Privacy
Privacy Statement
The DIS Computer (Thailand) Co.,Ltd. Online Privacy Statement and this summary apply to DIS Computer (Thailand) Co.,Ltd.’s websites and our affiliates’ websites that link to the Statement.
DIS Computer (Thailand) Co.,Ltd. Locate at:
252/20, Muang Thai Phatra Complex Building
16th Floor, Tower A, Ratchadaphisek Road
Huaykwang Sub District, Huaykwang District,
Bangkok, 10310 Thailand
Website address: www.dis.co.th and www.disthailand.com
DIS Computer (Thailand) Co.,Ltd. respects and is committed to protecting your personal information. Our privacy policies reflect current global principles and standards on handling personal information – notice and choice of data use, data access and integrity, security, onward transfer and enforcement/oversight. Below are some of the highlights of our Online Privacy Statement.
Personal Information
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We collect personal information for a variety of reasons, such as processing your order, providing you with a newsletter subscription, personalizing your experience, or in connection with a job application.
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We will inform you of the purpose for collecting personal information when we collect it from you and keep it to fulfill the purposes for which it was collected or as required by applicable laws or for legitimate purposes.
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We may combine the information we collect from you with information obtained from other sources to help us improve its overall accuracy and completeness, and to help us better tailor our interactions with you.
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We may also collect information relating to your use of our websites through the use of various technologies, including cookies.
Notice and Your Choices of Data Use
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We will use your personal information for the purpose it was collected and will not use it for a different purpose without first asking for your permission.
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We will ask your permission before we share your personal information with third parties for any purpose other than the reason you provided it or as otherwise stated in our Online Privacy Statement.
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For information relating to your use of our websites, you may turn off cookies in your browser.
Data Access and Integrity
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To update your personal information and communication preference, contact dissales@dis.co.th or visit the specific product or service web site.
Data Security
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We are committed to protecting your personal information against unauthorized use or disclosure.
Onward Transfer
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As a global company, we may transfer your personal information to DIS’s parties in the United States, to any DIS Computer (Thailand) Co.,Ltd. subsidiary worldwide or to third parties acting on our behalf located outside of the country where the data is collected where data protection standards may be different.
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We do not transfer your personal information to third parties unless those third parties promise to give the information the equivalent level of protection that we provide.
Important Information
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We follow privacy policies and data protection practices not only to comply with the law but to earn the trust and confidence in DIS Computer (Thailand) Co.,Ltd..
References
To find out more about our privacy practices, see the DIS Computer (Thailand) Co.,Ltd. Online Privacy Statement. Also, for additional information about our privacy and security compliance program, we encourage you to visit our Online Privacy Statement.
Last updated: November 2013
DCA13: DIS Customer Agreement (Reference Agreement)
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DIS Customer Agreement
This DIS Customer Agreement (called the “Agreement”) governs transactions by which Customer purchases Machines, licenses DCA Programs, obtains Program licenses, and acquires Services (including, without limitation, customized development and support, business consulting, and maintenance Services) from DIS Computer (Thailand) Company Limited (“DIS”).
1. General
1.1 Agreement Structure
This Agreement is organized in five Parts:
Part 1 – General includes terms regarding Agreement Structure, Definitions, Acceptance of Terms, Delivery, Charges and Payment, Changes to Agreement Terms, DIS Business Partners, Intellectual Property Protection, Limitation of Liability, General Principles of Our Relationship, Agreement
Termination, and Geographic Scope and Governing Law.
Part 2 – Warranties defines applicable Warranties for DIS Machines, DCA Programs, DIS Services, and Systems, and terms regarding Extent of Warranty.
Part 3 – Machines includes Machine terms regarding Production Status, Title and Risk of Loss, Installation, and Machine Code.
Part 4 – DCA Programs includes DCA Program terms regarding License, Distributed System License Option, Program Services, Compliance Verification, and License Termination.
Part 5 – Services includes Services terms regarding Personnel, Materials Ownership and License, Customer Resources, Service for Machines (during and after warranty), Maintenance Coverage, Automatic Service Renewal, and Termination and Withdrawal of a Service.
1.2 Attachments and Transaction Documents
Additional terms for Products and Services are in documents called "Attachments" and "Transaction Documents” provided by DIS. In general, Attachments contain terms that may apply to more than One Product or Services transaction, while Transaction Documents (such as a statement of work, supplement, schedule, invoice, exhibit, change authorization, or addendum) contain specific details
and terms related to each individual transaction. Customer may receive one or more Transaction Documents for a single transaction. Attachments and Transaction Documents are part of this Agreement only for those transactions to which they apply. Each transaction is separate and independent from other transactions.
If there is a conflict among the terms of this Agreement, Attachments, and Transaction Documents, those of an Attachment prevail over those of this Agreement, and the terms of a Transaction Document prevail over those of both this Agreement and an Attachment.
1.3 Definitions
Customer-set-up Machine – an DIS Machine that Customer is responsible for installing according to instructions provided with it.
Date of Installation –
a. for an DIS Machine that DIS is responsible for installing, the business day after the day DIS installs it or, if Customer defers installation, makes it available to Customer for subsequent installation by DIS;
b. for a Customer-set-up Machine and a non-DIS Machine, the second business day after the
Machine's standard transit allowance period; and
c. for a Program --
(1) basic license, the second business day after the Program's standard transit allowance period,
(2) copy, the date (specified in a Transaction Document) on which DIS authorizes Customer to make a copy of the Program, and
(3) chargeable component (also called a feature), the date Customer uses the chargeable component or a copy. Customer agrees to notify DIS of the chargeable component’s Date of Installation.
