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igknighted
August 17th, 2007, 04:12 PM
In my search for a way to escape my schools terribly slow domino web acess I went to IBMs site and downloaded the beta of Notes 8. Buried in the middle of the license was this jem of a line:


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.

I don't know if this is a normal type of clause to be included, but it hardly seems constitutional here in the United States...

LaRoza
August 17th, 2007, 04:33 PM
In my search for a way to escape my schools terribly slow domino web acess I went to IBMs site and downloaded the beta of Notes 8. Buried in the middle of the license was this jem of a line:



I don't know if this is a normal type of clause to be included, but it hardly seems constitutional here in the United States...

I haven't read the entire thing (because it wasn't posted), but you can legally waive a jury trial, in fact, it is more common to waive it than to have one.

igknighted
August 17th, 2007, 04:42 PM
I haven't read the entire thing (because it wasn't posted), but you can legally waive a jury trial, in fact, it is more common to waive it than to have one.

Entire license:

International License Agreement for Early Release of Programs

Part 1 - General Terms

THIS INTERNATIONAL LICENSE AGREEMENT FOR EARLY RELEASE OF PROGRAMS ("AGREEMENT") IS A LEGAL AGREEMENT BETWEEN YOU AND IBM. BY DOWNLOADING, INSTALLING, COPYING, ACCESSING, OR USING THE PROGRAM YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ACCEPTING THESE TERMS ON BEHALF OF ANOTHER PERSON OR A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE FULL AUTHORITY TO BIND THAT PERSON, COMPANY, OR LEGAL ENTITY TO THESE TERMS.

"Early Release" is a release of a Program that (1) may still be under development (and therefore, is potentially unreliable) or (2) may no longer be under development but has not been made commercially available to users.

"IBM" is International Business Machines Corporation or one of its subsidiaries.

"License Information" ("LI") is a document that provides information and terms specific to a Program. The Program's LI is available in a file in the Program's directory, by the use of a system command, or as a booklet that accompanies the Program.

"Program" is one or more of the following, including the original and all whole or partial copies: 1) machine-readable instructions and data, 2) human readable software components, 3) audio-visual content (such as images, text, recordings, or pictures), 4) related licensed materials, 5) license use documents or keys, (6) associated documentation, and (7) any enhancements, updates or materials that IBM may elect in its discretion to provide to You as Support (as described below).

"You" and "Your" refer either to an individual person or to a single legal entity.

This Agreement includes Part 1 - General Terms, Part 2 - Country-unique Terms (if any), and License Information and is the complete agreement between You and IBM regarding the use of the Program. It replaces any prior oral or written communications between You and IBM concerning Your use of the Program. The terms of Part 2 and the License Information may replace or modify those of Part 1.

1. License

The Program is owned by IBM or an IBM supplier, and is copyrighted and licensed, not sold.

IBM grants You a limited, nonexclusive, nontransferable license to download, install, and use the Program during the evaluation period solely for internal testing and evaluation purposes and to provide feedback to IBM.

You may make a backup copy of the Program to support such use. You are not authorized to use the Program for productive purposes or to distribute the Program or any of its parts. You may not modify or create derivative works of the Program. The terms of this license apply to each copy that You make. You must reproduce all copyright notices and all other legends of ownership on each copy, or partial copy, of the Program.

You will 1) maintain a record of any copies of the Program and 2) ensure that anyone who uses the Program (accessed either locally or remotely) does so only for Your authorized use, and complies with the terms of this Agreement.

You may not: 1) use, copy, modify, transfer or distribute the Program except as provided in this Agreement; 2) reverse assemble, reverse compile, or otherwise translate the Program into human-readable form or into another program language (except as may be specifically permitted by law without the possibility of contractual waiver); 3) sublicense, rent, or lease the Program; or 4) use the Program on a service-bureau basis.

This license does not entitle You to receive from IBM hard-copy documentation, support, telephone assistance, or enhancements or updates to the Program (collectively, "Support"), although IBM, at its sole discretion may choose to provide such Support. Any enhancements, updates and other materials provided by IBM as part of Support are considered to be part of the Program and therefore governed by this Agreement.

THE PROGRAM MAY CONTAIN A DISABLING DEVICE THAT WILL PREVENT IT FROM BEING USED AFTER THE EVALUATION PERIOD ENDS. YOU MAY NOT TAMPER WITH THIS DISABLING DEVICE OR THE PROGRAM. YOU SHOULD TAKE PRECAUTIONS TO AVOID ANY LOSS OF DATA THAT MIGHT RESULT WHEN THE PROGRAM CAN NO LONGER BE USED.

2. Term

The evaluation period begins when You agree to the terms of this Agreement and ends upon the earliest of 1) the duration or end date (if any) specified in the License Information, 2) the date on which the Program automatically disables itself, or 3) the date on which IBM makes the program commercially available. Your license to the Program terminates at the end of the evaluation period, and You will destroy the Program and all copies made of it within 10 days of the end of the evaluation period.

There is no charge for Your use of the Program for the duration of the evaluation period.

IBM may terminate Your license if You fail to comply with the terms of this Agreement. If IBM does so, You must destroy all copies of the Program.

3. Rights In Data

You assign to IBM all right, title, and interest (including ownership of copyright) in any 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 3, 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.

4. 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.

5. 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.

