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LICENSE.Identity_Mixer
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International License Agreement for Identity Mixer Version 1.2
Part 1 - General Terms
------------------------------------------------------------------------------
PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING THE PROGRAM. IBM WILL
LICENSE THE PROGRAM TO YOU ONLY IF YOU FIRST ACCEPT THE TERMS OF THIS
AGREEMENT. YOUR CLICKING ON THE "ACCEPT" BUTTON INDICATES YOUR ACCEPTANCE OF
THE FOLLOWING TERMS AND CONDITIONS. IF YOU DO NOT AGREE TO THE TERMS AND
CONDITIONS OF THIS AGREEMENT, YOU MAY NOT INSTALL OR USE THE PROGRAM.
The Program is owned by International Business Machines Corporation or one of
its subsidiaries (IBM) or an IBM supplier, and is copyrighted and licensed,
not sold.
The term "Program" means the original program and all whole or partial copies
of it. A Program consists of machine-readable instructions, its components,
data, audio-visual content (such as images, text, recordings, or pictures),
and related licensed materials.
This Agreement includes Part 1 - General Terms and Part 2 - Country-unique
Terms and is the complete agreement regarding the use of this Program, and
replaces any prior oral or written communications between you and IBM. The
terms of Part 2 may replace or modify those of Part 1.
1. License
*Use of the Program*
IBM grants you a nonexclusive license to download, use, execute, display and
perform the Program. You may copy the Program in machine readable form for
archive or backup purposes provided that no more than one original and one
backup copy may be in existence at any one time. There is no charge for Your
use of the program. You will reproduce the copyright notice and any other
legend of ownership on each copy, or partial copy of the Program.
You will ensure that anyone who uses the Program does so only in compliance
with the terms of this Agreement.
You may not 1) use, copy, modify, or distribute the Program except as provided
in this Agreement; 2) reverse assemble, reverse compile, or otherwise
translate the Program except as specifically permitted by law without the
possibility of contractual waiver; or 3) sublicense, rent, or lease the
Program.
2. Rights In Data
You assign to IBM all right, title, and interest (including ownership of
copyright) in any non-personal data, suggestions, or written materials that 1)
are related to the Program and 2) You provide to IBM. If IBM requires it, You
will sign an appropriate document to assign such rights. To the extent not
otherwise covered by your grant under the first sentence of this Section 2,
with respect to any idea, know-how, concept, technique, invention, discovery
or improvement, whether or not patentable, related to the Program and that you
provide to IBM, You grant to IBM a non- exclusive, irrevocable, unrestricted,
worldwide and paid-up right and license to include the foregoing in any
product or service, and to use, manufacture and market any such product or
service, and to allow others to do any of the foregoing.
3. No Warranty
SUBJECT TO STATUTORY WARRANTIES, IF ANY, THAT CANNOT BE EXCLUDED, IBM MAKES NO
WARRANTIES OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT
NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF SATISFACTORY QUALITY,
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND WARRANTIES OF TITLE AND
NON- INFRINGEMENT, REGARDING THE PROGRAM OR TECHNICAL SUPPORT, IF ANY.
The exclusion also applies 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 indemnify you for any claims or demands, actual or threatened,
including any related losses, costs, damages or expenses arising from in
connection with or based on or associated with this Agreement.
4. Limitation of Liability
Circumstances may arise where, because of a default on IBM's part or other
liability, You are entitled to recover damages from IBM. Regardless of the
basis on which You may be entitled to claim damages from IBM, (including
fundamental breach, negligence, misrepresentation, or other contract or tort
claim), IBM is liable for no more than 1) damages for bodily injury (including
death) and damage to real property and tangible personal property and 2) the
amount of any other actual direct damages up to a total of U.S. $25,000 (or
equivalent in local currency) for all claims in the aggregate. This limitation
of liability also applies to IBM's Program developers and suppliers. It is the
maximum for which they and IBM are collectively responsible.
