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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 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.
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. 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.
The English language version of this Agreement prevails over any other
language version.
HONG KONG AND MACAU
Governing Law: The following replaces “laws of the country in which you
acquired the Machine” in the first sentence:
laws of Hong Kong Special Administrative Region
INDIA
Limitation of Liability: The following replaces items 1 and 2 of this
Section:
1. liability for bodily injury (including death) or damage to real property
and tangible personal property will be limited to that c a used by
IBM’s negligence;
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 Statement of Limited Warranty, IBM s liability will be
limited to the charge paid by you for the individual Machine that is the
subject of the claim.
JAPAN
Governing Law: The following sentence is added to this Section:
Any doubts concerning this Agreement will be initially resolved between us
in good faith and in accordance with the principle of mutual trust.
NEW ZEALAND
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 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: The following is added to this Section:
Where Machines are not acquired 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.
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