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<br />"IBM Licensed Program Certificate of Return or Destruction'
<br />certifying that through the Customer's bp~t effort, and to the best
<br />of the Customer's knowledge, the orig and all copies of the
<br />iicensed program materials received fror. ,M ormade in connec-
<br />tion with such license have been returned to IBM or destroyed.
<br />This requirement will apply to all copies in any form including
<br />translations or compilations or partial copies within modifications,
<br />derivative works, and updated works. whether partial or complete.
<br />and whether or not modified or merged into other program
<br />materials as authorized herein. However, upon prior written
<br />authorization from IBM, the Customer may retain a copy for
<br />archival purposes only.
<br />The requirement to return or destroy will apply to a licensed
<br />data base; it will not apply to individual pieces of data obtained by
<br />the Customer from such data base and which constitute a minor
<br />portion of such data base.
<br />When the Customer has licensed a new version of a licensed
<br />program. which carries a different program number, and
<br />discontinues the prior version, the Customer may retain the prior
<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
<br />defect in the new version prevents its use. During this period, the
<br />Customer will pay only the applicable charges for the new version
<br />of the licensed program. Within one month following this three-
<br />month period, unless the requirement IS waived by IBM, the
<br />Customer will furnish IBM a completed form entitled --IBM
<br />Licensed Program Certificate of Return or Destruction" for the
<br />prior version as set forth above.
<br />
<br />PATENTS AND COPYRIGHTS
<br />IBM will, at its expense, defend the Customer against any claim
<br />that licensed program materials supplied hereunder infringe a
<br />patent or copyright in the United States or Puerto Rico and subject
<br />to the limitation of liability set forth in the section entitled
<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.
<br />To qualify for such defense and payment. the Customer must
<br />1) give IBM prompt written notice of any such claim; and
<br />2) allow IBM to control, and fully cooperate with IBM in, the
<br />defense and all related settlement negotiations. However, if the
<br />damages attributable to a claim of infringement of a patent in
<br />the United States or Puerto Rico may exceed such limitation of
<br />liability, the Customer may elect to defend against the claim
<br />provided that IBM may fully participate in the defense and/or
<br />agrees to any scttl(~lllcnt nf SUCll cl;\l111
<br />The Customer agrees to allow 18M. at IBM's option and
<br />expense, if such claim has occurred or in 18M's judgment is likely
<br />to occur, to procure the right for the Customer to continue using
<br />the licensed program materi?lls or to replace or to modify them so
<br />that they become non-infringing; and, If neither of the foregoing
<br />alternatives is available on terms which are reasonable In IBM's
<br />judgment, upon written request the Customer will return tile
<br />licensed program materials to 18M; and, for licensed programs
<br />whose total charges are fully paid, the Customer may receive a
<br />credit as established by IBM
<br />IBM shall have no obligation with respect to any such claim
<br />based upon the Customer's modification of the licensed program
<br />materials or their combination, operation or use with data or
<br />programs not furnished by IBM or in other than the Specified
<br />Operating Environment. This section states IBM's entire
<br />obligation to the Customer regarding infringement or the like.
<br />
<br />LIMITATION OF REMEDIES
<br />IBM's entire liability and the Customer's exclusive remedy shall
<br />be as follows:
<br />In all situations involving performance or nonperformance of
<br />licensed programs furnished under this Agreement. the
<br />Customer's remedy is 1) the correction by IBM of licensed
<br />program defects, or 2) if, after repeated efforts, IBM is unable to
<br />make the licensed program operate as warranted, the Customer
<br />shall be entitled to recover actual damages to the limits set forth in
<br />this section.
<br />For any other claim concerning performance or nonper-
<br />formance by IBM pursuant to, or in any other way related to, ttle
<br />subject matter of thiS Agreement and any Supplement hereto, the
<br />Customer shall be entitled to recover actual damages to the limits
<br />set forth in this section.
<br />IBMs liability for damages to the Customer for any cause
<br />whatsoever, and regardless of the form of action, whether in
<br />contract or in tort including negligence, shall be limited to the
<br />greater of $25,000 or the one-time charge paid for, or any charges
<br />
<br />Z125-9029-01
<br />
<br />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 />or is directly related' 'e cause of action. Such charges shall be
<br />those in effect when cause of action arose and shall include
<br />any initial or process charges paid to IBM. This limitation of
<br />liability will not apply to claims for copyright infnngement or for
<br />personal injury or damage to real or tangible personal properly
<br />caused by lAM's negligence.