UNDER NO CIRCUMSTANCES IS IBM, ITS PROGRAM DEVELOPERS OR SUPPLIERS LIABLE FOR
ANY OF THE FOLLOWING, EVEN IF INFORMED OF THEIR POSSIBILITY:
1. LOSS OF, OR DAMAGE TO, DATA;
2. SPECIAL, INCIDENTAL, INDIRECT, EXEMPLARY, OR PUNITIVE DAMAGES, OR FOR ANY
ECONOMIC CONSEQUENTIAL DAMAGES; OR
3. LOST PROFITS, BUSINESS, REVENUE, GOODWILL, OR ANTICIPATED SAVINGS.
5. General
1. Nothing in this Agreement affects any statutory rights of consumers that
cannot be waived or limited by contract.
2. In the event that any provision of this Agreement is held to be invalid or
unenforceable, the remaining provisions of this Agreement remain in full
force and effect.
3. You may not export the Program or take any action with respect to the
Program that violates applicable export control laws.
4. If you wish to receive information on updates please send an e-mail to
[email protected]. When sending the e-mail you agree that IBM Research
GmbH (Säumerstrasse 4, 8803 Rüschlikon, Switzerland) processes your personal
information for the purpose of sending the requested update information by
the responsible developer team at IBM. Your e-mail address will be stored for
this purpose until you object to further mailings.
5. IBM does not warrant that any version of the Program that is formally
released or made commercially available (if any) will be similar to, or
compatible with the version of the Program licensed under this Agreement.
6. Neither You nor IBM will bring a legal action under this Agreement more
than two years after the cause of action arose unless otherwise provided by
local law without the possibility of contractual waiver or limitation.
7. Neither You nor IBM is responsible for failure to fulfill any obligations
due to causes beyond its control.
8. This Agreement will not create any right or cause of action for any third
party, nor will IBM be responsible for any third party claims against You
except, as permitted by the Limitation of Liability section above, for bodily
injury (including death) or damage to real or tangible personal property for
which IBM is legally liable.
9. You may not assign this Agreement, in whole or in part, without IBM's
prior written consent. Any attempt to do so is void.
6. Governing Law and Jurisdiction
*Governing Law*
Both You and IBM consent to the application of the laws of the country in
which You obtain the Program license to govern, interpret, and enforce all of
Your and IBM's rights, duties, and obligations arising from, or relating in
any manner to, the subject matter of this Agreement, without regard to
conflict of law principles.
The United Nations Convention on Contracts for the International Sale of Goods
does not apply.
*Jurisdiction*
All of our rights, duties, and obligations are subject to the courts of the
country in which You obtain the Program license.
Part 2 - Country-unique Terms
-----------------------------------------------------------------------------
*AMERICAS*
ARGENTINA: Governing Law and Jurisdiction (Section 6): The following exception
is added to this section:
Any litigation arising from this Agreement will be settled exclusively by the
Ordinary Commercial Court of the city of Buenos Aires.
BRAZIL: Governing Law and Jurisdiction (Section 6): The following exception is
added to this section:
Any litigation arising from this Agreement will be settled exclusively by the
court of Rio de Janeiro, RJ.
CANADA: Limitation of Liability (Section 4): The following replaces item 1 in
the first paragraph, second sentence of this section:
1) damages for bodily injury (including death) and physical harm to real
property and tangible personal property caused by IBM's negligence; and
General (Section 5): The following replaces the terms in item 8:
8. This Agreement will not create any right or cause of action for any third
party, nor will IBM be responsible for any third party claims against You
except as permitted by the Limitation of Liability section above for bodily
injury (including death) or physical harm to real or tangible personal
property caused by IBM's negligence for which IBM is legally liable.
Governing Law and Jurisdiction (Section 6): The phrase "the laws of the
country in which You obtain the Program license" in the Governing Law
subsection is replaced by the following:
the laws in the Province of Ontario
CHILE: Governing Law and Jurisdiction (Section 6): The following exception is
added to this section:
Any litigation arising from this Agreement will be settled exclusively by the
Civil Courts of Justice of Santiago.
