End User License Agreement-(EULA)
General Terms
1. Definitions
"Authorized Use" - the specified level at which Licensee is authorized to execute or run the Program or the Solution. That level may be measured by number of users, millions of service units ("MSUs"), Processor Value Units ("PVUs"), or other level of use specified by IBM.
"Libi" – LiBi Software Technology Ltd. a wholly owned company by Taldor Computer Systems (1986) Ltd (“Taldor”).
"IBM" - International Business Machines Corporation or one of its subsidiaries.
"License Information" ("LI") - a document that provides information and any additional terms specific to a Program. The Program's LI is available at www.ibm.com/software/sla. The LI can also be found in the Program directory, by the use of a system command, or as a booklet included with the Program.
"Program" - the following, including the original and all or partial copies: 1) machine-readable instructions and data, 2) components, files, and modules, 3)
audio-visual content (such as images, text, recordings, or pictures), and 4) related licensed materials (such as keys and documentation).
“Embedded Solution” ("Solution") –Libi’s Embedded Solution which contains licenses to use IBM Products, meaning Programs, Appliances, Cloud Services or Machines.
“ESA Licenses” – Licenses to use the Solution in accordance with the Solution’s price proposal issued by Libi (the “Price Proposal”) and subject to payment of the consideration specified in the Price Proposal to Libi.
"Licensee" – End customer authorized to: (i) use the Program in accordance with PoE and/or; (ii) the ESA Licenses and; (iii) receive Support from Libi (as set forth below).
"Proof of Entitlement" ("PoE") - evidence of Licensee's Authorized Use of the Program. The PoE serves as an evidence of Licensee's eligibility for warranty, future update prices, if any, and potential special or promotional opportunities. The original paid sales receipt can also serve as POE, provided that it specifies the Program name and Authorized Use obtained.
"Warranty Period" - one year, commencing on the date the original Licensee is granted the license.
"Support" – Libi will provide all Level 1 and Level 2 support to the Licensee. Level 3 support by IBM will be provided to Libi only. Libi will keep the Licensee informed of the status of the support cases and may require the Licensee to transfer relevant information and or logs for further Level 3 analysis.
The Libi Service Level Agreement is available at https://www.libi.co.il/sla
2. The Status of the Agreement
This Agreement and the POEs are the complete agreement between Licensee and LIBI regarding the use of the Program. It replaces any prior oral or written communications between Licensee and LIBI concerning Licensee's use of the Program. To the extent of any conflict, the LI prevails over this Agreement.
With respect to the Solution, this Agreement and the Price Proposal are the complete agreement between Licensee and LIBI regarding the use of the Solution. It replaces any prior oral or written communications between Licensee and LIBI concerning Licensee's use of the Solution. It shall be noted that the terms in the LI referencing price metrics do not apply to the extent they conflict with the Price Proposal.
3.License Grant
The Program is owned by IBM Corporation, one of its subsidiaries, or an IBM supplier, and is copyrighted and licensed, not sold.
IBM has licensed the Program to Libi, that Libi may allow the use of the Program by the Licensee, under Libi’s license and support agreement with IBM.
LIBI grants Licensee nonexclusive and non-transferable use, subject to the following terms, to:
1) use the Program up to the Authorized Use specified in the PoE, 2) make and install copies to support such Authorized Use, and 3) make a backup copy, all provided that
a. Licensee has lawfully obtained the Program and complies with the terms of this Agreement; the backup copy does not execute unless the backed-up Program cannot execute;
b. Licensee reproduces all copyright notices and other legends of ownership on each copy, or partial copy, of the Program;
c. Licensee ensures that anyone who uses the Program (accessed either locally or remotely) does so only on Licensee's behalf and agrees to comply with the terms of this Agreement;
d.Licensee does not 1) use, copy, modify, or distribute the Program except as expressly permitted in this Agreement; 2) reverse assemble, reverse compile, otherwise translate, or reverse engineer the Program, except as expressly permitted by law without the possibility of contractual waiver; 3) use any of the Program's components, files, modules, audio-visual content, or related licensed materials separately from that Program; or 4) sublicense, rent, or lease the Program; and
e. if Licensee obtains this Program as a Supporting Program, Licensee uses this Program only to support the Principal Program and subject to any limitations in the license to the Principal Program, or, if Licensee obtains this Program as a Principal Program, Licensee uses all Supporting Programs only to support this Program, and subject to any limitations in this Agreement. For purposes of this Item "e," a "Supporting Program" is a Program that is part of another IBM Program ("Principal Program") and identified as a Supporting Program in the Principal Program's LI.
