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<br /> ~C""sed Pmg"m Cert;!;cale of Relom 0< Deslcuct;on
<br /> _certifying that through the Customer's best effort, and to the best which would be due for twelve months' use of, the licensed
<br /> program that caused the damages or that is the subject matter of,
<br /> of the Customer's knowledge, the original and all copies of the or is directly related to, the cause of action. Such charges shall be
<br /> licensed program materials received from IBM or made in connec- those in effect when the cause of action arose and shall include
<br /> tio~ with ~uch licen~ have been retu~ned to IBM or destroyed. any initial or process charges paid to IBM. This limitation of
<br /> ThIs reqUIrement wIll apply to all caples In any form including liability will not apply to claims for copyright infringement or for
<br /> translations or compilations or partial copies within modifications, personal injury or damage to real or tangible personal property
<br /> derivative works, and updated works, whether partial or complete, caused by IBM's negligence.
<br /> and whether or not modified or merged into other program In no event will IBM be liable for any damages arising from
<br /> lterials as authorized herein. However, upon prior written performance or nonperformance of the licensed program during
<br /> thorization from IBM, the Customer may retain a copy for the licensed program testing period or for any damages caused by
<br /> ~hival purposes only. the Customer's failure to perform the Customer's responsibilities
<br /> The requirement to return or destroy will apply to a licensed or for any los~ profits, lost savings or other consequentiaì
<br /> data base; it will not apply to individual pieces of data obtained by damages. even If IBM has been advised of the possibility of such
<br /> the Customer from such data base and which constitute a minor damages, or for any claim against the Customer by any other
<br /> portion of such data base. party, except as provided in the section entitled "Patents and
<br /> When the Customer has licensed a new version of a licensed Copyrights."
<br /> program, which carries a different program number, and
<br /> dis~~ntinues the prior version, the Customer may retain the prior IBM EDUCATION COURSES
<br /> version of the licensed program for a period not to exceed three
<br /> months following its date of discontinuance, to be used only if a The Customer agrees that all of the terms and conditions
<br /> defect in the new version prevents its use. During this period, the applicable to restricted materials contained in this Agreement
<br /> Customer will pay only the applicêble charges for the new version shall be incorporated Into the Agreement between the Customer
<br /> of the licensed program. Within one month following this three- and IBM entitled "Terms and Conditions for IBM Classes and
<br /> month period, unless the requirement is waived by IBM, the Education Matenals" and apply to materials, regardless of form,
<br /> Customer will furnish IBM a completed form entitled "IBM labeled "Restricted Materials of IBM" when distributed to the
<br /> Licensed Program Certificate of Return or Destruction" for the Customer in conjunction with an IBM Education Course.
<br /> prior version as set forth above.
<br /> PATENTS AND COPYRIGHTS ADDITIONAL PRODUCTS AND SERVICES
<br /> In addition to the licensed program materials and program
<br /> IBM will, at its expense, defend the Customer against any claim services provided under this Agreement. IBM offers other
<br /> that licensed ~rog~am materials supplied hereunder infringe a products and services at separate charges under applicable
<br /> patent or. copynght In t~e U!1lted States orPuerto Ricoand subject written IBM agreements. IBM and the Customer agree that such
<br /> to the limitation of liabIlity set forth In the section entitled products and services cannot be the subject of an oral agreement.
<br /> "limitation of Remedies," IBM will pay all costs, damages and
<br /> attorney's fees that a court finally awards as a result of such claim GENERAL
<br /> To qualify for such defense and payment, the Customer must:
<br /> 1) ~ive IBM prompt written notice of any such claim; and This Agreement is not assignable; none of the licenses granted
<br /> 2) allow IBM to control, and fully cooperate with IBM in, the hereunder nor any of the licensed program materials or copies
<br /> defense and all related settlement negotiations. However, if the thereof may be sublicensed. assigned or transferred by the
<br /> damages attributable to a claim of infringement of a patent in Customer without the prior written consent of IBM. Any attempt to
<br /> the United States or Puerto Rico may exceed such limitation of sublicense, assign or transfer any of the rights, duties or
<br /> liability, the Customer may elect to defend against the claim obligations under this Agreement is void.