ECUADOR: Governing Law and Jurisdiction (Section 6): The following exception
is added to this section:
Any litigation arising from this Agreement will be settled exclusively by the
civil judges of Quito for executory or summary proceedings (as applicable).
MEXICO: Governing Law and Jurisdiction (Section 6): The phrase "the laws of
the country in which You obtain the Program license" in the Governing Law
subsection is replaced by the following:
the federal laws of the Republic of Mexico
The following exception is added to this section:
Any litigation arising from this Agreement will be settled exclusively by the
courts located in Mexico City, Federal District.
PERU: Limitation of Liability (Section 4): The following is added at the end
of this section:
In accordance with Article 1328 of the Peruvian Civil Code, the limitations
and exclusions specified in this section will not apply to damages caused by
IBM's willful misconduct ("dolo") or gross negligence ("culpa inexcusable").
The following exception is added to this section:
Any litigation arising from this Agreement will be settled exclusively by the
judges and tribunals of the judicial district of Lima, Cercado.
UNITED STATES OF AMERICA: General (Section 5): The following is added to this
section:
U.S. Government Users Restricted Rights - Use, duplication or disclosure
restricted by the GSA ADP Schedule Contract with the IBM Corporation.
Governing Law and Jurisdiction (Section 6): The phrase "the laws of the
country in which You obtain the Program license" in the Governing Law
subsection is replaced by the following:
the laws of the State of New York, United States of America
Insert the following after the subsection entitled Jurisdiction
Waiver of Jury Trial
Each of us expressly waives any right to a jury trial in any proceeding
directly or indirectly arising out of or relating to this Agreement.
URUGUAY: Governing Law and Jurisdiction (Section 6): The following exception
is added to this section:
Any litigation arising from this Agreement will be settled exclusively by the
courts of the city of Montevideo.
VENEZUELA: Governing Law and Jurisdiction (Section 6): The phrase "the laws of
the country in which You obtain the Program license" in the Governing Law
subsection is replaced by the following:
the laws of the Bolivarian Republic of Venezuela
The following exception is added to this section:
Any litigation arising from this Agreement will be settled exclusively by the
courts of the metropolitan area of the city of Caracas.
*ASIA PACIFIC*
AUSTRALIA: No Warranty (Section 3): The following is added:
Although IBM specifies that there are no warranties, You may have certain
rights under the Trade Practices Act 1974 or other legislation and are only
limited to the extent permitted by the applicable legislation.
Limitation of Liability (Section 4): The following is added:
Where IBM is in breach of a condition or warranty implied by the Trade
Practices Act 1974, IBM's liability is limited to the repair or replacement of
the goods, or the supply of equivalent goods. Where that condition or warranty
relates to right to sell, quiet possession or clear title, or the goods are of
a kind ordinarily acquired for personal, domestic or household use or
consumption, then none of the limitations in this paragraph apply.
Governing Law and Jurisdiction (Section 6): The phrase "the laws of the
country in which You obtain the Program license" in the Governing Law
subsection is replaced by the following:
the laws of the State or Territory in which the You obtain the Program
license.
CAMBODIA, LAOS, and VIETNAM: Governing Law and Jurisdiction (Section 6): The
phrase "the laws of the country in which You obtain the Program license" in
the Governing Law subsection is replaced by the following:
the laws of the State of New York, United States of America
The following is added to this section:
Arbitration
Disputes arising out of or in connection with this Agreement shall be finally
settled by arbitration which shall be held in Singapore in accordance with the
Arbitration Rules of Singapore International Arbitration Center ("SIAC Rules")
then in effect. The arbitration award shall be final and binding for the
parties without appeal and shall be in writing and set forth the findings of
fact and the conclusions of law.
