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BMC Innovation Suite and Applications Agreement
Effective October 6th 2017
DownloadTable of Contents
BMC INNOVATION SUITE AND APPLICATIONS AGREEMENT
THIS BMC INNOVATION SUITE AND APPLICATIONS AGREEMENT (“AGREEMENT”) GOVERNS YOUR PURCHASE AND ONGOING USE OF THE BMC APPLICATION SERVICES AND THE PLATFORM SERVICES (“SERVICES”).
BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
You may not access the Services if you are BMC’s direct competitor, except with BMC’s prior written consent. In addition, you may not access the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.
This Agreement was last updated on August 1, 2017. This Agreement is between the entity or individual entering into this Agreement (“Customer”) and the BMC Contracting Entity for the applicable region as described in Section 18 (“BMC”). It is effective between Customer and BMC as of the date of your acceptance of this Agreement (“Effective Date”).
1. SCOPE. Subject to the terms of this Agreement, BMC will provide Customer with access to the Service named in the applicable Order. Customer may only use the Services to store, retrieve, query, serve, and process Customer Data that is owned, licensed or lawfully obtained by Customer. As part of Customer’s subscription to the Platform Services, Customer may be allowed to run certain Applications on the Platform Services that are either (i) sold by BMC, (ii) sold by a Third Party Publisher, or (iii) owned or licensed by Customer. Each Order is deemed to be a discrete contract, separate from each other Order, unless expressly stated otherwise therein, and in the event of a direct conflict between any Order and the terms of this Agreement, the terms of the order will control only if the Order is executed by an authorized representative of each party. Orders may be entered under this Agreement by and between (a) BMC or an Affiliate of BMC; and (b) Customer or an Affiliate of Customer. With respect to an Order, the terms “BMC” and “Customer” as used in this Agreement will be deemed to refer to the entities that execute that Order, the Order will be considered a two party agreement between such entities, and BMC will separately invoice the Customer named in the Order for the associated fees. Orders may also be placed via a BMC authorized reseller of the Services.
2. DEFINITIONS.
2.1 “Affiliate” is an entity that controls, is controlled by or shares common control with BMC or Customer, where such control arises from either (a) a direct or indirect ownership interest of more than 50% or (b) the power to direct or cause the direction of the management and policies, whether through the ownership of voting stock by contract, or otherwise, equal to that provided by a direct or indirect ownership of more than 50%.
2.2	“Application” is the object code, its definitional structures, and data created to fulfill a particular purpose, which runs on the Platform Services. An Application may also include its documentation and User Guide.
2.3	“BMC Application Services” means an Application that is licensed by BMC to customers, including all items delivered by BMC to Customer under Support related to such Application.
2.4	“Capacity” means the amount of access to the Services purchased as specified in an Order, which is counted in accordance with the Unit of Measure described in the Order.
2.5	“Customer Applications” means Applications that are owned or licensed by Customer, not including any Third Party Applications, and which run on the Platform Services.
2.6	“Customer Data” means all information uploaded or entered by Customer to the Services, excluding Customer Applications.
2.6	“Data Processing Agreement” means the applicable Data Processing Agreement attached to each Order.
2.7	“Order” means (i) the agreed ordering document for the purchase of the Services (including the applicable Data Processing Agreement), (ii) that is subject to this Agreement, and (iii) that identifies the particulars of the purchase, Service being ordered and fees to be paid.
2.8	“Platform Services” means the BMC Innovation Suite and its capabilities to run Applications. The specific Platform Services being purchased by Customer will be identified in the Order.
2.9	“Third Party Applications” means Applications that are owned by a Third Party Publisher with a valid independent software vendor agreement in place with BMC, and are licensed by said Third Party Publisher to customers.
2.10	“Third Party Publisher” means a party other than BMC or a BMC Affiliate that is the owner and licensor of a Third Party Application, and has a valid independent software vendor agreement in place with BMC. For the sake of clarity, Customer is informed that Third Party Publishers are not BMC Subcontractors.
2.11	“User Guide” means the online documentation for the Service, which includes functional guides and technical specifications, as updated by BMC from time to time.
3.	BMC SERVICES.
3.1	Access Rights. Subject to the terms of this Agreement, BMC hereby grants to Customer a worldwide, non-exclusive, non-transferable, non-sublicenseable, limited license to access and use the Service (i) up to the Capacity, (ii) for Customer’s and its Affiliates’ internal business operations, and (iii) in accordance with the User Guide and the applicable Order.
3.2	BMC Services Support. BMC will provide support to Customer for the Services as described on http://www.bmc.com/support (“Support”), which may be changed by BMC at any time. BMC will provide Support only for Platform Services and BMC Application Services. Customer is responsible for its own support for Customer Applications and Third Party Applications.
3.3	Notifications to Customer. Any general notifications from BMC Operations to Customer will be sent to the Customer contact stated in the Customer Information (ship to) section of the Order. The Customer contact in the Order has been assigned by Customer as the Customer contact for operational issues that may arise. Customer shall notify BMC of any change to the Customer contact details in writing, which may include via e-mail.
3.4	Customer Data Back-up and Recovery. BMC provides daily incremental and weekly full system backups of the production environment in a secure off-site facility within the same country as the primary facility, using a 90 day retention window for data recovery purposes.
3.5	Use of Subcontractors. Customer acknowledges and agrees that BMC uses subcontractors to provide portions of the Services. BMC will provide a list of its current subcontractors upon Customer’s written request. BMC is responsible for the performance of all subcontractors providing any of the Services. For the sake of clarity, Customer is informed that Third Party Publishers are not BMC Subcontractors.
3.6	Customer Responsibilities.
(a) Customer will maintain the confidentiality of all authentications and passwords for the Services and immediately notify BMC if it becomes aware that an unauthorized party has gained access to the Services. Customer will be responsible for use of the Services by its employees, consultants, contractors, agents, and Affiliates (all, “Users”) in compliance with this Agreement. Customer will (i) use reasonable efforts to prevent unauthorized access to, or use of, the Services, and notify BMC promptly of any such unauthorized access or use, and (ii) comply with all applicable laws in using the Services. Customer is responsible for the creation and implementation of a privacy policy and end user license agreement, if applicable, which will set forth the guidelines of how Customer uses and protects the data and personal information of its Users, and how said Users may utilize the Services.
(b) Customer may not (i) modify, copy or create derivative works based on the Services; (ii) create Internet “links” to or reproduce any content forming part of the Services, other than for its own internal business purposes; (iii) disassemble, reverse engineer, or decompile the Services or part thereof, or access it in order to copy any ideas, features, content, functions or graphics of the Services; (iv) distribute, rent, lease, sublicense or provide the Services to any third party or use it in a service bureau, outsourcing environment, or for the processing third party data; (v) interfere with or disrupt the integrity or performance of the Services (e.g., load, performance, or stress testing); (vi) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortuous material, or send or store material in violation of any third party’s privacy rights via the Services; (vii) send or store viruses or malicious code via the Services; (viii) attempt to gain unauthorized access to the Services or its related software, systems, platforms or networks including any form of security and/or penetration testing; (ix) use any components provided with the Services separately from the Services; (x) transfer an Application outside of the Platform Services; or (xi) tamper with or circumvent any controls or make unauthorized copies of an Application.
4.	CUSTOMER APPLICATIONS AND THIRD PARTY APPLICATIONS.
4.1	Any Third Party Applications or Customer Applications that run on the Platform Services are hereby excluded from the defined terms “Services”, “BMC Application Services” and “Platform Services”. Such Third Party Applications are governed by the terms provided with the Third Party Applications, and are by and between Customer and the applicable Third Party Publisher. Customer acknowledges and agrees that this Agreement does not govern Customer’s subscription, use and access of any Third Party Applications or Customer Applications, and said Third Party Applications and Customer Applications are specifically excluded from this Agreement.
4.2	Customer may utilize the BMC Innovation Suite for Developers to create an Application to run on the Platform Services. Customer’s use of the BMC Innovation Suite for Developers is exclusively governed by the BMC Developer Program Agreement, a copy of which may be viewed at http://media.cms.bmc.com/documents/DVA.pdf, and such use is not governed by the terms of this Agreement. Customer’s development of an Application must meet the best practices development guidelines set forth in the User Guide. Each Customer Application shall at all times materially conform to policies and best practices set forth in the User Guide. Prior to the deployment of any Customer Applications in a production or non-production environment of the Platform Services, Customer must conduct security and functional tests of each Customer Application and submit the results of such tests to BMC for review. BMC reserves the right to reject Customer’s deployment request of a Customer Application based on the results of Customer’s security and functional tests. Additionally, BMC reserves the right, during the term of this Agreement, to request Customer conduct additional security and functional tests and provide the results of said tests to BMC for review. Notwithstanding the foregoing, Customer must ensure that at all times Customer Applications are secure.
4.3	License to Customer Applications. Subject to the terms and conditions of this Agreement, Customer hereby grants BMC a worldwide, limited, nonexclusive license during the term of the applicable Order for the Platform Services to host, copy, transmit, adapt and display Customer Applications solely for the purpose of fulfilling BMC’s obligations under this Agreement.
4.4	Functionality of Customer Applications. Customer is solely responsible for the operation of Customer Applications, including but not limited to any information stored in or transmitted by Customer Applications. Customer is responsible for monitoring the usage of each Customer Application. Customer is responsible for the configuration, functionality, performance, compliance with applicable data protection laws and security of all Customer Applications, including any interfaces used to connect to Customer Applications.
4.5	Use of Customer Applications. Customer has sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of Customer Applications and all Customer Data entered therein by Customer, its Users or on Customer’s behalf, the means by which Customer acquired such Customer Data, and the use of such Customer Data. Without limiting Customer’s obligations under the terms of this Agreement, Customer must (i) provide any necessary notice to, and obtain any necessary consent from, Users for the collection, use, transfer, and storage of Customer Data (including by BMC), and (b) collect, use, transfer, and store Customer Data in accordance with any privacy notice you provide, and all applicable laws.
4.6	Use of Third Party Applications. Customer is responsible for monitoring its usage of each Third Party Application, and such Third Party Publisher’s usage and license compliance is governed by the terms of the agreement entered into between Customer and the Third Party Publisher. Customer is responsible for all applicable fees associated with Customer’s use of Third Party Applications. Please note, Customer’s usage of such Third Party Applications may incur additional license fees between Customer and the applicable Third Party Publisher, as well as additional Platform Services fees.
4.7	Customer will provide information or other materials related to a Customer Applications as reasonably requested by BMC to verify Customer’s compliance with the Agreement and the User Guide. BMC may monitor Customer Applications and Third Party Applications running on the Platform Services to verify Customer’s compliance with the Agreement. Customer will not block or interfere with BMC’s monitoring. Customer will cooperate with BMC to identify the source of any problem with the Services that BMC reasonably believes may be attributable to Customer Applications or Third Party Applications, or any Customer Data.
4.8	If BMC reasonably believes any Customer Data, Customer Applications or Third Party Applications violates the law, infringes or misappropriates the rights of any third party or otherwise violates a material term of the Agreement (including the User Guide) (“Prohibited Content”), BMC will notify Customer of the Prohibited Content and may request that such content be removed from the Services or access to it be disabled. If Customer does not remove or disable access to the Prohibited Content within two (2) business days of BMC’s notice, BMC may remove or disable access to the Prohibited Content or suspend the Services to the extent BMC is not able to remove or disable access to the Prohibited Content. Notwithstanding the foregoing, BMC may remove or disable access to any Prohibited Content without prior notice in connection with illegal content, where the content may disrupt or threaten the Services, pursuant to the Digital Millennium Copyright Act or as required to comply with law or any judicial, regulatory or other governmental order or request. In the event that BMC removes content without prior notice, BMC will provide prompt notice to Customer unless prohibited by law.
4.9	Customer’s use of the Platform Services, BMC Application Services, Customer Applications and/or Third Party Applications may be immediately suspended and/or terminated due to (i) reasonable security threats regarding the Services, Customer Applications or Third Party Applications, (ii) Customer Applications or Third Party Applications interfering with, disrupting or threatening the integrity or performance of the Services, or (iii) a third party’s claim that Customer Applications or Third Party Applications may violate applicable law or third party rights. In the event of (i) or (ii) above apply to Customer Applications, Customer is required to remediate any such issue to BMC’s commercially reasonable satisfaction before use of Customer Applications can resume.
4.10	Customer’s access to Third Party Applications may be immediately suspended and/or terminated by BMC at the direction of the Third Party Publisher. Customer acknowledges and understands that access to Customer Applications and/or Third Party Applications used in connection with the Platform Services may be suspended due to Customer’s non-payment to BMC for use and access to the Platform Services or other breach of this Agreement. In no case will any such suspension or termination under the terms of this Agreement give rise to any BMC liability to Customer for a refund or other compensation.
4.11	BMC may conduct periodic security evaluations of all Customer Applications, which may include security review, a qualitative assessment involving review of a completed questionnaire, and an interview with appropriate Customer personnel. BMC conducts such security evaluations for its own benefit and Customer may not rely on the successful results of such evaluation. BMC may conduct such testing itself or, subject to the confidentiality obligations set forth in Section 9 (Mutual Confidentiality), through a third party. BMC will provide reasonable notice to Customer before starting such testing. BMC will also cooperate reasonably with Customer to minimize the effects of such testing on Customer’s business and operations. Customer agrees to cooperate reasonably with such testing. Despite the foregoing, such testing may in rare cases cause downtime or other adverse effects on Customer Applications or other Services used by Customer. Any nonpublic information to which BMC obtains access in the course of such security testing will be considered Customer’s Confidential Information.
4.12	Customer Responsibilities. Customer will maintain the confidentiality of all authentications and passwords for the Platform Services, Customer Applications and Third Party Applications, and immediately notify BMC if it becomes aware that an unauthorized party has gained access to such Platform Services, Customer Applications and Third Party Applications. Customer will (i) use reasonable efforts to prevent unauthorized access to, or use of, Customer Applications and Third Party Applications, and notify BMC promptly of any such unauthorized access or use, and (ii) comply with all applicable laws in using the Customer Applications and Third Party Applications. Customer is responsible for the creation and implementation of a privacy policy and end user license agreement, if applicable, which will set forth the guidelines of how said Users may utilize the Customer Applications.
5.	WARRANTIES.
5.1 BMC warrants to Customer that:
(a) the online availability of the Services will be maintained in accordance with the service levels set forth in the applicable Exhibit A (the “Service Level Agreement” or “SLA”). Customer’s exclusive remedy and BMC’s sole obligation for breach of the warranty in this Section 5.1(a) is described in the Service Level Agreement; and
(b) the Services (i) will perform in substantial accordance with the then-current on-line User Guide available via the Services and (ii) will be performed in a manner consistent with industry standards reasonably applicable to the provision thereof. Customer’s exclusive remedy and BMC’s sole obligation for breach of the warranty in this Section 5.1(b) will be BMC’s use of commercially reasonable efforts to have the Services perform in substantial accordance with the User Guide, or replace the non-conforming portion of the Services within a reasonable period of time, or if BMC cannot have the Services perform in substantial accordance with the User Guide or replace the Services within such time period, then BMC will refund the amount paid by Customer for the Services, pro-rated from the date of the notice of the claim. Customer’s rights and BMC’s obligations in this Section 5.1(b) are conditioned upon Customer’s providing BMC with written notice of the claim, a complete description of the alleged defects and a specific reference to the User Guide to which such alleged defects are contrary.
5.2 Customer warrants to BMC that: (a) each Customer Application will perform materially in accordance with the User Guide; (b) Customer owns all right, title, and interest in and to Customer Data, including but not limited to any Customer Data uploaded or entered into Customer Applications or Third Party Applications; (c) Customer has the necessary rights to use and access any Customer Applications and Third Party Applications deployed in a production or non-production environment of the Platform Services; (d) Customer has all rights in the Customer Data and Customer Applications necessary to grant the rights contemplated by this Agreement; (e) none of the Customer Data or Customer Applications or Users’ use of Customer Data or Customer Applications will violate the Agreement and the User Guide; (f) Customer’s security and functional tests of Customer Applications was conducted in a commercially reasonable manner and the results of said tests provided to BMC for review are correct and valid; and (g) none of the Third Party Applications or Users’ use of Third Party Applications will violate the Agreement or the User Guide.
5.3 Disclaimer. CUSTOMER ACKNOWLEDGES THAT, EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, BMC, ITS AFFILIATES AND LICENSORS MAKE NO WARRANTY, EXPRESS, IMPLIED OR STATUTORY WITH RESPECT TO THE SERVICES OR USE THEREOF. BMC, ITS AFFILIATES AND LICENSORS HEREBY EXPRESSLY DISCLAIM ALL OTHER WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY THAT SERVICES WILL BE UNINTERRUPTED, ERROR FREE OR WITHOUT DELAY, AND THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INTERFERENCE, NON-INFRINGEMENT AND INFORMATION CONTENT.
6.	FEES AND PAYMENT. The fees payable for the Services will be set forth in the Order. The fees will be invoiced in accordance with the relevant Order and are due upon receipt of invoice. Customer will pay or reimburse BMC or, when required by law, the appropriate governmental agency, for taxes of any kind, including sales, use, VAT, excise, customs duties, withholding, property, and other similar taxes (other than taxes based on BMC’s net income or arising from the employment relationship between BMC and its personnel) imposed in connection with the fees paid for the Services, which are exclusive of these taxes.
7.	TERM AND TERMINATION.
7.1	Term.
(a) Agreement. This Agreement begins on the Effective Date and will remain in effect unless terminated pursuant to Section 7.2 below.
(b) 	Order(s). Each Order begins on the start date specified in the relevant Order and continues for the term specified therein.
7.2	Termination.
(a) Termination for Convenience. Upon 30 days advance written notice, either party may terminate this Agreement for its convenience; however, such termination will have no effect on Orders executed by the parties prior to its effective date, including but not limited to payment obligations contained therein, and such Orders will remain in full force and effect under the terms of this Agreement for the term specified therein. Orders may not be terminated for convenience unless otherwise specified therein.
(b) Termination for Cause. Either party may terminate this Agreement for cause: (i) upon 30 days written notice of a breach to the other party if such breach remains uncured at the expiration of such period; or (ii) immediately upon material breach by the other party; or (iii) immediately if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
7.3	Effects of Termination for Cause. Subject to Section 7.2(a), upon termination or expiration, all Orders terminate and the Services purchased pursuant to such Orders terminate and Customer will make no further use of the Services. No termination will relieve the Customer of the obligation to pay any fees accrued or payable to BMC.
7.4	Termination Assistance. Upon written request by Customer made within 30 days after the effective date of termination, BMC will make available to Customer the Customer Data stored in the Services in database backup format. After such 30 day period, BMC shall have no obligation to maintain or provide any Customer Data and will thereafter, unless legally prohibited, delete Customer Data from the Services.
8. PROPRIETARY RIGHTS.
8.1 Reservation of Rights. BMC, its Affiliates or licensors retain all right, title and interest to the Services and all related software, programming, documentation, templates, questionnaires, methodologies, models, charts, specifications, reports, and any other intellectual property or items used to deliver the Services or made available to Customer as a result of the Services (“Service Items”). The Services and Service Items are protected by applicable copyright, trade secret, industrial and other intellectual property laws and rights under such laws (“IPRs”). As between Customer and BMC, BMC owns all rights, title, and interest in all Services, Service Items, and IPRs, and Customer’s access and use of Services, Service Items, and IPRs shall be governed by the terms of this Agreement. BMC reserves any rights not expressly granted to Customer. Customer shall not access the Services in order to build a competitive product or service or copy any ideas, features, functions or graphics of the Services.
8.2 Customer Data. As between BMC and Customer, (i) Customer owns all right, title and interest in and to the Customer Data; and (ii) Customer is responsible for all content, accuracy, quality and legality of Customer Data. BMC will use the Customer Data only as necessary to provide the Services in accordance with this Agreement. At any time during the term of the Services, Customer may request copies of all Customer Data from the Services. Customer is responsible for loading and/or transferring Customer Data into the Services and for ensuring that such transfer is completed.
9. MUTUAL CONFIDENTIALITY.
9.1 Confidential Information” means all proprietary or confidential information that is disclosed to the recipient (“Recipient”) by the discloser (“Discloser”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, and specifically includes Customer Data, Customer Applications, the Services, Service Items and any and all information relating to products or services provided by a Discloser, its customer-related and financial information, software code, flow charts, techniques, specifications, development and marketing plans, strategies, and forecasts. Confidential Information does not include information that Recipient can show: (a) was rightfully in Recipient’s possession without any obligation of confidentiality before receipt from the Discloser; (b) is or becomes a matter of public knowledge through no fault of Recipient; (c) is rightfully received by Recipient from a third party without violation of a duty of confidentiality; or (d) is or was independently developed by or for Recipient without reference to Discloser’s Confidential Information.
9.2 Confidentiality Obligation. Recipient may not disclose Confidential Information of Discloser to any third party or use the Confidential Information in violation of this Agreement. Recipient (i) will exercise the same degree of care and protection with respect to the Confidential Information of the Discloser that it exercises with respect to its own Confidential Information (but in no event less than reasonable care) and (ii) will not, either directly or indirectly, disclose, copy, distribute, republish, or allow any third party to have access to any Confidential Information of the Discloser. Notwithstanding the foregoing, Recipient may disclose Discloser’s Confidential Information to Recipient’s employees, contractors and agents who have the need to know provided that such employees and agents have legal obligations of confidentiality substantially the same (and in no case less protective) as the provisions of this Agreement.
9.3	Disclosure Required by Law. Recipient may disclose Confidential Information to the extent required by law or court order, but must provide Discloser with advance notice to allow Discloser to seek a protective order. Recipient may only disclose the limited Confidential Information required to be disclosed by law or the court order.
9.4	Customer Reference. BMC may refer to Customer as a customer of BMC internally and only in externally published media if agreed to by Customer.
9.5	Suggestions. Customer agrees that BMC shall have a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into any BMC products or services any suggestions, enhancement requests, recommendations or other feedback provided by Customer or Users relating to the Services or Service Items, excluding Customer Data.
10. INDEMNIFICATIONS.
10.1 Indemnification by BMC. If a third party asserts a claim against Customer asserting that Customer’s use of the Services in accordance with this Agreement violates that third-party’s patent, trade secret or copyright rights (“Infringement Claim”), then BMC will, at its own expense: (a) defend or settle the Infringement Claim; and (b) indemnify Customer for any damages finally awarded against Customer based on infringement by the Services. If BMC believes the Services may violate a right, then BMC will, at its expense: (i) modify the Services, or (ii) procure the right to continue using the Services, and if (i) or (ii) are not commercially reasonable, terminate Customer's right to use the Services and issue a pro-rata refund for the unexpired pre-paid portion of such Services.
10.2 Indemnification by Customer. Subject to the terms of this Agreement, if a third party asserts a claim against BMC asserting that (i) Customer Applications, (ii) the Customer Data, or (iii) Customer’s use of the Services in violation of this Agreement violates that third-party’s patent, trade secret or copyright rights, or otherwise harms the third party (“Claims”), Customer will, at its own expense: (a) defend or settle the Claim; and (b) indemnify BMC for any damages finally awarded against BMC based on the Claim.
10.3 Indemnity Process. Neither party’s obligations under this Section will apply if: (a) the indemnifying party’s legal department does not receive prompt, detailed written notice of the Infringement Claim/Claim from the party being indemnified, (b) the indemnifying party is not able to retain sole control of the defense of the Infringement Claim/Claim and all negotiations for its settlement or compromise, (c) the indemnifying party does not receive all reasonable assistance from the party being indemnified. Neither party will bind the indemnified party to a monetary obligation in a settlement or compromise, or make an admission on behalf of the indemnified party, without obtaining that party’s prior consent.
THIS SECTION CONTAINS EACH PARTY'S EXCLUSIVE REMEDIES AND THE INDEMNIFYING PARTY'S SOLE LIABILITY FOR INFRINGEMENT CLAIMS/CLAIMS.
11. LIMITATION OF LIABILITY
11.1 DISCLAIMER OF DAMAGES. EXCEPT FOR A BREACH OF SECTION 3.6, CUSTOMER’S RESPONSIBILITIES IN SECTION 4.12 AND EACH PARTY’S RESPONSIBILITIES IN SECTION 10, NEITHER PARTY OR ITS AFFILIATES ARE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES RELATING TO OR ARISING OUT OF THIS AGREEMENT OR THE SERVICES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST COMPUTER USAGE TIME, AND DAMAGE TO, OR LOSS OF USE OF, DATA), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND IRRESPECTIVE OF ANY NEGLIGENCE OF A PARTY OR WHETHER SUCH DAMAGES RESULT FROM A CLAIM ARISING UNDER TORT OR CONTRACT LAW.
11.2 LIMITS ON LIABILITY. EXCEPT FOR A BREACH OF SECTION 3.6, CUSTOMER’S RESPONSIBILITIES IN SECTION 4.12 AND EACH PARTY’S RESPONSIBILITIES IN SECTION 10, NEITHER PARTY OR ITS AFFILIATES SHALL HAVE AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SERVICES, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEEDING THE AMOUNTS ACTUALLY PAID BY AND DUE FROM CUSTOMER PURSUANT TO THE ORDER(S) GIVING RISE TO LIABILITY.
12. EXPORT CONTROLS. Customer represents and warrants that it: a) will comply with the United States Export Administration Regulations and other U.S. or foreign export regulations; b) no individual accessing or using the Services is a citizen of or from an embargoed country (currently Iran, Syria, Sudan, Cuba and North Korea); c) is not prohibited from receiving the Services under such regulations; d) will not acquire the Services for a person who is restricted under such regulations; e) will not use the Services in contradiction to such regulations; and f) will not use the Services for prohibited uses, including but not limited to nuclear, chemical, missile or biological weapons related end uses. For Services exported from Ireland, EC No. 428/2009 sets up a Community regime for control of exports of dual-use items and technology, and it is declared that this Services is intended for civil purposes only. Therefore, Customer agrees to comply with both the U.S. regulations and those E.U. regulations and will not export in violation of the regulations and without all proper licenses. Any failure to comply with these regulations will result in Customer forfeiting all rights to the Services.
13. SECURITY AND DATA PROTECTION.
13.1 BMC obtains annual third party security audits of the BMC Subscriptions Services (“Security Audit”) and will provide a copy of its most then-recent Security Audit upon Customer’s request, subject to confidentiality requirements.
13.2 BMC will not access Customer Data except as required to provide the Services or at Customer’s specific request. BMC has implemented and will maintain procedures to logically segregate Customer Data. BMC uses industry standard security measures to protect Customer Data.
13.3 Customer is responsible for complying with all legal requirements, including applicable privacy laws and regulations, relating to the collection, use, processing and transfer of Customer Data. BMC and Customer specifically agree that with regard to European Economic Area data protection laws (if applicable), Customer is the ‘data controller’, and BMC is the ‘data processor’. Customer and Third Party Publishers shall agree upon their respective obligations with respect to the processing of personal data by Third Party Publishers as per section 4.1. Each party shall fulfill its respective legal obligations, including but not limited to any approval and/or notification obligations towards national data protection authorities.
13.4 BMC will process Customer Data for the purpose of providing the Services subscribed under this Agreement, in accordance with Customer’s lawful and explicit instructions and with BMC Controller and Processor Binding Corporate Rules Policy found at http://media.cms.bmc.com/documents/External+Privacy+Binding+Coporate+Rules+Policy+-+Aug+04.pdf (the “BCR”) with respect to compliance with data protection laws and/or regulations. The details of the BCR approval of BMC Software, Inc. are available at http://ec.europa.eu/justice/data-protection/international-transfers/binding-corporate-rules/bcr_cooperation/index_en.htm. The BCR policy is incorporated into a BMC corporate wide policy, requiring all BMC entities, employees and third party providers to comply with and respect the BCR policy which is governing the collection, use, access, storage and transfer of Personal Data among BMC entities and third-party sub-processors. In the course of normal business, BMC may collect and process personal information related to Customer (mainly contact and related information) in order to perform its obligations under this Agreement, such information being referred to hereinafter as “Customer Contact Information”. Where the Customer Contact Information is to be processed by BMC, BMC will comply with its BCR.
13.5 BMC takes no responsibility with regard to Customer Data content (i) processed on behalf of Customer and/or handling as per Customer’s instructions and/or (ii) processed by Third Party Publishers and/or through the use by Customer of Third Party Applications. Customer shall indemnify and hold harmless BMC from any failure to comply with its obligations under this Section 13.
13.6 Customer acknowledges and consents that Services provided require Customer Data to be transferred to a country outside of Customer’s country or the country where the Customer Data originated.
13.7 BMC will provide all requested information regarding the processing of Customer’s Data as Customer may reasonably require to enable Customer to comply with data protection laws.
13.8 The processing of Customer Data under this Agreement is further governed by the Data Processing Agreement attached to the applicable Order.
14. VERIFICATION. Customer agrees that BMC may monitor the Services to ensure Customer’s compliance with the terms of this Agreement. If such monitoring reveals that Customer has exceeded the Capacity for the Services, Customer agrees to pay the applicable fees for additional capacity. If Customer to fails to pay fees for such additional capacity, BMC may suspend Customer’s access to the Services until such fees are paid in full.
15. TRIAL LICENSES. BMC may make Services available to Customer on a trial basis without an Order and free of charge under the following terms: Any Services provided as a trial are provided to Customer solely so that Customer may evaluate internally, for no more than a 30 day period, whether to acquire usage rights to such Services for a fee. Such Services (a) are provided “AS IS” without any warranty, service level agreement or support, and (b) cannot be put into productive use or included as part of Customer’s business processes in any manner, unless or until it is expressly licensed and paid for under an Order. BMC may terminate all of Customer’s access, rights and licenses to these Services for BMC’s convenience upon notice to Customer. Upon the earlier of termination of the trial period or this Agreement, all Customer Data input into the Services during the trial period will be deleted. BMC’S ENTIRE LIABILITY FOR DIRECT DAMAGES RELATED TO ANY TRIAL OF THE SERVICES IS LIMITED TO THE GREATER OF THE AMOUNT ACTUALLY PAID BY CUSTOMER FOR SUCH TRIAL OR $100.
16. INSURANCE. Customer will provide and maintain cyber liability insurance in the amount of one million dollars ($1,000,000.00) for losses arising out of Customer’s provision of a Customer Application on the Platform Services under this Agreement.
17. GOVERNING LAW AND DISPUTE RESOLUTION. A party will provide written notice to the other party of any controversy, dispute or claim arising out of or relating to this Agreement, or to the formation, interpretation, breach, termination, or validity thereof (“Controversy”). The parties shall engage in good faith negotiations to resolve the Controversy. Only if the Controversy is not resolved through good faith negotiations within 15 days of the sending of the written notice of Controversy, the Controversy may be submitted to litigation or binding arbitration, based on the place of incorporation of the parties, as follows:
(i) 	If both parties to this Agreement are entities incorporated under the law of any state in the United States, the Controversy shall be tried in either state or federal court located in Houston, Texas and the laws of the State of Texas shall govern. Both sides hereby submit to the exclusive jurisdiction of the courts in Houston, Texas and waive all defenses based on forum non conveniens.
(ii) 	If both parties to this Agreement are entities incorporated in countries in the Europe, Middle East, or Africa regions, the arbitration shall be held in Amsterdam, Netherlands under the then-applicable rules of the International Chamber of Commerce and the substantive laws of the Netherlands will govern.
(iii) 	If both parties to this Agreement are entities incorporated in countries in the Asia Pacific region, the arbitration shall be held in Singapore under the then-applicable rules of the Singapore International Arbitration Centre and the substantive laws of Singapore will govern.
(iv) 	In all other instances, the arbitration shall be held in New York City, New York, under the then-applicable international rules of the American Arbitration Association and the substantive laws of the State of Texas will govern.
For all arbitrations conducted hereunder: (a) the arbitration shall be conducted in English; (b) the relevant arbitral institution shall determine the number of arbitrators, but any Controversy in which the amount in dispute is greater than $10 million USD shall be decided by three arbitrators, with each party having the right to select one arbitrator; (c) the costs of such arbitration shall be borne equally, pending the arbitrator’s award; (d) the arbitration award rendered shall be final and binding on the parties, shall not be subject to appeal to any court and shall be enforceable in any court having jurisdiction over the Parties; (e) the arbitration proceedings, award and pleadings shall all be confidential, unless disclosure of particular information is required for purposes of enforcing/challenging the award or to meet local securities law requirements; and (f) the party prevailing in arbitration shall be entitled to recover its reasonable attorneys’ fees and the necessary costs incurred in connection with the arbitration.
The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. Nothing in this Agreement shall be deemed as preventing either party from seeking immediate injunctive relief from any court having jurisdiction over the parties and the subject matter of the dispute.
18. The following BMC contracting entities apply to this Agreement:
Region | Licensing Entity | Address of Licensing Entity |
---|---|---|
United States and Latin America South (not a specified Central or South America country below) | BMC Software, Inc. | 2103 CityWest Boulevard, Houston, Texas 77042 |
Canada | BMC Software Canada Inc. | 50 Minthorn Boulevard, Suite 200 Markham, Ontario L3T 7X8 Canada |
EMEA (Europe, Middle East and Africa) | BMC Software Distribution B.V. | Boeing Avenue 245, 1119 PD Schiphol Rijk, The Netherlands |
Brazil | BMC Software do Brasil Ltda. | Av. das Nações Unidas, 8.501 – 22º Andar Condomínio Eldorado Business Tower São Paulo, Brasil – 05425-070 |
Mexico | BMC Software Distribution de México, S.A. de C.V. | Torre Esmeralda II Blvd. Manuel Avila, Camacho #36, Piso 23 Lomas de Chapultepec, CP11000, México D.F. |
Argentina | BMC Software de Argentina S.A. | Ing. Butty 220 – Piso 18, Buenos Aires, Republica Argentina, C1001AFB |
S.E.A (Southeast Asia), Australia, New Zealand, Hong Kong, Taiwan | BMC Software Asia Pacific Pte Ltd | 600 North Bridge Road, #20-01/10 Parkview Square, Singapore 188778 |
China | BMC Software (China) Limited | Room 502, Level 5, Tower W1, The Towers, Oriental Plaza, No. 1 East Chang An Ave., Dong Cheng Dist., Beijing 100738, China |
Japan | BMC Software K.K. | Harmony Tower 24th Floor, 1-32-2 Honcho, Nakano-ku, Tokyo, 164-8721 |
Korea | BMC Software Korea Ltd | 24th Fl., ASEM Tower, , 1517, Yeongdong-daero, Gangnam-gu, Seoul 135-798, Korea South |
19. U.S. FEDERAL ACQUISITIONS. This Section applies only to acquisitions of the commercial Services and User Guide subject to this Agreement by or on behalf of the United States Government, or by any prime contractor or subcontractor (at any tier) under any contract, grant, cooperative agreement or other activity with the United States Government. In the event the Services are delivered to the United States Government, the United States Government hereby agrees that the Services qualify as “commercial items” within the meaning of the Federal acquisition regulation(s) applicable to this procurement. The terms and conditions of this Agreement shall pertain to the United States Government’s use and disclosure of the Services, and shall supersede any conflicting contractual terms and conditions. The following additional statement applies only to acquisitions governed by DFARS Subpart 227.4 (October 1988): “Restricted Rights – Use, duplication and disclosure by the Government is subject to restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 (Oct. 1988).”
20. MISCELLANEOUS TERMS. This Agreement contemplates the execution by the parties of one or more Orders, however, neither execution of this Agreement, nor anything contained herein, shall obligate either party to enter into any Orders. BMC is not liable for its failure to perform any of its obligations under this Agreement during any period in which performance is delayed by Customer or circumstances beyond BMC's reasonable control. The parties are independent contractors and this Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties. This Agreement, including any Exhibits and Orders constitutes the entire agreement between Customer and BMC and supersedes any prior or contemporaneous negotiations or agreements, whether oral or written concerning the Services. There are no representations, promises, warranties, covenants, or undertakings between the parties other than those expressly set forth in this Agreement. There are no third party beneficiaries to this Agreement; Customer is not entering into a contractual relationship with BMC’s licensors and BMC’s licensors have no liability to Customer. No modification or waiver of any provision hereof will be effective unless made in a writing signed by both BMC and Customer. Customer may not assign or transfer this Agreement or the Services to a third party, whether by merger or otherwise. Should any provision of this Agreement be invalid or unenforceable, the remainder of the provisions will remain in effect. Any additional or conflicting terms of any Customer purchase order are rejected by BMC and do not apply. Any additional documents presented to a BMC representative by Customer for signature as a condition for going on a Customer’s site will be governed by this Agreement and to the extent that such document presents additional terms or conflicts with this Agreement, it shall be considered null and void. The Services may contain hyperlinks to websites controlled by parties other than BMC. BMC is not responsible for and does not endorse the content or accept any responsibility for Customer’s use of these websites. Customer should refer to the policies posted by other websites regarding data privacy and other topics before using them.
EXHIBIT A
Service Level Agreement
Availability
BMC will use commercially reasonable efforts to make the Services available at least 99.9% of the time, except as provided below (“Service Commitment”). This Service Commitment is not applicable to Customer Applications or Third Party Applications. Availability will be calculated per month, as follows:
(Service Time – Non-excluded Downtime – Excluded Downtime)/(Service Time – Excluded Downtime) x 100
Definitions
“Service Time” is the total minutes for a given calendar month.
“Excluded Downtime” is all unavailability caused by (1) scheduled or mutually agreed upon downtime to perform routine, non-emergency or emergency maintenance on the Services; (2) downtime on nonproduction systems; (3) factors outside of BMC’s reasonable control, including any force majeure event, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving BMC employees), or Internet service provider or power failures or delays; (4) failure of Customer’s Internet access or related problems; (5) Customer’s equipment, software, including but not limited to Customer Applications, or other technology and/or third party equipment, software, including but not limited to Third Party Applications, or other technology (other than third party equipment within BMC’s direct control); (6) actions or inactions of Customer or any third party; or (7) service suspensions or termination of Customer’s right to use the Services in accordance with the Agreement.
“Non-excluded Downtime” is all downtime that is not Excluded Downtime.
Service Credits
In the event BMC does not meet the Service Commitment, Customer will be eligible to receive a Service Credit as described below. Service Credits are calculated in accordance with the table below as a percentage of the total subscription charges paid by Customer for Services for the month in which BMC does not meet the Service Commitment.
Monthly Availability Percentage | Service Credit Calculation |
Below 99.9% | 1 minute of credit based on monthly subscription charges for every 1 minute below the Service Commitment |
Service Credits will be applied against Customer’s next invoice. A Service Credit will be applicable and issued only if the credit amount is greater than $1 USD. Service Credits may not be transferred or applied to any other BMC service or account. Customer’s sole and exclusive remedy for any unavailability or non-performance of the Services or other failure by BMC to provide the Services is the receipt of a Service Credit (if eligible) in accordance with the terms of this Exhibit A. Upon expiration or non-renewal of this Agreement and/or the applicable Order, all Service Credits will be forfeited (for example, if the Non-excluded Downtime occurs in the last month of the Order term and Customer does not renew, then the Service Credit is forfeited).
Credit Request and Payment Procedures
BMC will provide Customer with a monthly availability report. To receive a Service Credit, Customer must submit a request by sending an e-mail message to SLArequest@bmc.com. To be eligible, the credit request must (i) include Customer’s account number in the subject of the e-mail message; (ii) include, in the body of the e-mail either the BMC-provided monthly availability report, or, the dates and times of each incident of Non-excluded Downtime that Customer claims to have experienced; and (iii) be received by BMC within 30 days after the end of the month in which the Downtime occurred. If the Monthly Availability Percentage applicable to the month of such request is confirmed by BMC and is less than the Monthly Availability Percentage, then BMC will confirm the Service Credit to Customer within 15 days of receipt of the Service Credit request. Customer’s failure to provide the request and other information as required above will disqualify Customer from receiving a Service Credit.
Effective September 7th 2017 to October 6th 2017
DownloadTable of Contents
BMC INNOVATION SUITE AND APPLICATIONS AGREEMENT
THIS BMC INNOVATION SUITE AND APPLICATIONS AGREEMENT (“AGREEMENT”) GOVERNS YOUR PURCHASE AND ONGOING USE OF THE BMC APPLICATION SERVICES AND THE PLATFORM SERVICES (“SERVICES”).
BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
You may not access the Services if you are BMC’s direct competitor, except with BMC’s prior written consent. In addition, you may not access the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.
This Agreement was last updated on August 1, 2017. This Agreement is between the entity or individual entering into this Agreement (“Customer”) and the BMC Contracting Entity for the applicable region as described in Section 18 (“BMC”). It is effective between Customer and BMC as of the date of your acceptance of this Agreement (“Effective Date”).
1. SCOPE. Subject to the terms of this Agreement, BMC will provide Customer with access to the Service named in the applicable Order. Customer may only use the Services to store, retrieve, query, serve, and process Customer Data that is owned, licensed or lawfully obtained by Customer. As part of Customer’s subscription to the Platform Services, Customer may be allowed to run certain Applications on the Platform Services that are either (i) sold by BMC, (ii) sold by a Third Party Publisher, or (iii) owned or licensed by Customer. Each Order is deemed to be a discrete contract, separate from each other Order, unless expressly stated otherwise therein, and in the event of a direct conflict between any Order and the terms of this Agreement, the terms of the order will control only if the Order is executed by an authorized representative of each party. Orders may be entered under this Agreement by and between (a) BMC or an Affiliate of BMC; and (b) Customer or an Affiliate of Customer. With respect to an Order, the terms “BMC” and “Customer” as used in this Agreement will be deemed to refer to the entities that execute that Order, the Order will be considered a two party agreement between such entities, and BMC will separately invoice the Customer named in the Order for the associated fees. Orders may also be placed via a BMC authorized reseller of the Services.
2. DEFINITIONS.
2.1 “Affiliate” is an entity that controls, is controlled by or shares common control with BMC or Customer, where such control arises from either (a) a direct or indirect ownership interest of more than 50% or (b) the power to direct or cause the direction of the management and policies, whether through the ownership of voting stock by contract, or otherwise, equal to that provided by a direct or indirect ownership of more than 50%.
2.2	“Application” is the object code, its definitional structures, and data created to fulfill a particular purpose, which runs on the Platform Services. An Application may also include its documentation and User Guide.
2.3	“BMC Application Services” means an Application that is licensed by BMC to customers, including all items delivered by BMC to Customer under Support related to such Application.
2.4	“Capacity” means the amount of access to the Services purchased as specified in an Order, which is counted in accordance with the Unit of Measure described in the Order.
2.5	“Customer Applications” means Applications that are owned or licensed by Customer, not including any Third Party Applications, and which run on the Platform Services.
2.6	“Customer Data” means all information uploaded or entered by Customer to the Services, excluding Customer Applications.
2.6	“Data Processing Agreement” means the applicable Data Processing Agreement attached to each Order.
2.7	“Order” means (i) the agreed ordering document for the purchase of the Services (including the applicable Data Processing Agreement), (ii) that is subject to this Agreement, and (iii) that identifies the particulars of the purchase, Service being ordered and fees to be paid.
2.8	“Platform Services” means the BMC Innovation Suite and its capabilities to run Applications. The specific Platform Services being purchased by Customer will be identified in the Order.
2.9	“Third Party Applications” means Applications that are owned by a Third Party Publisher with a valid independent software vendor agreement in place with BMC, and are licensed by said Third Party Publisher to customers.
2.10	“Third Party Publisher” means a party other than BMC or a BMC Affiliate that is the owner and licensor of a Third Party Application, and has a valid independent software vendor agreement in place with BMC. For the sake of clarity, Customer is informed that Third Party Publishers are not BMC Subcontractors.
2.11	“User Guide” means the online documentation for the Service, which includes functional guides and technical specifications, as updated by BMC from time to time.
3.	BMC SERVICES.
3.1	Access Rights. Subject to the terms of this Agreement, BMC hereby grants to Customer a worldwide, non-exclusive, non-transferable, non-sublicenseable, limited license to access and use the Service (i) up to the Capacity, (ii) for Customer’s and its Affiliates’ internal business operations, and (iii) in accordance with the User Guide and the applicable Order.
3.2	BMC Services Support. BMC will provide support to Customer for the Services as described on http://www.bmc.com/support (“Support”), which may be changed by BMC at any time. BMC will provide Support only for Platform Services and BMC Application Services. Customer is responsible for its own support for Customer Applications and Third Party Applications.
3.3	Notifications to Customer. Any general notifications from BMC Operations to Customer will be sent to the Customer contact stated in the Customer Information (ship to) section of the Order. The Customer contact in the Order has been assigned by Customer as the Customer contact for operational issues that may arise. Customer shall notify BMC of any change to the Customer contact details in writing, which may include via e-mail.
3.4	Customer Data Back-up and Recovery. BMC provides daily incremental and weekly full system backups of the production environment in a secure off-site facility within the same country as the primary facility, using a 90 day retention window for data recovery purposes.
3.5	Use of Subcontractors. Customer acknowledges and agrees that BMC uses subcontractors to provide portions of the Services. BMC will provide a list of its current subcontractors upon Customer’s written request. BMC is responsible for the performance of all subcontractors providing any of the Services. For the sake of clarity, Customer is informed that Third Party Publishers are not BMC Subcontractors.
3.6	Customer Responsibilities.
(a) Customer will maintain the confidentiality of all authentications and passwords for the Services and immediately notify BMC if it becomes aware that an unauthorized party has gained access to the Services. Customer will be responsible for use of the Services by its employees, consultants, contractors, agents, and Affiliates (all, “Users”) in compliance with this Agreement. Customer will (i) use reasonable efforts to prevent unauthorized access to, or use of, the Services, and notify BMC promptly of any such unauthorized access or use, and (ii) comply with all applicable laws in using the Services. Customer is responsible for the creation and implementation of a privacy policy and end user license agreement, if applicable, which will set forth the guidelines of how Customer uses and protects the data and personal information of its Users, and how said Users may utilize the Services.
(b) Customer may not (i) modify, copy or create derivative works based on the Services; (ii) create Internet “links” to or reproduce any content forming part of the Services, other than for its own internal business purposes; (iii) disassemble, reverse engineer, or decompile the Services or part thereof, or access it in order to copy any ideas, features, content, functions or graphics of the Services; (iv) distribute, rent, lease, sublicense or provide the Services to any third party or use it in a service bureau, outsourcing environment, or for the processing third party data; (v) interfere with or disrupt the integrity or performance of the Services (e.g., load, performance, or stress testing); (vi) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortuous material, or send or store material in violation of any third party’s privacy rights via the Services; (vii) send or store viruses or malicious code via the Services; (viii) attempt to gain unauthorized access to the Services or its related software, systems, platforms or networks including any form of security and/or penetration testing; (ix) use any components provided with the Services separately from the Services; (x) transfer an Application outside of the Platform Services; or (xi) tamper with or circumvent any controls or make unauthorized copies of an Application.
4.	CUSTOMER APPLICATIONS AND THIRD PARTY APPLICATIONS.
4.1	Any Third Party Applications or Customer Applications that run on the Platform Services are hereby excluded from the defined terms “Services”, “BMC Application Services” and “Platform Services”. Such Third Party Applications are governed by the terms provided with the Third Party Applications, and are by and between Customer and the applicable Third Party Publisher. Customer acknowledges and agrees that this Agreement does not govern Customer’s subscription, use and access of any Third Party Applications or Customer Applications, and said Third Party Applications and Customer Applications are specifically excluded from this Agreement.
4.2	Customer may utilize the BMC Innovation Suite for Developers to create an Application to run on the Platform Services. Customer’s use of the BMC Innovation Suite for Developers is exclusively governed by the BMC Developer Program Agreement, a copy of which may be viewed at http://media.cms.bmc.com/documents/DVA.pdf, and such use is not governed by the terms of this Agreement. Customer’s development of an Application must meet the best practices development guidelines set forth in the User Guide. Each Customer Application shall at all times materially conform to policies and best practices set forth in the User Guide. Prior to the deployment of any Customer Applications in a production or non-production environment of the Platform Services, Customer must conduct security and functional tests of each Customer Application and submit the results of such tests to BMC for review. BMC reserves the right to reject Customer’s deployment request of a Customer Application based on the results of Customer’s security and functional tests. Additionally, BMC reserves the right, during the term of this Agreement, to request Customer conduct additional security and functional tests and provide the results of said tests to BMC for review. Notwithstanding the foregoing, Customer must ensure that at all times Customer Applications are secure.
4.3	License to Customer Applications. Subject to the terms and conditions of this Agreement, Customer hereby grants BMC a worldwide, limited, nonexclusive license during the term of the applicable Order for the Platform Services to host, copy, transmit, adapt and display Customer Applications solely for the purpose of fulfilling BMC’s obligations under this Agreement.
4.4	Functionality of Customer Applications. Customer is solely responsible for the operation of Customer Applications, including but not limited to any information stored in or transmitted by Customer Applications. Customer is responsible for monitoring the usage of each Customer Application. Customer is responsible for the configuration, functionality, performance, compliance with applicable data protection laws and security of all Customer Applications, including any interfaces used to connect to Customer Applications.
4.5	Use of Customer Applications. Customer has sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of Customer Applications and all Customer Data entered therein by Customer, its Users or on Customer’s behalf, the means by which Customer acquired such Customer Data, and the use of such Customer Data. Without limiting Customer’s obligations under the terms of this Agreement, Customer must (i) provide any necessary notice to, and obtain any necessary consent from, Users for the collection, use, transfer, and storage of Customer Data (including by BMC), and (b) collect, use, transfer, and store Customer Data in accordance with any privacy notice you provide, and all applicable laws.
4.6	Use of Third Party Applications. Customer is responsible for monitoring its usage of each Third Party Application, and such Third Party Publisher’s usage and license compliance is governed by the terms of the agreement entered into between Customer and the Third Party Publisher. Customer is responsible for all applicable fees associated with Customer’s use of Third Party Applications. Please note, Customer’s usage of such Third Party Applications may incur additional license fees between Customer and the applicable Third Party Publisher, as well as additional Platform Services fees.
4.7	Customer will provide information or other materials related to a Customer Applications as reasonably requested by BMC to verify Customer’s compliance with the Agreement and the User Guide. BMC may monitor Customer Applications and Third Party Applications running on the Platform Services to verify Customer’s compliance with the Agreement. Customer will not block or interfere with BMC’s monitoring. Customer will cooperate with BMC to identify the source of any problem with the Services that BMC reasonably believes may be attributable to Customer Applications or Third Party Applications, or any Customer Data.
4.8	If BMC reasonably believes any Customer Data, Customer Applications or Third Party Applications violates the law, infringes or misappropriates the rights of any third party or otherwise violates a material term of the Agreement (including the User Guide) (“Prohibited Content”), BMC will notify Customer of the Prohibited Content and may request that such content be removed from the Services or access to it be disabled. If Customer does not remove or disable access to the Prohibited Content within two (2) business days of BMC’s notice, BMC may remove or disable access to the Prohibited Content or suspend the Services to the extent BMC is not able to remove or disable access to the Prohibited Content. Notwithstanding the foregoing, BMC may remove or disable access to any Prohibited Content without prior notice in connection with illegal content, where the content may disrupt or threaten the Services, pursuant to the Digital Millennium Copyright Act or as required to comply with law or any judicial, regulatory or other governmental order or request. In the event that BMC removes content without prior notice, BMC will provide prompt notice to Customer unless prohibited by law.
4.9	Customer’s use of the Platform Services, BMC Application Services, Customer Applications and/or Third Party Applications may be immediately suspended and/or terminated due to (i) reasonable security threats regarding the Services, Customer Applications or Third Party Applications, (ii) Customer Applications or Third Party Applications interfering with, disrupting or threatening the integrity or performance of the Services, or (iii) a third party’s claim that Customer Applications or Third Party Applications may violate applicable law or third party rights. In the event of (i) or (ii) above apply to Customer Applications, Customer is required to remediate any such issue to BMC’s commercially reasonable satisfaction before use of Customer Applications can resume.
4.10	Customer’s access to Third Party Applications may be immediately suspended and/or terminated by BMC at the direction of the Third Party Publisher. Customer acknowledges and understands that access to Customer Applications and/or Third Party Applications used in connection with the Platform Services may be suspended due to Customer’s non-payment to BMC for use and access to the Platform Services or other breach of this Agreement. In no case will any such suspension or termination under the terms of this Agreement give rise to any BMC liability to Customer for a refund or other compensation.
4.11	BMC may conduct periodic security evaluations of all Customer Applications, which may include security review, a qualitative assessment involving review of a completed questionnaire, and an interview with appropriate Customer personnel. BMC conducts such security evaluations for its own benefit and Customer may not rely on the successful results of such evaluation. BMC may conduct such testing itself or, subject to the confidentiality obligations set forth in Section 9 (Mutual Confidentiality), through a third party. BMC will provide reasonable notice to Customer before starting such testing. BMC will also cooperate reasonably with Customer to minimize the effects of such testing on Customer’s business and operations. Customer agrees to cooperate reasonably with such testing. Despite the foregoing, such testing may in rare cases cause downtime or other adverse effects on Customer Applications or other Services used by Customer. Any nonpublic information to which BMC obtains access in the course of such security testing will be considered Customer’s Confidential Information.
4.12	Customer Responsibilities. Customer will maintain the confidentiality of all authentications and passwords for the Platform Services, Customer Applications and Third Party Applications, and immediately notify BMC if it becomes aware that an unauthorized party has gained access to such Platform Services, Customer Applications and Third Party Applications. Customer will (i) use reasonable efforts to prevent unauthorized access to, or use of, Customer Applications and Third Party Applications, and notify BMC promptly of any such unauthorized access or use, and (ii) comply with all applicable laws in using the Customer Applications and Third Party Applications. Customer is responsible for the creation and implementation of a privacy policy and end user license agreement, if applicable, which will set forth the guidelines of how said Users may utilize the Customer Applications.
5.	WARRANTIES.
5.1 BMC warrants to Customer that:
(a) the online availability of the Services will be maintained in accordance with the service levels set forth in the applicable Exhibit A (the “Service Level Agreement” or “SLA”). Customer’s exclusive remedy and BMC’s sole obligation for breach of the warranty in this Section 5.1(a) is described in the Service Level Agreement; and
(b) the Services (i) will perform in substantial accordance with the then-current on-line User Guide available via the Services and (ii) will be performed in a manner consistent with industry standards reasonably applicable to the provision thereof. Customer’s exclusive remedy and BMC’s sole obligation for breach of the warranty in this Section 5.1(b) will be BMC’s use of commercially reasonable efforts to have the Services perform in substantial accordance with the User Guide, or replace the non-conforming portion of the Services within a reasonable period of time, or if BMC cannot have the Services perform in substantial accordance with the User Guide or replace the Services within such time period, then BMC will refund the amount paid by Customer for the Services, pro-rated from the date of the notice of the claim. Customer’s rights and BMC’s obligations in this Section 5.1(b) are conditioned upon Customer’s providing BMC with written notice of the claim, a complete description of the alleged defects and a specific reference to the User Guide to which such alleged defects are contrary.
5.2 Customer warrants to BMC that: (a) each Customer Application will perform materially in accordance with the User Guide; (b) Customer owns all right, title, and interest in and to Customer Data, including but not limited to any Customer Data uploaded or entered into Customer Applications or Third Party Applications; (c) Customer has the necessary rights to use and access any Customer Applications and Third Party Applications deployed in a production or non-production environment of the Platform Services; (d) Customer has all rights in the Customer Data and Customer Applications necessary to grant the rights contemplated by this Agreement; (e) none of the Customer Data or Customer Applications or Users’ use of Customer Data or Customer Applications will violate the Agreement and the User Guide; (f) Customer’s security and functional tests of Customer Applications was conducted in a commercially reasonable manner and the results of said tests provided to BMC for review are correct and valid; and (g) none of the Third Party Applications or Users’ use of Third Party Applications will violate the Agreement or the User Guide.
5.3 Disclaimer. CUSTOMER ACKNOWLEDGES THAT, EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, BMC, ITS AFFILIATES AND LICENSORS MAKE NO WARRANTY, EXPRESS, IMPLIED OR STATUTORY WITH RESPECT TO THE SERVICES OR USE THEREOF. BMC, ITS AFFILIATES AND LICENSORS HEREBY EXPRESSLY DISCLAIM ALL OTHER WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY THAT SERVICES WILL BE UNINTERRUPTED, ERROR FREE OR WITHOUT DELAY, AND THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INTERFERENCE, NON-INFRINGEMENT AND INFORMATION CONTENT.
6.	FEES AND PAYMENT. The fees payable for the Services will be set forth in the Order. The fees will be invoiced in accordance with the relevant Order and are due upon receipt of invoice. Customer will pay or reimburse BMC or, when required by law, the appropriate governmental agency, for taxes of any kind, including sales, use, VAT, excise, customs duties, withholding, property, and other similar taxes (other than taxes based on BMC’s net income or arising from the employment relationship between BMC and its personnel) imposed in connection with the fees paid for the Services, which are exclusive of these taxes.
7.	TERM AND TERMINATION.
7.1	Term.
(a) Agreement. This Agreement begins on the Effective Date and will remain in effect unless terminated pursuant to Section 7.2 below.
(b) 	Order(s). Each Order begins on the start date specified in the relevant Order and continues for the term specified therein.
7.2	Termination.
(a) Termination for Convenience. Upon 30 days advance written notice, either party may terminate this Agreement for its convenience; however, such termination will have no effect on Orders executed by the parties prior to its effective date, including but not limited to payment obligations contained therein, and such Orders will remain in full force and effect under the terms of this Agreement for the term specified therein. Orders may not be terminated for convenience unless otherwise specified therein.
(b) Termination for Cause. Either party may terminate this Agreement for cause: (i) upon 30 days written notice of a breach to the other party if such breach remains uncured at the expiration of such period; or (ii) immediately upon material breach by the other party; or (iii) immediately if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
7.3	Effects of Termination for Cause. Subject to Section 7.2(a), upon termination or expiration, all Orders terminate and the Services purchased pursuant to such Orders terminate and Customer will make no further use of the Services. No termination will relieve the Customer of the obligation to pay any fees accrued or payable to BMC.
7.4	Termination Assistance. Upon written request by Customer made within 30 days after the effective date of termination, BMC will make available to Customer the Customer Data stored in the Services in database backup format. After such 30 day period, BMC shall have no obligation to maintain or provide any Customer Data and will thereafter, unless legally prohibited, delete Customer Data from the Services.
8. PROPRIETARY RIGHTS.
8.1 Reservation of Rights. BMC, its Affiliates or licensors retain all right, title and interest to the Services and all related software, programming, documentation, templates, questionnaires, methodologies, models, charts, specifications, reports, and any other intellectual property or items used to deliver the Services or made available to Customer as a result of the Services (“Service Items”). The Services and Service Items are protected by applicable copyright, trade secret, industrial and other intellectual property laws and rights under such laws (“IPRs”). As between Customer and BMC, BMC owns all rights, title, and interest in all Services, Service Items, and IPRs, and Customer’s access and use of Services, Service Items, and IPRs shall be governed by the terms of this Agreement. BMC reserves any rights not expressly granted to Customer. Customer shall not access the Services in order to build a competitive product or service or copy any ideas, features, functions or graphics of the Services.
8.2 Customer Data. As between BMC and Customer, (i) Customer owns all right, title and interest in and to the Customer Data; and (ii) Customer is responsible for all content, accuracy, quality and legality of Customer Data. BMC will use the Customer Data only as necessary to provide the Services in accordance with this Agreement. At any time during the term of the Services, Customer may request copies of all Customer Data from the Services. Customer is responsible for loading and/or transferring Customer Data into the Services and for ensuring that such transfer is completed.
9. MUTUAL CONFIDENTIALITY.
9.1 Confidential Information” means all proprietary or confidential information that is disclosed to the recipient (“Recipient”) by the discloser (“Discloser”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, and specifically includes Customer Data, Customer Applications, the Services, Service Items and any and all information relating to products or services provided by a Discloser, its customer-related and financial information, software code, flow charts, techniques, specifications, development and marketing plans, strategies, and forecasts. Confidential Information does not include information that Recipient can show: (a) was rightfully in Recipient’s possession without any obligation of confidentiality before receipt from the Discloser; (b) is or becomes a matter of public knowledge through no fault of Recipient; (c) is rightfully received by Recipient from a third party without violation of a duty of confidentiality; or (d) is or was independently developed by or for Recipient without reference to Discloser’s Confidential Information.
