IBM is responsible for loss of, or damage to, your Machine while it
is 1) in IBM's possession or 2) in transit in those cases where IBM
is responsible for the transportation charges.
Neither IBM nor your reseller is responsible for any of your
confidential, proprietary or personal information contained in a
Machine which you return to IBM or your reseller for any reason.
You should remove all such information from the Machine prior to
its return.
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. In
each such instance, regardless of the basis on which you are entitled
to claim damages from IBM (including fundamental breach,
negligence, misrepresentation, or other contract or tort claim), except
for any liability that cannot be waived or limited by applicable laws,
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 the charges
(if recurring, 12 months' charges apply) for the Machine that is
subject of the claim. For purposes of this item, the term
“Machine” includes Machine Code and Licensed Internal Code.
This limit also applies to IBM's suppliers and your reseller. It is the
maximum for which IBM, its suppliers, and your reseller are
collectively responsible.
UNDER NO CIRCUMSTANCES IS IBM LIABLE FOR ANY
OF THE FOLLOWING: 1) THIRD-PARTY CLAIMS
AGAINST YOU FOR DAMAGES (OTHER THAN THOSE
UNDER THE FIRST ITEM LISTED ABOVE); 2) LOSS OF,
OR DAMAGE TO, YOUR RECORDS OR DATA; OR 3)
SPECIAL, INCIDENTAL, OR INDIRECT DAMAGES OR FOR
ANY ECONOMIC CONSEQUENTIAL DAMAGES, LOST
PROFITS OR LOST SAVINGS, EVEN IF IBM, ITS
SUPPLIERS OR YOUR RESELLER IS INFORMED OF
THEIR POSSIBILITY. SOME JURISDICTIONS DO NOT
ALLOW THE EXCLUSION OR LIMITATION OF
INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE
ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY
TO YOU.
Governing Law
Both you and IBM consent to the application of the laws of the
country in which you acquired the Machine to govern, interpret, and
enforce all of your and IBMÆs 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.
Part 2 - Country-unique Terms
AMERICAS
BRAZIL
Governing Law: The following is added after the first sentence:
Any litigation arising from this Agreement will be settled
exclusively by the court of Rio de Janeiro.
NORTH AMERICA
Warranty Service: The following is added to this Section:
To obtain warranty service from IBM in Canada or the United
States, call 1-800-IBM-SERV (426-7378).
CANADA
Governing Law: The following replaces “laws of the country in
which you acquired the Machine” in the first sentence:
laws in the Province of Ontario.
UNITED STATES
Governing Law: The following replaces “laws of the country in
which you acquired the Machine” in the first sentence:
laws of the State of New York.
ASIA PACIFIC
AUSTRALIA
The IBM Warranty for Machines: The following paragraph is
added to this Section:
The warranties specified in this Section are in addition to any rights
you may have under the Trade Practices Act 1974 or other similar
legislation and are only limited to the extent permitted by the
applicable legislation.
Limitation of Liability: The following is added to this Section:
Where IBM is in breach of a condition or warranty implied by the
Trade Practices Act 1974 or other similar legislation, 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: The following replaces “laws of the country in
which you acquired the Machine” in the first sentence:
laws of the State or Territory.
CAMBODIA, LAOS, AND VIETNAM
Governing Law: The following replaces “laws of the country in
which you acquired the Machine” in the first sentence:
laws of the State of New York.
The following is added to this Section:
Disputes and differences 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 rules of the International
Chamber of Commerce (ICC). The arbitrator or arbitrators
designated in conformity with those rules shall have the power to
rule on their own competence and on the validity of the Agreement
to submit to arbitration. The arbitration award shall be final and
binding for the parties without appeal and the arbitral award shall be
in writing and set forth the findings of fact and the conclusions of
law.
All proceedings shall be conducted, including all documents
presented in such proceedings, in the English language. 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 before proceeding upon the reference. The third arbitrator
shall act as chairman of the proceedings. Vacancies in the post of
chairman shall be filled by the president of the ICC. Other
vacancies shall be filled by the respective nominating party.
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