f. Licensee gives Libi permission to provide the Licensee's business and contact information to IBM;
g. The Licensee is prohibited from using the license for a service bureau application; h.The Licensee is responsible for complying with all applicable export and import laws and regulations;
i. If the Licensee acquires the Program as a program upgrade, after the Licensee installs the upgrade, the Licensee may not use the Program from which the Licensee upgraded or transfer the Program to any other party;
j. The Licensee does not have a right to further distribute, license, or sell the Program to any other party. Any attempt to do so without consent is void; and
k. The Licensee may only use the Program within its Enterprise, at its designated location.
l. In any event, the Licensee will not contact IBM directly in connection with Product’s materials, the Solution and this Agreement, and is permitted to contact Libi solely.
This license applies to each copy of the Program that Licensee makes.
3.1 Trade-ups, Updates, Fixes, and Patches 3.1.1Trade-ups
If the Program is replaced by a trade-up Program, the replaced Program's license is promptly terminated.
3.1.2Updates, Fixes, and Patches
When Licensee receives an update, fix, or patch to a Program, Licensee accepts any additional or different terms that are applicable to such update, fix, or patch that are specified in its LI. If no additional or different terms are provided, then the update, fix, or patch is subject solely to this Agreement. If the Program is replaced by an update, Licensee agrees to promptly discontinue use of the replaced Program.
3.2 Fixed Term Licenses
If LIBI licenses the Program for a fixed term, Licensee's license is terminated at the end of the fixed term, unless Licensee and LIBI agree to renew it.
3.3 Program Term and Termination
This Agreement is effective until terminated.
LIBI may terminate Licensee's license if Licensee fails to comply with the terms of this Agreement, or if IBM informs Libi that it has reasonable cause to believe that the Licensee is not complying with the terms of the applicable License (“License Terms”) and the program's applicable LI.
If the license is terminated for any reason by either party, Licensee agrees to promptly discontinue use of and destroy or return all of Licensee's copies of the Program. Any terms of this Agreement that extend beyond termination of this Agreement remain in effect until fulfilled, and apply to both parties' respective successors and assignees.
In case Libi's right to sublicense and acquire Program’s services is revoked by IBM, Libi will notify the End User that IBM will continue to exercise the contract itself. Such transfers will be subject to the License Terms, at no charge, and without imposing any obligations on the recipient other than those in the License Terms.
Notwithstanding the aforesaid and with respect to the Program solely, the Licensee may terminate its contractual commitments with Libi as its use of the Program, in accordance with the terms of such commitments, and to continue use of the Program through a license agreement directly with IBM. 3.4 ESA Licenses. ESA licenses are granted for use of the Licensee only in conjunction with the Solution. The terms of the Solution use are governed under the Price Proposal for ESA Licenses issued by Libi to each individual Licensee.
3.5 ESA Term and Termination. ESA usage is granted on an annual basis, as long as the Libi ESA agreement with IBM is in effect. To be clear, Libi may transfer their ESA rights to Taldor or any other affiliated company of Taldor. In the event that Libi's (or Taldor's) ESA agreement with IBM is not renewed at the end of its term, Libi will notify the Licensee with reasonable advance notice that Libi will no longer be providing the ESA Licenses. Licenses may then be transferred to be supported by IBM or another qualified distributor appointed by IBM provided that the licenses to be transferred have been in use by the Licensee for at least thirty-six (36) months. The Licensee may purchase Software Subscription and Support (“S&S”) directly from IBM regarding IBM Products which contained in the Solution (“IBM Product”). If the Licensee accepts the IBM License Terms for IBM Product and the Licensee's continued use of IBM Product remains limited to use in conjunction with the Solution, IBM agrees not to charge the Licensee
additional licensing or S&S charges for the activity contemplated hereunder at the time of the ‘transfer’. For avoidance of doubt, this does not preclude IBM from charging the End User for additional licenses which may be purchased directly from IBM and related S&S.
