Res 1985-088 - Laserfiche WebLink

Home Browse Search

~'MER AND LIMITATION OF LIABILITY modify the terms and conditions of the Sections entitled "Periods . M will in no event be liable for lost profits, lost savings or other of Maintenance Service," "Charges" and "Services for Additional consequential damages even if IBM has been advised of the Charge." Otherwise, this Agreement can only be modified by a possibility of such damages, or for any claim against the Custo- written agreement duly signed by persons authorized to sign mer by any other party. agreements on behalf of the Customer and I BM. Variance from the IBM is relieved of responsibility for all loss of funds contained in, terms and conditions of this Agreement in any Customer order or dispensed by or associated with any Machine. other written notification will be of no effect. IBM's liability to the Customer for damages, from any cause The Customer represents that the Customer is either the owner whatsoever, and regardless of the form of action, whether in of the Machines under this Agreement, or authorized by the owner I'nntract or in tort including negligence, shall be limited to actual to include such Machines under this Agreement. mages up to the greater of $50,000 or 12 months' maintenance No action, regardless of its form, arising out of this Agreement, larges for the specific Machines under this Agreement that may be brought by either party more than two years after the used the damages or that are the subject matter of or are cause of action has arisen, or, in the case of an action for y,rectly related to the cause of action. Such charges will be those nonpayment, more than two years from the date the last payment in effect for the specific Machines when the cause of action arose. was due. The foregoing limitation of liability will not apply to claims for This Agreement will be governed by the laws of the State of New personal injury or damage to real property or tangible personal York. property caused by IBM's negligence. THE CUSTOMER ACKNOWLEDGES THAT THE CUSTOMER GENERAL HAS READ THIS AGREEMENT, UNDERSTANDS IT, AND Service provided under this Agreement does not assure unin- AGREES TO BE BOUND BY ITS TERMS AND CONDITIONS. terrupted operation of the Machines and IBM is not responsible FURTHER, THE CUSTOMER AGREES THAT THIS AGREE- for failure to render service due to causes beyond its control. MENT, AND SUPPLEMENTS REFERENCING THIS AGREE- This Agreement is not assignable without the prior written MENT, WILL BE THE COMPLETE AND EXCLUSIVE STATE- consent of IBM. Any attempt to assign any of the rights, duties or MENT OF THE AÇ;REEMENT BETWEEN THE PARTIES, obligations of this Agreement without such consent is void. SUPERSEDING ALL PROPOSALS OR PRIOR AGREEMENTS, IBM may, upon 12 months' written notice to the Customer, ORAL OR WRITTEN, AND ALL OTHER COMMUNICATIONS modify the terms and conditions of this Agreement, except that BETWEEN THE PARTIES RELATING TO THE SUBJECT IBM may, upon three months' written notice to the Customer, MATTER OF THIS AGREEMENT. Agreement for IBM Licensed Programs (Z125-3358-00) International Business Machines Corporation (IBM) and the Customer agree that, when this Agreement is signed by the Customer and accepted by IBM, the following terms and conditions will apply to any IBM licensed program materials offered under this Agreement when ordered by the Customer and the order is accepted as provided herein. Under these terms and conditions, IBM will 1) furnish licensed programs to the Customer, 2) furnish licensed optional materials in support of such licensed programs, 3) grant the Customer a nontransferable and nonexclusive license in the United States and Puerto Rico to use the licensed program materials. and 4) provide \rogram services. all as described herein. The Customer agrees with respect to the licensed programs to accept the responsibility for 1) heir selection to achieve the Customer's intended results, 2) their installation, 3) their use, and 4) the results obtained therefrom. The ~ustomer also has the responsibility for the selection and use of. and results obtained from, any other programs, programming, ¡qujpment or services used with the licensed programs. Specific licensed program materials may be ordered under this Agreement by 1) a Supplement to this Agreement (Supplement) signed by the Customer, 2) a written order, specifying the licensed program materials and the designated machine, signed by the Customer, or 3) such other ordering procedure as shall be designated by IBM for the specific licensed program materials, IBM will accept any such order under this Agreement by providing the Customer a Supplement soecifying the supplemental terms applicable to such licensed program materials. Upon receipt of the Supplement by the Customer, IBM shall thereby grant a nontransferable and nonexclusive license in the United States and Puerto RIco for licensed program materials subject to the terms and conditions of this Agreement. Use of the licensed program materials or the first payment of charges due hereunder, whichever first occurs following receipt of the Supplement, will constitute the Customers acceptance of the supplemental terms specified in the Supplement. Any terms which this Agreement states are to be specified by IBM for a licensed program and/or related licensed optional materials will be stated in the Supplement for that licensed program. DEFINITIONS TERM The term "licensed program" in this Agreement shall mean a This Agreement is effective from the date on which it is accepted licensed data processing program consisting of a series of by IBM and will remain In effect until terminated by the Customer instructions or statements in machine readable form, and/or any upon one month's written notice, or by IBM as set forth in this licensed data base consisting of a systematized collection of data section. This Agreement may be terminated by the Customer only in machine readable form, and any related licensed materials such when all licensed program materials licensed hereunder are as, but not limited to, flow charts, logic diagrams and listings discontinued and all licensed program materials have been provided for use in connection with the licensed data processing returned or destroyed. program. Licenses granted under this Agreement may be discontinued by The term "licensed optional materials" in this Agreement shall the Customer upon one month's written notice, except that. mean any machine readable or printed material not included in the during the testing period, the Customer may discontinue any licensed program and which is designated by IBM as available license at any time upon written notice effective immediately. under license to Customers who have licensed the program to IBM may discontinue any license or terminate this Agreement which such optional materials relate. upon written notice effective immediately if the Customer fails to The term "licensed program materials" in this Agreement shall comply with any of the terms and conditions of this Agreement. mean both the licensed program and the licensed optional Notice of discontinuance of any or all licenses shall not be materials as defined above. considered notice of termination of this Agreement unless The term "restricted materials" in this Agreement shall mean specifically stated. 3.ny licensed program materials which are labeled "Restricted Notice of discontinuance of any licensed program shall be Materials of IBM." notice of discontinuance of the license and of all licensed program The. term "use" in this Agreement shall mean copying any materials obtained in connection therewith. portion of the licensed program materials into a machine and/or LICENSE transmitting them to a machine for processing of the machine Each license granted under this Agreement authorizes the instructions, statements or data contained in such materials. Customer to: Z125-9029-00 Page 7 of 17