THIS IBM ANALYTICS DEMO CLOUD AGREEMENT (THE “AGREEMENT”) IS A BINDING AGREEMENT BETWEEN YOU, AS THE ACCEPTING ENTITY (HEREIN REFERRED TO AS “CUSTOMER”), AND IBM. PLEASE READ IT CAREFULLY. PRINT AND RETAIN A COPY FOR YOUR RECORDS.
BY ACCEPTING THE TERMS OF THIS IBM ANALYTICS DEMO CLOUD AGREEMENT AND CLICKING THE “SUBMIT” BUTTON, YOU AGREE TO THE TERMS OF THIS AGREEMENT AND ITS ATTACHMENTS AND ALL SERVICES ARE SUBJECT TO IT. IF YOU ARE ACCEPTING THESE TERMS ON BEHALF OF ANOTHER PERSON, COMPANY, OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE FULL AUTHORITY TO BIND THAT PERSON, COMPANY, OR LEGAL ENTITY TO THESE TERMS.
IF YOU DO NOT AGREE TO THESE TERMS, DO NOT 1) ACCEPT THE TERMS AND CLICK THE “SUBMIT” BUTTON, OR 2) ACCESS ANY OF THE SERVICES MADE AVAILABLE TO YOU UNDER THIS AGREEMENT.
1. Service Overview
IBM Analytics Demo Cloud , herein referred to as the “Service”, provides an environment intended solely for the purposes of internal evaluation, testing, or demonstration of specified IBM Information Management products on a time-limited trial basis. The Service can be used to launch virtual machine instance(s) configured with specified IBM Information Management products and technologies. The Service does not provide a development or production platform and is not intended for running any other applications or services that are not required for demonstration or evaluation of IBM Information Management products or technologies that are specified in the Customer’s Service account profile. The Service is non-warranted and does not include any technical support.
2. Online Policies
IBM’s Acceptable Internet Use Policy for IBM Services at www.ibm.com/services/e-business/aup.html (“Acceptable Use Policy”) is also part of this Agreement and applies to the Service.
Account– the Customer account profile and usage information regarding the Services, including End User activities.
Account Administrator– a user assigned by Customer to manage access to and oversee the use of the Service for End Users of an Account.
Cloud Web Portal – an IBM Web site designed to enable Customer to use the Service and view Account information.
Content – all data, software, and information, including, without limitation, any hypertext markup language files, scripts, programs, recordings, sound, music, graphics, images, applets, or servlets that are created, installed, uploaded, or transferred in connection with the Services by Customer or End Users. Content also includes information provided by Customer for Account management.
Customer– the Enterprise company identified in the signature block of this Agreement or in the electronic acceptance form for this Agreement, as applicable, and End Users.
Enabling Software – any software (such as programs, enabling code, utilities, client software, and plug-ins) and documentation IBM provides to Customer to facilitate Customer‘s access to and use of the Service.
End User – those who access or use the Service using user account identifications associated with Customer Account.
Enterprise – any legal entity (such as a corporation) and the subsidiaries it owns by more than 50 percent.
Enterprise Service Manager – a person Customer designates who has the authority to act on Customer’s behalf in all matters regarding this Agreement and will be the Customer point of contact to which all communications relative to the overall Service will be addressed.
Evaluation Period – the temporary evaluation period during which Customer may access and use the Services specified in Customer’s Account or otherwise specified by IBM.
IBM Delivery Manager – IBM’s designated point of contact for the Enterprise Service Manger.
Image – a virtual software image containing the functionality of an operating system and selected software providing specific functionality.
Instance – a virtual machine instance which consists of virtual computer processing unit (“CPU”), virtual memory, and virtual local storage. An Instance may also include an Image.
Internet – the public worldwide network of TCP/IP-based networks.
Program – an IBM software program the functionality of which may be made available to Customer in an Image.
Service Components – the hardware, software, Images, tools, and any documentation (electronic or otherwise) IBM utilizes to provide the infrastructure and functionality of the Service or an Image within the Service that IBM makes available to Customer.
The Service is provided by IBM on a shared infrastructure environment using Service Components located at IBM or non-IBM locations. IBM’s ability to provide the Service is dependent upon Customer managing and performing of its responsibilities, at no charge to IBM. Customer is responsible for the use of the Service by End Users, including the actions of any End User and for ensuring that each End User complies with this Agreement, including Attachments and other referenced documents.