The number of arbitrators shall be three, with each side to the dispute being
entitled to appoint one arbitrator. The two arbitrators appointed by the
parties shall appoint a third arbitrator who shall act as chairman of the
proceedings. Vacancies in the post of chairman shall be filled by the
president of the SIAC. Other vacancies shall be filled by the respective
nominating party. Proceedings shall continue from the stage they were at when
the vacancy occurred.
If one of the parties refuses or otherwise fails to appoint an arbitrator
within 30 days of the date the other party appoints its, the first appointed
arbitrator shall be the sole arbitrator, provided that the arbitrator was
validly and properly appointed.
All proceedings shall be conducted, including all documents presented in such
proceedings, in the English language. The English language version of this
Agreement prevails over any other language version.
HONG KONG S.A.R. and MACAU S.A.R. of China: Governing Law and Jurisdiction
(Section 6): The phrase "the laws of the country in which You obtain the
Program license" in the Governing Law subsection is replaced by the following:
the laws of Hong Kong Special Administrative Region of China
INDIA: Limitation of Liability (Section 4): The following replaces the terms
of items 1 and 2 of the first paragraph, second sentence:
1) liability for bodily injury (including death) or damage to real property
and tangible personal property will be limited to that caused by IBM's
negligence; and 2) as to any other actual damage arising in any situation
involving nonperformance by IBM pursuant to, or in any way related to the
subject of this Agreement, IBM's liability will be limited to the charge paid
by You for the individual Program that is the subject of the claim.
General (Section 5): The following replaces the terms of item 6:
If no suit or other legal action is brought, within three years after the
cause of action arose, in respect of any claim that either party may have
against the other, the rights of the concerned party in respect of such claim
will be forfeited and the other party will stand released from its obligations
in respect of such claim.
Governing Law and Jurisdiction (Section 6): The following is added to this
section:
Arbitration
Disputes arising out of or in connection with this Agreement shall be finally
settled by arbitration which shall be held in Bangalore, India in accordance
with the laws of India then in effect. The arbitration award shall be final
and binding for the parties without appeal and shall be in writing and set
forth the findings of fact and the conclusions of law.
The number of arbitrators shall be three, with each side to the dispute being
entitled to appoint one arbitrator. The two arbitrators appointed by the
parties shall appoint a third arbitrator who shall act as chairman of the
proceedings. Vacancies in the post of chairman shall be filled by the
president of the Bar Council of India. Other vacancies shall be filled by the
respective nominating party. Proceedings shall continue from the stage they
were at when the vacancy occurred.
If one of the parties refuses or otherwise fails to appoint an arbitrator
within 30 days of the date the other party appoints its, the first appointed
arbitrator shall be the sole arbitrator, provided that the arbitrator was
validly and properly appointed.
All proceedings shall be conducted, including all documents presented in such
proceedings, in the English language. The English language version of this
Agreement prevails over any other language version.
JAPAN: General (Section 5): The following is inserted after item 6:
Any doubts concerning this Agreement will be initially resolved between us in
good faith and in accordance with the principle of mutual trust.
MALAYSIA: Limitation of Liability (Section 4): The word "SPECIAL" in item 2 is
deleted.
NEW ZEALAND: No Warranty (Section 3): The following is added:
Although IBM specifies that there are no warranties, You may have certain
rights under the Consumer Guarantees Act 1993 or other legislation which
cannot be excluded or limited. The Consumer Guarantees Act 1993 will not apply
in respect of any goods which IBM provides, if You require the goods for the
purposes of a business as defined in that Act.
Limitation of Liability (Section 4): The following is added:
Where Programs are not 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: Governing Law and Jurisdiction (Section 6): The
phrase "the laws of the country in which You obtain the Program license" in
the Governing Law subsection is replaced by the following:
the laws of the State of New York, United States of America (except when local
law requires otherwise)
PHILIPPINES: Limitation of Liability (Section 4): The following replaces the
terms of item 2:
2. special (including nominal and exemplary damages), moral, incidental, or
indirect damages or for any economic consequential damages; or
Governing Law and Jurisdiction (Section 6): The following is added to this
section:
Arbitration
Disputes arising out of or in connection with this Agreement shall be finally
settled by arbitration which shall be held in Metro Manila, Philippines in
accordance with the laws of the Philippines then in effect. The arbitration
award shall be final and binding for the parties without appeal and shall be
in writing and set forth the findings of fact and the conclusions of law.
