IBM Acquisition Agreement

1. Definitions

Is the following:

1. For an IBM machine that IBM is responsible for installing, the business day after the day IBM installs it or, if you defer installation, makes it available to you for subsequent installation by IBM;
2. for a Customer-set-up Machine and a non-IBM Machine, the second business day after the Machine’s standard transit allowance period as specified in a Transaction Document; and
3. for a Program
1. basic license, the later of the following:
i. the day after its testing period ends; or
ii. the second business day after the Program's standard transit allowance period as specified in a Transaction Document
2. copy, the date (specified in a Transaction Document) on which IBM authorizes you to make a copy of the Program, and
3. chargeable component, the date you distribute a copy of the chargeable component in support of your authorized use of the Program.

2. Agreement Structure

IBM provides additional terms in documents called “Attachments” and “Transaction Documents” which are also part of this Agreement. “Transaction Documents” include, but are not limited, to order confirmation, order acceptance, addenda, exhibits, proofs of entitlement, and supplements.

If there is a conflict among the terms in the various documents, those of an Attachment prevail over those of this Agreement. The terms of a Transaction Document prevail over both of these documents.

You accept the terms in Attachments and Transaction Documents by 1) ordering a Product or Service from IBM through an online transaction, or 2) using a Product or Service, or 3) making any payment for a Product or Service.

A Product or Service becomes subject to this Agreement when IBM accepts your order by 1) sending you a Transaction Document, 2) shipping the Machine or making the Program available to you, or 3) providing the Service. Confirmation of IBM’s receipt of your order does not constitute IBM’s acceptance of your order.

3. Payment

Except for credit or debit card transactions, amounts are due upon receipt of invoice and payable as IBM specifies in a Transaction Document. You agree to pay accordingly, including any applicable sales, use or similar taxes, fees or duties (unless you supply exemption documentation), any late payment fee, and shipping charges.

If payment is not made within 30 days from the date of invoice, you may be subject to late payment charges. The late payment charges will be calculated as follows: Such charges will be calculated at a monthly rate of 2% of the invoice amount, or as permitted by applicable law. IBM’s rights relating to late payment charges shall be in addition to any other right that IBM may have in the event that you fail to make any payment due to IBM under this Agreement.

IBM reserves the right to require payment in advance of delivery or other security for payment
IBM’s rights relating to late payment charges shall be in addition to any other right that IBM may have in the event that you fail to make any payment due to IBM under this Agreement.
IBM reserves the right to require payment in advance of delivery or other security for payment.

You are responsible for personal property taxes, if any, for each Product from the date it is shipped to you. No discounts, quantity entitlements, or promotions apply unless expressly specified for this transaction.

Services for which you prepay must be used within the applicable contract period. Unless IBM specifies otherwise, IBM does not give credits or refunds for unused prepaid Services.

4. Return Policy

If you acquire a Product under this Agreement for purposes beyond the scope of your trade, business or profession (i.e. as a consumer), you may, for any reason, return such Product to IBM, subject to the following

For a new IBM Machine, you may return it to IBM for any reason within 30 days of the date of invoice and obtain a refund or credit. IBM does not provide refunds or credits for portions of a packaged offering provided at a single price. You may return the complete package for a refund or credit. To qualify for this credit or refund (as applicable), you must call IBM at (44) 08705 426426to obtain a return-authorization form. You must return the new IBM Machine, including all documentation and accessories, intact and in its original packaging, to an IBM designated location by the date IBM specifies. A copy of the invoice, the return-authorization form, and the shipping label must accompany the return. Shipping and handling charges generally will not be refunded or credited. IBM Machines returned without an IBM return-authorization form or returned after the date specified by IBM, may be subject to a restocking fee equal to a percentage of the price paid. You agree to pay the restocking fee as IBM specifies.

For an IBM Program, the above terms apply, except that instead of returning the IBM Program, you may destroy it (including any IBM Program documentation) and use an IBM provided form to acknowledge in writing to IBM that you no longer have the right to use the IBM Program.