4.1 Services Rights, Access, and Use
Subject to the terms of this Agreement, IBM will provide Customer access to and use of the Service.
Customer’s access to and use of the Service is limited to the selected IBM Program Image(s) identified in Customer’s Account or otherwise specified by IBM, and only during the Evaluation Period. Customer may only use the Service and the Image(s) to which Customer has been given access for the purposes of internal evaluation, testing, or demonstration of the specified IBM Program(s) on a trial basis.
IBM or its suppliers retain all rights, title, and interest in the Service Components. Customer agrees to not 1) use the Service or the Image(s) for productive purposes or otherwise use, copy, modify, make derivative works based upon, link to, download, install, transfer or distribute any portion of the Service Components except as expressly provided in this Agreement; or 2) reverse assemble, reverse compile, or otherwise translate any of the Services Components except as specifically permitted by law without the possibility of contractual waiver; 3) resell or use any Services or Service Components, in whole or in part, as part of a service Customer provides to others. These restrictions and the limited scope of use permitted in this Section 4.1 applies notwithstanding any valid existing IBM license entitlements (obtained under separate IBM licensing agreement(s)) to an IBM Program the functionality of which is provided through an Image made available to Customer as part of the Service.
For any Image that is made available as part of the Service, IBM may provide a link to additional Image Terms applicable for that Image. Customer agrees that Customer accepts such Image Terms by signing or accepting this Agreement and by use of the Service by any End Users. IBM may update Image Terms or add new Images and their applicable Image Terms as set forth in the section 6 (Changes).
4.2.1 IBM Program License
To the extent of any conflict between this Agreement and the terms and conditions of any IBM license agreement for the IBM Program to which access is provided in an Image as part of the Service (e.g. the International Program License Agreement (“IPLA”) or the International License Agreement for Evaluation of Programs (“ILAE”)) presented to Customer or contained within the Image, the terms and conditions of this Agreement will prevail.
4.2.2 Third Party Software
Third party software, including open source software, may be provided as part of the Services. Any such third party software and its use will be licensed in accordance with the applicable third party license agreement (Third Party Agreement) provided or presented to Customer and is for use only within the Services. The Third Party Agreement is an agreement between Customer and the third party software owner or rights holder only. IBM is not a party to any such Third Party Agreement. Customer receives no warranties, indemnities or express or implied patent or other license from IBM with respect to any third party software. IBM’s provision of Services hereunder does not constitute a distribution of the third party software by IBM.
4.2.3 Enabling Software
If Customer is permitted or required to download or install any Enabling Software, Customer agrees not to use such Enabling Software for any purpose other than to enable Customer’s access and use of a Service. The Image Terms may include terms applicable to Enabling Software. Some Enabling Software may be subject to a separate license agreement (for example, the IBM International Program License Agreement or other IBM or third party license agreements). Customer agrees that Customer accepts such terms by signing this Agreement and using the Enabling Software.
Customer (or Users, or Customer’s third party suppliers) retain all right, title, and interest in Content. By any party using Customer’s Account and adding, creating, installing, uploading, or transferring Content to use in conjunction with the Services, Customer grants IBM and its subcontractors a non-exclusive, worldwide, royalty-free, paid-up, transferable license and approval to host, cache, copy, and display Content for the purpose of and in conjunction with providing the Services for the term of this Agreement. Customer represents that Customer has and will keep in effect during Customer’s use of the Services, all such licenses and approvals necessary to grant IBM and its subcontractors these rights and that they will be provided at no charge to IBM. Customer is responsible for complying with the terms of any such license agreements including entitlements and permitted uses. Customer represents that by adding, creating, installing, uploading, or transferring Content for use in conjunction with the Services, Customer is not exceeding any specified entitlement or permitted use or violating applicable license agreements or applicable laws.
Customer agrees to reimburse IBM for any reasonable costs and other amounts that IBM may incur from Customer’s failure to obtain these licenses or approvals.