The number of arbitrators shall be three, with each side to the dispute being
entitled to appoint one arbitrator. The two arbitrators appointed by the
parties shall appoint a third arbitrator who shall act as chairman of the
proceedings. Vacancies in the post of chairman shall be filled by the
president of the Philippine Dispute Resolution Center, Inc. Other vacancies
shall be filled by the respective nominating party. Proceedings shall continue
from the stage they were at when the vacancy occurred.
If one of the parties refuses or otherwise fails to appoint an arbitrator
within 30 days of the date the other party appoints its, the first appointed
arbitrator shall be the sole arbitrator, provided that the arbitrator was
validly and properly appointed.
All proceedings shall be conducted, including all documents presented in such
proceedings, in the English language. The English language version of this
Agreement prevails over any other language version.
SINGAPORE: Limitation of Liability (Section 4): The words "SPECIAL" and
"ECONOMIC" are deleted from item 2.
General (Section 5): The following replaces the terms of item 8:
3. Subject to the rights provided to IBM's suppliers and Program developers as
provided in Section 4 above (Limitation of Liability), a person who is not a
party to this Agreement shall have no right under the Contracts (Right of
Third Parties) Act to enforce any of its terms.
*EUROPE, MIDDLE EAST, AFRICA (EMEA)*
Rights in Data (Section 2): In EMEA, the following replaces the terms of this
section in their entirety:
You assign to IBM all right, title, and interest throughout the world
(including ownership of copyright) in any non personal data, suggestions, and
written materials that 1) are related to Your use of the Program and 2) You
provide to IBM. Such assignment of rights includes, but is not limited to,
assignment of the rights to prepare and have prepared derivative works of the
written materials, and to use, have used, execute, reproduce, transmit,
display, perform, transfer, distribute and license the written materials and
such derivative works in any medium or distribution technology, and to grant
others some or all of the rights granted herein, for the duration of all such
rights, title and interest. If IBM requires it, You will sign an appropriate
document to assign such rights. With respect to any idea, know-how, concept,
technique, invention, discovery or improvement, whether or not patentable,
related to the Program and made by You or Your employees during the term of
the evaluation, You grant to IBM a non- exclusive, irrevocable, unrestricted,
worldwide and paid-up right and license to include the foregoing in any
product or service, and to use, manufacture and market any such product or
service, and to allow others to do any of the foregoing. Neither party will
charge the other for rights in data or any work performed as a result of this
Agreement.
No Warranty (Section 3): In the European Union, the following is added at the
beginning of this section:
In the European Union, consumers have legal rights under applicable national
legislation governing the sale of consumer goods. Such rights are not affected
by the provisions of this Section 3.
Limitation of Liability (Section 4): In Austria, Belgium, Denmark, Finland,
France, Greece, Italy, Netherlands, Norway, Portugal, Spain, Sweden and
Switzerland, the following replaces the terms of this section in its entirety:
Except as otherwise provided by mandatory law:
1. IBM's liability for any damages and losses that may arise as a consequence
of the fulfillment of its obligations under or in connection with this
agreement or due to any other cause related to this agreement is limited to
the compensation of only those damages and losses proved and actually arising
as an immediate and direct consequence of the non-fulfillment of such
obligations (if IBM is at fault) or of such cause, for a maximum amount not to
exceed €25,000 in any event. The above limitation shall not apply to damages
for bodily injuries (including death) and damages to real property and
tangible personal property for which IBM is legally liable.