9.2 Confidentiality Obligation. Recipient may not disclose Confidential Information of Discloser to any third party or use the Confidential Information in violation of this Agreement. Recipient (i) will exercise the same degree of care and protection with respect to the Confidential Information of the Discloser that it exercises with respect to its own Confidential Information (but in no event less than reasonable care) and (ii) will not, either directly or indirectly, disclose, copy, distribute, republish, or allow any third party to have access to any Confidential Information of the Discloser. Notwithstanding the foregoing, Recipient may disclose Discloser’s Confidential Information to Recipient’s employees, contractors and agents who have the need to know provided that such employees and agents have legal obligations of confidentiality substantially the same (and in no case less protective) as the provisions of this Agreement.
9.3	Disclosure Required by Law. Recipient may disclose Confidential Information to the extent required by law or court order, but must provide Discloser with advance notice to allow Discloser to seek a protective order. Recipient may only disclose the limited Confidential Information required to be disclosed by law or the court order.
9.4	Customer Reference. BMC may refer to Customer as a customer of BMC internally and only in externally published media if agreed to by Customer.
9.5	Suggestions. Customer agrees that BMC shall have a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into any BMC products or services any suggestions, enhancement requests, recommendations or other feedback provided by Customer or Users relating to the Services or Service Items, excluding Customer Data.
10. INDEMNIFICATIONS.
10.1 Indemnification by BMC. If a third party asserts a claim against Customer asserting that Customer’s use of the Services in accordance with this Agreement violates that third-party’s patent, trade secret or copyright rights (“Infringement Claim”), then BMC will, at its own expense: (a) defend or settle the Infringement Claim; and (b) indemnify Customer for any damages finally awarded against Customer based on infringement by the Services. If BMC believes the Services may violate a right, then BMC will, at its expense: (i) modify the Services, or (ii) procure the right to continue using the Services, and if (i) or (ii) are not commercially reasonable, terminate Customer's right to use the Services and issue a pro-rata refund for the unexpired pre-paid portion of such Services.
10.2 Indemnification by Customer. Subject to the terms of this Agreement, if a third party asserts a claim against BMC asserting that (i) Customer Applications, (ii) the Customer Data, or (iii) Customer’s use of the Services in violation of this Agreement violates that third-party’s patent, trade secret or copyright rights, or otherwise harms the third party (“Claims”), Customer will, at its own expense: (a) defend or settle the Claim; and (b) indemnify BMC for any damages finally awarded against BMC based on the Claim.
10.3 Indemnity Process. Neither party’s obligations under this Section will apply if: (a) the indemnifying party’s legal department does not receive prompt, detailed written notice of the Infringement Claim/Claim from the party being indemnified, (b) the indemnifying party is not able to retain sole control of the defense of the Infringement Claim/Claim and all negotiations for its settlement or compromise, (c) the indemnifying party does not receive all reasonable assistance from the party being indemnified. Neither party will bind the indemnified party to a monetary obligation in a settlement or compromise, or make an admission on behalf of the indemnified party, without obtaining that party’s prior consent.
THIS SECTION CONTAINS EACH PARTY'S EXCLUSIVE REMEDIES AND THE INDEMNIFYING PARTY'S SOLE LIABILITY FOR INFRINGEMENT CLAIMS/CLAIMS.
11. LIMITATION OF LIABILITY
11.1 DISCLAIMER OF DAMAGES. EXCEPT FOR A BREACH OF SECTION 3.6, CUSTOMER’S RESPONSIBILITIES IN SECTION 4.12 AND EACH PARTY’S RESPONSIBILITIES IN SECTION 10, NEITHER PARTY OR ITS AFFILIATES ARE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES RELATING TO OR ARISING OUT OF THIS AGREEMENT OR THE SERVICES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST COMPUTER USAGE TIME, AND DAMAGE TO, OR LOSS OF USE OF, DATA), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND IRRESPECTIVE OF ANY NEGLIGENCE OF A PARTY OR WHETHER SUCH DAMAGES RESULT FROM A CLAIM ARISING UNDER TORT OR CONTRACT LAW.
11.2 LIMITS ON LIABILITY. EXCEPT FOR A BREACH OF SECTION 3.6, CUSTOMER’S RESPONSIBILITIES IN SECTION 4.12 AND EACH PARTY’S RESPONSIBILITIES IN SECTION 10, NEITHER PARTY OR ITS AFFILIATES SHALL HAVE AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SERVICES, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEEDING THE AMOUNTS ACTUALLY PAID BY AND DUE FROM CUSTOMER PURSUANT TO THE ORDER(S) GIVING RISE TO LIABILITY.
12. EXPORT CONTROLS. Customer represents and warrants that it: a) will comply with the United States Export Administration Regulations and other U.S. or foreign export regulations; b) no individual accessing or using the Services is a citizen of or from an embargoed country (currently Iran, Syria, Sudan, Cuba and North Korea); c) is not prohibited from receiving the Services under such regulations; d) will not acquire the Services for a person who is restricted under such regulations; e) will not use the Services in contradiction to such regulations; and f) will not use the Services for prohibited uses, including but not limited to nuclear, chemical, missile or biological weapons related end uses. For Services exported from Ireland, EC No. 428/2009 sets up a Community regime for control of exports of dual-use items and technology, and it is declared that this Services is intended for civil purposes only. Therefore, Customer agrees to comply with both the U.S. regulations and those E.U. regulations and will not export in violation of the regulations and without all proper licenses. Any failure to comply with these regulations will result in Customer forfeiting all rights to the Services.
13. SECURITY AND DATA PROTECTION.
13.1 BMC obtains annual third party security audits of the BMC Subscriptions Services (“Security Audit”) and will provide a copy of its most then-recent Security Audit upon Customer’s request, subject to confidentiality requirements.
13.2 BMC will not access Customer Data except as required to provide the Services or at Customer’s specific request. BMC has implemented and will maintain procedures to logically segregate Customer Data. BMC uses industry standard security measures to protect Customer Data.
13.3 Customer is responsible for complying with all legal requirements, including applicable privacy laws and regulations, relating to the collection, use, processing and transfer of Customer Data. BMC and Customer specifically agree that with regard to European Economic Area data protection laws (if applicable), Customer is the ‘data controller’, and BMC is the ‘data processor’. Customer and Third Party Publishers shall agree upon their respective obligations with respect to the processing of personal data by Third Party Publishers as per section 4.1. Each party shall fulfill its respective legal obligations, including but not limited to any approval and/or notification obligations towards national data protection authorities.
13.4 BMC will process Customer Data for the purpose of providing the Services subscribed under this Agreement, in accordance with Customer’s lawful and explicit instructions and with BMC Controller and Processor Binding Corporate Rules Policy found at http://media.cms.bmc.com/documents/External+Privacy+Binding+Coporate+Rules+Policy+-+Aug+04.pdf (the “BCR”) with respect to compliance with data protection laws and/or regulations. The details of the BCR approval of BMC Software, Inc. are available at http://ec.europa.eu/justice/data-protection/international-transfers/binding-corporate-rules/bcr_cooperation/index_en.htm. The BCR policy is incorporated into a BMC corporate wide policy, requiring all BMC entities, employees and third party providers to comply with and respect the BCR policy which is governing the collection, use, access, storage and transfer of Personal Data among BMC entities and third-party sub-processors. In the course of normal business, BMC may collect and process personal information related to Customer (mainly contact and related information) in order to perform its obligations under this Agreement, such information being referred to hereinafter as “Customer Contact Information”. Where the Customer Contact Information is to be processed by BMC, BMC will comply with its BCR.
13.5 BMC takes no responsibility with regard to Customer Data content (i) processed on behalf of Customer and/or handling as per Customer’s instructions and/or (ii) processed by Third Party Publishers and/or through the use by Customer of Third Party Applications. Customer shall indemnify and hold harmless BMC from any failure to comply with its obligations under this Section 13.
13.6 Customer acknowledges and consents that Services provided require Customer Data to be transferred to a country outside of Customer’s country or the country where the Customer Data originated.
13.7 BMC will provide all requested information regarding the processing of Customer’s Data as Customer may reasonably require to enable Customer to comply with data protection laws.
13.8 The processing of Customer Data under this Agreement is further governed by the Data Processing Agreement attached to the applicable Order.
14. VERIFICATION. Customer agrees that BMC may monitor the Services to ensure Customer’s compliance with the terms of this Agreement. If such monitoring reveals that Customer has exceeded the Capacity for the Services, Customer agrees to pay the applicable fees for additional capacity. If Customer to fails to pay fees for such additional capacity, BMC may suspend Customer’s access to the Services until such fees are paid in full.
15. TRIAL LICENSES. BMC may make Services available to Customer on a trial basis without an Order and free of charge under the following terms: Any Services provided as a trial are provided to Customer solely so that Customer may evaluate internally, for no more than a 30 day period, whether to acquire usage rights to such Services for a fee. Such Services (a) are provided “AS IS” without any warranty, service level agreement or support, and (b) cannot be put into productive use or included as part of Customer’s business processes in any manner, unless or until it is expressly licensed and paid for under an Order. BMC may terminate all of Customer’s access, rights and licenses to these Services for BMC’s convenience upon notice to Customer. Upon the earlier of termination of the trial period or this Agreement, all Customer Data input into the Services during the trial period will be deleted. BMC’S ENTIRE LIABILITY FOR DIRECT DAMAGES RELATED TO ANY TRIAL OF THE SERVICES IS LIMITED TO THE GREATER OF THE AMOUNT ACTUALLY PAID BY CUSTOMER FOR SUCH TRIAL OR $100.
16. INSURANCE. Customer will provide and maintain cyber liability insurance in the amount of one million dollars ($1,000,000.00) for losses arising out of Customer’s provision of a Customer Application on the Platform Services under this Agreement.
17. GOVERNING LAW AND DISPUTE RESOLUTION. A party will provide written notice to the other party of any controversy, dispute or claim arising out of or relating to this Agreement, or to the formation, interpretation, breach, termination, or validity thereof (“Controversy”). The parties shall engage in good faith negotiations to resolve the Controversy. Only if the Controversy is not resolved through good faith negotiations within 15 days of the sending of the written notice of Controversy, the Controversy may be submitted to litigation or binding arbitration, based on the place of incorporation of the parties, as follows:
(i) 	If both parties to this Agreement are entities incorporated under the law of any state in the United States, the Controversy shall be tried in either state or federal court located in Houston, Texas and the laws of the State of Texas shall govern. Both sides hereby submit to the exclusive jurisdiction of the courts in Houston, Texas and waive all defenses based on forum non conveniens.
(ii) 	If both parties to this Agreement are entities incorporated in countries in the Europe, Middle East, or Africa regions, the arbitration shall be held in Amsterdam, Netherlands under the then-applicable rules of the International Chamber of Commerce and the substantive laws of the Netherlands will govern.
(iii) 	If both parties to this Agreement are entities incorporated in countries in the Asia Pacific region, the arbitration shall be held in Singapore under the then-applicable rules of the Singapore International Arbitration Centre and the substantive laws of Singapore will govern.
(iv) 	In all other instances, the arbitration shall be held in New York City, New York, under the then-applicable international rules of the American Arbitration Association and the substantive laws of the State of Texas will govern.
For all arbitrations conducted hereunder: (a) the arbitration shall be conducted in English; (b) the relevant arbitral institution shall determine the number of arbitrators, but any Controversy in which the amount in dispute is greater than $10 million USD shall be decided by three arbitrators, with each party having the right to select one arbitrator; (c) the costs of such arbitration shall be borne equally, pending the arbitrator’s award; (d) the arbitration award rendered shall be final and binding on the parties, shall not be subject to appeal to any court and shall be enforceable in any court having jurisdiction over the Parties; (e) the arbitration proceedings, award and pleadings shall all be confidential, unless disclosure of particular information is required for purposes of enforcing/challenging the award or to meet local securities law requirements; and (f) the party prevailing in arbitration shall be entitled to recover its reasonable attorneys’ fees and the necessary costs incurred in connection with the arbitration.
The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. Nothing in this Agreement shall be deemed as preventing either party from seeking immediate injunctive relief from any court having jurisdiction over the parties and the subject matter of the dispute.
18. The following BMC contracting entities apply to this Agreement:
Region | Licensing Entity | Address of Licensing Entity |
---|---|---|
United States and Latin America South (not a specified Central or South America country below) | BMC Software, Inc. | 2103 CityWest Boulevard, Houston, Texas 77042 |
Canada | BMC Software Canada Inc. | 50 Minthorn Boulevard, Suite 200 Markham, Ontario L3T 7X8 Canada |
EMEA (Europe, Middle East and Africa) | BMC Software Distribution B.V. | Boeing Avenue 245, 1119 PD Schiphol Rijk, The Netherlands |
Brazil | BMC Software do Brasil Ltda. | Av. das Nações Unidas, 8.501 – 22º Andar Condomínio Eldorado Business Tower São Paulo, Brasil – 05425-070 |
Mexico | BMC Software Distribution de México, S.A. de C.V. | Torre Esmeralda II Blvd. Manuel Avila, Camacho #36, Piso 23 Lomas de Chapultepec, CP11000, México D.F. |
Argentina | BMC Software de Argentina S.A. | Ing. Butty 220 – Piso 18, Buenos Aires, Republica Argentina, C1001AFB |
S.E.A (Southeast Asia), Australia, New Zealand, Hong Kong, Taiwan | BMC Software Asia Pacific Pte Ltd | 600 North Bridge Road, #20-01/10 Parkview Square, Singapore 188778 |
China | BMC Software (China) Limited | Room 502, Level 5, Tower W1, The Towers, Oriental Plaza, No. 1 East Chang An Ave., Dong Cheng Dist., Beijing 100738, China |
Japan | BMC Software K.K. | Harmony Tower 24th Floor, 1-32-2 Honcho, Nakano-ku, Tokyo, 164-8721 |
Korea | BMC Software Korea Ltd | 24th Fl., ASEM Tower, , 1517, Yeongdong-daero, Gangnam-gu, Seoul 135-798, Korea South |
19. U.S. FEDERAL ACQUISITIONS. This Section applies only to acquisitions of the commercial Services and User Guide subject to this Agreement by or on behalf of the United States Government, or by any prime contractor or subcontractor (at any tier) under any contract, grant, cooperative agreement or other activity with the United States Government. In the event the Services are delivered to the United States Government, the United States Government hereby agrees that the Services qualify as “commercial items” within the meaning of the Federal acquisition regulation(s) applicable to this procurement. The terms and conditions of this Agreement shall pertain to the United States Government’s use and disclosure of the Services, and shall supersede any conflicting contractual terms and conditions. The following additional statement applies only to acquisitions governed by DFARS Subpart 227.4 (October 1988): “Restricted Rights – Use, duplication and disclosure by the Government is subject to restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 (Oct. 1988).”
20. MISCELLANEOUS TERMS. This Agreement contemplates the execution by the parties of one or more Orders, however, neither execution of this Agreement, nor anything contained herein, shall obligate either party to enter into any Orders. BMC is not liable for its failure to perform any of its obligations under this Agreement during any period in which performance is delayed by Customer or circumstances beyond BMC's reasonable control. The parties are independent contractors and this Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties. This Agreement, including any Exhibits and Orders constitutes the entire agreement between Customer and BMC and supersedes any prior or contemporaneous negotiations or agreements, whether oral or written concerning the Services. There are no representations, promises, warranties, covenants, or undertakings between the parties other than those expressly set forth in this Agreement. There are no third party beneficiaries to this Agreement; Customer is not entering into a contractual relationship with BMC’s licensors and BMC’s licensors have no liability to Customer. No modification or waiver of any provision hereof will be effective unless made in a writing signed by both BMC and Customer. Customer may not assign or transfer this Agreement or the Services to a third party, whether by merger or otherwise. Should any provision of this Agreement be invalid or unenforceable, the remainder of the provisions will remain in effect. Any additional or conflicting terms of any Customer purchase order are rejected by BMC and do not apply. Any additional documents presented to a BMC representative by Customer for signature as a condition for going on a Customer’s site will be governed by this Agreement and to the extent that such document presents additional terms or conflicts with this Agreement, it shall be considered null and void. The Services may contain hyperlinks to websites controlled by parties other than BMC. BMC is not responsible for and does not endorse the content or accept any responsibility for Customer’s use of these websites. Customer should refer to the policies posted by other websites regarding data privacy and other topics before using them.
EXHIBIT A
Service Level Agreement
Availability
BMC will use commercially reasonable efforts to make the Services available at least 99.9% of the time, except as provided below (“Service Commitment”). This Service Commitment is not applicable to Customer Applications or Third Party Applications. Availability will be calculated per month, as follows:
(Service Time – Non-excluded Downtime – Excluded Downtime)/(Service Time – Excluded Downtime) x 100
Definitions
“Service Time” is the total minutes for a given calendar month.
“Excluded Downtime” is all unavailability caused by (1) scheduled or mutually agreed upon downtime to perform routine, non-emergency or emergency maintenance on the Services; (2) downtime on nonproduction systems; (3) factors outside of BMC’s reasonable control, including any force majeure event, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving BMC employees), or Internet service provider or power failures or delays; (4) failure of Customer’s Internet access or related problems; (5) Customer’s equipment, software, including but not limited to Customer Applications, or other technology and/or third party equipment, software, including but not limited to Third Party Applications, or other technology (other than third party equipment within BMC’s direct control); (6) actions or inactions of Customer or any third party; or (7) service suspensions or termination of Customer’s right to use the Services in accordance with the Agreement.
“Non-excluded Downtime” is all downtime that is not Excluded Downtime.
Service Credits
In the event BMC does not meet the Service Commitment, Customer will be eligible to receive a Service Credit as described below. Service Credits are calculated in accordance with the table below as a percentage of the total subscription charges paid by Customer for Services for the month in which BMC does not meet the Service Commitment.
Monthly Availability Percentage | Service Credit Calculation |
Below 99.9% | 1 minute of credit based on monthly subscription charges for every 1 minute below the Service Commitment |
Service Credits will be applied against Customer’s next invoice. A Service Credit will be applicable and issued only if the credit amount is greater than $1 USD. Service Credits may not be transferred or applied to any other BMC service or account. Customer’s sole and exclusive remedy for any unavailability or non-performance of the Services or other failure by BMC to provide the Services is the receipt of a Service Credit (if eligible) in accordance with the terms of this Exhibit A. Upon expiration or non-renewal of this Agreement and/or the applicable Order, all Service Credits will be forfeited (for example, if the Non-excluded Downtime occurs in the last month of the Order term and Customer does not renew, then the Service Credit is forfeited).
Credit Request and Payment Procedures
BMC will provide Customer with a monthly availability report. To receive a Service Credit, Customer must submit a request by sending an e-mail message to SLArequest@bmc.com. To be eligible, the credit request must (i) include Customer’s account number in the subject of the e-mail message; (ii) include, in the body of the e-mail either the BMC-provided monthly availability report, or, the dates and times of each incident of Non-excluded Downtime that Customer claims to have experienced; and (iii) be received by BMC within 30 days after the end of the month in which the Downtime occurred. If the Monthly Availability Percentage applicable to the month of such request is confirmed by BMC and is less than the Monthly Availability Percentage, then BMC will confirm the Service Credit to Customer within 15 days of receipt of the Service Credit request. Customer’s failure to provide the request and other information as required above will disqualify Customer from receiving a Service Credit.
BMC Subscription Services (SaaS) Agreement
Effective October 6th 2017
DownloadTable of Contents
BMC SUBSCRIPTION SERVICES (SAAS) AGREEMENT
THIS SUBSCRIPTION SERVICES (SAAS) AGREEMENT (“AGREEMENT”) GOVERNS YOUR FREE TRIAL, IF ANY, OF THE BMC SUBSCRIPTION SERVICES.
IF YOU PURCHASE THE BMC SUBSCRIPTION SERVICES, THIS AGREEMENT WILL ALSO GOVERN YOUR PURCHASE AND ONGOING USE OF THE BMC SUBSCRIPTION SERVICES.
BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE BMC SUBSCRIPTION SERVICES.
You may not access the BMC Subscription Services if you are BMC’s direct competitor, except with BMC’s prior written consent. In addition, you may not access the BMC Subscription Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.
This Agreement was last updated on July 31, 2017. This Agreement is between the entity or individual entering into this Agreement (“Customer”) and the BMC Contracting Entity for the applicable region as described in Section 12 (“BMC”). It is effective between Customer and BMC as of the date of your acceptance of this Agreement. For Customer’s convenience, prior versions of this Agreement are available at http://www.bmc.com/legal/BMCSA.html.
FREE TRIAL.
BMC may make the BMC Subscription Services available to Customer on a trial basis free of charge. If BMC offers Customer a free trial, it will run until the earlier of (a) the end of the trial period stated on the trial registration web page or (b) the start date of any Order for purchase of the BMC Subscription Services. Additional trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.
ANY DATA CUSTOMER ENTERS INTO THE BMC SUBSCRIPTION SERVICES, AND ANY CUSTOMIZATIONS MADE TO THE BMC SUBSCRIPTION SERVICES BY OR FOR CUSTOMER, DURING A FREE TRIAL WILL BE PERMANENTLY LOST UNLESS CUSTOMER PURCHASES A SUBSCRIPTION TO THE SAME BMC SUBSCRIPTION SERVICES AS THOSE COVERED BY THE TRIAL, OR EXPORTS SUCH DATA BEFORE THE END OF THE TRIAL PERIOD.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THE AGREEMENT, DURING ANY FREE TRIAL PERIOD THE BMC SUBSCRIPTION SERVICES ARE PROVIDED “AS IS” WITH NO WARRANTY.
- DEFINITIONS
- “Affiliate” is an entity that controls, is controlled by or shares common control with BMC or Customer, where such control arises from either (a) a direct or indirect ownership interest of more than 50% or (b) the power to direct or cause the direction of the management and policies, whether through the ownership of voting stock by contract, or otherwise, equal to that provided by a direct or indirect ownership of more than 50%.
- “BMC Subscription Services” means the hosted service which packages web-based access and the right-to-use the supported applications, installed agents and associated reference, user and technical guides.
- “Customer Data” means all electronic data or information (a) submitted to the BMC Subscription Services by Customer, a third party on behalf of Customer, or as directed by Customer or (b) collected by the BMC Subscription Services.
- “Effective Date” means the date of Customer’s Order for the BMC Subscription Services.
- “Order” means (i) the agreed ordering document for the purchase of the BMC Subscription Services, (ii) that is subject to this Agreement, and (iii) that identifies the terms of the purchase and fees to be paid. The term “Order” includes Customer’s online registration for and purchase of the BMC Subscription Services.
- “Capacity” means the amount of access to the BMC Subscription Services purchased as specified in an Order.
- “User Guide” means the online help, functional guide and technical specifications for the BMC Subscription Services, as updated by BMC from time to time.
- SCOPE. Subject to Customer’s payment of applicable fees, BMC will provide Customer with access to the BMC Subscription Services as set forth in this Agreement and the applicable Order. Orders may also be placed via a BMC authorized reseller of the Services. In the event of a direct conflict between any Order and the terms of this Agreement, the terms of the Order will control only if the Order is executed by an authorized representative of each party. Neither execution of this Agreement, nor anything contained herein, shall obligate either party to enter into any Orders.
- BMC SUBSCRIPTION SERVICES.
- Access Rights. Subject to the terms of this Agreement, BMC hereby grants to Customer a worldwide, non-exclusive, non-transferable, non-sublicenseable, limited license to access and use the BMC Subscription Services (i) up to the Capacity, (ii) for Customer’s and its Affiliates’ internal business operations, (iii) in accordance with the User Guide and the applicable Order.
- BMC Responsibilities. BMC will (i) provide the BMC Subscription Services in a manner consistent with general industry standards reasonably applicable to the provision thereof; (ii) use commercially reasonable efforts to maintain the security of Customer passwords; (iii) provide the support described at http://www.bmc.com/support/review-policies (“Support”) to Customer for the BMC Subscription Services, which may be changed by BMC upon prior notice to customer.
- Customer Responsibilities and Restrictions. (a) Customer will (i) prevent unauthorized access to, or use of, the BMC Subscription Services, and notify BMC promptly of any such unauthorized access or use, (ii) comply with all applicable laws in using the BMC Subscription Services, and (iii) be responsible for obtaining its own Apple Push Notification certificate, if the BMC Subscription Services are used to manage devices running iOS. (b) Customer will not (i) modify, copy or create derivative works based on the BMC Subscription Services; (ii) create Internet “links” to or reproduce any content forming part of the BMC Subscription Services, other than for its own internal business purposes; (iii) disassemble, reverse engineer, or decompile the BMC Subscription Services or part thereof, or access it in order to copy any ideas, features, content, functions or graphics of the BMC Subscription Services; (iv) interfere with or disrupt the integrity or performance of the BMC Subscription Services; (vi) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortuous material, or send or store material in violation of any third party’s privacy rights via the BMC Subscription Services; (vii) send or store viruses or malicious code via the BMC Subscription Services; (viii) attempt to gain unauthorized access to the BMC Subscription Services or its related software, systems, platforms or networks; (ix) use any components provided with the BMC Subscription Services separately from the BMC Subscription Services; or (x) distribute, rent, lease, sublicense or provide the BMC Subscription Services to any third party or use it in a service bureau, outsourcing environment, or for the processing of third party data.
- FEES AND PAYMENT.
- Fees. The fees payable for the BMC Subscription Services and the payment period for such fees will be set forth in and paid in accordance with the Order. All invoices are due upon receipt of invoice. The unpaid balance of each late payment bears interest at a rate equal to the lesser of 1% per month or the maximum amount permitted by law. All fees are nonrefundable and BMC will not provide any refunds or credits for partially used periods of the BMC Subscription Services.
- Taxes. Customer will pay or reimburse BMC or, when required by law, the appropriate governmental agency, for taxes of any kind, including sales, use, VAT, excise, customs duties, withholding, property, and other similar taxes (other than taxes based on BMC’s net income or arising from the employment relationship between BMC and its personnel) imposed in connection with the fees paid for the BMC Subscription Services, which are exclusive of these taxes.
- TERM, SUSPENSION AND TERMINATION.
- Term. This Agreement begins on the Effective Date and will remain in effect unless terminated pursuant to Section 5.2 below, regardless of the billing frequency selected in the Order.
- (a) Termination for Convenience. Customer may terminate this Agreement by providing BMC with written notice at least 30 days prior to the beginning of the next Order term. Customer may notify BMC of its intent to terminate by emailing BMC at order_services@bmc.com. (b) Termination for Cause. Either party may terminate this Agreement for cause: (i) upon 30 days’ written notice of a material breach to the other party if such breach remains uncured at the expiration of such period; or (ii) immediately if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. (c) Suspension of BMC Subscription Services for Cause. In addition to its other rights and remedies, BMC reserves the right, without liability to Customer, to immediately suspend any and all access to the BMC Subscription Services if Customer commits a material breach of this Agreement or any relevant Order until such material breach is cured. If such material breach is (i) unable to be cured, or (ii) is not cured within 30 business days, then BMC may immediately terminate the Agreement and the affected Order. (d) Termination by BMC. BMC may terminate this Agreement if BMC generally discontinues its provision of the BMC Subscription Services to all customers.
- Effects of Termination. Upon termination pursuant to 5.2 above, all rights and licenses granted herein will terminate and Customer will make no further use of the BMC Subscription Services. No termination will relieve the Customer of the obligation to pay any fees accrued or payable to BMC pursuant to any Order. Upon written request by Customer made within 30 days after the effective date of termination, BMC will make available to Customer a file containing the Customer Data. After such 30 day period, BMC shall have no obligation to maintain or provide any Customer Data and will thereafter delete Customer Data.
- DISCLAIMER OF WARRANTY. BMC DOES NOT PROMISE THAT THE BMC SUBSCRIPTION SERVICES, OR ANY CONTENT, COMPONENT, SITE OR FEATURE OF THE BMC SUBSCRIPTION SERVICES WILL BE ERROR-FREE OR UNINTERRUPTED, OR THAT ANY DEFECTS WILL BE CORRECTED, OR THAT CUSTOMER’S USE OF BMC SUBSCRIPTION SERVICES WILL PROVIDE SPECIFIC RESULTS. THE BMC SUBSCRIPTION SERVICES ARE DELIVERED ON AN “AS-IS” AND “AS-AVAILABLE” BASIS. BMC CANNOT ENSURE THAT ANY FILES OR OTHER DATA CUSTOMER DOWNLOADS FROM THE BMC SUBSCRIPTION SERVICES WILL BE FREE OF VIRUSES OR CONTAMINATION OR DESTRUCTIVE FEATURES. BMC AND SUCH THIRD PARTIES EXPRESSLY DISCLAIM TO THE FULLEST EXTENT PERMITTED BY LAW ALL EXPRESS, IMPLIED, AND STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF ACCURACY, MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. BMC AND ANY THIRD PARTY WHO MAKES ITS SOFTWARE OR CONTENT AVAILABLE IN CONJUNCTION WITH OR THROUGH THE BMC SUBSCRIPTION SERVICES DISCLAIM ANY WARRANTIES REGARDING THE SECURITY, RELIABILITY, TIMELINESS, AND PERFORMANCE OF THE BMC SUBSCRIPTION SERVICES AND SUCH THIRD PARTY SOFTWARE OR CONTENT. BMC DISCLAIMS ANY AND ALL LIABILITY FOR THE ACTS, OMISSIONS AND CONDUCT OF ANY THIRD PARTIES IN CONNECTION WITH OR RELATED TO CUSTOMER’S USE OF THE BMC SUBSCRIPTION SERVICES.
CUSTOMER ASSUMES TOTAL RESPONSIBILITY FOR ITS USE OF THE BMC SUBSCRIPTION SERVICES. CUSTOMER’S SOLE REMEDY AGAINST BMC FOR DISSATISFACTION WITH THE BMC SUBSCRIPTION SERVICES IS TO STOP USING THE BMC SUBSCRIPTION SERVICES. THIS LIMITATION OF REMEDY IS A PART OF THE BARGAIN BETWEEN THE PARTIES. CUSTOMER UNDERSTANDS AND AGREES THAT CUSTOMER’S USE OF THE BMC SUBSCRIPTION SERVICES AND ALL THIRD PARTY SOFTWARE OR CONTENT MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE BMC SUBSCRIPTION SERVICES IS AT CUSTOMER’S OWN DISCRETION AND RISK AND THAT CUSTOMER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGES TO CUSTOMER’S COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE USE OF THE BMC SUBSCRIPTION SERVICES AND SUCH THIRD PARTY SOFTWARE AND CONTENT. SOME STATES OR OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO CUSTOMER. CUSTOMER MAY ALSO HAVE OTHER RIGHTS THAT VARY FROM STATE TO STATE AND JURISDICTION TO JURISDICTION.
THE BMC SUBSCRIPTION SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. BMC IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS
- PROPRIETARY RIGHTS AND CONFIDENTIALITY.
- Proprietary Rights. BMC, its Affiliates or licensors retain all right, title and interest to the BMC Subscription Services and all related intellectual property and proprietary rights. The BMC Subscription Services are protected by applicable copyright, trade secret, industrial and other intellectual property laws. BMC owns all right, title and interest in all software, programming, documentation, templates, questionnaires, methodologies, models, charts, reports and any other items used to deliver the BMC Subscription Services or made available to Customer as a result of the BMC Subscription Services (“Service Items”) and access to and use of the relevant Service Items will be governed by the terms of this Agreement. BMC reserves any rights not expressly granted to Customer. “Confidential Information” means all proprietary or confidential information that is disclosed to the recipient (“Recipient”) by the discloser (“Discloser”), and includes, among other things (i) any and all information relating to products or services provided by a Discloser, its customer-related and financial information, software code, flow charts, techniques, specifications, development and marketing plans, strategies, and forecasts; (ii) as to BMC, and its licensors, the BMC Subscription Services; and (iii) the terms of this Agreement, including without limitation, pricing information. Confidential Information does not include information that Recipient can show: (a) was rightfully in Recipient’s possession without any obligation of confidentiality before receipt from the Discloser; (b) is or becomes a matter of public knowledge through no fault of Recipient; (c) is rightfully received by Recipient from a third party without violation of a duty of confidentiality; or (d) is or was independently developed by or for Recipient. Recipient may not disclose Confidential Information of Discloser to any third party or use the Confidential Information in violation of this Agreement. The Recipient (i) will exercise the same degree of care and protection with respect to the Confidential Information of the Discloser that it exercises with respect to its own Confidential Information and (ii) will not, either directly or indirectly, disclose, copy, distribute, republish, or allow any third party to have access to any Confidential Information of the Discloser. Notwithstanding the foregoing, Recipient may disclose Discloser’s Confidential Information to Recipient’s employees and agents who have need to know provided that such employees and agents have legal obligations of confidentiality substantially the same (and in no case less protective) as the provisions of this Agreement.
- Notification Obligation. If the Recipient becomes aware of any unauthorized use or disclosure of Discloser’s Confidential Information, then Recipient will promptly and fully notify the Discloser of all facts known to it concerning such unauthorized use or disclosure. In addition, if the Recipient or any of its employees or agents are required (by oral questions, interrogatories, requests for information, or documents in legal proceedings, subpoena, civil investigative demand, or other similar process) to disclose any of Discloser’s Confidential Information, the Recipient will not disclose the Discloser’s Confidential Information without providing the Discloser with commercially reasonable advance prior written notice to allow Discloser to seek a protective order or other appropriate remedy or to waive compliance with this provision. In any event, the Recipient will exercise its commercially reasonable efforts to preserve the confidentiality of the Discloser’s Confidential Information, including, without limitation, cooperating with Discloser to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded to the Confidential Information. Notwithstanding anything in Section 7 to the contrary, Customer agrees that BMC may refer to Customer as a customer of BMC, both internally and in externally published media.
- Customer Data. As between BMC and Customer, Customer owns all rights, title and interest in and to Customer Data. Customer Data is deemed Confidential Information under this Agreement. BMC will use the Customer Data only as necessary to provide the BMC Subscription Services in accordance with this Agreement. At any time during the term of the BMC Subscription Services, Customer may request copies of all Customer Data from the BMC Subscription Services. Customer is responsible for complying with all legal and contractual requirements, including applicable privacy laws and regulations and its agreements with third parties who generate and/or process the Customer Data, relating to the collection, use, processing and transfer of Customer Data. With the exception of Customer Data collected by the BMC Subscription Services, Customer is solely responsible for the transmission of Customer Data to BMC and to the BMC Subscription Services. Customer is solely responsible for the encryption of any Customer Data.
- Suggestions. Customer agrees that BMC shall have a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into any BMC products or services any suggestions, enhancement requests, recommendations or other feedback provided by Customer relating to the BMC Subscription Services.
- DISCLAIMER OF DAMAGES AND LIMITS ON LIABILITY.
- DISCLAIMER OF DAMAGES. EXCEPT FOR A BREACH OF SECTION 3.3 AND EACH PARTY’S RESPONSIBILITIES IN SECTION 9, NEITHER PARTY OR ITS AFFILIATES ARE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES RELATING TO OR ARISING OUT OF THIS AGREEMENT OR THE BMC SUBSCRIPTION SERVICES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST COMPUTER USAGE TIME, AND DAMAGE TO, OR LOSS OF USE OF, DATA), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND IRRESPECTIVE OF ANY NEGLIGENCE OF A PARTY OR WHETHER SUCH DAMAGES RESULT FROM A CLAIM ARISING UNDER TORT OR CONTRACT LAW.
- LIMITS ON LIABILITY. EXCEPT FOR A BREACH OF SECTION 3.3 AND EACH PARTY’S RESPONSIBILITIES IN SECTION 9, NEITHER PARTY OR ITS AFFILIATES SHALL HAVE AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE BMC SUBSCRIPTION SERVICES, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEEDING THE AMOUNTS ACTUALLY PAID BY AND DUE FROM CUSTOMER PURSUANT TO THE ORDER(S) GIVING RISE TO LIABILITY.
- INFRINGEMENT CLAIMS.
- Indemnification by BMC. If a third party asserts a claim against Customer asserting that Customer’s use of the BMC Subscription Services in accordance with this Agreement violates that third-party’s patent, trade secret or copyright rights (“Infringement Claim”), then BMC will, at its own expense: (a) defend or settle the Infringement Claim; and (b) indemnify Customer for any damages finally awarded against Customer based on infringement by the BMC Subscription Services. If BMC believes the BMC Subscription Services may violate a right, then BMC will, at its expense: (a) modify the BMC Subscription Services, or (b) procure the right to continue using the BMC Subscription Services, and if (a) or (b) are not commercially reasonable, terminate Customer's right to use the BMC Subscription Services and issue a pro-rata refund for the unexpired pre-paid portion of such BMC Subscription Services.
- Indemnification by Customer. Subject to the terms of this Agreement, if a third party asserts a claim against BMC asserting that the Customer Data or Customer’s use of the BMC Subscription Services in violation of this Agreement violates that third-party’s patent, trade secret or copyright rights, or otherwise harms the third party (“Claim”), Customer will, at its own expense: (a) defend or settle the Claim; and (b) indemnify BMC for any damages finally awarded against BMC based on the Claim.
- Indemnity Process. Neither party’s obligations under this Section will apply if: (a) the indemnifying party’s legal department does not receive prompt, detailed written notice of the Infringement Claim/Claim from the party being indemnified, (b) the indemnifying party is not able to retain sole control of the defense of the Infringement Claim/Claim and all negotiations for its settlement or compromise, or (c) the indemnifying party does not receive all reasonable assistance from the party being indemnified. Neither party will bind the indemnified party to a monetary obligation in a settlement or compromise, or make an admission on behalf of the indemnified party, without obtaining that party’s prior consent.
- THIS SECTION 9 CONTAINS EACH PARTY'S EXCLUSIVE REMEDIES AND THE INDEMNIFYING PARTY'S SOLE LIABILITY FOR INFRINGEMENT CLAIMS/CLAIMS, RESPECTIVELY.
- EXPORT CONTROLS. Customer represents and warrants that it: a) will comply with the United States Export Administration Regulations and other U.S. or foreign export regulations; b) no individual accessing or using the BMC Subscription Services is a citizen of or from an embargoed country (currently Iran, Syria, Sudan, Cuba and North Korea); c) is not prohibited from receiving the BMC Subscription Services under such regulations; d) will not acquire the BMC Subscription Services for a person who is restricted under such regulations; e) will not use the BMC Subscription Services in contradiction to such regulations; and f) will not use the BMC Subscription Services for prohibited uses, including but not limited to nuclear, chemical, missile or biological weapons related end uses. For Services exported from Ireland, EC No. 428/2009 sets up a Community regime for control of exports of dual-use items and technology, and it is declared that this BMC Subscription Services is intended for civil purposes only. Therefore, Customer agrees to comply with both the U.S. regulations and those E.U. regulations and will not export in violation of the regulations and without all proper licenses. Any failure to comply with these regulations will result in Customer forfeiting all rights to the BMC Subscription Services.
- GOVERNING LAW AND DISPUTE RESOLUTION. A party will provide written notice to the other party of any controversy, dispute or claim arising out of or relating to this Agreement, or to the formation, interpretation, breach, termination, or validity thereof (“Controversy”). The parties shall engage in good faith negotiations to resolve the Controversy. Only if the Controversy is not resolved through good faith negotiations within 15 days of the sending of the written notice of Controversy, the Controversy may be submitted to litigation or binding arbitration, based on the place of incorporation of the parties, as follows:
- If both parties to this Agreement are entities incorporated under the law of any state in the United States, the Controversy shall be tried in either state or federal court located in Houston, Texas and the laws of the State of Texas shall govern. Both sides hereby submit to the exclusive jurisdiction of the courts in Houston, Texas and waive all defenses based on forum non conveniens.
- If both parties to this Agreement are entities incorporated in countries in the Europe, Middle East, or Africa regions, the arbitration shall be held in Amsterdam, Netherlands under the then-applicable rules of the International Chamber of Commerce and the substantive laws of the Netherlands will govern.
- If both parties to this Agreement are entities incorporated in countries in the Asia Pacific region, the arbitration shall be held in Singapore under the then-applicable rules of the Singapore International Arbitration Centre and the substantive laws of Singapore will govern.
- In all other instances, the arbitration shall be held in New York City, New York, under the then-applicable international rules of the American Arbitration Association and the substantive laws of the State of Texas will govern.
For all arbitrations conducted hereunder: (a) the arbitration shall be conducted in English; (b) the relevant arbitral institution shall determine the number of arbitrators, but any Controversy in which the amount in dispute is greater than $10 million USD shall be decided by three arbitrators, with each party having the right to select one arbitrator; (c) the costs of such arbitration shall be borne equally, pending the arbitrator’s award; (d) the arbitration award rendered shall be final and binding on the parties, shall not be subject to appeal to any court and shall be enforceable in any court having jurisdiction over the Parties; (e) the arbitration proceedings, award and pleadings shall all be confidential, unless disclosure of particular information is required for purposes of enforcing/challenging the award or to meet local securities law requirements; and (f) the party prevailing in arbitration shall be entitled to recover its reasonable attorneys’ fees and the necessary costs incurred in connection with the arbitration.
The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. Nothing in this Agreement shall be deemed as preventing either party from seeking immediate injunctive relief from any court having jurisdiction over the parties and the subject matter of the dispute.
- The following BMC contracting entities apply to this Agreement:
Region | Licensing Entity | Address of Licensing Entity |
---|---|---|
United States and Latin America South (not a specified Central or South America country below) | BMC Software, Inc. | 2103 CityWest Boulevard, Houston, Texas 77042 |
Canada | BMC Software Canada Inc. | 50 Minthorn Boulevard, Suite 200 Markham, Ontario L3T 7X8 Canada |
EMEA (Europe, Middle East and Africa) | BMC Software Distribution B.V. | Boeing Avenue 245, 1119 PD Schiphol Rijk, The Netherlands |
Brazil | BMC Software do Brasil Ltda. | Av. das Nações Unidas, 8.501 – 22º Andar Condomínio Eldorado Business Tower São Paulo, Brasil – 05425-070 |
Mexico | BMC Software Distribution de México, S.A. de C.V. | Torre Esmeralda II Blvd. Manuel Avila, Camacho #36, Piso 23 Lomas de Chapultepec, CP11000, Mexico D.F. |
Argentina | BMC Software de Argentina S.A. | Ing. Butty 220 – Piso 18, Buenos Aires, Republica Argentina, C1001AFB |
S.E.A (Southeast Asia), Australia, New Zealand, Hong Kong, Taiwan | BMC Software Asia Pacific Pte Ltd | 600 North Bridge Road, #20-01/10 Parkview Square, Singapore 188778 |
China | BMC Software (China) Limited | Room 502, Level 5, Tower W1, The Towers, Oriental Plaza, No. 1 East Chang An Ave., Dong Cheng Dist., Beijing 100738, China |
Japan | BMC Software K.K. | Harmony Tower 24th Floor, 1-32-2 Honcho, Nakano-ku, Tokyo, 164-8721 |
Korea | BMC Software Korea Ltd | 24th Fl., ASEM Tower, 1517, Yeongdong-daero,Gangnam-gu, Seoul 135-798, Korea South |
- US FEDERAL ACQUISITIONS. This Section applies only to acquisitions of the commercial BMC Subscription Services and Documentation subject to this Agreement by or on behalf of the United States Government, or by any prime contractor or subcontractor (at any tier) under any contract, grant, cooperative agreement or other activity with the United States Government. In the event the BMC Subscription Services are delivered to the United States Government, the United States Government hereby agrees that the Products qualify as “commercial items” within the meaning of the Federal acquisition regulation(s) applicable to this procurement. The terms and conditions of this Agreement shall pertain to the United States Government’s use and disclosure of the Product, and shall supersede any conflicting contractual terms and conditions. The following additional statement applies only to acquisitions governed by DFARS Subpart 227.4 (October 1988): “Restricted Rights – Use, duplication and disclosure by the Government is subject to restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 (Oct. 1988).”
- DATA PROTECTION. BMC and Customer specifically agree that when Customer is located in the European Economic Area (“EEA”) the terms “Personal Data”, “Process”, “Data Controller”, “Special Categories of Data”, “Processing”, “Data Subject”, “Third Party Processing” and “Data Processor” will have the meanings given to them in the European data protection laws. In respect of Personal Data processed under this Agreement, the parties agree that Customer and BMC both agree that BMC will process Personal Data in accordance with Customer’s lawful and explicit instructions, the applicable data protection laws and its Controller and Processor Binding Corporate Rules Policy found at: http://www.bmc.com/legal/data-privacy-binding-corporate-rules.html (the “BCR”) with respect to compliance with data protection laws and/or regulations. The BCR policy is incorporated into a BMC corporate wide policy, requiring all BMC entities, employees and third party providers to comply with and respect the BCR policy which is governing the collection, use, access, storage and transfer of Personal Data among BMC entities and third-party sub-processors. Customer acknowledges that Personal Data shall be limited to contact information and/or contract identification information (such as PO number) and shall not include Special Categories of Data, i.e. data where processing or transfer of the data is prohibited according to applicable privacy laws or other data requiring the written consent of the data subject prior to processing in accordance with applicable law. BMC shall have no liability with regard to data content processed on behalf of Customer and/or arising from the processing of Personal Data in accordance with Customer’s instructions. BMC shall take appropriate technical and organizational measures to adequately protect Personal Data against (i) unauthorized access, (ii) unauthorized disclosure, (iii) misuse, (iv) corruption, and (v) loss, in accordance with the requirements of European data protection laws and industry best practices. The parties agree that BMC may subcontract the processing of Personal Data to a subcontractor (the “Subcontractor”) provided that BMC shall remain solely responsible for the acts and omissions of such Subcontractor. Customer acknowledges and consents that BMC Subscription Services provided require Customer Data to be transferred to a country outside of Customer’s country or the country where the Customer Data originated. BMC will provide all requested information regarding the processing of Customer’s Data as Customer may reasonably require to enable Customer to comply with data protection laws. BMC shall promptly inform Customer and follow up with a subsequent written notice if it becomes aware of any unauthorized or unlawful or improper processing, loss of, damage to, or destruction of any Personal Data (singly or collectively referred to as “Security Breach”). Further information with regard to BMC’s BCR is published at http://ec.europa.eu/justice/data-protection/international-transfers/binding-corporate-rules/bcr_cooperation/index_en.htm.
- VERIFICATION. Customer agrees that BMC or its agent may monitor the BMC Subscription Services to ensure Customer’s compliance with the terms of this Agreement. If such monitoring reveals that Customer has exceeded the Capacity for the BMC Subscription Services, Customer agrees to pay the applicable fees for additional capacity.
- MISCELLANEOUS TERMS. BMC is not liable for its failure to perform any of its obligations under this Agreement during any period in which performance is delayed by Customer or circumstances beyond BMC's reasonable control. The parties are independent contractors and this Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties. Customer will receive system notifications from BMC and its licensors, if applicable (i.e. planned downtime notices, etc). This Agreement, including any Attachments and Orders constitutes the entire agreement between Customer and BMC and supersedes any prior or contemporaneous negotiations or agreements, whether oral or written concerning the BMC Subscription Services. There are no representations, promises, warranties, covenants, or undertakings between the parties other than those expressly set forth in this Agreement. There are no third party beneficiaries to this Agreement; Customer is not entering into a contractual relationship with BMC’s licensors and BMC’s licensors have no liability to Customer. Except as provided in Section 2 above, no modification or waiver of any provision hereof will be effective unless made in a writing signed by both BMC and Customer. Customer may not assign or transfer this Agreement or the BMC Subscription Services to a third party, whether by merger or otherwise. Should any provision of this Agreement be invalid or unenforceable, the remainder of the provisions will remain in effect. Any additional or conflicting terms of any Customer purchase order are rejected by BMC and do not apply. The BMC Subscription Services may contain hyperlinks to websites controlled by parties other than BMC. BMC is not responsible for and does not endorse the content or accept any responsibility for Customer’s use of these websites. Customer should refer to the policies posted by other websites regarding privacy and other topics regarding data privacy before using them.
BMC Cloud Services Master Agreement
Effective July 25th 2024
DownloadTable of Contents
BMC CLOUD SERVICES MASTER AGREEMENT
THIS CLOUD SERVICES MASTER AGREEMENT (“AGREEMENT”) GOVERNS YOUR FREE TRIAL, IF ANY, OF THE SUBSCRIPTION SERVICES.
IF YOU PURCHASE THE SUBSCRIPTION SERVICES, THIS AGREEMENT WILL ALSO GOVERN YOUR PURCHASE AND ONGOING USE OF THE SUBSCRIPTION SERVICES.
BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SUBSCRIPTION SERVICES.
You may not access the Subscription Services if you are BMC’s direct competitor, except with BMC’s prior written consent. In addition, you may not access the Subscription Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.
This Agreement was last updated on July 26, 2024. This Agreement is between the entity or individual entering into this Agreement (“Customer”) and the BMC Contracting Entity for the applicable region as described in Section 12 (“BMC”). It is effective between Customer and BMC as of the date of your acceptance of this Agreement. If Customer has a fully executed BMC Cloud Services Master Agreement then such fully executed BMC Cloud Services Master Agreement supersedes and replaces any clickwrap or click-through agreements (or other similar agreements) that Customer may be required to accept as a part of accessing or using the Subscription Services. For Customer’s convenience, prior versions of this Agreement are available at https://www.bmc.com/legal/csma.html.
FREE TRIAL.
BMC may make the Subscription Services available to Customer on a trial basis free of charge. If BMC offers Customer a free trial, it will run until the earlier of (a) the end of the trial period stated on the trial registration web page or (b) the start date of any Order for purchase of the Subscription Services. Additional trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.
ANY DATA CUSTOMER ENTERS INTO THE SUBSCRIPTION SERVICES, AND ANY CUSTOMIZATIONS MADE TO THE SUBSCRIPTION SERVICES BY OR FOR CUSTOMER, DURING A FREE TRIAL MAY BE PERMANENTLY LOST.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THE AGREEMENT, DURING ANY FREE TRIAL PERIOD THE SUBSCRIPTION SERVICES ARE PROVIDED “AS IS” WITH NO WARRANTY.
1. DEFINITIONS.
1.1 “Affiliate” is an entity that controls, is controlled by or shares common control with BMC or Customer, where such control arises from the legal power to direct or cause the direction of the general management and policies of the company, partnership or legal entity.
1.2 "Capacity” means the amount of access to the Subscription Services purchased as specified in an Order, which is counted in accordance with the Unit of Measure described in the Order.
1.3 “Consulting Services” means the consulting, implementation, training or other services provided under the terms of Attachment B (Consulting Services) and as further described under the applicable Order.
1.4 “Customer Content” means all electronic data or information (a) submitted to the Subscription Services by Customer, a third party on behalf of Customer, or as directed by Customer or (b) collected, processed or returned by the Subscription Services.
1.5 “IP Rights” means all intellectual property or other proprietary rights worldwide, including patents, trade secrets, copyrights, trademarks, moral rights, and any other intellectual or industrial property including registrations, applications, renewals, and extensions of such rights.
1.6 “Order” means (i) the agreed ordering document for the purchase of the Subscription Services, (ii) that is subject to this Agreement, and (iii) that identifies the terms of the purchase and fees to be paid. The term “Order” includes Customer’s online registration for and purchase of the Subscription Services, If any.
1.7 "Subscription Services" means the generally available hosted service which packages web-based access and the right-to-use the supported applications, installed agents and associated reference, user and technical guides.
1.8 “User Guide” means the online help, functional guide and technical specifications for the Subscription Services, as updated by BMC from time to time. The User Guides may be viewed here: https://docs.bmc.com/docs/.
2. SCOPE. Subject to the terms of this Agreement, Customer may purchase and BMC will provide Customer with access to the Subscription Services as set forth in this Agreement and the applicable Order. Subject to the Attachments to this Agreement, Customer may also purchase BMC Platform Services, BMC Consulting Services and BMC On Premise Subscription Services. In the event of a direct conflict between any Order and the terms of this Agreement, the terms of the Order will control only if the Order is executed by an authorized representative of each party. Each Order is deemed to be a discrete contract, separate from each other Order, unless expressly stated otherwise therein. Orders may be entered under this Agreement by and between (a) BMC or an Affiliate of BMC; and (b) Customer or an Affiliate of Customer. With respect to an Order, the terms “BMC” and “Customer” as used in this Agreement will be deemed to refer to the entities that execute that Order, the Order will be considered a two party agreement between such entities, and BMC will separately invoice the Customer named in the Order for the associated fees. Orders may also be placed via a BMC authorized reseller. Neither execution of this Agreement, nor anything contained herein, shall obligate either party to enter into any Orders. In the event an Order is proposed by BMC and is deemed to constitute an offer, then acceptance of such offer is limited to its terms. In the event Customer proposes an Order by submitting a purchase order, then regardless of whether BMC acknowledges, accepts or fully or partially performs under such purchase order, BMC OBJECTS to any additional or different terms in the purchase order.
3. ACCESS TO SUBSCRIPTION SERVICES.
3.1 Access Rights. Subject to the terms of this Agreement, BMC will provide Customer with worldwide access to the Subscription Services in accordance with the Order (i) up to the Capacity, (ii) for Customer’s and its Affiliates’ internal business operations, (iii) in accordance with the User Guide and the applicable Order. Customer may exercise its rights under this Section 3.1 through its employees, consultants, contractors, agents, and Affiliates (all, “Users”).
3.2 BMC Subscription Services Support. BMC will provide the support described at http://www.bmc.com/support/review-policies (“Support”) to Customer for the Subscription Services.
3.3 Use of Subcontractors. Customer acknowledges and agrees that BMC uses subcontractors to provide portions of the Subscription Services. BMC’s subcontractors acting as subprocessors are listed in the Data Processing Agreement between the parties and/or on each Order. BMC is responsible for the performance of all subcontractors providing any of the Subscription Services and for such subcontractors’ compliance with the terms of this Agreement.
3.4 Compliance with Laws. Each party shall comply with all applicable laws in the performance of its obligations under this Agreement.
3.5 Acceptable Use Policy and Restrictions.
(a) Customer will (i) maintain the confidentiality of all authentications and passwords for the Subscription Services and immediately notify BMC if it becomes aware that an unauthorized party has gained access such authentications and passwords, (ii) be responsible for use of the Subscription Services by its Users in compliance with this Agreement, (iii) prevent unauthorized access to, or use of, the Subscription Services, and notify BMC promptly of any such unauthorized access or use, and (iv) be responsible for obtaining its own Apple Push Notification certificate, if the Subscription Services are used to manage devices running iOS. Customer is responsible for the creation and implementation of a privacy policy and end user agreement, if applicable, which will set forth the guidelines of how Customer uses and protects the data and personal information of its Users, and how said Users may utilize the Subscription Services.
(b) Customer will not (i) modify, copy or create derivative works based on the Subscription Services; (ii) create Internet “links” to or reproduce any content forming part of the Subscription Services, other than for its own internal business purposes; (iii) disassemble, reverse engineer, or decompile the Subscription Services or part thereof, except to the extent expressly permitted by applicable law despite this limitation without possibility of contractual waiver; (iv) interfere with or disrupt the integrity or performance of the Subscription Services; (v) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortuous material, or send or store material in violation of any third party’s privacy rights via the Subscription Services; (vi) send or store viruses or malicious code via the Subscription Services; (vii) attempt to gain unauthorized access to the Subscription Services or its related software, systems, platforms or networks, including any form of security and/or penetration testing; (viii) use any components provided with the Subscription Services separately from the Subscription Services; (ix) distribute, rent, lease or provide the Subscription Services to any third party or use it in a service bureau, outsourcing environment, or for the processing of third party data; (x) conduct penetration test or security vulnerability tests of any type on the Subscription Services without BMC’s prior written consent; (xi) publish or make public any benchmark, security, or performance data or information about the Subscription Services without BMC’s prior written consent; or (xii) use any third party components, systems, platforms or networks that are delivered as part of the Subscription Services separately from such Subscription Services.
4. FEES AND PAYMENT.
4.1 Fees. The fees payable for the Subscription Services and the payment period for such fees will be set forth in and paid in accordance with the Order. All payments are due within 30 days of the date of the invoice.
4.2 Late Fees. Late balances may, at BMC’s sole election, bear interest at a rate equal to the lesser of 1% per month or the maximum amount permitted by law.
4.3 Taxes. Customer will pay taxes imposed in connection with the fees paid for the Subscription Services, which are exclusive of these taxes.
4.4 Payment Disputes. If Customer disputes an invoice in good faith, it will notify BMC within 30 days of receiving the invoice. The parties will seek to resolve such dispute over a 15-day discussion period. Customer is not required to pay disputed amounts during the discussion period, but will timely pay all undisputed amounts. After the discussion period, either party may pursue all available remedies.
4.5 Solution Providers. With regard to Subscription Services acquired by Customer through an authorized reseller of BMC (“Solution Provider”), notwithstanding anything to the contrary in Sections 4.1 to 4.4 above, Customer will have no direct payment obligations to BMC for such fees.
5. TERM, SUSPENSION AND TERMINATION.
5.1 Term. This Agreement begins on the Effective Date and will remain in effect unless terminated pursuant to Section 5.2 below, regardless of the billing frequency selected in the Order.
5.2 Termination.
(a) Termination for Convenience. Customer may terminate this Agreement by providing BMC with at least 30 days prior written notice; provided, however, such termination will have no effect on Orders in effect at the time of such termination. Orders may not be terminated for convenience unless otherwise specified therein. Customer may notify BMC of its intent to terminate by emailing BMC at order_services@bmc.com.
(b) Termination for Cause. Either party may terminate this Agreement and/or an Order for cause upon 30 days’ written notice of a material breach to the other party if such breach remains uncured at the expiration of such period. In the event Customer terminates the Agreement and an Order for BMC’s material breach, BMC will refund the amount paid by Customer to BMC for the Subscription Services on such Order, pro-rated from the date of the notice of the termination.
5.3 Suspension of Subscription Services for Cause. In addition to its other rights and remedies, BMC reserves the right, without liability to Customer, to suspend any and all access to the Subscription Services if Customer commits a material breach of this Agreement and fails to cure the same within 30 days from Customer’s receipt of written notice of such breach from BMC. Provided however, that BMC may immediately suspend any and all access to the Subscription Services without any cure period if BMC determines in good faith that Customer’s material breach of the Agreement will cause material harm to BMC, the Subscription Services, or any other customer. Once the material breach is resolved, BMC will promptly restore Customer’s access to the Subscription Services in accordance with this Agreement.
5.4 Effects of Termination. Upon termination or expiration of any Order or this Agreement, all rights and Licenses granted thereunder will terminate and Customer will make no further use of the Subscription Services. No termination will relieve the Customer of the obligation to pay any fees accrued or payable to BMC pursuant to any Order. Upon written request by Customer made within 60 days after the effective date of termination, BMC will make the Customer Content available to Customer for retrieval in an industry standard format. After such 60-day period, BMC shall have no obligation to maintain any Customer Content and will thereafter delete Customer Content. Any terms in this Agreement which by their nature extend beyond termination of this Agreement will remain in effect until fulfilled.
5.5 Termination Assistance. Upon Customer’s request and upon (a) the expiration of an Order or (b) the termination of an Order for any reason other than Customer’s breach, BMC shall perform such services as the parties in good faith agree are reasonably necessary to facilitate the orderly transition of the Services to the successor service provider or to the Customer. BMC will provide any such services under the terms and conditions of the Agreement, and subject to payment of the then-current fees and charges, generally applicable to BMC’s performance of such services, as agreed between the parties at such time.
6. LIMITED WARRANTY.
6.1 Warranties and Limited Remedies. BMC warrants to Customer that:
(a) the online availability of the Subscription Services will be maintained in accordance with the service levels described at https://www.bmc.com/content/dam/bmc/corporate/service-level-agreement.pdf (the “Service Level Agreement” or “SLA”). Customer’s exclusive remedy and BMC’s sole obligation for breach of the warranty in this Section 6.1(a) is described in the Service Level Agreement; and
(b) the Subscription Services (i) will perform in substantial accordance with the then-current on-line User Guide available via the Subscription Services, (ii) will be performed in a manner consistent with industry standards reasonably applicable to the provision thereof and (iii) will not materially degrade during the term of any Order. Customer’s exclusive remedy and BMC’s sole obligation for breach of the warranty in this Section 6.1(b) will be BMC’s use of commercially reasonable efforts to have the Subscription Services perform in substantial accordance with the User Guide, or replace the non-conforming portion of the Subscription Services within 30 days from the written notice of claim, or if BMC cannot have the Subscription Services perform in substantial accordance with the User Guide or replace the Subscription Services within such time period, then Customer may terminate the non-performing Subscription Services, and upon such termination BMC will refund the amount paid by Customer for the Subscription Services, pro-rated from the date of the notice of the claim. Customer agrees to provide BMC with written notice of the claim, a description of the alleged defects and a reference to the User Guide to which such alleged defects are contrary.