4. Charges
4.1 Charges are based on Authorized Use obtained, which is specified in the PoE. LIBI does not give credits or refunds for charges already due or paid.
The Licensee is authorized to increase its Use, only by notifying Libi and paying the fees in advance.
LIBI will only give support to the Program obtained through a PoE originating from LIBI. Any Program obtained from a PoE by any other party, including IBM directly, is not eligible for support by LIBI, and may terminate the Licensee’s right to support through LIBI. Any unused support fees are non-refundable.
4.2 ESA charges are on an annual basis and include:
i) use of the Solution
ii) use of the IBM Products
iii) support of the IBM Products and Solution (as set forth above)
5. Taxes
Any duty, tax, levy, or fee, (excluding those based on LIBI's net income) imposed on the Program shall be paid by the Licensee, (unless the Licensee supplies exemption documentation). Licensee is responsible for any personal property taxes for the Program from the date that Licensee obtains it. Any customs duty, tax, levy, or fee for the import into or the export, transfer, access, or use of the Program outside the country in which the original Licensee was granted the license, will be paid by the Licensee.
6. Program Transfer
Licensee is prohibited from transferring the Program, the Solution, the ESA Licenses and all of Licensee's license rights and obligations outside the Licensee's enterprise, and any attempt to transfer without the prior consent of Libi is void.
7. Program Warranty and Exclusions
7.1 Limited Warranty
LIBI warrants that the Program, when used in its specified operating environment, will conform to its specifications. The Program's specifications, and specified operating environment information, is specified in the documentation accompanying the Program (such as a read-me file) and information published by IBM (such as an announcement letter). Licensee agrees that such documentation and other Program content may be supplied only in the English language, unless otherwise required by local law without the possibility of contractual waiver or limitation.
The warranty applies only to the unmodified portion of the Program. Libi will invest reasonable efforts to correct the problem, including escalation to IBM. LIBI does not warrant uninterrupted or error-free operation of the Program, or that all Program defects will be corrected. In a case Libi can’t solve the problem, Libi will try to supply a bypass
until the problem is solved. Licensee is responsible for the results obtained from the use of the Program.
LIBI provides Licensee during the Warranty Period with limited access to IBM databases containing information on known Program defects, defect corrections, restrictions, and bypasses at no additional charge. Consult the IBM Software Support Handbook for further information at www.ibm.com/software/support.
7.2 Exclusions
THESE WARRANTIES ARE LICENSEE'S EXCLUSIVE WARRANTIES AND REPLACE ALL OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND ANY WARRANTY OR CONDITION OF NON-INFRINGEMENT.
SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF EXPRESSOR IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO LICENSEE. IN THAT EVENT, SUCH WARRANTIES ARE LIMITED IN DURATION TO THE WARRANTY PERIOD. NO WARRANTIES APPLY AFTER THAT PERIOD. SOME STATES OR JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATION MAY NOT APPLY TO LICENSEE.
THESE WARRANTIES GIVE LICENSEE SPECIFIC LEGAL RIGHTS. LICENSEE MAY ALSO HAVE OTHER RIGHTS THAT VARY FROM STATE TO STATE OR JURISDICTION TO JURISDICTION.
THE WARRANTIES IN THIS SECTION 7 (WARRANTY AND EXCLUSIONS) ARE PROVIDED SOLELY BY IBM. THE DISCLAIMERS IN THIS SUBSECTION 7.2 (EXCLUSIONS), HOWEVER, ALSO APPLY TO IBM'S SUPPLIERS OF THIRD
PARTY CODE. THOSE SUPPLIERS PROVIDE SUCH CODE WITHOUT WARRANTIES OR CONDITION OF ANY KIND. THIS PARAGRAPH DOES NOT NULLIFY LIBI'S WARRANTY OBLIGATIONS UNDER THIS AGREEMENT.