2. UNDER NO CIRCUMSTANCES IS IBM, OR ANY OF ITS PROGRAM DEVELOPERS, LIABLE FOR
ANY OF THE FOLLOWING, EVEN IF INFORMED OF THEIR POSSIBILITY: 1) LOSS OF, OR
DAMAGE TO, DATA; 2) INCIDENTAL OR INDIRECT DAMAGES, OR FOR ANY ECONOMIC
CONSEQUENTIAL DAMAGES; 3) LOST PROFITS, EVEN IF THEY ARISE AS AN IMMEDIATE
CONSEQUENCE OF THE EVENT THAT GENERATED THE DAMAGES; OR 4) LOSS OF BUSINESS,
REVENUE, GOODWILL, OR ANTICIPATED SAVINGS.
3. The limitation and exclusion of liability herein agreed applies not
only to the activities performed by IBM but also to the activities
performed by its suppliers and Program developers, and represents the
maximum amount for which IBM as well as its suppliers and Program
developers, are collectively responsible.
Governing Law and Jurisdiction (Section 6)
Governing Law
The phrase "the laws of the country in which You obtain the Program license"
is replaced by:
1) "the laws of Austria" in Albania, Armenia, Azerbaijan, Belarus,
Bosnia-Herzegovina, Bulgaria, Croatia, Former Yugoslav Republic of
Macedonia-FYROM, Georgia, Hungary, Kazakhstan, Kyrgyzstan, Moldavia, Poland,
Romania, Russia, Serbia and Montenegro, Slovakia, Slovenia, Tajikistan,
Turkmenistan, Ukraine, and Uzbekistan; 2) "the laws of France" in Algeria,
Benin, Burkina Faso, Cameroon, Cape Verde, Central African Republic, Chad,
Comoros, Congo Republic, Djibouti, Democratic Republic of Congo, Equatorial
Guinea, French Guiana, French Polynesia, Gabon, Gambia, Guinea, Guinea-
Bissau, Ivory Coast, Lebanon, Madagascar, Mali, Mauritania, Mauritius,
Mayotte, Morocco, New Caledonia, Niger, Reunion, Senegal, Seychelles, Togo,
Tunisia, Vanuatu, and Wallis & Futuna; 3) "the laws of Finland" in Estonia,
Latvia, and Lithuania; 4) "the laws of England" in Angola, Bahrain, Botswana,
Burundi, Egypt, Eritrea, Ethiopia, Ghana, Jordan, Kenya, Kuwait, Liberia,
Malawi, Malta, Mozambique, Nigeria, Oman, Pakistan, Qatar, Rwanda, Sao Tome,
Saudi Arabia, Sierra Leone, Somalia, Tanzania, Uganda, United Arab Emirates,
the United Kingdom, West Bank/Gaza, Yemen, Zambia, and Zimbabwe; and 5) "the
laws of South Africa" in South Africa, Namibia, Lesotho and Swaziland.