Designated Machine – either i) the machine on which Customer will use an DCA Program for processing and which DIS requires Customer to identify to DIS by type/model and serial number, or
ii) any machine on which Customer uses the DCA Program if DIS does not require Customer to provide this identification.
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Enterprise – any legal entity (such as a corporation) and the subsidiaries it owns by more than 50 percent. The term “Enterprise” applies only to the portion of the Enterprise located in Thailand.
DCA Program – an DIS Program licensed under Part 4 of this Agreement. Licensed Internal Code (called “LIC”) – Machine Code used by certain DIS Machines DIS specifies
(called “Specific Machines”).
Machine – a hardware device, its features, conversions, upgrades, elements, or accessories, or any combination of them. The term "Machine" includes an DIS Machine and any non-DIS Machine (including other equipment) that DIS may provide to Customer.
Machine Code – microcode, basic input/output system code (called “BIOS”), utility programs, device drivers, diagnostics, and any other code (all subject to any exclusions in the license provided with it) delivered with an DIS Machine for the purpose of enabling the Machine’s function as stated in its Specifications. The term “Machine Code” includes LIC.
Materials – literary works or other works of authorship (such as software programs and code, documentation, reports, and similar works) that DIS may deliver to Customer as part of a Service.
The term “Materials" does not include Programs, Machine Code, or other items available under their own license terms or agreements.
Non-DIS Program – a Program licensed under a separate third party license agreement.
Other DIS Program – an DIS Program licensed under a separate DIS license agreement (e.g., DIS International Program License Agreement).
Product – a Machine or a Program.
Program – the following, including the original and all whole or partial copies:
a. machine-readable instructions and data;
b. components;
c. audio-visual content (such as images, text, recordings, or pictures); and
d. related licensed materials.
The term “Program” includes any DCA Program, Other DIS Program, or Non-DIS Program that DIS may provide to Customer. The term does not include Machine Code or Materials.
Service – performance of a task, assistance, support, or access to resources (such as an information database) that DIS makes available to Customer.
Specifications – information specific to a Product. DIS Machine Specifications are in a document entitled "Official Published Specifications." DCA Program Specifications are in a document entitled Licensed Program Specifications."
Specified Operating Environment – the machines and programs with which an DCA Program isdesigned to operate, as described in its Licensed Program Specifications.
1.4 Acceptance of Terms
Customer accepts the terms in Attachments and Transaction Documents by i) signing them (by hand or electronically), ii) using the Product or Service, or allowing others to do so, or iii) making any payment for the Product or Service. A Product or Service becomes subject to this Agreement when DIS accepts Customer’s order by i)sending Customer a Transaction Document, ii) shipping the Machine or making the Program available
to Customer, or iii) providing the Service. Any Attachment or Transaction Document will be signed by both parties if requested by either party.
1.5 Delivery
Delivery dates are estimates unless otherwise specifically agreed in a Transaction Document. Transportation charges, if applicable, will be specified in a Transaction Document. For Programs DIS provides to Customer in tangible form, DIS fulfills its shipping and delivery obligations upon the delivery of such Programs to the DIS-designated carrier, unless otherwise agreed to in writing by Customer and DIS.
1.6 Charges and Payment
1.6.1 Charges
A Transaction Document specifies the amount payable for Products or Services, based on one or more of the following types of charges: one-time, recurring, time and materials, or fixed price. Additional charges may apply (such as special handling or travel related expenses). DIS will inform
Customer in advance whenever additional charges apply.
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Recurring charges for a Product begin on its Date of Installation. Charges for Services are billed as specified in a Transaction Document, which may be in advance, periodically during the performance of the Service, or after the Service is completed. Unless otherwise provided in this Agreement (including any applicable Attachment or Transaction Document): i) Services for which Customer prepays must be used within the applicable contract period; and ii) DIS does not give credits or refunds for any prepaid or other charges already due or paid.
If a Transaction Document provides an estimated total charge for time and materials or for usage charges, the estimate is for planning purposes only. DIS invoices charges based on actual time and materials expended or Customer’s actual or authorized use, subject to any specified minimum commitment.
1.6.2 Usage Charges
One-time and recurring charges may be based on measurements of actual or authorized use (for example, authorized capacity for Machines, number of users or processor size for Programs, or meter readings for maintenance Services). Customer agrees to provide actual usage data as described in an Attachment or Transaction Document.
If Customer makes changes to its environment that impact usage charges (for example, change authorized capacity for Machines or change processor size or configuration for Programs), Customer agrees to promptly notify DIS and pay any applicable charges. Recurring charges will be adjusted accordingly. In the event that DIS changes the basis of measurement, its terms for changing charges will apply.
1.6.3 Changes to Charges
From time to time, DIS may change its charges. Customer receives the benefit of a decrease in
charges for amounts that become due on or after the effective date of the decrease.
Unless provided otherwise in an Attachment or Transaction Document, DIS may increase recurring
charges for Products and Services, as well as labor rates and minimums for Services provided under
this Agreement, by giving Customer three months' written notice. An increase applies on the first day
of the invoice or charging period on or after the effective date DIS specifies in the notice.
DIS may increase one-time charges without notice. However, an increase to one-time charges does
not apply to Customer if i) DIS receives the order before the announcement date of the increase and
ii) one of the following occurs within three months after DIS’s receipt of the order:
a. DIS ships Customer the Machine or makes the Program available to Customer;
b. Customer makes an authorized copy of a Program or distributes a chargeable component of a
Program to another Machine; or
c. a Program's increased use charge becomes due.