8. Licensee Data and Databases
In a case of a problem, LIBI may request that Licensee 1) allow LIBI to remotely access Licensee's system or 2) send Licensee information or system data to LIBI. However, LIBI is not obligated to provide such assistance unless LIBI and Licensee enter a separate written agreement under which LIBI agrees to provide to Licensee that type of support, which is beyond LIBI's warranty obligations in this Agreement.. Licensee authorizes IBM to use the
information about errors and problems by IBM entities and subcontractors (including in one or more countries other than the one in which Licensee is located), to improve its products and services.
Licensee remains responsible for 1) any data and the content of any database Licensee makes available to LIBI, 2) the selection and implementation of procedures and controls regarding access, security, encryption, use, and transmission of data (including any personally-identifiable data), and 3) backup and recovery of any database and any stored data. Licensee will not send or provide LIBI access to any personally-identifiable information, whether in data or any other form, and will be responsible for reasonable costs and other amounts that LIBI may incur relating to any such information mistakenly provided to LIBI or the loss or disclosure of such information by LIBI, including those arising out of any third party claims.
9. Limitation of Liability
The limitations and exclusions in this Section 9 (Limitation of Liability) apply to the full extent they are not prohibited by applicable law without the possibility of contractual waiver.
Liability
In a case where the Licensee is entitled to recover damages from LIBI, regardless of the basis on which Licensee is entitled to claim damages from LIBI (including fundamental breach, negligence, misrepresentation, or other contract or tort claim), LIBI's entire liability for all claims in the aggregate arising from or related to each Program, the Solution or otherwise arising under this Agreement will not exceed the amount of any 1) damages for bodily injury (including death) and damage to real property and tangible personal property and 2) other actual direct damages up to the charges (if the Program is subject to fixed term charges, up to twelve months' charges) Licensee paid for the Program that is the subject of the claim.
This limit also applies to any of LIBI's Program or Solution developers and suppliers. It is the maximum for which LIBI and its Program or Solution developers and suppliers are collectively responsible.
Restrictions of Liability
UNDER NO CIRCUMSTANCES IS LIBI, ITS PROGRAM DEVELOPERS OR SUPPLIERS LIABLE FOR ANY OF THE FOLLOWING, EVEN IF INFORMED OF THEIR POSSIBILITY:
a. LOSS OF, OR DAMAGE TO, DATA;
b. SPECIAL, INCIDENTAL, EXEMPLARY, OR INDIRECT DAMAGES, OR FOR ANY ECONOMIC CONSEQUENTIAL DAMAGES; OR
c. LOST PROFITS, BUSINESS, REVENUE, GOODWILL, OR ANTICIPATED SAVINGS.
10. Compliance Verification
For purposes of this Section 10 (Compliance Verification), "EULA Program Terms" means:
1) this Agreement and applicable amendments and transaction documents provided by LIBI, and 2) IBM software policies that are specified at the IBM Software Policy website (www.ibm.com/softwarepolicies), including but not limited to those policies concerning backup, sub-capacity pricing, and migration.
The rights and obligations set forth in this Section 10 remain in effect for two years beyond the expiration of the agreement.
10.1 Verification Process
Licensee agrees to create, retain, and provide to LIBI and its auditors accurate written records, system tool outputs, and other system information sufficient to provide auditable verification that Licensee's use of all Programs is in compliance with the EULA Program Terms, including, without limitation, all of IBM's applicable licensing and pricing qualification terms. Licensee is responsible for 1) ensuring that it does not exceed its Authorized Use, and 2) remaining in compliance with EULA Program Terms.
Upon reasonable notice, LIBI may verify Licensee's compliance with EULA Program Terms at all sites and for all environments in which Licensee uses (for any purpose) Programs subject to EULA Program Terms. Such verification will be conducted in a manner that minimizes disruption to Licensee's business, and may be conducted on Licensee's premises, during normal business hours. LIBI may use an independent auditor to assist with such verification, provided LIBI has a written confidentiality agreement in place with such auditor. IBM (or its auditor) has the right to conduct or participate in such an audit, and any such audits may be conducted upon IBM's request to LIBI or the Licensee. The verification process may be requested at any time during the term of this Agreement and for a period of 2 years thereafter.
