PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING THE DIGITAL VIDEO LIBRARY. IBM WILL LICENSE THE DIGITAL VIDEO LIBRARY TO YOU ONLY IF YOU FIRST ACCEPT THE TERMS OF THIS AGREEMENT. BY USING THE DIGITAL VIDEO LIBRARY YOU AGREE TO THESE TERMS. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT ACCESS THE DIGITAL VIDEO LIBRARY AND CONTACT IBM TO RECEIVE A REFUND OF THE AMOUNT YOU PAID.
The Digital Video Library is owned by International Business Machines Corporation or one of its subsidiaries (IBM) or an IBM supplier, and is copyrighted and licensed, not sold.
The term "Course" or "Content" means the original Digital Video Library course and all whole or partial copies of it. A Course consists of machine-readable instructions, its components, data, audio-visual content (such as images, text, audio and video recordings, or pictures), and related licensed materials. IBM may also provide to you for a fee, through its website or other means, related licensed materials in printed form. Subject to the terms and conditions of this Agreement, you may select the students up to the number authorized by IBM to view the Courses and to use the associated printed or electronic related licensed materials in connection with viewing Courses.
The term "Course Library" means all Digital Video Library Courses made available by IBM during the duration of the license period.
The term "Seller" means IBM, IBM Business Partners or other Resellers.
The term "Student" means the licensee or an employee of the licensee who has been authorized by licensee to view the Course Library.
The term "Subscription", "Subscription Service" or "Service" means a fee for viewing the Course Library during the term of this Agreement.
This Agreement is the complete agreement regarding the use of this Course Library
and Service and replaces any prior oral or written communications between you
and IBM.
License
Use of the Courses
IBM grants you, as licensee, a nonexclusive non-transferable license to use
the Courses for the number of students and for the duration of the subscription
period specified in your Enrollment Confirmation Letter.
You may 1) use the Courses to the extent of authorizations you have acquired and 2) make and install copies to support the level of use authorized, providing you reproduce the copyright notice and any other legends of ownership on each copy, or partial copy, of the Courses. You may not 1) use, copy, modify, or distribute all or any portion of the Courses or create any derivative work of all or any portions of the Courses except as provided in this Agreement; 2) reverse assemble, reverse compile, or otherwise translate the Courses except as specifically permitted by law without the possibility of contractual waiver; or 3) sublicense, rent, or lease the Courses.
Without limiting the foregoing, you agree not to disclose or make available the Content to anyone other than Students permitted under this Agreement and agree to use the same efforts to prevent unauthorized use or disclosure of the Content that you use to protect your own valuable and proprietary information of a similar nature, but not less than reasonable care. Without limiting the foregoing, you agree to ensure that any person who views or otherwise uses the Course Library shall do so only for your authorized use hereunder and shall comply with the terms and conditions of this Agreement.
Proof of Entitlement
The Enrollment Confirmation Letter for the Course Library received from IBM
is evidence of the Proof of Entitlement for this Course Library and your authorization
to use this Course Library as described in this Agreement and for the number
of students authorized, and of your eligibility for warranty services.
Limited Warranty
IBM warrants that when the Courses are used in the specified operating environment
it will conform to its specifications. IBM does not warrant uninterrupted or
error-free operation of the Courses or that we will correct all Course defects.
You are responsible for the results obtained from the use of the Courses. The
warranty period for the Courses expires when your Subscription expires. The
Enrollment Confirmation Letter received from IBM specifies the duration of this
Agreement.
During the warranty period warranty service is provided without charge for the unmodified portion of the Course through defect-related Course services.
THESE WARRANTIES ARE YOUR EXCLUSIVE WARRANTIES AND REPLACE ALL OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
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 may be entitled to claim damages from IBM, (including
fundamental breach, negligence, misrepresentation, or other contract or tort
claim), 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 for the Course that
is the subject of the claim.
IBM WILL NOT BE LIABLE FOR ANY SPECIAL, INCIDENTAL, OR INDIRECT DAMAGES OR FOR ANY ECONOMIC CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS OR SAVINGS), EVEN IF IBM, OR ITS RESELLER, HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 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.
IBM will not be liable for 1) loss of, or damage to, your records or data or 2) any damages claimed by you based on any third party claim.
This limitation of liability also applies to any developer of a Course supplied to IBM. It is the maximum for which IBM and its suppliers are collectively responsible.
IBM will defend at its own expense any action against you brought by a third party to the extent that the action is based upon a claim that the Service including IBM supplied Content and any associated materials infringes that party's patent and copyright when used as permitted under this Agreement, and IBM will indemnify you against those costs and damages finally awarded against you or agreed to in a monetary settlement of such action. The foregoing obligations are conditioned on you notifying IBM immediately in writing upon becoming aware of such action or the likelihood of such action, you giving IBM sole control of the defense and disposition thereof, including settlements and compromises, and you cooperating and, at IBM's reasonable request and expense, assisting in such defense. If the Service becomes, or in IBM opinion is likely to become, the subject of an infringement claim, IBM may, at its option and expense, exercise the first of the following remedies that it deems practical: (a) procure for you the right to continue exercising the rights granted to you in this Agreement, (b) replace or modify the Service so that it becomes non-infringing, or (c) terminate your rights hereunder with respect to the infringing item by written notice to you. Notwithstanding the foregoing, IBM will have no obligation under this Section 4 or otherwise with respect to any infringement claim based upon (i) any unauthorized use of the Service by you, (ii) any use of the Service in combination with other products, equipment, software, or materials not supplied by IBM, (iii) any use of any version of the Service other than the most current version made available to you, or (iv) any modification of the Service by any person other than IBM. This Section 4 states IBM's entire liability and your sole and exclusive remedy for infringement claims and actions.