5.2 Content Responsibilities
Customer is responsible for all Content, including selection, creation, design, usage, licensing, maintenance, testing, backup, and support. Customer is also responsible for any individual’s personal information or any information Customer considers confidential that is included in the Content. The Services or any Image software may allow Customer to include within the Content personal information about others. The laws of some jurisdictions may require the consent of individuals prior to including their personal information in the Content or require compliance with laws, rules, and regulations (such as personal health information). Customer agrees to comply with all applicable laws, to obtain all necessary consents, and make all necessary disclosures before including personal information in the Content and using the Services. Customer acknowledges that this Agreement and its Attachments describe the Services and that the Services meet Customer’s requirements for Customer to meet its responsibility for processing any personal information.
The Customer acknowledges and agrees that Customer is solely responsible for any personal information that may be contained in the Content, including any information which Customer shares with third parties, and that Customer is and remains in compliance with applicable data privacy and protection laws. Customer acknowledges that IBM does not control the transfer of data over telecommunications facilities, including the Internet.
Customer also acknowledges that since the Services use a public Internet environment, IBM cannot commit to particular confidentiality obligations regarding any Content or Customer confidential information Customer uses in connection with the Services. IBM assumes no confidentiality obligations regarding Content, regardless of the terms in the Agreement or any separate confidentiality agreement between Customer and IBM.
Customer acknowledges that the Services do not include any guaranteed procedures and controls regarding security of Customer’s Instances (such as encryption, monitoring or scanning, or backup of Content) or for the implementation of any such procedures and controls. IBM cannot commit to particular security obligations regarding any Content or Customer confidential information Customer uses in connection with the Services. . In addition, Customer acknowledges that IBM may access Customer’s Instances or Content in connection with assistance IBM may provide to Customer in the evaluation and testing permitted hereunder. IBM may also access Customer’s instances or Content i) when Customer expressly authorizes IBM to do so in connection with use of Services; ii) as necessary to provide Services; or iii) to the extent required by law or as necessary to comply with the request of a governmental or regulatory body or order from a court of competent jurisdiction.
6.1 Agreement and Service Changes
IBM may from time to time add, modify or withdraw Services or Service options at its sole discretion and without prior notice. IBM may from time to time in its reasonable discretion change Agreement terms. IBM will notify Customer of any such new or changed terms and the effective date of such by posting a notice to the Cloud Web Portal or providing notice directly to an Account Administrator using current information in Customer’s Account control page. Customer is responsible to periodically log into the Cloud Web Portal review any such change notifications.
Customer acknowledges its agreement to any of the above Agreement or Services changes by i) continuing to use Services after the effective date of the change, ii) allowing Services to renew (if applicable) after receipt of the change notice; or iii) otherwise by signing (in writing or electronically, where permitted) an applicable revised Attachment or other change authorization mechanism IBM may provide (such as on-line acceptance).
6.2 Changes to IBM On-line Policies
Changes to IBM’s Acceptable Use Policy will be made by posting a new version at the applicable Web site. Customer agrees to periodically review these Web sites for changes to the Acceptable Use Policy.
Customer agrees and accepts any modified terms by continuing to use the Service after the changes are posted and effective. A change will take effect upon the effective date specified in such notice or posting.
7. No Warranty
IBM DOES NOT WARRANT UNINTERRUPTED, SECURE, OR ERROR-FREE OPERATION OF THE SERVICES, SERVICES COMPONENTS, THIRD PARTY SOFTWARE OR ENABLING SOFTWARE OR THAT IBM WILL BE ABLE TO PREVENT THIRD PARTY DISRUPTIONS OF THE SERVICES OR THAT IBM WILL CORRECT ALL DEFECTS. SUBJECT TO ANY STATUTORY WARRANTIES THAT CANNOT BE EXCLUDED, IBM MAKES NO WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, REGARDING THE SERVICES, SERVICES COMPONENTS, THIRD PARTY SOFTWARE, OR ENABLING SOFTWARE, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OR CONDITIONS OF SATISFACTORY QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTY OR CONDITION OF NON-INFRINGEMENT.
SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF EXPRESS OR IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. IN THAT EVENT, SUCH WARRANTIES ARE LIMITED IN DURATION TO THE MINIMUM PERIOD REQUIRED BY LAW. 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 YOU. YOU MAY HAVE OTHER RIGHTS THAT VARY FROM STATE TO STATE OR JURISDICTION TO JURISDICTION.
