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<br />DISCLAIMER AND LIMITATION OF L1A TY
<br />IBM will in no event be liable for lost proh,..>, lost savings or other
<br />conse'luential damages even if IBM has been advised of the
<br />possibility 01 such damages, or for any claim against the Custo-
<br />mer by any other party.
<br />IBM is relieved of responsibility for all loss of funds contained in,
<br />dispensed by or associated with any Machine.
<br />IBM's liability to the Customer for damages, from any cause
<br />whatsoever, and regardless of the form of action, whether in
<br />contract or in tort including negligence, shall be limited to actual
<br />damages up to the greater of $50,000 or 12 months' maintenance
<br />charges for the specific Machines under this Agreement that
<br />caused the damages or that are the subject matter of or are
<br />directly related to the cause of action. Such charges will be those
<br />in effect for the specific Machines when the cause of action arose.
<br />The foregoing limitation of liability will not apply to claims for
<br />personal injUry or damage to real property or tangible personal
<br />property caused by IBM's negligence.
<br />GENERAL
<br />Service provided under this Agreement does not assure unin-
<br />terrupted operation of the Machines and IBM is not responsible
<br />for failure to render service due to causes beyond its control.
<br />This Agreement is not assignable without the prior written
<br />consent of IBM. Any attempt to assign any of the rights, duties or
<br />obligations of this Agreement without such consent is void.
<br />IBM may, upon 12 months' written notice to the Customer,
<br />modify the terms and conditions of this Agreement, except that
<br />IBM may, upon three months' written notice to the Customer,
<br />
<br />modify the terms and ( itions of the Sections entitled "Periods
<br />of Maintenance Service, .Charges" and "Services for Additional
<br />Charge." Otherwise, this Agreement can only be modified by a
<br />written agreement duly signed by persons authorized to sign
<br />agreements on behalf of the Customer and IBM. Variance from the
<br />terms and conditions of this Agreement in any Customer order or
<br />other written notification will be of no effect.
<br />The Customer represents that the Customer is either the owner
<br />of the Machines under this Agreement, or authorized by the owner
<br />to include such Machines under this Agreement.
<br />No action, regardless of its form, arising out of this Agreement,
<br />may be brought by either party more than two years after the
<br />cause of action has arisen, or, in the case of an action for
<br />nonpayment, more than two years from the date the last payment
<br />was due.
<br />This Agreement will be governed by the laws of the State of New
<br />York.
<br />THE CUSTOMER ACKNOWLEDGES THAT THE CUSTOMER
<br />HAS READ THIS AGREEMENT. UNDERSTANDS IT. AND
<br />AGREES TO BE BOUND BY ITS TERMS AND CONDITIONS.
<br />FURTHER, THE CUSTOMER AGREES THAT THIS AGREE-
<br />MENT. AND SUPPLEMENTS REFERENCING THIS AGREE-
<br />MENT, WILL BE THE COMPLETE AND EXCLUSIVE STATE-
<br />MENT OF THE AGREEMENT BETWEEN THE PARTIES
<br />SUPERSEDING ALL PROPOSALS OR PRIOR AGREEMENTS:
<br />ORAL OR WRITTEN, AND ALL OTHER COMMUNICATIONS
<br />BETWEEN THE PARTIES RELATING TO THE SUBJECT
<br />MATTER OF THIS AGREEMENT.
<br />
<br />Agreemenllor IBM Licensed Programs
<br />(Z125-3358-00)
<br />
<br />International Business Machines Corporation (IBM) and the Customer agree that, when this Agreement is signed by the Customer and
<br />accepted by 18M, the fOllowing terms and conditions will apply to any IBM licensed program materials offered under this Agreement
<br />when ordered by the Customer and the order is accepted as provided herein. Under these terms and conditions, IBM will 1) furnish
<br />licensed programs to the Customer, 2) furnIsh licensed optional materials in support of such licensed programs, 3) grant the Customer a
<br />nontransferable and nonexclusive license in the United States and Puerto Rico to use the licensed program materials, and 4) provide
<br />program services, all as described herein. The Customer agrees with respect tothe licensed programs to accept the responsibility for 1)
<br />their selection to achieve the Customer's intended results, 2) their installation, 3) their use, and 4) the results obtained therefrom. The
<br />Customer also has the responsibility for the selection and use of, and results obtained from, any other programs, programming,
<br />equipment or services used with the licensed programs.