Upon reasonable notice, DIS may verify the usage data and other information affecting the calculation
of charges under this Agreement. Such verification will be conducted in a manner that minimizes
disruption to Customer’s business and may be conducted on Customer’s premises, during Customer’s
normal business hours. Customer agrees to i) provide records, system tools outputs, and other
electronic or hard copy system information reasonably necessary for such verification, and ii) promptly
pay any additional, valid charges and other liabilities determined as a result of such verification.
1.6.4 Payment
Amounts are due upon receipt of invoice and payable as specified in a Transaction Document.
Customer agrees to pay accordingly, including any late payment fee. Payment may be made
electronically to an account specified by DIS or by other means agreed to by the parties.
1.6.5 Taxes
If any authority imposes upon any transaction under this Agreement a duty, tax, levy, or fee, excluding
those based on DIS’s net income, then Customer agrees to pay that amount as specified in an
invoice, unless Customer supplies exemption documentation. Customer is responsible for any
personal property taxes for each Product from the date DIS ships it to Customer. Additional taxes
and tax related charges may apply if DIS personnel are required to perform Services outside their
normal tax jurisdiction. As practical, DIS will work to mitigate such additional tax and tax-related
charges and will inform Customer in advance if these additional charges apply and are payable by
Customer.
1.7 Changes to the Agreement Terms
In order to maintain flexibility in our business relationship, DIS may change the terms of this
Agreement by providing Customer at least three months’ written notice. However, these changes are
not retroactive. They apply, as of the effective date DIS specifies in the notice, only to new orders, Page 4 of 13
on-going transactions that do not expire, and transactions with a defined renewable contract period.
For transactions with a defined renewable contract period, Customer may request that DIS defer the
change effective date until the end of the current contract period.
Customer acknowledges its agreement to have these changes apply for such transactions by i)
placing new orders for Products or Services after the change effective date, ii) failing to request that
the change effective date be deferred until the start of the next renewal period, iii) allowing
transactions to renew after receipt of the change notice, or iv) failing to terminate non-expiring
transactions prior to the change effective date. Changes to charges are implemented as described in
the Charges and Payment section above.
Otherwise, for a change to be valid, both parties must sign it.
1.8 DIS Business Partners
DIS has signed agreements with certain organizations (called "DIS Business Partners") to promote,
market, and support certain Products and Services. Customer may order DIS Products or Services
that are promoted or marketed to Customer by DIS Business Partners or other suppliers, however, i)
this Agreement applies only if a Transaction Document subject to this Agreement is provided for the
specific transaction, and ii) such Business Partners and suppliers remain independent and separate
from DIS.
DIS is not responsible for the actions or statements of DIS Business Partners or other suppliers, any
obligations either has to Customer, or any products or services that they supply to Customer under
their agreements.
1.9 Intellectual Property Protection
For purposes of this Intellectual Property Protection section, the term "Product" also includes
Materials and Machine Code.
1.9.1 Third Party Claims
If a third party claims that a Product DIS provides to Customer infringes that party's patent or
copyright, DIS will defend Customer against that claim at DIS’s expense and pay all costs, damages,
and attorney's fees that a court finally awards or that are included in a settlement approved by DIS,
provided that Customer:
a. promptly notifies DIS in writing of the claim; and
b. allows DIS to control, and cooperates with DIS in, the defense and any related settlement
negotiations.
1.9.2 Remedies
If such a claim is made or appears likely to be made, Customer agrees to permit DIS to enable
Customer to continue to use the Product, or to modify it, or replace it with one that is at least
functionally equivalent. If DIS determines that none of these alternatives is reasonably available,
Customer agrees to return the Product to DIS on DIS’s written request. DIS will then give Customer
a credit equal to:
a. for a Machine, Customer’s net book value calculated according to generally-accepted
accounting principles;
b. for an DCA Program, the amount paid by Customer or 12 months' charges (whichever is less);
and
c. for Materials, the amount Customer paid DIS for the creation of the Materials.
1.9.3 Claims for Which DIS is Not Responsible
DIS has no obligation regarding any claim based on any of the following:
a. anything provided by Customer or a third party on Customer’s behalf that is incorporated into a
Product or DIS’s compliance with any designs, specifications, or instructions provided by
Customer or a third party on Customer’s behalf;
b. modification of a Product by Customer or a third party on Customer’s behalf, or an ICA
Program’s use other than in accordance with its applicable licenses and restrictions;
c. the combination, operation, or use of a Product with any product, hardware device, program,
data, apparatus, method, or process that DIS did not provide as a system, if the infringement
would not have occurred were it not for such combination, operation or use;
d. the distribution, operation or use of a Product outside Customer’s Enterprise; or
e. infringement by a non-DIS Product or an Other DIS Program alone.
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This Intellectual Property Protection section states DIS’s entire obligation and Customer’s exclusive
remedy regarding any third party intellectual property claims.
1.10 Limitation of Liability
1.10.1 Items for which DIS May be Liable
Circumstances may arise where, because of a default on DIS’s part or other liability, Customer is entitled to recover damages from DIS. Regardless of the basis on which Customer is entitled to claim
damages from DIS (including fundamental breach, negligence, misrepresentation, or other contract or
tort claim), DIS’s entire liability for all claims in the aggregate arising from or related to each Product
or Service or otherwise arising under this Agreement will not exceed the amount of any actual direct
damages up to the greater of Thai Baht 200,000, or the charges (if recurring, 12 months' charges apply)
for the Product or Service that is the subject of the claim. For purposes of this Limitation of Liability
section, the term "Product" also includes Materials and Machine Code.