Both of us agree that under this Agreement:
1. all information exchanged is nonconfidential. If either of us requires the exchange of confidential information, it will be made under a signed confidentiality agreement;
2. each of us grants the other only the licenses and rights specified. No other licenses or rights (including licenses or rights under patents) are granted;
3. each of us may communicate with the other by electronic means and such communication is acceptable as a signed writing to the extent permissible under applicable law. An identification code (called a “user ID”) contained in an electronic document is legally sufficient to verify the sender’s identity and the document’s authenticity;
4. each of us will allow the other reasonable opportunity to comply before it claims that the other has not met its obligations;
5. each of us will comply with all applicable laws and regulations (such as those governing export control and import);
6. neither of us will bring a legal action arising out of or related to this Agreement more than two years after the cause of action arose unless otherwise provided by applicable law without the possibility of contractual waiver or limitation;
7. neither of us is responsible for failure to fulfill any obligations due to causes beyond its control; and
8. neither of us may assign this Agreement, in whole or in part, without the prior written consent of the other. Any attempt to do so is void. Neither of us will unreasonably withhold such consent. The assignment of this Agreement within the Enterprise or to a successor organization by merger or acquisition does not require the consent of the other.
You agree:
1. that to establish proof of purchase in order to obtain service during the warranty period, you may be required to provide a copy of your sales receipt or invoice;
2. to acquire Machines with the intent to use them within that portion of your Enterprise physically located within Western Europe and not for reselling, leasing, or transferring to a third party, unless either of the following applies:
a. you are arranging lease-back financing for the Machines; or
b. you purchase them without any discount or allowance
3. to allow IBM to install mandatory engineering changes (such as those required for safety) on a Machine. Any parts IBM removes become IBM’s property. You represent that you have permission from the owner and any lien holders to transfer ownership and possession of removed parts to IBM;
4. that you are responsible for the results obtained from the use of the Products;
5. that 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 below for bodily injury (including death) or damage to real or tangible personal property for which IBM is legally liable; and
6. to provide IBM with sufficient, free, and safe access to your facilities for IBM to fulfill its obligations.
7. not to resell any Service without IBM’s prior written consent. Any attempt to do so is void.

Warranty for IBM Machines
IBM warrants that each IBM Machine is free from defects in materials and workmanship and conforms to its Specification.
The warranty period for a Machine is a specified, fixed period commencing on its Date of Installation. During the warranty period, IBM provides repair and exchange Service for the Machine, without charge, under the type of Service IBM designates for the Machine. If a Machine does not function as warranted during the warranty period and IBM is unable to either 1) make it do so or 2) replace it with one that is at least functionally equivalent, you may return it to IBM and your money will be refunded.
The warranty for IBM Machines acquired in Western Europe will be valid and applicable in all Western European countries provided the Machines have been announced and made available in such countries.

Warranty for IBM Programs
IBM warrants that each warranted IBM Program, when used in the Specified Operating Environment, will conform to its Specification.
The warranty period for an IBM Program expires when its Program Services are no longer available. During the warranty period, IBM provides defect-related Program Services without charge. Program Services are available for a warranted IBM Program for at least one year following its general availability.
If an IBM Program does not function as warranted during the first year after you obtain your license and IBM is unable to make it do so, you may return the Program and your money will be refunded. To be eligible, you must have obtained your license while Program Services (regardless of the remaining duration) were available for it.

Warranty for IBM services
IBM warrants that it performs each IBM service using reasonable care and skill and according to its current description (including any completion criteria) contained in this Agreement, an Attachment or a Transaction Document.

Warranty for systems:
Where IBM provides Products to you as a system, IBM warrants that they are compatible and will operate with one another. This warranty is in addition to IBM’s other applicable warranties.

Extent of Warranty
The warranties stated above will not apply to the extent that there has been misuse (including but not limited to use of any Machine capacity or capability, other than that authorized by IBM in writing), accident, modification, unsuitable physical or operating environment, operation in other than the Specified Operating Environment, improper maintenance by you, or failure caused by a product for which IBM is not responsible. With respect to Machines, the warranty is voided by removal or alteration of Machine or parts identification labels.
THESE WARRANTIES ARE YOUR EXCLUSIVE WARRANTIES AND REPLACE ALL OTHER EXPRESS WARRANTIES OR CONDITIONS EXCEPT AS EXPRESSLY REQUIRED BY LAW WITHOUT THE POSSIBILITY OF CONTRACTUAL WAIVER OR LIMITATION. IBM DISCLAIMS ALL IMPLIED WARRANTIES OR CONDITIONS, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF SATISFACTORY QUALITY, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

