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3. where applicable, before service is provided:
a. follow the problem determination, problem analysis, and service request procedures that IBM or your reseller provides;
b. secure all programs, data, and funds contained in a Machine;
c. provide IBM or your reseller with sufficient, free, and safe access to your facilities to permit them to fulfill their obligations; and
d. inform IBM or your reseller of changes in a Machine’s location.
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 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.