<br />SpecifiC licensed program materials may be ordered under this Agreement by 1) a Supplement to this Agreement (Supplement)
<br />signed by the Customer, 2) a written order, speCifying the licensed program materials and the designated machine, signed by the
<br />Customer, or 3) such other ordering procedure as shall be designated by IBM for the specifiC licensed program materials. IBM will
<br />accept any such order under ttlis Agreement by providing the Customer a Supplement specifying the supplemental terms applicable to
<br />such licensed program materrals. Upon receipt of the Supplement by tllC Customer, IBM shall thereby grant a nontransferable and
<br />nonexclusive license in the United States and Puerto Rrco for Ircensed program materials subject to the terms and conditions of thrs
<br />Agreement. Use of the licensed program materials or the first payment of charges due hereunder, whichever first occurs following
<br />receipt of the Supplement, will constItute the Customer's ~lcceptance of the supplemental terms specified in the Supplement.
<br />
<br />Any terms which this Agreement states are to be specified by IBM for a licensed program and/or related licensed optional materials
<br />will be stated in the Supplement for that licensed program.
<br />
<br />DEFINITIONS
<br />The term "licensed program" in this Agreement shall mean a
<br />licensed data processing program consisting of a series of
<br />instructions or statements in machine readable form, and/or any
<br />licensed data base consisting of a systematized collection of data
<br />in machine readable form, and any related licensed materials such
<br />as, but not limited to, flow charts, logic diagrams and listings
<br />provided for use in connection with the licensed data processrng
<br />program.
<br />The term "licensed optional materials" in this Agreement shall
<br />mean any machine readable or printed material not included in the
<br />licensed program and which is designated by IBM as available
<br />under license to Customers who have licensed the program to
<br />which such optional materials relate.
<br />The term "licensed program materials" in this Agreement shall
<br />mean both the licensed program and the licensed optional
<br />materials as defined above.
<br />The term "restricted materials" in this Agreement shall mean
<br />8'1Y licensed program materials which are labeled "Restricted
<br />~ laterials of IBM."
<br />The term "use" in this Agreement shall mean copying any
<br />portion of the licensed program materials into a machine <lnd/of
<br />transmitting them to a machine for processing of the machine
<br />instrudions, statements or data contai' 'j in such materials.
<br />Z125-9029-01
<br />
<br />TERM
<br />This Agreement is effective from the date on which it is accepted
<br />by IBM and will remain in effect until terminated by the Customer
<br />upon one month's written notice, or by IBM as set forth in this
<br />section. This Agreement may be terminated by the Customer only
<br />when all licensed program materials licensed hereunder are
<br />discontinued and all licensed program materials have been
<br />returned or destroyed.
<br />Licenses granted under this Agreement may be discontinued by
<br />the Customer upon one month's written notice, except that,
<br />during the testing period, the Customer may discontinue any
<br />license at any time upon written notice effective immediately.
<br />IBM may discontinue any license or terminate this Agreement
<br />upon written notice effective immediately if the Customer fails to
<br />comply with any of the terms and conditions of this Agreement.
<br />Notice of discontinuance of any or all licenses shall not be
<br />considered notice of termination of this Agreement unless
<br />speCifically stated.
<br />Notice of discontinuance of any licensed program shall be
<br />notice of discontinuance of the license and of all licensed program
<br />materials obtained in connection therewith.
<br />LICENSE
<br />Each license granted under this Agreement authorizes the
<br />Customer to:
<br />
<br />P<lqr: 7 01 17
<br />
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