However, in respect of contracts with consumers, IBM does not disclaim those implied warranties under the Sale of Goods Act 1979 and the Supply of Goods and Services Act 1982

Items Not Covered by Warranty
IBM does not warrant uninterrupted or error-free operation of a Product or Service or that IBM will correct all defects.
IBM will identify IBM Machines and IBM Programs that it does not warrant.
Unless IBM specifies otherwise, and to the maximum extent permissible under applicable law, it provides Materials, non-IBM Products, and non-IBM Services without Warranties of Any Kind.
However, non-IBM manufacturers, developers, suppliers, or publishers may provide their own warranties to you. Warranties, if any, for Other IBM Programs and Non-IBM Programs may be found in their license agreements.

Warranty for IBM services:
Where IBM provides Products to you as a system, IBM warrants that they are compatible and will operate with one another. This warranty is in addition to IBM’s other applicable warranties.

Warranty for IBM Machines:
IBM warrants that each IBM Machine is free from defects in materials and workmanship and conforms to its specification.
The warranty period for a Machine is a specified, fixed period commencing on its Date of Installation. During the warranty period, IBM provides repair and exchange Service for the Machine, without charge, under the type of Service IBM designates for the Machine. If a Machine does not function as warranted during the warranty period and IBM is unable to either 1) make it do so or, 2) replace it with one that is at least functionally equivalent, you may return it to IBM and your money will be refunded.

For purposes of this section, the term "Product" includes Materials, Machine Code and LIC.
If a third party claims that a Product IBM provides to you infringes that party's patent or copyright, IBM will defend you against that claim at its expense and pay all costs, damages, and attorney's fees that a court finally awards or that are included in a settlement approved by IBM, provided that you:
1. promptly notify IBM in writing of the claim; and
2. allow IBM to control, and cooperate with IBM in, the defense and any related settlement negotiations.

If such a claim is made or appears likely to be made, you agree to permit IBM to enable you to continue to use the Product, or to modify it, or replace it with one that is at least functionally equivalent. If IBM determines that none of these alternatives is reasonably available, you agree to return the Product to IBM on its written request IBM will then give you a credit equal to:
1. for a Machine, your net book value provided you have followed generally-accepted accounting principles and
2. for an IBM Program, the amount paid by you or 12 months' charges (whichever is less); and
3. for Materials, the amount you paid IBM for the creation of the Materials.
This is IBM’s entire obligation and your exclusive remedy regarding any claim of infringement.

IBM has no obligation regarding any claim based on any of the following:
1. anything you provide which is incorporated into a Product or IBM’s compliance with any designs, specifications, or instructions provided by you or by a third party on your behalf;
2. your modification of a Product, or an IBM Program’s use in other than its Specified Operating Environment;
3. the combination, operation, or use of a Product with other products not provided by IBM as a system, or the combination, operation or use of a Product with any product, data, apparatus, or business method that IBM did not provide, or the distribution, operation or use of a Product for the benefit of a third party outside your Enterprise; or infringement by a non-IBM Product or an other IBM program alone.

1. IBM will accept unlimited liability for:
1. death or personal injury caused by the negligence of IBM; and
2. any breach of its obligations implied by Section 2 of the Supply of Goods and Services Act 1982, or any statutory modification or re-enactment of such Section.

1. IBM will accept unlimited liability, 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 items 1 and 2 above, exceed the greater of a) EUR 500,000 (five hundred thousand euros) or equivalent in local currency, or b) 125% of the total charges (if recurring, 12 months’ charges apply) for the Service directly relating to the Default.
   
   These limits also apply to IBM’s subcontractors. They state the maximum for which IBM and such subcontractors are collectively responsible.

1. loss of, or damage to, data;
2. special, indirect, or consequential loss; or
3. loss of profits, business, revenue, goodwill, or anticipated savings.

Title and Risk of Loss
IBM transfers title to a Machine to you or, if you choose, your lessor, upon payment of all the amounts due. For a feature, conversion, or upgrade involving the removal of parts which become IBM’s property, IBM reserves transfer of title until IBM receives payment of all the amounts due and the removed parts. Title will not be transferred when IBM supplies features, conversions or upgrades which consist solely of Machine Code or LIC.
If you acquire a Product under this Agreement for purposes beyond the scope of your trade, business or profession (i.e., as a consumer), the following paragraph replaces the second paragraph above for that transaction.
IBM bears the risk of loss for the Machine through the date on which it is delivered to you. Thereafter, you assume the risk
For each Machine, IBM bears the risk of loss or damage up to the time it is delivered to the IBM-designated carrier for shipment to you or your designated location. Thereafter, you assume the risk. Each Machine will be covered by insurance, arranged and paid for by IBM for you, covering the period until it is delivered to you or your designated location. For any loss or damage, you must 1) report the loss or damage in writing to IBM within 10 business days of delivery and 2) follow the applicable claim procedure.