<br />In no event will IBM be liable for any damages arising from
<br />performance or nonperformance of the licensed program during
<br />the licensed program testing period or for any damages caused by
<br />the Customer's failure to perform the Customer's responsibilities,
<br />or for any lost profits, lost savings or other consequential
<br />damages, even If IBM has been adVIsed of the possibility of such
<br />damages, or for any claIm against the Customer by any other
<br />party, except as provided in the section entitled "Patents and
<br />Copyrights."
<br />
<br />IBM EDUCATION COURSES
<br />The Customer agrees that all of the terms and conditions
<br />applicable to restricted materials contained in this Agreement
<br />shall be incorporated into the Agreement between the Customer
<br />and IBM pntltled "Terms and Conditions for IBM Classes and
<br />Education Materials" and apply to materials, regardless of form,
<br />labeled --Restncted Matenals of IBM-- when distributed to the
<br />Customer in conjunction with an IBM Education Course.
<br />
<br />ADDITIONAL PRODUCTS AND SERVICES
<br />In addition to the licensed program materials and program
<br />services provided under thiS Agreement, IBM offers other
<br />products and services at separate charges under applicable
<br />written IBM agreements. IBM and the Customer agree that such
<br />products and services cannot be the subject of an oral agreement.
<br />
<br />GENERAL
<br />This Agreement is not assignable; none of the licenses granted
<br />hereunder nor any of the licensed program materials or COplOS
<br />thereof may be sublicensed, assigned or transferred by the
<br />Customer without the prior written consent of IBM. Any attempt to
<br />sublicense, assign or transfer any of the rights, duties or
<br />obligations under this Agreement is void.
<br />Licensed program materiCl.ls furnished under this Agreement
<br />(lr(~ 10 l)(~ w;(~d only on m;ldlirws IOc;lted in thc~ lJnl\r,c1 Slilh)s ;Ull!
<br />I-luettn Hieo.
<br />The terms of this Agreement may be modified by IBM upon
<br />three months' written notice to the Customer, except that any
<br />modifications of the terms and conditions which relate specifically
<br />to termination of this Agreernent or discontinuance of licenses
<br />granted under this Agreement as provided in the section entitled
<br />"Term" shall be effective only as to licensed program materials
<br />deSignated in a Supplement issued by IBM after the date of such
<br />notice. Modifications shall become effective unless the Customer
<br />terminates this Agreement or discontinues any applicable
<br />licenses before the effective date thereof. Otherwise, the
<br />Agreement or any Supplement can only be modified by a written
<br />agreement duly signed by persons authorized to sign agreements
<br />on behalf of the Customer and IBM, and variance from or addition
<br />to the terms and conditions of this Agreement and any
<br />Supplement in any Customer purchase order or other written
<br />notification will be of no effect.
<br />IBM is not responsible for failure to fulfill its obligations under
<br />this Agreement due to causes beyond its control.
<br />No action, regardless of form, arising out of thiS Agreement may
<br />be brought by either party 1) in the case of an action arising out of
<br />breach of the provisions of the section entitled "Protection and
<br />Security of Licensed Program Materials" more than six years after
<br />such cause of action has arisen, 2} in the case of an action for
<br />nonpayment, more than two years from the date the last payment
<br />was due. or 3) in the case of any other action, more than two years
<br />after the cause of action has arisen.
<br />The Agreement will be governed by the laws of the State of New
<br />York.
<br />
<br />THE CUS' OMER ACKNOWLEDGES THAT THE CUSTOMER
<br />HAS READ THIS AGREEMENT, UNDERSTANOS IT, AND
<br />AGREES TO BE BOUND BY ITS TERMS AND CONDITIONS.
<br />FURTHER, THE CUSTOMER AGREES THAT THIS AGREE-
<br />MENT AND ITS APPLICABLE SUPPLEMENTS ARE THE COM-
<br />PLETE AND EXCLUSIVE STATEMENT OF THE AGREEMENT
<br />
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