Jurisdiction
The following exceptions are added to this section:
1) In Austria the choice of jurisdiction for all disputes arising out of this
Agreement and relating thereto, including its existence, will be the competent
court of law in Vienna, Austria (Inner-City); 2) in Angola, Bahrain, Botswana,
Burundi, Egypt, Eritrea, Ethiopia, Ghana, Jordan, Kenya, Kuwait, Liberia,
Malawi, Malta, Mozambique, Nigeria, Oman, Pakistan, Qatar, Rwanda, Sao Tome,
Saudi Arabia, Sierra Leone, Somalia, Tanzania, Uganda, United Arab Emirates,
West Bank/Gaza, Yemen, Zambia, and Zimbabwe all disputes arising out of this
Agreement or related to its execution, including summary proceedings, will be
submitted to the exclusive jurisdiction of the English courts; 3) in Belgium
and Luxembourg all disputes arising out of this Agreement or related to its
interpretation or its execution, the law, and the courts of the capital city,
of the country of Your registered office and/or commercial site location only
are competent; 4) in France, Algeria, Benin, Burkina Faso, Cameroon, Cape
Verde, Central African Republic, Chad, Comoros, Congo Republic, Djibouti,
Democratic Republic of Congo, Equatorial Guinea, French Guiana, French
Polynesia, Gabon, Gambia, Guinea, Guinea-Bissau, Ivory Coast, Lebanon,
Madagascar, Mali, Mauritania, Mauritius, Mayotte, Morocco, New Caledonia,
Niger, Reunion, Senegal, Seychelles, Togo, Tunisia, Vanuatu, and Wallis &
Futuna all disputes arising out of this Agreement or related to its violation
or execution, including summary proceedings, will be settled exclusively by
the Commercial Court of Paris; 5) in Russia all disputes arising out of or in
relation to the interpretation, the violation, the termination, the nullity of
the execution of this Agreement shall be settled by Arbitration Court of
Moscow; 6) in South Africa, Namibia, Lesotho and Swaziland both of us agree to
submit all disputes relating to this Agreement to the jurisdiction of the High
Court in Johannesburg; 7) in Turkey all disputes arising out of or in
connection with this Agreement shall be resolved by the Istanbul Central
(Sultanahmet) Courts and Execution Directorates of Istanbul, the Republic of
Turkey; 8) in each of the following specified countries, any legal claim
arising out of this Agreement will be brought before, and settled exclusively
by, the competent court of a) Athens for Greece, b) Tel Aviv-Jaffa for Israel,
c) Milan for Italy, d) Lisbon for Portugal, and e) Madrid for Spain; and 9) in
the United Kingdom, both of us agree to submit all disputes relating to this
Agreement to the jurisdiction of the English courts.
The following is added to this section:
Arbitration
In Albania, Armenia, Azerbaijan, Belarus, Bosnia- Herzegovina, Bulgaria,
Croatia, Georgia, Hungary, Kazakhstan, Kyrgyzstan, FYR Macedonia, Moldavia,
Poland, Romania, Russia, Slovakia, Slovenia, Tajikistan, Turkmenistan,
Ukraine, Uzbekistan, and FR Yugoslavia all disputes arising out of this
Agreement or related to its violation, termination or nullity will be finally
settled under the Rules of Arbitration and Conciliation of the International
Arbitral Center of the Federal Economic Chamber in Vienna (Vienna Rules) by
three arbitrators appointed in accordance with these rules. The arbitration
will be held in Vienna, Austria, and the official language of the proceedings
will be English. The decision of the arbitrators will be final and binding
upon both parties. Therefore, pursuant to paragraph 598 (2) of the Austrian
Code of Civil Procedure, the parties expressly waive the application of
paragraph 595 (1) figure 7 of the Code. IBM may, however, institute
proceedings in a competent court in the country of installation.
In Estonia, Latvia and Lithuania all disputes arising in connection with this
Agreement will be finally settled in arbitration that will be held in
Helsinki, Finland in accordance with the arbitration laws of Finland then in
effect. Each party will appoint one arbitrator. The arbitrators will then
jointly appoint the chairman. If arbitrators cannot agree on the chairman,
then the Central Chamber of Commerce in Helsinki will appoint the chairman.
AUSTRIA: General (Section 5): The following is added to item 4:
For purposes of this clause, contact information will also include information
about You as a legal entity, for example revenue data and other transactional
information.
GERMANY: Limitation of Liability (Section 4): The following paragraph is added
to this Section:
The limitations and exclusions specified in this Section will not apply to
damages caused by IBM intentionally or by gross negligence.
General (Section 5): The following replaces the terms of item 6:
Any claims resulting from this Agreement are subject to a statute of
limitation of three years.
IRELAND: No Warranty (Section 3): The following is added to this section:
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 and 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).
Limitation of Liability (Section 4): The following replaces the terms of this
section in its entirety:
For the purposes of this section, a "Default" means any act, statement,
omission, or negligence on the part of IBM in connection with, or in relation
to, the subject matter of an Agreement in respect of which IBM is legally
liable to You whether in contract or tort. A number of Defaults which together
result in, or contribute to, substantially the same loss or damage will be
treated as one Default occurring on the date of occurrence of the last such
Default.
