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5. to allow IBM or its subcontractor or the reseller to install mandatory engineering

changes, such as those required for safety;

6. when the type of warranty service requires that you deliver a failing Machine to

IBM, you agree to ship it suitably packaged, as IBM specifies, to a location IBM

designates. After the Machine has been repaired or exchanged, IBM will return

the repaired Machine or provide a replacement Machine to you at its expense,

unless IBM specifies otherwise. IBM is responsible for loss of, or damage to,

your Machine only while it is 1) in IBM’s possession or 2) in transit in those

cases where IBM is responsible for the transportation charges; and

7. to securely erase from any Machine you return to IBM for any reason all

programs not provided by IBM with the Machine, and data, including without

limitation the following: 1) information about identified or identifiable individuals

or legal entities (“Personal Data”) and 2) your confidential or proprietary

information and other data. If removing or deleting Personal Data is not

possible, you agree to transform such information (e.g., by making it anonymous

or encrypting it) so that it no longer qualifies as Personal Data under applicable

law. You also agree to remove all funds from Machines returned to IBM. IBM is

not responsible for any funds, programs not provided by IBM with the Machine,

or data contained in a Machine that you return to IBM. You acknowledge that, to

perform its responsibilities under this Statement of Limited Warranty, IBM may

ship all or part of the Machine or its software to other IBM or third party

locations around the world, and you authorize IBM to do so.

Limitation

of Liability

Circumstances may arise where, because of a default on IBM’s part or other

liability, you are entitled to recover damages from IBM. In each such instance,

regardless of the basis on which you are entitled to claim damages from IBM

(including fundamental breach, negligence, misrepresentation, or other contract or

tort claim), except for any liability that cannot be waived or limited by applicable

laws, IBM is liable for no more than:

1. damages for bodily injury (including death) and damage to real property and

tangible personal property; and

2. the amount of any other actual direct damages, up to the charges (if recurring,

12 months’ charges apply) for the Machine that is subject of the claim. For

purposes of this item, the term “Machine” includes Machine Code and Licensed

Internal Code (“LIC”).

This

limit also applies to IBM’s suppliers, subcontractors, and resellers. It is the

maximum for which IBM and its suppliers, subcontractors and resellers are

collectively responsible.

UNDER NO CIRCUMSTANCES IS IBM OR ITS SUPPLIERS,

SUBCONTRACTORS, OR RESELLERS LIABLE FOR ANY OF THE FOLLOWING

EVEN IF INFORMED OF THEIR POSSIBILITY: 1) THIRD PARTY CLAIMS

AGAINST YOU FOR DAMAGES (OTHER THAN THOSE UNDER THE FIRST

ITEM LISTED ABOVE); 2) LOSS OF, OR DAMAGE TO, DATA; 3) SPECIAL,

INCIDENTAL, OR INDIRECT DAMAGES OR FOR ANY ECONOMIC

CONSEQUENTIAL DAMAGES; OR 4) LOST PROFITS, BUSINESS REVENUE,

GOODWILL OR ANTICIPATED SAVINGS. SOME STATES OR JURISDICTIONS

DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR

CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION

MAY NOT APPLY TO YOU.

Governing Law

22 RDX USB Drive User's Guide

IBM 46C5387 Fiche technique Page 30

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