program and its PoE are 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.
Z125-3301-14 7/2011
Page 3 of 17
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 and PoE.
Immediately after the transfer, Licensee’s license terminates.
8.
Warranty and Exclusions
8.1
Limited Warranty
IBM warrants that the Program, when used in its specified operating environment, will conform to its
specifications. The Program's specifications, and specified operating environment information, can be
found in documentation accompanying the Program (such as a read-me file) or other information
published by IBM (such as an announcement letter). Licensee agrees that such documentation and other
Program content may be supplied only in the English language, unless otherwise required by local law
without the possibility of contractual waiver or limitation.
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. Licensee is
responsible for the results obtained from the use of the Program.
During the Warranty Period, IBM provides Licensee 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 Handbook for further information at
http://www.ibm.com/software/support
.
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, Licensee may return the Program and its PoE
to the party (either IBM or its reseller) from whom Licensee obtained it and receive a refund of the amount
Licensee paid. After returning the Program, Licensee’s license terminates. If Licensee downloaded the
Program, Licensee should contact the party from whom Licensee obtained it for instructions on how to
obtain the refund.
8.2
Exclusions
THESE WARRANTIES ARE LICENSEE’S EXCLUSIVE WARRANTIES AND REPLACE ALL OTHER
WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY
IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY,
FITNESS FOR A PARTICULAR PURPOSE, 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
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 LICENSEE.
THESE WARRANTIES GIVE LICENSEE SPECIFIC LEGAL RIGHTS. LICENSEE MAY ALSO HAVE
OTHER RIGHTS THAT VARY FROM STATE TO STATE OR JURISDICTION TO JURISDICTION.
THE WARRANTIES IN THIS SECTION 8 (WARRANTY AND EXCLUSIONS) ARE PROVIDED SOLELY
BY IBM. THE DISCLAIMERS IN THIS SUBSECTION 8.2 (EXCLUSIONS), HOWEVER, ALSO APPLY
TO IBM’S SUPPLIERS OF THIRD PARTY CODE. THOSE SUPPLIERS PROVIDE SUCH CODE
WITHOUT WARRANTIES OR CONDITION OF ANY KIND.
THIS PARAGRAPH DOES NOT NULLIFY
IBM’S WARRANTY OBLIGATIONS UNDER THIS AGREEMENT.
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 technical support,
which is beyond IBM’s warranty 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
Z125-3301-14 7/2011
Page 4 of 17
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), "IPLA 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 IPLA 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 IPLA Program Terms.
Upon reasonable notice, IBM may verify Licensee’s compliance with IPLA Program Terms at all sites and
for all environments in which Licensee uses (for any purpose) Programs subject to IPLA 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.
Z125-3301-14 7/2011
Page 5 of 17
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 IPLA 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, other than as expressly warranted in Section 8
(Warranty and Exclusions)
above; 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.
Z125-3301-14 7/2011
Page 6 of 17
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.
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.
Z125-3301-14 7/2011
Page 7 of 17
IBM International Program License Agreement
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.
Z125-3301-14 7/2011
Page 8 of 17
14.2
Jurisdiction
The following paragraph pertains to jurisdiction and replaces Subsection 14.2 (Jurisdiction) as it applies
for those countries identified in bold 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 in bold 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.
Z125-3301-14 7/2011
Page 9 of 17
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
Z125-3301-14 7/2011
Page 10 of 17
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.m:
m. For purposes of this Item 13.m, "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.
Z125-3301-14 7/2011
Page 11 of 17
(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 Customers who are public bodies subject to public sector privacy legislation, this Item
13.m applies only to Personal Data made available to Customer in connection with this
Agreement, and the obligations in this section apply only to Customer, 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 at 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 at 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.m:
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.
Z125-3301-14 7/2011
Page 12 of 17
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.
8.1 Limited Warranty
The following is added Subsection 8.1 (Limited Warranty):
The warranties specified this Section are in addition to any rights Licensee may have under the
Competition and Consumer Act 2010 or other legislation and are only limited to the extent permitted
by the applicable legislation.
10.1 Items for Which IBM May be Liable
The following is added to Subsection 10.1 (Items for Which IBM Maybe Liable):
Where IBM is in breach of a condition or warranty implied by the Competition and Consumer Act
2010, IBM’s liability is limited to the repair or replacement of the goods, or the supply of equivalent
goods. Where that condition or warranty relates to right to sell, quiet possession or clear title, or the
goods are of a kind ordinarily obtained for personal, domestic or household use or consumption,
then none of the limitations in this paragraph apply.