6. 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. You agree to allow International Business Machines Corporation and its subsidiaries to store and use Your business contact information, including names, business phone numbers, and business e-mail addresses, anywhere they do business. Such information will be processed and used in connection with our business relationship; and may be provided to contractors acting on IBM's behalf, IBM Business Partners who promote, market, and support certain IBM products and services, and assignees of International Business Machines Corporation and its subsidiaries, for uses consistent with such business relationship.
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, Early Release versions.
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.

7. 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 7): 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 7): 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 5): 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 6): 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 7): 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 7): 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 7): 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 7): 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 5): 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 6): 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 7): 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 7): 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 7): 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 4): 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 5): 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 7): 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 You obtain the Program license.

CAMBODIA, LAOS, and VIETNAM: Governing Law and Jurisdiction (Section 7): 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 7): 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 5): 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 6): 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 7): 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 6): 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 5): The word "SPECIAL" in item 2 is deleted.

NEW ZEALAND: No Warranty (Section 4): 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 5): 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 7): 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 5): 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 7): 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 5): The words "SPECIAL" and "ECONOMIC" are deleted from item 2.

General (Section 6): 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 5 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 3): 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 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 4): 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 4.

Limitation of Liability (Section 5): 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 EUR 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 7)

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, for all disputes arising out of this Agreement or related to its interpretation or its execution, only the law and the courts of the capital of the country in which Your registered office and/or commercial office is located 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 6): 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 5): 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 6): 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 4): 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 5): 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 EUR 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 6): 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 5): 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 6): 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 6): 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 5): 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.

Z125-5544-03 (09/2006)
LICENSE INFORMATION

The Programs listed below are licensed under the following terms and conditions in addition to those of the International License Agreement for Early Release of Programs.

Program Name: IBM Lotus Domino - Beta 3
Program Number: 5724-E62

Evaluation Period

The evaluation period begins on the date that You agree to the terms of this Agreement and ends after 90 days.

Limited Use Rights for Other IBM Programs

If You acquired this Program as part of another IBM Program ("Principal Program") that lists this Program under "Other IBM Programs", You received this Program only in support of the Principal Program, and Your rights to use this Program will be limited by the license of the Principal Program. Please contact Your IBM Sales Representative if You wish to acquire a separate license to this Program not limited by the Principal Program's license terms.

Excluded Components

The provisions of this paragraph do not apply to the extent they are held to be invalid or unenforceable under the law that governs this license. The components listed below are "Excluded Components." Notwithstanding any of the terms in the Agreement or any other agreement You may have with IBM:
(a) the third party suppliers of such Excluded Components ("Suppliers") provide the components WITHOUT WARRANTIES OF ANY KIND and, such Suppliers DISCLAIM ANY AND ALL EXPRESS AND IMPLIED WARRANTIES AND CONDITIONS INCLUDING, BUT NOT LIMITED TO, THE WARRANTY OF TITLE, NON-INFRINGEMENT OR INTERFERENCE AND THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO THE EXCLUDED COMPONENTS;
(b) in no event are the Suppliers liable for any direct, indirect, incidental, special, exemplary, punitive or consequential damages, including but not limited to lost data, lost savings, and lost profits, with respect to the Excluded Components; and,
(c) IBM and the Suppliers are not liable to You, and will not defend, indemnify, or hold You harmless for any claims arising from or related to the Excluded Components.

Notwithstanding these exclusions, in Germany and Austria, IBM's warranty and liability for the Excluded Components is governed only by the respective terms applicable for Germany and Austria in the IBM license agreements.

Notices and important information that IBM is required to provide to You with respect to the Excluded Components, including instructions for obtaining source code for certain Excluded Components, may be found in the NOTICES file(s) that accompanies the Program.

Your use of the Excluded Components is governed by the terms of the Agreement and not by any terms that may be contained in the NOTICES file(s). The terms contained in the Agreement are offered by IBM and not by any other party. Future Program updates or fixpacks may contain additional Excluded Components. Such additional Excluded Components, and related notices and information, if any, will be listed in another NOTICES file that accompanies the Program update or fixpack.

The following are Excluded Components:
Apache Axis-SOAP 1.1
Apache Regular Expression Parser 1.2
DNS Resolvers 8.1, 8.6
ICU4C 3.4.1
ICU4J 2.8, 3.4
InfoZip Unzip stub file 5.5
JPEG r6
JTOpen 4.7
Quick V1.0.1
Net-SNMP 5.0.7
PERL 5.005-02
RSA BSafe
S/MIME 3
SNIA CIMON
WSDL 1.4
zlib 1.1.4

Specified Operating Environment

The Program's specifications and specified operating environment information may be found in documentation accompanying the Program, if available, such as a read-me file, or other information published by IBM, such as an announcement letter.

D/N: L-GHUS-6WNNKL
P/N: L-GHUS-6WNNKL


I am aware you can waive your right to a jury trial... but to bury it in the middle of a EULA seems underhanded to me. Especially as far reaching as that is. If they were to subpoena my computer for a breach of that license and found evidence of something else criminal then (by my understanding of that phrase) I would have waived my right to a jury trial in that matter as well.

LaRoza
August 17th, 2007, 04:48 PM
It only refers to Civil litigation, in the USA, crimes are against the State, and IBM would only be a witness, so that cannot refer to a criminal trial.

The EULA refers to Civil procedings, and their provision is quite common.

igknighted
August 17th, 2007, 04:59 PM
It only refers to Civil litigation, in the USA, crimes are against the State, and IBM would only be a witness, so that cannot refer to a criminal trial.

The EULA refers to Civil procedings, and their provision is quite common.

Ahh, thanks. I need to read the EULA more often...