(c) In connection with the Subscription Services (i) it has used commercially reasonable efforts consistent with industry standards to scan for and promptly remove any software viruses for no charge and (ii) it has not inserted any Disabling Code. “Disabling Code” means computer code inserted by BMC, that is not addressed in the User Guide, and that is designed to expose data, delete, interfere with, and/or disable the normal operation of the Subscription Services. This Disabling Code warranty does not apply to BMC passwords necessary for the operation of the Subscription Services, or for any use by Customer outside the scope of this Agreement.
6.2 Disclaimer. CUSTOMER ACKNOWLEDGES THAT, EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, BMC, ITS AFFILIATES AND LICENSORS MAKE NO WARRANTY, EXPRESS, IMPLIED OR STATUTORY WITH RESPECT TO THE SUBSCRIPTION SERVICES OR USE THEREOF. BMC, ITS AFFILIATES AND LICENSORS HEREBY EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY THAT SUBSCRIPTION SERVICES WILL BE UNINTERRUPTED, ERROR FREE OR WITHOUT DELAY, AND THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INTERFERENCE, NON-INFRINGEMENT AND INFORMATION CONTENT.
7. PROPRIETARY RIGHTS AND CONFIDENTIALITY.
7.1 Proprietary Rights. BMC, its Affiliates or licensors retain all right, title and interest to the Subscription Services and all related intellectual property and proprietary rights. The Subscription Services are protected by applicable copyright, trade secret, industrial and other intellectual property laws. BMC owns all right, title and interest in all software, programming, documentation, templates, questionnaires, methodologies, models, charts, reports, ideas, features, content, functions, graphics and any other items provided as part of the Subscription Services (“ Service Items”) and access to and use of the relevant Service Items will be governed by the terms of this Agreement. Subject to (i) BMC’s or its licensor’s ownership of any Service Items and (ii) Section 3.5 (b)(i) of the Agreement, Customer owns all rights, title, and interest in Customer Applications, including all proprietary and intellectual property rights. BMC reserves any rights not expressly granted to Customer. Customer shall not access the Subscription Services in order to build a competitive product or service or copy any ideas, features, functions or graphics of the Subscription Services.
7.2 Confidentiality. "Confidential Information” means all proprietary or confidential information that is disclosed to the recipient (“Recipient”) by the discloser (“ Discloser”), and includes, among other things (i) any and all information relating to products or services provided by a Discloser, its customer-related and financial information, software code, BMC product vulnerabilities, flow charts, techniques, specifications, development and marketing plans, strategies, and forecasts; (ii) as to BMC, and its licensors, the Subscription Services and Service Items; and (iii) the terms of any Order, including without limitation, pricing information. Confidential Information does not include information that Recipient can show: (a) was rightfully in Recipient’s possession without any obligation of confidentiality before receipt from the Discloser; (b) is or becomes a matter of public knowledge through no fault of Recipient; (c) is rightfully received by Recipient from a third party without violation of a duty of confidentiality; or (d) is or was independently developed by or for Recipient. Recipient may not disclose Confidential Information of Discloser to any third party or use the Confidential Information in violation of this Agreement. The Recipient (i) will exercise the same degree of care and protection with respect to the Confidential Information of the Discloser that it exercises with respect to its own Confidential Information and (ii) will not, either directly or indirectly, disclose, copy, distribute, republish, or allow any third party to have access to any Confidential Information of the Discloser. Notwithstanding the foregoing, Recipient may disclose Discloser’s Confidential Information to Recipient’s employees and agents who have need to know provided that such employees and agents have legal obligations of confidentiality substantially the same (and in no case less protective) as the provisions of this Agreement.
7.3 Notification Obligation. If the Recipient becomes aware of any unauthorized use or disclosure of Discloser’s Confidential Information, then Recipient will promptly and fully notify the Discloser of all facts known to it concerning such unauthorized use or disclosure. In addition, if the Recipient or any of its employees or agents are required (by oral questions, interrogatories, requests for information, or documents in legal proceedings, subpoena, civil investigative demand, or other similar process) to disclose any of Discloser’s Confidential Information, the Recipient will not disclose the Discloser’s Confidential Information without providing the Discloser with commercially reasonable advance prior written notice to allow Discloser to seek a protective order or other appropriate remedy or to waive compliance with this provision. In any event, the Recipient will exercise its commercially reasonable efforts to preserve the confidentiality of the portion of the Discloser’s Confidential Information that Recipient is bound to furnish, including, without limitation, cooperating with Discloser to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded to the portion of the Discloser’s Confidential Information that is furnished.
7.4 Customer Content. As between BMC and Customer, Customer owns all rights, title and interest in and to Customer Content. Customer Content is deemed Confidential Information under this Agreement. BMC will use the Customer Content only as necessary to provide the Subscription Services in accordance with this Agreement. At any time during the term of the Subscription Services, Customer may request copies of all Customer Content from the Subscription Services. Customer is responsible for complying with all legal and contractual requirements, including its agreements with third parties. With the exception of Customer Content collected by the Subscription Services, Customer is solely responsible for the transmission of Customer Content to BMC and to the Subscription Services. Customer is solely responsible for the encryption of any Customer Content during such transmission.
7.5 Suggestions. Customer grants BMC a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into any BMC products or services any suggestions, enhancement requests, recommendations or other feedback provided by Customer relating to the Subscription Services.
8. DISCLAIMER OF DAMAGES AND LIMITS ON LIABILITY.
8.1 DISCLAIMER OF DAMAGES. NEITHER PARTY OR ITS AFFILIATES OR LICENSORS ARE LIABLE FOR ANY, SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES RELATING TO OR ARISING OUT OF THIS AGREEMENT OR THE SUBSCRIPTION SERVICES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST COMPUTER USAGE TIME, AND DAMAGE TO, OR LOSS OF USE OF, DATA), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND IRRESPECTIVE OF ANY NEGLIGENCE OF A PARTY OR WHETHER SUCH DAMAGES RESULT FROM A CLAIM ARISING UNDER TORT OR CONTRACT LAW. THE FOREGOING LIMITATIONS DO NOT APPLY TO EACH PARTY’S RESPONSIBILITIES IN SECTION 9, INFRINGEMENT BY A PARTY OF THE OTHER PARTY’S IP RIGHTS, GROSS NEGLIGENCE, WILLFUL MISCONDUCT, DEATH OR BODILY INJURY, ACTS OF FRAUD, NOR ANY LIABILITY WHICH MAY NOT BE EXCLUDED OR LIMITED BY LAW.
8.2 LIMITS ON LIABILITY. NEITHER PARTY OR ITS AFFILIATES OR LICENSORS SHALL HAVE AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SUBSCRIPTION SERVICES, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEEDING THE AMOUNTS ACTUALLY PAID BY AND PAYABLE FROM CUSTOMER FOR THE SUBSCRIPTION SERVICES GIVING RISE TO LIABILITY PURSUANT TO THE ORDER(S) THAT ARE IN EFFECT AS OF THE DATE THE LIABILITY FIRST AROSE. THE FOREGOING LIMITATIONS DO NOT APPLY TO EACH PARTY’S RESPONSIBILITIES IN SECTION 9, INFRINGEMENT BY A PARTY OF THE OTHER PARTY’S IP RIGHTS, GROSS NEGLIGENCE, WILLFUL MISCONDUCT, DEATH OR BODILY INJURY, ACTS OF FRAUD, NOR ANY LIABILITY WHICH MAY NOT BE EXCLUDED OR LIMITED BY LAW.
9. INFRINGEMENT CLAIMS.
9.1 Indemnification by BMC . If a third party asserts a claim against Customer asserting that Customer’s use of the Subscription Services, including Platform Services, Deliverables and Licenses as defined in the Attachments to this Agreement, in accordance with this Agreement violates that third-party’s IP Rights (“Infringement Claim”), then BMC will, at its own expense: (a) defend or settle the Infringement Claim; and (b) indemnify Customer for any damages finally awarded or settled upon against Customer based on infringement by the Subscription Services or Deliverables, including court costs and reasonable attorney’s fees. If BMC believes the Subscription Services may violate a right, then BMC will, at its expense: (a) modify the Subscription Services, or (b) procure the right to continue using the Subscription Services, and if (a) or (b) are not commercially reasonable, terminate Customer's right to use the Subscription Services and issue a pro-rata refund for the unexpired pre-paid portion of such Subscription Services.
9.2 Indemnification by Customer. Subject to the terms of this Agreement, if a third party asserts a claim against BMC asserting that any of the following violates that third-party’s IP Rights: (i) Customer Content, (ii) Customer Applications as defined in Attachment A, (iii) Customer Property as defined in Attachment B or (iv) Customer’s use of the Subscription Services in violation of this Agreement (“Claim”), then Customer will, at its own expense: (a) defend or settle the Claim; and (b) indemnify BMC for any damages finally awarded or settled upon against BMC based on the Claim, including court costs and reasonable attorney’s fees.
9.3 Indemnity Process. Neither party’s obligations under this Section 9 will apply if: (a) the indemnifying party’s legal department does not receive prompt, detailed written notice of the Infringement Claim/Claim from the party being indemnified, (b) the indemnifying party is not able to retain sole control of the defense of the Infringement Claim/Claim and all negotiations for its settlement or compromise, or (c) the indemnifying party does not receive all reasonable assistance from the party being indemnified. Neither party will bind the indemnified party to a monetary obligation in a settlement or compromise, or make an admission on behalf of the indemnified party, without obtaining that party’s prior consent. The indemnified party agrees to use all reasonable efforts to help the indemnifying party mitigate damages resulting from an Infringement Claim/Claim, including without limitation Customer promptly installing all On Premise Subscription Services updates BMC provides to mitigate any Infringement Claim.
9.4 THIS SECTION 9 CONTAINS EACH PARTY'S EXCLUSIVE REMEDIES AND THE INDEMNIFYING PARTY'S SOLE LIABILITY FOR INFRINGEMENT CLAIMS/CLAIMS, RESPECTIVELY.
10. EXPORT CONTROLS. Both parties agree to comply with applicable export regulations, including but not limited to U.S. Export Administration Regulations and the OFAC embargoes and sanctions lists. More information on BMC’s export compliance program may be found here: https://www.bmc.com/legal/export-compliance.html.
11. GOVERNING LAW AND DISPUTE RESOLUTION. Any controversy, dispute or claim arising out of or relating to this Agreement, or to the formation, interpretation, breach, termination, or validity thereof (each, a “Controversy”) will be resolved as follows:
(i) UNITED STATES. If both parties to this Agreement are entities incorporated under the law of any state in the United States, the Controversy shall be tried in either state or federal court located in Houston, Texas and the laws of the State of Texas shall govern. Both parties hereby submit to the exclusive jurisdiction of the courts in Houston, Texas and waive all defenses based on forum non conveniens. Notwithstanding the foregoing, if Customer is a state or local governmental entity or higher education institution and legally required to apply state law, then Customer’s state law will apply to the Controversy, without reference to conflict of law principles.
(ii) CANADA. If Customer is located in Canada (outside Quebec), then the law of the Province of Ontario law apply, without reference to conflict of law principles. If Customer is located in Quebec, then the laws of the Province Quebec will apply, without reference to conflict of law principles.
(iii) EMEA. If both parties to this Agreement are entities incorporated in countries in the Europe, Middle East, or Africa regions, the Controversy shall be tried in the District Court located in Amsterdam, the Netherlands and the substantive laws of the Netherlands shall govern. Both parties hereby submit to the exclusive jurisdiction of the District Court in Amsterdam, the Netherlands and waive all defenses based on forum non conveniens.
(iv) ASIA PACIFIC. If both parties to this Agreement are entities incorporated in countries in the Asia Pacific region, the arbitration shall be held in Singapore under the then-applicable rules of the Singapore International Arbitration Centre and the substantive laws of Singapore will govern.
(v) OTHER REGIONS. In all other instances, the arbitration shall be held in New York City, New York, under the then-applicable international rules of the American Arbitration Association and the substantive laws of the State of Texas will govern.
For all arbitrations conducted hereunder: (a) the arbitration shall be conducted in English; (b) the relevant arbitral institution shall determine the number of arbitrators, but any Controversy in which the amount in dispute is greater than $10 million USD shall be decided by three arbitrators, with each party having the right to select one arbitrator; (c) the costs of such arbitration shall be borne equally, pending the arbitrator’s award; (d) the arbitration award rendered shall be final and binding on the parties, shall not be subject to appeal to any court and shall be enforceable in any court having jurisdiction over the parties; (e) the arbitration proceedings, award and pleadings shall all be confidential, unless disclosure of particular information is required for purposes of enforcing/challenging the award or to meet local securities law requirements; and (f) the party prevailing in arbitration shall be entitled to recover its reasonable attorneys’ fees and the necessary costs incurred in connection with the arbitration.
The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. Nothing in this Agreement shall be deemed as preventing either party from seeking immediate injunctive relief from any court having jurisdiction over the parties and the subject matter of the dispute.
12. The following BMC contracting entities apply to this Agreement:
Region | Contracting Entity | Address of Contracting Entity |
United States and Latin America South (not a specified Central or South America country below) | BMC Software, Inc. | 2103 CityWest Boulevard, Houston, Texas 77042 |
Canada | BMC Software Canada Inc. | 50 Minthorn Boulevard, Suite 200 Markham, Ontario L3T 7X8 Canada |
EMEA (Europe, Middle East and Africa) | BMC Software Distribution B.V. | Vision Plaza West, 2nd floor, Boeingavenue 220, 1119PN Schiphol-Rijk, The Netherlands |
Brazil | BMC Brasil Software Ltda. | Avenida Rebouças n° 3.970 e Avenida Dra. Ruth Cardoso, n° 8.501 Condomínio Eldorado Business Tower, 22° andar, Pinheiros, São Paulo – SP, CEP: 05425-070 |
Mexico | BMC Software Distribution de México, S.A. de C.V. | Calle Volcán, No.150, Piso 2, Oficina 202, Col. Lomas de Chapultepec V Sección, C.P., 11000, Alcaldía Miguel Hidalgo, Ciudad de México |
Argentina | BMC Software de Argentina S.A. | Ing. Butty 220 - Piso 18, Catalinas Plaza Buenos Aires, República de Argentina, C1001A |
S.E.A (Southeast Asia), Australia, New Zealand, Hong Kong, Taiwan | BMC Software Ireland Unlimited Company | Building 3, Cherrywood Business Park, Bray Road, Loughlinstown, CO. Dublin, D18 TF72 |
China | BMC Software (China) Limited | Room 502, Level 5, Tower W1, The Towers, Oriental Plaza, No. 1 East Chang An Ave., Dong Cheng Dist., Beijing 100738, China |
Japan | BMC Software K.K. | Harmony Tower 24th Floor, 1-32-2 Honcho, Nakano-ku, Tokyo, 164-8721 |
Korea | BMC Software Korea Ltd | 9 FL Two IFC, 10 Gukjekeumyung-ro, Youngdeungpogu, Seoul 07326, South Korea |
13. U.S. GOVERNMENT END USER RIGHTS. This Section 13 applies only to acquisitions of the commercial Subscription Services subject to this Agreement by or on behalf of the United States Government, or by any prime contractor or subcontractor (at any tier) under any contract, grant, agreement or other activity with the United States Government. When Subscription Services are delivered or provided to the United States Government, the United States Government agrees that this commercial license Agreement and the Subscription Services governed by this Agreement are defined in accordance with and qualify as “commercial items” consisting of “commercial computer software” and “commercial computer software documentation” as outlined in FAR 12.211, FAR 12.212 and DFARS 227.7202-3, as applicable. The terms and conditions of this Agreement shall pertain to the United States Government’s use (including documentation or technical data), duplication, and disclosure of the Subscription Services, and shall supersede any conflicting contractual terms and conditions”.
14. DATA PROTECTION. The processing of Customer Content under this Agreement is governed by the BMC Data Processing Agreement set forth on the Order.
15. VERIFICATION. Customer agrees that BMC or its agent may monitor the Subscription Services to ensure Customer’s compliance with the terms of this Agreement. If such monitoring reveals that Customer has exceeded the Capacity for the Subscription Services, Customer will execute an Order for additional Capacity of such Subscription Services through the end of the term of such Subscription Services, promptly upon BMC’s request.
16. NOTIFICATIONS. Any general notifications regarding technical matters from BMC to Customer will be sent to the Customer contact stated in the Customer Technical Contact Information section of the Order. The Customer contact in the Order has been assigned by Customer as the Customer contact for operational issues that may arise. Customer shall notify BMC of any change to the Customer contact details in writing, which may include via e-mail or in a form in the Subscription Services. Customer will receive system notifications from BMC and its licensors, if applicable (i.e. planned downtime notices, etc.).
17. CONDUCTING BUSINESS WITH HONESTY AND INTEGRITY. BMC is committed to conducting business with honesty and integrity. BMC’s Code of Conduct set forth in https://www.bmc.com/legal/code-of-conduct.html governs the conduct of all officers, directors, and employees of BMC, and contingent workers and business partners acting on BMC’s behalf. BMC demonstrates its commitment to environmental stewardship by its global accreditation for ISO 14001:2015.
18. INFORMATION SECURITY. BMC employs comprehensive organizational and technical security safeguards to protect the security and integrity of Customer Content in line with industry best practices, as set forth in the Information Security Requirements found at http://www.bmc.com/content/dam/bmc/corporate/hinfosec.pdf.
19. FORCE MAJEURE. Neither party will be liable to the other for any delay or failure to perform any obligation under this Agreement (except for obligations of confidentiality or a failure to pay fees) if the delay or failure is due to events which are beyond the reasonable control of such party, including, but not limited to (i) Acts of God, explosion, flood, lightning, tempest, fire or accident; (ii) war, hostilities (whether war is declared or not), invasion, acts of foreign enemies; (iii) rebellion, revolution, insurrection, military or usurped power or civil war; (iv) riot, civil commotion or disorder; (v) acts, restrictions, regulations, refusals to grant any licenses or permission, prohibitions or measures of any kind on the part of any local, state, national, governmental or supra-governmental authority; and/or (vi) epidemics, pandemics, and quarantines (including but not limited to those connected with COVID-19) (a “Force Majeure Event”). If either party is affected by Force Majeure Events, it shall promptly notify the other party (when possible) in writing of the matters constituting the Force Majeure Events. If possible, the party affected by the Force Majeure Event shall take reasonable steps available to it to minimize the effects of the Force Majeure Events on the performance of its obligations under the Agreement and/or affected Order. If a Force Majeure Event prevents BMC from performing the Subscription Services for more than 30 days, either party may terminate this Agreement and all relevant Orders. Upon such termination BMC will refund all prepaid and unused amounts to Customer, provided Customer has paid BMC for all Subscription Services that were performed up to the date of termination.
20. INSURANCE. BMC will provide and maintain the following insurance, but only for losses arising out of BMC’s provision of Subscription Services: (a) Worker’s Compensation insurance as prescribed by the law of the state applicable to the employees performing the Subscription Services; (b) Employer’s Liability insurance with a limit of $1,000,000 USD for each occurrence; (c) Commercial General Liability insurance with $1,000,000 USD per occurrence combined single limit and $2,000,000 USD general aggregate, including coverage for Products Liability and Completed Operations; (d) Automobile Liability insurance, including coverage for Hired and Non-owned vehicles of $1,000,000 USD for combined single limit for bodily injury and/or property damage; and (e) Professional Liability insurance covering Errors and Omissions and Cyber Liability in the amount of $1,000,000 USD for each occurrence and in the aggregate associated with Subscription Services performed under this Agreement. BMC will provide certificates of insurance upon Customer’s request.
21. ASSIGNMENT. Customer has the right to assign this Agreement and all Orders in whole to an Affiliate, or to a successor in connection with (i) the sale of all or substantially all of the assets of Customer or (ii) a merger by operation of law, by providing written notice to BMC. The assignee may not be a known direct competitor of BMC. The successor entity or Affiliate must agree in writing with BMC (in advance of the assignment) to be bound by the terms of this Agreement. Any Customer transfer or assignment except as expressly authorized above will be null and void.
22. MISCELLANEOUS TERMS. The parties are independent contractors and this Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties. This Agreement, including the Attachments and Orders constitutes the entire agreement between Customer and BMC and supersedes and replaces (i) any prior or contemporaneous negotiations or agreements, whether oral or written concerning the Subscription Services and (ii) terms contained on or accessed through any customer portal or vendor onboarding website BMC is required to agree to. There are no representations, promises, warranties, covenants, or undertakings between the parties other than those expressly set forth in this Agreement. There are no third-party beneficiaries to this Agreement; Customer is not entering into a contractual relationship with BMC’s licensors and BMC’s licensors have no liability to Customer. A waiver by a party of any breach of any term of this Agreement will not be construed as a waiver of any continuing or succeeding breach. This Agreement may not be modified or rescinded except in writing signed by both parties. Should any provision of this Agreement be invalid or unenforceable, the remainder of the provisions will remain in effect. The Subscription Services may contain hyperlinks to websites controlled by parties other than BMC. BMC is not responsible for and does not endorse the content or accept any responsibility for Customer’s use of these websites. Customer should refer to the policies posted by other websites regarding privacy and other topics regarding data privacy before using them. The Subscription Services may contain third party software which is delivered to Customer as part of the Subscription Services and may not be taken out of the Subscription Services or used separately from the Subscription Services and for which additional terms may be included in the User Guide. In compliance with all applicable laws and for internal purposes only, BMC may compile and use de-identified, aggregate or statistical information related to Customer’s use of the Subscription Services for the purposes of enhancing and improving the Subscription Services, developing new products and services, and for other development, diagnostic, statistical and corrective purposes, provided that such information (a) does not incorporate Customer’s personally identifiable information or personal data and (b) does not identify or describe the Customer. Les parties exigent que la présente convention ainsi que les documents qui s’y rattachent soient rédigés en anglais.
Attachments incorporated into Agreement |
Attachment A – Platform Services Attachment |
Attachment B – Consulting Services Attachment |
Attachment C – On Premise Subscription Services Attachment |
PLATFORM SERVICES ATTACHMENT
to the
BMC CLOUD SERVICES MASTER AGREEMENT
Except as otherwise provided herein, the terms of the Cloud Services Master Agreement (the “Base Agreement”) are incorporated into this Platform Services attachment (the “Attachment”). Together, this Attachment and the Base Agreement (as incorporated into this Attachment) are referred to as the “Agreement” for purposes of Customer’s access and use of Platform Services, only if the Platform Services are set forth on an Order referencing the Base Agreement. For purposes of this Agreement, the term “Subscription Services” as defined in the Base Agreement shall be extended to include the Platform Services. In the event of a conflict between the Base Agreement and the terms of this Attachment, the terms of this Attachment will control for Customer’s access and use of the Platform Services only.
1. SCOPE. Subject to the terms of this Agreement, BMC will provide Customer with access to the Platform Service named in the applicable Order.
2. DEFINITIONS.
2.1 “Application” is the object code, its definitional structures, and data created to fulfill a particular purpose, which runs on the Platform Services. An Application may also include its documentation and User Guide.
2.2 “Customer Applications” means Applications that are owned or licensed by Customer, and which run on the Platform Services.
2.3 “Development Platform” means BMC provided development capabilities which allows Customer to develop a custom application to run on the Platform Services.
2.4 “Platform” means the generally available BMC-provided PaaS platform and its capabilities to run Applications.
2.5 “Platform Services” means the specific Platform Services identified in the Order.
3. BMC PLATFORM SERVICES.
3.1 BMC Platform Services Support. BMC will provide Support only for Platform Services. Customer is responsible for its own support for Customer Applications. For the avoidance of doubt, Support does not include development consulting.
4. CUSTOMER APPLICATIONS.
4.1 The terms contained in this section 4 apply only to Orders for Platform Services entitling Customers to develop and deploy Customer Applications onto the Platform Services. Any Customer Applications that run on the Platform Services are hereby excluded from the defined terms “Subscription Services” and “Platform Services”.
4.2 Development Platform. Customer may utilize the Development Platform to create an Application to run on the Platform Services. Customer’s use of the Development Platform is governed by the terms of this Agreement subject to the restrictions set forth in Sections 4.2.1 to 4.2.2 below. Customer’s development of an Application must meet the best practices development guidelines set forth in the User Guide. Each Customer Application shall at all times materially conform to policies and best practices set forth in the User Guide. Prior to the deployment of any Customer Applications in a production or non-production environment of the Platform Services, Customer must conduct security and functional tests of each Customer Application and submit the results of such tests to BMC for review. BMC reserves the right to reject Customer’s deployment request of a Customer Application based on the results of Customer’s security and functional tests. Additionally, BMC reserves the right, during the term of this Agreement, to request Customer conduct additional security and functional tests and provide the results of said tests to BMC for review. Notwithstanding the foregoing, Customer must ensure that at all times Customer Applications are secure.
4.2.1 Acceptable Use. The right to access and use the Development Platform is granted solely for the purpose of performing non-production application development work on the Development Platform. Customer agrees not to use the Development Platform to (1) process production data or for any other production purposes, including but not limited to publishing digital applications, or (2) distribute applications. Customer is responsible for acquiring all necessary and required licenses for the use of any third-party software, source code and/or libraries Customer may use as part of its development with the Development Platform.
4.2.2 Open Source. Customer may not use any software, library, utility, tool, or other computer or program code (“Code”) with the Subscription Services that in any way that would (i) weaken BMC’s intellectual property rights in the Services, or (ii) require the Subscription Services to become or be disclosed or distributed as Open Source Software. For purposes of this Section 4.2.2, “Open Source Software” means any Code that is substantially similar to, (A) the Affero General Public License, (B) the GNU General Public License (GPL) or Lesser/Library GPL (LGPL), (C) the Artistic License (e.g. PERL), (D) the Mozilla Public License, (E) the Netscape Public License, (F) the Sun Community Source License (SCSL), (G) the Sun Standards License (SISL), or (H) any “copyleft” license, or any other license that requires as a condition of use, reproduction, modification, or distribution that such Code or other software or computer code distributed with it: (1) be disclosed or distributed in source code form; (2) be licensed for the purpose of creating derivative works; (3) be licensed under terms that allow reverse engineering, reverse assembly, or disassembly of any kind; (4) be subject to a patent non-assert or royalty-free patent license; or (iv) be redistributable at no charge.
4.3 License to Customer Applications. Subject to the terms and conditions of this Agreement, Customer hereby grants BMC a worldwide, limited, nonexclusive license during the term of the applicable Order for the Platform Services to host, copy, transmit, adapt and display Customer Applications solely for the purpose of fulfilling BMC’s obligations under this Agreement.
4.4 Functionality of Customer Applications. Customer is solely responsible for the operation of Customer Applications, including but not limited to any information stored in or transmitted by Customer Applications. Customer is responsible for monitoring the usage of each Customer Application. Customer is responsible for the configuration, functionality, performance, compliance with applicable data protection laws and security of all Customer Applications, including any interfaces used to connect to Customer Applications.
4.5 Customer Assistance. Customer will provide information or other materials related to a Customer Applications as reasonably requested by BMC to verify Customer’s compliance with the Agreement and the User Guide.
4.7 Suspension of Customer Applications. Customer’s use of the Platform Services may be immediately suspended and/or terminated due to (i) reasonable security threats regarding the Platform Services or Customer Applications, (ii) Customer Applications interfering with, disrupting or threatening the integrity or performance of the Subscription Services and/or the Platform Services, or (iii) violates the law, infringes or misappropriates the rights of any third party or otherwise violates a material term of the Agreement. In the event (i) or (ii) above apply to Customer Applications, Customer is required to remediate any such issue to BMC’s commercially reasonable satisfaction before use of Customer Applications can resume. BMC shall use reasonable commercial efforts to only suspend the non-conforming portion of the Platform Services.
4.8 CUSTOMER APPLICATIONS WARRANTIES. Customer warrants to BMC that: (a) each Customer Application will perform materially in accordance with the User Guide; (b) Customer has all rights in the Customer Content and Customer Applications necessary to grant the rights contemplated by this Agreement; (c) none of the Customer Content or Customer Applications or Users’ use of Customer Content or Customer Applications will violate the Agreement and the User Guide; and (d) Customer’s security and functional tests of Customer Applications was conducted in a commercially reasonable manner and the results of said tests provided to BMC for review are correct and valid.
ATTACHMENT B
CONSULTING SERVICES ATTACHMENT
to the
BMC CLOUD SERVICES MASTER AGREEMENT
Except as otherwise provided herein, the terms of the Cloud Services Master Agreement (the “Base Agreement”) are incorporated into this Consulting Services attachment (the “Attachment”). Together, this Attachment and the Base Agreement (as incorporated into this Attachment) are referred to as the “Agreement” for purposes of Customer’s purchase of Consulting Services, only if Consulting Services are set forth on an Order referencing the Base Agreement. For purposes of this Agreement, the term “Subscription Services” as defined in the Base Agreement shall be extended to include Consulting Services. In the event of a conflict between the Base Agreement and the terms of this Attachment, the terms of this Attachment will control for Customer’s purchase of Consulting Services only. The parties agree that the following Sections of the Base Agreement do not apply to the Consulting Services provided under this Attachment: Section 3.2 (BMC Subscription Services Support), Section 4 (Fees and Payment), and Section 6 (Limited Warranty).
1. SCOPE. BMC agrees to render to Customer Consulting Services under the terms of this Agreement and as further described in an Order. BMC will render the Consulting Services in the location(s) as set forth in the Order. The performance of the Consulting Services will not relieve or alter the rights, obligations and responsibilities of Customer and of the BMC Affiliate providing Subscription Services and/or Licenses with respect to Subscription Services and/or Licenses under the applicable agreement. BMC will notify Customer in writing of any subcontractors prior to the commencement of the Consulting Services.
2. SERVICE FEES AND EXPENSES. The fees payable to BMC for the Consulting Services to be rendered will be detailed in the Order. BMC will submit invoices to Customer for such fees and incurred expenses either upon completion of the Consulting Services, or at stated intervals, in any case in accordance with the applicable Order. Customer shall pay amounts invoiced within 30 days of the date of the invoice. If Customer disputes an invoice in good faith, it will notify BMC within 30 days of receiving the invoice. The parties will seek to resolve such dispute over a 15-day discussion period. Customer is not required to pay disputed amounts during the discussion period, but will timely pay all undisputed amounts. After the discussion period, either party may pursue all available remedies.
3. EDUCATION. Customer may acquire Learning Pass Credits and Education Services (collectively, “BMC Education ”) on an Order. The BMC Education terms that govern such Orders are set forth in the Education Program Guide located at https://www.bmc.com/content/dam/bmc/education/education-program-guide.pdf, and is incorporated herein by this reference.
4. STATEMENTS OF WORK. Consulting Services may require the execution of a Statement of Work, in which case, such Statement of Work will be considered an Order for such Consulting Services. In the event of any conflict between the terms of a Statement of Work and this Agreement, the Agreement shall prevail except for matters of service fees, payment and reimbursement of expense, and termination of Consulting Services if further specified in the Statement of Work. During the term of an applicable Statement of Work, and for a period of six months thereafter, neither party will solicit for employment any employees, agents, or subcontractors of the other party or its affiliates who, within six months prior to such solicitation, had contact with the soliciting party based in whole or in part upon Consulting Services provided under this Agreement. The restrictions in this Section 4 shall be deemed not to apply to general solicitations for employment posted on Internet job sites or printed in newspapers or trade or professional journals.
5. PROPRIETARY RIGHTS AND RIGHTS IN DELIVERABLES.
5.1 Ownership of Materials Used in the Consulting Services. Unless specifically provided in an Order, Customer shall supply all of the facilities; equipment; supplies; computer programs; information about Customer’s business, systems, software and needs; and other materials necessary for completion of the Consulting Services (“Customer Property”), and BMC shall supply the people described in the Order, the know-how and the tools necessary to provide the Consulting Services, which may include, among other things, software, templates, questionnaires, graphs, methodologies, models, charts and reports (“BMC Property”). Customer Property and copies and modifications of Customer Property will remain the sole property of Customer or if applicable, Customer’s licensors, and BMC Property and copies and modifications of BMC Property will remain the sole property of BMC or if applicable, BMC’s licensors. Customer hereby grants to BMC a royalty-free, paid-up, non-exclusive, non-sublicensable and non-transferable license to use the Customer Property for the purpose of providing the Consulting Services.
5.2 Deliverables. Deliverables are those created under the Order, including, but not limited to, software, software scripts, routines, libraries or other code, or appliances, methodologies, templates, tools, policies, records, working papers, reports, methodologies, know-how, data, or other intellectual property, written or otherwise, including any derivative works or modifications to the above, whether pre-existing or created during the performance of the Consulting Services and all proprietary and intellectual property rights embedded therein delivered as a result of the Consulting Services as specified under the Order. BMC owns all right, title and interest in the Deliverables. Provided Customer has paid in full for the Consulting Services that resulted in the Deliverables, BMC will deliver the Deliverables to Customer in accordance with the applicable Order. Subject to compliance with the terms of this Agreement and the applicable Order, BMC grants Customer a non-exclusive, non-transferable, non-sublicensable, royalty-free, paid-up license to use, create derivative works of and modify all Deliverables solely for its internal business operations. If Customer is a contractor engaging BMC for the benefit of a third party (“Client”), then provided that the Client is properly identified in the Statement of Work and that Customer is responsible for such Client’s compliance with the provisions of this Agreement and the relevant Statement of Work, Customer may assign to the Client the rights granted to Customer in this Section 5.2.
5.3 Copyright Notice. Each party agrees to reproduce the copyright notice and any other legend or ownership notice on any copies made under the licenses granted pursuant to this Section 5.
5.4 Retention. Customer acknowledges that BMC provides similar services to other customers and that nothing in this Agreement shall be construed as operating to prevent BMC from carrying on such business. Further BMC may use ideas, concepts, or know-how developed or acquired by BMC during performance of the Consulting Services to the extent by BMC’s personnel as impressions and general learning.
6. LIMITED WARRANTY. BMC warrants that it will perform the Consulting Services in conformance with generally accepted practices within the software services industry and in accordance with the Order. Customer must notify BMC of any breach of this warranty no later than 90 days after completion of the Consulting Services under the Order. Customer’s exclusive remedy and BMC’s entire liability under this warranty shall be for BMC to re-perform any non-conforming portion of the Consulting Services within a reasonable period of time, or if BMC cannot remedy the breach during such time period then refund the portion of the fee attributable to such non-conforming portion of the Consulting Services under the Order. This warranty will not apply to the extent Customer, its contractors or agents have modified any Deliverable, unless otherwise authorized by BMC in writing.
EXCEPT FOR THE EXPRESS WARRANTIES IN THIS AGREEMENT, THE CONSULTING SERVICES AND DELIVERABLES ARE PROVIDED WITH NO OTHER WARRANTIES WHATSOEVER, AND BMC, ITS AFFILIATES AND LICENSORS DISCLAIM ALL OTHER WARRANTIES, INCLUDING, FITNESS FOR A PARTICULAR PURPOSE AND IN THE UNITED STATES AND CANADA, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, AND NON-INFRINGEMENT.
7. MUTUAL INDEMNITY. Each party shall indemnify and hold harmless the other party from all claims, liabilities or expenses for physical damage to real property or tangible personal property and bodily injury, including death, to the extent caused by the negligence, gross negligence or willful misconduct of the indemnifying party’s employees or contractors arising out of this Agreement and while at the Customer’s premises. The foregoing indemnities are contingent upon the party seeking indemnity giving prompt written notice to the indemnifying party of any claim, demand or action, and cooperating with the indemnifying party in the defense or settlement of any such claim, demand or action.
8. INDEPENDENT CONTRACTOR. All of the services performed by BMC under this Agreement will be performed as an independent contractor.
ATTACHMENT C
ON PREMISE SUBSCRIPTIONS ATTACHMENT
to the
BMC CLOUD SERVICES MASTER AGREEMENT
Except as otherwise provided herein, the terms of the Cloud Services Master Agreement (the “Base Agreement”) are incorporated into this On Premise Subscriptions attachment (the “Attachment”). Together, this Attachment and the Base Agreement (as incorporated into this Attachment) are referred to as the “Agreement” for purposes of Customer’s purchase and ongoing use of On Premise Subscriptions, only if On Premise Subscriptions are set forth on an Order referencing the Base Agreement. For purposes of this Agreement, the term “Subscription Services” as defined in the Base Agreement shall be extended to include On Premise Subscriptions. In the event of a conflict between the Base Agreement and the terms of this Attachment, the terms of this Attachment will control for Customer’s purchase of On Premise Subscriptions only. The parties agree that the following Sections of the Base Agreement do not apply to the On Premise Subscriptions provided under this Attachment: Section 3.1 (Access Rights), Section 3.5 (Acceptable Use Policy and Restrictions), Section 6 (Limited Warranty) and Section 15 (Verification).
1. DEFINITIONS.
1.1 “Authorized User” means Customer, Customer Affiliate(s), and their employees, consultants, contractors and agents that are acting under the instructions and control of Customer or Customer Affiliate(s) and are bound by the terms and conditions no less restrictive than those contained herein and for whom Customer takes full responsibility. Notwithstanding the foregoing, Authorized Users do not include service providers or outsourcers.
1.2 "Documentation" means the technical publications relating to the software, such as release notes, license entitlement descriptions, reference, user, installation, systems administrator and technical guidelines, included with the On Premise Subscription.
1.3 “Licensed Capacity” is the amount of each On Premise Subscription licensed as established in the Order.
1.4 “On Premise Subscription” is the object code of the software and all accompanying Documentation delivered to Customer, including all items delivered by BMC to Customer under Support.
2. LICENSE. Subject to the terms, conditions, payment requirements and restrictions set forth in this Agreement, BMC grants Customer a non-exclusive, non-transferable, non-sub-licensable term license to install in the Territory as defined in an Order, access and use the On Premise Subscription during the term specified on the Order (i) by Authorized User(s), (ii) up to the Licensed Capacity, (iii) for Customer’s and its Affiliates’ internal business operations, (iv) in accordance with the Documentation and the applicable Order, and (v) make a reasonable number of copies of the On Premise Subscription for archival purposes only (collectively a "License"). Affiliates may use and access the On Premise Subscriptions under the terms of this Agreement, and Customer is responsible for its Affiliates compliance with the terms of this Agreement.
3. RESTRICTIONS. Customer will not: (a) copy, operate or use any On Premise Subscription in excess of the applicable Licensed Capacity or other than as set forth in the License above; (b) modify, delete or remove any ownership, title, trademark, patent or copyright notices (“Identification”) from any On Premise Subscription, or copy or partial copy of an On Premise Subscription; (c) disassemble, reverse engineer, decompile or otherwise attempt to derive any On Premise Subscription source code from object code, except to the extent expressly permitted by applicable law despite this limitation without possibility of contractual waiver; (d) distribute, rent, lease, sublicense or provide the On Premise Subscription to any third party; (e) use the On Premise Subscriptions in an outsourcing or service bureau environment on behalf of non-Affiliate third parties, or allow the On Premise Subscriptions to be used by an outsourcing or service bureau provider on Customer’s behalf; (f) conduct penetration test or security vulnerability tests of any type on the On Premise Subscription without BMC’s prior written consent; (g) publish or make public any benchmark, security, or performance data or information about the On Premise Subscription without BMC’s prior written consent; or (h) attempt to disable or circumvent any of the licensing mechanisms within the On Premise Subscription.
4. ON PREMISE SUBSCRIPTION PERFORMANCE WARRANTY. BMC warrants that (a) the On Premise Subscription will perform in substantial accordance with its Documentation for a period of one year from the date of the first Order, (b) BMC has used commercially reasonable efforts consistent with industry standards to scan for and remove software viruses, and (c) other than passwords that may be required for the operation of the On Premise Subscription, BMC has not inserted any code that is not addressed in the Documentation and that is designed to delete, interfere with or disable the normal operation of the On Premise Subscription in accordance with the License. This warranty will not apply to any problems caused by hardware, Computers, or software other than the On Premise Subscription, or misuse of the On Premise Subscription, use of the On Premise Subscription other than as provided by the applicable License, modification of the On Premise Subscription, or claims made either outside the warranty period or not in compliance with the notice and access requirements set forth below. No warranty is provided for additional Licensed Capacity, On Premise Subscription provided pursuant to Support.
BMC’s entire liability, and Customer’s exclusive remedy, for breach of the above warranty is limited to: BMC’s use of commercially reasonable efforts to have the On Premise Subscription perform in substantial accordance with its Documentation, or replacement of the non-conforming On Premise Subscription within a reasonable period of time, or if BMC cannot have the On Premise Subscription perform in substantial accordance with its Documentation or replace the On Premise Subscription within such time period, then BMC will refund the amount paid by Customer for the License for that On Premise Subscription. Customer agrees to provide BMC during the warranty period (i) full cooperation and access to the On Premise Subscription in resolving any claim; and (ii) written notice that includes notice of the claim, a complete description of the alleged defects sufficient to permit their reproduction in BMC’s development or support environment, and a reference to the Documentation to which such alleged defects are contrary.
EXCEPT FOR THE EXPRESS WARRANTIES IN THIS ATTACHMENT, THE ON PREMISE SUBSCRIPTION IS PROVIDED WITH NO OTHER WARRANTIES WHATSOEVER, AND BMC, ITS AFFILIATES AND LICENSORS DISCLAIM ALL OTHER WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE AND IN THE UNITED STATES AND CANADA, MERCHANTABILITY AND NON-INFRINGEMENT. BMC DOES NOT WARRANT THAT THE OPERATION OF THE ON PREMISE SUBSCRIPTION WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT ALL DEFECTS CAN BE CORRECTED.
5. DELIVERY. For On Premise Subscriptions that are delivered electronically, upon request from BMC, Customer agrees to provide BMC with documentation supporting that the designated On Premise Subscription was received electronically. If Customer accepts any On Premise Subscription in a non-electronic format, there may be an additional charge and it is the sole responsibility of Customer to bear any sales/use tax obligation, penalties, and interest. All On Premise Subscriptions are licensed FCA (“Free Carrier” as per Incoterms 2000) shipping point. The On Premise Subscriptions are accepted on the date BMC delivers the On Premise Subscription to the Customer either physically or by providing access codes for electronic download, whichever occurs first, however, such acceptance will not affect the On Premise Subscription Performance Warranty provided in this Agreement.
6. AUDIT. If requested by BMC, and not more than once a year, Customer agrees to deliver to BMC, within 30 days of such request, as specified by BMC (a) periodic product usage reports generated from specific products (b) third party usage reports related to the On Premise Subscriptions (e.g., SCRT reports) and (c) written periodic product usage reports, to be provided solely when the product does not generate reports (together, “Reports”). Additionally, if requested by BMC not more than once a year and upon at least ten days prior written notice to Customer, Customer agrees to allow BMC to perform an audit (“Audit”) to ensure compliance with the terms of this Agreement at the locations where the On Premise Subscriptions are installed, during normal business hours. to ensure compliance with the terms of this Agreement. Customer agrees to cooperate during any such Audit and to provide reasonable access to its information and systems. If Customer is found to have exceeded its Licensed Capacity for an On Premise Subscriptions based on such Reports or Audit, then Customer agrees to pay the applicable fees for the additional capacity through the end of the applicable Order term upon receipt of an invoice from BMC.
Effective May 10th 2024 to July 25th 2024
DownloadTable of Contents
BMC CLOUD SERVICES MASTER AGREEMENT
THIS CLOUD SERVICES MASTER AGREEMENT (“AGREEMENT”) GOVERNS YOUR FREE TRIAL, IF ANY, OF THE SUBSCRIPTION SERVICES.
IF YOU PURCHASE THE SUBSCRIPTION SERVICES, THIS AGREEMENT WILL ALSO GOVERN YOUR PURCHASE AND ONGOING USE OF THE SUBSCRIPTION SERVICES.
BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SUBSCRIPTION SERVICES.
You may not access the Subscription Services if you are BMC’s direct competitor, except with BMC’s prior written consent. In addition, you may not access the Subscription Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.
This Agreement was last updated on May 10, 2024. This Agreement is between the entity or individual entering into this Agreement (“Customer”) and the BMC Contracting Entity for the applicable region as described in Section 12 (“BMC”). It is effective between Customer and BMC as of the date of your acceptance of this Agreement. If Customer has a fully executed BMC Cloud Services Master Agreement then such fully executed BMC Cloud Services Master Agreement supersedes and replaces any clickwrap or click-through agreements (or other similar agreements) that Customer may be required to accept as a part of accessing or using the Subscription Services. For Customer’s convenience, prior versions of this Agreement are available at https://www.bmc.com/legal/csma.html.
FREE TRIAL.
BMC may make the Subscription Services available to Customer on a trial basis free of charge. If BMC offers Customer a free trial, it will run until the earlier of (a) the end of the trial period stated on the trial registration web page or (b) the start date of any Order for purchase of the Subscription Services. Additional trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.
ANY DATA CUSTOMER ENTERS INTO THE SUBSCRIPTION SERVICES, AND ANY CUSTOMIZATIONS MADE TO THE SUBSCRIPTION SERVICES BY OR FOR CUSTOMER, DURING A FREE TRIAL MAY BE PERMANENTLY LOST.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THE AGREEMENT, DURING ANY FREE TRIAL PERIOD THE SUBSCRIPTION SERVICES ARE PROVIDED “AS IS” WITH NO WARRANTY.
1. DEFINITIONS.
1.1 “Affiliate” is an entity that controls, is controlled by or shares common control with BMC or Customer, where such control arises from the legal power to direct or cause the direction of the general management and policies of the company, partnership or legal entity.
1.2 "Capacity” means the amount of access to the Subscription Services purchased as specified in an Order, which is counted in accordance with the Unit of Measure described in the Order.
1.3 “Consulting Services” means the consulting, implementation, training or other services provided under the terms of Attachment B (Consulting Services) and as further described under the applicable Order.
1.4 “Customer Content” means all electronic data or information (a) submitted to the Subscription Services by Customer, a third party on behalf of Customer, or as directed by Customer or (b) collected, processed or returned by the Subscription Services.
1.5 “IP Rights” means all intellectual property or other proprietary rights worldwide, including patents, trade secrets, copyrights, trademarks, moral rights, and any other intellectual or industrial property including registrations, applications, renewals, and extensions of such rights.
1.6 “Order” means (i) the agreed ordering document for the purchase of the Subscription Services, (ii) that is subject to this Agreement, and (iii) that identifies the terms of the purchase and fees to be paid. The term “Order” includes Customer’s online registration for and purchase of the Subscription Services, If any.
1.7 "Subscription Services" means the generally available hosted service which packages web-based access and the right-to-use the supported applications, installed agents and associated reference, user and technical guides.
1.8 “User Guide” means the online help, functional guide and technical specifications for the Subscription Services, as updated by BMC from time to time. The User Guides may be viewed here: https://docs.bmc.com/docs/.
2. SCOPE. Subject to the terms of this Agreement, Customer may purchase and BMC will provide Customer with access to the Subscription Services as set forth in this Agreement and the applicable Order. Subject to the Attachments to this Agreement, Customer may also purchase BMC Platform Services, BMC Consulting Services and BMC On Premise Subscription Services. In the event of a direct conflict between any Order and the terms of this Agreement, the terms of the Order will control only if the Order is executed by an authorized representative of each party. Each Order is deemed to be a discrete contract, separate from each other Order, unless expressly stated otherwise therein. Orders may be entered under this Agreement by and between (a) BMC or an Affiliate of BMC; and (b) Customer or an Affiliate of Customer. With respect to an Order, the terms “BMC” and “Customer” as used in this Agreement will be deemed to refer to the entities that execute that Order, the Order will be considered a two party agreement between such entities, and BMC will separately invoice the Customer named in the Order for the associated fees. Orders may also be placed via a BMC authorized reseller. Neither execution of this Agreement, nor anything contained herein, shall obligate either party to enter into any Orders. In the event an Order is proposed by BMC and is deemed to constitute an offer, then acceptance of such offer is limited to its terms. In the event Customer proposes an Order by submitting a purchase order, then regardless of whether BMC acknowledges, accepts or fully or partially performs under such purchase order, BMC OBJECTS to any additional or different terms in the purchase order.
3. ACCESS TO SUBSCRIPTION SERVICES.
3.1 Access Rights. Subject to the terms of this Agreement, BMC will provide Customer with worldwide access to the Subscription Services in accordance with the Order (i) up to the Capacity, (ii) for Customer’s and its Affiliates’ internal business operations, (iii) in accordance with the User Guide and the applicable Order. Customer may exercise its rights under this Section 3.1 through its employees, consultants, contractors, agents, and Affiliates (all, “Users”).
3.2 BMC Subscription Services Support. BMC will provide the support described at http://www.bmc.com/support/review-policies (“Support”) to Customer for the Subscription Services.
3.3 Use of Subcontractors. Customer acknowledges and agrees that BMC uses subcontractors to provide portions of the Subscription Services. BMC’s subcontractors acting as subprocessors are listed in the Data Processing Agreement between the parties and/or on each Order. BMC is responsible for the performance of all subcontractors providing any of the Subscription Services and for such subcontractors’ compliance with the terms of this Agreement.
3.4 Compliance with Laws. Each party shall comply with all applicable laws in the performance of its obligations under this Agreement.
3.5 Acceptable Use Policy and Restrictions.
(a) Customer will (i) maintain the confidentiality of all authentications and passwords for the Subscription Services and immediately notify BMC if it becomes aware that an unauthorized party has gained access such authentications and passwords, (ii) be responsible for use of the Subscription Services by its Users in compliance with this Agreement, (iii) prevent unauthorized access to, or use of, the Subscription Services, and notify BMC promptly of any such unauthorized access or use, and (iv) be responsible for obtaining its own Apple Push Notification certificate, if the Subscription Services are used to manage devices running iOS. Customer is responsible for the creation and implementation of a privacy policy and end user agreement, if applicable, which will set forth the guidelines of how Customer uses and protects the data and personal information of its Users, and how said Users may utilize the Subscription Services.
(b) Customer will not (i) modify, copy or create derivative works based on the Subscription Services; (ii) create Internet “links” to or reproduce any content forming part of the Subscription Services, other than for its own internal business purposes; (iii) disassemble, reverse engineer, or decompile the Subscription Services or part thereof, except to the extent expressly permitted by applicable law despite this limitation without possibility of contractual waiver; (iv) interfere with or disrupt the integrity or performance of the Subscription Services; (v) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortuous material, or send or store material in violation of any third party’s privacy rights via the Subscription Services; (vi) send or store viruses or malicious code via the Subscription Services; (vii) attempt to gain unauthorized access to the Subscription Services or its related software, systems, platforms or networks, including any form of security and/or penetration testing; (viii) use any components provided with the Subscription Services separately from the Subscription Services; (ix) distribute, rent, lease or provide the Subscription Services to any third party or use it in a service bureau, outsourcing environment, or for the processing of third party data; (x) conduct penetration test or security vulnerability tests of any type on the Subscription Services without BMC’s prior written consent; (xi) publish or make public any benchmark, security, or performance data or information about the Subscription Services without BMC’s prior written consent; or (xii) use any third party components, systems, platforms or networks that are delivered as part of the Subscription Services separately from such Subscription Services.
4. FEES AND PAYMENT.
4.1 Fees. The fees payable for the Subscription Services and the payment period for such fees will be set forth in and paid in accordance with the Order. All payments are due within 30 days of the date of the invoice.
4.2 Late Fees. Late balances may, at BMC’s sole election, bear interest at a rate equal to the lesser of 1% per month or the maximum amount permitted by law.
4.3 Taxes. Customer will pay taxes imposed in connection with the fees paid for the Subscription Services, which are exclusive of these taxes.
4.4 Payment Disputes. If Customer disputes an invoice in good faith, it will notify BMC within 30 days of receiving the invoice. The parties will seek to resolve such dispute over a 15-day discussion period. Customer is not required to pay disputed amounts during the discussion period, but will timely pay all undisputed amounts. After the discussion period, either party may pursue all available remedies.
4.5 Solution Providers. With regard to Subscription Services acquired by Customer through an authorized reseller of BMC (“Solution Provider”), notwithstanding anything to the contrary in Sections 4.1 to 4.4 above, Customer will have no direct payment obligations to BMC for such fees.
5. TERM, SUSPENSION AND TERMINATION.
5.1 Term. This Agreement begins on the Effective Date and will remain in effect unless terminated pursuant to Section 5.2 below, regardless of the billing frequency selected in the Order.
5.2 Termination.
(a) Termination for Convenience. Customer may terminate this Agreement by providing BMC with at least 30 days prior written notice; provided, however, such termination will have no effect on Orders in effect at the time of such termination. Orders may not be terminated for convenience unless otherwise specified therein. Customer may notify BMC of its intent to terminate by emailing BMC at order_services@bmc.com.
(b) Termination for Cause. Either party may terminate this Agreement and/or an Order for cause upon 30 days’ written notice of a material breach to the other party if such breach remains uncured at the expiration of such period. In the event Customer terminates the Agreement and an Order for BMC’s material breach, BMC will refund the amount paid by Customer to BMC for the Subscription Services on such Order, pro-rated from the date of the notice of the termination.
5.3 Suspension of Subscription Services for Cause. In addition to its other rights and remedies, BMC reserves the right, without liability to Customer, to suspend any and all access to the Subscription Services if Customer commits a material breach of this Agreement and fails to cure the same within 30 days from Customer’s receipt of written notice of such breach from BMC. Provided however, that BMC may immediately suspend any and all access to the Subscription Services without any cure period if BMC determines in good faith that Customer’s material breach of the Agreement will cause material harm to BMC, the Subscription Services, or any other customer. Once the material breach is resolved, BMC will promptly restore Customer’s access to the Subscription Services in accordance with this Agreement.
5.4 Effects of Termination. Upon termination or expiration of any Order or this Agreement, all rights and Licenses granted thereunder will terminate and Customer will make no further use of the Subscription Services. No termination will relieve the Customer of the obligation to pay any fees accrued or payable to BMC pursuant to any Order. Upon written request by Customer made within 60 days after the effective date of termination, BMC will make the Customer Content available to Customer for retrieval in an industry standard format. After such 60-day period, BMC shall have no obligation to maintain any Customer Content and will thereafter delete Customer Content. Any terms in this Agreement which by their nature extend beyond termination of this Agreement will remain in effect until fulfilled.
5.5 Termination Assistance. Upon Customer’s request and upon (a) the expiration of an Order or (b) the termination of an Order for any reason other than Customer’s breach, BMC shall perform such services as the parties in good faith agree are reasonably necessary to facilitate the orderly transition of the Services to the successor service provider or to the Customer. BMC will provide any such services under the terms and conditions of the Agreement, and subject to payment of the then-current fees and charges, generally applicable to BMC’s performance of such services, as agreed between the parties at such time.
6. LIMITED WARRANTY.
6.1 Warranties and Limited Remedies. BMC warrants to Customer that:
(a) the online availability of the Subscription Services will be maintained in accordance with the service levels described at https://www.bmc.com/content/dam/bmc/corporate/service-level-agreement.pdf (the “Service Level Agreement” or “SLA”). Customer’s exclusive remedy and BMC’s sole obligation for breach of the warranty in this Section 6.1(a) is described in the Service Level Agreement; and
(b) the Subscription Services (i) will perform in substantial accordance with the then-current on-line User Guide available via the Subscription Services, (ii) will be performed in a manner consistent with industry standards reasonably applicable to the provision thereof and (iii) will not materially degrade during the term of any Order. Customer’s exclusive remedy and BMC’s sole obligation for breach of the warranty in this Section 6.1(b) will be BMC’s use of commercially reasonable efforts to have the Subscription Services perform in substantial accordance with the User Guide, or replace the non-conforming portion of the Subscription Services within 30 days from the written notice of claim, or if BMC cannot have the Subscription Services perform in substantial accordance with the User Guide or replace the Subscription Services within such time period, then Customer may terminate the non-performing Subscription Services, and upon such termination BMC will refund the amount paid by Customer for the Subscription Services, pro-rated from the date of the notice of the claim. Customer agrees to provide BMC with written notice of the claim, a description of the alleged defects and a reference to the User Guide to which such alleged defects are contrary.
(c) In connection with the Subscription Services (i) it has used commercially reasonable efforts consistent with industry standards to scan for and promptly remove any software viruses for no charge and (ii) it has not inserted any Disabling Code. “Disabling Code” means computer code inserted by BMC, that is not addressed in the User Guide, and that is designed to expose data, delete, interfere with, and/or disable the normal operation of the Subscription Services. This Disabling Code warranty does not apply to BMC passwords necessary for the operation of the Subscription Services, or for any use by Customer outside the scope of this Agreement.
6.2 Disclaimer. CUSTOMER ACKNOWLEDGES THAT, EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, BMC, ITS AFFILIATES AND LICENSORS MAKE NO WARRANTY, EXPRESS, IMPLIED OR STATUTORY WITH RESPECT TO THE SUBSCRIPTION SERVICES OR USE THEREOF. BMC, ITS AFFILIATES AND LICENSORS HEREBY EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY THAT SUBSCRIPTION SERVICES WILL BE UNINTERRUPTED, ERROR FREE OR WITHOUT DELAY, AND THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INTERFERENCE, NON-INFRINGEMENT AND INFORMATION CONTENT.
7. PROPRIETARY RIGHTS AND CONFIDENTIALITY.
7.1 Proprietary Rights. BMC, its Affiliates or licensors retain all right, title and interest to the Subscription Services and all related intellectual property and proprietary rights. The Subscription Services are protected by applicable copyright, trade secret, industrial and other intellectual property laws. BMC owns all right, title and interest in all software, programming, documentation, templates, questionnaires, methodologies, models, charts, reports, ideas, features, content, functions, graphics and any other items provided as part of the Subscription Services (“ Service Items”) and access to and use of the relevant Service Items will be governed by the terms of this Agreement. Subject to (i) BMC’s or its licensor’s ownership of any Service Items and (ii) Section 3.5 (b)(i) of the Agreement, Customer owns all rights, title, and interest in Customer Applications, including all proprietary and intellectual property rights. BMC reserves any rights not expressly granted to Customer. Customer shall not access the Subscription Services in order to build a competitive product or service or copy any ideas, features, functions or graphics of the Subscription Services.
7.2 Confidentiality. "Confidential Information” means all proprietary or confidential information that is disclosed to the recipient (“Recipient”) by the discloser (“ Discloser”), and includes, among other things (i) any and all information relating to products or services provided by a Discloser, its customer-related and financial information, software code, BMC product vulnerabilities, flow charts, techniques, specifications, development and marketing plans, strategies, and forecasts; (ii) as to BMC, and its licensors, the Subscription Services and Service Items; and (iii) the terms of this Agreement, including without limitation, pricing information. Confidential Information does not include information that Recipient can show: (a) was rightfully in Recipient’s possession without any obligation of confidentiality before receipt from the Discloser; (b) is or becomes a matter of public knowledge through no fault of Recipient; (c) is rightfully received by Recipient from a third party without violation of a duty of confidentiality; or (d) is or was independently developed by or for Recipient. Recipient may not disclose Confidential Information of Discloser to any third party or use the Confidential Information in violation of this Agreement. The Recipient (i) will exercise the same degree of care and protection with respect to the Confidential Information of the Discloser that it exercises with respect to its own Confidential Information and (ii) will not, either directly or indirectly, disclose, copy, distribute, republish, or allow any third party to have access to any Confidential Information of the Discloser. Notwithstanding the foregoing, Recipient may disclose Discloser’s Confidential Information to Recipient’s employees and agents who have need to know provided that such employees and agents have legal obligations of confidentiality substantially the same (and in no case less protective) as the provisions of this Agreement.
7.3 Notification Obligation. If the Recipient becomes aware of any unauthorized use or disclosure of Discloser’s Confidential Information, then Recipient will promptly and fully notify the Discloser of all facts known to it concerning such unauthorized use or disclosure. In addition, if the Recipient or any of its employees or agents are required (by oral questions, interrogatories, requests for information, or documents in legal proceedings, subpoena, civil investigative demand, or other similar process) to disclose any of Discloser’s Confidential Information, the Recipient will not disclose the Discloser’s Confidential Information without providing the Discloser with commercially reasonable advance prior written notice to allow Discloser to seek a protective order or other appropriate remedy or to waive compliance with this provision. In any event, the Recipient will exercise its commercially reasonable efforts to preserve the confidentiality of the portion of the Discloser’s Confidential Information that Recipient is bound to furnish, including, without limitation, cooperating with Discloser to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded to the portion of the Discloser’s Confidential Information that is furnished.