HONG KONG SAR, MACAU SAR,
AND
TAIWAN
As applies to licenses obtained in Taiwan and the special administrative regions, phrases throughout this
Agreement containing the word "country" (for example, "the country in which the original Licensee was
granted the license" and "the country in which Licensee obtained the Program license") are replaced with
the following:
(1)
In
Hong Kong SAR
: “Hong Kong SAR“
(2)
In
Macau SAR
: “Macau SAR” except in the Governing Law clause (Section 14.1)
(3)
In
Taiwan
: "Taiwan."
INDIA
10.1 Items for Which IBM May be Liable
The following replaces the terms of Items 1 and 2 of the first paragraph:
1) liability for bodily injury (including death) or damage to real property and tangible personal
property will be limited to that caused by IBM’s negligence; and 2) as to any other actual damage
arising in any situation involving nonperformance by IBM pursuant to, or in any way related to the
subject of this Agreement, IBM’s liability will be limited to the charge paid by Licensee for the
individual Program that is the subject of the claim.
13. General
The following replaces the terms of Item
13.g
:
If no suit or other legal action is brought, within three years after the cause of action arose, in
respect of any claim that either party may have against the other, the rights of the concerned party
in respect of such claim will be forfeited and the other party will stand released from its obligations in
respect of such claim.
INDONESIA
3.3 Term and Termination
The following is added to the last paragraph:
Both parties waive the provision of article 1266 of the Indonesian Civil Code, to the extent the article
provision requires such court decree for the termination of an agreement creating mutual
obligations.
Z125-3301-14 7/2011
Page 13 of 17
JAPAN
13. General
The following is inserted after Item 13.f:
Any doubts concerning this Agreement will be initially resolved between us in good faith and in
accordance with the principle of mutual trust.
MALAYSIA
10.2 Items for Which IBM Is not Liable
The word “
SPECIAL
” in Item
10.2b
is deleted.
NEW ZEALAND
8.1 Limited Warranty
The following is added:
The warranties specified in this Section are in addition to any rights Licensee 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
Licensee requires the goods for the purposes of a business as defined in that Act.
10. Limitation of Liability
The following is added:
Where Programs are not obtained for the purposes of a business as defined in the Consumer
Guarantees Act 1993, the limitations in this Section are subject to the limitations in that Act.
PEOPLE’S REPUBLIC OF CHINA
4. Charges
The following is added:
All banking charges incurred in the People’s Republic of China will be borne by Licensee and those
incurred outside the People’s Republic of China will be borne by IBM.
PHILIPPINES
10.2 Items for Which IBM Is not Liable
The following replaces the terms of Item
10.2b
:
b. special (including nominal and exemplary damages), moral, incidental, or indirect damages or for
any economic consequential damages; or
SINGAPORE
10.2 Items for Which IBM Is not Liable
The words “
SPECIAL
” and “
ECONOMIC
” are deleted from Item
10.2b
.
13. General
The following replaces the terms of Item
13.i
:
Subject to the rights provided to IBM’s suppliers and Program developers as provided in Section 10
above (Limitation of Liability), a person who is not a party to this Agreement will have no right under
the Contracts (Right of Third Parties) Act to enforce any of its terms.
TAIWAN
8.1 Limited Warranty
The last paragraph is deleted.
10.1 Items for Which IBM May Be Liable
The following sentences are deleted
This limit also applies to any of IBM’s subcontractors and Program developers. It is the maximum
for which IBM and its subcontractors and Program developers are collectively responsible.
Z125-3301-14 7/2011
Page 14 of 17
EUROPE, MIDDLE EAST, AFRICA (EMEA) COUNTRY AMENDMENTS
EUROPEAN UNION MEMBER STATES
8. Warranty and Exclusions
The following is added to Section 8 (Warranty and Exclusion):
In the European Union (“EU”), consumers have legal rights under applicable national legislation
governing the sale of consumer goods. Such rights are not affected by the provisions set out in this
Section 8 Warranty and Exclusions. The territorial scope of the Limited Warranty is worldwide.
EU MEMBER STATES AND THE COUNTRIES IDENTIFIED BELOW
Iceland, Liechtenstein, Norway, Switzerland, Turkey, and any other European country that has
enacted local data privacy or protection legislation similar to the EU model.
13. General
The following replaces Item 13.e:
(1)
Definitions
– For the purposes of this Item 13.e, the following additional definitions apply:
(a)
Business Contact Information
– business-related contact information disclosed by
Licensee to IBM, including names, job titles, business addresses, telephone numbers
and email addresses of Licensee’s employees and contractors. For Austria, Italy and
Switzerland, Business Contact Information also includes information about Customer
and its contractors as legal entities (for example, Customer's revenue data and other
transactional information)
(b)
Business Contact Personnel
– Licensee employees and contractors to whom the
Business Contact Information relates.