This limit also applies to any of DIS’s subcontractors and Program developers. It is the maximum for
which DIS and its subcontractors and Program developers are collectively responsible. The following
amounts are not subject to a cap on the amount of damages:
a. payments referred to in the Intellectual Property Protection section above; and
b. damages for bodily injury (including death) and damage to real property and tangible personal
property for which DIS is legally liable.
1.10.2 Items for Which DIS is Not Liable
Except as expressly required by law without the possibility of contractual waiver, under no
circumstances is DIS, its subcontractors, or Program developers 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.
1.11 General Principles of Our Relationship
1.11.1 Notices and Communications
Written communications, including notices to the receiving party’s designated representative, are to
be sent to the address (physical, e-mail or facsimile) specified in an applicable Attachment or
Transaction Document. The parties 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. An
identification code (called a “user ID”) contained in an electronic document is sufficient to verify the
sender’s identity and the document’s authenticity.
1.11.2 Assignment and Resale
Neither party may assign this Agreement, in whole or in part, without the prior written consent of the
other. Any attempt to assign without consent is void. The assignment of this Agreement, in whole or
in part, within the Enterprise of which either party is a part or to a successor organization by merger or
acquisition does not require the consent of the other. DIS is also permitted to assign its rights to
payments without obtaining Customer’s consent. It is not considered an assignment for DIS to divest
a portion of its business in a manner that similarly affects all of its customers.
Customer agrees not to resell any Service without DIS’s prior written consent. Any attempt to do so is
void.
Customer agrees to acquire Machines with the intent to use them within its Enterprise and not for
reselling, leasing, or transferring to a third party, unless either of the following applies:
a. Customer is arranging lease-back financing for the Machines; or
b. Customer purchases the Machines without any discount or allowance, and does not remarket
them in competition with DIS’s authorized remarketers.
1.11.3 Compliance with Laws
DIS will comply with laws applicable to DIS generally as a provider of information technology
Products and Services. DIS is not responsible for determining the requirements of laws applicable to
Customer's business, including those relating to Products and Services that Customer acquires under
this Agreement, or that DIS's provision of or Customer's receipt of particular Products or Services
under this Agreement meets the requirements of such laws. Notwithstanding anything in this
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Agreement to the contrary, neither party is obligated to take any action that would violate law
applicable to that party.
Each party will comply with applicable export and import laws and regulations, including those of the
United States that prohibit or limit export for certain uses or to certain end users.
1.11.4 Dispute Resolution
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. Unless otherwise required
by applicable law without the possibility of contractual waiver or limitation, i) neither party will bring a
legal action, regardless of form, arising out of or related to this Agreement or any transaction under it
more than two years after the cause of action arose; and ii) after such time limit, any legal action
arising out of this Agreement or any transaction under it and all respective rights related to any such
action lapse.
1.11.5 Other Principles of Our Relationship
a. Neither party grants the other the right to use its (or any of its Enterprise's) trademarks, trade
names, or other designations in any promotion or publication without prior written consent.
b. The exchange of any confidential information will be made under a separate, signed
confidentiality agreement. However, to the extent confidential information is exchanged in
connection with any Product or Service under this Agreement, the applicable confidentiality
agreement is incorporated into, and subject to, this Agreement.
c. This Agreement and any transaction under it do not create an agency, joint venture, or
partnership between Customer and DIS. Each party is free to enter into similar agreements with
others to develop, acquire, or provide competitive products and services.
d. Each party grants only the licenses and rights specified in this Agreement. No other licenses or
rights (including licenses or rights under patents) are granted either directly, by implication, or
otherwise. The rights and licenses granted to Customer under this Agreement may be
terminated if Customer fails to fulfill its applicable payment obligations.
e. Customer authorizes International Business Machines Corporation and its subsidiaries (and
their successors and assigns, contractors and DIS Business Partners) to store and use
Customer’s business contact information wherever they do business, in connection with DIS
Products and Services or in furtherance of DIS’s business relationship with Customer.
f. No right or cause of action for any third party is created by this Agreement or any transaction
under it, nor is DIS responsible for any third party claims against Customer except as described
in the Intellectual Property Protection section above or as permitted by the Limitation of Liability
section above for bodily injury (including death) or damage to real or tangible personal property
for which DIS is legally liable to that third party.
g. Customer is responsible for selecting the Products and Services that meet its needs and for the
results obtained from the use of the Products and Services, including Customer’s decision to
implement any recommendation concerning Customer’s business practices and operations.
h. Where approval, acceptance, consent or similar action by either party is required under this
Agreement, such action will not be unreasonably delayed or withheld.
i. Neither party is responsible for failure to fulfill any non-monetary obligations due to events
beyond its control.
j. As reasonably required by DIS to fulfill its obligations under this Agreement, Customer agrees to
provide DIS with sufficient and safe access (including remote access) to Customer’s facilities,
systems, information, personnel, and resources, all at no charge to DIS. DIS is not responsible
for any delay in performing or failure to perform caused by Customer’s delay in providing such
access or performing other Customer responsibilities under this Agreement.
1.12 Agreement Termination
Either party may terminate this Agreement on written notice to the other following the expiration or
termination of the terminating party’s obligations under this Agreement, including any applicable
Attachment or Transaction Document.