7.4 Customer Content. As between BMC and Customer, Customer owns all rights, title and interest in and to Customer Content. Customer Content is deemed Confidential Information under this Agreement. BMC will use the Customer Content only as necessary to provide the Subscription Services in accordance with this Agreement. At any time during the term of the Subscription Services, Customer may request copies of all Customer Content from the Subscription Services. Customer is responsible for complying with all legal and contractual requirements, including its agreements with third parties. With the exception of Customer Content collected by the Subscription Services, Customer is solely responsible for the transmission of Customer Content to BMC and to the Subscription Services. Customer is solely responsible for the encryption of any Customer Content during such transmission.
7.5 Suggestions. Customer grants BMC a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into any BMC products or services any suggestions, enhancement requests, recommendations or other feedback provided by Customer relating to the Subscription Services.
8. DISCLAIMER OF DAMAGES AND LIMITS ON LIABILITY.
8.1 DISCLAIMER OF DAMAGES. NEITHER PARTY OR ITS AFFILIATES OR LICENSORS ARE LIABLE FOR ANY, SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES RELATING TO OR ARISING OUT OF THIS AGREEMENT OR THE SUBSCRIPTION SERVICES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST COMPUTER USAGE TIME, AND DAMAGE TO, OR LOSS OF USE OF, DATA), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND IRRESPECTIVE OF ANY NEGLIGENCE OF A PARTY OR WHETHER SUCH DAMAGES RESULT FROM A CLAIM ARISING UNDER TORT OR CONTRACT LAW. THE FOREGOING LIMITATIONS DO NOT APPLY TO EACH PARTY’S RESPONSIBILITIES IN SECTION 9, INFRINGEMENT BY A PARTY OF THE OTHER PARTY’S IP RIGHTS, GROSS NEGLIGENCE, WILLFUL MISCONDUCT, DEATH OR BODILY INJURY, ACTS OF FRAUD, NOR ANY LIABILITY WHICH MAY NOT BE EXCLUDED OR LIMITED BY LAW.
8.2 LIMITS ON LIABILITY. NEITHER PARTY OR ITS AFFILIATES OR LICENSORS SHALL HAVE AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SUBSCRIPTION SERVICES, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEEDING THE AMOUNTS ACTUALLY PAID BY AND PAYABLE FROM CUSTOMER FOR THE SUBSCRIPTION SERVICES GIVING RISE TO LIABILITY PURSUANT TO THE ORDER(S) THAT ARE IN EFFECT AS OF THE DATE THE LIABILITY FIRST AROSE. THE FOREGOING LIMITATIONS DO NOT APPLY TO EACH PARTY’S RESPONSIBILITIES IN SECTION 9, INFRINGEMENT BY A PARTY OF THE OTHER PARTY’S IP RIGHTS, GROSS NEGLIGENCE, WILLFUL MISCONDUCT, DEATH OR BODILY INJURY, ACTS OF FRAUD, NOR ANY LIABILITY WHICH MAY NOT BE EXCLUDED OR LIMITED BY LAW.
9. INFRINGEMENT CLAIMS.
9.1 Indemnification by BMC . If a third party asserts a claim against Customer asserting that Customer’s use of the Subscription Services, including Platform Services, Deliverables and Licenses as defined in the Attachments to this Agreement, in accordance with this Agreement violates that third-party’s IP Rights (“Infringement Claim”), then BMC will, at its own expense: (a) defend or settle the Infringement Claim; and (b) indemnify Customer for any damages finally awarded or settled upon against Customer based on infringement by the Subscription Services or Deliverables, including court costs and reasonable attorney’s fees. If BMC believes the Subscription Services may violate a right, then BMC will, at its expense: (a) modify the Subscription Services, or (b) procure the right to continue using the Subscription Services, and if (a) or (b) are not commercially reasonable, terminate Customer's right to use the Subscription Services and issue a pro-rata refund for the unexpired pre-paid portion of such Subscription Services.
9.2 Indemnification by Customer. Subject to the terms of this Agreement, if a third party asserts a claim against BMC asserting that any of the following violates that third-party’s IP Rights: (i) Customer Content, (ii) Customer Applications as defined in Attachment A, (iii) Customer Property as defined in Attachment B or (iv) Customer’s use of the Subscription Services in violation of this Agreement (“Claim”), then Customer will, at its own expense: (a) defend or settle the Claim; and (b) indemnify BMC for any damages finally awarded or settled upon against BMC based on the Claim, including court costs and reasonable attorney’s fees.
9.3 Indemnity Process. Neither party’s obligations under this Section 9 will apply if: (a) the indemnifying party’s legal department does not receive prompt, detailed written notice of the Infringement Claim/Claim from the party being indemnified, (b) the indemnifying party is not able to retain sole control of the defense of the Infringement Claim/Claim and all negotiations for its settlement or compromise, or (c) the indemnifying party does not receive all reasonable assistance from the party being indemnified. Neither party will bind the indemnified party to a monetary obligation in a settlement or compromise, or make an admission on behalf of the indemnified party, without obtaining that party’s prior consent. The indemnified party agrees to use all reasonable efforts to help the indemnifying party mitigate damages resulting from an Infringement Claim/Claim, including without limitation Customer promptly installing all On Premise Subscription Services updates BMC provides to mitigate any Infringement Claim.
9.4 THIS SECTION 9 CONTAINS EACH PARTY'S EXCLUSIVE REMEDIES AND THE INDEMNIFYING PARTY'S SOLE LIABILITY FOR INFRINGEMENT CLAIMS/CLAIMS, RESPECTIVELY.
10. EXPORT CONTROLS. Both parties agree to comply with applicable export regulations, including but not limited to U.S. Export Administration Regulations and the OFAC embargoes and sanctions lists. More information on BMC’s export compliance program may be found here: https://www.bmc.com/legal/export-compliance.html.
11. GOVERNING LAW AND DISPUTE RESOLUTION. Any controversy, dispute or claim arising out of or relating to this Agreement, or to the formation, interpretation, breach, termination, or validity thereof (each, a “Controversy”) will be resolved as follows:
(i) UNITED STATES. If both parties to this Agreement are entities incorporated under the law of any state in the United States, the Controversy shall be tried in either state or federal court located in Houston, Texas and the laws of the State of Texas shall govern. Both parties hereby submit to the exclusive jurisdiction of the courts in Houston, Texas and waive all defenses based on forum non conveniens. Notwithstanding the foregoing, if Customer is a state or local governmental entity or higher education institution and legally required to apply state law, then Customer’s state law will apply to the Controversy, without reference to conflict of law principles.
(ii) CANADA. If Customer is located in Canada (outside Quebec), then the law of the Province of Ontario law apply, without reference to conflict of law principles. If Customer is located in Quebec, then the laws of the Province Quebec will apply, without reference to conflict of law principles.
(iii) EMEA. If both parties to this Agreement are entities incorporated in countries in the Europe, Middle East, or Africa regions, the Controversy shall be tried in the District Court located in Amsterdam, the Netherlands and the substantive laws of the Netherlands shall govern. Both parties hereby submit to the exclusive jurisdiction of the District Court in Amsterdam, the Netherlands and waive all defenses based on forum non conveniens.
(iv) ASIA PACIFIC. If both parties to this Agreement are entities incorporated in countries in the Asia Pacific region, the arbitration shall be held in Singapore under the then-applicable rules of the Singapore International Arbitration Centre and the substantive laws of Singapore will govern.
(v) OTHER REGIONS. In all other instances, the arbitration shall be held in New York City, New York, under the then-applicable international rules of the American Arbitration Association and the substantive laws of the State of Texas will govern.
For all arbitrations conducted hereunder: (a) the arbitration shall be conducted in English; (b) the relevant arbitral institution shall determine the number of arbitrators, but any Controversy in which the amount in dispute is greater than $10 million USD shall be decided by three arbitrators, with each party having the right to select one arbitrator; (c) the costs of such arbitration shall be borne equally, pending the arbitrator’s award; (d) the arbitration award rendered shall be final and binding on the parties, shall not be subject to appeal to any court and shall be enforceable in any court having jurisdiction over the parties; (e) the arbitration proceedings, award and pleadings shall all be confidential, unless disclosure of particular information is required for purposes of enforcing/challenging the award or to meet local securities law requirements; and (f) the party prevailing in arbitration shall be entitled to recover its reasonable attorneys’ fees and the necessary costs incurred in connection with the arbitration.
The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. Nothing in this Agreement shall be deemed as preventing either party from seeking immediate injunctive relief from any court having jurisdiction over the parties and the subject matter of the dispute.
12. The following BMC contracting entities apply to this Agreement:
Region | Contracting Entity | Address of Contracting Entity |
United States and Latin America South (not a specified Central or South America country below) | BMC Software, Inc. | 2103 CityWest Boulevard, Houston, Texas 77042 |
Canada | BMC Software Canada Inc. | 50 Minthorn Boulevard, Suite 200 Markham, Ontario L3T 7X8 Canada |
EMEA (Europe, Middle East and Africa) | BMC Software Distribution B.V. | Vision Plaza West, 2nd floor, Boeingavenue 220, 1119PN Schiphol-Rijk, The Netherlands |
Brazil | BMC Brasil Software Ltda. | Avenida Rebouças n° 3.970 e Avenida Dra. Ruth Cardoso, n° 8.501 Condomínio Eldorado Business Tower, 22° andar, Pinheiros, São Paulo – SP, CEP: 05425-070 |
Mexico | BMC Software Distribution de México, S.A. de C.V. | Calle Volcán, No.150, Piso 2, Oficina 202, Col. Lomas de Chapultepec V Sección, C.P., 11000, Alcaldía Miguel Hidalgo, Ciudad de México |
Argentina | BMC Software de Argentina S.A. | Ing. Butty 220 - Piso 18, Catalinas Plaza Buenos Aires, República de Argentina, C1001A |
S.E.A (Southeast Asia), Australia, New Zealand, Hong Kong, Taiwan | BMC Software Ireland Unlimited Company | Building 3, Cherrywood Business Park, Bray Road, Loughlinstown, CO. Dublin, D18 TF72 |
China | BMC Software (China) Limited | Room 502, Level 5, Tower W1, The Towers, Oriental Plaza, No. 1 East Chang An Ave., Dong Cheng Dist., Beijing 100738, China |
Japan | BMC Software K.K. | Harmony Tower 24th Floor, 1-32-2 Honcho, Nakano-ku, Tokyo, 164-8721 |
Korea | BMC Software Korea Ltd | 9 FL Two IFC, 10 Gukjekeumyung-ro, Youngdeungpogu, Seoul 07326, South Korea |
13. U.S. GOVERNMENT END USER RIGHTS. This Section 13 applies only to acquisitions of the commercial Subscription Services subject to this Agreement by or on behalf of the United States Government, or by any prime contractor or subcontractor (at any tier) under any contract, grant, agreement or other activity with the United States Government. When Subscription Services are delivered or provided to the United States Government, the United States Government agrees that this commercial license Agreement and the Subscription Services governed by this Agreement are defined in accordance with and qualify as “commercial items” consisting of “commercial computer software” and “commercial computer software documentation” as outlined in FAR 12.211, FAR 12.212 and DFARS 227.7202-3, as applicable. The terms and conditions of this Agreement shall pertain to the United States Government’s use (including documentation or technical data), duplication, and disclosure of the Subscription Services, and shall supersede any conflicting contractual terms and conditions”.
14. DATA PROTECTION. The processing of Customer Content under this Agreement is governed by the BMC Data Processing Agreement set forth on the Order.
15. VERIFICATION. Customer agrees that BMC or its agent may monitor the Subscription Services to ensure Customer’s compliance with the terms of this Agreement. If such monitoring reveals that Customer has exceeded the Capacity for the Subscription Services, Customer will execute an Order for additional Capacity of such Subscription Services through the end of the term of such Subscription Services, promptly upon BMC’s request.
16. NOTIFICATIONS. Any general notifications regarding technical matters from BMC to Customer will be sent to the Customer contact stated in the Customer Technical Contact Information section of the Order. The Customer contact in the Order has been assigned by Customer as the Customer contact for operational issues that may arise. Customer shall notify BMC of any change to the Customer contact details in writing, which may include via e-mail or in a form in the Subscription Services. Customer will receive system notifications from BMC and its licensors, if applicable (i.e. planned downtime notices, etc.).
17. CONDUCTING BUSINESS WITH HONESTY AND INTEGRITY. BMC is committed to conducting business with honesty and integrity. BMC’s Code of Conduct set forth in https://www.bmc.com/legal/code-of-conduct.html governs the conduct of all officers, directors, and employees of BMC, and contingent workers and business partners acting on BMC’s behalf. BMC demonstrates its commitment to environmental stewardship by its global accreditation for ISO 14001:2015.
18. INFORMATION SECURITY. BMC employs comprehensive organizational and technical security safeguards to protect the security and integrity of Customer Content in line with industry best practices, as set forth in the Information Security Requirements found at http://www.bmc.com/content/dam/bmc/corporate/hinfosec.pdf.
19. FORCE MAJEURE. Neither party will be liable to the other for any delay or failure to perform any obligation under this Agreement (except for obligations of confidentiality or a failure to pay fees) if the delay or failure is due to events which are beyond the reasonable control of such party, including, but not limited to (i) Acts of God, explosion, flood, lightning, tempest, fire or accident; (ii) war, hostilities (whether war is declared or not), invasion, acts of foreign enemies; (iii) rebellion, revolution, insurrection, military or usurped power or civil war; (iv) riot, civil commotion or disorder; (v) acts, restrictions, regulations, refusals to grant any licenses or permission, prohibitions or measures of any kind on the part of any local, state, national, governmental or supra-governmental authority; and/or (vi) epidemics, pandemics, and quarantines (including but not limited to those connected with COVID-19) (a “Force Majeure Event”). If either party is affected by Force Majeure Events, it shall promptly notify the other party (when possible) in writing of the matters constituting the Force Majeure Events. If possible, the party affected by the Force Majeure Event shall take reasonable steps available to it to minimize the effects of the Force Majeure Events on the performance of its obligations under the Agreement and/or affected Order. If a Force Majeure Event prevents BMC from performing the Subscription Services for more than 30 days, either party may terminate this Agreement and all relevant Orders. Upon such termination BMC will refund all prepaid and unused amounts to Customer, provided Customer has paid BMC for all Subscription Services that were performed up to the date of termination.
20. INSURANCE. BMC will provide and maintain the following insurance, but only for losses arising out of BMC’s provision of Subscription Services: (a) Worker’s Compensation insurance as prescribed by the law of the state applicable to the employees performing the Subscription Services; (b) Employer’s Liability insurance with a limit of $1,000,000 USD for each occurrence; (c) Commercial General Liability insurance with $1,000,000 USD per occurrence combined single limit and $2,000,000 USD general aggregate, including coverage for Products Liability and Completed Operations; (d) Automobile Liability insurance, including coverage for Hired and Non-owned vehicles of $1,000,000 USD for combined single limit for bodily injury and/or property damage; and (e) Professional Liability insurance covering Errors and Omissions and Cyber Liability in the amount of $1,000,000 USD for each occurrence and in the aggregate associated with Subscription Services performed under this Agreement. BMC will provide certificates of insurance upon Customer’s request.
21. ASSIGNMENT. Customer has the right to assign this Agreement and all Orders in whole to an Affiliate, or to a successor in connection with (i) the sale of all or substantially all of the assets of Customer or (ii) a merger by operation of law, by providing written notice to BMC. The assignee may not be a known direct competitor of BMC. The successor entity or Affiliate must agree in writing with BMC (in advance of the assignment) to be bound by the terms of this Agreement. Any Customer transfer or assignment except as expressly authorized above will be null and void.
22. MISCELLANEOUS TERMS. The parties are independent contractors and this Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties. This Agreement, including the Attachments and Orders constitutes the entire agreement between Customer and BMC and supersedes and replaces (i) any prior or contemporaneous negotiations or agreements, whether oral or written concerning the Subscription Services and (ii) terms contained on or accessed through any customer portal or vendor onboarding website BMC is required to agree to. There are no representations, promises, warranties, covenants, or undertakings between the parties other than those expressly set forth in this Agreement. There are no third-party beneficiaries to this Agreement; Customer is not entering into a contractual relationship with BMC’s licensors and BMC’s licensors have no liability to Customer. A waiver by a party of any breach of any term of this Agreement will not be construed as a waiver of any continuing or succeeding breach. This Agreement may not be modified or rescinded except in writing signed by both parties. Should any provision of this Agreement be invalid or unenforceable, the remainder of the provisions will remain in effect. The Subscription Services may contain hyperlinks to websites controlled by parties other than BMC. BMC is not responsible for and does not endorse the content or accept any responsibility for Customer’s use of these websites. Customer should refer to the policies posted by other websites regarding privacy and other topics regarding data privacy before using them. The Subscription Services may contain third party software which is delivered to Customer as part of the Subscription Services and may not be taken out of the Subscription Services or used separately from the Subscription Services and for which additional terms may be included in the User Guide. In compliance with all applicable laws and for internal purposes only, BMC may compile and use de-identified, aggregate or statistical information related to Customer’s use of the Subscription Services for the purposes of enhancing and improving the Subscription Services, developing new products and services, and for other development, diagnostic, statistical and corrective purposes, provided that such information (a) does not incorporate Customer’s personally identifiable information or personal data and (b) does not identify or describe the Customer. Les parties exigent que la présente convention ainsi que les documents qui s’y rattachent soient rédigés en anglais.
Attachments incorporated into Agreement |
Attachment A – Platform Services Attachment |
Attachment B – Consulting Services Attachment |
Attachment C – On Premise Subscription Services Attachment |
PLATFORM SERVICES ATTACHMENT
to the
BMC CLOUD SERVICES MASTER AGREEMENT
Except as otherwise provided herein, the terms of the Cloud Services Master Agreement (the “Base Agreement”) are incorporated into this Platform Services attachment (the “Attachment”). Together, this Attachment and the Base Agreement (as incorporated into this Attachment) are referred to as the “Agreement” for purposes of Customer’s access and use of Platform Services, only if the Platform Services are set forth on an Order referencing the Base Agreement. For purposes of this Agreement, the term “Subscription Services” as defined in the Base Agreement shall be extended to include the Platform Services. In the event of a conflict between the Base Agreement and the terms of this Attachment, the terms of this Attachment will control for Customer’s access and use of the Platform Services only.
1. SCOPE. Subject to the terms of this Agreement, BMC will provide Customer with access to the Platform Service named in the applicable Order.
2. DEFINITIONS.
2.1 “Application” is the object code, its definitional structures, and data created to fulfill a particular purpose, which runs on the Platform Services. An Application may also include its documentation and User Guide.
2.2 “Customer Applications” means Applications that are owned or licensed by Customer, and which run on the Platform Services.
2.3 “Development Platform” means BMC provided development capabilities which allows Customer to develop a custom application to run on the Platform Services.
2.4 “Platform” means the generally available BMC-provided PaaS platform and its capabilities to run Applications.
2.5 “Platform Services” means the specific Platform Services identified in the Order.
3. BMC PLATFORM SERVICES.
3.1 BMC Platform Services Support. BMC will provide Support only for Platform Services. Customer is responsible for its own support for Customer Applications. For the avoidance of doubt, Support does not include development consulting.
4. CUSTOMER APPLICATIONS.
4.1 The terms contained in this section 4 apply only to Orders for Platform Services entitling Customers to develop and deploy Customer Applications onto the Platform Services. Any Customer Applications that run on the Platform Services are hereby excluded from the defined terms “Subscription Services” and “Platform Services”.
4.2 Development Platform. Customer may utilize the Development Platform to create an Application to run on the Platform Services. Customer’s use of the Development Platform is governed by the terms of this Agreement subject to the restrictions set forth in Sections 4.2.1 to 4.2.2 below. Customer’s development of an Application must meet the best practices development guidelines set forth in the User Guide. Each Customer Application shall at all times materially conform to policies and best practices set forth in the User Guide. Prior to the deployment of any Customer Applications in a production or non-production environment of the Platform Services, Customer must conduct security and functional tests of each Customer Application and submit the results of such tests to BMC for review. BMC reserves the right to reject Customer’s deployment request of a Customer Application based on the results of Customer’s security and functional tests. Additionally, BMC reserves the right, during the term of this Agreement, to request Customer conduct additional security and functional tests and provide the results of said tests to BMC for review. Notwithstanding the foregoing, Customer must ensure that at all times Customer Applications are secure.
4.2.1 Acceptable Use. The right to access and use the Development Platform is granted solely for the purpose of performing non-production application development work on the Development Platform. Customer agrees not to use the Development Platform to (1) process production data or for any other production purposes, including but not limited to publishing digital applications, or (2) distribute applications. Customer is responsible for acquiring all necessary and required licenses for the use of any third-party software, source code and/or libraries Customer may use as part of its development with the Development Platform.
4.2.2 Open Source. Customer may not use any software, library, utility, tool, or other computer or program code (“Code”) with the Subscription Services that in any way that would (i) weaken BMC’s intellectual property rights in the Services, or (ii) require the Subscription Services to become or be disclosed or distributed as Open Source Software. For purposes of this Section 4.2.2, “Open Source Software” means any Code that is substantially similar to, (A) the Affero General Public License, (B) the GNU General Public License (GPL) or Lesser/Library GPL (LGPL), (C) the Artistic License (e.g. PERL), (D) the Mozilla Public License, (E) the Netscape Public License, (F) the Sun Community Source License (SCSL), (G) the Sun Standards License (SISL), or (H) any “copyleft” license, or any other license that requires as a condition of use, reproduction, modification, or distribution that such Code or other software or computer code distributed with it: (1) be disclosed or distributed in source code form; (2) be licensed for the purpose of creating derivative works; (3) be licensed under terms that allow reverse engineering, reverse assembly, or disassembly of any kind; (4) be subject to a patent non-assert or royalty-free patent license; or (iv) be redistributable at no charge.
4.3 License to Customer Applications. Subject to the terms and conditions of this Agreement, Customer hereby grants BMC a worldwide, limited, nonexclusive license during the term of the applicable Order for the Platform Services to host, copy, transmit, adapt and display Customer Applications solely for the purpose of fulfilling BMC’s obligations under this Agreement.
4.4 Functionality of Customer Applications. Customer is solely responsible for the operation of Customer Applications, including but not limited to any information stored in or transmitted by Customer Applications. Customer is responsible for monitoring the usage of each Customer Application. Customer is responsible for the configuration, functionality, performance, compliance with applicable data protection laws and security of all Customer Applications, including any interfaces used to connect to Customer Applications.
4.5 Customer Assistance. Customer will provide information or other materials related to a Customer Applications as reasonably requested by BMC to verify Customer’s compliance with the Agreement and the User Guide.
4.7 Suspension of Customer Applications. Customer’s use of the Platform Services may be immediately suspended and/or terminated due to (i) reasonable security threats regarding the Platform Services or Customer Applications, (ii) Customer Applications interfering with, disrupting or threatening the integrity or performance of the Subscription Services and/or the Platform Services, or (iii) violates the law, infringes or misappropriates the rights of any third party or otherwise violates a material term of the Agreement. In the event (i) or (ii) above apply to Customer Applications, Customer is required to remediate any such issue to BMC’s commercially reasonable satisfaction before use of Customer Applications can resume. BMC shall use reasonable commercial efforts to only suspend the non-conforming portion of the Platform Services.
4.8 CUSTOMER APPLICATIONS WARRANTIES. Customer warrants to BMC that: (a) each Customer Application will perform materially in accordance with the User Guide; (b) Customer has all rights in the Customer Content and Customer Applications necessary to grant the rights contemplated by this Agreement; (c) none of the Customer Content or Customer Applications or Users’ use of Customer Content or Customer Applications will violate the Agreement and the User Guide; and (d) Customer’s security and functional tests of Customer Applications was conducted in a commercially reasonable manner and the results of said tests provided to BMC for review are correct and valid.
ATTACHMENT B
CONSULTING SERVICES ATTACHMENT
to the
BMC CLOUD SERVICES MASTER AGREEMENT
Except as otherwise provided herein, the terms of the Cloud Services Master Agreement (the “Base Agreement”) are incorporated into this Consulting Services attachment (the “Attachment”). Together, this Attachment and the Base Agreement (as incorporated into this Attachment) are referred to as the “Agreement” for purposes of Customer’s purchase of Consulting Services, only if Consulting Services are set forth on an Order referencing the Base Agreement. For purposes of this Agreement, the term “Subscription Services” as defined in the Base Agreement shall be extended to include Consulting Services. In the event of a conflict between the Base Agreement and the terms of this Attachment, the terms of this Attachment will control for Customer’s purchase of Consulting Services only. The parties agree that the following Sections of the Base Agreement do not apply to the Consulting Services provided under this Attachment: Section 3.2 (BMC Subscription Services Support), Section 4 (Fees and Payment), and Section 6 (Limited Warranty).
1. SCOPE. BMC agrees to render to Customer Consulting Services under the terms of this Agreement and as further described in an Order. BMC will render the Consulting Services in the location(s) as set forth in the Order. The performance of the Consulting Services will not relieve or alter the rights, obligations and responsibilities of Customer and of the BMC Affiliate providing Subscription Services and/or Licenses with respect to Subscription Services and/or Licenses under the applicable agreement. BMC will notify Customer in writing of any subcontractors prior to the commencement of the Consulting Services.
2. SERVICE FEES AND EXPENSES. The fees payable to BMC for the Consulting Services to be rendered will be detailed in the Order. BMC will submit invoices to Customer for such fees and incurred expenses either upon completion of the Consulting Services, or at stated intervals, in any case in accordance with the applicable Order. Customer shall pay amounts invoiced within 30 days of the date of the invoice. If Customer disputes an invoice in good faith, it will notify BMC within 30 days of receiving the invoice. The parties will seek to resolve such dispute over a 15-day discussion period. Customer is not required to pay disputed amounts during the discussion period, but will timely pay all undisputed amounts. After the discussion period, either party may pursue all available remedies.
3. EDUCATION. Customer may acquire Learning Pass Credits and Education Services (collectively, “BMC Education ”) on an Order. The BMC Education terms that govern such Orders are set forth in the Education Program Guide located at https://www.bmc.com/content/dam/bmc/education/education-program-guide.pdf, and is incorporated herein by this reference.
4. STATEMENTS OF WORK. Consulting Services may require the execution of a Statement of Work, in which case, such Statement of Work will be considered an Order for such Consulting Services. In the event of any conflict between the terms of a Statement of Work and this Agreement, the Agreement shall prevail except for matters of service fees, payment and reimbursement of expense, and termination of Consulting Services if further specified in the Statement of Work. During the term of an applicable Statement of Work, and for a period of six months thereafter, neither party will solicit for employment any employees, agents, or subcontractors of the other party or its affiliates who, within six months prior to such solicitation, had contact with the soliciting party based in whole or in part upon Consulting Services provided under this Agreement. The restrictions in this Section 4 shall be deemed not to apply to general solicitations for employment posted on Internet job sites or printed in newspapers or trade or professional journals.
5. PROPRIETARY RIGHTS AND RIGHTS IN DELIVERABLES.
5.1 Ownership of Materials Used in the Consulting Services. Unless specifically provided in an Order, Customer shall supply all of the facilities; equipment; supplies; computer programs; information about Customer’s business, systems, software and needs; and other materials necessary for completion of the Consulting Services (“Customer Property”), and BMC shall supply the people described in the Order, the know-how and the tools necessary to provide the Consulting Services, which may include, among other things, software, templates, questionnaires, graphs, methodologies, models, charts and reports (“BMC Property”). Customer Property and copies and modifications of Customer Property will remain the sole property of Customer or if applicable, Customer’s licensors, and BMC Property and copies and modifications of BMC Property will remain the sole property of BMC or if applicable, BMC’s licensors. Customer hereby grants to BMC a royalty-free, paid-up, non-exclusive, non-sublicensable and non-transferable license to use the Customer Property for the purpose of providing the Consulting Services.
5.2 Deliverables. Deliverables are those created under the Order, including, but not limited to, software, software scripts, routines, libraries or other code, or appliances, methodologies, templates, tools, policies, records, working papers, reports, methodologies, know-how, data, or other intellectual property, written or otherwise, including any derivative works or modifications to the above, whether pre-existing or created during the performance of the Consulting Services and all proprietary and intellectual property rights embedded therein delivered as a result of the Consulting Services as specified under the Order. BMC owns all right, title and interest in the Deliverables. Provided Customer has paid in full for the Consulting Services that resulted in the Deliverables, BMC will deliver the Deliverables to Customer in accordance with the applicable Order. Subject to compliance with the terms of this Agreement and the applicable Order, BMC grants Customer a non-exclusive, non-transferable, non-sublicensable, royalty-free, paid-up license to use, create derivative works of and modify all Deliverables solely for its internal business operations. If Customer is a contractor engaging BMC for the benefit of a third party (“Client”), then provided that the Client is properly identified in the Statement of Work and that Customer is responsible for such Client’s compliance with the provisions of this Agreement and the relevant Statement of Work, Customer may assign to the Client the rights granted to Customer in this Section 5.2.
5.3 Copyright Notice. Each party agrees to reproduce the copyright notice and any other legend or ownership notice on any copies made under the licenses granted pursuant to this Section 5.
5.4 Retention. Customer acknowledges that BMC provides similar services to other customers and that nothing in this Agreement shall be construed as operating to prevent BMC from carrying on such business. Further BMC may use ideas, concepts, or know-how developed or acquired by BMC during performance of the Consulting Services to the extent by BMC’s personnel as impressions and general learning.
6. LIMITED WARRANTY. BMC warrants that it will perform the Consulting Services in conformance with generally accepted practices within the software services industry and in accordance with the Order. Customer must notify BMC of any breach of this warranty no later than 90 days after completion of the Consulting Services under the Order. Customer’s exclusive remedy and BMC’s entire liability under this warranty shall be for BMC to re-perform any non-conforming portion of the Consulting Services within a reasonable period of time, or if BMC cannot remedy the breach during such time period then refund the portion of the fee attributable to such non-conforming portion of the Consulting Services under the Order. This warranty will not apply to the extent Customer, its contractors or agents have modified any Deliverable, unless otherwise authorized by BMC in writing.
EXCEPT FOR THE EXPRESS WARRANTIES IN THIS AGREEMENT, THE CONSULTING SERVICES AND DELIVERABLES ARE PROVIDED WITH NO OTHER WARRANTIES WHATSOEVER, AND BMC, ITS AFFILIATES AND LICENSORS DISCLAIM ALL OTHER WARRANTIES, INCLUDING, FITNESS FOR A PARTICULAR PURPOSE AND IN THE UNITED STATES AND CANADA, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, AND NON-INFRINGEMENT.
7. MUTUAL INDEMNITY. Each party shall indemnify and hold harmless the other party from all claims, liabilities or expenses for physical damage to real property or tangible personal property and bodily injury, including death, to the extent caused by the negligence, gross negligence or willful misconduct of the indemnifying party’s employees or contractors arising out of this Agreement and while at the Customer’s premises. The foregoing indemnities are contingent upon the party seeking indemnity giving prompt written notice to the indemnifying party of any claim, demand or action, and cooperating with the indemnifying party in the defense or settlement of any such claim, demand or action.
8. INDEPENDENT CONTRACTOR. All of the services performed by BMC under this Agreement will be performed as an independent contractor.
ATTACHMENT C
ON PREMISE SUBSCRIPTIONS ATTACHMENT
to the
BMC CLOUD SERVICES MASTER AGREEMENT
Except as otherwise provided herein, the terms of the Cloud Services Master Agreement (the “Base Agreement”) are incorporated into this On Premise Subscriptions attachment (the “Attachment”). Together, this Attachment and the Base Agreement (as incorporated into this Attachment) are referred to as the “Agreement” for purposes of Customer’s purchase and ongoing use of On Premise Subscriptions, only if On Premise Subscriptions are set forth on an Order referencing the Base Agreement. For purposes of this Agreement, the term “Subscription Services” as defined in the Base Agreement shall be extended to include On Premise Subscriptions. In the event of a conflict between the Base Agreement and the terms of this Attachment, the terms of this Attachment will control for Customer’s purchase of On Premise Subscriptions only. The parties agree that the following Sections of the Base Agreement do not apply to the On Premise Subscriptions provided under this Attachment: Section 3.1 (Access Rights), Section 3.5 (Acceptable Use Policy and Restrictions), Section 6 (Limited Warranty) and Section 15 (Verification).
1. DEFINITIONS.
1.1 “Authorized User” means Customer, Customer Affiliate(s), and their employees, consultants, contractors and agents that are acting under the instructions and control of Customer or Customer Affiliate(s) and are bound by the terms and conditions no less restrictive than those contained herein and for whom Customer takes full responsibility. Notwithstanding the foregoing, Authorized Users do not include service providers or outsourcers.
1.2 "Documentation" means the technical publications relating to the software, such as release notes, license entitlement descriptions, reference, user, installation, systems administrator and technical guidelines, included with the On Premise Subscription.
1.3 “Licensed Capacity” is the amount of each On Premise Subscription licensed as established in the Order.
1.4 “On Premise Subscription” is the object code of the software and all accompanying Documentation delivered to Customer, including all items delivered by BMC to Customer under Support.
2. LICENSE. Subject to the terms, conditions, payment requirements and restrictions set forth in this Agreement, BMC grants Customer a non-exclusive, non-transferable, non-sub-licensable term license to install in the Territory as defined in an Order, access and use the On Premise Subscription during the term specified on the Order (i) by Authorized User(s), (ii) up to the Licensed Capacity, (iii) for Customer’s and its Affiliates’ internal business operations, (iv) in accordance with the Documentation and the applicable Order, and (v) make a reasonable number of copies of the On Premise Subscription for archival purposes only (collectively a "License"). Affiliates may use and access the On Premise Subscriptions under the terms of this Agreement, and Customer is responsible for its Affiliates compliance with the terms of this Agreement.
3. RESTRICTIONS. Customer will not: (a) copy, operate or use any On Premise Subscription in excess of the applicable Licensed Capacity or other than as set forth in the License above; (b) modify, delete or remove any ownership, title, trademark, patent or copyright notices (“Identification”) from any On Premise Subscription, or copy or partial copy of an On Premise Subscription; (c) disassemble, reverse engineer, decompile or otherwise attempt to derive any On Premise Subscription source code from object code, except to the extent expressly permitted by applicable law despite this limitation without possibility of contractual waiver; (d) distribute, rent, lease, sublicense or provide the On Premise Subscription to any third party; (e) use the On Premise Subscriptions in an outsourcing or service bureau environment on behalf of non-Affiliate third parties, or allow the On Premise Subscriptions to be used by an outsourcing or service bureau provider on Customer’s behalf; (f) conduct penetration test or security vulnerability tests of any type on the On Premise Subscription without BMC’s prior written consent; (g) publish or make public any benchmark, security, or performance data or information about the On Premise Subscription without BMC’s prior written consent; or (h) attempt to disable or circumvent any of the licensing mechanisms within the On Premise Subscription.
4. ON PREMISE SUBSCRIPTION PERFORMANCE WARRANTY. BMC warrants that (a) the On Premise Subscription will perform in substantial accordance with its Documentation for a period of one year from the date of the first Order, (b) BMC has used commercially reasonable efforts consistent with industry standards to scan for and remove software viruses, and (c) other than passwords that may be required for the operation of the On Premise Subscription, BMC has not inserted any code that is not addressed in the Documentation and that is designed to delete, interfere with or disable the normal operation of the On Premise Subscription in accordance with the License. This warranty will not apply to any problems caused by hardware, Computers, or software other than the On Premise Subscription, or misuse of the On Premise Subscription, use of the On Premise Subscription other than as provided by the applicable License, modification of the On Premise Subscription, or claims made either outside the warranty period or not in compliance with the notice and access requirements set forth below. No warranty is provided for additional Licensed Capacity, On Premise Subscription provided pursuant to Support.
BMC’s entire liability, and Customer’s exclusive remedy, for breach of the above warranty is limited to: BMC’s use of commercially reasonable efforts to have the On Premise Subscription perform in substantial accordance with its Documentation, or replacement of the non-conforming On Premise Subscription within a reasonable period of time, or if BMC cannot have the On Premise Subscription perform in substantial accordance with its Documentation or replace the On Premise Subscription within such time period, then BMC will refund the amount paid by Customer for the License for that On Premise Subscription. Customer agrees to provide BMC during the warranty period (i) full cooperation and access to the On Premise Subscription in resolving any claim; and (ii) written notice that includes notice of the claim, a complete description of the alleged defects sufficient to permit their reproduction in BMC’s development or support environment, and a reference to the Documentation to which such alleged defects are contrary.
EXCEPT FOR THE EXPRESS WARRANTIES IN THIS ATTACHMENT, THE ON PREMISE SUBSCRIPTION IS PROVIDED WITH NO OTHER WARRANTIES WHATSOEVER, AND BMC, ITS AFFILIATES AND LICENSORS DISCLAIM ALL OTHER WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE AND IN THE UNITED STATES AND CANADA, MERCHANTABILITY AND NON-INFRINGEMENT. BMC DOES NOT WARRANT THAT THE OPERATION OF THE ON PREMISE SUBSCRIPTION WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT ALL DEFECTS CAN BE CORRECTED.
5. DELIVERY. For On Premise Subscriptions that are delivered electronically, upon request from BMC, Customer agrees to provide BMC with documentation supporting that the designated On Premise Subscription was received electronically. If Customer accepts any On Premise Subscription in a non-electronic format, there may be an additional charge and it is the sole responsibility of Customer to bear any sales/use tax obligation, penalties, and interest. All On Premise Subscriptions are licensed FCA (“Free Carrier” as per Incoterms 2000) shipping point. The On Premise Subscriptions are accepted on the date BMC delivers the On Premise Subscription to the Customer either physically or by providing access codes for electronic download, whichever occurs first, however, such acceptance will not affect the On Premise Subscription Performance Warranty provided in this Agreement.
6. AUDIT. If requested by BMC, and not more than once a year, Customer agrees to deliver to BMC, within 30 days of such request, as specified by BMC (a) periodic product usage reports generated from specific products (b) third party usage reports related to the On Premise Subscriptions (e.g., SCRT reports) and (c) written periodic product usage reports, to be provided solely when the product does not generate reports (together, “Reports”). Additionally, if requested by BMC not more than once a year and upon at least ten days prior written notice to Customer, Customer agrees to allow BMC to perform an audit (“Audit”) to ensure compliance with the terms of this Agreement at the locations where the On Premise Subscriptions are installed, during normal business hours. to ensure compliance with the terms of this Agreement. Customer agrees to cooperate during any such Audit and to provide reasonable access to its information and systems. If Customer is found to have exceeded its Licensed Capacity for an On Premise Subscriptions based on such Reports or Audit, then Customer agrees to pay the applicable fees for the additional capacity through the end of the applicable Order term upon receipt of an invoice from BMC.
Effective January 30th 2024 to May 10th 2024
DownloadTable of Contents
BMC CLOUD SERVICES MASTER AGREEMENT
THIS CLOUD SERVICES MASTER AGREEMENT (“AGREEMENT”) GOVERNS YOUR FREE TRIAL, IF ANY, OF THE SUBSCRIPTION SERVICES.
IF YOU PURCHASE THE SUBSCRIPTION SERVICES, THIS AGREEMENT WILL ALSO GOVERN YOUR PURCHASE AND ONGOING USE OF THE SUBSCRIPTION SERVICES.
BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SUBSCRIPTION SERVICES.
You may not access the Subscription Services if you are BMC’s direct competitor, except with BMC’s prior written consent. In addition, you may not access the Subscription Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.
This Agreement was last updated on January 30, 2024. This Agreement is between the entity or individual entering into this Agreement (“Customer”) and the BMC Contracting Entity for the applicable region as described in Section 12 (“BMC”). It is effective between Customer and BMC as of the date of your acceptance of this Agreement. If Customer has a fully executed BMC Cloud Services Master Agreement then such fully executed BMC Cloud Services Master Agreement supersedes and replaces any clickwrap or click-through agreements (or other similar agreements) that Customer may be required to accept as a part of accessing or using the Subscription Services. For Customer’s convenience, prior versions of this Agreement are available at https://www.bmc.com/legal/csma.html.
FREE TRIAL.
BMC may make the Subscription Services available to Customer on a trial basis free of charge. If BMC offers Customer a free trial, it will run until the earlier of (a) the end of the trial period stated on the trial registration web page or (b) the start date of any Order for purchase of the Subscription Services. Additional trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.
ANY DATA CUSTOMER ENTERS INTO THE SUBSCRIPTION SERVICES, AND ANY CUSTOMIZATIONS MADE TO THE SUBSCRIPTION SERVICES BY OR FOR CUSTOMER, DURING A FREE TRIAL MAY BE PERMANENTLY LOST.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THE AGREEMENT, DURING ANY FREE TRIAL PERIOD THE SUBSCRIPTION SERVICES ARE PROVIDED “AS IS” WITH NO WARRANTY.
1. DEFINITIONS.
1.1 “Affiliate” is an entity that controls, is controlled by or shares common control with BMC or Customer, where such control arises from the legal power to direct or cause the direction of the general management and policies of the company, partnership or legal entity.
1.2 "Capacity” means the amount of access to the Subscription Services purchased as specified in an Order, which is counted in accordance with the Unit of Measure described in the Order.
1.3 “Consulting Services” means the consulting, implementation, training or other services provided under the terms of Attachment B (Consulting Services) and as further described under the applicable Order.
1.4 “Customer Content” means all electronic data or information (a) submitted to the Subscription Services by Customer, a third party on behalf of Customer, or as directed by Customer or (b) collected, processed or returned by the Subscription Services.
1.5 “IP Rights” means all intellectual property or other proprietary rights worldwide, including patents, trade secrets, copyrights, trademarks, moral rights, and any other intellectual or industrial property including registrations, applications, renewals, and extensions of such rights.
1.6 “Order” means (i) the agreed ordering document for the purchase of the Subscription Services, (ii) that is subject to this Agreement, and (iii) that identifies the terms of the purchase and fees to be paid. The term “Order” includes Customer’s online registration for and purchase of the Subscription Services, If any.
1.7 "Subscription Services" means the generally available hosted service which packages web-based access and the right-to-use the supported applications, installed agents and associated reference, user and technical guides.
1.8 “User Guide” means the online help, functional guide and technical specifications for the Subscription Services, as updated by BMC from time to time. The User Guides may be viewed here: https://docs.bmc.com/docs/.
2. SCOPE. Subject to the terms of this Agreement, Customer may purchase and BMC will provide Customer with access to the Subscription Services as set forth in this Agreement and the applicable Order. Subject to the Attachments to this Agreement, Customer may also purchase BMC Platform Services, BMC Consulting Services and BMC On Premise Subscription Services. In the event of a direct conflict between any Order and the terms of this Agreement, the terms of the Order will control only if the Order is executed by an authorized representative of each party. Each Order is deemed to be a discrete contract, separate from each other Order, unless expressly stated otherwise therein. Orders may be entered under this Agreement by and between (a) BMC or an Affiliate of BMC; and (b) Customer or an Affiliate of Customer. With respect to an Order, the terms “BMC” and “Customer” as used in this Agreement will be deemed to refer to the entities that execute that Order, the Order will be considered a two party agreement between such entities, and BMC will separately invoice the Customer named in the Order for the associated fees. Orders may also be placed via a BMC authorized reseller. Neither execution of this Agreement, nor anything contained herein, shall obligate either party to enter into any Orders.
3. ACCESS TO SUBSCRIPTION SERVICES.
3.1 Access Rights. Subject to the terms of this Agreement, BMC will provide Customer with worldwide access to the Subscription Services in accordance with the Order (i) up to the Capacity, (ii) for Customer’s and its Affiliates’ internal business operations, (iii) in accordance with the User Guide and the applicable Order. Customer may exercise its rights under this Section 3.1 through its employees, consultants, contractors, agents, and Affiliates (all, “Users”).
3.2 BMC Subscription Services Support. BMC will provide the support described at http://www.bmc.com/support/review-policies (“Support”) to Customer for the Subscription Services.
3.3 Use of Subcontractors. Customer acknowledges and agrees that BMC uses subcontractors to provide portions of the Subscription Services. BMC’s subcontractors acting as subprocessors are listed in the Data Processing Agreement between the parties and/or on each Order. BMC is responsible for the performance of all subcontractors providing any of the Subscription Services.
3.4 Compliance with Laws. Each party shall comply with all applicable laws in the performance of its obligations under this Agreement.
3.5 Acceptable Use Policy and Restrictions.
(a) Customer will (i) maintain the confidentiality of all authentications and passwords for the Subscription Services and immediately notify BMC if it becomes aware that an unauthorized party has gained access such authentications and passwords, (ii) be responsible for use of the Subscription Services by its Users in compliance with this Agreement, (iii) prevent unauthorized access to, or use of, the Subscription Services, and notify BMC promptly of any such unauthorized access or use, and (iv) be responsible for obtaining its own Apple Push Notification certificate, if the Subscription Services are used to manage devices running iOS. Customer is responsible for the creation and implementation of a privacy policy and end user agreement, if applicable, which will set forth the guidelines of how Customer uses and protects the data and personal information of its Users, and how said Users may utilize the Subscription Services.
(b) Customer will not (i) modify, copy or create derivative works based on the Subscription Services; (ii) create Internet “links” to or reproduce any content forming part of the Subscription Services, other than for its own internal business purposes; (iii) disassemble, reverse engineer, or decompile the Subscription Services or part thereof, except to the extent expressly permitted by applicable law despite this limitation without possibility of contractual waiver; (iv) interfere with or disrupt the integrity or performance of the Subscription Services; (v) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortuous material, or send or store material in violation of any third party’s privacy rights via the Subscription Services; (vi) send or store viruses or malicious code via the Subscription Services; (vii) attempt to gain unauthorized access to the Subscription Services or its related software, systems, platforms or networks, including any form of security and/or penetration testing; (viii) use any components provided with the Subscription Services separately from the Subscription Services; (ix) distribute, rent, lease or provide the Subscription Services to any third party or use it in a service bureau, outsourcing environment, or for the processing of third party data; (x) conduct penetration test or security vulnerability tests of any type on the Subscription Services without BMC’s prior written consent; (xi) publish or make public any benchmark, security, or performance data or information about the Subscription Services without BMC’s prior written consent; or (xii) use any third party components, systems, platforms or networks that are delivered as part of the Subscription Services separately from such Subscription Services.
4. FEES AND PAYMENT.
4.1 Fees. The fees payable for the Subscription Services and the payment period for such fees will be set forth in and paid in accordance with the Order. All payments are due within 30 days of the date of the invoice.
4.2 Late Fees. Late balances may, at BMC’s sole election, bear interest at a rate equal to the lesser of 1% per month or the maximum amount permitted by law.
4.3 Taxes. Customer will pay taxes imposed in connection with the fees paid for the Subscription Services, which are exclusive of these taxes.
4.4 Payment Disputes. If Customer disputes an invoice in good faith, it will notify BMC within 30 days of receiving the invoice. The parties will seek to resolve such dispute over a 15-day discussion period. Customer is not required to pay disputed amounts during the discussion period, but will timely pay all undisputed amounts. After the discussion period, either party may pursue all available remedies.
4.5 Solution Providers. With regard to Subscription Services acquired by Customer through an authorized reseller of BMC (“Solution Provider”), notwithstanding anything to the contrary in Sections 4.1 to 4.4 above, Customer will have no direct payment obligations to BMC for such fees.
5. TERM, SUSPENSION AND TERMINATION.
5.1 Term. This Agreement begins on the Effective Date and will remain in effect unless terminated pursuant to Section 5.2 below, regardless of the billing frequency selected in the Order.
5.2 Termination.
(a) Termination for Convenience. Customer may terminate this Agreement by providing BMC with at least 30 days prior written notice; provided, however, such termination will have no effect on Orders in effect at the time of such termination. Orders may not be terminated for convenience unless otherwise specified therein. Customer may notify BMC of its intent to terminate by emailing BMC at order_services@bmc.com.
(b) Termination for Cause. Either party may terminate this Agreement and/or an Order for cause upon 30 days’ written notice of a material breach to the other party if such breach remains uncured at the expiration of such period. In the event Customer terminates the Agreement and an Order for BMC’s material breach, BMC will refund the amount paid by Customer to BMC for the Subscription Services on such Order, pro-rated from the date of the notice of the termination.
5.3 Suspension of Subscription Services for Cause. In addition to its other rights and remedies, BMC reserves the right, without liability to Customer, to suspend any and all access to the Subscription Services if Customer commits a material breach of this Agreement and fails to cure the same within 30 days from Customer’s receipt of written notice of such breach from BMC. Provided however, that BMC may immediately suspend any and all access to the Subscription Services without any cure period if BMC determines in good faith that Customer’s material breach of the Agreement will cause material harm to BMC, the Subscription Services, or any other customer. Once the material breach is resolved, BMC will promptly restore Customer’s access to the Subscription Services in accordance with this Agreement.
5.4 Effects of Termination. Upon termination or expiration of any Order or this Agreement, all rights and Licenses granted thereunder will terminate and Customer will make no further use of the Subscription Services. No termination will relieve the Customer of the obligation to pay any fees accrued or payable to BMC pursuant to any Order. Upon written request by Customer made within 60 days after the effective date of termination, BMC will make the Customer Content available to Customer for retrieval in an industry standard format. After such 60-day period, BMC shall have no obligation to maintain any Customer Content and will thereafter delete Customer Content. Any terms in this Agreement which by their nature extend beyond termination of this Agreement will remain in effect until fulfilled.
5.5 Termination Assistance. Upon Customer’s request and upon (a) the expiration of an Order or (b) the termination of an Order for any reason other than Customer’s breach, BMC shall perform such services as the parties in good faith agree are reasonably necessary to facilitate the orderly transition of the Services to the successor service provider or to the Customer. BMC will provide any such services under the terms and conditions of the Agreement, and subject to payment of the then-current fees and charges, generally applicable to BMC’s performance of such services, as agreed between the parties at such time.
6. LIMITED WARRANTY.
6.1 Warranties and Limited Remedies. BMC warrants to Customer that:
(a) the online availability of the Subscription Services will be maintained in accordance with the service levels described at https://www.bmc.com/content/dam/bmc/corporate/service-level-agreement.pdf (the “Service Level Agreement” or “SLA”). Customer’s exclusive remedy and BMC’s sole obligation for breach of the warranty in this Section 6.1(a) is described in the Service Level Agreement; and
(b) the Subscription Services (i) will perform in substantial accordance with the then-current on-line User Guide available via the Subscription Services, (ii) will be performed in a manner consistent with industry standards reasonably applicable to the provision thereof and (iii) will not materially degrade during the term of any Order. Customer’s exclusive remedy and BMC’s sole obligation for breach of the warranty in this Section 6.1(b) will be BMC’s use of commercially reasonable efforts to have the Subscription Services perform in substantial accordance with the User Guide, or replace the non-conforming portion of the Subscription Services within 30 days from the written notice of claim, or if BMC cannot have the Subscription Services perform in substantial accordance with the User Guide or replace the Subscription Services within such time period, then Customer may terminate the non-performing Subscription Services, and upon such termination BMC will refund the amount paid by Customer for the Subscription Services, pro-rated from the date of the notice of the claim. Customer agrees to provide BMC with written notice of the claim, a description of the alleged defects and a reference to the User Guide to which such alleged defects are contrary.
(c) In connection with the Subscription Services (i) it has used commercially reasonable efforts consistent with industry standards to scan for and promptly remove any software viruses for no charge and (ii) it has not inserted any Disabling Code. “Disabling Code” means computer code inserted by BMC, that is not addressed in the User Guide, and that is designed to expose data, delete, interfere with, and/or disable the normal operation of the Subscription Services. This Disabling Code warranty does not apply to BMC passwords necessary for the operation of the Subscription Services, or for any use by Customer outside the scope of this Agreement.
6.2 Disclaimer. CUSTOMER ACKNOWLEDGES THAT, EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, BMC, ITS AFFILIATES AND LICENSORS MAKE NO WARRANTY, EXPRESS, IMPLIED OR STATUTORY WITH RESPECT TO THE SUBSCRIPTION SERVICES OR USE THEREOF. BMC, ITS AFFILIATES AND LICENSORS HEREBY EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY THAT SUBSCRIPTION SERVICES WILL BE UNINTERRUPTED, ERROR FREE OR WITHOUT DELAY, AND THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INTERFERENCE, NON-INFRINGEMENT AND INFORMATION CONTENT.
7. PROPRIETARY RIGHTS AND CONFIDENTIALITY.
7.1 Proprietary Rights. BMC, its Affiliates or licensors retain all right, title and interest to the Subscription Services and all related intellectual property and proprietary rights. The Subscription Services are protected by applicable copyright, trade secret, industrial and other intellectual property laws. BMC owns all right, title and interest in all software, programming, documentation, templates, questionnaires, methodologies, models, charts, reports, ideas, features, content, functions, graphics and any other items provided as part of the Subscription Services (“ Service Items”) and access to and use of the relevant Service Items will be governed by the terms of this Agreement. Subject to (i) BMC’s or its licensor’s ownership of any Service Items and (ii) Section 3.5 (b)(i) of the Agreement, Customer owns all rights, title, and interest in Customer Applications, including all proprietary and intellectual property rights. BMC reserves any rights not expressly granted to Customer. Customer shall not access the Subscription Services in order to build a competitive product or service or copy any ideas, features, functions or graphics of the Subscription Services. “ Confidential Information” means all proprietary or confidential information that is disclosed to the recipient (“Recipient”) by the discloser (“ Discloser”), and includes, among other things (i) any and all information relating to products or services provided by a Discloser, its customer-related and financial information, software code, BMC product vulnerabilities, flow charts, techniques, specifications, development and marketing plans, strategies, and forecasts; (ii) as to BMC, and its licensors, the Subscription Services and Service Items; and (iii) the terms of this Agreement, including without limitation, pricing information. Confidential Information does not include information that Recipient can show: (a) was rightfully in Recipient’s possession without any obligation of confidentiality before receipt from the Discloser; (b) is or becomes a matter of public knowledge through no fault of Recipient; (c) is rightfully received by Recipient from a third party without violation of a duty of confidentiality; or (d) is or was independently developed by or for Recipient. Recipient may not disclose Confidential Information of Discloser to any third party or use the Confidential Information in violation of this Agreement. The Recipient (i) will exercise the same degree of care and protection with respect to the Confidential Information of the Discloser that it exercises with respect to its own Confidential Information and (ii) will not, either directly or indirectly, disclose, copy, distribute, republish, or allow any third party to have access to any Confidential Information of the Discloser. Notwithstanding the foregoing, Recipient may disclose Discloser’s Confidential Information to Recipient’s employees and agents who have need to know provided that such employees and agents have legal obligations of confidentiality substantially the same (and in no case less protective) as the provisions of this Agreement.
7.2 Notification Obligation. If the Recipient becomes aware of any unauthorized use or disclosure of Discloser’s Confidential Information, then Recipient will promptly and fully notify the Discloser of all facts known to it concerning such unauthorized use or disclosure. In addition, if the Recipient or any of its employees or agents are required (by oral questions, interrogatories, requests for information, or documents in legal proceedings, subpoena, civil investigative demand, or other similar process) to disclose any of Discloser’s Confidential Information, the Recipient will not disclose the Discloser’s Confidential Information without providing the Discloser with commercially reasonable advance prior written notice to allow Discloser to seek a protective order or other appropriate remedy or to waive compliance with this provision. In any event, the Recipient will exercise its commercially reasonable efforts to preserve the confidentiality of the portion of the Discloser’s Confidential Information that Recipient is bound to furnish, including, without limitation, cooperating with Discloser to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded to the portion of the Discloser’s Confidential Information that is furnished.
7.3 Customer Content. As between BMC and Customer, Customer owns all rights, title and interest in and to Customer Content. Customer Content is deemed Confidential Information under this Agreement. BMC will use the Customer Content only as necessary to provide the Subscription Services in accordance with this Agreement. At any time during the term of the Subscription Services, Customer may request copies of all Customer Content from the Subscription Services. Customer is responsible for complying with all legal and contractual requirements, including its agreements with third parties. With the exception of Customer Content collected by the Subscription Services, Customer is solely responsible for the transmission of Customer Content to BMC and to the Subscription Services. Customer is solely responsible for the encryption of any Customer Content during such transmission.
7.4 Suggestions. Customer agrees that BMC shall have a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into any BMC products or services any suggestions, enhancement requests, recommendations or other feedback provided by Customer relating to the Subscription Services.
8. DISCLAIMER OF DAMAGES AND LIMITS ON LIABILITY.
8.1 DISCLAIMER OF DAMAGES. NEITHER PARTY OR ITS AFFILIATES OR LICENSORS ARE LIABLE FOR ANY, SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES RELATING TO OR ARISING OUT OF THIS AGREEMENT OR THE SUBSCRIPTION SERVICES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST COMPUTER USAGE TIME, AND DAMAGE TO, OR LOSS OF USE OF, DATA), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND IRRESPECTIVE OF ANY NEGLIGENCE OF A PARTY OR WHETHER SUCH DAMAGES RESULT FROM A CLAIM ARISING UNDER TORT OR CONTRACT LAW. THE FOREGOING LIMITATIONS DO NOT APPLY TO EACH PARTY’S RESPONSIBILITIES IN SECTION 9, INFRINGEMENT BY A PARTY OF THE OTHER PARTY’S IP RIGHTS, GROSS NEGLIGENCE, WILLFUL MISCONDUCT, DEATH OR BODILY INJURY, ACTS OF FRAUD, NOR ANY LIABILITY WHICH MAY NOT BE EXCLUDED OR LIMITED BY LAW.
8.2 LIMITS ON LIABILITY. NEITHER PARTY OR ITS AFFILIATES OR LICENSORS SHALL HAVE AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SUBSCRIPTION SERVICES, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEEDING THE AMOUNTS ACTUALLY PAID BY AND PAYABLE FROM CUSTOMER FOR THE SUBSCRIPTION SERVICES GIVING RISE TO LIABILITY PURSUANT TO THE ORDER(S) THAT ARE IN EFFECT AS OF THE DATE THE LIABILITY FIRST AROSE. THE FOREGOING LIMITATIONS DO NOT APPLY TO EACH PARTY’S RESPONSIBILITIES IN SECTION 9, INFRINGEMENT BY A PARTY OF THE OTHER PARTY’S IP RIGHTS, GROSS NEGLIGENCE, WILLFUL MISCONDUCT, DEATH OR BODILY INJURY, ACTS OF FRAUD, NOR ANY LIABILITY WHICH MAY NOT BE EXCLUDED OR LIMITED BY LAW.
9. INFRINGEMENT CLAIMS.
9.1 Indemnification by BMC . If a third party asserts a claim against Customer asserting that Customer’s use of the Subscription Services, including Platform Services, Deliverables and Licenses as defined in the Attachments to this Agreement, in accordance with this Agreement violates that third-party’s IP Rights (“Infringement Claim”), then BMC will, at its own expense: (a) defend or settle the Infringement Claim; and (b) indemnify Customer for any damages finally awarded or settled upon against Customer based on infringement by the Subscription Services or Deliverables, including court costs and reasonable attorney’s fees. If BMC believes the Subscription Services may violate a right, then BMC will, at its expense: (a) modify the Subscription Services, or (b) procure the right to continue using the Subscription Services, and if (a) or (b) are not commercially reasonable, terminate Customer's right to use the Subscription Services and issue a pro-rata refund for the unexpired pre-paid portion of such Subscription Services.
9.2 Indemnification by Customer. Subject to the terms of this Agreement, if a third party asserts a claim against BMC asserting that any of the following violates that third-party’s IP Rights: (i) Customer Content, (ii) Customer Applications as defined in Attachment A, (iii) Customer Property as defined in Attachment B or (iv) Customer’s use of the Subscription Services in violation of this Agreement (“Claim”), then Customer will, at its own expense: (a) defend or settle the Claim; and (b) indemnify BMC for any damages finally awarded or settled upon against BMC based on the Claim, including court costs and reasonable attorney’s fees.