IBM does not provide support for the Service, unless IBM specifies otherwise. IN SUCH EVENT, ANY SUPPORT PROVIDED BY IBM IS SUBJECT TO THE DISCLAIMERS AND EXCLUSIONS IN THIS SECTION 7.
THE DISCLAIMERS AND EXCLUSIONS IN THIS SECTION 7 ALSO APPLY TO ANY OF IBM’S PROGRAM DEVELOPERS AND SUPPLIERS.
8. Term, Termination and Suspension
The term of this Agreement is effective upon signature and continues until (a) the end of the Evaluation Period, (b) the date that the IBM Program contained in the Image automatically disables itself, (c) IBM discontinues the Service, (d) Customer notifies IBM to terminate this Agreement and close Customer’s Account, or (e) IBM suspends or terminates Customer’s access to the Service as set forth below, whichever comes earliest. THE PROGRAM CONTAINED IN THE IMAGE MAY CONTAIN A DISABLING DEVICE THAT WILL PREVENT IT FROM BEING USED AFTER THE EVALUATION PERIOD ENDS. LICENSEE AGREES NOT TO TAMPER WITH THE DISABLING DEVICE OR THE PROGRAM OR IMAGE. LICENSEE SHOULD TAKE PRECAUTIONS TO AVOID ANY LOSS OF DATA THAT MIGHT RESULT WHEN THE IMAGE CAN NO LONGER BE USED.
8.2 Suspension or Termination of Service by IBM
IBM may terminate or suspend Customer’s access to the Service, or prevent access to any new Services if (i) in IBM’s sole discretion there is an emergency situation, including but not limited to breach of security, (ii) continued provision of a Service or Customer’s use of a Service may cause IBM to violate any law, rule, regulation, governmental policy, or court order; (iii) use of a Service is inconsistent with a contractual commitment or intellectual property right of a third party; (iv) Customer materially violates the terms of this Agreement, or (v) there is a violation of the Acceptable Use Policy.
IBM will provide Customer written notice of a termination or suspension and the reason for such. In the event of a suspension for which the cause is reasonably capable of being remedied, IBM will inform Customer of what actions Customer must take to reinstate the Service or Customer’s eligibility to request new Services. If Customer fails to take such actions within a reasonable time, IBM may terminate a suspended Service or this Agreement without written notice.
8.3 Suspected Violations
IBM reserves the right to investigate complaints relating to use of the Service by Customer, Customer End Users, or someone using Customer’s Account, or any potential violation of the terms of this Agreement (including but not limited to the Acceptable Use Policy or Image Terms). Notwithstanding any other terms, policies, or other rights available, IBM may take any action it deems appropriate, including without limitation, disclosing information to enforcement agencies. In addition to any other remedies available to it, IBM reserves the right to:
Except for an emergency or as may otherwise be required by law, before undertaking the remedies described in sections 8.2 (Suspension or Termination of a Service by IBM) and 8.3 (Suspected Violations), IBM will attempt to notify the Enterprise Service Manger or Account Manager by any reasonable practical means under the circumstances, by posting a notice to the Cloud Web Portal or sending an email.
8.4 Agreement Termination and Closing Account
Upon expiry or termination of the Agreement, IBM will close Customer’s Account and Customer agrees to discontinue access and use of the Service.
Any terms of this Agreement that by their nature extend beyond the termination of an applicable Service remain in effect until fulfilled, and apply to both parties’ respective successors and assignees.
Customer agrees to defend IBM and its subcontractors at Customer’s expense, and pay all costs, damages, and reasonable attorneys’ fees that a court finally awards (or which Customer agrees in any final settlement) for any third party claim arising out of or related to (i) Content or (ii) any of the following by Customer or any entity using Customer’s Account:
For indemnification under this section 9, IBM will:
Customer agrees to promptly notify IBM of any event or circumstance related to a Service or Customer’s use of a Service or Content, that Customer becomes aware could lead to a claim or demand against IBM. Customer agrees to provide all relevant information relating to such event or circumstance to IBM at IBM’s request.