Circumstances may arise where, because of a Default, You are entitled to
recover damages from IBM. This section sets out the extent of IBM's liability
and Your sole remedy.
1. IBM will accept unlimited liability for (a) death or personal injury caused
by the negligence of IBM, and (b) subject always to the Items for Which IBM is
Not Liable below, for physical damage to Your tangible property resulting from
the negligence of IBM. 2. Except as provided in item 1 above, IBM's entire
liability for actual damages for any one Default will not in any event exceed
€25,000. These limits also apply to any of IBM's suppliers and Program
developers. They state the maximum for which IBM and such suppliers and
Program developers are collectively responsible.
Items for Which IBM is Not Liable
Save with respect to any liability referred to in item 1 above, under no
circumstances is IBM or any of its suppliers or Program developers liable for
any of the following, even if IBM or they were informed of the possibility of
such losses:
1. loss of, or damage to, data;
2. special, indirect, or consequential loss; or
3. loss of profits, business, revenue, goodwill, or anticipated savings.
ITALY: General (Section 5): The following is added to this section:
IBM and Customer (hereinafter, individually, "Party") shall comply with all
the obligations of the applicable provisions of law and/or regulation on
personal data protection. Each of the Parties will indemnify and keep the
other Party harmless from any damage, claim, cost or expense incurred by the
latter, directly and or indirectly, as a consequence of an infringement of the
other Party of the mentioned provisions of law and/or regulations.
SLOVAKIA: Limitation of Liability (Section 4): The following is added to the
end of the last paragraph:
The limitations apply to the extent they are not prohibited under §§ 373-386
of the Slovak Commercial Code.
General (Section 5): The terms of item 6 are replaced with the following:
THE PARTIES AGREE THAT, AS DEFINED BY APPLICABLE LOCAL LAW, ANY LEGAL OR OTHER
ACTION RELATED TO A BREACH OF THIS AGREEMENT MUST BE COMMENCED NO LATER THAN
FOUR YEARS FROM THE DATE ON WHICH THE CAUSE OF ACTION AROSE.
SWITZERLAND: General (Section 5): The following is added to item 4:
For purposes of this clause, contact information will also include information
about You as a legal entity, for example revenue data and other transactional
information.
UNITED KINGDOM: Limitation of Liability (Section 4): The following replaces
the terms of this section in its entirety:
For the purposes of this section, a "Default" means any act, statement,
omission, or negligence on the part of IBM in connection with, or in relation
to, the subject matter of an Agreement in respect of which IBM is legally
liable to You, whether in contract or tort. A number of Defaults which
together result in, or contribute to, substantially the same loss or damage
will be treated as one Default.
Circumstances may arise where, because of a Default, You are entitled to
recover damages from IBM. This section sets out the extent of IBM's liability
and Your sole remedy.
1. IBM will accept unlimited liability for: a. death or personal injury caused
by the negligence of IBM; b. any breach of its obligations implied by Section
12 of the Sale of Goods Act 1979 or Section 2 of the Supply of Goods and
Services Act 1982, or any statutory modification or re- enactment of either
such Section; and c. subject always to the Items for Which IBM is Not Liable
below, for physical damage to Your tangible property resulting from the
negligence of IBM. 2. IBM's entire liability for actual damages for any one
Default will not in any event, except as provided in item 1 above, exceed
£15,000. These limits also apply to IBM's suppliers and Program developers.
They state the maximum for which IBM and such suppliers and Program developers
are collectively responsible.
Items for which IBM is Not Liable
Save with respect to any liability referred to in item 1 above, under no
circumstances is IBM or any of its suppliers or Program developers liable for
any of the following, even if IBM or they were informed of the possibility of
such losses:
1. loss of, or damage to, data;
2. special, indirect, or consequential loss; or
3. loss of profits, business, revenue, goodwill, or anticipated savings.