(c)
Data Protection Authority
– the authority established by the Data Protection and
Electronic Communications Legislation in the applicable country or, for non-EU
countries, the authority responsible for supervising the protection of personal data in that
country, or (for any of the foregoing) any duly appointed successor entity thereto.
(d)
Data Protection & Electronic Communications Legislation
– (i) the applicable local
legislation and regulations in force implementing the requirements of EU Directive
95/46/EC (on the protection of individuals with regard to the processing of personal data
and on the free movement of such data) and of EU Directive 2002/58/EC (concerning
the processing of personal data and the protection of privacy in the electronic
communications sector); or (ii) for non-EU countries, the legislation and/or regulations
passed in the applicable country relating to the protection of personal data and the
regulation of electronic communications involving personal data, including (for any of the
foregoing) any statutory replacement or modification thereof.
(e)
IBM Group
– International Business Machines Corporation of Armonk, New York, USA,
its subsidiaries, and their respective Business Partners and subcontractors.
(2)
Licensee authorises IBM:
(a)
to process and use Business Contact Information within IBM Group in support of
Licensee including the provision of support services, and for the purpose of furthering
the business relationship between Licensee and IBM Group, including, without limitation,
contacting Business Contact Personnel (by email or otherwise) and marketing IBM
Group products and services (the “Specified Purpose”); and
(b)
to disclose Business Contact Information to other members of IBM Group in pursuit of
the Specified Purpose only.
(3)
IBM agrees that all Business Contact Information will be processed in accordance with the
Data Protection & Electronic Communications Legislation and will be used only for the
Specified Purpose.
(4)
To the extent required by the Data Protection & Electronic Communications Legislation,
Licensee represents that (a) it has obtained (or will obtain) any consents from (and has issued
(or will issue) any notices to) the Business Contact Personnel as are necessary in order to
enable IBM Group to process and use the Business Contact Information for the Specified
Purpose.
Z125-3301-14 7/2011
Page 15 of 17
(5)
Licensee authorizes IBM to transfer Business Contact Information outside the European
Economic Area, provided that the transfer is made on contractual terms approved by the Data
Protection Authority or the transfer is otherwise permitted under the Data Protection &
Electronic Communications Legislation.
AUSTRIA
8.2 Exclusions
The following is deleted from the first paragraph:
MERCHANTABILITY, SATISFACTORY QUALITY
10. Limitation of Liability
The following is added:
The following limitations and exclusions of IBM’s liability do not apply for damages caused by gross
negligence or willful misconduct.
10.1 Items for Which IBM May Be Liable
The following replaces the first sentence in the first paragraph:
Circumstances may arise where, because of a default by IBM in the performance of its obligations
under this Agreement or other liability, Licensee is entitled to recover damages from IBM.
In the second sentence of the first paragraph, delete entirely the parenthetical phrase:
“(including fundamental breach, negligence, misrepresentation, or other contract or tort claim)”.
10.2 Items for Which IBM Is Not Liable
The following replaces Item 10.2b:
b. indirect damages or consequential damages; or
BELGIUM, FRANCE, ITALY,
AND
LUXEMBOURG
10. Limitation of Liability
The following replaces the terms of Section 10 (Limitation of Liability) in its entirety:
Except as otherwise provided by mandatory law:
10.1 Items for Which IBM May Be Liable
IBM’s entire liability for all claims in the aggregate for any damages and losses that may arise as a
consequence of the fulfillment of its obligations under or in connection with this Agreement or due to
any other cause related to this Agreement is limited to the compensation of only those damages
and losses proved and actually arising as an immediate and direct consequence of the non-
fulfillment of such obligations (if IBM is at fault) or of such cause, for a maximum amount equal to
the charges (if the Program is subject to fixed term charges, up to twelve months’ charges)
Licensee paid for the Program that has caused the damages.
The above limitation will not apply to damages for bodily injuries (including death) and damages to
real property and tangible personal property for which IBM is legally liable.
10.2 Items for Which IBM Is Not Liable
UNDER NO CIRCUMSTANCES IS IBM OR ANY OF ITS PROGRAM DEVELOPERS LIABLE FOR
ANY OF THE FOLLOWING, EVEN IF INFORMED OF THEIR POSSIBILITY: 1) LOSS OF, OR
DAMAGE TO, DATA; 2) INCIDENTAL, EXEMPLARY OR INDIRECT DAMAGES, OR FOR ANY
ECONOMIC CONSEQUENTIAL DAMAGES; AND / OR 3) LOST PROFITS, BUSINESS,
REVENUE, GOODWILL, OR ANTICIPATED SAVINGS, EVEN IF THEY ARISE AS AN
IMMEDIATE CONSEQUENCE OF THE EVENT THAT GENERATED THE DAMAGES.