Either party may terminate this Agreement if the other does not comply with any of its terms, provided
the one who is not complying is given written notice and reasonable time to comply. License
termination and termination of a Services transaction are described in Parts 4 and 5, respectively.
Any terms of this Agreement that by their nature extend beyond the Agreement termination remain in
effect until fulfilled, and apply to both parties’ respective successors and assignees.
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1.13 Geographic Scope and Governing Law
The rights, duties, and obligations of each party are valid only in Thailand except that all licenses are
valid as specifically granted.
Both parties agree to the application of the laws of Thailand to govern, interpret, and enforce all of
Customer’s and DIS’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, 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.
2. Warranties
2.1 The DIS Warranties
2.1.1 Warranty for DIS Machines
DIS warrants that each DIS Machine is free from defects in materials and workmanship and conforms
to its Specifications.
The warranty period for an DIS Machine is a fixed period commencing on its Date of Installation and
specified in a Transaction Document. During the warranty period, DIS provides repair and exchange
Service for the DIS Machine, without charge, under the type of Service DIS designates for the DIS
Machine. If an DIS Machine does not function as warranted during the warranty period and DIS is
unable to either i) make it do so or ii) replace it with one that is at least functionally equivalent,
Customer may return it to DIS for a refund.
Additional terms regarding Service for Machines during and after the warranty period are contained in
Part 5.
2.1.2 Warranty for DCA Programs
DIS warrants that each warranted DCA Program, when used in the Specified Operating Environment,
will conform to its Specifications.
During the warranty period, DIS provides defect-related Program Services without charge. Program
Services are available for a warranted DCA Program for at least one year following its general
availability. The warranty period for an DCA Program expires when its Program Services are no longer
available.
If an DCA Program does not function as warranted during the first year after Customer obtains its
license and DIS is unable to make it do so, Customer may return the DCA Program and the charges
Customer paid for the license will be refunded. To be eligible, Customer must have obtained its
license while Program Services (regardless of the remaining duration) were available for the ICA
Program. Additional terms regarding Program Services are contained in Part 4.
2.1.3 Warranty for DIS Services
DIS warrants that it performs each DIS Service using reasonable care and skill and according to its
current description (including any completion criteria) contained in this Agreement, an Attachment, or
a Transaction Document. Customer agrees to provide timely written notice of any failure to comply
with this warranty so that DIS can take corrective action.
2.1.4 Warranty for Systems
When DIS specifies in an Attachment or Transaction Document that it is providing Products to
Customer that are intended to operate together as a system, DIS warrants that those Products are
compatible and, when installed in accordance with their Specifications, will operate with one another.
This warranty is in addition to DIS’s other applicable warranties.
2.2 Extent of Warranty
The warranties stated above will not apply to the extent that there has been misuse (including, but not
limited to, use of any Machine capacity or capability, other than that authorized by DIS in writing),
accident, modification, unsuitable physical or operating environment, operation in other than the
Specified Operating Environment, improper maintenance by Customer or a third party, or failure or
damage caused by a product for which DIS is not responsible. The warranty for DIS Machines is
voided by removal or alteration of Machine or parts identification labels.
THESE WARRANTIES ARE CUSTOMER’S 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.
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Items Not Covered by Warranty
DIS does not warrant uninterrupted or error-free operation of a Product or Service or that DIS will
correct all defects.
DIS will identify DIS Machines and DCA Programs that it does not warrant.
Unless otherwise specified in an Attachment or Transaction Document, DIS provides Materials, non-
DIS Products (including those provided with, or installed on, an DIS Machine at Customer’s request),
and non-DIS Services WITHOUT WARRANTIES OF ANY KIND. However, non-DIS manufacturers,
developers, suppliers, or publishers may provide their own warranties to Customer. Warranties, if
any, for Other DIS Programs and Non-DIS Programs may be found in their license agreements.
3. Machines
3.1 Production Status
Each DIS Machine is manufactured from parts that may be new or used. In some cases, a Machine
may not be new and may have been previously installed. Regardless, DIS’s applicable warranty
terms described in Part 2 apply.
3.2 Title and Risk of Loss
DIS transfers title to a Machine to Customer or, if applicable, Customer’s lessor, upon payment of all
the amounts due. For a feature, conversion, or another type of upgrade acquired for a Machine, DIS
reserves transfer of title until DIS receives payment of all the amounts due and, as applicable, all
removed parts, which become DIS’s property.
For each Machine, DIS bears the risk of loss or damage up to the time it is delivered to the DIS-
designated carrier for shipment to Customer or Customer’s designated location. Thereafter,
Customer assumes the risk. Each Machine will be covered by insurance, arranged and paid for by
DIS for Customer, covering the period until it is delivered to Customer or Customer’s designated
location. For any loss or damage, Customer must i) report the loss or damage in writing to DIS within
10 business days of delivery and ii) follow the applicable claim procedure.
3.3 Installation
Customer agrees to provide an environment meeting the requirements for the Machine as specified in
its published documentation.
DIS has standard installation procedures. DIS will successfully complete these procedures before it
considers an DIS Machine (other than a Machine for which Customer defers installation or a
Customer-set-up Machine) installed.
Customer is responsible for installing a Customer-set-up Machine and a non-DIS Machine according
to instructions provided by DIS or the Machine’s manufacturer.