10.2 Resolution
LIBI will notify Licensee in writing if any such verification indicates that Licensee has used any Program or Solution in excess of its Authorized Use or is otherwise not in compliance with this Agreement. Licensee agrees to promptly pay directly to Libi the charges that LIBI specifies in an invoice for 1) any such excess use, 2) support for such excess use for the lesser of the duration of such excess use or two years, and 3) any additional charges and other liabilities determined as a result of such verification.
11. Third Party Notices
The Program may include third party code that IBM, not the third party, licenses to Licensee under this Agreement. Notices, if any, for the third party code ("Third Party Notices") are included for Licensee's information only. These notices can be found in the Program's NOTICES file(s). Information on how to obtain source code for certain third party code can be found in the Third Party Notices. If in the Third Party Notices IBM identifies third party code as "Modifiable Third Party Code," IBM authorizes Licensee to 1) modify the Modifiable Third Party Code and 2) reverse engineer the Program modules that directly interface with the Modifiable Third Party Code provided that it is only for the purpose of debugging Licensee's modifications to such third party code. LIBI's service and support obligations, if any, apply only to the unmodified Program.
12. General
a. Nothing in this Agreement affects any statutory rights of consumers that cannot be waived or limited by contract.
b.For Programs IBM provides to Licensee in tangible form, IBM fulfills its shipping and delivery obligations upon the delivery of such Programs to the IBM-designated carrier, unless otherwise agreed to in writing by Licensee and LIBI.
c. If any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions of this Agreement remain in full force and effect.
d.Licensee agrees to comply with all applicable export and import laws and regulations, including U.S. embargo and sanctions regulations and prohibitions on export for certain end uses or to certain users.
e. Licensee authorizes IBM and its subsidiaries (and their successors and assigns, contractors and IBM Business Partners) to store and use Licensee's business contact information wherever they do business, in connection with IBM OR LIBI products and services, or in furtherance of IBM OR LIBI's business relationship with Licensee.
f. Each party will allow the other reasonable opportunity to comply before it claims that the other has not met its obligations under this Agreement. The parties will attempt in good faith to resolve all disputes, disagreements, or claims between the parties relating to this Agreement.
g.Unless otherwise required by applicable law without the possibility of contractual waiver or limitation: 1) neither party will bring a legal action, regardless of form, for any claim arising out of or related to this Agreement more than two years after the cause of action arose; and 2) upon the expiration of such time limit, any such claim and all respective rights related to the claim lapse.
h.Neither Licensee nor LIBI is responsible for failure to fulfill any obligations due to causes beyond its control.
i. No right or cause of action for any third party is created by this Agreement, nor is LIBI responsible for any third party claims against Licensee, except as permitted in Subsection 10.1 (Items for Which LIBI May Be Liable) above for bodily injury (including death) or damage to real or tangible personal property for which LIBI is legally liable to that third party.
j. In entering into this Agreement, neither party is relying on any representation not specified in this Agreement, including but not limited to any representation concerning:
1) the performance or function of the Program, other than as expressly warranted in Section 8 (Warranty and Exclusions) above; 2) the experiences or recommendations of other parties; or 3) any results or savings that Licensee may achieve.
k. Licensee acknowledges and agrees that IBM is not responsible for the actions or statements of LIBI or obligations LIBI has to Licensee.
l. The license and intellectual property indemnification terms of Licensee's other agreements with IBM (such as the IBM Customer Agreement) do not apply to Program licenses granted under this Agreement.
13. Geographic Scope and Governing Law
13.1 Governing Law
Both parties agree to the application of the laws of the State of Israel to govern, interpret, and enforce all of Licensee's and LIBI's respective 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 United Nations Convention on Contracts for the International Sale of Goods does not apply.
13.2 Jurisdiction
All rights, duties, and obligations are subject to the courts of Tel Aviv