9.3 Indemnity Process. Neither party’s obligations under this Section 9 will apply if: (a) the indemnifying party’s legal department does not receive prompt, detailed written notice of the Infringement Claim/Claim from the party being indemnified, (b) the indemnifying party is not able to retain sole control of the defense of the Infringement Claim/Claim and all negotiations for its settlement or compromise, or (c) the indemnifying party does not receive all reasonable assistance from the party being indemnified. Neither party will bind the indemnified party to a monetary obligation in a settlement or compromise, or make an admission on behalf of the indemnified party, without obtaining that party’s prior consent. The indemnified party agrees to use all reasonable efforts to help the indemnifying party mitigate damages resulting from an Infringement Claim/Claim, including without limitation Customer promptly installing all On Premise Subscription Services updates BMC provides to mitigate any Infringement Claim.
9.4 THIS SECTION 9 CONTAINS EACH PARTY'S EXCLUSIVE REMEDIES AND THE INDEMNIFYING PARTY'S SOLE LIABILITY FOR INFRINGEMENT CLAIMS/CLAIMS, RESPECTIVELY.
10. EXPORT CONTROLS. Both parties agree to comply with applicable export regulations, including but not limited to U.S. Export Administration Regulations and the OFAC embargoes and sanctions lists. More information on BMC’s export compliance program may be found here: https://www.bmc.com/legal/export-compliance.html.
11. GOVERNING LAW AND DISPUTE RESOLUTION. Any controversy, dispute or claim arising out of or relating to this Agreement, or to the formation, interpretation, breach, termination, or validity thereof (each, a “Controversy”) will be resolved as follows:
(i) UNITED STATES. If both parties to this Agreement are entities incorporated under the law of any state in the United States, the Controversy shall be tried in either state or federal court located in Houston, Texas and the laws of the State of Texas shall govern. Both parties hereby submit to the exclusive jurisdiction of the courts in Houston, Texas and waive all defenses based on forum non conveniens. Notwithstanding the foregoing, if Customer is a state or local governmental entity or higher education institution and legally required to apply state law, then Customer’s state law will apply to the Controversy, without reference to conflict of law principles.
(ii) CANADA. If Customer is located in Canada (outside Quebec), then the law of the Province of Ontario law apply, without reference to conflict of law principles. If Customer is located in Quebec, then the laws of the Province Quebec will apply, without reference to conflict of law principles.
(iii) EMEA. If both parties to this Agreement are entities incorporated in countries in the Europe, Middle East, or Africa regions, the Controversy shall be tried in the District Court located in Amsterdam, the Netherlands and the substantive laws of the Netherlands shall govern. Both parties hereby submit to the exclusive jurisdiction of the District Court in Amsterdam, the Netherlands and waive all defenses based on forum non conveniens.
(iv) ASIA PACIFIC. If both parties to this Agreement are entities incorporated in countries in the Asia Pacific region, the arbitration shall be held in Singapore under the then-applicable rules of the Singapore International Arbitration Centre and the substantive laws of Singapore will govern.
(v) OTHER REGIONS. In all other instances, the arbitration shall be held in New York City, New York, under the then-applicable international rules of the American Arbitration Association and the substantive laws of the State of Texas will govern.
For all arbitrations conducted hereunder: (a) the arbitration shall be conducted in English; (b) the relevant arbitral institution shall determine the number of arbitrators, but any Controversy in which the amount in dispute is greater than $10 million USD shall be decided by three arbitrators, with each party having the right to select one arbitrator; (c) the costs of such arbitration shall be borne equally, pending the arbitrator’s award; (d) the arbitration award rendered shall be final and binding on the parties, shall not be subject to appeal to any court and shall be enforceable in any court having jurisdiction over the parties; (e) the arbitration proceedings, award and pleadings shall all be confidential, unless disclosure of particular information is required for purposes of enforcing/challenging the award or to meet local securities law requirements; and (f) the party prevailing in arbitration shall be entitled to recover its reasonable attorneys’ fees and the necessary costs incurred in connection with the arbitration.
The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. Nothing in this Agreement shall be deemed as preventing either party from seeking immediate injunctive relief from any court having jurisdiction over the parties and the subject matter of the dispute.
12. The following BMC contracting entities apply to this Agreement:
Region | Contracting Entity | Address of Contracting Entity |
United States and Latin America South (not a specified Central or South America country below) | BMC Software, Inc. | 2103 CityWest Boulevard, Houston, Texas 77042 |
Canada | BMC Software Canada Inc. | 50 Minthorn Boulevard, Suite 200 Markham, Ontario L3T 7X8 Canada |
EMEA (Europe, Middle East and Africa) | BMC Software Distribution B.V. | Vision Plaza West, 2nd floor, Boeingavenue 220, 1119PN Schiphol-Rijk, The Netherlands |
Brazil | BMC Brasil Software Ltda. | Avenida Rebouças n° 3.970 e Avenida Dra. Ruth Cardoso, n° 8.501 Condomínio Eldorado Business Tower, 22° andar, Pinheiros, São Paulo – SP, CEP: 05425-070 |
Mexico | BMC Software Distribution de México, S.A. de C.V. | Calle Volcán, No.150, Piso 2, Oficina 202, Col. Lomas de Chapultepec V Sección, C.P., 11000, Alcaldía Miguel Hidalgo, Ciudad de México |
Argentina | BMC Software de Argentina S.A. | Ing. Butty 220 - Piso 18, Catalinas Plaza Buenos Aires, República de Argentina, C1001A |
S.E.A (Southeast Asia), Australia, New Zealand, Hong Kong, Taiwan | BMC Software Ireland Unlimited Company | Building 3, Cherrywood Business Park, Bray Road, Loughlinstown, CO. Dublin, D18 TF72 |
China | BMC Software (China) Limited | Room 502, Level 5, Tower W1, The Towers, Oriental Plaza, No. 1 East Chang An Ave., Dong Cheng Dist., Beijing 100738, China |
Japan | BMC Software K.K. | Harmony Tower 24th Floor, 1-32-2 Honcho, Nakano-ku, Tokyo, 164-8721 |
Korea | BMC Software Korea Ltd | 9 FL Two IFC, 10 Gukjekeumyung-ro, Youngdeungpogu, Seoul 07326, South Korea |
13. U.S. GOVERNMENT END USER RIGHTS. This Section 13 applies only to acquisitions of the commercial Subscription Services subject to this Agreement by or on behalf of the United States Government, or by any prime contractor or subcontractor (at any tier) under any contract, grant, agreement or other activity with the United States Government. When Subscription Services are delivered or provided to the United States Government, the United States Government agrees that this commercial license Agreement and the Subscription Services governed by this Agreement are defined in accordance with and qualify as “commercial items” consisting of “commercial computer software” and “commercial computer software documentation” as outlined in FAR 12.211, FAR 12.212 and DFARS 227.7202-3, as applicable. The terms and conditions of this Agreement shall pertain to the United States Government’s use (including documentation or technical data), duplication, and disclosure of the Subscription Services, and shall supersede any conflicting contractual terms and conditions”.
14. DATA PROTECTION. The processing of Customer Content under this Agreement is governed by the BMC Data Processing Agreement set forth on the Order.
15. VERIFICATION. Customer agrees that BMC or its agent may monitor the Subscription Services to ensure Customer’s compliance with the terms of this Agreement. If such monitoring reveals that Customer has exceeded the Capacity for the Subscription Services, Customer will execute an Order for additional Capacity of such Subscription Services through the end of the term of such Subscription Services, promptly upon BMC’s request.
16. NOTIFICATIONS. Any general notifications regarding technical matters from BMC to Customer will be sent to the Customer contact stated in the Customer Technical Contact Information section of the Order. The Customer contact in the Order has been assigned by Customer as the Customer contact for operational issues that may arise. Customer shall notify BMC of any change to the Customer contact details in writing, which may include via e-mail or in a form in the Subscription Services. Customer will receive system notifications from BMC and its licensors, if applicable (i.e. planned downtime notices, etc.).
17. CONDUCTING BUSINESS WITH HONESTY AND INTEGRITY. BMC is committed to conducting business with honesty and integrity. BMC’s Code of Conduct set forth in https://www.bmc.com/legal/code-of-conduct.html governs the conduct of all officers, directors, and employees of BMC, and contingent workers and business partners acting on BMC’s behalf. BMC demonstrates its commitment to environmental stewardship by its global accreditation for ISO 14001:2015.
18. INFORMATION SECURITY. BMC employs comprehensive organizational and technical security safeguards to protect the security and integrity of Customer Content in line with industry best practices, as set forth in the Information Security Requirements found at http://www.bmc.com/content/dam/bmc/corporate/hinfosec.pdf.
19. FORCE MAJEURE. Neither party will be liable to the other for any delay or failure to perform any obligation under this Agreement (except for obligations of confidentiality or a failure to pay fees) if the delay or failure is due to events which are beyond the reasonable control of such party, including, but not limited to (i) Acts of God, explosion, flood, lightning, tempest, fire or accident; (ii) war, hostilities (whether war is declared or not), invasion, acts of foreign enemies; (iii) rebellion, revolution, insurrection, military or usurped power or civil war; (iv) riot, civil commotion or disorder; (v) acts, restrictions, regulations, refusals to grant any licenses or permission, prohibitions or measures of any kind on the part of any local, state, national, governmental or supra-governmental authority; and/or (vi) epidemics, pandemics, and quarantines (including but not limited to those connected with COVID-19) (a “Force Majeure Event”). If either party is affected by Force Majeure Events, it shall promptly notify the other party (when possible) in writing of the matters constituting the Force Majeure Events. If possible, the party affected by the Force Majeure Event shall take reasonable steps available to it to minimize the effects of the Force Majeure Events on the performance of its obligations under the Agreement and/or affected Order. If a Force Majeure Event prevents BMC from performing the Subscription Services for more than 30 days, either party may terminate this Agreement and all relevant Orders. Upon such termination BMC will refund all prepaid and unused amounts to Customer, provided Customer has paid BMC for all Subscription Services that were performed up to the date of termination.
20. INSURANCE. BMC will provide and maintain the following insurance, but only for losses arising out of BMC’s provision of Subscription Services: (a) Worker’s Compensation insurance as prescribed by the law of the state applicable to the employees performing the Subscription Services; (b) Employer’s Liability insurance with a limit of $1,000,000 USD for each occurrence; (c) Commercial General Liability insurance with $1,000,000 USD per occurrence combined single limit and $2,000,000 USD general aggregate, including coverage for Products Liability and Completed Operations; (d) Automobile Liability insurance, including coverage for Hired and Non-owned vehicles of $1,000,000 USD for combined single limit for bodily injury and/or property damage; and (e) Professional Liability insurance covering Errors and Omissions and Cyber Liability in the amount of $1,000,000 USD for each occurrence and in the aggregate associated with Subscription Services performed under this Agreement. BMC will provide certificates of insurance upon Customer’s request.
21. MISCELLANEOUS TERMS. The parties are independent contractors and this Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties. This Agreement, including the Attachments and Orders constitutes the entire agreement between Customer and BMC and supersedes any prior or contemporaneous negotiations or agreements, whether oral or written concerning the Subscription Services. There are no representations, promises, warranties, covenants, or undertakings between the parties other than those expressly set forth in this Agreement. There are no third-party beneficiaries to this Agreement; Customer is not entering into a contractual relationship with BMC’s licensors and BMC’s licensors have no liability to Customer. No modification or waiver of any provision hereof will be effective unless made in a writing signed by both BMC and Customer. Customer has the right to assign this Agreement and all Orders in whole to an Affiliate, or to a successor in connection with (i) the sale of all or substantially all of the assets of that party or (ii) a merger by operation of law, by providing written notice to BMC. The assignee may not be a known direct competitor of BMC. The successor entity or Affiliate must agree in writing with BMC (in advance of the assignment) to be bound by the terms of this Agreement. Any Customer transfer or assignment except as expressly authorized above will be null and void. Should any provision of this Agreement be invalid or unenforceable, the remainder of the provisions will remain in effect. Any additional or conflicting terms of any Customer purchase order are rejected by BMC and do not apply. The Subscription Services may contain hyperlinks to websites controlled by parties other than BMC. BMC is not responsible for and does not endorse the content or accept any responsibility for Customer’s use of these websites. Customer should refer to the policies posted by other websites regarding privacy and other topics regarding data privacy before using them. In compliance with all applicable laws and for internal purposes only, BMC may compile and use de-identified, aggregate or statistical information related to Customer’s use of the Subscription Services for the purposes of enhancing and improving the Subscription Services, developing new products and services, and for other development, diagnostic, statistical and corrective purposes, provided that such information (a) does not incorporate Customer’s personally identifiable information or personal data and (b) does not identify or describe the Customer. Les parties exigent que la présente convention ainsi que les documents qui s’y rattachent soient rédigés en anglais.
Attachments incorporated into Agreement |
Attachment A – Platform Services Attachment |
Attachment B – Consulting Services Attachment |
Attachment C – On Premise Subscription Services Attachment |
PLATFORM SERVICES ATTACHMENT
to the
BMC CLOUD SERVICES MASTER AGREEMENT
Except as otherwise provided herein, the terms of the Cloud Services Master Agreement (the “Base Agreement”) are incorporated into this Platform Services attachment (the “Attachment”). Together, this Attachment and the Base Agreement (as incorporated into this Attachment) are referred to as the “Agreement” for purposes of Customer’s access and use of Platform Services, only if the Platform Services are set forth on an Order referencing the Base Agreement. For purposes of this Agreement, the term “Subscription Services” as defined in the Base Agreement shall be extended to include the Platform Services. In the event of a conflict between the Base Agreement and the terms of this Attachment, the terms of this Attachment will control for Customer’s access and use of the Platform Services only.
1. SCOPE. Subject to the terms of this Agreement, BMC will provide Customer with access to the Platform Service named in the applicable Order.
2. DEFINITIONS.
2.1 “Application” is the object code, its definitional structures, and data created to fulfill a particular purpose, which runs on the Platform Services. An Application may also include its documentation and User Guide.
2.2 “Customer Applications” means Applications that are owned or licensed by Customer, and which run on the Platform Services.
2.3 “Development Platform” means BMC provided development capabilities which allows Customer to develop a custom application to run on the Platform Services.
2.4 “Platform” means the generally available BMC-provided PaaS platform and its capabilities to run Applications.
2.5 “Platform Services” means the specific Platform Services identified in the Order.
3. BMC PLATFORM SERVICES.
3.1 BMC Platform Services Support. BMC will provide Support only for Platform Services. Customer is responsible for its own support for Customer Applications. For the avoidance of doubt, Support does not include development consulting.
4. CUSTOMER APPLICATIONS.
4.1 The terms contained in this section 4 apply only to Orders for Platform Services entitling Customers to develop and deploy Customer Applications onto the Platform Services. Any Customer Applications that run on the Platform Services are hereby excluded from the defined terms “Subscription Services” and “Platform Services”.
4.2 Development Platform. Customer may utilize the Development Platform to create an Application to run on the Platform Services. Customer’s use of the Development Platform is governed by the terms of this Agreement subject to the restrictions set forth in Sections 4.2.1 to 4.2.2 below. Customer’s development of an Application must meet the best practices development guidelines set forth in the User Guide. Each Customer Application shall at all times materially conform to policies and best practices set forth in the User Guide. Prior to the deployment of any Customer Applications in a production or non-production environment of the Platform Services, Customer must conduct security and functional tests of each Customer Application and submit the results of such tests to BMC for review. BMC reserves the right to reject Customer’s deployment request of a Customer Application based on the results of Customer’s security and functional tests. Additionally, BMC reserves the right, during the term of this Agreement, to request Customer conduct additional security and functional tests and provide the results of said tests to BMC for review. Notwithstanding the foregoing, Customer must ensure that at all times Customer Applications are secure.
4.2.1 Acceptable Use. The right to access and use the Development Platform is granted solely for the purpose of performing non-production application development work on the Development Platform. Customer agrees not to use the Development Platform to (1) process production data or for any other production purposes, including but not limited to publishing digital applications, or (2) distribute applications. Customer is responsible for acquiring all necessary and required licenses for the use of any third-party software, source code and/or libraries Customer may use as part of its development with the Development Platform.
4.2.2 Open Source. Customer may not use any software, library, utility, tool, or other computer or program code (“Code”) with the Subscription Services that in any way that would (i) weaken BMC’s intellectual property rights in the Services, or (ii) require the Subscription Services to become or be disclosed or distributed as Open Source Software. For purposes of this Section 4.2.2, “Open Source Software” means any Code that is substantially similar to, (A) the Affero General Public License, (B) the GNU General Public License (GPL) or Lesser/Library GPL (LGPL), (C) the Artistic License (e.g. PERL), (D) the Mozilla Public License, (E) the Netscape Public License, (F) the Sun Community Source License (SCSL), (G) the Sun Standards License (SISL), or (H) any “copyleft” license, or any other license that requires as a condition of use, reproduction, modification, or distribution that such Code or other software or computer code distributed with it: (1) be disclosed or distributed in source code form; (2) be licensed for the purpose of creating derivative works; (3) be licensed under terms that allow reverse engineering, reverse assembly, or disassembly of any kind; (4) be subject to a patent non-assert or royalty-free patent license; or (iv) be redistributable at no charge.
4.3 License to Customer Applications. Subject to the terms and conditions of this Agreement, Customer hereby grants BMC a worldwide, limited, nonexclusive license during the term of the applicable Order for the Platform Services to host, copy, transmit, adapt and display Customer Applications solely for the purpose of fulfilling BMC’s obligations under this Agreement.
4.4 Functionality of Customer Applications. Customer is solely responsible for the operation of Customer Applications, including but not limited to any information stored in or transmitted by Customer Applications. Customer is responsible for monitoring the usage of each Customer Application. Customer is responsible for the configuration, functionality, performance, compliance with applicable data protection laws and security of all Customer Applications, including any interfaces used to connect to Customer Applications.
4.5 Customer Assistance. Customer will provide information or other materials related to a Customer Applications as reasonably requested by BMC to verify Customer’s compliance with the Agreement and the User Guide.
4.7 Suspension of Customer Applications. Customer’s use of the Platform Services may be immediately suspended and/or terminated due to (i) reasonable security threats regarding the Platform Services or Customer Applications, (ii) Customer Applications interfering with, disrupting or threatening the integrity or performance of the Subscription Services and/or the Platform Services, or (iii) violates the law, infringes or misappropriates the rights of any third party or otherwise violates a material term of the Agreement. In the event (i) or (ii) above apply to Customer Applications, Customer is required to remediate any such issue to BMC’s commercially reasonable satisfaction before use of Customer Applications can resume. BMC shall use reasonable commercial efforts to only suspend the non-conforming portion of the Platform Services.
4.8 CUSTOMER APPLICATIONS WARRANTIES. Customer warrants to BMC that: (a) each Customer Application will perform materially in accordance with the User Guide; (b) Customer has all rights in the Customer Content and Customer Applications necessary to grant the rights contemplated by this Agreement; (c) none of the Customer Content or Customer Applications or Users’ use of Customer Content or Customer Applications will violate the Agreement and the User Guide; and (d) Customer’s security and functional tests of Customer Applications was conducted in a commercially reasonable manner and the results of said tests provided to BMC for review are correct and valid.
ATTACHMENT B
CONSULTING SERVICES ATTACHMENT
to the
BMC CLOUD SERVICES MASTER AGREEMENT
Except as otherwise provided herein, the terms of the Cloud Services Master Agreement (the “Base Agreement”) are incorporated into this Consulting Services attachment (the “Attachment”). Together, this Attachment and the Base Agreement (as incorporated into this Attachment) are referred to as the “Agreement” for purposes of Customer’s purchase of Consulting Services, only if Consulting Services are set forth on an Order referencing the Base Agreement. For purposes of this Agreement, the term “Subscription Services” as defined in the Base Agreement shall be extended to include Consulting Services. In the event of a conflict between the Base Agreement and the terms of this Attachment, the terms of this Attachment will control for Customer’s purchase of Consulting Services only. The parties agree that the following Sections of the Base Agreement do not apply to the Consulting Services provided under this Attachment: Section 3.2 (BMC Subscription Services Support), Section 4 (Fees and Payment), and Section 6 (Limited Warranty).
1. SCOPE. BMC agrees to render to Customer Consulting Services under the terms of this Agreement and as further described in an Order. BMC will render the Consulting Services in the location(s) as set forth in the Order. The performance of the Consulting Services will not relieve or alter the rights, obligations and responsibilities of Customer and of the BMC Affiliate providing Subscription Services and/or Licenses with respect to Subscription Services and/or Licenses under the applicable agreement. BMC will notify Customer in writing of any subcontractors prior to the commencement of the Consulting Services.
2. SERVICE FEES AND EXPENSES. The fees payable to BMC for the Consulting Services to be rendered will be detailed in the Order. BMC will submit invoices to Customer for such fees and incurred expenses either upon completion of the Consulting Services, or at stated intervals, in any case in accordance with the applicable Order. Customer shall pay amounts invoiced within 30 days of the date of the invoice. If Customer disputes an invoice in good faith, it will notify BMC within 30 days of receiving the invoice. The parties will seek to resolve such dispute over a 15-day discussion period. Customer is not required to pay disputed amounts during the discussion period, but will timely pay all undisputed amounts. After the discussion period, either party may pursue all available remedies.
3. EDUCATION. Customer may acquire Learning Pass Credits and Education Services (collectively, “BMC Education ”) on an Order. The BMC Education terms that govern such Orders are set forth in the Education Program Guide located at https://www.bmc.com/content/dam/bmc/education/education-program-guide.pdf, and is incorporated herein by this reference.
4. STATEMENTS OF WORK. Consulting Services may require the execution of a Statement of Work, in which case, such Statement of Work will be considered an Order for such Consulting Services. In the event of any conflict between the terms of a Statement of Work and this Agreement, the Agreement shall prevail except for matters of service fees, payment and reimbursement of expense, and termination of Consulting Services if further specified in the Statement of Work. During the term of an applicable Statement of Work, and for a period of six months thereafter, neither party will solicit for employment any employees, agents, or subcontractors of the other party or its affiliates who, within six months prior to such solicitation, had contact with the soliciting party based in whole or in part upon Consulting Services provided under this Agreement. The restrictions in this Section 4 shall be deemed not to apply to general solicitations for employment posted on Internet job sites or printed in newspapers or trade or professional journals.
5. PROPRIETARY RIGHTS AND RIGHTS IN DELIVERABLES.
5.1 Ownership of Materials Used in the Consulting Services. Unless specifically provided in an Order, Customer shall supply all of the facilities; equipment; supplies; computer programs; information about Customer’s business, systems, software and needs; and other materials necessary for completion of the Consulting Services (“Customer Property”), and BMC shall supply the people described in the Order, the know-how and the tools necessary to provide the Consulting Services, which may include, among other things, software, templates, questionnaires, graphs, methodologies, models, charts and reports (“BMC Property”). Customer Property and copies and modifications of Customer Property will remain the sole property of Customer or if applicable, Customer’s licensors, and BMC Property and copies and modifications of BMC Property will remain the sole property of BMC or if applicable, BMC’s licensors. Customer hereby grants to BMC a royalty-free, paid-up, non-exclusive, non-sublicensable and non-transferable license to use the Customer Property for the purpose of providing the Consulting Services.
5.2 Deliverables. Deliverables are those created under the Order, including, but not limited to, software, software scripts, routines, libraries or other code, or appliances, methodologies, templates, tools, policies, records, working papers, reports, methodologies, know-how, data, or other intellectual property, written or otherwise, including any derivative works or modifications to the above, whether pre-existing or created during the performance of the Consulting Services and all proprietary and intellectual property rights embedded therein delivered as a result of the Consulting Services as specified under the Order. BMC owns all right, title and interest in the Deliverables. Provided Customer has paid in full for the Consulting Services that resulted in the Deliverables, BMC will deliver the Deliverables to Customer in accordance with the applicable Order. Subject to compliance with the terms of this Agreement and the applicable Order, BMC grants Customer a non-exclusive, non-transferable, non-sublicensable, royalty-free, paid-up license to use, create derivative works of and modify all Deliverables solely for its internal business operations.
5.3 Copyright Notice. Each party agrees to reproduce the copyright notice and any other legend or ownership notice on any copies made under the licenses granted pursuant to this Section 5.
5.4 Retention. Customer acknowledges that BMC provides similar services to other customers and that nothing in this Agreement shall be construed as operating to prevent BMC from carrying on such business. Further BMC may use ideas, concepts, or know-how developed or acquired by BMC during performance of the Consulting Services to the extent by BMC’s personnel as impressions and general learning.
6. LIMITED WARRANTY. BMC warrants that it will perform the Consulting Services in conformance with generally accepted practices within the software services industry and in accordance with the Order. Customer must notify BMC of any breach of this warranty no later than 90 days after completion of the Consulting Services under the Order. Customer’s exclusive remedy and BMC’s entire liability under this warranty shall be for BMC to re-perform any non-conforming portion of the Consulting Services within a reasonable period of time, or if BMC cannot remedy the breach during such time period then refund the portion of the fee attributable to such non-conforming portion of the Consulting Services under the Order. This warranty will not apply to the extent Customer, its contractors or agents have modified any Deliverable, unless otherwise authorized by BMC in writing.
EXCEPT FOR THE EXPRESS WARRANTIES IN THIS AGREEMENT, THE CONSULTING SERVICES AND DELIVERABLES ARE PROVIDED WITH NO OTHER WARRANTIES WHATSOEVER, AND BMC, ITS AFFILIATES AND LICENSORS DISCLAIM ALL OTHER WARRANTIES, INCLUDING, FITNESS FOR A PARTICULAR PURPOSE AND IN THE UNITED STATES AND CANADA, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, AND NON-INFRINGEMENT.
7. MUTUAL INDEMNITY. Each party shall indemnify and hold harmless the other party from all claims, liabilities or expenses for physical damage to real property or tangible personal property and bodily injury, including death, to the extent caused by the negligence, gross negligence or willful misconduct of the indemnifying party’s employees or contractors arising out of this Agreement and while at the Customer’s premises. The foregoing indemnities are contingent upon the party seeking indemnity giving prompt written notice to the indemnifying party of any claim, demand or action, and cooperating with the indemnifying party in the defense or settlement of any such claim, demand or action.
8. INDEPENDENT CONTRACTOR. All of the services performed by BMC under this Agreement will be performed as an independent contractor.
ATTACHMENT C
ON PREMISE SUBSCRIPTIONS ATTACHMENT
to the
BMC CLOUD SERVICES MASTER AGREEMENT
Except as otherwise provided herein, the terms of the Cloud Services Master Agreement (the “Base Agreement”) are incorporated into this On Premise Subscriptions attachment (the “Attachment”). Together, this Attachment and the Base Agreement (as incorporated into this Attachment) are referred to as the “Agreement” for purposes of Customer’s purchase and ongoing use of On Premise Subscriptions, only if On Premise Subscriptions are set forth on an Order referencing the Base Agreement. For purposes of this Agreement, the term “Subscription Services” as defined in the Base Agreement shall be extended to include On Premise Subscriptions. In the event of a conflict between the Base Agreement and the terms of this Attachment, the terms of this Attachment will control for Customer’s purchase of On Premise Subscriptions only. The parties agree that the following Sections of the Base Agreement do not apply to the On Premise Subscriptions provided under this Attachment: Section 3.1 (Access Rights), Section 3.5 (Customer Responsibilities and Restrictions), Section 6 (Limited Warranty) and Section 15 (Verification).
1. DEFINITIONS.
1.1 “Authorized User” means Customer, Customer Affiliate(s), and their employees, consultants, contractors and agents that are bound by the terms and conditions no less restrictive than those contained herein and for whom Customer takes full responsibility. Authorized Users do not include service providers or outsourcers.
1.2 "Documentation" means the technical publications relating to the software, such as release notes, license entitlement descriptions, reference, user, installation, systems administrator and technical guidelines, included with the On Premise Subscription.
1.3 “Licensed Capacity” is the amount of each On Premise Subscription licensed as established in the Order.
1.4 “On Premise Subscription” is the object code of the software and all accompanying Documentation delivered to Customer, including all items delivered by BMC to Customer under Support.
2. LICENSE. Subject to the terms, conditions, payment requirements and restrictions set forth in this Agreement, BMC grants Customer a non-exclusive, non-transferable, non-sub-licensable term license to install in the Territory as defined in an Order, access and use the On Premise Subscription during the term specified on the Order (i) by Authorized User(s), (ii) up to the Licensed Capacity, (iii) for Customer’s and its Affiliates’ internal business operations, (iv) in accordance with the Documentation and the applicable Order, and (v) make a reasonable number of copies of the On Premise Subscription for archival purposes only (collectively a "License"). Affiliates may use and access the On Premise Subscriptions under the terms of this Agreement, and Customer is responsible for its Affiliates compliance with the terms of this Agreement.
3. RESTRICTIONS. Customer will not: (a) copy, operate or use any On Premise Subscription in excess of the applicable Licensed Capacity or other than as set forth in the License above; (b) modify, delete or remove any ownership, title, trademark, patent or copyright notices (“Identification”) from any On Premise Subscription, or copy or partial copy of an On Premise Subscription; (c) disassemble, reverse engineer, decompile or otherwise attempt to derive any On Premise Subscription source code from object code, except to the extent expressly permitted by applicable law despite this limitation without possibility of contractual waiver; (d) distribute, rent, lease, sublicense or provide the On Premise Subscription to any third party; (e) use the On Premise Subscriptions in an outsourcing or service bureau environment on behalf of non-Affiliate third parties, or allow the On Premise Subscriptions to be used by an outsourcing or service bureau provider on Customer’s behalf; (f) conduct penetration test or security vulnerability tests of any type on the On Premise Subscription without BMC’s prior written consent; (g) publish or make public any benchmark, security, or performance data or information about the On Premise Subscription without BMC’s prior written consent; or (h) attempt to disable or circumvent any of the licensing mechanisms within the On Premise Subscription.
4. ON PREMISE SUBSCRIPTION PERFORMANCE WARRANTY. BMC warrants that (a) the On Premise Subscription will perform in substantial accordance with its Documentation for a period of one year from the date of the first Order, (b) BMC has used commercially reasonable efforts consistent with industry standards to scan for and remove software viruses, and (c) other than passwords that may be required for the operation of the On Premise Subscription, BMC has not inserted any code that is not addressed in the Documentation and that is designed to delete, interfere with or disable the normal operation of the On Premise Subscription in accordance with the License. This warranty will not apply to any problems caused by hardware, Computers, or software other than the On Premise Subscription, or misuse of the On Premise Subscription, use of the On Premise Subscription other than as provided by the applicable License, modification of the On Premise Subscription, or claims made either outside the warranty period or not in compliance with the notice and access requirements set forth below. No warranty is provided for additional Licensed Capacity, On Premise Subscription provided pursuant to Support.
BMC’s entire liability, and Customer’s exclusive remedy, for breach of the above warranty is limited to: BMC’s use of commercially reasonable efforts to have the On Premise Subscription perform in substantial accordance with its Documentation, or replacement of the non-conforming On Premise Subscription within a reasonable period of time, or if BMC cannot have the On Premise Subscription perform in substantial accordance with its Documentation or replace the On Premise Subscription within such time period, then BMC will refund the amount paid by Customer for the License for that On Premise Subscription. Customer agrees to provide BMC during the warranty period (i) full cooperation and access to the On Premise Subscription in resolving any claim; and (ii) written notice that includes notice of the claim, a complete description of the alleged defects sufficient to permit their reproduction in BMC’s development or support environment, and a reference to the Documentation to which such alleged defects are contrary.
EXCEPT FOR THE EXPRESS WARRANTIES IN THIS ATTACHMENT, THE ON PREMISE SUBSCRIPTION IS PROVIDED WITH NO OTHER WARRANTIES WHATSOEVER, AND BMC, ITS AFFILIATES AND LICENSORS DISCLAIM ALL OTHER WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE AND IN THE UNITED STATES AND CANADA, MERCHANTABILITY AND NON-INFRINGEMENT. BMC DOES NOT WARRANT THAT THE OPERATION OF THE ON PREMISE SUBSCRIPTION WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT ALL DEFECTS CAN BE CORRECTED.
5. DELIVERY. For On Premise Subscriptions that are delivered electronically, upon request from BMC, Customer agrees to provide BMC with documentation supporting that the designated On Premise Subscription was received electronically. If Customer accepts any On Premise Subscription in a non-electronic format, there may be an additional charge and it is the sole responsibility of Customer to bear any sales/use tax obligation, penalties, and interest. All On Premise Subscriptions are licensed FCA (“Free Carrier” as per Incoterms 2000) shipping point. The On Premise Subscriptions are accepted on the date BMC delivers the On Premise Subscription to the Customer either physically or by providing access codes for electronic download, whichever occurs first, however, such acceptance will not affect the On Premise Subscription Performance Warranty provided in this Agreement.
6. AUDIT. If requested by BMC, and not more than once a year, Customer agrees to deliver to BMC, within 30 days of such request, as specified by BMC (a) periodic product usage reports generated from specific products (b) third party usage reports related to the On Premise Subscriptions (e.g., SCRT reports) and (c) written periodic product usage reports, to be provided solely when the product does not generate reports (together, “Reports”). Additionally, if requested by BMC not more than once a year and upon at least ten days prior written notice to Customer, Customer agrees to allow BMC to perform an audit (“Audit”) to ensure compliance with the terms of this Agreement at the locations where the On Premise Subscriptions are installed, during normal business hours. to ensure compliance with the terms of this Agreement. Customer agrees to cooperate during any such Audit and to provide reasonable access to its information and systems. If Customer is found to have exceeded its Licensed Capacity for an On Premise Subscriptions based on such Reports or Audit, then Customer agrees to pay the applicable fees for the additional capacity through the end of the applicable Order term upon receipt of an invoice from BMC.
Effective August 10th 2023 to January 30th 2024
DownloadTable of Contents
BMC CLOUD SERVICES MASTER AGREEMENT
THIS CLOUD SERVICES MASTER AGREEMENT (“AGREEMENT”) GOVERNS YOUR FREE TRIAL, IF ANY, OF THE SUBSCRIPTION SERVICES.
IF YOU PURCHASE THE SUBSCRIPTION SERVICES, THIS AGREEMENT WILL ALSO GOVERN YOUR PURCHASE AND ONGOING USE OF THE SUBSCRIPTION SERVICES.
BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SUBSCRIPTION SERVICES.
You may not access the Subscription Services if you are BMC’s direct competitor, except with BMC’s prior written consent. In addition, you may not access the Subscription Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.
This Agreement was last updated on August 10, 2023. This Agreement is between the entity or individual entering into this Agreement (“Customer”) and the BMC Contracting Entity for the applicable region as described in Section 12 (“BMC”). It is effective between Customer and BMC as of the date of your acceptance of this Agreement. If Customer has a fully executed BMC Cloud Services Master Agreement then such fully executed BMC Cloud Services Master Agreement supersedes and replaces any clickwrap or click-through agreements (or other similar agreements) that Customer may be required to accept as a part of accessing or using the Subscription Services. For Customer’s convenience, prior versions of this Agreement are available at https://www.bmc.com/legal/csma.html.
FREE TRIAL.
BMC may make the Subscription Services available to Customer on a trial basis free of charge. If BMC offers Customer a free trial, it will run until the earlier of (a) the end of the trial period stated on the trial registration web page or (b) the start date of any Order for purchase of the Subscription Services. Additional trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.
ANY DATA CUSTOMER ENTERS INTO THE SUBSCRIPTION SERVICES, AND ANY CUSTOMIZATIONS MADE TO THE SUBSCRIPTION SERVICES BY OR FOR CUSTOMER, DURING A FREE TRIAL MAY BE PERMANENTLY LOST.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THE AGREEMENT, DURING ANY FREE TRIAL PERIOD THE SUBSCRIPTION SERVICES ARE PROVIDED “AS IS” WITH NO WARRANTY.
1. DEFINITIONS.
1.1 “Affiliate” is an entity that controls, is controlled by or shares common control with BMC or Customer, where such control arises from the legal power to direct or cause the direction of the general management and policies of the company, partnership or legal entity.
1.2 "Capacity” means the amount of access to the Subscription Services purchased as specified in an Order, which is counted in accordance with the Unit of Measure described in the Order.
1.3 “Consulting Services” means the consulting, implementation, training or other services provided under the terms of Attachment B (Consulting Services) and as further described under the applicable Order.
1.4 “Customer Content” means all electronic data or information (a) submitted to the Subscription Services by Customer, a third party on behalf of Customer, or as directed by Customer or (b) collected, processed or returned by the Subscription Services.
1.5 “IP Rights” means all intellectual property or other proprietary rights worldwide, including patents, trade secrets, copyrights, trademarks, moral rights, and any other intellectual or industrial property including registrations, applications, renewals, and extensions of such rights.
1.6 “Order” means (i) the agreed ordering document for the purchase of the Subscription Services, (ii) that is subject to this Agreement, and (iii) that identifies the terms of the purchase and fees to be paid. The term “Order” includes Customer’s online registration for and purchase of the Subscription Services, If any.
1.7 "Subscription Services" means the generally available hosted service which packages web-based access and the right-to-use the supported applications, installed agents and associated reference, user and technical guides.
1.8 “User Guide” means the online help, functional guide and technical specifications for the Subscription Services, as updated by BMC from time to time. The User Guides may be viewed here: https://docs.bmc.com/docs/.
2. SCOPE. Subject to the terms of this Agreement, Customer may purchase and BMC will provide Customer with access to the Subscription Services as set forth in this Agreement and the applicable Order. Subject to the Attachments to this Agreement, Customer may also purchase BMC Platform Services, BMC Consulting Services and BMC On Premise Subscription Services. In the event of a direct conflict between any Order and the terms of this Agreement, the terms of the Order will control only if the Order is executed by an authorized representative of each party. Each Order is deemed to be a discrete contract, separate from each other Order, unless expressly stated otherwise therein. Orders may be entered under this Agreement by and between (a) BMC or an Affiliate of BMC; and (b) Customer or an Affiliate of Customer. With respect to an Order, the terms “BMC” and “Customer” as used in this Agreement will be deemed to refer to the entities that execute that Order, the Order will be considered a two party agreement between such entities, and BMC will separately invoice the Customer named in the Order for the associated fees. Orders may also be placed via a BMC authorized reseller. Neither execution of this Agreement, nor anything contained herein, shall obligate either party to enter into any Orders.
3. ACCESS TO SUBSCRIPTION SERVICES.
3.1 Access Rights. Subject to the terms of this Agreement, BMC will provide Customer with worldwide access to the Subscription Services in accordance with the Order (i) up to the Capacity, (ii) for Customer’s and its Affiliates’ internal business operations, (iii) in accordance with the User Guide and the applicable Order. Customer may exercise its rights under this Section 3.1 through its employees, consultants, contractors, agents, and Affiliates (all, “Users”).
3.2 BMC Subscription Services Support. BMC will provide the support described at http://www.bmc.com/support/review-policies (“Support”) to Customer for the Subscription Services.
3.3 Use of Subcontractors. Customer acknowledges and agrees that BMC uses subcontractors to provide portions of the Subscription Services. BMC’s subcontractors acting as subprocessors are listed in the Data Processing Agreement between the parties and/or on each Order. BMC is responsible for the performance of all subcontractors providing any of the Subscription Services.
3.4 Compliance with Laws. Each party shall comply with all applicable laws in the performance of its obligations under this Agreement.
3.5 Acceptable Use Policy and Restrictions.
(a) Customer will (i) maintain the confidentiality of all authentications and passwords for the Subscription Services and immediately notify BMC if it becomes aware that an unauthorized party has gained access such authentications and passwords, (ii) be responsible for use of the Subscription Services by its Users in compliance with this Agreement, (iii) prevent unauthorized access to, or use of, the Subscription Services, and notify BMC promptly of any such unauthorized access or use, and (iv) be responsible for obtaining its own Apple Push Notification certificate, if the Subscription Services are used to manage devices running iOS. Customer is responsible for the creation and implementation of a privacy policy and end user agreement, if applicable, which will set forth the guidelines of how Customer uses and protects the data and personal information of its Users, and how said Users may utilize the Subscription Services.
(b) Customer will not (i) modify, copy or create derivative works based on the Subscription Services; (ii) create Internet “links” to or reproduce any content forming part of the Subscription Services, other than for its own internal business purposes; (iii) disassemble, reverse engineer, or decompile the Subscription Services or part thereof, except to the extent expressly permitted by applicable law despite this limitation without possibility of contractual waiver; (iv) interfere with or disrupt the integrity or performance of the Subscription Services; (v) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortuous material, or send or store material in violation of any third party’s privacy rights via the Subscription Services; (vi) send or store viruses or malicious code via the Subscription Services; (vii) attempt to gain unauthorized access to the Subscription Services or its related software, systems, platforms or networks, including any form of security and/or penetration testing; (viii) use any components provided with the Subscription Services separately from the Subscription Services; (ix) distribute, rent, lease or provide the Subscription Services to any third party or use it in a service bureau, outsourcing environment, or for the processing of third party data; (x) publish benchmark or performance information about the Subscription Services without BMC’s prior written consent; or (xi) conduct security or vulnerability tests of the Subscription Services.
4. FEES AND PAYMENT.
4.1 Fees. The fees payable for the Subscription Services and the payment period for such fees will be set forth in and paid in accordance with the Order. All payments are due within 30 days of the date of the invoice.
4.2 Late Fees. Late balances may, at BMC’s sole election, bear interest at a rate equal to the lesser of 1% per month or the maximum amount permitted by law.
4.3 Taxes. Customer will pay taxes imposed in connection with the fees paid for the Subscription Services, which are exclusive of these taxes.
4.4 Payment Disputes. If Customer disputes an invoice in good faith, it will notify BMC within 30 days of receiving the invoice. The parties will seek to resolve such dispute over a 15-day discussion period. Customer is not required to pay disputed amounts during the discussion period, but will timely pay all undisputed amounts. After the discussion period, either party may pursue all available remedies.
4.5 Solution Providers. With regard to Subscription Services acquired by Customer through an authorized reseller of BMC (“Solution Provider”), notwithstanding anything to the contrary in Sections 4.1 to 4.4 above, Customer will have no direct payment obligations to BMC for such fees.
5. TERM, SUSPENSION AND TERMINATION.
5.1 Term. This Agreement begins on the Effective Date and will remain in effect unless terminated pursuant to Section 5.2 below, regardless of the billing frequency selected in the Order.
5.2 Termination.
(a) Termination for Convenience. Customer may terminate this Agreement by providing BMC with at least 30 days prior written notice; provided, however, such termination will have no effect on Orders in effect at the time of such termination. Orders may not be terminated for convenience unless otherwise specified therein. Customer may notify BMC of its intent to terminate by emailing BMC at order_services@bmc.com.
(b) Termination for Cause. Either party may terminate this Agreement and/or an Order for cause upon 30 days’ written notice of a material breach to the other party if such breach remains uncured at the expiration of such period. In the event Customer terminates the Agreement and an Order for BMC’s material breach, BMC will refund the amount paid by Customer to BMC for the Subscription Services on such Order, pro-rated from the date of the notice of the termination.
5.3 Suspension of Subscription Services for Cause. In addition to its other rights and remedies, BMC reserves the right, without liability to Customer, to suspend any and all access to the Subscription Services if Customer commits a material breach of this Agreement and fails to cure the same within 30 days from Customer’s receipt of written notice of such breach from BMC. Provided however, that BMC may immediately suspend any and all access to the Subscription Services without any cure period if BMC determines in good faith that Customer’s material breach of the Agreement will cause material harm to BMC, the Subscription Services, or any other customer. Once the material breach is resolved, BMC will promptly restore Customer’s access to the Subscription Services in accordance with this Agreement.
5.4 Effects of Termination. Upon termination or expiration of any Order or this Agreement, all rights and Licenses granted thereunder will terminate and Customer will make no further use of the Subscription Services. No termination will relieve the Customer of the obligation to pay any fees accrued or payable to BMC pursuant to any Order. Upon written request by Customer made within 60 days after the effective date of termination, BMC will make the Customer Content available to Customer for retrieval in an industry standard format. After such 60-day period, BMC shall have no obligation to maintain any Customer Content and will thereafter delete Customer Content. Any terms in this Agreement which by their nature extend beyond termination of this Agreement will remain in effect until fulfilled.
5.5 Termination Assistance. Upon Customer’s request and upon (a) the expiration of an Order or (b) the termination of an Order for any reason other than Customer’s breach, BMC shall perform such services as the parties in good faith agree are reasonably necessary to facilitate the orderly transition of the Services to the successor service provider or to the Customer. BMC will provide any such services under the terms and conditions of the Agreement, and subject to payment of the then-current fees and charges, generally applicable to BMC’s performance of such services, as agreed between the parties at such time.
6. LIMITED WARRANTY.
6.1 Warranties and Limited Remedies. BMC warrants to Customer that:
(a) the online availability of the Subscription Services will be maintained in accordance with the service levels described at https://www.bmc.com/content/dam/bmc/corporate/service-level-agreement.pdf (the “Service Level Agreement” or “SLA”). Customer’s exclusive remedy and BMC’s sole obligation for breach of the warranty in this Section 6.1(a) is described in the Service Level Agreement; and
(b) the Subscription Services (i) will perform in substantial accordance with the then-current on-line User Guide available via the Subscription Services, (ii) will be performed in a manner consistent with industry standards reasonably applicable to the provision thereof and (iii) will not materially degrade during the term of any Order. Customer’s exclusive remedy and BMC’s sole obligation for breach of the warranty in this Section 6.1(b) will be BMC’s use of commercially reasonable efforts to have the Subscription Services perform in substantial accordance with the User Guide, or replace the non-conforming portion of the Subscription Services within 30 days from the written notice of claim, or if BMC cannot have the Subscription Services perform in substantial accordance with the User Guide or replace the Subscription Services within such time period, then Customer may terminate the non-performing Subscription Services, and upon such termination BMC will refund the amount paid by Customer for the Subscription Services, pro-rated from the date of the notice of the claim. Customer agrees to provide BMC with written notice of the claim, a description of the alleged defects and a reference to the User Guide to which such alleged defects are contrary.
(c) In connection with the Subscription Services (i) it has used commercially reasonable efforts consistent with industry standards to scan for and promptly remove any software viruses for no charge and (ii) it has not inserted any Disabling Code. “Disabling Code” means computer code inserted by BMC, that is not addressed in the User Guide, and that is designed to expose data, delete, interfere with, and/or disable the normal operation of the Subscription Services. This Disabling Code warranty does not apply to BMC passwords necessary for the operation of the Subscription Services, or for any use by Customer outside the scope of this Agreement.
6.2 Disclaimer. CUSTOMER ACKNOWLEDGES THAT, EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, BMC, ITS AFFILIATES AND LICENSORS MAKE NO WARRANTY, EXPRESS, IMPLIED OR STATUTORY WITH RESPECT TO THE SUBSCRIPTION SERVICES OR USE THEREOF. BMC, ITS AFFILIATES AND LICENSORS HEREBY EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY THAT SUBSCRIPTION SERVICES WILL BE UNINTERRUPTED, ERROR FREE OR WITHOUT DELAY, AND THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INTERFERENCE, NON-INFRINGEMENT AND INFORMATION CONTENT.
7. PROPRIETARY RIGHTS AND CONFIDENTIALITY.
7.1 Proprietary Rights. BMC, its Affiliates or licensors retain all right, title and interest to the Subscription Services and all related intellectual property and proprietary rights. The Subscription Services are protected by applicable copyright, trade secret, industrial and other intellectual property laws. BMC owns all right, title and interest in all software, programming, documentation, templates, questionnaires, methodologies, models, charts, reports, ideas, features, content, functions, graphics and any other items provided as part of the Subscription Services (“ Service Items”) and access to and use of the relevant Service Items will be governed by the terms of this Agreement. Subject to (i) BMC’s or its licensor’s ownership of any Service Items and (ii) Section 3.5 (b)(i) of the Agreement, Customer owns all rights, title, and interest in Customer Applications, including all proprietary and intellectual property rights. BMC reserves any rights not expressly granted to Customer. Customer shall not access the Subscription Services in order to build a competitive product or service or copy any ideas, features, functions or graphics of the Subscription Services. “ Confidential Information” means all proprietary or confidential information that is disclosed to the recipient (“Recipient”) by the discloser (“ Discloser”), and includes, among other things (i) any and all information relating to products or services provided by a Discloser, its customer-related and financial information, software code, BMC product vulnerabilities, flow charts, techniques, specifications, development and marketing plans, strategies, and forecasts; (ii) as to BMC, and its licensors, the Subscription Services and Service Items; and (iii) the terms of this Agreement, including without limitation, pricing information. Confidential Information does not include information that Recipient can show: (a) was rightfully in Recipient’s possession without any obligation of confidentiality before receipt from the Discloser; (b) is or becomes a matter of public knowledge through no fault of Recipient; (c) is rightfully received by Recipient from a third party without violation of a duty of confidentiality; or (d) is or was independently developed by or for Recipient. Recipient may not disclose Confidential Information of Discloser to any third party or use the Confidential Information in violation of this Agreement. The Recipient (i) will exercise the same degree of care and protection with respect to the Confidential Information of the Discloser that it exercises with respect to its own Confidential Information and (ii) will not, either directly or indirectly, disclose, copy, distribute, republish, or allow any third party to have access to any Confidential Information of the Discloser. Notwithstanding the foregoing, Recipient may disclose Discloser’s Confidential Information to Recipient’s employees and agents who have need to know provided that such employees and agents have legal obligations of confidentiality substantially the same (and in no case less protective) as the provisions of this Agreement.
7.2 Notification Obligation. If the Recipient becomes aware of any unauthorized use or disclosure of Discloser’s Confidential Information, then Recipient will promptly and fully notify the Discloser of all facts known to it concerning such unauthorized use or disclosure. In addition, if the Recipient or any of its employees or agents are required (by oral questions, interrogatories, requests for information, or documents in legal proceedings, subpoena, civil investigative demand, or other similar process) to disclose any of Discloser’s Confidential Information, the Recipient will not disclose the Discloser’s Confidential Information without providing the Discloser with commercially reasonable advance prior written notice to allow Discloser to seek a protective order or other appropriate remedy or to waive compliance with this provision. In any event, the Recipient will exercise its commercially reasonable efforts to preserve the confidentiality of the portion of the Discloser’s Confidential Information that Recipient is bound to furnish, including, without limitation, cooperating with Discloser to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded to the portion of the Discloser’s Confidential Information that is furnished.
7.3 Customer Content. As between BMC and Customer, Customer owns all rights, title and interest in and to Customer Content. Customer Content is deemed Confidential Information under this Agreement. BMC will use the Customer Content only as necessary to provide the Subscription Services in accordance with this Agreement. At any time during the term of the Subscription Services, Customer may request copies of all Customer Content from the Subscription Services. Customer is responsible for complying with all legal and contractual requirements, including its agreements with third parties. With the exception of Customer Content collected by the Subscription Services, Customer is solely responsible for the transmission of Customer Content to BMC and to the Subscription Services. Customer is solely responsible for the encryption of any Customer Content during such transmission.
7.4 Suggestions. Customer agrees that BMC shall have a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into any BMC products or services any suggestions, enhancement requests, recommendations or other feedback provided by Customer relating to the Subscription Services.
8. DISCLAIMER OF DAMAGES AND LIMITS ON LIABILITY.
8.1 DISCLAIMER OF DAMAGES. NEITHER PARTY OR ITS AFFILIATES OR LICENSORS ARE LIABLE FOR ANY, SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES RELATING TO OR ARISING OUT OF THIS AGREEMENT OR THE SUBSCRIPTION SERVICES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST COMPUTER USAGE TIME, AND DAMAGE TO, OR LOSS OF USE OF, DATA), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND IRRESPECTIVE OF ANY NEGLIGENCE OF A PARTY OR WHETHER SUCH DAMAGES RESULT FROM A CLAIM ARISING UNDER TORT OR CONTRACT LAW. THE FOREGOING LIMITATIONS DO NOT APPLY TO EACH PARTY’S RESPONSIBILITIES IN SECTION 9, INFRINGEMENT BY A PARTY OF THE OTHER PARTY’S IP RIGHTS, GROSS NEGLIGENCE, WILLFUL MISCONDUCT, DEATH OR BODILY INJURY, ACTS OF FRAUD, NOR ANY LIABILITY WHICH MAY NOT BE EXCLUDED OR LIMITED BY LAW.
8.2 LIMITS ON LIABILITY. NEITHER PARTY OR ITS AFFILIATES OR LICENSORS SHALL HAVE AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SUBSCRIPTION SERVICES, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEEDING THE AMOUNTS ACTUALLY PAID BY AND PAYABLE FROM CUSTOMER FOR THE SUBSCRIPTION SERVICES GIVING RISE TO LIABILITY PURSUANT TO THE ORDER(S) THAT ARE IN EFFECT AS OF THE DATE THE LIABILITY FIRST AROSE. THE FOREGOING LIMITATIONS DO NOT APPLY TO EACH PARTY’S RESPONSIBILITIES IN SECTION 9, INFRINGEMENT BY A PARTY OF THE OTHER PARTY’S IP RIGHTS, GROSS NEGLIGENCE, WILLFUL MISCONDUCT, DEATH OR BODILY INJURY, ACTS OF FRAUD, NOR ANY LIABILITY WHICH MAY NOT BE EXCLUDED OR LIMITED BY LAW.
9. INFRINGEMENT CLAIMS.
9.1 Indemnification by BMC . If a third party asserts a claim against Customer asserting that Customer’s use of the Subscription Services, including Platform Services, Deliverables and Licenses as defined in the Attachments to this Agreement, in accordance with this Agreement violates that third-party’s IP Rights (“Infringement Claim”), then BMC will, at its own expense: (a) defend or settle the Infringement Claim; and (b) indemnify Customer for any damages finally awarded or settled upon against Customer based on infringement by the Subscription Services or Deliverables, including court costs and reasonable attorney’s fees. If BMC believes the Subscription Services may violate a right, then BMC will, at its expense: (a) modify the Subscription Services, or (b) procure the right to continue using the Subscription Services, and if (a) or (b) are not commercially reasonable, terminate Customer's right to use the Subscription Services and issue a pro-rata refund for the unexpired pre-paid portion of such Subscription Services.
9.2 Indemnification by Customer. Subject to the terms of this Agreement, if a third party asserts a claim against BMC asserting that any of the following violates that third-party’s IP Rights: (i) Customer Content, (ii) Customer Applications as defined in Attachment A, (iii) Customer Property as defined in Attachment B or (iv) Customer’s use of the Subscription Services in violation of this Agreement (“Claim”), then Customer will, at its own expense: (a) defend or settle the Claim; and (b) indemnify BMC for any damages finally awarded or settled upon against BMC based on the Claim, including court costs and reasonable attorney’s fees.
9.3 Indemnity Process. Neither party’s obligations under this Section 9 will apply if: (a) the indemnifying party’s legal department does not receive prompt, detailed written notice of the Infringement Claim/Claim from the party being indemnified, (b) the indemnifying party is not able to retain sole control of the defense of the Infringement Claim/Claim and all negotiations for its settlement or compromise, or (c) the indemnifying party does not receive all reasonable assistance from the party being indemnified. Neither party will bind the indemnified party to a monetary obligation in a settlement or compromise, or make an admission on behalf of the indemnified party, without obtaining that party’s prior consent. The indemnified party agrees to use all reasonable efforts to help the indemnifying party mitigate damages resulting from an Infringement Claim/Claim, including without limitation Customer promptly installing all On Premise Subscription Services updates BMC provides to mitigate any Infringement Claim.
9.4 THIS SECTION 9 CONTAINS EACH PARTY'S EXCLUSIVE REMEDIES AND THE INDEMNIFYING PARTY'S SOLE LIABILITY FOR INFRINGEMENT CLAIMS/CLAIMS, RESPECTIVELY.
10. EXPORT CONTROLS. Both parties agree to comply with applicable export regulations, including but not limited to U.S. Export Administration Regulations and the OFAC embargoes and sanctions lists. More information on BMC’s export compliance program may be found here: https://www.bmc.com/legal/export-compliance.html.
11. GOVERNING LAW AND DISPUTE RESOLUTION. Any controversy, dispute or claim arising out of or relating to this Agreement, or to the formation, interpretation, breach, termination, or validity thereof (each, a “Controversy”) will be resolved as follows:
(i) UNITED STATES. If both parties to this Agreement are entities incorporated under the law of any state in the United States, the Controversy shall be tried in either state or federal court located in Houston, Texas and the laws of the State of Texas shall govern. Both parties hereby submit to the exclusive jurisdiction of the courts in Houston, Texas and waive all defenses based on forum non conveniens. Notwithstanding the foregoing, if Customer is a state or local governmental entity or higher education institution and legally required to apply state law, then Customer’s state law will apply to the Controversy, without reference to conflict of law principles.
(ii) CANADA. If Customer is located in Canada (outside Quebec), then the law of the Province of Ontario law apply, without reference to conflict of law principles. If Customer is located in Quebec, then the laws of the Province Quebec will apply, without reference to conflict of law principles.
(iii) EMEA. If both parties to this Agreement are entities incorporated in countries in the Europe, Middle East, or Africa regions, the Controversy shall be tried in the District Court located in Amsterdam, the Netherlands and the substantive laws of the Netherlands shall govern. Both parties hereby submit to the exclusive jurisdiction of the District Court in Amsterdam, the Netherlands and waive all defenses based on forum non conveniens.
(iv) ASIA PACIFIC. If both parties to this Agreement are entities incorporated in countries in the Asia Pacific region, the arbitration shall be held in Singapore under the then-applicable rules of the Singapore International Arbitration Centre and the substantive laws of Singapore will govern.
(v) OTHER REGIONS. In all other instances, the arbitration shall be held in New York City, New York, under the then-applicable international rules of the American Arbitration Association and the substantive laws of the State of Texas will govern.
For all arbitrations conducted hereunder: (a) the arbitration shall be conducted in English; (b) the relevant arbitral institution shall determine the number of arbitrators, but any Controversy in which the amount in dispute is greater than $10 million USD shall be decided by three arbitrators, with each party having the right to select one arbitrator; (c) the costs of such arbitration shall be borne equally, pending the arbitrator’s award; (d) the arbitration award rendered shall be final and binding on the parties, shall not be subject to appeal to any court and shall be enforceable in any court having jurisdiction over the parties; (e) the arbitration proceedings, award and pleadings shall all be confidential, unless disclosure of particular information is required for purposes of enforcing/challenging the award or to meet local securities law requirements; and (f) the party prevailing in arbitration shall be entitled to recover its reasonable attorneys’ fees and the necessary costs incurred in connection with the arbitration.
The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. Nothing in this Agreement shall be deemed as preventing either party from seeking immediate injunctive relief from any court having jurisdiction over the parties and the subject matter of the dispute.
12. The following BMC contracting entities apply to this Agreement:
Region | Contracting Entity | Address of Contracting Entity |
United States and Latin America South (not a specified Central or South America country below) | BMC Software, Inc. | 2103 CityWest Boulevard, Houston, Texas 77042 |
Canada | BMC Software Canada Inc. | 50 Minthorn Boulevard, Suite 200 Markham, Ontario L3T 7X8 Canada |
EMEA (Europe, Middle East and Africa) | BMC Software Distribution B.V. | Vision Plaza West, 2nd floor, Boeingavenue 220, 1119PN Schiphol-Rijk, The Netherlands |
Brazil | BMC Brasil Software Ltda. | Avenida Rebouças n° 3.970 e Avenida Dra. Ruth Cardoso, n° 8.501 Condomínio Eldorado Business Tower, 22° andar, Pinheiros, São Paulo – SP, CEP: 05425-070 |
Mexico | BMC Software Distribution de México, S.A. de C.V. | Calle Volcán, No.150, Piso 2, Oficina 202, Col. Lomas de Chapultepec V Sección, C.P., 11000, Alcaldía Miguel Hidalgo, Ciudad de México |
Argentina | BMC Software de Argentina S.A. | Ing. Butty 220 - Piso 18, Catalinas Plaza Buenos Aires, República de Argentina, C1001A |
S.E.A (Southeast Asia), Australia, New Zealand, Hong Kong, Taiwan | BMC Software Ireland Unlimited Company | Building 3, Cherrywood Business Park, Bray Road, Loughlinstown, CO. Dublin, D18 TF72 |
China | BMC Software (China) Limited | Room 502, Level 5, Tower W1, The Towers, Oriental Plaza, No. 1 East Chang An Ave., Dong Cheng Dist., Beijing 100738, China |
Japan | BMC Software K.K. | Harmony Tower 24th Floor, 1-32-2 Honcho, Nakano-ku, Tokyo, 164-8721 |
Korea | BMC Software Korea Ltd | 9 FL Two IFC, 10 Gukjekeumyung-ro, Youngdeungpogu, Seoul 07326, South Korea |
13. U.S. GOVERNMENT END USER RIGHTS. This Section 13 applies only to acquisitions of the commercial Subscription Services subject to this Agreement by or on behalf of the United States Government, or by any prime contractor or subcontractor (at any tier) under any contract, grant, agreement or other activity with the United States Government. When Subscription Services are delivered or provided to the United States Government, the United States Government agrees that this commercial license Agreement and the Subscription Services governed by this Agreement are defined in accordance with and qualify as “commercial items” consisting of “commercial computer software” and “commercial computer software documentation” as outlined in FAR 12.211, FAR 12.212 and DFARS 227.7202-3, as applicable. The terms and conditions of this Agreement shall pertain to the United States Government’s use (including documentation or technical data), duplication, and disclosure of the Subscription Services, and shall supersede any conflicting contractual terms and conditions”.