3.3.1 Upgrades and Engineering Changes
As used in this section, the term “upgrade” includes, without limitation, features and conversions. DIS
sells upgrades for installation on Machines, and, in certain instances, only for installation on a
designated, serial-numbered Machine. Within 30 days of the shipment of an upgrade, Customer
agrees to install the upgrade or, if DIS is responsible for the installation, to allow DIS to install the
upgrade. Otherwise, DIS may terminate the transaction and Customer must return the upgrade at
Customer’s expense.
Customer agrees to allow DIS to install mandatory engineering changes (such as those required for
safety) on a Machine.
Many upgrades and engineering changes require the removal of parts and the transfer of ownership
and possession of the removed parts to DIS. Customer is responsible for the return of all removed
parts to DIS upon installation of the upgrade or engineering change. As applicable, Customer
represents that Customer has permission from the owner and any lien holders to i) install upgrades
and engineering changes and ii) transfer ownership and possession of removed parts to DIS.
Customer further represents that all removed parts are genuine, unaltered, and in good working order.
A part that replaces a removed part will assume the warranty or maintenance Service status of the
replaced part.
3.4 Machine Code
Machine Code is licensed under the terms and restrictions of the Machine Code license agreement
(e.g. DIS License Agreement for Machine Code, DIS Agreement for Licensed Internal Code, or an
equivalent) provided with the Machine Code. Customer acceptance of the terms of this Agreement
includes acceptance of DIS’s Machine Code license agreements, current versions of which are
available at the following URL:
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http://www.DIS.com/servers/support/machine_warranties/support_by_product.html > or by contacting
an DIS representative. Machine Code license agreements may be amended by DIS from time to
time. Such amended license terms will apply only to Machine Code that is supplied after such
amended terms become effective.
Machine Code is licensed only for use to enable a Machine to function in accordance with its
Specifications and only for the capacity and capability for which Customer has acquired DIS’s written
authorization. Customer agrees to use Machine Code only as specified in this Agreement and as may
be further authorized or restricted in its applicable license agreement. Without limiting additional
restrictions in the applicable license, Customer may not:
a. otherwise copy, display, transfer, adapt, modify, or distribute (electronically or otherwise)
Machine Code, except as DIS may authorize in the Machine’s user documentation or in writing
to Customer;
b. reverse assemble, reverse compile, otherwise translate, or reverse engineer Machine Code
unless expressly permitted by applicable law without the possibility of contractual waiver;
c. sublicense or assign the license for Machine Code; or
d. lease Machine Code or any copy of it.
International Business Machines Corporation, one of its subsidiaries, or a third party owns Machine
Code including all copyrights in Machine Code and all copies of Machine Code (this includes the
original Machine Code, copies of the original Machine Code, and copies made from copies). Machine
Code is copyrighted and licensed (not sold).
Title will not be transferred when DIS supplies features, conversions or upgrades which consist solely
of Machine Code.
The capacity of certain Machines is limited by technological measures in Machine Code. Customer
agrees to DIS's implementation of such technological measures to limit Machine capacity.
4. DCA Programs
4.1 License
When DIS accepts Customer’s order, DIS grants Customer a nonexclusive license to use the ICA
Program only within Customer’s Enterprise in Thailand. DCA Programs are owned by International
Business Machines Corporation, one of its subsidiaries, or a third party and are copyrighted and
licensed (not sold).
4.1.1 Authorized Use
Under each license, DIS authorizes Customer to:
a. use the DCA Program's machine-readable portion on only the Designated Machine. If the
Designated Machine is inoperable, Customer may use another machine temporarily. If the
Designated Machine cannot assemble or compile the DCA Program, Customer may assemble or
compile the DCA Program on another machine.
If Customer changes a Designated Machine previously identified to DIS, Customer agrees to
notify DIS of the change and its effective date;
b. use the DCA Program to the extent of authorizations Customer has obtained;
c. make and install copies of the DCA Program, to support the level of use authorized, provided
Customer reproduces the copyright notices and any other legends of ownership on each copy or
partial copy; and
d. use any portion of the DCA Program DIS i) provides in source form, or ii) marks restricted (for
example, "Restricted Materials of DIS") only to --
(1) resolve problems related to the use of the DCA Program, and
(2) modify the DCA Program so that it will work together with other products.
4.1.2 Customer’s Additional Obligations
For each DCA Program, Customer agrees to:
a. comply with any additional or different terms in its Licensed Program Specifications or an
Attachment or Transaction Document;
b. ensure that anyone who uses it (accessed either locally or remotely) does so only for
Customer’s authorized use and complies with DIS’s terms regarding DCA Programs; and
c. maintain a record of all copies and provide it to DIS at its request.
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4.1.3 Actions Customer May Not Take
Customer agrees not to:
a. reverse assemble, reverse compile, otherwise translate, or reverse engineer the DCA Program
unless expressly permitted by applicable law without the possibility of contractual waiver; or
b. sublicense, assign, rent, or lease the DCA Program or transfer it outside Customer’s Enterprise.
4.2 Distributed System License Option
For some DCA Programs, Customer may make a copy under a Distributed System License Option
(called a "DSLO" copy). DIS charges less for a DSLO copy than for the original license (called the
"Basic" license). In return for the lesser charge, Customer agrees to do the following while licensed
under a DSLO:
a. have a Basic license for the DCA Program;
b. provide problem documentation and receive Program Services (if any) only through the location
of the Basic license; and
c. distribute to, and install on, the DSLO's Designated Machine, any release, correction, or bypass
that DIS provides for the Basic license.
4.3 Program Services
DIS provides Program Services for warranted DCA Programs. If DIS can reproduce Customer’s
reported problem in the Specified Operating Environment, DIS will issue defect correction information,
a restriction, or a bypass. DIS provides Program Services for only the unmodified portion of a current
release of an DCA Program.