10. Limitation of Liability
The limitations and exclusions in this Section 10 (Limitation of Liability) apply to the full extent they are not prohibited by applicable law without the possibility of contractual waiver.
10.1 Items for Which IBM May be Liable
Circumstances may arise where, because of a default on IBM’s part or other liability, Customer is entitled to recover damages from IBM. Regardless of the basis on which Customer is entitled to claim damages from IBM (including fundamental breach, negligence, misrepresentation, or other contract or tort claim), IBM’s entire liability for all claims in the aggregate arising from or related to the Services or otherwise arising under this Agreement will not exceed the amount of any actual direct damages up to U.S. $10,000.
This limit also applies to any of IBM’s subcontractors and program developers. It is the maximum for which IBM and its subcontractors and program developers are collectively responsible. Damages for bodily injury (including death), and damage to real property and tangible personal property for which IBM is legally liable are not subject to a cap on the amount of damages.
10.2 ITEMS FOR WHICH IBM IS NOT LIABLE
UNDER NO CIRCUMSTANCES IS IBM, ITS SUBCONTRACTORS, OR PROGRAM DEVELOPERS LIABLE FOR ANY OF THE FOLLOWING EVEN IF INFORMED OF THEIR POSSIBILITY:
11. General Principles of Our Relationship
IBM will provide any notice required or permitted under this Agreement to the Enterprise Service Manger by email or by posting such notice on the Cloud Web Portal. Unless stated otherwise in this Agreement, notices are effective upon the date they are emailed or posted by IBM. Customer is responsible to have the Enterprise Service Manager regularly monitor the Cloud Web Portal and review any notices or other information posted to it regarding Customer’s Account.
Customer may provide notice as required or permitted under this Agreement to the IBM Delivery Manger. Subject to the foregoing, Customer and IBM consent to the use of electronic means and facsimile transmissions to send and receive communications in connection with our business relationship arising out of this Agreement, and such communications are acceptable as a signed writing.
11.2 Compliance with Laws
IBM will comply with laws applicable to IBM generally as a provider of information technology services. IBM is not performing Customer’s regulatory or management obligations and is not responsible for determining the requirements of laws applicable to Customer’s business, including those relating to Services hereunder.
Regardless of where Customer or End Users are located when accessing a Service, Customer agrees to comply with all applicable export and import laws and regulations, including those of the United States regarding embargo and sanctions regulations and prohibitions on export for certain end uses or by any prohibited end users. Customer represents that Content will not, in whole or part, be controlled under the U.S. International Traffic in Arms Regulation (ITAR). Customer is prohibited from exporting, re-exporting, diverting transfer, disclosing or permitting access to any portion of a Service, Enabling Software, Content, or related technical information, directly or indirectly, in violation of such export and import laws and regulations. Customer is also responsible for complying with all other laws, rules, and regulations that may be applicable to Customer’s use of a Service.
Customer acknowledges that IBM may use global resources (non-permanent residents used locally and personnel in locations worldwide) for the delivery of Services. Customer represents that no Content accessible to IBM for a Service will require an export license or is restricted from export to any IBM global resource or personnel under applicable export control laws.
Customer represents that Customer is not subject, either directly or indirectly (by affiliation or any other connection with another party), to any order issued by any agency of the United States Government revoking or denying, in whole or in part, your United States export privileges. Customer agrees to notify IBM immediately if Customer becomes subject to any such order.
Notwithstanding anything in this Agreement to the contrary, neither party is obligated to take any action that would violate applicable law.
Customer may not assign this Agreement, in whole or in part, without the prior written consent of IBM. Any attempt to assign without consent is void. IBM may assign this Agreement, in whole or in part, within IBM’s Enterprise or to a successor organization by merger, acquisition or divesture, without obtaining your consent.
11.4 Other Principles of Our Relationship
12. Geographic Scope and Governing Law
Both parties agree to the application of the laws of the State of New York, United States to govern, interpret, and enforce all of your and IBM’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.
If any provision of this Agreement is held to be invalid or unenforceable, but would be valid and enforceable if appropriately modified, then such provision will apply with the modification necessary to make it valid and enforceable consistent with its objective. In any case, the remaining provisions of this Agreement remain in full force and effect.
Nothing in this Agreement affects any statutory rights of consumers that cannot be waived or limited by contract.