14. DATA PROTECTION. The processing of Customer Content under this Agreement is governed by the BMC Data Processing Agreement set forth on the Order.
15. VERIFICATION. Customer agrees that BMC or its agent may monitor the Subscription Services to ensure Customer’s compliance with the terms of this Agreement. If such monitoring reveals that Customer has exceeded the Capacity for the Subscription Services, Customer will execute an Order for additional Capacity of such Subscription Services through the end of the term of such Subscription Services, promptly upon BMC’s request.
16. NOTIFICATIONS. Any general notifications regarding technical matters from BMC to Customer will be sent to the Customer contact stated in the Customer Technical Contact Information section of the Order. The Customer contact in the Order has been assigned by Customer as the Customer contact for operational issues that may arise. Customer shall notify BMC of any change to the Customer contact details in writing, which may include via e-mail or in a form in the Subscription Services. Customer will receive system notifications from BMC and its licensors, if applicable (i.e. planned downtime notices, etc.).
17. CONDUCTING BUSINESS WITH HONESTY AND INTEGRITY. BMC is committed to conducting business with honesty and integrity. BMC’s Code of Conduct set forth in https://www.bmc.com/legal/code-of-conduct.html governs the conduct of all officers, directors, and employees of BMC, and contingent workers and business partners acting on BMC’s behalf. BMC demonstrates its commitment to environmental stewardship by its global accreditation for ISO 14001:2015.
18. INFORMATION SECURITY. BMC employs comprehensive organizational and technical security safeguards to protect the security and integrity of Customer Content in line with industry best practices, as set forth in the Information Security Requirements found at http://www.bmc.com/content/dam/bmc/corporate/hinfosec.pdf.
19. FORCE MAJEURE. Neither party will be liable to the other for any delay or failure to perform any obligation under this Agreement (except for obligations of confidentiality or a failure to pay fees) if the delay or failure is due to events which are beyond the reasonable control of such party, including, but not limited to (i) Acts of God, explosion, flood, lightning, tempest, fire or accident; (ii) war, hostilities (whether war is declared or not), invasion, acts of foreign enemies; (iii) rebellion, revolution, insurrection, military or usurped power or civil war; (iv) riot, civil commotion or disorder; (v) acts, restrictions, regulations, refusals to grant any licenses or permission, prohibitions or measures of any kind on the part of any local, state, national, governmental or supra-governmental authority; and/or (vi) epidemics, pandemics, and quarantines (including but not limited to those connected with COVID-19) (a “Force Majeure Event”). If either party is affected by Force Majeure Events, it shall promptly notify the other party (when possible) in writing of the matters constituting the Force Majeure Events. If possible, the party affected by the Force Majeure Event shall take reasonable steps available to it to minimize the effects of the Force Majeure Events on the performance of its obligations under the Agreement and/or affected Order. If a Force Majeure Event prevents BMC from performing the Subscription Services for more than 30 days, either party may terminate this Agreement and all relevant Orders. Upon such termination BMC will refund all prepaid and unused amounts to Customer, provided Customer has paid BMC for all Subscription Services that were performed up to the date of termination.
20. INSURANCE. BMC will provide and maintain the following insurance, but only for losses arising out of BMC’s provision of Subscription Services: (a) Worker’s Compensation insurance as prescribed by the law of the state applicable to the employees performing the Subscription Services; (b) Employer’s Liability insurance with a limit of $1,000,000 USD for each occurrence; (c) Commercial General Liability insurance with $1,000,000 USD per occurrence combined single limit and $2,000,000 USD general aggregate, including coverage for Products Liability and Completed Operations; (d) Automobile Liability insurance, including coverage for Hired and Non-owned vehicles of $1,000,000 USD for combined single limit for bodily injury and/or property damage; and (e) Professional Liability insurance covering Errors and Omissions and Cyber Liability in the amount of $1,000,000 USD for each occurrence and in the aggregate associated with Subscription Services performed under this Agreement. BMC will provide certificates of insurance upon Customer’s request.
21. MISCELLANEOUS TERMS. The parties are independent contractors and this Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties. This Agreement, including the Attachments and Orders constitutes the entire agreement between Customer and BMC and supersedes any prior or contemporaneous negotiations or agreements, whether oral or written concerning the Subscription Services. There are no representations, promises, warranties, covenants, or undertakings between the parties other than those expressly set forth in this Agreement. There are no third-party beneficiaries to this Agreement; Customer is not entering into a contractual relationship with BMC’s licensors and BMC’s licensors have no liability to Customer. No modification or waiver of any provision hereof will be effective unless made in a writing signed by both BMC and Customer. Customer has the right to assign this Agreement and all Orders in whole to an Affiliate, or to a successor in connection with (i) the sale of all or substantially all of the assets of that party or (ii) a merger by operation of law, by providing written notice to BMC. The assignee may not be a known direct competitor of BMC. The successor entity or Affiliate must agree in writing with BMC (in advance of the assignment) to be bound by the terms of this Agreement. Any Customer transfer or assignment except as expressly authorized above will be null and void. Should any provision of this Agreement be invalid or unenforceable, the remainder of the provisions will remain in effect. Any additional or conflicting terms of any Customer purchase order are rejected by BMC and do not apply. The Subscription Services may contain hyperlinks to websites controlled by parties other than BMC. BMC is not responsible for and does not endorse the content or accept any responsibility for Customer’s use of these websites. Customer should refer to the policies posted by other websites regarding privacy and other topics regarding data privacy before using them. In compliance with all applicable laws and for internal purposes only, BMC may compile and use de-identified, aggregate or statistical information related to Customer’s use of the Subscription Services for the purposes of enhancing and improving the Subscription Services, developing new products and services, and for other development, diagnostic, statistical and corrective purposes, provided that such information (a) does not incorporate Customer’s personally identifiable information or personal data and (b) does not identify or describe the Customer. Les parties exigent que la présente convention ainsi que les documents qui s’y rattachent soient rédigés en anglais.
Attachments incorporated into Agreement |
Attachment A – Platform Services Attachment |
Attachment B – Consulting Services Attachment |
Attachment C – On Premise Subscription Services Attachment |
PLATFORM SERVICES ATTACHMENT
to the
BMC CLOUD SERVICES MASTER AGREEMENT
Except as otherwise provided herein, the terms of the Cloud Services Master Agreement (the “Base Agreement”) are incorporated into this Platform Services attachment (the “Attachment”). Together, this Attachment and the Base Agreement (as incorporated into this Attachment) are referred to as the “Agreement” for purposes of Customer’s access and use of Platform Services, only if the Platform Services are set forth on an Order referencing the Base Agreement. For purposes of this Agreement, the term “Subscription Services” as defined in the Base Agreement shall be extended to include the Platform Services. In the event of a conflict between the Base Agreement and the terms of this Attachment, the terms of this Attachment will control for Customer’s access and use of the Platform Services only.
1. SCOPE. Subject to the terms of this Agreement, BMC will provide Customer with access to the Platform Service named in the applicable Order.
2. DEFINITIONS.
2.1 “Application” is the object code, its definitional structures, and data created to fulfill a particular purpose, which runs on the Platform Services. An Application may also include its documentation and User Guide.
2.2 “Customer Applications” means Applications that are owned or licensed by Customer, and which run on the Platform Services.
2.3 “Development Platform” means BMC provided development capabilities which allows Customer to develop a custom application to run on the Platform Services.
2.4 “Platform” means the generally available BMC-provided PaaS platform and its capabilities to run Applications.
2.5 “Platform Services” means the specific Platform Services identified in the Order.
3. BMC PLATFORM SERVICES.
3.1 BMC Platform Services Support. BMC will provide Support only for Platform Services. Customer is responsible for its own support for Customer Applications. For the avoidance of doubt, Support does not include development consulting.
4. CUSTOMER APPLICATIONS.
4.1 The terms contained in this section 4 apply only to Orders for Platform Services entitling Customers to develop and deploy Customer Applications onto the Platform Services. Any Customer Applications that run on the Platform Services are hereby excluded from the defined terms “Subscription Services” and “Platform Services”.
4.2 Development Platform. Customer may utilize the Development Platform to create an Application to run on the Platform Services. Customer’s use of the Development Platform is governed by the terms of this Agreement subject to the restrictions set forth in Sections 4.2.1 to 4.2.2 below. Customer’s development of an Application must meet the best practices development guidelines set forth in the User Guide. Each Customer Application shall at all times materially conform to policies and best practices set forth in the User Guide. Prior to the deployment of any Customer Applications in a production or non-production environment of the Platform Services, Customer must conduct security and functional tests of each Customer Application and submit the results of such tests to BMC for review. BMC reserves the right to reject Customer’s deployment request of a Customer Application based on the results of Customer’s security and functional tests. Additionally, BMC reserves the right, during the term of this Agreement, to request Customer conduct additional security and functional tests and provide the results of said tests to BMC for review. Notwithstanding the foregoing, Customer must ensure that at all times Customer Applications are secure.
4.2.1 Acceptable Use. The right to access and use the Development Platform is granted solely for the purpose of performing non-production application development work on the Development Platform. Customer agrees not to use the Development Platform to (1) process production data or for any other production purposes, including but not limited to publishing digital applications, or (2) distribute applications. Customer is responsible for acquiring all necessary and required licenses for the use of any third-party software, source code and/or libraries Customer may use as part of its development with the Development Platform.
4.2.2 Open Source. Customer may not use any software, library, utility, tool, or other computer or program code (“Code”) with the Subscription Services that in any way that would (i) weaken BMC’s intellectual property rights in the Services, or (ii) require the Subscription Services to become or be disclosed or distributed as Open Source Software. For purposes of this Section 4.2.2, “Open Source Software” means any Code that is substantially similar to, (A) the Affero General Public License, (B) the GNU General Public License (GPL) or Lesser/Library GPL (LGPL), (C) the Artistic License (e.g. PERL), (D) the Mozilla Public License, (E) the Netscape Public License, (F) the Sun Community Source License (SCSL), (G) the Sun Standards License (SISL), or (H) any “copyleft” license, or any other license that requires as a condition of use, reproduction, modification, or distribution that such Code or other software or computer code distributed with it: (1) be disclosed or distributed in source code form; (2) be licensed for the purpose of creating derivative works; (3) be licensed under terms that allow reverse engineering, reverse assembly, or disassembly of any kind; (4) be subject to a patent non-assert or royalty-free patent license; or (iv) be redistributable at no charge.
4.3 License to Customer Applications. Subject to the terms and conditions of this Agreement, Customer hereby grants BMC a worldwide, limited, nonexclusive license during the term of the applicable Order for the Platform Services to host, copy, transmit, adapt and display Customer Applications solely for the purpose of fulfilling BMC’s obligations under this Agreement.
4.4 Functionality of Customer Applications. Customer is solely responsible for the operation of Customer Applications, including but not limited to any information stored in or transmitted by Customer Applications. Customer is responsible for monitoring the usage of each Customer Application. Customer is responsible for the configuration, functionality, performance, compliance with applicable data protection laws and security of all Customer Applications, including any interfaces used to connect to Customer Applications.
4.5 Customer Assistance. Customer will provide information or other materials related to a Customer Applications as reasonably requested by BMC to verify Customer’s compliance with the Agreement and the User Guide.
4.7 Suspension of Customer Applications. Customer’s use of the Platform Services may be immediately suspended and/or terminated due to (i) reasonable security threats regarding the Platform Services or Customer Applications, (ii) Customer Applications interfering with, disrupting or threatening the integrity or performance of the Subscription Services and/or the Platform Services, or (iii) violates the law, infringes or misappropriates the rights of any third party or otherwise violates a material term of the Agreement. In the event (i) or (ii) above apply to Customer Applications, Customer is required to remediate any such issue to BMC’s commercially reasonable satisfaction before use of Customer Applications can resume. BMC shall use reasonable commercial efforts to only suspend the non-conforming portion of the Platform Services.
4.8 CUSTOMER APPLICATIONS WARRANTIES. Customer warrants to BMC that: (a) each Customer Application will perform materially in accordance with the User Guide; (b) Customer has all rights in the Customer Content and Customer Applications necessary to grant the rights contemplated by this Agreement; (c) none of the Customer Content or Customer Applications or Users’ use of Customer Content or Customer Applications will violate the Agreement and the User Guide; and (d) Customer’s security and functional tests of Customer Applications was conducted in a commercially reasonable manner and the results of said tests provided to BMC for review are correct and valid.
ATTACHMENT B
CONSULTING SERVICES ATTACHMENT
to the
BMC CLOUD SERVICES MASTER AGREEMENT
Except as otherwise provided herein, the terms of the Cloud Services Master Agreement (the “Base Agreement”) are incorporated into this Consulting Services attachment (the “Attachment”). Together, this Attachment and the Base Agreement (as incorporated into this Attachment) are referred to as the “Agreement” for purposes of Customer’s purchase of Consulting Services, only if Consulting Services are set forth on an Order referencing the Base Agreement. For purposes of this Agreement, the term “Subscription Services” as defined in the Base Agreement shall be extended to include Consulting Services. In the event of a conflict between the Base Agreement and the terms of this Attachment, the terms of this Attachment will control for Customer’s purchase of Consulting Services only. The parties agree that the following Sections of the Base Agreement do not apply to the Consulting Services provided under this Attachment: Section 3.2 (BMC Subscription Services Support), Section 4 (Fees and Payment), and Section 6 (Limited Warranty).
1. SCOPE. BMC agrees to render to Customer Consulting Services under the terms of this Agreement and as further described in an Order. BMC will render the Consulting Services in the location(s) as set forth in the Order. The performance of the Consulting Services will not relieve or alter the rights, obligations and responsibilities of Customer and of the BMC Affiliate providing Subscription Services and/or Licenses with respect to Subscription Services and/or Licenses under the applicable agreement. BMC will notify Customer in writing of any subcontractors prior to the commencement of the Consulting Services.
2. SERVICE FEES AND EXPENSES. The fees payable to BMC for the Consulting Services to be rendered will be detailed in the Order. BMC will submit invoices to Customer for such fees and incurred expenses either upon completion of the Consulting Services, or at stated intervals, in any case in accordance with the applicable Order. Customer shall pay amounts invoiced within 30 days of the date of the invoice. If Customer disputes an invoice in good faith, it will notify BMC within 30 days of receiving the invoice. The parties will seek to resolve such dispute over a 15-day discussion period. Customer is not required to pay disputed amounts during the discussion period, but will timely pay all undisputed amounts. After the discussion period, either party may pursue all available remedies.
3. EDUCATION. Customer may acquire Learning Pass Credits and Education Services (collectively, “BMC Education ”) on an Order. The BMC Education terms that govern such Orders are set forth in the Education Program Guide located at https://www.bmc.com/content/dam/bmc/education/education-program-guide.pdf, and is incorporated herein by this reference.
4. STATEMENTS OF WORK. Consulting Services may require the execution of a Statement of Work, in which case, such Statement of Work will be considered an Order for such Consulting Services. In the event of any conflict between the terms of a Statement of Work and this Agreement, the Agreement shall prevail except for matters of service fees, payment and reimbursement of expense, and termination of Consulting Services if further specified in the Statement of Work. During the term of an applicable Statement of Work, and for a period of six months thereafter, neither party will solicit for employment any employees, agents, or subcontractors of the other party or its affiliates who, within six months prior to such solicitation, had contact with the soliciting party based in whole or in part upon Consulting Services provided under this Agreement. The restrictions in this Section 4 shall be deemed not to apply to general solicitations for employment posted on Internet job sites or printed in newspapers or trade or professional journals.
5. PROPRIETARY RIGHTS AND RIGHTS IN DELIVERABLES.
5.1 Ownership of Materials Used in the Consulting Services. Unless specifically provided in an Order, Customer shall supply all of the facilities; equipment; supplies; computer programs; information about Customer’s business, systems, software and needs; and other materials necessary for completion of the Consulting Services (“Customer Property”), and BMC shall supply the people described in the Order, the know-how and the tools necessary to provide the Consulting Services, which may include, among other things, software, templates, questionnaires, graphs, methodologies, models, charts and reports (“BMC Property”). Customer Property and copies and modifications of Customer Property will remain the sole property of Customer or if applicable, Customer’s licensors, and BMC Property and copies and modifications of BMC Property will remain the sole property of BMC or if applicable, BMC’s licensors. Customer hereby grants to BMC a royalty-free, paid-up, non-exclusive, non-sublicensable and non-transferable license to use the Customer Property for the purpose of providing the Consulting Services.
5.2 Deliverables. Deliverables are those created under the Order, including, but not limited to, software, software scripts, routines, libraries or other code, or appliances, methodologies, templates, tools, policies, records, working papers, reports, methodologies, know-how, data, or other intellectual property, written or otherwise, including any derivative works or modifications to the above, whether pre-existing or created during the performance of the Consulting Services and all proprietary and intellectual property rights embedded therein delivered as a result of the Consulting Services as specified under the Order. BMC owns all right, title and interest in the Deliverables. Provided Customer has paid in full for the Consulting Services that resulted in the Deliverables, BMC will deliver the Deliverables to Customer in accordance with the applicable Order. Subject to compliance with the terms of this Agreement and the applicable Order, BMC grants Customer a non-exclusive, non-transferable, non-sublicensable, royalty-free, paid-up license to use, create derivative works of and modify all Deliverables solely for its internal business operations.
5.3 Copyright Notice. Each party agrees to reproduce the copyright notice and any other legend or ownership notice on any copies made under the licenses granted pursuant to this Section 5.
5.4 Retention. Customer acknowledges that BMC provides similar services to other customers and that nothing in this Agreement shall be construed as operating to prevent BMC from carrying on such business. Further BMC may use ideas, concepts, or know-how developed or acquired by BMC during performance of the Consulting Services to the extent by BMC’s personnel as impressions and general learning.
6. LIMITED WARRANTY. BMC warrants that it will perform the Consulting Services in conformance with generally accepted practices within the software services industry and in accordance with the Order. Customer must notify BMC of any breach of this warranty no later than 90 days after completion of the Consulting Services under the Order. Customer’s exclusive remedy and BMC’s entire liability under this warranty shall be for BMC to re-perform any non-conforming portion of the Consulting Services within a reasonable period of time, or if BMC cannot remedy the breach during such time period then refund the portion of the fee attributable to such non-conforming portion of the Consulting Services under the Order. This warranty will not apply to the extent Customer, its contractors or agents have modified any Deliverable, unless otherwise authorized by BMC in writing.
EXCEPT FOR THE EXPRESS WARRANTIES IN THIS AGREEMENT, THE CONSULTING SERVICES AND DELIVERABLES ARE PROVIDED WITH NO OTHER WARRANTIES WHATSOEVER, AND BMC, ITS AFFILIATES AND LICENSORS DISCLAIM ALL OTHER WARRANTIES, INCLUDING, FITNESS FOR A PARTICULAR PURPOSE AND IN THE UNITED STATES AND CANADA, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, AND NON-INFRINGEMENT.
7. MUTUAL INDEMNITY. Each party shall indemnify and hold harmless the other party from all claims, liabilities or expenses for physical damage to real property or tangible personal property and bodily injury, including death, to the extent caused by the negligence, gross negligence or willful misconduct of the indemnifying party’s employees or contractors arising out of this Agreement and while at the Customer’s premises. The foregoing indemnities are contingent upon the party seeking indemnity giving prompt written notice to the indemnifying party of any claim, demand or action, and cooperating with the indemnifying party in the defense or settlement of any such claim, demand or action.
8. INDEPENDENT CONTRACTOR. All of the services performed by BMC under this Agreement will be performed as an independent contractor.
ATTACHMENT C
ON PREMISE SUBSCRIPTIONS ATTACHMENT
to the
BMC CLOUD SERVICES MASTER AGREEMENT
Except as otherwise provided herein, the terms of the Cloud Services Master Agreement (the “Base Agreement”) are incorporated into this On Premise Subscriptions attachment (the “Attachment”). Together, this Attachment and the Base Agreement (as incorporated into this Attachment) are referred to as the “Agreement” for purposes of Customer’s purchase and ongoing use of On Premise Subscriptions, only if On Premise Subscriptions are set forth on an Order referencing the Base Agreement. For purposes of this Agreement, the term “Subscription Services” as defined in the Base Agreement shall be extended to include On Premise Subscriptions. In the event of a conflict between the Base Agreement and the terms of this Attachment, the terms of this Attachment will control for Customer’s purchase of On Premise Subscriptions only. The parties agree that the following Sections of the Base Agreement do not apply to the On Premise Subscriptions provided under this Attachment: Section 3.1 (Access Rights), Section 3.5 (Customer Responsibilities and Restrictions), Section 6 (Limited Warranty) and Section 15 (Verification).
1. DEFINITIONS.
1.1 “Authorized User” means Customer, Customer Affiliate(s), and their employees, consultants, contractors and agents that are bound by the terms and conditions no less restrictive than those contained herein and for whom Customer takes full responsibility. Authorized Users do not include service providers or outsourcers.
1.2 "Documentation" means the technical publications relating to the software, such as release notes, license entitlement descriptions, reference, user, installation, systems administrator and technical guidelines, included with the On Premise Subscription.
1.3 “Licensed Capacity” is the amount of each On Premise Subscription licensed as established in the Order.
1.4 “On Premise Subscription” is the object code of the software and all accompanying Documentation delivered to Customer, including all items delivered by BMC to Customer under Support.
2. LICENSE. Subject to the terms, conditions, payment requirements and restrictions set forth in this Agreement, BMC grants Customer a non-exclusive, non-transferable, non-sub-licensable term license to install in the Territory as defined in an Order, access and use the On Premise Subscription during the term specified on the Order (i) by Authorized User(s), (ii) up to the Licensed Capacity, (iii) for Customer’s and its Affiliates’ internal business operations, (iv) in accordance with the Documentation and the applicable Order, and (v) make a reasonable number of copies of the On Premise Subscription for archival purposes only (collectively a "License"). Affiliates may use and access the On Premise Subscriptions under the terms of this Agreement, and Customer is responsible for its Affiliates compliance with the terms of this Agreement.
3. RESTRICTIONS. Customer will not: (a) copy, operate or use any On Premise Subscription in excess of the applicable Licensed Capacity or other than as set forth in the License above; (b) modify, delete or remove any ownership, title, trademark, patent or copyright notices (“Identification”) from any On Premise Subscription, or copy or partial copy of an On Premise Subscription; (c) disassemble, reverse engineer, decompile or otherwise attempt to derive any On Premise Subscription source code from object code, except to the extent expressly permitted by applicable law despite this limitation without possibility of contractual waiver; (d) distribute, rent, lease, sublicense or provide the On Premise Subscription to any third party; (e) use the On Premise Subscriptions in an outsourcing or service bureau environment on behalf of non-Affiliate third parties, or allow the On Premise Subscriptions to be used by an outsourcing or service bureau provider on Customer’s behalf; (f) provide a third party with the results of any functional evaluation, product vulnerability or performance tests, without BMC's prior written approval; or (g) attempt to disable or circumvent any of the licensing mechanisms within the On Premise Subscription.
4. ON PREMISE SUBSCRIPTION PERFORMANCE WARRANTY. BMC warrants that (a) the On Premise Subscription will perform in substantial accordance with its Documentation for a period of one year from the date of the first Order, (b) BMC has used commercially reasonable efforts consistent with industry standards to scan for and remove software viruses, and (c) other than passwords that may be required for the operation of the On Premise Subscription, BMC has not inserted any code that is not addressed in the Documentation and that is designed to delete, interfere with or disable the normal operation of the On Premise Subscription in accordance with the License. This warranty will not apply to any problems caused by hardware, Computers, or software other than the On Premise Subscription, or misuse of the On Premise Subscription, use of the On Premise Subscription other than as provided by the applicable License, modification of the On Premise Subscription, or claims made either outside the warranty period or not in compliance with the notice and access requirements set forth below. No warranty is provided for additional Licensed Capacity, On Premise Subscription provided pursuant to Support.
BMC’s entire liability, and Customer’s exclusive remedy, for breach of the above warranty is limited to: BMC’s use of commercially reasonable efforts to have the On Premise Subscription perform in substantial accordance with its Documentation, or replacement of the non-conforming On Premise Subscription within a reasonable period of time, or if BMC cannot have the On Premise Subscription perform in substantial accordance with its Documentation or replace the On Premise Subscription within such time period, then BMC will refund the amount paid by Customer for the License for that On Premise Subscription. Customer agrees to provide BMC during the warranty period (i) full cooperation and access to the On Premise Subscription in resolving any claim; and (ii) written notice that includes notice of the claim, a complete description of the alleged defects sufficient to permit their reproduction in BMC’s development or support environment, and a reference to the Documentation to which such alleged defects are contrary.
EXCEPT FOR THE EXPRESS WARRANTIES IN THIS ATTACHMENT, THE ON PREMISE SUBSCRIPTION IS PROVIDED WITH NO OTHER WARRANTIES WHATSOEVER, AND BMC, ITS AFFILIATES AND LICENSORS DISCLAIM ALL OTHER WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE AND IN THE UNITED STATES AND CANADA, MERCHANTABILITY AND NON-INFRINGEMENT. BMC DOES NOT WARRANT THAT THE OPERATION OF THE ON PREMISE SUBSCRIPTION WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT ALL DEFECTS CAN BE CORRECTED.
5. DELIVERY. For On Premise Subscriptions that are delivered electronically, upon request from BMC, Customer agrees to provide BMC with documentation supporting that the designated On Premise Subscription was received electronically. If Customer accepts any On Premise Subscription in a non-electronic format, there may be an additional charge and it is the sole responsibility of Customer to bear any sales/use tax obligation, penalties, and interest. All On Premise Subscriptions are licensed FCA (“Free Carrier” as per Incoterms 2000) shipping point. The On Premise Subscriptions are accepted on the date BMC delivers the On Premise Subscription to the Customer either physically or by providing access codes for electronic download, whichever occurs first, however, such acceptance will not affect the On Premise Subscription Performance Warranty provided in this Agreement.
6. AUDIT. If requested by BMC, and not more than once a year, Customer agrees to deliver to BMC, within 30 days of such request, as specified by BMC (a) periodic product usage reports generated from specific products (b) third party usage reports related to the On Premise Subscriptions (e.g., SCRT reports) and (c) written periodic product usage reports, to be provided solely when the product does not generate reports (together, “Reports”). Additionally, if requested by BMC not more than once a year and upon at least ten days prior written notice to Customer, Customer agrees to allow BMC to perform an audit (“Audit”) to ensure compliance with the terms of this Agreement at the locations where the On Premise Subscriptions are installed, during normal business hours. to ensure compliance with the terms of this Agreement. Customer agrees to cooperate during any such Audit and to provide reasonable access to its information and systems. If Customer is found to have exceeded its Licensed Capacity for an On Premise Subscriptions based on such Reports or Audit, then Customer agrees to pay the applicable fees for the additional capacity through the end of the applicable Order term upon receipt of an invoice from BMC.
Effective May 12th 2023 to August 10th 2023
DownloadTable of Contents
BMC CLOUD SERVICES MASTER AGREEMENT
THIS CLOUD SERVICES MASTER AGREEMENT (“AGREEMENT”) GOVERNS YOUR FREE TRIAL, IF ANY, OF THE SUBSCRIPTION SERVICES.
IF YOU PURCHASE THE SUBSCRIPTION SERVICES, THIS AGREEMENT WILL ALSO GOVERN YOUR PURCHASE AND ONGOING USE OF THE SUBSCRIPTION SERVICES.
BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SUBSCRIPTION SERVICES.
You may not access the Subscription Services if you are BMC’s direct competitor, except with BMC’s prior written consent. In addition, you may not access the Subscription Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.
This Agreement was last updated on May 12, 2023. This Agreement is between the entity or individual entering into this Agreement (“Customer”) and the BMC Contracting Entity for the applicable region as described in Section 12 (“BMC”). It is effective between Customer and BMC as of the date of your acceptance of this Agreement. If Customer has a fully executed BMC Cloud Services Master Agreement then such fully executed BMC Cloud Services Master Agreement supersedes and replaces any clickwrap or click-through agreements (or other similar agreements) that Customer may be required to accept as a part of accessing or using the Subscription Services. For Customer’s convenience, prior versions of this Agreement are available at https://www.bmc.com/legal/csma.html.
FREE TRIAL.
BMC may make the Subscription Services available to Customer on a trial basis free of charge. If BMC offers Customer a free trial, it will run until the earlier of (a) the end of the trial period stated on the trial registration web page or (b) the start date of any Order for purchase of the Subscription Services. Additional trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.
ANY DATA CUSTOMER ENTERS INTO THE SUBSCRIPTION SERVICES, AND ANY CUSTOMIZATIONS MADE TO THE SUBSCRIPTION SERVICES BY OR FOR CUSTOMER, DURING A FREE TRIAL MAY BE PERMANENTLY LOST.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THE AGREEMENT, DURING ANY FREE TRIAL PERIOD THE SUBSCRIPTION SERVICES ARE PROVIDED “AS IS” WITH NO WARRANTY.
1. DEFINITIONS.
1.1 “Affiliate” is an entity that controls, is controlled by or shares common control with BMC or Customer, where such control arises from the legal power to direct or cause the direction of the general management and policies of the company, partnership or legal entity.
1.2 "Capacity” means the amount of access to the Subscription Services purchased as specified in an Order, which is counted in accordance with the Unit of Measure described in the Order.
1.3 “Consulting Services” means the consulting, implementation, training or other services provided under the terms of Attachment B (Consulting Services) and as further described under the applicable Order.
1.4 “Customer Content” means all electronic data or information (a) submitted to the Subscription Services by Customer, a third party on behalf of Customer, or as directed by Customer or (b) collected, processed or returned by the Subscription Services .
1.5 “Order” means (i) the agreed ordering document for the purchase of the Subscription Services, (ii) that is subject to this Agreement, and (iii) that identifies the terms of the purchase and fees to be paid. The term “Order” includes Customer’s online registration for and purchase of the Subscription Services, If any.
1.6 "Subscription Services" means the generally available hosted service which packages web-based access and the right-to-use the supported applications, installed agents and associated reference, user and technical guides.
1.7 “User Guide” means the online help, functional guide and technical specifications for the Subscription Services, as updated by BMC from time to time. The User Guides may be viewed here: https://docs.bmc.com/docs/.
2. SCOPE. Subject to the terms of this Agreement, Customer may purchase and BMC will provide Customer with access to the Subscription Services as set forth in this Agreement and the applicable Order. Subject to the Attachments to this Agreement, Customer may also purchase BMC Platform Services, BMC Consulting Services and BMC On Premise Subscription Services. In the event of a direct conflict between any Order and the terms of this Agreement, the terms of the Order will control only if the Order is executed by an authorized representative of each party. Each Order is deemed to be a discrete contract, separate from each other Order, unless expressly stated otherwise therein. Orders may be entered under this Agreement by and between (a) BMC or an Affiliate of BMC; and (b) Customer or an Affiliate of Customer. With respect to an Order, the terms “BMC” and “Customer” as used in this Agreement will be deemed to refer to the entities that execute that Order, the Order will be considered a two party agreement between such entities, and BMC will separately invoice the Customer named in the Order for the associated fees. Orders may also be placed via a BMC authorized reseller. Neither execution of this Agreement, nor anything contained herein, shall obligate either party to enter into any Orders.
3. ACCESS TO SUBSCRIPTION SERVICES.
3.1 Access Rights. Subject to the terms of this Agreement, BMC will provide Customer with worldwide access to the Subscription Services in accordance with the Order (i) up to the Capacity, (ii) for Customer’s and its Affiliates’ internal business operations, (iii) in accordance with the User Guide and the applicable Order. Customer may exercise its rights under this Section 3.1 through its employees, consultants, contractors, agents, and Affiliates (all, “Users”).
3.2 BMC Subscription Services Support. BMC will provide the support described at http://www.bmc.com/support/review-policies (“Support”) to Customer for the Subscription Services.
3.3 Use of Subcontractors. Customer acknowledges and agrees that BMC uses subcontractors to provide portions of the Subscription Services. BMC’s subcontractors acting as subprocessors are listed in the Data Processing Agreement between the parties and/or on each Order. BMC is responsible for the performance of all subcontractors providing any of the Subscription Services.
3.4 Compliance with Laws. Each party shall comply with all applicable laws in the performance of its obligations under this Agreement.
3.5 Acceptable Use Policy and Restrictions.
(a) Customer will (i) maintain the confidentiality of all authentications and passwords for the Subscription Services and immediately notify BMC if it becomes aware that an unauthorized party has gained access such authentications and passwords, (ii) be responsible for use of the Subscription Services by its Users in compliance with this Agreement, (iii) prevent unauthorized access to, or use of, the Subscription Services, and notify BMC promptly of any such unauthorized access or use, and (iv) be responsible for obtaining its own Apple Push Notification certificate, if the Subscription Services are used to manage devices running iOS. Customer is responsible for the creation and implementation of a privacy policy and end user agreement, if applicable, which will set forth the guidelines of how Customer uses and protects the data and personal information of its Users, and how said Users may utilize the Subscription Services.
(b) Customer will not (i) modify, copy or create derivative works based on the Subscription Services; (ii) create Internet “links” to or reproduce any content forming part of the Subscription Services, other than for its own internal business purposes; (iii) disassemble, reverse engineer, or decompile the Subscription Services or part thereof, except to the extent expressly permitted by applicable law despite this limitation without possibility of contractual waiver; (iv) interfere with or disrupt the integrity or performance of the Subscription Services; (v) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortuous material, or send or store material in violation of any third party’s privacy rights via the Subscription Services; (vi) send or store viruses or malicious code via the Subscription Services; (vii) attempt to gain unauthorized access to the Subscription Services or its related software, systems, platforms or networks, including any form of security and/or penetration testing; (viii) use any components provided with the Subscription Services separately from the Subscription Services; (ix) distribute, rent, lease or provide the Subscription Services to any third party or use it in a service bureau, outsourcing environment, or for the processing of third party data; (x) publish benchmark or performance information about the Subscription Services without BMC’s prior written consent; or (xi) conduct security or vulnerability tests of the Subscription Services.
4. FEES AND PAYMENT.
4.1 Fees. The fees payable for the Subscription Services and the payment period for such fees will be set forth in and paid in accordance with the Order. All payments are due within 30 days of the date of the invoice.
4.2 Late Fees. Late balances may, at BMC’s sole election, bear interest at a rate equal to the lesser of 1% per month or the maximum amount permitted by law.
4.3 Taxes. Customer will pay taxes imposed in connection with the fees paid for the Subscription Services, which are exclusive of these taxes.
4.4 Solution Providers. With regard to Subscription Services acquired by Customer through an authorized reseller ("Solution Provider") of BMC, notwithstanding anything to the contrary in sections 4.1 and 4.2 above, Customer will have no direct payment obligations to BMC for such fees.
4.5 Payment Disputes. If Customer disputes an invoice in good faith, it will notify BMC within 30 days of receiving the invoice. The parties will seek to resolve such dispute over a 15-day discussion period. Customer is not required to pay disputed amounts during the discussion period, but will timely pay all undisputed amounts. After the discussion period, either party may pursue all available remedies.
5. TERM, SUSPENSION AND TERMINATION.
5.1 Term. This Agreement begins on the Effective Date and will remain in effect unless terminated pursuant to Section 5.2 below, regardless of the billing frequency selected in the Order.
5.2 Termination.
(a) Termination for Convenience. Customer may terminate this Agreement by providing BMC with at least 30 days prior written notice; provided, however, such termination will have no effect on Orders in effect at the time of such termination. Orders may not be terminated for convenience unless otherwise specified therein. Customer may notify BMC of its intent to terminate by emailing BMC at order_services@bmc.com.
(b) Termination for Cause. Either party may terminate this Agreement and/or an Order for cause upon 30 days’ written notice of a material breach to the other party if such breach remains uncured at the expiration of such period. In the event Customer terminates the Agreement and an Order for BMC’s material breach, BMC will refund the amount paid by Customer to BMC for the Subscription Services on such Order, pro-rated from the date of the notice of the termination.
5.3 Suspension of Subscription Services for Cause. In addition to its other rights and remedies, BMC reserves the right, without liability to Customer, to suspend any and all access to the Subscription Services if Customer commits a material breach of this Agreement and fails to cure the same within 30 days from Customer’s receipt of written notice of such breach from BMC. Provided however, that BMC may immediately suspend any and all access to the Subscription Services without any cure period if BMC determines in good faith that Customer’s material breach of the Agreement will cause material harm to BMC, the Subscription Services, or any other customer. Once the material breach is resolved, BMC will promptly restore Customer’s access to the Subscription Services in accordance with this Agreement.
5.4 Effects of Termination. Upon termination or expiration of any Order or this Agreement, all rights and Licenses granted thereunder will terminate and Customer will make no further use of the Subscription Services. No termination will relieve the Customer of the obligation to pay any fees accrued or payable to BMC pursuant to any Order. Upon written request by Customer made within 60 days after the effective date of termination, BMC will make the Customer Content available to Customer for retrieval in an industry standard format. After such 60-day period, BMC shall have no obligation to maintain any Customer Content and will thereafter delete Customer Content. Any terms in this Agreement which by their nature extend beyond termination of this Agreement will remain in effect until fulfilled.
5.5 Termination Assistance. Upon Customer’s request and upon (a) the expiration of an Order or (b) the termination of an Order for any reason other than Customer’s breach, BMC shall perform such services as the parties in good faith agree are reasonably necessary to facilitate the orderly transition of the Services to the successor service provider or to the Customer. BMC will provide any such services under the terms and conditions of the Agreement, and subject to payment of the then-current fees and charges, generally applicable to BMC’s performance of such services, as agreed between the parties at such time.
6. LIMITED WARRANTY.
6.1 Warranties and Limited Remedies. BMC warrants to Customer that:
(a) the online availability of the Subscription Services will be maintained in accordance with the service levels described at https://www.bmc.com/content/dam/bmc/corporate/service-level-agreement.pdf (the “Service Level Agreement” or “SLA”). Customer’s exclusive remedy and BMC’s sole obligation for breach of the warranty in this Section 6.1(a) is described in the Service Level Agreement; and
(b) the Subscription Services (i) will perform in substantial accordance with the then-current on-line User Guide available via the Subscription Services, (ii) will be performed in a manner consistent with industry standards reasonably applicable to the provision thereof and (iii) will not materially degrade during the term of any Order. Customer’s exclusive remedy and BMC’s sole obligation for breach of the warranty in this Section 6.1(b) will be BMC’s use of commercially reasonable efforts to have the Subscription Services perform in substantial accordance with the User Guide, or replace the non-conforming portion of the Subscription Services within 30 days from the written notice of claim, or if BMC cannot have the Subscription Services perform in substantial accordance with the User Guide or replace the Subscription Services within such time period, then Customer may terminate the non-performing Subscription Services, and upon such termination BMC will refund the amount paid by Customer for the Subscription Services, pro-rated from the date of the notice of the claim. Customer agrees to provide BMC with written notice of the claim, a description of the alleged defects and a reference to the User Guide to which such alleged defects are contrary.
(c) In connection with the Subscription Services (i) it has used commercially reasonable efforts consistent with industry standards to scan for and promptly remove any software viruses for no charge and (ii) it has not inserted any Disabling Code. “Disabling Code” means computer code inserted by BMC, that is not addressed in the User Guide, and that is designed to expose data, delete, interfere with, and/or disable the normal operation of the Subscription Services. This Disabling Code warranty does not apply to BMC passwords necessary for the operation of the Subscription Services, or for any use by Customer outside the scope of this Agreement.
6.2 Disclaimer. CUSTOMER ACKNOWLEDGES THAT, EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, BMC, ITS AFFILIATES AND LICENSORS MAKE NO WARRANTY, EXPRESS, IMPLIED OR STATUTORY WITH RESPECT TO THE SUBSCRIPTION SERVICES OR USE THEREOF. BMC, ITS AFFILIATES AND LICENSORS HEREBY EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY THAT SUBSCRIPTION SERVICES WILL BE UNINTERRUPTED, ERROR FREE OR WITHOUT DELAY, AND THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INTERFERENCE, NON-INFRINGEMENT AND INFORMATION CONTENT.
7. PROPRIETARY RIGHTS AND CONFIDENTIALITY.
7.1 Proprietary Rights. BMC, its Affiliates or licensors retain all right, title and interest to the Subscription Services and all related intellectual property and proprietary rights. The Subscription Services are protected by applicable copyright, trade secret, industrial and other intellectual property laws. BMC owns all right, title and interest in all software, programming, documentation, templates, questionnaires, methodologies, models, charts, reports, ideas, features, content, functions, graphics and any other items provided as part of the Subscription Services (“ Service Items”) and access to and use of the relevant Service Items will be governed by the terms of this Agreement. Subject to (i) BMC’s or its licensor’s ownership of any Service Items and (ii) section 3.5 (b)(i) of the Agreement, Customer owns all rights, title, and interest in Customer Applications, including all proprietary and intellectual property rights. BMC reserves any rights not expressly granted to Customer. Customer shall not access the Subscription Services in order to build a competitive product or service or copy any ideas, features, functions or graphics of the Subscription Services. “ Confidential Information” means all proprietary or confidential information that is disclosed to the recipient (“Recipient”) by the discloser (“ Discloser”), and includes, among other things (i) any and all information relating to products or services provided by a Discloser, its customer-related and financial information, software code, BMC product vulnerabilities, flow charts, techniques, specifications, development and marketing plans, strategies, and forecasts; (ii) as to BMC, and its licensors, the Subscription Services and Service Items; and (iii) the terms of this Agreement, including without limitation, pricing information. Confidential Information does not include information that Recipient can show: (a) was rightfully in Recipient’s possession without any obligation of confidentiality before receipt from the Discloser; (b) is or becomes a matter of public knowledge through no fault of Recipient; (c) is rightfully received by Recipient from a third party without violation of a duty of confidentiality; or (d) is or was independently developed by or for Recipient. Recipient may not disclose Confidential Information of Discloser to any third party or use the Confidential Information in violation of this Agreement. The Recipient (i) will exercise the same degree of care and protection with respect to the Confidential Information of the Discloser that it exercises with respect to its own Confidential Information and (ii) will not, either directly or indirectly, disclose, copy, distribute, republish, or allow any third party to have access to any Confidential Information of the Discloser. Notwithstanding the foregoing, Recipient may disclose Discloser’s Confidential Information to Recipient’s employees and agents who have need to know provided that such employees and agents have legal obligations of confidentiality substantially the same (and in no case less protective) as the provisions of this Agreement.
7.2 Notification Obligation. If the Recipient becomes aware of any unauthorized use or disclosure of Discloser’s Confidential Information, then Recipient will promptly and fully notify the Discloser of all facts known to it concerning such unauthorized use or disclosure. In addition, if the Recipient or any of its employees or agents are required (by oral questions, interrogatories, requests for information, or documents in legal proceedings, subpoena, civil investigative demand, or other similar process) to disclose any of Discloser’s Confidential Information, the Recipient will not disclose the Discloser’s Confidential Information without providing the Discloser with commercially reasonable advance prior written notice to allow Discloser to seek a protective order or other appropriate remedy or to waive compliance with this provision. In any event, the Recipient will exercise its commercially reasonable efforts to preserve the confidentiality of the Discloser’s Confidential Information, including, without limitation, cooperating with Discloser to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded to the Confidential Information.
7.3 Customer Content. As between BMC and Customer, Customer owns all rights, title and interest in and to Customer Content. Customer Content is deemed Confidential Information under this Agreement. BMC will use the Customer Content only as necessary to provide the Subscription Services in accordance with this Agreement. At any time during the term of the Subscription Services, Customer may request copies of all Customer Content from the Subscription Services. Customer is responsible for complying with all legal and contractual requirements, including its agreements with third parties. With the exception of Customer Content collected by the Subscription Services, Customer is solely responsible for the transmission of Customer Content to BMC and to the Subscription Services. Customer is solely responsible for the encryption of any Customer Content during such transmission.
7.4 Suggestions. Customer agrees that BMC shall have a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into any BMC products or services any suggestions, enhancement requests, recommendations or other feedback provided by Customer relating to the Subscription Services.
8. DISCLAIMER OF DAMAGES AND LIMITS ON LIABILITY.
8.1 DISCLAIMER OF DAMAGES. NEITHER PARTY OR ITS AFFILIATES OR LICENSORS ARE LIABLE FOR ANY, SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES RELATING TO OR ARISING OUT OF THIS AGREEMENT OR THE SUBSCRIPTION SERVICES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST COMPUTER USAGE TIME, AND DAMAGE TO, OR LOSS OF USE OF, DATA), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND IRRESPECTIVE OF ANY NEGLIGENCE OF A PARTY OR WHETHER SUCH DAMAGES RESULT FROM A CLAIM ARISING UNDER TORT OR CONTRACT LAW. THE FOREGOING LIMITATIONS DO NOT APPLY TO EACH PARTY’S RESPONSIBILITIES IN SECTION 9, INFRINGEMENT BY A PARTY OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, GROSS NEGLIGENCE, WILLFUL MISCONDUCT, DEATH OR BODILY INJURY, ACTS OF FRAUD, NOR ANY LIABILITY WHICH MAY NOT BE EXCLUDED OR LIMITED BY LAW.
8.2 LIMITS ON LIABILITY. NEITHER PARTY OR ITS AFFILIATES OR LICENSORS SHALL HAVE AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SUBSCRIPTION SERVICES, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEEDING THE AMOUNTS ACTUALLY PAID BY AND PAYABLE FROM CUSTOMER FOR THE SUBSCRIPTION SERVICES GIVING RISE TO LIABILITY PURSUANT TO THE ORDER(S) THAT ARE IN EFFECT AS OF THE DATE THE LIABILITY FIRST AROSE. THE FOREGOING LIMITATIONS DO NOT APPLY TO EACH PARTY’S RESPONSIBILITIES IN SECTION 9, INFRINGEMENT BY A PARTY OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, GROSS NEGLIGENCE, WILLFUL MISCONDUCT, DEATH OR BODILY INJURY, ACTS OF FRAUD, NOR ANY LIABILITY WHICH MAY NOT BE EXCLUDED OR LIMITED BY LAW.
9. INFRINGEMENT CLAIMS.
9.1 Indemnification by BMC . If a third party asserts a claim against Customer asserting that Customer’s use of the Subscription Services, including Platform Services, Deliverables and Licenses as defined in the Attachments to this Agreement, in accordance with this Agreement violates that third-party’s patent, trade secret or copyright rights (“Infringement Claim”), then BMC will, at its own expense: (a) defend or settle the Infringement Claim; and (b) indemnify Customer for any damages finally awarded or settled upon against Customer based on infringement by the Subscription Services or Deliverables, including court costs and reasonable attorney’s fees. If BMC believes the Subscription Services may violate a right, then BMC will, at its expense: (a) modify the Subscription Services, or (b) procure the right to continue using the Subscription Services, and if (a) or (b) are not commercially reasonable, terminate Customer's right to use the Subscription Services and issue a pro-rata refund for the unexpired pre-paid portion of such Subscription Services.
9.2 Indemnification by Customer. Subject to the terms of this Agreement, if a third party asserts a claim against BMC asserting that any of the following violates that third-party’s patent, trade secret or copyright rights: (i) Customer Content, (ii) Customer Applications as defined in Attachment A, (iii) Customer Property as defined in Attachment B or (iv) Customer’s use of the Subscription Services in violation of this Agreement (“Claim”), then Customer will, at its own expense: (a) defend or settle the Claim; and (b) indemnify BMC for any damages finally awarded or settled upon against BMC based on the Claim, including court costs and reasonable attorney’s fees.
9.3 Indemnity Process. Neither party’s obligations under this Section 9 will apply if: (a) the indemnifying party’s legal department does not receive prompt, detailed written notice of the Infringement Claim/Claim from the party being indemnified, (b) the indemnifying party is not able to retain sole control of the defense of the Infringement Claim/Claim and all negotiations for its settlement or compromise, or (c) the indemnifying party does not receive all reasonable assistance from the party being indemnified. Neither party will bind the indemnified party to a monetary obligation in a settlement or compromise, or make an admission on behalf of the indemnified party, without obtaining that party’s prior consent.
9.4 THIS SECTION 9 CONTAINS EACH PARTY'S EXCLUSIVE REMEDIES AND THE INDEMNIFYING PARTY'S SOLE LIABILITY FOR INFRINGEMENT CLAIMS/CLAIMS, RESPECTIVELY.
10. EXPORT CONTROLS. Both parties agree to comply with applicable export regulations, including but not limited to U.S. Export Administration Regulations and the OFAC embargoes and sanctions lists. More information on BMC’s export compliance program may be found here: https://www.bmc.com/legal/export-compliance.html.
11. GOVERNING LAW AND DISPUTE RESOLUTION. Any controversy, dispute or claim arising out of or relating to this Agreement, or to the formation, interpretation, breach, termination, or validity thereof (each, a “Controversy”) will be resolved as follows:
(i) UNITED STATES. If both parties to this Agreement are entities incorporated under the law of any state in the United States, the Controversy shall be tried in either state or federal court located in Houston, Texas and the laws of the State of Texas shall govern. Both parties hereby submit to the exclusive jurisdiction of the courts in Houston, Texas and waive all defenses based on forum non conveniens. Notwithstanding the foregoing, if Customer is a state or local governmental entity or higher education institution and legally required to apply state law, then Customer’s state law will apply to the Controversy, without reference to conflict of law principles.
(ii) CANADA. If Customer is located in Canada (outside Quebec), then the law of the Province of Ontario law apply, without reference to conflict of law principles. If Customer is located in Quebec, then the laws of the Province Quebec will apply, without reference to conflict of law principles.
(iii) EMEA. If both parties to this Agreement are entities incorporated in countries in the Europe, Middle East, or Africa regions, the Controversy shall be tried in the District Court located in Amsterdam, the Netherlands and the substantive laws of the Netherlands shall govern. Both parties hereby submit to the exclusive jurisdiction of the District Court in Amsterdam, the Netherlands and waive all defenses based on forum non conveniens.
(iv) ASIA PACIFIC. If both parties to this Agreement are entities incorporated in countries in the Asia Pacific region, the arbitration shall be held in Singapore under the then-applicable rules of the Singapore International Arbitration Centre and the substantive laws of Singapore will govern.
(v) OTHER REGIONS. In all other instances, the arbitration shall be held in New York City, New York, under the then-applicable international rules of the American Arbitration Association and the substantive laws of the State of Texas will govern.
For all arbitrations conducted hereunder: (a) the arbitration shall be conducted in English; (b) the relevant arbitral institution shall determine the number of arbitrators, but any Controversy in which the amount in dispute is greater than $10 million USD shall be decided by three arbitrators, with each party having the right to select one arbitrator; (c) the costs of such arbitration shall be borne equally, pending the arbitrator’s award; (d) the arbitration award rendered shall be final and binding on the parties, shall not be subject to appeal to any court and shall be enforceable in any court having jurisdiction over the parties; (e) the arbitration proceedings, award and pleadings shall all be confidential, unless disclosure of particular information is required for purposes of enforcing/challenging the award or to meet local securities law requirements; and (f) the party prevailing in arbitration shall be entitled to recover its reasonable attorneys’ fees and the necessary costs incurred in connection with the arbitration.
The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. Nothing in this Agreement shall be deemed as preventing either party from seeking immediate injunctive relief from any court having jurisdiction over the parties and the subject matter of the dispute.
12. The following BMC contracting entities apply to this Agreement:
Region | Contracting Entity | Address of Contracting Entity |
United States and Latin America South (not a specified Central or South America country below) | BMC Software, Inc. | 2103 CityWest Boulevard, Houston, Texas 77042 |
Canada | BMC Software Canada Inc. | 50 Minthorn Boulevard, Suite 200 Markham, Ontario L3T 7X8 Canada |
EMEA (Europe, Middle East and Africa) | BMC Software Distribution B.V. | Vision Plaza West, 2nd floor, Boeingavenue 220, 1119PN Schiphol-Rijk, The Netherlands |
Brazil | BMC Brasil Software Ltda. | Avenida Rebouças n° 3.970 e Avenida Dra. Ruth Cardoso, n° 8.501 Condomínio Eldorado Business Tower, 22° andar, Pinheiros, São Paulo – SP, CEP: 05425-070 |
Mexico | BMC Software Distribution de México, S.A. de C.V. | Calle Volcán, No.150, Piso 2, Oficina 202, Col. Lomas de Chapultepec V Sección, C.P., 11000, Alcaldía Miguel Hidalgo, Ciudad de México |
Argentina | BMC Software de Argentina S.A. | Ing. Butty 220 - Piso 18, Catalinas Plaza Buenos Aires, República de Argentina, C1001A |
S.E.A (Southeast Asia), Australia, New Zealand, Hong Kong, Taiwan | BMC Software Ireland Unlimited Company | Building 3, Cherrywood Business Park, Bray Road, Loughlinstown, CO. Dublin, D18 TF72 |
China | BMC Software (China) Limited | Room 502, Level 5, Tower W1, The Towers, Oriental Plaza, No. 1 East Chang An Ave., Dong Cheng Dist., Beijing 100738, China |
Japan | BMC Software K.K. | Harmony Tower 24th Floor, 1-32-2 Honcho, Nakano-ku, Tokyo, 164-8721 |
Korea | BMC Software Korea Ltd | 24th Fl., ASEM Tower, 1517, Yeongdong-daero,Gangnam-gu, Seoul 135-798, Korea South |
13. U.S. GOVERNMENT END USER RIGHTS. This Section applies only to acquisitions of the commercial Subscription Services subject to this Agreement by or on behalf of the United States Government, or by any prime contractor or subcontractor (at any tier) under any contract, grant, agreement or other activity with the United States Government. When Subscription Services are delivered or provided to the United States Government, the United States Government agrees that this commercial license Agreement and the Subscription Services governed by this Agreement are defined in accordance with and qualify as “commercial items” consisting of “commercial computer software” and “commercial computer software documentation” as outlined in FAR 12.211, FAR 12.212 and DFARS 227.7202-3, as applicable. The terms and conditions of this Agreement shall pertain to the United States Government’s use (including documentation or technical data), duplication, and disclosure of the Subscription Services, and shall supersede any conflicting contractual terms and conditions”.
14. DATA PROTECTION. The processing of Customer Content under this Agreement is governed by the BMC Data Processing Agreement set forth on the Order.
15. VERIFICATION. Customer agrees that BMC or its agent may monitor the Subscription Services to ensure Customer’s compliance with the terms of this Agreement. If such monitoring reveals that Customer has exceeded the Capacity for the Subscription Services, Customer will execute an Order for additional Capacity of such Subscription Services through the end of the term of such Subscription Services, promptly upon BMC’s request.
16. NOTIFICATIONS. Any general notifications regarding technical matters from BMC to Customer will be sent to the Customer contact stated in the Customer Technical Contact Information section of the Order. The Customer contact in the Order has been assigned by Customer as the Customer contact for operational issues that may arise. Customer shall notify BMC of any change to the Customer contact details in writing, which may include via e-mail or in a form in the Subscription Services. Customer will receive system notifications from BMC and its licensors, if applicable (i.e. planned downtime notices, etc.).
17. CONDUCTING BUSINESS WITH HONESTY AND INTEGRITY. BMC is committed to conducting business with honesty and integrity. BMC’s Code of Conduct set forth in https://www.bmc.com/legal/code-of-conduct.html governs the conduct of all officers, directors, and employees of BMC, and contingent workers and business partners acting on BMC’s behalf. BMC demonstrates its commitment to environmental stewardship by its global accreditation for ISO 14001:2015.
18. INFORMATION SECURITY. BMC employs comprehensive organizational and technical security safeguards to protect the security and integrity of Customer Content in line with industry best practices, as set forth in the Information Security Requirements found at http://www.bmc.com/content/dam/bmc/corporate/hinfosec.pdf.
19. FORCE MAJEURE. Neither party will be liable to the other for any delay or failure to perform any obligation under this Agreement (except for obligations of confidentiality or a failure to pay fees) if the delay or failure is due to events which are beyond the reasonable control of such party, including, but not limited to (i) Acts of God, explosion, flood, lightning, tempest, fire or accident; (ii) war, hostilities (whether war is declared or not), invasion, acts of foreign enemies; (iii) rebellion, revolution, insurrection, military or usurped power or civil war; (iv) riot, civil commotion or disorder; (v) acts, restrictions, regulations, refusals to grant any licenses or permission, prohibitions or measures of any kind on the part of any local, state, national, governmental or supra-governmental authority; and/or (vi) epidemics, pandemics, and quarantines (including but not limited to those connected with COVID-19) (a “Force Majeure Event”). If either party is affected by Force Majeure Events, it shall promptly notify the other party (when possible) in writing of the matters constituting the Force Majeure Events. If possible, the party affected by the Force Majeure Event shall take reasonable steps available to it to minimize the effects of the Force Majeure Events on the performance of its obligations under the Agreement and/or affected Order. If a Force Majeure Event prevents BMC from performing the Subscription Services for more than 30 days, either party may terminate this Agreement and all relevant Orders. Upon such termination BMC will refund all prepaid and unused amounts to Customer, provided Customer has paid BMC for all Subscription Services that were performed up to the date of termination.
20. INSURANCE. BMC will provide and maintain the following insurance, but only for losses arising out of BMC’s provision of Subscription Services: (a) Worker’s Compensation insurance as prescribed by the law of the state applicable to the employees performing the Consulting Services; (b) Employer’s Liability insurance with a limit of $1,000,000 USD for each occurrence; (c) Commercial General Liability insurance with $1,000,000 USD per occurrence combined single limit and $2,000,000 USD general aggregate, including coverage for Products Liability and Completed Operations; (d) Automobile Liability insurance, including coverage for Hired and Non-owned vehicles of $1,000,000 USD for combined single limit for bodily injury and/or property damage; and (e) Professional Liability insurance covering Errors and Omissions and Cyber Liability in the amount of $1,000,000 USD for each occurrence and in the aggregate associated with Subscription Services performed under this Agreement. BMC will provide certificates of insurance upon Customer’s request.
21. MISCELLANEOUS TERMS. The parties are independent contractors and this Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties. This Agreement, including the Attachments and Orders constitutes the entire agreement between Customer and BMC and supersedes any prior or contemporaneous negotiations or agreements, whether oral or written concerning the Subscription Services. There are no representations, promises, warranties, covenants, or undertakings between the parties other than those expressly set forth in this Agreement. There are no third-party beneficiaries to this Agreement; Customer is not entering into a contractual relationship with BMC’s licensors and BMC’s licensors have no liability to Customer. No modification or waiver of any provision hereof will be effective unless made in a writing signed by both BMC and Customer. Customer has the right to assign this Agreement and all Orders in whole to an Affiliate, or to a successor in connection with (i) the sale of all or substantially all of the assets of that party or (ii) a merger by operation of law, by providing written notice to BMC. The assignee may not be a known direct competitor of BMC. The successor entity or Affiliate must agree in writing with BMC (in advance of the assignment) to be bound by the terms of this Agreement. Any Customer transfer or assignment except as expressly authorized above will be null and void. Should any provision of this Agreement be invalid or unenforceable, the remainder of the provisions will remain in effect. Any additional or conflicting terms of any Customer purchase order are rejected by BMC and do not apply. The Subscription Services may contain hyperlinks to websites controlled by parties other than BMC. BMC is not responsible for and does not endorse the content or accept any responsibility for Customer’s use of these websites. Customer should refer to the policies posted by other websites regarding privacy and other topics regarding data privacy before using them. In compliance with all applicable laws and for internal purposes only, BMC may compile and use de-identified, aggregate or statistical information related to Customer’s use of the Subscription Services for the purposes of enhancing and improving the Subscription Services, developing new products and services, and for other development, diagnostic, statistical and corrective purposes, provided that such information (a) does not incorporate Customer’s personally identifiable information or personal data and (b) does not identify or describe the Customer. Les parties exigent que la présente convention ainsi que les documents qui s’y rattachent soient rédigés en anglais.