DIS provides Program Services i) on an on-going basis (with at least six months' written notice before
DIS terminates Program Services), ii) until the date DIS specifies, or iii) for a period DIS specifies.
4.4 Compliance Verification
DIS’s right to verify Customer's usage data and other information affecting the calculation of charges
also includes the right to verify Customer’s compliance with other terms of this Agreement (including
applicable Attachments and Transaction Documents) relating to Customer’s use of DCA Programs at
all sites and for all environments in which Customer installs or uses DCA Programs for any purpose.
DIS may use an independent auditor to assist with such verification, provided DIS has a written
confidentiality agreement in place with such auditor.
Customer agrees to create, retain, and provide to DIS and its auditors written records, system tools
outputs, and other system information sufficient to provide auditable verification that Customer's
installation and use of DCA Programs complies with the Agreement terms, including DIS’s applicable
licensing and pricing terms. DIS will notify Customer in writing if any such verification indicates that
Customer is not in compliance with Agreement terms. The rights and obligations in this section
remain in effect during the period any DCA Programs are licensed to Customer and for two years
thereafter.
4.5 License Termination
Customer may terminate the license for an DCA Program at any time on one month's written notice to
DIS.
For DCA Program licenses that Customer acquired for a one-time charge, replacement licenses may
be acquired for an upgrade charge, if available. When Customer obtains licenses for these
replacement DCA Programs, Customer agrees to terminate the license of the replaced DCA Programs
when charges become due, unless DIS specifies otherwise.
DIS may terminate Customer’s license if Customer fails to comply with the license terms. If DIS does
so, Customer’s authorization to use the DCA Program is also terminated.
5. Services
5.1 Personnel
Each party will assign personnel that are qualified to perform the tasks required of such party under
this Agreement and is responsible for the supervision, direction, control, and compensation of its
personnel. Subject to the foregoing, each party may determine the assignment of its personnel and
its contractors.
DIS may engage subcontractors to provide or assist in providing Services, in which case DIS remains
responsible for the fulfillment of its obligations under this Agreement and for the performance of the
Services.
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5.2 Materials Ownership and License
An Attachment or Transaction Document will specify Materials to be delivered to Customer and
identify them as “Type I Materials,” “Type II Materials,” or otherwise as both parties agree. If not
specified, Materials will be considered Type II Materials.
Customer will own the copyright in Materials created as part of a Service that are identified as “Type I
Materials.” Customer grants DIS an irrevocable, nonexclusive, worldwide, paid-up license to use,
execute, reproduce, display, perform, sublicense, distribute, and prepare derivative works based on,
Type I Materials.
DIS or its suppliers will own the copyright in Materials created as part of a Services transaction that
are identified as Type II Materials. DIS grants Customer an irrevocable, nonexclusive, worldwide,
paid-up license to use, execute, reproduce, display, perform, and distribute (within Customer’s
Enterprise only) copies of Type II Materials.
DIS or its suppliers retains ownership of the copyright in any of DIS’s or its suppliers’ works that pre-
exist or were developed outside of this Agreement and any modifications or enhancements of such
works that may be made under this Agreement. To the extent they are embedded in any Materials,
such works are licensed in accordance with their separate licenses provided to Customer, if any, or
otherwise as Type II Materials.
Each of us agrees to reproduce the copyright notice and any other legend of ownership on any copies
made under the licenses granted in this section.
5.3 Customer Resources
If Customer is making available to DIS any facilities, software, hardware or other resources in
connection with our performance of Services, Customer agrees to obtain any licenses or approvals
related to these resources that may be necessary for DIS to perform the Services and develop
Materials. DIS will be relieved of its obligations that are adversely affected by Customer’s failure to
promptly obtain such licenses or approvals. Customer agrees to reimburse DIS for any reasonable
costs and other amounts that DIS may incur from Customer’s failure to obtain these licenses or
approvals.
Unless otherwise agreed in an Attachment or Transaction Document, Customer is responsible for i)
any data and the content of any database Customer makes available to DIS in connection with a
Service under this Agreement, ii) the selection and implementation of procedures and controls
regarding access, security, encryption, use, and transmission of data, and iii) backup and recovery of
the database and any stored data.
5.4 Service for Machines (during and after warranty)
5.4.1 Service for Machines
DIS provides certain types of Service to keep Machines in, or restore them to, conformance with their
Specifications. DIS will inform Customer of the available types of Service for a Machine. At its
discretion, DIS will i) either repair or exchange the failing Machine and ii) provide the Service either at
Customer’s location or a service center. DIS manages and installs selected engineering changes that
apply to DIS Machines and may also perform preventive maintenance.
Any feature, conversion, or upgrade DIS services must be installed on a Machine which is i) the
designated, serial-numbered Machine, if applicable, and ii) at an engineering-change level compatible
with the feature, conversion, or upgrade.
When the type of Service requires that Customer deliver the failing Machine to DIS, Customer agrees
to ship it suitably packaged (prepaid unless DIS specifies otherwise) to a location DIS designates.
After DIS has repaired or exchanged the Machine, DIS will deliver it to Customer at DIS’s expense
unless DIS specifies otherwise. DIS is responsible for loss of, or damage to, Customer’s Machine
while it is i) in DIS’s possession or ii) in transit in those cases where DIS is responsible for the
transportation charges.