Installation
You agree to provide an environment meeting the specified requirements for the Machine.
IBM sells features, conversions, and upgrades for installation on Machines, and, in certain instances, only for installation on a designated, serial-numbered Machine. Many of these transactions involve the removal of parts and their return to IBM. As applicable, you represent that you have the permission from the owner and any lien holders to 1) install features, conversions, and upgrades and 2) transfer ownership and possession of removed parts (which become IBM’s property) to IBM. You further represent that all removed parts are genuine, unaltered, and in good working order. A part that replaces a removed part will assume the warranty or maintenance service status of the replaced part. You agree to allow IBM to install the feature, conversion, or upgrade within 30 days of its delivery. Otherwise, IBM may terminate the transaction and you must return the feature, conversion, or upgrade to IBM at your expense.

Machine Code and LIC
Machine Code is licensed under the terms of the agreement provided with Machine Code. Machine Code is licensed only for use to enable a Machine to function in accordance with its Specifications and only for the capacity and capability for which you are authorized by IBM in writing and for which payment is received by IBM
Certain Machines IBM specifies (called “Specific Machines”) use Licensed Internal Code (called “LIC”). IBM identifies Specific Machines in a Transaction Document. International Business Machines Corporation, one of its subsidiaries or a third party owns LIC including all copyrights in LIC and all copies of LIC (this includes the original LIC, copies of the original LIC, and copies made from copies). LIC is copyrighted and licensed (not sold). LIC is licensed under the terms of the agreement provided with the LIC. LIC is licensed only for use to enable a Specific Machine to function in accordance with its Specifications and only for the capacity and capability for which you are authorized by IBM in writing and for which payment is received by IBM. The capacity of certain Machines is protected by technological measures in Machine Code and LIC. You agree to IBM's implementation of such technological measures to protect Machine capacity, including measures that may impact availability of data or performance of your Machine.
Your acceptance of the terms of this Agreement includes acceptance of IBM’s applicable Machine Code license, agreement provided with the Machine Code and of the Agreement for Licensed Internal Code provided with the LIC. Current versions of the IBM License Agreement for Machine Code and the IBM Agreement for Licensed Internal Code are accessible through the following URL: www-1.ibm.com/servers/support/machine_warranties/ . Machine Code license agreements and the Agreement for Licensed Internal Code may be amended by IBM from time to time. Such amended license terms will apply only to Machine Code and LIC that is supplied after such amended terms become effective. IBM may modify the terms of either of these agreements from time to time. Such changes are not retroactive and apply only to Machine Code and LIC that IBM provides after such modifications become effective
Title will not be transferred when IBM supplies features, conversions or upgrades which consist solely of Machine Code or LIC.

10. Programs
Programs are copyrighted and licensed (not sold) under the terms of the license agreements applicable to them. You accept the terms of the license for a Program according to the method specified in the license.

11. General
Neither of us grants the other the right to use its (or any of its Enterprise's) trademarks, trade names, or other designations in any promotion or publication without prior written consent.

Any terms of this Agreement which by their nature extend beyond the Agreement termination remain in effect until fulfilled, and apply to both of our respective successors and assignees.

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.

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 our business relationship.

Except as may be agreed between the parties, or as legally required, all your rights, all IBM’s obligations and all licenses (except for Licensed Internal Code and as specifically granted) are valid only in the United Kingdom.

Both you and IBM consent to the application of the laws of IBM United Kingdom Limited 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 laws of England govern this Agreement and both of us agree to submit all disputes relating to this Agreement to the exclusive jurisdiction of the English Courts.

Except where required by law, IBM has no obligation to provide any services for Machines located outside the United Kingdom.

Nothing in this Agreement affects any statutory rights of consumers that cannot be waived or limited by contract

Both you and IBM agree to waive any rights each may have to a trial by jury.