Attachments incorporated into Agreement |
Attachment A – Platform Services Attachment |
Attachment B – Consulting Services Attachment |
Attachment C – On Premise Subscription Services Attachment |
PLATFORM SERVICES ATTACHMENT
to the
BMC CLOUD SERVICES MASTER AGREEMENT
Except as otherwise provided herein, the terms of the Cloud Services Master Agreement (the “Base Agreement”) are incorporated into this Platform Services attachment (the “Attachment”). Together, this Attachment and the Base Agreement (as incorporated into this Attachment) are referred to as the “Agreement” for purposes of Customer’s access and use of Platform Services, only if the Platform Services are set forth on an Order referencing the Base Agreement. For purposes of this Agreement, the term “Subscription Services” as defined in the Base Agreement shall be extended to include the Platform Services. In the event of a conflict between the Base Agreement and the terms of this Attachment, the terms of this Attachment will control for Customer’s access and use of the Platform Services only.
1. SCOPE. Subject to the terms of this Agreement, BMC will provide Customer with access to the Platform Service named in the applicable Order.
2. DEFINITIONS.
2.1 “Application” is the object code, its definitional structures, and data created to fulfill a particular purpose, which runs on the Platform Services. An Application may also include its documentation and User Guide.
2.2 “Customer Applications” means Applications that are owned or licensed by Customer, and which run on the Platform Services.
2.3 “Development Platform” means BMC provided development capabilities which allows Customer to develop a custom application to run on the Platform Services.
2.4 “Platform” means the generally available BMC-provided PaaS platform and its capabilities to run Applications.
2.5 “Platform Services” means the specific Platform Services identified in the Order.
3. BMC PLATFORM SERVICES.
3.1 BMC Platform Services Support. BMC will provide Support only for Platform Services. Customer is responsible for its own support for Customer Applications. For the avoidance of doubt, Support does not include development consulting.
4. CUSTOMER APPLICATIONS.
4.1 The terms contained in this section 4 apply only to Orders for Platform Services entitling Customers to develop and deploy Customer Applications onto the Platform Services. Any Customer Applications that run on the Platform Services are hereby excluded from the defined terms “Subscription Services” and “Platform Services”.
4.2 Development Platform. Customer may utilize the Development Platform to create an Application to run on the Platform Services. Customer’s use of the Development Platform is governed by the terms of this Agreement subject to the restrictions set forth in Sections 4.2.1 to 4.2.2 below. Customer’s development of an Application must meet the best practices development guidelines set forth in the User Guide. Each Customer Application shall at all times materially conform to policies and best practices set forth in the User Guide. Prior to the deployment of any Customer Applications in a production or non-production environment of the Platform Services, Customer must conduct security and functional tests of each Customer Application and submit the results of such tests to BMC for review. BMC reserves the right to reject Customer’s deployment request of a Customer Application based on the results of Customer’s security and functional tests. Additionally, BMC reserves the right, during the term of this Agreement, to request Customer conduct additional security and functional tests and provide the results of said tests to BMC for review. Notwithstanding the foregoing, Customer must ensure that at all times Customer Applications are secure.
4.2.1 Acceptable Use. The right to access and use the Development Platform is granted solely for the purpose of performing non-production application development work on the Development Platform. Customer agrees not to use the Development Platform to (1) process production data or for any other production purposes, including but not limited to publishing digital applications, or (2) distribute applications. Customer is responsible for acquiring all necessary and required licenses for the use of any third-party software, source code and/or libraries Customer may use as part of its development with the Development Platform.
4.2.2 Open Source. Customer may not use any software, library, utility, tool, or other computer or program code (“Code”) with the Subscription Services that in any way that would (i) weaken BMC’s intellectual property rights in the Services, or (ii) require the Subscription Services to become or be disclosed or distributed as Open Source Software. For purposes of this Section, “Open Source Software” means any Code that is substantially similar to, (A) the Affero General Public License, (B) the GNU General Public License (GPL) or Lesser/Library GPL (LGPL), (C) the Artistic License (e.g. PERL), (D) the Mozilla Public License, (E) the Netscape Public License, (F) the Sun Community Source License (SCSL), (G) the Sun Standards License (SISL), or (H) any “copyleft” license, or any other license that requires as a condition of use, reproduction, modification, or distribution that such Code or other software or computer code distributed with it: (1) be disclosed or distributed in source code form; (2) be licensed for the purpose of creating derivative works; (3) be licensed under terms that allow reverse engineering, reverse assembly, or disassembly of any kind; (4) be subject to a patent non-assert or royalty-free patent license; or (iv) be redistributable at no charge.
4.3 License to Customer Applications. Subject to the terms and conditions of this Agreement, Customer hereby grants BMC a worldwide, limited, nonexclusive license during the term of the applicable Order for the Platform Services to host, copy, transmit, adapt and display Customer Applications solely for the purpose of fulfilling BMC’s obligations under this Agreement.
4.4 Functionality of Customer Applications. Customer is solely responsible for the operation of Customer Applications, including but not limited to any information stored in or transmitted by Customer Applications. Customer is responsible for monitoring the usage of each Customer Application. Customer is responsible for the configuration, functionality, performance, compliance with applicable data protection laws and security of all Customer Applications, including any interfaces used to connect to Customer Applications.
4.5 Customer Assistance. Customer will provide information or other materials related to a Customer Applications as reasonably requested by BMC to verify Customer’s compliance with the Agreement and the User Guide.
4.7 Suspension of Customer Applications. Customer’s use of the Platform Services may be immediately suspended and/or terminated due to (i) reasonable security threats regarding the Platform Services or Customer Applications, (ii) Customer Applications interfering with, disrupting or threatening the integrity or performance of the Subscription Services and/or the Platform Services, or (iii) violates the law, infringes or misappropriates the rights of any third party or otherwise violates a material term of the Agreement. In the event (i) or (ii) above apply to Customer Applications, Customer is required to remediate any such issue to BMC’s commercially reasonable satisfaction before use of Customer Applications can resume. BMC shall use reasonable commercial efforts to only suspend the non-conforming portion of the Platform Services.
4.8 CUSTOMER APPLICATIONS WARRANTIES. Customer warrants to BMC that: (a) each Customer Application will perform materially in accordance with the User Guide; (b) Customer has all rights in the Customer Content and Customer Applications necessary to grant the rights contemplated by this Agreement; (c) none of the Customer Content or Customer Applications or Users’ use of Customer Content or Customer Applications will violate the Agreement and the User Guide; and (d) Customer’s security and functional tests of Customer Applications was conducted in a commercially reasonable manner and the results of said tests provided to BMC for review are correct and valid.
ATTACHMENT B
CONSULTING SERVICES ATTACHMENT
to the
BMC CLOUD SERVICES MASTER AGREEMENT
Except as otherwise provided herein, the terms of the Cloud Services Master Agreement (the “Base Agreement”) are incorporated into this Consulting Services attachment (the “Attachment”). Together, this Attachment and the Base Agreement (as incorporated into this Attachment) are referred to as the “Agreement” for purposes of Customer’s purchase of Consulting Services, only if Consulting Services are set forth on an Order referencing the Base Agreement. For purposes of this Agreement, the term “Subscription Services” as defined in the Base Agreement shall be extended to include Consulting Services. In the event of a conflict between the Base Agreement and the terms of this Attachment, the terms of this Attachment will control for Customer’s purchase of Consulting Services only. The parties agree that the following Sections of the Base Agreement do not apply to the Consulting Services provided under this Attachment: Section 3.2 (Support), Section 4 (Fees and Payment), and Section 6 (Limited Warranty).
1. SCOPE. BMC agrees to render to Customer Consulting Services under the terms of this Agreement and as further described in an Order. BMC will render the Consulting Services in the location(s) as set forth in the Order. The performance of the Consulting Services will not relieve or alter the rights, obligations and responsibilities of Customer and of the BMC Affiliate providing Subscription Services and/or Licenses with respect to Subscription Services and/or Licenses under the applicable agreement. BMC will notify Customer in writing of any subcontractors prior to the commencement of the Consulting Services.
2. SERVICE FEES AND EXPENSES. The fees payable to BMC for the Consulting Services to be rendered will be detailed in the Order. BMC will submit invoices to Customer for such fees and incurred expenses either upon completion of the Consulting Services, or at stated intervals, in any case in accordance with the applicable Order. Customer shall pay amounts invoiced within 30 days of the date of the invoice. If Customer disputes an invoice in good faith, it will notify BMC within 30 days of receiving the invoice. The parties will seek to resolve such dispute over a 15-day discussion period. Customer is not required to pay disputed amounts during the discussion period, but will timely pay all undisputed amounts. After the discussion period, either party may pursue all available remedies.
3. EDUCATION. Customer may acquire Learning Pass Credits and Education Services (collectively, “BMC Education ”) on an Order. The BMC Education terms that govern such Orders are set forth in the Education Program Guide located at https://www.bmc.com/content/dam/bmc/education/education-program-guide.pdf, and is incorporated herein by this reference.
4. STATEMENTS OF WORK. Consulting Services may require the execution of a Statement of Work, in which case, such Statement of Work will be considered an Order for such Consulting Services. In the event of any conflict between the terms of a Statement of Work and this Agreement, the Agreement shall prevail except for matters of service fees, payment and reimbursement of expense, and termination of Consulting Services if further specified in the Statement of Work. During the term of an applicable Statement of Work, and for a period of six months thereafter, neither party will solicit for employment any employees, agents, or subcontractors of the other party or its affiliates who, within six months prior to such solicitation, had contact with the soliciting party based in whole or in part upon Consulting Services provided under this Agreement. The restrictions in this section shall be deemed not to apply to general solicitations for employment posted on Internet job sites or printed in newspapers or trade or professional journals.
5. PROPRIETARY RIGHTS AND RIGHTS IN DELIVERABLES.
5.1 Ownership of Materials Used in the Consulting Services. Unless specifically provided in an Order, Customer shall supply all of the facilities; equipment; supplies; computer programs; information about Customer’s business, systems, software and needs; and other materials necessary for completion of the Consulting Services (“Customer Property”), and BMC shall supply the people described in the Order, the know-how and the tools necessary to provide the Consulting Services, which may include, among other things, software, templates, questionnaires, graphs, methodologies, models, charts and reports (“BMC Property”). Customer Property and copies and modifications of Customer Property will remain the sole property of Customer or if applicable, Customer’s licensors, and BMC Property and copies and modifications of BMC Property will remain the sole property of BMC or if applicable, BMC’s licensors. Customer hereby grants to BMC a royalty-free, paid-up, non-exclusive, non-sublicensable and non-transferable license to use the Customer Property for the purpose of providing the Consulting Services.
5.2 Deliverables. Deliverables are those created under the Order, including, but not limited to, software, software scripts, routines, libraries or other code, or appliances, methodologies, templates, tools, policies, records, working papers, reports, methodologies, know-how, data, or other intellectual property, written or otherwise, including any derivative works or modifications to the above, whether pre-existing or created during the performance of the Consulting Services and all proprietary and intellectual property rights embedded therein delivered as a result of the Consulting Services as specified under the Order. BMC owns all right, title and interest in the Deliverables. Provided Customer has paid in full for the Consulting Services that resulted in the Deliverables, BMC will deliver the Deliverables to Customer in accordance with the applicable Order. Subject to compliance with the terms of this Agreement and the applicable Order, BMC grants Customer a non-exclusive, non-transferable, non-sublicensable, royalty-free, paid-up license to use, create derivative works of and modify all Deliverables solely for its internal business operations.
5.3 Copyright Notice. Each party agrees to reproduce the copyright notice and any other legend or ownership notice on any copies made under the licenses granted pursuant to this Section 5.
5.4 Retention. Customer acknowledges that BMC provides similar services to other customers and that nothing in this Agreement shall be construed as operating to prevent BMC from carrying on such business. Further BMC may use ideas, concepts, or know-how developed or acquired by BMC during performance of the Consulting Services to the extent by BMC’s personnel as impressions and general learning.
6. LIMITED WARRANTY. BMC warrants that it will perform the Consulting Services in conformance with generally accepted practices within the software services industry and in accordance with the Order. Customer must notify BMC of any breach of this warranty no later than 90 days after completion of the Consulting Services under the Order. Customer’s exclusive remedy and BMC’s entire liability under this warranty shall be for BMC to re-perform any non-conforming portion of the Consulting Services within a reasonable period of time, or if BMC cannot remedy the breach during such time period then refund the portion of the fee attributable to such non-conforming portion of the Consulting Services under the Order. This warranty will not apply to the extent Customer, its contractors or agents have modified any Deliverable, unless otherwise authorized by BMC in writing.
EXCEPT FOR THE EXPRESS WARRANTIES IN THIS AGREEMENT, THE CONSULTING SERVICES AND DELIVERABLES ARE PROVIDED WITH NO OTHER WARRANTIES WHATSOEVER, AND BMC, ITS AFFILIATES AND LICENSORS DISCLAIM ALL OTHER WARRANTIES, INCLUDING, FITNESS FOR A PARTICULAR PURPOSE AND IN THE UNITED STATES AND CANADA, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, AND NON-INFRINGEMENT.
7. MUTUAL INDEMNITY. Each party shall indemnify and hold harmless the other party from all claims, liabilities or expenses for physical damage to real property or tangible personal property and bodily injury, including death, to the extent caused by the negligence, gross negligence or willful misconduct of the indemnifying party’s employees or contractors arising out of this Agreement and while at the Customer’s premises. The foregoing indemnities are contingent upon the party seeking indemnity giving prompt written notice to the indemnifying party of any claim, demand or action, and cooperating with the indemnifying party in the defense or settlement of any such claim, demand or action.
8. INDEPENDENT CONTRACTOR. All of the services performed by BMC under this Agreement will be performed as an independent contractor.
ATTACHMENT C
ON PREMISE SUBSCRIPTIONS ATTACHMENT
to the
BMC CLOUD SERVICES MASTER AGREEMENT
Except as otherwise provided herein, the terms of the Cloud Services Master Agreement (the “Base Agreement”) are incorporated into this On Premise Subscriptions attachment (the “Attachment”). Together, this Attachment and the Base Agreement (as incorporated into this Attachment) are referred to as the “Agreement” for purposes of Customer’s purchase and ongoing use of On Premise Subscriptions, only if On Premise Subscriptions are set forth on an Order referencing the Base Agreement. For purposes of this Agreement, the term “Subscription Services” as defined in the Base Agreement shall be extended to include On Premise Subscriptions. In the event of a conflict between the Base Agreement and the terms of this Attachment, the terms of this Attachment will control for Customer’s purchase of On Premise Subscriptions only. The parties agree that the following Sections of the Base Agreement do not apply to the On Premise Subscriptions provided under this Attachment: Section 3.1 (Access Rights), Section 3.5 (Customer Responsibilities and Restrictions), Section 6 (Limited Warranty) and Section 15 (Verification).
1. DEFINITIONS.
1.1 “Authorized User” means Customer, Customer Affiliate(s), and their employees, consultants, contractors and agents that are bound by the terms and conditions no less restrictive than those contained herein and for whom Customer takes full responsibility. Authorized Users do not include service providers or outsourcers.
1.2 "Documentation" means the technical publications relating to the software, such as release notes, license entitlement descriptions, reference, user, installation, systems administrator and technical guidelines, included with the On Premise Subscription.
1.3 “Licensed Capacity” is the amount of each On Premise Subscription licensed as established in the Order.
1.4 “On Premise Subscription” is the object code of the software and all accompanying Documentation delivered to Customer, including all items delivered by BMC to Customer under Support.
2. LICENSE. Subject to the terms, conditions, payment requirements and restrictions set forth in this Agreement, BMC grants Customer a non-exclusive, non-transferable, non-sub-licensable term license to install in the Territory as defined in an Order, access and use the On Premise Subscription during the term specified on the Order (i) by Authorized User(s), (ii) up to the Licensed Capacity, (iii) for Customer’s and its Affiliates’ internal business operations, (iv) in accordance with the Documentation and the applicable Order, and (v) make a reasonable number of copies of the On Premise Subscription for archival purposes only (collectively a "License"). Affiliates may use and access the On Premise Subscriptions under the terms of this Agreement, and Customer is responsible for its Affiliates compliance with the terms of this Agreement.
3. RESTRICTIONS. Customer will not: (a) copy, operate or use any On Premise Subscription in excess of the applicable Licensed Capacity or other than as set forth in the License above; (b) modify, delete or remove any ownership, title, trademark, patent or copyright notices (“Identification”) from any On Premise Subscription, or copy or partial copy of an On Premise Subscription; (c) disassemble, reverse engineer, decompile or otherwise attempt to derive any On Premise Subscription source code from object code, except to the extent expressly permitted by applicable law despite this limitation without possibility of contractual waiver; (d) distribute, rent, lease, sublicense or provide the On Premise Subscription to any third party; (e) use the On Premise Subscriptions in an outsourcing or service bureau environment on behalf of non-Affiliate third parties, or allow the On Premise Subscriptions to be used by an outsourcing or service bureau provider on Customer’s behalf; (f) provide a third party with the results of any functional evaluation, product vulnerability or performance tests, without BMC's prior written approval; or (g) attempt to disable or circumvent any of the licensing mechanisms within the On Premise Subscription.
4. ON PREMISE SUBSCRIPTION PERFORMANCE WARRANTY. BMC warrants that (a) the On Premise Subscription will perform in substantial accordance with its Documentation for a period of one year from the date of the first Order, (b) BMC has used commercially reasonable efforts consistent with industry standards to scan for and remove software viruses, and (c) other than passwords that may be required for the operation of the On Premise Subscription, BMC has not inserted any code that is not addressed in the Documentation and that is designed to delete, interfere with or disable the normal operation of the On Premise Subscription in accordance with the License. This warranty will not apply to any problems caused by hardware, Computers, or software other than the On Premise Subscription, or misuse of the On Premise Subscription, use of the On Premise Subscription other than as provided by the applicable License, modification of the On Premise Subscription, or claims made either outside the warranty period or not in compliance with the notice and access requirements set forth below. No warranty is provided for additional Licensed Capacity, On Premise Subscription provided pursuant to Support. BMC’s entire liability, and Customer’s exclusive remedy, for breach of the above warranty is limited to: BMC’s use of commercially reasonable efforts to have the On Premise Subscription perform in substantial accordance with its Documentation, or replacement of the non-conforming On Premise Subscription within a reasonable period of time, or if BMC cannot have the On Premise Subscription perform in substantial accordance with its Documentation replace the On Premise Subscription within such time period, then BMC will refund the amount paid by Customer for the License for that On Premise Subscription. Customer’s rights and BMC's obligations in this Section are conditioned upon Customer’s providing BMC during the warranty period (i) full cooperation and access to the On Premise Subscription in resolving any claim; and (ii) written notice addressed to the BMC Legal Department that includes notice of the claim, a complete description of the alleged defects sufficient to permit their reproduction in BMC’s development or support environment, and a specific reference to the Documentation to which such alleged defects are contrary.
EXCEPT FOR THE EXPRESS WARRANTIES IN THIS ATTACHMENT, THE ON PREMISE SUBSCRIPTION IS PROVIDED WITH NO OTHER WARRANTIES WHATSOEVER, AND BMC, ITS AFFILIATES AND LICENSORS DISCLAIM ALL OTHER WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE AND IN THE UNITED STATES AND CANADA, MERCHANTABILITY AND NON-INFRINGEMENT. BMC DOES NOT WARRANT THAT THE OPERATION OF THE ON PREMISE SUBSCRIPTION WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT ALL DEFECTS CAN BE CORRECTED.
5. DELIVERY. For On Premise Subscriptions that are delivered electronically, upon request from BMC, Customer agrees to provide BMC with documentation supporting that the designated On Premise Subscription was received electronically. If Customer accepts any On Premise Subscription in a non-electronic format, there may be an additional charge and it is the sole responsibility of Customer to bear any sales/use tax obligation, penalties, and interest. All On Premise Subscriptions are licensed FCA (“Free Carrier” as per Incoterms 2000) shipping point. The On Premise Subscriptions are accepted on the date BMC delivers the On Premise Subscription to the Customer either physically or by providing access codes for electronic download, whichever occurs first, however, such acceptance will not affect the On Premise Subscription Performance Warranty provided in this Agreement.
6. AUDIT. If requested by BMC, and not more than once a year, Customer agrees to deliver to BMC, within 30 days of such request, as specified by BMC (a) periodic product usage reports generated from specific products (b) third party usage reports related to the Products (e.g., SCRT reports) and (c) written periodic product usage reports, to be provided solely when the product does not generate reports (together, “Reports”). Additionally, if requested by BMC not more than once a year and upon at least ten days prior written notice to Customer, Customer agrees to allow BMC to perform an audit (“Audit”) to ensure compliance with the terms of this Agreement at the locations where the On Premise Subscriptions are installed, during normal business hours. to ensure compliance with the terms of this Agreement. Customer agrees to cooperate during any such Audit and to provide reasonable access to its information and systems. If Customer is found to have exceeded its Licensed Capacity for a Product based on such Reports or Audit, then Customer agrees to pay the applicable fees for the additional capacity through the end of the applicable Order term upon receipt of an invoice from BMC.
Effective February 3rd 2023 to May 12th 2023
DownloadTable of Contents
BMC CLOUD SERVICES MASTER AGREEMENT
THIS CLOUD SERVICES MASTER AGREEMENT (“AGREEMENT”) GOVERNS YOUR FREE TRIAL, IF ANY, OF THE SUBSCRIPTION SERVICES.
IF YOU PURCHASE THE SUBSCRIPTION SERVICES, THIS AGREEMENT WILL ALSO GOVERN YOUR PURCHASE AND ONGOING USE OF THE SUBSCRIPTION SERVICES.
BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SUBSCRIPTION SERVICES.
You may not access the Subscription Services if you are BMC’s direct competitor, except with BMC’s prior written consent. In addition, you may not access the Subscription Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.
This Agreement was last updated on February 3, 2023. This Agreement is between the entity or individual entering into this Agreement (“Customer”) and the BMC Contracting Entity for the applicable region as described in Section 12 (“BMC”). It is effective between Customer and BMC as of the date of your acceptance of this Agreement. If Customer has a fully executed BMC Cloud Services Master Agreement then such fully executed BMC Cloud Services Master Agreement supersedes and replaces any clickwrap or click-through agreements (or other similar agreements) that Customer may be required to accept as a part of accessing or using the Subscription Services. For Customer’s convenience, prior versions of this Agreement are available at https://www.bmc.com/legal/csma.html.
FREE TRIAL.
BMC may make the Subscription Services available to Customer on a trial basis free of charge. If BMC offers Customer a free trial, it will run until the earlier of (a) the end of the trial period stated on the trial registration web page or (b) the start date of any Order for purchase of the Subscription Services. Additional trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.
ANY DATA CUSTOMER ENTERS INTO THE SUBSCRIPTION SERVICES, AND ANY CUSTOMIZATIONS MADE TO THE SUBSCRIPTION SERVICES BY OR FOR CUSTOMER, DURING A FREE TRIAL MAY BE PERMANENTLY LOST.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THE AGREEMENT, DURING ANY FREE TRIAL PERIOD THE SUBSCRIPTION SERVICES ARE PROVIDED “AS IS” WITH NO WARRANTY.
1. DEFINITIONS.
1.1 “Affiliate” is an entity that controls, is controlled by or shares common control with BMC or Customer, where such control arises from the legal power to direct or cause the direction of the general management and policies of the company, partnership or legal entity.
1.2 "Capacity” means the amount of access to the Subscription Services purchased as specified in an Order, which is counted in accordance with the Unit of Measure described in the Order.
1.3 “Consulting Services” means the consulting, implementation, training or other services provided under the terms of Attachment B (Consulting Services) and as further described under the applicable Order.
1.4 “Customer Content” means all electronic data or information (a) submitted to the Subscription Services by Customer, a third party on behalf of Customer, or as directed by Customer or (b) collected, processed or returned by the Subscription Services .
1.5 “Order” means (i) the agreed ordering document for the purchase of the Subscription Services, (ii) that is subject to this Agreement, and (iii) that identifies the terms of the purchase and fees to be paid. The term “Order” includes Customer’s online registration for and purchase of the Subscription Services, If any.
1.6 "Subscription Services" means the generally available hosted service which packages web-based access and the right-to-use the supported applications, installed agents and associated reference, user and technical guides.
1.7 “User Guide” means the online help, functional guide and technical specifications for the Subscription Services, as updated by BMC from time to time.
2. SCOPE. Subject to the terms of this Agreement, Customer may purchase and BMC will provide Customer with access to the Subscription Services as set forth in this Agreement and the applicable Order. Subject to the Attachments to this Agreement, Customer may also purchase BMC Platform Services, BMC Consulting Services and BMC On Premise Subscription Services. In the event of a direct conflict between any Order and the terms of this Agreement, the terms of the Order will control only if the Order is executed by an authorized representative of each party. Each Order is deemed to be a discrete contract, separate from each other Order, unless expressly stated otherwise therein. Orders may be entered under this Agreement by and between (a) BMC or an Affiliate of BMC; and (b) Customer or an Affiliate of Customer. With respect to an Order, the terms “BMC” and “Customer” as used in this Agreement will be deemed to refer to the entities that execute that Order, the Order will be considered a two party agreement between such entities, and BMC will separately invoice the Customer named in the Order for the associated fees. Orders may also be placed via a BMC authorized reseller. Neither execution of this Agreement, nor anything contained herein, shall obligate either party to enter into any Orders.
3. ACCESS TO SUBSCRIPTION SERVICES.
3.1 Access Rights. Subject to Customer’s payment of applicable fees and to the terms of this Agreement, BMC will provide Customer with worldwide access to the Subscription Services in accordance with the Order (i) up to the Capacity, (ii) for Customer’s and its Affiliates’ internal business operations, (iii) in accordance with the User Guide and the applicable Order. Customer may exercise its rights under this Section 3.1 through its employees, consultants, contractors, agents, and Affiliates (all, “Users”).
3.2 BMC Subscription Services Support. BMC will provide the support described at http://www.bmc.com/support/review-policies (“Support”) to Customer for the Subscription Services.
3.3 Use of Subcontractors. Customer acknowledges and agrees that BMC uses subcontractors to provide portions of the Subscription Services. BMC will provide a list of its current subcontractors upon Customer’s written request. BMC is responsible for the performance of all subcontractors providing any of the Subscription Services.
3.4 Compliance with Laws. Each party shall comply with all applicable laws in the performance of its obligations under this Agreement.
3.5 Customer Responsibilities and Restrictions.
(a) Customer will (i) maintain the confidentiality of all authentications and passwords for the Subscription Services and immediately notify BMC if it becomes aware that an unauthorized party has gained access such authentications and passwords, (ii) be responsible for use of the Subscription Services by its Users in compliance with this Agreement, (iii) prevent unauthorized access to, or use of, the Subscription Services, and notify BMC promptly of any such unauthorized access or use, and (iv) be responsible for obtaining its own Apple Push Notification certificate, if the Subscription Services are used to manage devices running iOS. Customer is responsible for the creation and implementation of a privacy policy and end user agreement, if applicable, which will set forth the guidelines of how Customer uses and protects the data and personal information of its Users, and how said Users may utilize the Subscription Services.
(b) Customer will not (i) modify, copy or create derivative works based on the Subscription Services; (ii) create Internet “links” to or reproduce any content forming part of the Subscription Services, other than for its own internal business purposes; (iii) disassemble, reverse engineer, or decompile the Subscription Services or part thereof, except to the extent expressly permitted by applicable law despite this limitation without possibility of contractual waiver; (iv) interfere with or disrupt the integrity or performance of the Subscription Services; (v) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortuous material, or send or store material in violation of any third party’s privacy rights via the Subscription Services; (vi) send or store viruses or malicious code via the Subscription Services; (vii) attempt to gain unauthorized access to the Subscription Services or its related software, systems, platforms or networks, including any form of security and/or penetration testing; (viii) use any components provided with the Subscription Services separately from the Subscription Services; or (ix) distribute, rent, lease or provide the Subscription Services to any third party or use it in a service bureau, outsourcing environment, or for the processing of third party data.
4. FEES AND PAYMENT.
4.1 Fees. The fees payable for the Subscription Services and the payment period for such fees will be set forth in and paid in accordance with the Order. All payments are due within 30 days of the date of the invoice.
4.2 Late Fees. Late balances may, at BMC’s sole election, bear interest at a rate equal to the lesser of 1% per month or the maximum amount permitted by law.
4.3 Taxes. Customer will pay taxes imposed in connection with the fees paid for the Subscription Services, which are exclusive of these taxes.
4.4 Solution Providers. With regard to Subscription Services acquired by Customer through an authorized reseller ("Solution Provider") of BMC, notwithstanding anything to the contrary in sections 4.1 and 4.2 above, Customer will have no direct payment obligations to BMC for such fees.
5. TERM, SUSPENSION AND TERMINATION.
5.1 Term. This Agreement begins on the Effective Date and will remain in effect unless terminated pursuant to Section 5.2 below, regardless of the billing frequency selected in the Order.
5.2 Termination.
(a) Termination for Convenience. Customer may terminate this Agreement by providing BMC with at least 30 days prior written notice; provided, however, such termination will have no effect on Orders in effect at the time of such termination. Orders may not be terminated for convenience unless otherwise specified therein. Customer may notify BMC of its intent to terminate by emailing BMC at order_services@bmc.com.
(b) Termination for Cause. Either party may terminate this Agreement and/or an Order for cause upon 30 days’ written notice of a material breach to the other party if such breach remains uncured at the expiration of such period. In the event Customer terminates the Agreement and an Order for BMC’s material breach, BMC will refund the amount paid by Customer to BMC for the Subscription Services on such Order, pro-rated from the date of the notice of the termination.
5.3 Suspension of Subscription Services for Cause. In addition to its other rights and remedies, BMC reserves the right, without liability to Customer, to suspend any and all access to the Subscription Services if Customer commits a material breach of this Agreement and fails to cure the same within 30 days from Customer’s receipt of written notice of such breach from BMC. Provided however, that BMC may immediately suspend any and all access to the Subscription Services without any cure period if BMC determines in good faith that Customer’s material breach of the Agreement will cause damage to BMC, the Subscription Services, or any other customer.
5.4 Effects of Termination. Upon termination or expiration of any Order or this Agreement, all rights and Licenses granted thereunder will terminate and Customer will make no further use of the Subscription Services. No termination will relieve the Customer of the obligation to pay any fees accrued or payable to BMC pursuant to any Order. Upon written request by Customer made within 45 days after the effective date of termination, BMC will make the Customer Content available to Customer for retrieval in an industry standard format. After such 45-day period, BMC shall have no obligation to maintain any Customer Content and will thereafter delete Customer Content. Any terms in this Agreement which by their nature extend beyond termination of this Agreement will remain in effect until fulfilled.
5.5 Termination Assistance. Upon Customer’s request and upon (a) the expiration of an Order or (b) the termination of an Order for any reason other than Customer’s breach, BMC shall perform such services as the parties in good faith agree are reasonably necessary to facilitate the orderly transition of the Services to the successor service provider or to the Customer. BMC will provide any such services under the terms and conditions of the Agreement, and subject to payment of the then-current fees and charges, generally applicable to BMC’s performance of such services, as agreed between the parties at such time.
6. LIMITED WARRANTY.
6.1 Warranties and Limited Remedies. BMC warrants to Customer that:
(a) the online availability of the Subscription Services will be maintained in accordance with the service levels attached to the applicable Order, if any (the “Service Level Agreement” or “SLA”). Customer’s exclusive remedy and BMC’s sole obligation for breach of the warranty in this Section 6.1(a) is described in the Service Level Agreement;
(b) the Subscription Services (i) will perform in substantial accordance with the then-current on-line User Guide available via the Subscription Services and (ii) will be performed in a manner consistent with industry standards reasonably applicable to the provision thereof. Customer’s exclusive remedy and BMC’s sole obligation for breach of the warranty in this Section 6.1(b) will be BMC’s use of commercially reasonable efforts to have the Subscription Services perform in substantial accordance with the User Guide, or replace the non-conforming portion of the Subscription Services within 60 days from the written notice of claim, or if BMC cannot have the Subscription Services perform in substantial accordance with the User Guide or replace the Subscription Services within such time period, then Customer may terminate the non-performing Subscription Services, and upon such termination BMC will refund the amount paid by Customer for the Subscription Services, pro-rated from the date of the notice of the claim. Customer’s rights and BMC’s obligations in this Section 6.1(b) are conditioned upon Customer’s providing BMC with written notice of the claim, a complete description of the alleged defects and a specific reference to the User Guide to which such alleged defects are contrary; and
(c) In connection with the Subscription Services (i) it has used commercially reasonable efforts consistent with industry standards to scan for and promptly remove any software viruses for no charge and (ii) it has not inserted any Disabling Code. “Disabling Code” means computer code inserted by BMC, that is not addressed in the User Guide, and that is designed to expose data, delete, interfere with, and/or disable the normal operation of the Subscription Services. This Disabling Code warranty does not apply to BMC passwords necessary for the operation of the Subscription Services, or for any use by Customer outside the scope of this Agreement.
6.2 Disclaimer. CUSTOMER ACKNOWLEDGES THAT, EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, BMC, ITS AFFILIATES AND LICENSORS MAKE NO WARRANTY, EXPRESS, IMPLIED OR STATUTORY WITH RESPECT TO THE SUBSCRIPTION SERVICES OR USE THEREOF. BMC, ITS AFFILIATES AND LICENSORS HEREBY EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY THAT SUBSCRIPTION SERVICES WILL BE UNINTERRUPTED, ERROR FREE OR WITHOUT DELAY, AND THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INTERFERENCE, NON-INFRINGEMENT AND INFORMATION CONTENT.
7. PROPRIETARY RIGHTS AND CONFIDENTIALITY.
7.1 Proprietary Rights. BMC, its Affiliates or licensors retain all right, title and interest to the Subscription Services and all related intellectual property and proprietary rights. The Subscription Services are protected by applicable copyright, trade secret, industrial and other intellectual property laws. BMC owns all right, title and interest in all software, programming, documentation, templates, questionnaires, methodologies, models, charts, reports, ideas, features, content, functions, graphics and any other items provided as part of the Subscription Services (“ Service Items”) and access to and use of the relevant Service Items will be governed by the terms of this Agreement. Subject to (i) BMC’s or its licensor’s ownership of any Service Items and (ii) section 3.5 (b)(i) of the Agreement, Customer owns all rights, title, and interest in Customer Applications, including all proprietary and intellectual property rights. BMC reserves any rights not expressly granted to Customer. Customer shall not access the Subscription Services in order to build a competitive product or service or copy any ideas, features, functions or graphics of the Subscription Services. “ Confidential Information” means all proprietary or confidential information that is disclosed to the recipient (“Recipient”) by the discloser (“ Discloser”), and includes, among other things (i) any and all information relating to products or services provided by a Discloser, its customer-related and financial information, software code, BMC product vulnerabilities, flow charts, techniques, specifications, development and marketing plans, strategies, and forecasts; (ii) as to BMC, and its licensors, the Subscription Services and Service Items; and (iii) the terms of this Agreement, including without limitation, pricing information. Confidential Information does not include information that Recipient can show: (a) was rightfully in Recipient’s possession without any obligation of confidentiality before receipt from the Discloser; (b) is or becomes a matter of public knowledge through no fault of Recipient; (c) is rightfully received by Recipient from a third party without violation of a duty of confidentiality; or (d) is or was independently developed by or for Recipient. Recipient may not disclose Confidential Information of Discloser to any third party or use the Confidential Information in violation of this Agreement. The Recipient (i) will exercise the same degree of care and protection with respect to the Confidential Information of the Discloser that it exercises with respect to its own Confidential Information and (ii) will not, either directly or indirectly, disclose, copy, distribute, republish, or allow any third party to have access to any Confidential Information of the Discloser. Notwithstanding the foregoing, Recipient may disclose Discloser’s Confidential Information to Recipient’s employees and agents who have need to know provided that such employees and agents have legal obligations of confidentiality substantially the same (and in no case less protective) as the provisions of this Agreement.
7.2 Notification Obligation. If the Recipient becomes aware of any unauthorized use or disclosure of Discloser’s Confidential Information, then Recipient will promptly and fully notify the Discloser of all facts known to it concerning such unauthorized use or disclosure. In addition, if the Recipient or any of its employees or agents are required (by oral questions, interrogatories, requests for information, or documents in legal proceedings, subpoena, civil investigative demand, or other similar process) to disclose any of Discloser’s Confidential Information, the Recipient will not disclose the Discloser’s Confidential Information without providing the Discloser with commercially reasonable advance prior written notice to allow Discloser to seek a protective order or other appropriate remedy or to waive compliance with this provision. In any event, the Recipient will exercise its commercially reasonable efforts to preserve the confidentiality of the Discloser’s Confidential Information, including, without limitation, cooperating with Discloser to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded to the Confidential Information.
7.3 Customer Content. As between BMC and Customer, Customer owns all rights, title and interest in and to Customer Content. Customer Content is deemed Confidential Information under this Agreement. BMC will use the Customer Content only as necessary to provide the Subscription Services in accordance with this Agreement. At any time during the term of the Subscription Services, Customer may request copies of all Customer Content from the Subscription Services. Customer is responsible for complying with all legal and contractual requirements, including its agreements with third parties. With the exception of Customer Content collected by the Subscription Services, Customer is solely responsible for the transmission of Customer Content to BMC and to the Subscription Services. Customer is solely responsible for the encryption of any Customer Content during such transmission.
7.4 Suggestions. Customer agrees that BMC shall have a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into any BMC products or services any suggestions, enhancement requests, recommendations or other feedback provided by Customer relating to the Subscription Services.
8. DISCLAIMER OF DAMAGES AND LIMITS ON LIABILITY.
8.1 DISCLAIMER OF DAMAGES. NEITHER PARTY OR ITS AFFILIATES OR LICENSORS ARE LIABLE FOR ANY, SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES RELATING TO OR ARISING OUT OF THIS AGREEMENT OR THE SUBSCRIPTION SERVICES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST COMPUTER USAGE TIME, AND DAMAGE TO, OR LOSS OF USE OF, DATA), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND IRRESPECTIVE OF ANY NEGLIGENCE OF A PARTY OR WHETHER SUCH DAMAGES RESULT FROM A CLAIM ARISING UNDER TORT OR CONTRACT LAW. THE FOREGOING LIMITATIONS DO NOT APPLY TO EACH PARTY’S RESPONSIBILITIES IN SECTION 9, INFRINGEMENT BY A PARTY OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, GROSS NEGLIGENCE, WILLFUL MISCONDUCT, DEATH OR BODILY INJURY, ACTS OF FRAUD, NOR ANY LIABILITY WHICH MAY NOT BE EXCLUDED OR LIMITED BY LAW.
8.2 LIMITS ON LIABILITY. NEITHER PARTY OR ITS AFFILIATES OR LICENSORS SHALL HAVE AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SUBSCRIPTION SERVICES, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEEDING THE AMOUNTS ACTUALLY PAID BY AND PAYABLE FROM CUSTOMER FOR THE SUBSCRIPTION SERVICES GIVING RISE TO LIABILITY PURSUANT TO THE ORDER(S) THAT ARE IN EFFECT AS OF THE DATE THE LIABILITY FIRST AROSE. THE FOREGOING LIMITATIONS DO NOT APPLY TO EACH PARTY’S RESPONSIBILITIES IN SECTION 9, INFRINGEMENT BY A PARTY OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, GROSS NEGLIGENCE, WILLFUL MISCONDUCT, DEATH OR BODILY INJURY, ACTS OF FRAUD, NOR ANY LIABILITY WHICH MAY NOT BE EXCLUDED OR LIMITED BY LAW.
9. INFRINGEMENT CLAIMS.
9.1 Indemnification by BMC . If a third party asserts a claim against Customer asserting that Customer’s use of the Subscription Services, including Platform Services, Deliverables and Licenses as defined in the Attachments to this Agreement, in accordance with this Agreement violates that third-party’s patent, trade secret or copyright rights (“Infringement Claim”), then BMC will, at its own expense: (a) defend or settle the Infringement Claim; and (b) indemnify Customer for any damages finally awarded against Customer based on infringement by the Subscription Services or Deliverables, including court costs and reasonable attorney’s fees. If BMC believes the Subscription Services may violate a right, then BMC will, at its expense: (a) modify the Subscription Services, or (b) procure the right to continue using the Subscription Services, and if (a) or (b) are not commercially reasonable, terminate Customer's right to use the Subscription Services and issue a pro-rata refund for the unexpired pre-paid portion of such Subscription Services.
9.2 Indemnification by Customer. Subject to the terms of this Agreement, if a third party asserts a claim against BMC asserting that the (i) Customer Content, (ii) Customer Applications as defined in Attachment A, (iii) Customer Property as defined in Attachment B or (iv) Customer’s use of the Subscription Services in violation of this Agreement violates that third-party’s patent, trade secret or copyright rights (“ Claim”), Customer will, at its own expense: (a) defend or settle the Claim; and (b) indemnify BMC for any damages finally awarded against BMC based on the Claim, including court costs and reasonable attorney’s fees.
9.3 Indemnity Process. Neither party’s obligations under this Section 9 will apply if: (a) the indemnifying party’s legal department does not receive prompt, detailed written notice of the Infringement Claim/Claim from the party being indemnified, (b) the indemnifying party is not able to retain sole control of the defense of the Infringement Claim/Claim and all negotiations for its settlement or compromise, or (c) the indemnifying party does not receive all reasonable assistance from the party being indemnified. Neither party will bind the indemnified party to a monetary obligation in a settlement or compromise, or make an admission on behalf of the indemnified party, without obtaining that party’s prior consent.
9.4 THIS SECTION 9 CONTAINS EACH PARTY'S EXCLUSIVE REMEDIES AND THE INDEMNIFYING PARTY'S SOLE LIABILITY FOR INFRINGEMENT CLAIMS/CLAIMS, RESPECTIVELY.
10. EXPORT CONTROLS. Both parties agree to comply with applicable export regulations, including but not limited to U.S. Export Administration Regulations and the OFAC embargoes and sanctions lists. More information on BMC’s export compliance program may be found here: https://www.bmc.com/legal/export-compliance.html.
11. GOVERNING LAW AND DISPUTE RESOLUTION. Any controversy, dispute or claim arising out of or relating to this Agreement, or to the formation, interpretation, breach, termination, or validity thereof (each, a “Controversy”) will be resolved as follows:
(i) UNITED STATES. If both parties to this Agreement are entities incorporated under the law of any state in the United States, the Controversy shall be tried in either state or federal court located in Houston, Texas and the laws of the State of Texas shall govern. Both parties hereby submit to the exclusive jurisdiction of the courts in Houston, Texas and waive all defenses based on forum non conveniens. Notwithstanding the foregoing, if Customer is a state or local governmental entity or higher education institution and legally required to apply state law, then Customer’s state law will apply to the Controversy, without reference to conflict of law principles.
(ii) CANADA. If Customer is located in Canada (outside Quebec), then the law of the Province of Ontario law apply, without reference to conflict of law principles. If Customer is located in Quebec, then the laws of the Province Quebec will apply, without reference to conflict of law principles.
(iii) EMEA. If both parties to this Agreement are entities incorporated in countries in the Europe, Middle East, or Africa regions, the Controversy shall be tried in the District Court located in Amsterdam, the Netherlands and the substantive laws of the Netherlands shall govern. Both parties hereby submit to the exclusive jurisdiction of the District Court in Amsterdam, the Netherlands and waive all defenses based on forum non conveniens.
(iv) ASIA PACIFIC. If both parties to this Agreement are entities incorporated in countries in the Asia Pacific region, the arbitration shall be held in Singapore under the then-applicable rules of the Singapore International Arbitration Centre and the substantive laws of Singapore will govern.
(v) OTHER REGIONS. In all other instances, the arbitration shall be held in New York City, New York, under the then-applicable international rules of the American Arbitration Association and the substantive laws of the State of Texas will govern.
For all arbitrations conducted hereunder: (a) the arbitration shall be conducted in English; (b) the relevant arbitral institution shall determine the number of arbitrators, but any Controversy in which the amount in dispute is greater than $10 million USD shall be decided by three arbitrators, with each party having the right to select one arbitrator; (c) the costs of such arbitration shall be borne equally, pending the arbitrator’s award; (d) the arbitration award rendered shall be final and binding on the parties, shall not be subject to appeal to any court and shall be enforceable in any court having jurisdiction over the parties; (e) the arbitration proceedings, award and pleadings shall all be confidential, unless disclosure of particular information is required for purposes of enforcing/challenging the award or to meet local securities law requirements; and (f) the party prevailing in arbitration shall be entitled to recover its reasonable attorneys’ fees and the necessary costs incurred in connection with the arbitration.
The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. Nothing in this Agreement shall be deemed as preventing either party from seeking immediate injunctive relief from any court having jurisdiction over the parties and the subject matter of the dispute.
12. The following BMC contracting entities apply to this Agreement:
Region | Contracting Entity | Address of Contracting Entity |
United States and Latin America South (not a specified Central or South America country below) | BMC Software, Inc. | 2103 CityWest Boulevard, Houston, Texas 77042 |
Canada | BMC Software Canada Inc. | 50 Minthorn Boulevard, Suite 200 Markham, Ontario L3T 7X8 Canada |
EMEA (Europe, Middle East and Africa) | BMC Software Distribution B.V. | Vision Plaza West, 2nd floor, Boeingavenue 220, 1119PN Schiphol-Rijk, The Netherlands |
Brazil | BMC Brasil Software Ltda. | Avenida Rebouças n° 3.970 e Avenida Dra. Ruth Cardoso, n° 8.501 Condomínio Eldorado Business Tower, 22° andar, Pinheiros, São Paulo – SP, CEP: 05425-070 |
Mexico | BMC Software Distribution de México, S.A. de C.V. | Calle Volcán, No.150, Piso 2, Oficina 202, Col. Lomas de Chapultepec V Sección, C.P., 11000, Alcaldía Miguel Hidalgo, Ciudad de México |
Argentina | BMC Software de Argentina S.A. | Ing. Butty 220 - Piso 18, Catalinas Plaza Buenos Aires, República de Argentina, C1001A |
S.E.A (Southeast Asia), Australia, New Zealand, Hong Kong, Taiwan | BMC Software Ireland Unlimited Company | Building 3, Cherrywood Business Park, Bray Road, Loughlinstown, CO. Dublin, D18 TF72 |
China | BMC Software (China) Limited | Room 502, Level 5, Tower W1, The Towers, Oriental Plaza, No. 1 East Chang An Ave., Dong Cheng Dist., Beijing 100738, China |
Japan | BMC Software K.K. | Harmony Tower 24th Floor, 1-32-2 Honcho, Nakano-ku, Tokyo, 164-8721 |
Korea | BMC Software Korea Ltd | 24th Fl., ASEM Tower, 1517, Yeongdong-daero,Gangnam-gu, Seoul 135-798, Korea South |
13. U.S. GOVERNMENT END USER RIGHTS. This Section applies only to acquisitions of the commercial Subscription Services subject to this Agreement by or on behalf of the United States Government, or by any prime contractor or subcontractor (at any tier) under any contract, grant, agreement or other activity with the United States Government. When Subscription Services are delivered or provided to the United States Government, the United States Government agrees that this commercial license Agreement and the Subscription Services governed by this Agreement are defined in accordance with and qualify as “commercial items” consisting of “commercial computer software” and “commercial computer software documentation” as outlined in FAR 12.211, FAR 12.212 and DFARS 227.7202-3, as applicable. The terms and conditions of this Agreement shall pertain to the United States Government’s use (including documentation or technical data), duplication, and disclosure of the Subscription Services, and shall supersede any conflicting contractual terms and conditions”.
14. DATA PROTECTION. The processing of Customer Content under this Agreement is governed by the BMC Data Processing Agreement set forth on the Order.
15. VERIFICATION. Customer agrees that BMC or its agent may monitor the Subscription Services to ensure Customer’s compliance with the terms of this Agreement. If such monitoring reveals that Customer has exceeded the Capacity for the Subscription Services, Customer will execute an Order for additional Capacity of such Subscription Services promptly upon BMC’s request.
16. NOTIFICATIONS. Any general notifications regarding technical matters from BMC to Customer will be sent to the Customer contact stated in the Customer Technical Contact Information section of the Order. The Customer contact in the Order has been assigned by Customer as the Customer contact for operational issues that may arise. Customer shall notify BMC of any change to the Customer contact details in writing, which may include via e-mail.
17. CONDUCTING BUSINESS WITH HONESTY AND INTEGRITY. BMC is committed to conducting business with honesty and integrity. BMC’s Code of Conduct set forth in https://www.bmc.com/legal/code-of-conduct.html governs the conduct of all officers, directors, and employees of BMC, and contingent workers and business partners acting on BMC’s behalf. BMC demonstrates its commitment to environmental stewardship by its global accreditation for ISO 14001:2015.
18. INFORMATION SECURITY. BMC employs comprehensive organizational and technical security safeguards to protect the security and integrity of Customer Content in line with industry best practices, as set forth in the Information Security Requirements found at http://www.bmc.com/content/dam/bmc/corporate/hinfosec.pdf.
19. MISCELLANEOUS TERMS. The parties are independent contractors and this Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties. Customer will receive system notifications from BMC and its licensors, if applicable (i.e. planned downtime notices, etc). This Agreement, including the Attachments and Orders constitutes the entire agreement between Customer and BMC and supersedes any prior or contemporaneous negotiations or agreements, whether oral or written concerning the Subscription Services. There are no representations, promises, warranties, covenants, or undertakings between the parties other than those expressly set forth in this Agreement. There are no third-party beneficiaries to this Agreement; Customer is not entering into a contractual relationship with BMC’s licensors and BMC’s licensors have no liability to Customer. Except as provided in Section 2 above, no modification or waiver of any provision hereof will be effective unless made in a writing signed by both BMC and Customer. Customer has the right to assign this Agreement and all Orders in whole to an Affiliate, or to a successor in connection with (i) the sale of all or substantially all of the assets of that party or (ii) a merger by operation of law, by providing written notice to BMC. The assignee may not be a known direct competitor of BMC. The successor entity or Affiliate must agree in writing with BMC (in advance of the assignment) to be bound by the terms of this Agreement. Any Customer transfer or assignment except as expressly authorized above will be null and void. Should any provision of this Agreement be invalid or unenforceable, the remainder of the provisions will remain in effect. Any additional or conflicting terms of any Customer purchase order are rejected by BMC and do not apply. The Subscription Services may contain hyperlinks to websites controlled by parties other than BMC. BMC is not responsible for and does not endorse the content or accept any responsibility for Customer’s use of these websites. Customer should refer to the policies posted by other websites regarding privacy and other topics regarding data privacy before using them. In compliance with all applicable laws and for internal purposes only, BMC may compile and use de-identified, aggregate or statistical information related to Customer’s use of the BMC Subscription Services for the purposes of enhancing and improving the BMC Subscription Services, developing new products and services, and for other development, diagnostic, statistical and corrective purposes, provided that such information (a) does not incorporate Customer’s personally identifiable information or Personal Data and (b) does not identify or describe the Customer. Les parties exigent que la présente convention ainsi que les documents qui s’y rattachent soient rédigés en anglais.
Attachments incorporated into Agreement |
Attachment A – Platform Services Attachment |
Attachment B – Consulting Services Attachment |
Attachment C – On Premise Subscription Services Attachment |
PLATFORM SERVICES ATTACHMENT
to the
BMC CLOUD SERVICES MASTER AGREEMENT
Except as otherwise provided herein, the terms of the Cloud Services Master Agreement (the “Base Agreement”) are incorporated into this Platform Services attachment (the “Attachment”). Together, this Attachment and the Base Agreement (as incorporated into this Attachment) are referred to as the “Agreement” for purposes of Customer’s access and use of Platform Services, only if the Platform Services are set forth on an Order referencing the Base Agreement. For purposes of this Agreement, the term “Subscription Services” as defined in the Base Agreement shall be extended to include the Platform Services. In the event of a conflict between the Base Agreement and the terms of this Attachment, the terms of this Attachment will control for Customer’s access and use of the Platform Services only.
1. SCOPE. Subject to the terms of this Agreement, BMC will provide Customer with access to the Platform Service named in the applicable Order.
2. DEFINITIONS.
2.1 “Application” is the object code, its definitional structures, and data created to fulfill a particular purpose, which runs on the Platform Services. An Application may also include its documentation and User Guide.
2.2 “Customer Applications” means Applications that are owned or licensed by Customer, and which run on the Platform Services.
2.3 “Development Platform” means a BMC provided development platform which allows Customer to develop a custom application to run on the Platform Services. The Development Platform is a separate environment from the Platform Services.
2.4 “Platform” means the generally available BMC-provided PaaS platform and its capabilities to run Applications.
2.5 “Platform Services” means the specific Platform Services identified in the Order.
3. BMC PLATFORM SERVICES.
3.1 BMC Platform Services Support. BMC will provide Support only for Platform Services. Customer is responsible for its own support for Customer Applications.
4. CUSTOMER APPLICATIONS.
4.1 The terms contained in this section 4 apply only to Orders for Platform Services entitling Customers to develop and deploy Customer Applications onto the Platform Services. Any Customer Applications that run on the Platform Services are hereby excluded from the defined terms “Subscription Services” and “Platform Services”.
4.2 Development Platform. Customer may utilize the Development Platform to create an Application to run on the Platform Services. Customer’s use of the Development Platform is governed by the terms of this Agreement subject to the restrictions set forth in sections 4.2.1 to 4.2.6 below. Customer’s development of an Application must meet the best practices development guidelines set forth in the User Guide. Each Customer Application shall at all times materially conform to policies and best practices set forth in the User Guide. Prior to the deployment of any Customer Applications in a production or non-production environment of the Platform Services, Customer must conduct security and functional tests of each Customer Application and submit the results of such tests to BMC for review. BMC reserves the right to reject Customer’s deployment request of a Customer Application based on the results of Customer’s security and functional tests. Additionally, BMC reserves the right, during the term of this Agreement, to request Customer conduct additional security and functional tests and provide the results of said tests to BMC for review. Notwithstanding the foregoing, Customer must ensure that at all times Customer Applications are secure.
4.2.1 Scope of use. The right to access and use the Development Platform is granted solely for the purpose of performing non-production application development work on the Development Platform.
4.2.2 Restrictions of use. Customer agrees not to:
(i) use the Development Platform to (1) process production data or for any other production purposes, including but not limited to publishing digital applications, or (2) distribute applications;
(ii) use the Development Platform with data or information that has not been backed up; or
(iii) modify, delete or remove any ownership, title, trademark, patent or copyright notices.
4.2.3 Customer Responsibilities. Customer is responsible for acquiring all necessary and required licenses for the use of any third party software, source code and/or libraries Customer may use as part of its development with the Development Platform. In addition to its other rights and remedies, BMC reserves the right, without liability to Customer, to immediately, at any time and for any reason refresh Customer’s instance of the Development Platform. Upon BMC’s refreshing of Customer’s instance of the Development Platform, Customer may lose all Customer Content submitted to or stored in said instance of the Development Platform. Upon expiration or termination of the applicable Order, BMC may destroy any Customer Content submitted to or stored therein. Customer is responsible for backing up any development work with Customer Content outside of the Development Platform.
4.2.4 Open Source. Customer may not use any software, library, utility, tool, or other computer or program code (“Code”) with the Subscription Services that in any way that would (i) weaken BMC’s intellectual property rights in the Services, or (ii) require the Subscription Services to become or be disclosed or distributed as Open Source Software. For purposes of this Section, “Open Source Software” means any Code that is substantially similar to, (A) the Affero General Public License, (B) the GNU General Public License (GPL) or Lesser/Library GPL (LGPL), (C) the Artistic License (e.g. PERL), (D) the Mozilla Public License, (E) the Netscape Public License, (F) the Sun Community Source License (SCSL), (G) the Sun Standards License (SISL), or (H) any “copyleft” license, or any other license that requires as a condition of use, reproduction, modification, or distribution that such Code or other software or computer code distributed with it: (1) be disclosed or distributed in source code form; (2) be licensed for the purpose of creating derivative works; (3) be licensed under terms that allow reverse engineering, reverse assembly, or disassembly of any kind; (4) be subject to a patent non-assert or royalty-free patent license; or (iv) be redistributable at no charge.
4.2.5 No Support. BMC, its affiliates, or licensors do not provide Support for the Development Platform.
4.2.6 Disclaimer of Warranty, Limitation of Liability and Exclusive Remedy. Notwithstanding anything to the contrary in the applicable Order or this Agreement:
a. THE DEVELOPMENT PLATFORM IS PROVIDED “AS IS” WITHOUT ANY WARRANTY OF ANY KIND WHATSOEVER. BMC, ITS AFFILIATES AND LICENSORS DO NOT WARRANT THAT THE DEVELOPMENT PLATFORM WILL SATISFY CUSTOMER’S REQUIREMENTS, THAT THE DEVELOPMENT PLATFORM IS WITHOUT DEFECT, VIRUS OR ERROR FREE, WITHOUT DELAY, OR THAT THE OPERATION OF THE DEVELOPMENT PLATFORM WILL BE UNINTERUPTED. BMC, ITS AFFILIATES AND LICENSORS DISCLAIM ANY AND ALL REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, MADE WITH RESPECT TO THE DEVELOPMENT PLATFORM, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INTERFERENCE AND INFORMATION CONTENT; AND
b. NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY, FOR ANY CLAIM, LOSS, DAMAGE OR EXPENSE FOR INDIRECT, SPECIAL, CONSEQUENTIAL, PUNITIVE OR INCIDENTAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE DEVELOPMENT PLATFORM (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST COMPUTER USAGE TIME, AND DAMAGE TO, OR LOSS OF USE OF, DATA), EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EITHER PARTY’S ENTIRE LIABILITY AND THE OTHER PARTY’S EXCLUSIVE REMEDY FOR DIRECT DAMAGES ARISING OUT OF OR RELATED TO THE DEVELOPMENT PLATFORM, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, IS LIMITED TO $100.
4.3 License to Customer Applications. Subject to the terms and conditions of this Agreement, Customer hereby grants BMC a worldwide, limited, nonexclusive license during the term of the applicable Order for the Platform Services to host, copy, transmit, adapt and display Customer Applications solely for the purpose of fulfilling BMC’s obligations under this Agreement.
4.4 Functionality of Customer Applications. Customer is solely responsible for the operation of Customer Applications, including but not limited to any information stored in or transmitted by Customer Applications. Customer is responsible for monitoring the usage of each Customer Application. Customer is responsible for the configuration, functionality, performance, compliance with applicable data protection laws and security of all Customer Applications, including any interfaces used to connect to Customer Applications.
4.5 Customer Assistance. Customer will provide information or other materials related to a Customer Applications as reasonably requested by BMC to verify Customer’s compliance with the Agreement and the User Guide.
4.7 Suspension of Customer Applications. Customer’s use of the Platform Services may be immediately suspended and/or terminated due to (i) reasonable security threats regarding the Platform Services or Customer Applications, (ii) Customer Applications interfering with, disrupting or threatening the integrity or performance of the Subscription Services and/or the Platform Services, or (iii) violates the law, infringes or misappropriates the rights of any third party or otherwise violates a material term of the Agreement. In the event (i) or (ii) above apply to Customer Applications, Customer is required to remediate any such issue to BMC’s commercially reasonable satisfaction before use of Customer Applications can resume. BMC shall use reasonable commercial efforts to only suspend the non-conforming portion of the Platform Services.
4.8 CUSTOMER APPLICATIONS WARRANTIES. Customer warrants to BMC that: (a) each Customer Application will perform materially in accordance with the User Guide; (b) Customer has all rights in the Customer Content and Customer Applications necessary to grant the rights contemplated by this Agreement; (c) none of the Customer Content or Customer Applications or Users’ use of Customer Content or Customer Applications will violate the Agreement and the User Guide; and (d) Customer’s security and functional tests of Customer Applications was conducted in a commercially reasonable manner and the results of said tests provided to BMC for review are correct and valid.