<br /> provided that IBM may fully participate in the defense and/or Licensed program materials furnished under this Agreement
<br /> agrees to any settlement of such claim are to be used only on machines located in the United States and
<br /> The Customer agrees to allow IBM. at IBM's option and Puerto Rico.
<br /> .Jxpense, if such claim has occurred or in IBM's judgment is likely The terms of this Agreement may be modified by IBM upon
<br /> to occur, to procure the right for the Customer to continue using three months' written notice to the Customer, except that any
<br /> the licensed program materials or to replace or to modify them so modifications of the terms and conditions which relate specifically
<br /> that they become non-infringing; and, If neither of the foregoing to termination of this Agreement or discontinuance of licenses
<br /> alternatives is available on terms which are reasonable in IBM's granted under this Agreement as provided in the section entitled
<br /> judgment, upon written request, the Customer will return the "Term" shall be effective only as to licensed program materials
<br /> licensed program materials to IBM; and, for licensed programs designated In a Supplement issued by IBM after the date of such
<br /> whose total charges are fully paid, the Customer may receive a notice. Modifications shall become effective unless the Customer
<br /> credit as established by IBM. terminates this Agreement or discontinues any applicable
<br /> IBM shall have no obligation with respect to any such claim licenses before the effective date thereof. Otherwise, the
<br /> based upon the Customer's modification of the licensed program Agreement or any Supplement can only be modified by a written
<br /> materials or their combination, operation or use with data or agreement duly signed by persons authorized to sign agreements
<br /> programs not furnished by IBM or In other than the Specified on behalf of the Customer and IBM, and variance from or addition
<br /> Operating Environment. This section states IBM's entire to the terms and conditions of this Agreement and any
<br /> obligation to the Customer regarding infringement or the like. Supplement In any Customer purchase order or other written
<br /> notification will be of no effect.
<br /> LIMITATION OF REMEDIES IBM is not responsible for failure to fulfill its obligations under
<br /> IBM's entire liability and the Customer's exclusive remedy shall this Agreement due to causes beyond its control.
<br /> be as follows: No action, regardless of form, arising out of this Agreement may
<br /> In all situations involving performance or nonperformance of be brought by either party 1) in the case of an action arising out of
<br /> licensed programs furnished under this Agreement, the breach of the provisions of the section entitled "Protection and
<br /> Customer's remedy is 1) the correction by IBM of licensed Security of Licensed Program Materials" more than six years after
<br /> program defects, or 2) if, after repeated efforts, IBM is unable to such cause of action has arisen, 2) in the case of an action for
<br /> make the licensed program operate as warranted, the Customer nonpayment, more than two years from the date the last payment
<br /> shall be entitled to recover actual damages tothe limits set forth in was due, or 3) in the case of any other action, more than two years
<br /> this section. after the cause of action has arisen.
<br /> For any other claim concerning performance or nonper- The Agreement will be governed by the laws of the State of New
<br /> formance by IBM pursuant to, or in any other way related to, the York.
<br /> subject matter of this Agreement and any Supplement hereto, the THE CUSTOMER ACKNOWLEDGES THAT THE CUSTOMER
<br /> Customer shall be entitled to recover actual damages to the limits
<br /> set forth in this section. HAS READ THIS AGREEMENT, UNDERSTANDS IT, AND
<br /> IBM's liability for damages to the Customer for any cause AGREES TO BE BOUND BY ITS TERMS AND CONDITIONS.
<br /> whatsoever, and regardless of the form of action, whether in FURTHER. THE CUSTOMER AGREES THAT THIS AGREE-
<br /> contract or in tort including negligence, shall be limited to the MENT AND ITS APPLICABLE SUPPLEMENTS ARE THE COM-
<br /> greater of $25,000 or the one-time charge paid for, or any charges PlETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT
<br /> Z 125-9029-00 Page 11 of 17
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