10.3 Suppliers and Program Developers
The limitation and exclusion of liability herein agreed applies not only to the activities performed by
IBM but also to the activities performed by its suppliers and Program developers, and represents
the maximum amount for which IBM as well as its suppliers and Program developers are collectively
responsible.
Z125-3301-14 7/2011
Page 16 of 17
GERMANY
8.1 Limited Warranty
The following is inserted at the beginning of Section 8.1:
The Warranty Period is twelve months from the date of delivery of the Program to the original
Licensee.
8.2 Exclusions
Section 8.2 is deleted in its entirety and replaced with the following:
Section 8.1 defines IBM’s entire warranty obligations to Licensee except as otherwise required by
applicable statutory law.
10. Limitation of Liability
The following replaces the Limitation of Liability section in its entirety:
a.
IBM will be liable without limit for 1) loss or damage caused by a breach of an express guarantee; 2)
damages or losses resulting in bodily injury (including death); and 3) damages caused intentionally
or by gross negligence.
b.
In the event of loss, damage and frustrated expenditures caused by slight negligence or in breach of
essential contractual obligations, IBM will be liable, regardless of the basis on which Licensee is
entitled to claim damages from IBM (including fundamental breach, negligence, misrepresentation,
or other contract or tort claim), per claim only up to the greater of 500,000 euro or the charges (if the
Program is subject to fixed term charges, up to 12 months’ charges) Licensee paid for the Program
that caused the loss or damage. A number of defaults which together result in, or contribute to,
substantially the same loss or damage will be treated as one default.
c.
In the event of loss, damage and frustrated expenditures caused by slight negligence, IBM will not
be liable for indirect or consequential damages, even if IBM was informed about the possibility of
such loss or damage.
d.
In case of delay on IBM’s part: 1) IBM will pay to Licensee an amount not exceeding the loss or
damage caused by IBM’s delay and 2) IBM will be liable only in respect of the resulting damages
that Licensee suffers, subject to the provisions of Items a and b above.
13. General
The following replaces the provisions of 13.g:
Any claims resulting from this Agreement are subject to a limitation period of three years, except as
stated in Section 8.1 (Limited Warranty) of this Agreement.
The following replaces the provisions of 13.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 (to the extent permitted in Section 10 (Limitation
of Liability)) for: i) bodily injury (including death); or ii) damage to real or tangible personal property
for which (in either case) IBM is legally liable to that third party.
IRELAND
8.2 Exclusions
The following paragraph is added:
Except as expressly provided in these terms and conditions, or Section 12 of the Sale of Goods Act
1893 as amended by the Sale of Goods and Supply of Services Act, 1980 (the “1980 Act”), all
conditions or warranties (express or implied, statutory or otherwise) are hereby excluded including,
without limitation, any warranties implied by the Sale of Goods Act 1893 as amended by the 1980
Act (including, for the avoidance of doubt, Section 39 of the 1980 Act).
IRELAND AND UNITED KINGDOM
2. Agreement Structure
The following sentence is added:
Nothing in this paragraph shall have the effect of excluding or limiting liability for fraud.
Z125-3301-14 7/2011
Page 17 of 17
10.1 Items for Which IBM May Be Liable
The following replaces the first paragraph of the Subsection:
For the purposes of this section, a “Default” means any act, statement, omission or negligence on
the part of IBM in connection with, or in relation to, the subject matter of an Agreement in respect of
which IBM is legally liable to Licensee, whether in contract or in tort. A number of Defaults which
together result in, or contribute to, substantially the same loss or damage will be treated as one
Default.
Circumstances may arise where, because of a Default by IBM in the performance of its obligations
under this Agreement or other liability, Licensee is entitled to recover damages from IBM.
Regardless of the basis on which Licensee is entitled to claim damages from IBM and except as
expressly required by law without the possibility of contractual waiver, IBM’s entire liability for any
one Default will not exceed the amount of any direct damages, to the extent actually suffered by
Licensee as an immediate and direct consequence of the default, up to the greater of (1) 500,000
euro (or the equivalent in local currency) or (2) 125% of the charges (if the Program is subject to
fixed term charges, up to 12 months' charges) for the Program that is the subject of the claim.
Notwithstanding the foregoing, the amount of any damages for bodily injury (including death) and
damage to real property and tangible personal property for which IBM is legally liable is not subject
to such limitation.
10.2 Items for Which IBM is Not Liable
The following replaces Items 10.2b and 10.2c:
b.
special, incidental, exemplary, or indirect damages or consequential damages; or
c.
wasted management time or lost profits, business, revenue, goodwill, or anticipated savings.