Customer agrees:
a. to obtain authorization from the owner to have DIS service a Machine that Customer does not
own;
b. where applicable, before DIS provides Service, to --
(1) follow the problem determination and service request procedures that DIS provides,
(2) secure all programs, data, and funds contained in a Machine, and
(3) inform DIS of changes in a Machine's location.
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c. to follow the Service instructions that DIS provides (which may include installing Machine Code
and other software updates either downloaded from an DIS Internet Web site or copied from
other electronic media); and
d. when Customer returns a Machine to DIS for any reason --
(1) to securely erase from any Machine all programs not provided by DIS with the Machine
and data, including without limitation, the following: i) information about identified or
identifiable individuals or legal entities ("Personal Data") and ii) Customer’s confidential or
proprietary information and other data. If removing or deleting Personal Data is not
possible, Customer agrees to transform such information (e.g., by making it anonymous)
so that it no longer qualifies as Personal Data under applicable law;
(2) to remove all funds from Machines returned to DIS. DIS is not responsible for any funds,
programs not provided by DIS with the Machine, or data contained in a Machine that
Customer returns to DIS; and
(3) DIS may ship all or part of the Machine or its software to other DIS or third party locations
around the world to perform its responsibilities under this Agreement, and Customer
authorizes DIS to do so.
5.4.2 Replacements
When Service involves the exchange of a part or Machine, the item DIS replaces becomes its
property and the replacement becomes Customer’s. Customer represents that all removed items are
genuine and unaltered. The replacement may not be new, but will be in good working order and at
least functionally equivalent to the item replaced. The replacement assumes the warranty or
maintenance Service status of the replaced item. Before DIS exchanges a part or Machine,
Customer agrees to remove all features, parts, options, alterations, and attachments not under DIS’s
service. Customer also agrees to i) ensure that the part or Machine is free of any legal obligations or
restrictions that prevent its exchange and ii) transfer ownership and possession of removed parts to
DIS.
Service for some DIS Machines involves DIS providing Customer with an exchange replacement for
installation by Customer. Such exchange replacements may be i) a part of a Machine (called a
Customer Replaceable Unit, or “CRU,” e.g., keyboard, memory, or hard disk drive), or ii) an entire
Machine. Customer may request DIS to install the replacement CRU or Machine, however, Customer
may be charged for the installation. DIS provides information and replacement instructions with
Customer’s Machine and at any time on Customer’s request. DIS specifies in the materials shipped
with a replacement whether the failing CRU or Machine must be returned to DIS. When return is
required, return instructions and a container are shipped with the replacement, and Customer may be
charged for the replacement if DIS does not receive the failing CRU or Machine within 15 days of
Customer’s receipt of the replacement.
5.4.3 Items Not Covered
Repair and exchange Services do not cover:
a. accessories, supply items, consumables (such as batteries and printer cartridges), and
structural parts (such as frames and covers);
b. Machines damaged by misuse, accident, modification, unsuitable physical or operating
environment, or improper maintenance by Customer or a third party;
c. Machines with removed or altered Machine or parts identification labels;
d. failures caused by a product for which DIS is not responsible;
e. service of Machine alterations; or
f. service of a Machine on which Customer is using capacity or capability, other than that
authorized by DIS in writing.
5.5 Warranty Service Upgrade
For certain Machines, Customer may select a Service upgrade from the standard type of warranty
Service for the Machine. DIS charges for the Service upgrade during the warranty period.
Customer may not terminate the Service upgrade or transfer it to another Machine during the warranty
period.
5.6 Maintenance Coverage
When Customer orders maintenance Service for Machines, DIS will inform Customer of the date on
which maintenance Service will begin. DIS may inspect the Machine within one month following that
date. If the Machine is not in an acceptable condition for service, Customer may have DIS restore it
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for a charge or Customer may withdraw its request for maintenance Service. However, Customer will
be charged for any maintenance Service which DIS has performed at Customer’s request.
5.7 Automatic Service Renewal
Renewable Services renew automatically for a same length contract period unless either of us
provides written notification (at least one month prior to the end of the current contract period) to the
other of its decision not to renew.
5.8 Termination and Withdrawal of a Service
Either party may terminate a Service transaction if the other materially fails to meet its obligations
concerning the Service.
Customer may terminate a Service, on notice to DIS provided Customer has met all minimum
requirements and paid any adjustment charges specified in the applicable Attachments and
Transaction Documents.
For a maintenance Service, Customer may terminate without adjustment charge, provided any of the
following circumstances occur:
a. Customer permanently removes the eligible Product, for which the Service is provided, from
productive use within Customer’s Enterprise;
b. the eligible location, for which the Service is provided, is no longer controlled by Customer (for
example, because of sale or closing of the facility); or
c. the Machine has been under maintenance Service for at least one year and Customer gives DIS
one month's written notice prior to terminating the maintenance Service.
Customer agrees to pay DIS for i) all charges for Services DIS provides and any Products and
Materials DIS delivers through Service termination, and ii) reimbursable expenses DIS incurs through
Service termination. If Customer terminates without cause, Customer also agrees to pay any
applicable adjustment or termination charges and for expenses DIS incurs as a result of such
termination (which DIS will take reasonable steps to mitigate).
DIS may withdraw a Service or support for an eligible Product on three months' written notice to
Customer. If DIS withdraws a Service for which Customer has prepaid and DIS has not yet fully
provided it to Customer, DIS will give Customer a prorated refund.
Any terms which by their nature extend beyond termination or withdrawal remain in effect until fulfilled
and apply to respective successors and assignees.