COMPENSATION
You agree to pay to Seller a nonrefundable subscription fee in the amount set
forth in Seller's invoice (the "Subscription Fee") for Service and
for the term for the number of Students set forth in the Enrollment Confirmation
Letter. In determining whether the number of Students permitted to access the
Service and the Content under your license has been reached, all individuals
who have access to the Service or the Content, whether simultaneously or at
different times, will be counted. If you desire that more than the number of
Students authorized have access to the Service and the Content, you shall notify
Seller in advance. Without limiting the foregoing, if more than the authorized
number of Students uses the Service or views the Content, Subscriber agrees
to purchase subscriptions to the Service at the Seller's subscription level
that would authorize access by such actual number of Students, at the Seller's
then-current rates therefor. In addition, from time to time, IBM may offer related
licensed materials for additional fees (the "Additional Fees"). If
Subscriber elects to receive these additional licensed materials, you shall
pay to the Seller the associated Additional Fees.
The fees payable hereunder exclude all applicable sales, use and other taxes and all applicable export and import fees, customs duties and similar charges, and you will be responsible for payment of all such taxes (other than taxes based on net income of the Seller), fees, duties and charges and any related penalties and interest, arising from the payment of the fees charged hereunder or the delivery or receipt of the Service.
The Seller will invoice you for the amounts due under this Agreement from time to time. Such invoices are due and payable upon receipt.
TERM; TERMINATION; OTHER REMEDIES.
The term of this License Agreement shall begin on the date specified in your
Enrollment Confirmation Letter and shall expire on the twelve month anniversary
date thereafter, unless otherwise stated in the Enrollment Confirmation Letter
or unless otherwise terminated prior to the anniversary date. You acknowledge
that IBM may change the Service at any time. If, for any reason, any delivery
of Courses is interrupted or delayed or fails to occur, IBM's sole responsibility,
and your sole remedy, shall be for IBM to use commercially reasonable efforts,
at its discretion, to either permit you to view Courses at a later date or provide
the training materials though a different media selected by IBM.
Any renewal of the Services will be based on the then current Subscription Fee(s) and terms of the License Agreement. Seller will notify you of your pending license expiration via e-mail (sent to the e-mail address you provided when you signed up for the Service) 30 days from your expiration date. Renewals will be processed in the same manner as an original order. For any renewal term, you may increase or decrease the number of authorized Students. You agree to keep track of when your license expires, to reply to renewal notification e-mails in a timely fashion and to pay the then current Subscription Fee(s) on time to keep your license active.
If IBM materially breaches any of its obligations set forth in this Agreement, and if IBM has not cured such breach within thirty days after receipt of written notice from you describing such breach, then you may terminate this Agreement for cause by notifying Seller and you may be entitled to a prorated refund of amounts prepaid by you.
IBM may terminate your license if you fail to comply with the terms of this Agreement. If IBM does so, your authorization to use the Course Library is also terminated.
Upon termination or expiration of this Agreement for any reason, any amounts owed to Seller shall be immediately due and payable, all of your rights granted in this Agreement shall immediately cease to exist, and you must promptly discontinue all use of the Course Library and erase all copies of any Courses that are on your computers or otherwise in your possession or control and destroy all copies of the Courses on tangible media in your possession or control.
Without limiting any other remedies available at law or in equity, if you breach any of your obligations under this Agreement, including without limitation the obligation to pay the fees hereunder, IBM may suspend the Service.
General
You will designate a person, hereinafter referred to as a Designated Site Contact, to whom all IBM communications will be addressed and who has the responsibility to administer this Agreement. The responsibilities of the Designated Site Contact includes; i) serve as the interface between IBM and all Students permitted to access the Service, ii) manage the distribution of user names and passwords provided by IBM, and iii) manage other administrative requirements associated with this Agreement.
You agree to comply with applicable export laws and regulations.
Sections 1, 3, 4, 6 and 7 will survive expiration or termination of this Agreement for any reason.
Neither you nor IBM will bring a legal action under this Agreement more than two years after the cause of action arose unless otherwise provided by local law without the possibility of contractual waiver or limitation.
Neither you nor IBM is responsible for failure to fulfill any obligations due to causes beyond its control.
The terms of this Agreement, and the Enrollment Confirmation Letter constitute the entire agreement between the parties, and supersede any and all prior or contemporaneous oral, written or electronic offers, communications, agreements or understandings between the parties as to the subject matter of this Agreement. This Agreement may only be amended by mutual agreement of the parties in writing.
You shall not assign this Agreement or any of its rights or delegate obligations hereunder without the prior, written consent of IBM, and any attempted assignment or delegation without such consent shall be null and void.
Any failure by IBM to enforce strict performance of the terms of this Agreement or to exercise its rights under this Agreement shall not be construed as a waiver or relinquishment of IBM's right to assert conformance with these same provisions in other instances nor as a basis for liability to Subscriber or any other party.
The parties agree that the laws of the State of New York govern this Agreement.
YOU HAVE READ AND UNDERSTAND THIS AGREEMENT AND AGREE TO BE BOUND BY ALL OF ITS TERMS AND CONDITIONS.