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 (No Warranties):



Although IBM specifies that there are no warranties, Licensee may have

certain rights 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:



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.



JAPAN



13. General



The following is inserted as Item 13.n:



n. 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. No Warranties



The following is added to the first paragraph of this Section 8 (No

Warranties):



Although IBM specifies that there are no warranties, Licensee 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

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:



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



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.



EUROPE, MIDDLE EAST, AFRICA (EMEA) COUNTRY AMENDMENTS



EUROPEAN UNION MEMBER STATES



8. No Warranties



The following is added to Section 8 (No Warranties):



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

(No Warranties).



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 Licensee and its contractors

as legal entities (for example, Licensee'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 authorizes 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.



(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. No Warranties



In Austria (and Germany) the following replaces Section 8 (No

Warranties) in its entirety, including its title, if Licensee paid a

charge to obtain the Program.



8. Warranties and Exclusions



The warranty period is twelve months from the date of delivery. The

limitation period for consumers in action for breach of warranty is the

statutory period as a minimum.



The warranty for an IBM Program covers the functionality of the Program

for its normal use and the Program's conformity to its specifications.



IBM warrants that when the Program is used in the specified operating

environment it will conform to its specifications. IBM does not warrant

uninterrupted or error-free operation of the Program or that IBM will

correct all Program defects. Licensee is responsible for the results

obtained from the use of the Program.



The warranty applies only to the unmodified portion of the Program.



If the Program does not function as warranted during the warranty period

and the problem cannot be resolved with information available, Licensee

may return the Program to the party from whom Licensee acquired it and

receive a refund of the amount Licensee paid. If Licensee down loaded

the Program, Licensee may contact the party from whom Licensee acquired

it to obtain the refund.



This is IBM's sole obligation to Licensee, except as otherwise required

by applicable statutory law.



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.



GERMANY



8. No Warranties



This Section 8 (No Warranties) is amended as specified for AUSTRIA.



10. Limitation of Liability



The following replaces this Section 10 (Limitation of Liability) 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:



g. Any claims resulting from this Agreement are subject to a limitation

period of three years, except as stated in Section 8 (No Warranties) of

this Agreement.



The following replaces the provisions of 13.i:



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. No Warranties



The following sentence is added to the second paragraph of this Section

8 (No Warranties):



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.



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.



Z125-5589-05 (07/2011)



  * Warranties and licenses <http://www.ibm.com/support/warranties/us/>