ATTACHMENT B
CONSULTING SERVICES ATTACHMENT
to the
BMC CLOUD SERVICES MASTER AGREEMENT
Except as otherwise provided herein, the terms of the Cloud Services Master Agreement (the “Base Agreement”) are incorporated into this Consulting Services attachment (the “Attachment”). Together, this Attachment and the Base Agreement (as incorporated into this Attachment) are referred to as the “Agreement” for purposes of Customer’s purchase of Consulting Services, only if Consulting Services are set forth on an Order referencing the Base Agreement. For purposes of this Agreement, the term “Subscription Services” as defined in the Base Agreement shall be extended to include Consulting Services. In the event of a conflict between the Base Agreement and the terms of this Attachment, the terms of this Attachment will control for Customer’s purchase of Consulting Services only. The parties agree that the following Sections of the Base Agreement do not apply to the Consulting Services provided under this Attachment: Section 3.2 (Support), Section 4 (Fees and Payment), and Section 6 (Limited Warranty).
1. SCOPE. BMC agrees to render to Customer Consulting Services under the terms of this Agreement and as further described in an Order. BMC will render the Consulting Services in the location(s) as set forth in the Order. The performance of the Consulting Services will not relieve or alter the rights, obligations and responsibilities of Customer and of the BMC Affiliate providing Subscription Services and/or Licenses with respect to Subscription Services and/or Licenses under the applicable agreement.
2. SERVICE FEES AND EXPENSES. The fees payable to BMC for the Consulting Services to be rendered will be detailed in the Order. BMC will submit invoices to Customer for such fees and incurred expenses either upon completion of the Consulting Services, or at stated intervals, in any case in accordance with the applicable Order. Customer shall pay amounts invoiced within 30 days of the date of the invoice.
3. EDUCATION. Customer may acquire Learning Pass Credits and Education Services (collectively, “BMC Education ”) on an Order. The BMC Education terms that govern such Orders are set forth in the Education Program Guide located at https://www.bmc.com/content/dam/bmc/education/education-program-guide.pdf, and is incorporated herein by this reference.
4. STATEMENTS OF WORK. Consulting Services may require the execution of a Statement of Work, in which case, such Statement of Work will be considered an Order for such Consulting Services. In the event of any conflict between the terms of a Statement of Work and this Agreement, the Agreement shall prevail except for matters of service fees, payment and reimbursement of expense, and termination of Consulting Services if further specified in the Statement of Work. During the term of an applicable Statement of Work, and for a period of six months thereafter, neither party will solicit for employment any employees, agents, or subcontractors of the other party or its affiliates who, within six months prior to such solicitation, had contact with the soliciting party based in whole or in part upon Consulting Services provided under this Agreement. The restrictions in this section shall be deemed not to apply to general solicitations for employment posted on Internet job sites or printed in newspapers or trade or professional journals.
5. PROPRIETARY RIGHTS AND RIGHTS IN DELIVERABLES.
5.1 Ownership of Materials Used in the Consulting Services. Unless specifically provided in an Order, Customer shall supply all of the facilities; equipment; supplies; computer programs; information about Customer’s business, systems, software and needs; and other materials necessary for completion of the Consulting Services (“Customer Property”), and BMC shall supply the people described in the Order, the know-how and the tools necessary to provide the Consulting Services, which may include, among other things, software, templates, questionnaires, graphs, methodologies, models, charts and reports (“BMC Property”). Customer Property and copies and modifications of Customer Property will remain the sole property of Customer or if applicable, Customer’s licensors, and BMC Property and copies and modifications of BMC Property will remain the sole property of BMC or if applicable, BMC’s licensors. Customer hereby grants to BMC a royalty-free, paid-up, non-exclusive, non-sublicensable and non-transferable license to use the Customer Property for the purpose of providing the Consulting Services.
5.2 Deliverables. Deliverables are those created under the Order, including, but not limited to, software, software scripts, routines, libraries or other code, or appliances, methodologies, templates, tools, policies, records, working papers, reports, methodologies, know-how, data, or other intellectual property, written or otherwise, including any derivative works or modifications to the above, whether pre-existing or created during the performance of the Consulting Services and all proprietary and intellectual property rights embedded therein delivered as a result of the Consulting Services as specified under the Order. BMC owns all right, title and interest in the Deliverables. Provided Customer has paid in full for the Consulting Services that resulted in the Deliverables, BMC will deliver the Deliverables to Customer in accordance with the applicable Order. Subject to compliance with the terms of this Agreement and the applicable Order, BMC grants Customer a non-exclusive, non-transferable, non-sublicensable, royalty-free, paid-up license to use, create derivative works of and modify all Deliverables solely for its internal business operations.
5.3 Copyright Notice. Each party agrees to reproduce the copyright notice and any other legend or ownership notice on any copies made under the licenses granted pursuant to this Section 5.
5.4 Retention. Customer acknowledges that BMC provides similar services to other customers and that nothing in this Agreement shall be construed as operating to prevent BMC from carrying on such business. Further BMC may use ideas, concepts, or know-how developed or acquired by BMC during performance of the Consulting Services to the extent by BMC’s personnel as impressions and general learning.
6. LIMITED WARRANTY. BMC warrants that it will perform the Consulting Services in conformance with generally accepted practices within the software services industry and in accordance with the Order. Customer must notify BMC of any breach of this warranty no later than 90 days after completion of the Consulting Services under the Order. Customer’s exclusive remedy and BMC’s entire liability under this warranty shall be for BMC to re-perform any non-conforming portion of the Consulting Services within a reasonable period of time, or if BMC cannot remedy the breach during such time period then refund the portion of the fee attributable to such non-conforming portion of the Consulting Services under the Order. This warranty will not apply to the extent Customer, its contractors or agents have modified any Deliverable, unless otherwise authorized by BMC in writing.
EXCEPT FOR THE EXPRESS WARRANTIES IN THIS AGREEMENT, THE CONSULTING SERVICES AND DELIVERABLES ARE PROVIDED WITH NO OTHER WARRANTIES WHATSOEVER, AND BMC, ITS AFFILIATES AND LICENSORS DISCLAIM ALL OTHER WARRANTIES, INCLUDING, FITNESS FOR A PARTICULAR PURPOSE AND IN THE UNITED STATES AND CANADA, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, AND NON-INFRINGEMENT.
7. INSURANCE. BMC will provide and maintain the following insurance, but only for losses arising out of BMC’s provision of Consulting Services under this Attachment: a) Worker’s Compensation insurance as prescribed by the law of the state applicable to the employees performing the Consulting Services; (b) Employer’s Liability insurance with a limit of $1,000,000 USD for each occurrence; (c) Commercial General Liability insurance with $1,000,000 USD per occurrence combined single limit and $2,000,000 USD general aggregate, including coverage for Products Liability and Completed Operations; (d) Automobile Liability insurance, including coverage for Hired and Non-owned vehicles of $1,000,000 USD for combined single limit for bodily injury and/or property damage; and (e) Professional Liability insurance covering Errors and Omissions in the amount of $1,000,000 USD for each occurrence and in the aggregate associated with Consulting Services performed under this Agreement.
8. MUTUAL INDEMNITY. Each party shall indemnify and hold harmless the other party from all claims, liabilities or expenses for physical damage to real property or tangible personal property and bodily injury, including death, to the extent caused by the negligence, gross negligence or willful misconduct of the indemnifying party’s employees or contractors arising out of this Agreement and while at the Customer’s premises. The foregoing indemnities are contingent upon the party seeking indemnity giving prompt written notice to the indemnifying party of any claim, demand or action, and cooperating with the indemnifying party in the defense or settlement of any such claim, demand or action.
9. INDEPENDENT CONTRACTOR. All of the services performed by BMC under this Agreement will be performed as an independent contractor.
ATTACHMENT C
ON PREMISE SUBSCRIPTIONS ATTACHMENT
to the
BMC CLOUD SERVICES MASTER AGREEMENT
Except as otherwise provided herein, the terms of the Cloud Services Master Agreement (the “Base Agreement”) are incorporated into this On Premise Subscriptions attachment (the “Attachment”). Together, this Attachment and the Base Agreement (as incorporated into this Attachment) are referred to as the “Agreement” for purposes of Customer’s purchase and ongoing use of On Premise Subscriptions, only if On Premise Subscriptions are set forth on an Order referencing the Base Agreement. For purposes of this Agreement, the term “Subscription Services” as defined in the Base Agreement shall be extended to include On Premise Subscriptions. In the event of a conflict between the Base Agreement and the terms of this Attachment, the terms of this Attachment will control for Customer’s purchase of On Premise Subscriptions only. The parties agree that the following Sections of the Base Agreement do not apply to the On Premise Subscriptions provided under this Attachment: Section 3.1 (Access Rights), Section 3.5 (Customer Responsibilities and Restrictions), Section 6 (Limited Warranty) and Section 15 (Verification).
1. DEFINITIONS.
1.1 “Authorized User” means Customer, Customer Affiliate(s), and their employees, consultants, contractors and agents that are bound by the terms and conditions no less restrictive than those contained herein and for whom Customer takes full responsibility. Authorized Users do not include service providers or outsourcers.
1.2 "Documentation" means the technical publications relating to the software, such as release notes, license entitlement descriptions, reference, user, installation, systems administrator and technical guidelines, included with the On Premise Subscription.
1.3 “Licensed Capacity” is the amount of each On Premise Subscription licensed as established in the Order.
1.4 “On Premise Subscription” is the object code of the software and all accompanying Documentation delivered to Customer, including all items delivered by BMC to Customer under Support.
2. LICENSE. Subject to the terms, conditions, payment requirements and restrictions set forth in this Agreement, BMC grants Customer a non-exclusive, non-transferable, non-sub-licensable term license to install in the Territory as defined in an Order, access and use the On Premise Subscription during the term specified on the Order (i) by Authorized User(s), (ii) up to the Licensed Capacity, (iii) for Customer’s and its Affiliates’ internal business operations, (iv) in accordance with the Documentation and the applicable Order, and (v) make a reasonable number of copies of the On Premise Subscription for archival purposes only (collectively a "License"). Affiliates may use and access the On Premise Subscriptions under the terms of this Agreement, and Customer is responsible for its Affiliates compliance with the terms of this Agreement.
3. RESTRICTIONS. Customer will not: (a) copy, operate or use any On Premise Subscription in excess of the applicable Licensed Capacity or other than as set forth in the License above; (b) modify, delete or remove any ownership, title, trademark, patent or copyright notices (“Identification”) from any On Premise Subscription, or copy or partial copy of an On Premise Subscription; (c) disassemble, reverse engineer, decompile or otherwise attempt to derive any On Premise Subscription source code from object code, except to the extent expressly permitted by applicable law despite this limitation without possibility of contractual waiver; (d) distribute, rent, lease, sublicense or provide the On Premise Subscription to any third party; (e) use the On Premise Subscriptions in an outsourcing or service bureau environment on behalf of non-Affiliate third parties, or allow the On Premise Subscriptions to be used by an outsourcing or service bureau provider on Customer’s behalf; (f) provide a third party with the results of any functional evaluation, product vulnerability or performance tests, without BMC's prior written approval; or (g) attempt to disable or circumvent any of the licensing mechanisms within the On Premise Subscription.
4. ON PREMISE SUBSCRIPTION PERFORMANCE WARRANTY. BMC warrants that (a) the On Premise Subscription will perform in substantial accordance with its Documentation for a period of one year from the date of the first Order, (b) BMC has used commercially reasonable efforts consistent with industry standards to scan for and remove software viruses, and (c) other than passwords that may be required for the operation of the On Premise Subscription, BMC has not inserted any code that is not addressed in the Documentation and that is designed to delete, interfere with or disable the normal operation of the On Premise Subscription in accordance with the License. This warranty will not apply to any problems caused by hardware, Computers, or software other than the On Premise Subscription, or misuse of the On Premise Subscription, use of the On Premise Subscription other than as provided by the applicable License, modification of the On Premise Subscription, or claims made either outside the warranty period or not in compliance with the notice and access requirements set forth below. No warranty is provided for additional Licensed Capacity, On Premise Subscription provided pursuant to Support. BMC’s entire liability, and Customer’s exclusive remedy, for breach of the above warranty is limited to: BMC’s use of commercially reasonable efforts to have the On Premise Subscription perform in substantial accordance with its Documentation, or replacement of the non-conforming On Premise Subscription within a reasonable period of time, or if BMC cannot have the On Premise Subscription perform in substantial accordance with its Documentation replace the On Premise Subscription within such time period, then BMC will refund the amount paid by Customer for the License for that On Premise Subscription. Customer’s rights and BMC's obligations in this Section are conditioned upon Customer’s providing BMC during the warranty period (i) full cooperation and access to the On Premise Subscription in resolving any claim; and (ii) written notice addressed to the BMC Legal Department that includes notice of the claim, a complete description of the alleged defects sufficient to permit their reproduction in BMC’s development or support environment, and a specific reference to the Documentation to which such alleged defects are contrary.
EXCEPT FOR THE EXPRESS WARRANTIES IN THIS ATTACHMENT, THE ON PREMISE SUBSCRIPTION IS PROVIDED WITH NO OTHER WARRANTIES WHATSOEVER, AND BMC, ITS AFFILIATES AND LICENSORS DISCLAIM ALL OTHER WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE AND IN THE UNITED STATES AND CANADA, MERCHANTABILITY AND NON-INFRINGEMENT. BMC DOES NOT WARRANT THAT THE OPERATION OF THE ON PREMISE SUBSCRIPTION WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT ALL DEFECTS CAN BE CORRECTED.
5. DELIVERY. For On Premise Subscriptions that are delivered electronically, upon request from BMC, Customer agrees to provide BMC with documentation supporting that the designated On Premise Subscription was received electronically. If Customer accepts any On Premise Subscription in a non-electronic format, there may be an additional charge and it is the sole responsibility of Customer to bear any sales/use tax obligation, penalties, and interest. All On Premise Subscriptions are licensed FCA (“Free Carrier” as per Incoterms 2000) shipping point. The On Premise Subscriptions are accepted on the date BMC delivers the On Premise Subscription to the Customer either physically or by providing access codes for electronic download, whichever occurs first, however, such acceptance will not affect the On Premise Subscription Performance Warranty provided in this Agreement.
6. AUDIT. If requested by BMC, and not more than once a year, Customer agrees to deliver to BMC, within 30 days of such request, as specified by BMC either (a) periodic product usage reports generated from specific products or (b) written periodic product usage reports, to be provided solely when the product does not generate reports (“Report”). Additionally, if requested by BMC not more than once a year and upon at least ten days prior written notice to Customer, Customer agrees to allow BMC to perform an audit (“Audit”) to ensure compliance with the terms of this Agreement at the locations where the On Premise Subscriptions are installed, during normal business hours. to ensure compliance with the terms of this Agreement. Customer agrees to cooperate during any such Audit and to provide reasonable access to its information and systems.
Effective November 29th 2022 to February 3rd 2023
DownloadTable of Contents
BMC CLOUD SERVICES MASTER AGREEMENT
THIS CLOUD SERVICES MASTER AGREEMENT (“AGREEMENT”) GOVERNS YOUR FREE TRIAL, IF ANY, OF THE SUBSCRIPTION SERVICES.
IF YOU PURCHASE THE SUBSCRIPTION SERVICES, THIS AGREEMENT WILL ALSO GOVERN YOUR PURCHASE AND ONGOING USE OF THE SUBSCRIPTION SERVICES.
BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SUBSCRIPTION SERVICES.
You may not access the Subscription Services if you are BMC’s direct competitor, except with BMC’s prior written consent. In addition, you may not access the Subscription Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.
This Agreement was last updated on November 29, 2022. This Agreement is between the entity or individual entering into this Agreement (“Customer”) and the BMC Contracting Entity for the applicable region as described in Section 12 (“BMC”). It is effective between Customer and BMC as of the date of your acceptance of this Agreement. If Customer has a fully executed BMC Cloud Services Master Agreement then such fully executed BMC Cloud Services Master Agreement supersedes and replaces any clickwrap or click-through agreements (or other similar agreements) that Customer may be required to accept as a part of accessing or using the Subscription Services. For Customer’s convenience, prior versions of this Agreement are available at https://www.bmc.com/legal/csma.html.
FREE TRIAL.
BMC may make the Subscription Services available to Customer on a trial basis free of charge. If BMC offers Customer a free trial, it will run until the earlier of (a) the end of the trial period stated on the trial registration web page or (b) the start date of any Order for purchase of the Subscription Services. Additional trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.
ANY DATA CUSTOMER ENTERS INTO THE SUBSCRIPTION SERVICES, AND ANY CUSTOMIZATIONS MADE TO THE SUBSCRIPTION SERVICES BY OR FOR CUSTOMER, DURING A FREE TRIAL MAY BE PERMANENTLY LOST.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THE AGREEMENT, DURING ANY FREE TRIAL PERIOD THE SUBSCRIPTION SERVICES ARE PROVIDED “AS IS” WITH NO WARRANTY.
1. DEFINITIONS.
1.1 “Affiliate” is an entity that controls, is controlled by or shares common control with BMC or Customer, where such control arises from the legal power to direct or cause the direction of the general management and policies of the company, partnership or legal entity.
1.2 "Capacity” means the amount of access to the Subscription Services purchased as specified in an Order, which is counted in accordance with the Unit of Measure described in the Order.
1.3 “Consulting Services” means the consulting, implementation, training or other services provided under the terms of Attachment B (Consulting Services) and as further described under the applicable Order.
1.4 “Customer Content” means all electronic data or information (a) submitted to the Subscription Services by Customer, a third party on behalf of Customer, or as directed by Customer or (b) collected, processed or returned by the Subscription Services .
1.5 “Order” means (i) the agreed ordering document for the purchase of the Subscription Services, (ii) that is subject to this Agreement, and (iii) that identifies the terms of the purchase and fees to be paid. The term “Order” includes Customer’s online registration for and purchase of the Subscription Services, If any.
1.6 "Subscription Services" means the generally available hosted service which packages web-based access and the right-to-use the supported applications, installed agents and associated reference, user and technical guides.
1.7 “User Guide” means the online help, functional guide and technical specifications for the Subscription Services, as updated by BMC from time to time.
2. SCOPE. Subject to the terms of this Agreement, Customer may purchase and BMC will provide Customer with access to the Subscription Services as set forth in this Agreement and the applicable Order. Subject to the Attachments to this Agreement, Customer may also purchase BMC Platform Services, BMC Consulting Services and BMC On Premise Subscription Services. In the event of a direct conflict between any Order and the terms of this Agreement, the terms of the Order will control only if the Order is executed by an authorized representative of each party. Each Order is deemed to be a discrete contract, separate from each other Order, unless expressly stated otherwise therein. Orders may be entered under this Agreement by and between (a) BMC or an Affiliate of BMC; and (b) Customer or an Affiliate of Customer. With respect to an Order, the terms “BMC” and “Customer” as used in this Agreement will be deemed to refer to the entities that execute that Order, the Order will be considered a two party agreement between such entities, and BMC will separately invoice the Customer named in the Order for the associated fees. Orders may also be placed via a BMC authorized reseller. Neither execution of this Agreement, nor anything contained herein, shall obligate either party to enter into any Orders.
3. ACCESS TO SUBSCRIPTION SERVICES.
3.1 Access Rights. Subject to Customer’s payment of applicable fees and to the terms of this Agreement, BMC will provide Customer with worldwide access to the Subscription Services in accordance with the Order (i) up to the Capacity, (ii) for Customer’s and its Affiliates’ internal business operations, (iii) in accordance with the User Guide and the applicable Order. Customer may exercise its rights under this Section 3.1 through its employees, consultants, contractors, agents, and Affiliates (all, “Users”).
3.2 BMC Subscription Services Support. BMC will provide the support described at http://www.bmc.com/support/review-policies (“Support”) to Customer for the Subscription Services.
3.3 Use of Subcontractors. Customer acknowledges and agrees that BMC uses subcontractors to provide portions of the Subscription Services. BMC will provide a list of its current subcontractors upon Customer’s written request. BMC is responsible for the performance of all subcontractors providing any of the Subscription Services.
3.4 Compliance with Laws. Each party shall comply with all applicable laws in the performance of its obligations under this Agreement.
3.5 Customer Responsibilities and Restrictions.
(a) Customer will (i) maintain the confidentiality of all authentications and passwords for the Subscription Services and immediately notify BMC if it becomes aware that an unauthorized party has gained access such authentications and passwords, (ii) be responsible for use of the Subscription Services by its Users in compliance with this Agreement, (iii) prevent unauthorized access to, or use of, the Subscription Services, and notify BMC promptly of any such unauthorized access or use, and (iv) be responsible for obtaining its own Apple Push Notification certificate, if the Subscription Services are used to manage devices running iOS. Customer is responsible for the creation and implementation of a privacy policy and end user agreement, if applicable, which will set forth the guidelines of how Customer uses and protects the data and personal information of its Users, and how said Users may utilize the Subscription Services.
(b) Customer will not (i) modify, copy or create derivative works based on the Subscription Services; (ii) create Internet “links” to or reproduce any content forming part of the Subscription Services, other than for its own internal business purposes; (iii) disassemble, reverse engineer, or decompile the Subscription Services or part thereof, except to the extent expressly permitted by applicable law despite this limitation without possibility of contractual waiver; (iv) interfere with or disrupt the integrity or performance of the Subscription Services; (v) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortuous material, or send or store material in violation of any third party’s privacy rights via the Subscription Services; (vi) send or store viruses or malicious code via the Subscription Services; (vii) attempt to gain unauthorized access to the Subscription Services or its related software, systems, platforms or networks, including any form of security and/or penetration testing; (viii) use any components provided with the Subscription Services separately from the Subscription Services; or (ix) distribute, rent, lease or provide the Subscription Services to any third party or use it in a service bureau, outsourcing environment, or for the processing of third party data.
4. FEES AND PAYMENT.
4.1 Fees. The fees payable for the Subscription Services and the payment period for such fees will be set forth in and paid in accordance with the Order. All payments are due within 30 days of the date of the invoice.
4.2 Late Fees. Late balances may, at BMC’s sole election, bear interest at a rate equal to the lesser of 1% per month or the maximum amount permitted by law.
4.3 Taxes. Customer will pay taxes imposed in connection with the fees paid for the Subscription Services, which are exclusive of these taxes.
4.4 Solution Providers. With regard to Subscription Services acquired by Customer through an authorized reseller ("Solution Provider") of BMC, notwithstanding anything to the contrary in sections 4.1 and 4.2 above, Customer will have no direct payment obligations to BMC for such fees.
5. TERM, SUSPENSION AND TERMINATION.
5.1 Term. This Agreement begins on the Effective Date and will remain in effect unless terminated pursuant to Section 5.2 below, regardless of the billing frequency selected in the Order.
5.2 Termination.
(a) Termination for Convenience. Customer may terminate this Agreement by providing BMC with at least 30 days prior written notice; provided, however, such termination will have no effect on Orders in effect at the time of such termination. Orders may not be terminated for convenience unless otherwise specified therein. Customer may notify BMC of its intent to terminate by emailing BMC at order_services@bmc.com.
(b) Termination for Cause. Either party may terminate this Agreement and/or an Order for cause upon 30 days’ written notice of a material breach to the other party if such breach remains uncured at the expiration of such period. In the event Customer terminates the Agreement and an Order for BMC’s material breach, BMC will refund the amount paid by Customer to BMC for the Subscription Services on such Order, pro-rated from the date of the notice of the termination.
5.3 Suspension of Subscription Services for Cause. In addition to its other rights and remedies, BMC reserves the right, without liability to Customer, to suspend any and all access to the Subscription Services if Customer commits a material breach of this Agreement and fails to cure the same within 30 days from Customer’s receipt of written notice of such breach from BMC. Provided however, that BMC may immediately suspend any and all access to the Subscription Services without any cure period if BMC determines in good faith that Customer’s material breach of the Agreement will cause damage to BMC, the Subscription Services, or any other customer.
5.4 Effects of Termination. Upon termination or expiration of any Order or this Agreement, all rights and Licenses granted thereunder will terminate and Customer will make no further use of the Subscription Services. No termination will relieve the Customer of the obligation to pay any fees accrued or payable to BMC pursuant to any Order. Upon written request by Customer made within 45 days after the effective date of termination, BMC will make the Customer Content available to Customer for retrieval in an industry standard format. After such 45-day period, BMC shall have no obligation to maintain any Customer Content and will thereafter delete Customer Content. Any terms in this Agreement which by their nature extend beyond termination of this Agreement will remain in effect until fulfilled.
5.5 Termination Assistance. Upon Customer’s request and upon (a) the expiration of an Order or (b) the termination of an Order for any reason other than Customer’s breach, BMC shall perform such services as the parties in good faith agree are reasonably necessary to facilitate the orderly transition of the Services to the successor service provider or to the Customer. BMC will provide any such services under the terms and conditions of the Agreement, and subject to payment of the then-current fees and charges, generally applicable to BMC’s performance of such services, as agreed between the parties at such time.
6. LIMITED WARRANTY.
6.1 Warranties and Limited Remedies. BMC warrants to Customer that:
(a) the online availability of the Subscription Services will be maintained in accordance with the service levels attached to the applicable Order, if any (the “Service Level Agreement” or “SLA”). Customer’s exclusive remedy and BMC’s sole obligation for breach of the warranty in this Section 6.1(a) is described in the Service Level Agreement;
(b) the Subscription Services (i) will perform in substantial accordance with the then-current on-line User Guide available via the Subscription Services and (ii) will be performed in a manner consistent with industry standards reasonably applicable to the provision thereof. Customer’s exclusive remedy and BMC’s sole obligation for breach of the warranty in this Section 6.1(b) will be BMC’s use of commercially reasonable efforts to have the Subscription Services perform in substantial accordance with the User Guide, or replace the non-conforming portion of the Subscription Services within 60 days from the written notice of claim, or if BMC cannot have the Subscription Services perform in substantial accordance with the User Guide or replace the Subscription Services within such time period, then Customer may terminate the non-performing Subscription Services, and upon such termination BMC will refund the amount paid by Customer for the Subscription Services, pro-rated from the date of the notice of the claim. Customer’s rights and BMC’s obligations in this Section 6.1(b) are conditioned upon Customer’s providing BMC with written notice of the claim, a complete description of the alleged defects and a specific reference to the User Guide to which such alleged defects are contrary; and
(c) In connection with the Subscription Services (i) it has used commercially reasonable efforts consistent with industry standards to scan for and promptly remove any software viruses for no charge and (ii) it has not inserted any Disabling Code. “Disabling Code” means computer code inserted by BMC, that is not addressed in the User Guide, and that is designed to expose data, delete, interfere with, and/or disable the normal operation of the Subscription Services. This Disabling Code warranty does not apply to BMC passwords necessary for the operation of the Subscription Services, or for any use by Customer outside the scope of this Agreement.
6.2 Disclaimer. CUSTOMER ACKNOWLEDGES THAT, EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, BMC, ITS AFFILIATES AND LICENSORS MAKE NO WARRANTY, EXPRESS, IMPLIED OR STATUTORY WITH RESPECT TO THE SUBSCRIPTION SERVICES OR USE THEREOF. BMC, ITS AFFILIATES AND LICENSORS HEREBY EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY THAT SUBSCRIPTION SERVICES WILL BE UNINTERRUPTED, ERROR FREE OR WITHOUT DELAY, AND THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INTERFERENCE, NON-INFRINGEMENT AND INFORMATION CONTENT.
7. PROPRIETARY RIGHTS AND CONFIDENTIALITY.
7.1 Proprietary Rights. BMC, its Affiliates or licensors retain all right, title and interest to the Subscription Services and all related intellectual property and proprietary rights. The Subscription Services are protected by applicable copyright, trade secret, industrial and other intellectual property laws. BMC owns all right, title and interest in all software, programming, documentation, templates, questionnaires, methodologies, models, charts, reports, ideas, features, content, functions, graphics and any other items provided as part of the Subscription Services (“ Service Items”) and access to and use of the relevant Service Items will be governed by the terms of this Agreement. Subject to (i) BMC’s or its licensor’s ownership of any Service Items and (ii) section 3.5 (b)(i) of the Agreement, Customer owns all rights, title, and interest in Customer Applications, including all proprietary and intellectual property rights. BMC reserves any rights not expressly granted to Customer. Customer shall not access the Subscription Services in order to build a competitive product or service or copy any ideas, features, functions or graphics of the Subscription Services. “ Confidential Information” means all proprietary or confidential information that is disclosed to the recipient (“Recipient”) by the discloser (“ Discloser”), and includes, among other things (i) any and all information relating to products or services provided by a Discloser, its customer-related and financial information, software code, BMC product vulnerabilities, flow charts, techniques, specifications, development and marketing plans, strategies, and forecasts; (ii) as to BMC, and its licensors, the Subscription Services and Service Items; and (iii) the terms of this Agreement, including without limitation, pricing information. Confidential Information does not include information that Recipient can show: (a) was rightfully in Recipient’s possession without any obligation of confidentiality before receipt from the Discloser; (b) is or becomes a matter of public knowledge through no fault of Recipient; (c) is rightfully received by Recipient from a third party without violation of a duty of confidentiality; or (d) is or was independently developed by or for Recipient. Recipient may not disclose Confidential Information of Discloser to any third party or use the Confidential Information in violation of this Agreement. The Recipient (i) will exercise the same degree of care and protection with respect to the Confidential Information of the Discloser that it exercises with respect to its own Confidential Information and (ii) will not, either directly or indirectly, disclose, copy, distribute, republish, or allow any third party to have access to any Confidential Information of the Discloser. Notwithstanding the foregoing, Recipient may disclose Discloser’s Confidential Information to Recipient’s employees and agents who have need to know provided that such employees and agents have legal obligations of confidentiality substantially the same (and in no case less protective) as the provisions of this Agreement.
7.2 Notification Obligation. If the Recipient becomes aware of any unauthorized use or disclosure of Discloser’s Confidential Information, then Recipient will promptly and fully notify the Discloser of all facts known to it concerning such unauthorized use or disclosure. In addition, if the Recipient or any of its employees or agents are required (by oral questions, interrogatories, requests for information, or documents in legal proceedings, subpoena, civil investigative demand, or other similar process) to disclose any of Discloser’s Confidential Information, the Recipient will not disclose the Discloser’s Confidential Information without providing the Discloser with commercially reasonable advance prior written notice to allow Discloser to seek a protective order or other appropriate remedy or to waive compliance with this provision. In any event, the Recipient will exercise its commercially reasonable efforts to preserve the confidentiality of the Discloser’s Confidential Information, including, without limitation, cooperating with Discloser to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded to the Confidential Information.
7.3 Customer Content. As between BMC and Customer, Customer owns all rights, title and interest in and to Customer Content. Customer Content is deemed Confidential Information under this Agreement. BMC will use the Customer Content only as necessary to provide the Subscription Services in accordance with this Agreement. At any time during the term of the Subscription Services, Customer may request copies of all Customer Content from the Subscription Services. Customer is responsible for complying with all legal and contractual requirements, including its agreements with third parties. With the exception of Customer Content collected by the Subscription Services, Customer is solely responsible for the transmission of Customer Content to BMC and to the Subscription Services. Customer is solely responsible for the encryption of any Customer Content during such transmission.
7.4 Suggestions. Customer agrees that BMC shall have a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into any BMC products or services any suggestions, enhancement requests, recommendations or other feedback provided by Customer relating to the Subscription Services.
8. DISCLAIMER OF DAMAGES AND LIMITS ON LIABILITY.
8.1 DISCLAIMER OF DAMAGES. NEITHER PARTY OR ITS AFFILIATES OR LICENSORS ARE LIABLE FOR ANY, SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES RELATING TO OR ARISING OUT OF THIS AGREEMENT OR THE SUBSCRIPTION SERVICES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST COMPUTER USAGE TIME, AND DAMAGE TO, OR LOSS OF USE OF, DATA), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND IRRESPECTIVE OF ANY NEGLIGENCE OF A PARTY OR WHETHER SUCH DAMAGES RESULT FROM A CLAIM ARISING UNDER TORT OR CONTRACT LAW. THE FOREGOING LIMITATIONS DO NOT APPLY TO EACH PARTY’S RESPONSIBILITIES IN SECTION 9, INFRINGEMENT BY A PARTY OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, GROSS NEGLIGENCE, WILLFUL MISCONDUCT, DEATH OR BODILY INJURY, ACTS OF FRAUD, NOR ANY LIABILITY WHICH MAY NOT BE EXCLUDED OR LIMITED BY LAW.
8.2 LIMITS ON LIABILITY. NEITHER PARTY OR ITS AFFILIATES OR LICENSORS SHALL HAVE AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SUBSCRIPTION SERVICES, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEEDING THE AMOUNTS ACTUALLY PAID BY AND PAYABLE FROM CUSTOMER FOR THE SUBSCRIPTION SERVICES GIVING RISE TO LIABILITY PURSUANT TO THE ORDER(S) THAT ARE IN EFFECT AS OF THE DATE THE LIABILITY FIRST AROSE. THE FOREGOING LIMITATIONS DO NOT APPLY TO EACH PARTY’S RESPONSIBILITIES IN SECTION 9, INFRINGEMENT BY A PARTY OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, GROSS NEGLIGENCE, WILLFUL MISCONDUCT, DEATH OR BODILY INJURY, ACTS OF FRAUD, NOR ANY LIABILITY WHICH MAY NOT BE EXCLUDED OR LIMITED BY LAW.
9. INFRINGEMENT CLAIMS.
9.1 Indemnification by BMC . If a third party asserts a claim against Customer asserting that Customer’s use of the Subscription Services, including Platform Services, Deliverables and Licenses as defined in the Attachments to this Agreement, in accordance with this Agreement violates that third-party’s patent, trade secret or copyright rights (“Infringement Claim”), then BMC will, at its own expense: (a) defend or settle the Infringement Claim; and (b) indemnify Customer for any damages finally awarded against Customer based on infringement by the Subscription Services or Deliverables, including court costs and reasonable attorney’s fees. If BMC believes the Subscription Services may violate a right, then BMC will, at its expense: (a) modify the Subscription Services, or (b) procure the right to continue using the Subscription Services, and if (a) or (b) are not commercially reasonable, terminate Customer's right to use the Subscription Services and issue a pro-rata refund for the unexpired pre-paid portion of such Subscription Services.
9.2 Indemnification by Customer. Subject to the terms of this Agreement, if a third party asserts a claim against BMC asserting that the (i) Customer Content, (ii) Customer Applications as defined in Attachment A, (iii) Customer Property as defined in Attachment B or (iv) Customer’s use of the Subscription Services in violation of this Agreement violates that third-party’s patent, trade secret or copyright rights (“ Claim”), Customer will, at its own expense: (a) defend or settle the Claim; and (b) indemnify BMC for any damages finally awarded against BMC based on the Claim, including court costs and reasonable attorney’s fees.
9.3 Indemnity Process. Neither party’s obligations under this Section 9 will apply if: (a) the indemnifying party’s legal department does not receive prompt, detailed written notice of the Infringement Claim/Claim from the party being indemnified, (b) the indemnifying party is not able to retain sole control of the defense of the Infringement Claim/Claim and all negotiations for its settlement or compromise, or (c) the indemnifying party does not receive all reasonable assistance from the party being indemnified. Neither party will bind the indemnified party to a monetary obligation in a settlement or compromise, or make an admission on behalf of the indemnified party, without obtaining that party’s prior consent.
9.4 THIS SECTION 9 CONTAINS EACH PARTY'S EXCLUSIVE REMEDIES AND THE INDEMNIFYING PARTY'S SOLE LIABILITY FOR INFRINGEMENT CLAIMS/CLAIMS, RESPECTIVELY.
10. EXPORT CONTROLS. Both parties agree to comply with applicable export regulations, including but not limited to U.S. Export Administration Regulations and the OFAC embargoes and sanctions lists. More information on BMC’s export compliance program may be found here: https://www.bmc.com/legal/export-compliance.html.
11. GOVERNING LAW AND DISPUTE RESOLUTION. Any controversy, dispute or claim arising out of or relating to this Agreement, or to the formation, interpretation, breach, termination, or validity thereof (each, a “Controversy”) will be resolved as follows:
(i) UNITED STATES. If both parties to this Agreement are entities incorporated under the law of any state in the United States, the Controversy shall be tried in either state or federal court located in Houston, Texas and the laws of the State of Texas shall govern. Both parties hereby submit to the exclusive jurisdiction of the courts in Houston, Texas and waive all defenses based on forum non conveniens. Notwithstanding the foregoing, if Customer is a state or local governmental entity or higher education institution and legally required to apply state law, then Customer’s state law will apply to the Controversy, without reference to conflict of law principles.
(ii) CANADA. If Customer is located in Canada (outside Quebec), then the law of the Province of Ontario law apply, without reference to conflict of law principles. If Customer is located in Quebec, then the laws of the Province Quebec will apply, without reference to conflict of law principles.
(iii) EMEA. If both parties to this Agreement are entities incorporated in countries in the Europe, Middle East, or Africa regions, the Controversy shall be tried in the District Court located in Amsterdam, the Netherlands and the substantive laws of the Netherlands shall govern. Both parties hereby submit to the exclusive jurisdiction of the District Court in Amsterdam, the Netherlands and waive all defenses based on forum non conveniens.
(iv) ASIA PACIFIC. If both parties to this Agreement are entities incorporated in countries in the Asia Pacific region, the arbitration shall be held in Singapore under the then-applicable rules of the Singapore International Arbitration Centre and the substantive laws of Singapore will govern.
(v) OTHER REGIONS. In all other instances, the arbitration shall be held in New York City, New York, under the then-applicable international rules of the American Arbitration Association and the substantive laws of the State of Texas will govern.
For all arbitrations conducted hereunder: (a) the arbitration shall be conducted in English; (b) the relevant arbitral institution shall determine the number of arbitrators, but any Controversy in which the amount in dispute is greater than $10 million USD shall be decided by three arbitrators, with each party having the right to select one arbitrator; (c) the costs of such arbitration shall be borne equally, pending the arbitrator’s award; (d) the arbitration award rendered shall be final and binding on the parties, shall not be subject to appeal to any court and shall be enforceable in any court having jurisdiction over the parties; (e) the arbitration proceedings, award and pleadings shall all be confidential, unless disclosure of particular information is required for purposes of enforcing/challenging the award or to meet local securities law requirements; and (f) the party prevailing in arbitration shall be entitled to recover its reasonable attorneys’ fees and the necessary costs incurred in connection with the arbitration.
The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. Nothing in this Agreement shall be deemed as preventing either party from seeking immediate injunctive relief from any court having jurisdiction over the parties and the subject matter of the dispute.
12. The following BMC contracting entities apply to this Agreement:
Region | Contracting Entity | Address of Contracting Entity |
United States and Latin America South (not a specified Central or South America country below) | BMC Software, Inc. | 2103 CityWest Boulevard, Houston, Texas 77042 |
Canada | BMC Software Canada Inc. | 50 Minthorn Boulevard, Suite 200 Markham, Ontario L3T 7X8 Canada |
EMEA (Europe, Middle East and Africa) | BMC Software Distribution B.V. | Vision Plaza West, 2nd floor, Boeingavenue 220, 1119PN Schiphol-Rijk, The Netherlands |
Brazil | BMC Brasil Software Ltda. | Avenida Rebouças n° 3.970 e Avenida Dra. Ruth Cardoso, n° 8.501 Condomínio Eldorado Business Tower, 22° andar, Pinheiros, São Paulo – SP, CEP: 05425-070 |
Mexico | BMC Software Distribution de México, S.A. de C.V. | Calle Volcán, No.150, Piso 2, Oficina 202, Col. Lomas de Chapultepec V Sección, C.P., 11000, Alcaldía Miguel Hidalgo, Ciudad de México |
Argentina | BMC Software de Argentina S.A. | Ing. Butty 220 - Piso 18, Catalinas Plaza Buenos Aires, República de Argentina, C1001A |
S.E.A (Southeast Asia), Australia, New Zealand, Hong Kong, Taiwan | BMC Software Ireland Unlimited Company | Building 3, Cherrywood Business Park, Bray Road, Loughlinstown, CO. Dublin, D18 TF72 |
China | BMC Software (China) Limited | Room 502, Level 5, Tower W1, The Towers, Oriental Plaza, No. 1 East Chang An Ave., Dong Cheng Dist., Beijing 100738, China |
Japan | BMC Software K.K. | Harmony Tower 24th Floor, 1-32-2 Honcho, Nakano-ku, Tokyo, 164-8721 |
Korea | BMC Software Korea Ltd | 24th Fl., ASEM Tower, 1517, Yeongdong-daero,Gangnam-gu, Seoul 135-798, Korea South |
13. U.S. GOVERNMENT END USER RIGHTS. This Section applies only to acquisitions of the commercial Subscription Services subject to this Agreement by or on behalf of the United States Government, or by any prime contractor or subcontractor (at any tier) under any contract, grant, agreement or other activity with the United States Government. When Subscription Services are delivered or provided to the United States Government, the United States Government agrees that this commercial license Agreement and the Subscription Services governed by this Agreement are defined in accordance with and qualify as “commercial items” consisting of “commercial computer software” and “commercial computer software documentation” as outlined in FAR 12.211, FAR 12.212 and DFARS 227.7202-3, as applicable. The terms and conditions of this Agreement shall pertain to the United States Government’s use (including documentation or technical data), duplication, and disclosure of the Subscription Services, and shall supersede any conflicting contractual terms and conditions”.
14. DATA PROTECTION. The processing of Customer Content under this Agreement is governed by the BMC Data Processing Agreement set forth on the Order.
15. VERIFICATION. Customer agrees that BMC or its agent may monitor the Subscription Services to ensure Customer’s compliance with the terms of this Agreement. If such monitoring reveals that Customer has exceeded the Capacity for the Subscription Services, BMC may work with Customer to seek to reduce Customer’s usage so that it conforms to the Capacity limit for such Subscription Service. If, notwithstanding BMC’s efforts, Customer is unable or unwilling to abide by the Capacity limits for the Subscription Services, Customer will execute an Order for additional Capacity of such Subscription Services promptly upon BMC’s request.
16. NOTIFICATIONS. Any general notifications regarding technical matters from BMC to Customer will be sent to the Customer contact stated in the Customer Technical Contact Information section of the Order. The Customer contact in the Order has been assigned by Customer as the Customer contact for operational issues that may arise. Customer shall notify BMC of any change to the Customer contact details in writing, which may include via e-mail.
17. CONDUCTING BUSINESS WITH HONESTY AND INTEGRITY. BMC is committed to conducting business with honesty and integrity. BMC’s Code of Conduct set forth in https://www.bmc.com/legal/code-of-conduct.html governs the conduct of all officers, directors, and employees of BMC, and contingent workers and business partners acting on BMC’s behalf. BMC demonstrates its commitment to environmental stewardship by its global accreditation for ISO 14001:2015.
18. MISCELLANEOUS TERMS. The parties are independent contractors and this Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties. Customer will receive system notifications from BMC and its licensors, if applicable (i.e. planned downtime notices, etc). This Agreement, including the Attachments and Orders constitutes the entire agreement between Customer and BMC and supersedes any prior or contemporaneous negotiations or agreements, whether oral or written concerning the Subscription Services. There are no representations, promises, warranties, covenants, or undertakings between the parties other than those expressly set forth in this Agreement. There are no third-party beneficiaries to this Agreement; Customer is not entering into a contractual relationship with BMC’s licensors and BMC’s licensors have no liability to Customer. Except as provided in Section 2 above, no modification or waiver of any provision hereof will be effective unless made in a writing signed by both BMC and Customer. Customer has the right to assign this Agreement and all Orders in whole to an Affiliate, or to a successor in connection with (i) the sale of all or substantially all of the assets of that party or (ii) a merger by operation of law, by providing written notice to BMC. The assignee may not be a known direct competitor of BMC. The successor entity or Affiliate must agree in writing with BMC (in advance of the assignment) to be bound by the terms of this Agreement. Any Customer transfer or assignment except as expressly authorized above will be null and void. Should any provision of this Agreement be invalid or unenforceable, the remainder of the provisions will remain in effect. Any additional or conflicting terms of any Customer purchase order are rejected by BMC and do not apply. The Subscription Services may contain hyperlinks to websites controlled by parties other than BMC. BMC is not responsible for and does not endorse the content or accept any responsibility for Customer’s use of these websites. Customer should refer to the policies posted by other websites regarding privacy and other topics regarding data privacy before using them. In compliance with all applicable laws and for internal purposes only, BMC may compile and use de-identified, aggregate or statistical information related to Customer’s use of the BMC Subscription Services for the purposes of enhancing and improving the BMC Subscription Services, developing new products and services, and for other development, diagnostic, statistical and corrective purposes, provided that such information (a) does not incorporate Customer’s personally identifiable information or Personal Data and (b) does not identify or describe the Customer. Les parties exigent que la présente convention ainsi que les documents qui s’y rattachent soient rédigés en anglais.
Attachments incorporated into Agreement |
Attachment A – Platform Services Attachment |
Attachment B – Consulting Services Attachment |
Attachment C – On Premise Subscription Services Attachment |
PLATFORM SERVICES ATTACHMENT
to the
BMC CLOUD SERVICES MASTER AGREEMENT
Except as otherwise provided herein, the terms of the Cloud Services Master Agreement (the “Base Agreement”) are incorporated into this Platform Services attachment (the “Attachment”). Together, this Attachment and the Base Agreement (as incorporated into this Attachment) are referred to as the “Agreement” for purposes of Customer’s access and use of Platform Services, only if the Platform Services are set forth on an Order referencing the Base Agreement. For purposes of this Agreement, the term “Subscription Services” as defined in the Base Agreement shall be extended to include the Platform Services. In the event of a conflict between the Base Agreement and the terms of this Attachment, the terms of this Attachment will control for Customer’s access and use of the Platform Services only.
1. SCOPE. Subject to the terms of this Agreement, BMC will provide Customer with access to the Platform Service named in the applicable Order.
2. DEFINITIONS.
2.1 “Application” is the object code, its definitional structures, and data created to fulfill a particular purpose, which runs on the Platform Services. An Application may also include its documentation and User Guide.
2.2 “Customer Applications” means Applications that are owned or licensed by Customer, and which run on the Platform Services.
2.3 “Development Platform” means a BMC provided development platform which allows Customer to develop a custom application to run on the Platform Services. The Development Platform is a separate environment from the Platform Services.
2.4 “Platform” means the generally available BMC-provided PaaS platform and its capabilities to run Applications.
2.5 “Platform Services” means the specific Platform Services identified in the Order.
3. BMC PLATFORM SERVICES.
3.1 BMC Platform Services Support. BMC will provide Support only for Platform Services. Customer is responsible for its own support for Customer Applications.
4. CUSTOMER APPLICATIONS.
4.1 The terms contained in this section 4 apply only to Orders for Platform Services entitling Customers to develop and deploy Customer Applications onto the Platform Services. Any Customer Applications that run on the Platform Services are hereby excluded from the defined terms “Subscription Services” and “Platform Services”.
4.2 Development Platform. Customer may utilize the Development Platform to create an Application to run on the Platform Services. Customer’s use of the Development Platform is governed by the terms of this Agreement subject to the restrictions set forth in sections 4.2.1 to 4.2.6 below. Customer’s development of an Application must meet the best practices development guidelines set forth in the User Guide. Each Customer Application shall at all times materially conform to policies and best practices set forth in the User Guide. Prior to the deployment of any Customer Applications in a production or non-production environment of the Platform Services, Customer must conduct security and functional tests of each Customer Application and submit the results of such tests to BMC for review. BMC reserves the right to reject Customer’s deployment request of a Customer Application based on the results of Customer’s security and functional tests. Additionally, BMC reserves the right, during the term of this Agreement, to request Customer conduct additional security and functional tests and provide the results of said tests to BMC for review. Notwithstanding the foregoing, Customer must ensure that at all times Customer Applications are secure.
4.2.1 Scope of use. The right to access and use the Development Platform is granted solely for the purpose of performing non-production application development work on the Development Platform.
4.2.2 Restrictions of use. Customer agrees not to:
(i) use the Development Platform to (1) process production data or for any other production purposes, including but not limited to publishing digital applications, or (2) distribute applications;
(ii) use the Development Platform with data or information that has not been backed up; or
(iii) modify, delete or remove any ownership, title, trademark, patent or copyright notices.
4.2.3 Customer Responsibilities. Customer is responsible for acquiring all necessary and required licenses for the use of any third party software, source code and/or libraries Customer may use as part of its development with the Development Platform. In addition to its other rights and remedies, BMC reserves the right, without liability to Customer, to immediately, at any time and for any reason refresh Customer’s instance of the Development Platform. Upon BMC’s refreshing of Customer’s instance of the Development Platform, Customer may lose all Customer Content submitted to or stored in said instance of the Development Platform. Upon expiration or termination of the applicable Order, BMC may destroy any Customer Content submitted to or stored therein. Customer is responsible for backing up any development work with Customer Content outside of the Development Platform.
4.2.4 Open Source. Customer may not use any software, library, utility, tool, or other computer or program code (“Code”) with the Subscription Services that in any way that would (i) weaken BMC’s intellectual property rights in the Services, or (ii) require the Subscription Services to become or be disclosed or distributed as Open Source Software. For purposes of this Section, “Open Source Software” means any Code that is substantially similar to, (A) the Affero General Public License, (B) the GNU General Public License (GPL) or Lesser/Library GPL (LGPL), (C) the Artistic License (e.g. PERL), (D) the Mozilla Public License, (E) the Netscape Public License, (F) the Sun Community Source License (SCSL), (G) the Sun Standards License (SISL), or (H) any “copyleft” license, or any other license that requires as a condition of use, reproduction, modification, or distribution that such Code or other software or computer code distributed with it: (1) be disclosed or distributed in source code form; (2) be licensed for the purpose of creating derivative works; (3) be licensed under terms that allow reverse engineering, reverse assembly, or disassembly of any kind; (4) be subject to a patent non-assert or royalty-free patent license; or (iv) be redistributable at no charge.
4.2.5 No Support. BMC, its affiliates, or licensors do not provide Support for the Development Platform.
4.2.6 Disclaimer of Warranty, Limitation of Liability and Exclusive Remedy. Notwithstanding anything to the contrary in the applicable Order or this Agreement:
a. THE DEVELOPMENT PLATFORM IS PROVIDED “AS IS” WITHOUT ANY WARRANTY OF ANY KIND WHATSOEVER. BMC, ITS AFFILIATES AND LICENSORS DO NOT WARRANT THAT THE DEVELOPMENT PLATFORM WILL SATISFY CUSTOMER’S REQUIREMENTS, THAT THE DEVELOPMENT PLATFORM IS WITHOUT DEFECT, VIRUS OR ERROR FREE, WITHOUT DELAY, OR THAT THE OPERATION OF THE DEVELOPMENT PLATFORM WILL BE UNINTERUPTED. BMC, ITS AFFILIATES AND LICENSORS DISCLAIM ANY AND ALL REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, MADE WITH RESPECT TO THE DEVELOPMENT PLATFORM, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INTERFERENCE AND INFORMATION CONTENT; AND
b. NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY, FOR ANY CLAIM, LOSS, DAMAGE OR EXPENSE FOR INDIRECT, SPECIAL, CONSEQUENTIAL, PUNITIVE OR INCIDENTAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE DEVELOPMENT PLATFORM (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST COMPUTER USAGE TIME, AND DAMAGE TO, OR LOSS OF USE OF, DATA), EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EITHER PARTY’S ENTIRE LIABILITY AND THE OTHER PARTY’S EXCLUSIVE REMEDY FOR DIRECT DAMAGES ARISING OUT OF OR RELATED TO THE DEVELOPMENT PLATFORM, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, IS LIMITED TO $100.
4.3 License to Customer Applications. Subject to the terms and conditions of this Agreement, Customer hereby grants BMC a worldwide, limited, nonexclusive license during the term of the applicable Order for the Platform Services to host, copy, transmit, adapt and display Customer Applications solely for the purpose of fulfilling BMC’s obligations under this Agreement.
4.4 Functionality of Customer Applications. Customer is solely responsible for the operation of Customer Applications, including but not limited to any information stored in or transmitted by Customer Applications. Customer is responsible for monitoring the usage of each Customer Application. Customer is responsible for the configuration, functionality, performance, compliance with applicable data protection laws and security of all Customer Applications, including any interfaces used to connect to Customer Applications.
4.5 Customer Assistance. Customer will provide information or other materials related to a Customer Applications as reasonably requested by BMC to verify Customer’s compliance with the Agreement and the User Guide.
4.7 Suspension of Customer Applications. Customer’s use of the Platform Services may be immediately suspended and/or terminated due to (i) reasonable security threats regarding the Platform Services or Customer Applications, (ii) Customer Applications interfering with, disrupting or threatening the integrity or performance of the Subscription Services and/or the Platform Services, or (iii) violates the law, infringes or misappropriates the rights of any third party or otherwise violates a material term of the Agreement. In the event (i) or (ii) above apply to Customer Applications, Customer is required to remediate any such issue to BMC’s commercially reasonable satisfaction before use of Customer Applications can resume. BMC shall use reasonable commercial efforts to only suspend the non-conforming portion of the Platform Services.
4.8 CUSTOMER APPLICATIONS WARRANTIES. Customer warrants to BMC that: (a) each Customer Application will perform materially in accordance with the User Guide; (b) Customer has all rights in the Customer Content and Customer Applications necessary to grant the rights contemplated by this Agreement; (c) none of the Customer Content or Customer Applications or Users’ use of Customer Content or Customer Applications will violate the Agreement and the User Guide; and (d) Customer’s security and functional tests of Customer Applications was conducted in a commercially reasonable manner and the results of said tests provided to BMC for review are correct and valid.
ATTACHMENT B
CONSULTING SERVICES ATTACHMENT
to the
BMC CLOUD SERVICES MASTER AGREEMENT
Except as otherwise provided herein, the terms of the Cloud Services Master Agreement (the “Base Agreement”) are incorporated into this Consulting Services attachment (the “Attachment”). Together, this Attachment and the Base Agreement (as incorporated into this Attachment) are referred to as the “Agreement” for purposes of Customer’s purchase of Consulting Services, only if Consulting Services are set forth on an Order referencing the Base Agreement. For purposes of this Agreement, the term “Subscription Services” as defined in the Base Agreement shall be extended to include Consulting Services. In the event of a conflict between the Base Agreement and the terms of this Attachment, the terms of this Attachment will control for Customer’s purchase of Consulting Services only. The parties agree that the following Sections of the Base Agreement do not apply to the Consulting Services provided under this Attachment: Section 3.2 (Support), Section 4 (Fees and Payment), and Section 6 (Limited Warranty).
1. SCOPE. BMC agrees to render to Customer Consulting Services under the terms of this Agreement and as further described in an Order. BMC will render the Consulting Services in the location(s) as set forth in the Order. The performance of the Consulting Services will not relieve or alter the rights, obligations and responsibilities of Customer and of the BMC Affiliate providing Subscription Services and/or Licenses with respect to Subscription Services and/or Licenses under the applicable agreement.
2. SERVICE FEES AND EXPENSES. The fees payable to BMC for the Consulting Services to be rendered will be detailed in the Order. BMC will submit invoices to Customer for such fees and incurred expenses either upon completion of the Consulting Services, or at stated intervals, in any case in accordance with the applicable Order. Customer shall pay amounts invoiced within 30 days of the date of the invoice.
3. EDUCATION. Customer may acquire Learning Pass Credits and Education Services (collectively, “BMC Education ”) on an Order. The BMC Education terms that govern such Orders are set forth in the Education Program Guide located at https://www.bmc.com/content/dam/bmc/education/education-program-guide.pdf, and is incorporated herein by this reference.
4. STATEMENTS OF WORK. Consulting Services may require the execution of a Statement of Work, in which case, such Statement of Work will be considered an Order for such Consulting Services. In the event of any conflict between the terms of a Statement of Work and this Agreement, the Agreement shall prevail except for matters of service fees, payment and reimbursement of expense, and termination of Consulting Services if further specified in the Statement of Work. During the term of an applicable Statement of Work, and for a period of six months thereafter, neither party will solicit for employment any employees, agents, or subcontractors of the other party or its affiliates who, within six months prior to such solicitation, had contact with the soliciting party based in whole or in part upon Consulting Services provided under this Agreement. The restrictions in this section shall be deemed not to apply to general solicitations for employment posted on Internet job sites or printed in newspapers or trade or professional journals.
5. PROPRIETARY RIGHTS AND RIGHTS IN DELIVERABLES.
5.1 Ownership of Materials Used in the Consulting Services. Unless specifically provided in an Order, Customer shall supply all of the facilities; equipment; supplies; computer programs; information about Customer’s business, systems, software and needs; and other materials necessary for completion of the Consulting Services (“Customer Property”), and BMC shall supply the people described in the Order, the know-how and the tools necessary to provide the Consulting Services, which may include, among other things, software, templates, questionnaires, graphs, methodologies, models, charts and reports (“BMC Property”). Customer Property and copies and modifications of Customer Property will remain the sole property of Customer or if applicable, Customer’s licensors, and BMC Property and copies and modifications of BMC Property will remain the sole property of BMC or if applicable, BMC’s licensors. Customer hereby grants to BMC a royalty-free, paid-up, non-exclusive, non-sublicensable and non-transferable license to use the Customer Property for the purpose of providing the Consulting Services.
5.2 Deliverables. Deliverables are those created under the Order, including, but not limited to, software, software scripts, routines, libraries or other code, or appliances, methodologies, templates, tools, policies, records, working papers, reports, methodologies, know-how, data, or other intellectual property, written or otherwise, including any derivative works or modifications to the above, whether pre-existing or created during the performance of the Consulting Services and all proprietary and intellectual property rights embedded therein delivered as a result of the Consulting Services as specified under the Order. BMC owns all right, title and interest in the Deliverables. Provided Customer has paid in full for the Consulting Services that resulted in the Deliverables, BMC will deliver the Deliverables to Customer in accordance with the applicable Order. Subject to compliance with the terms of this Agreement and the applicable Order, BMC grants Customer a non-exclusive, non-transferable, non-sublicensable, royalty-free, paid-up license to use, create derivative works of and modify all Deliverables solely for its internal business operations.
5.3 Copyright Notice. Each party agrees to reproduce the copyright notice and any other legend or ownership notice on any copies made under the licenses granted pursuant to this Section 5.
5.4 Retention. Customer acknowledges that BMC provides similar services to other customers and that nothing in this Agreement shall be construed as operating to prevent BMC from carrying on such business. Further BMC may use ideas, concepts, or know-how developed or acquired by BMC during performance of the Consulting Services to the extent by BMC’s personnel as impressions and general learning.
6. LIMITED WARRANTY. BMC warrants that it will perform the Consulting Services in conformance with generally accepted practices within the software services industry and in accordance with the Order. Customer must notify BMC of any breach of this warranty no later than 90 days after completion of the Consulting Services under the Order. Customer’s exclusive remedy and BMC’s entire liability under this warranty shall be for BMC to re-perform any non-conforming portion of the Consulting Services within a reasonable period of time, or if BMC cannot remedy the breach during such time period then refund the portion of the fee attributable to such non-conforming portion of the Consulting Services under the Order. This warranty will not apply to the extent Customer, its contractors or agents have modified any Deliverable, unless otherwise authorized by BMC in writing.
EXCEPT FOR THE EXPRESS WARRANTIES IN THIS AGREEMENT, THE CONSULTING SERVICES AND DELIVERABLES ARE PROVIDED WITH NO OTHER WARRANTIES WHATSOEVER, AND BMC, ITS AFFILIATES AND LICENSORS DISCLAIM ALL OTHER WARRANTIES, INCLUDING, FITNESS FOR A PARTICULAR PURPOSE AND IN THE UNITED STATES AND CANADA, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, AND NON-INFRINGEMENT.
7. INSURANCE. BMC will provide and maintain the following insurance, but only for losses arising out of BMC’s provision of Consulting Services under this Attachment: a) Worker’s Compensation insurance as prescribed by the law of the state applicable to the employees performing the Consulting Services; (b) Employer’s Liability insurance with a limit of $1,000,000 USD for each occurrence; (c) Commercial General Liability insurance with $1,000,000 USD per occurrence combined single limit and $2,000,000 USD general aggregate, including coverage for Products Liability and Completed Operations; (d) Automobile Liability insurance, including coverage for Hired and Non-owned vehicles of $1,000,000 USD for combined single limit for bodily injury and/or property damage; and (e) Professional Liability insurance covering Errors and Omissions in the amount of $1,000,000 USD for each occurrence and in the aggregate associated with Consulting Services performed under this Agreement.
8. MUTUAL INDEMNITY. Each party shall indemnify and hold harmless the other party from all claims, liabilities or expenses for physical damage to real property or tangible personal property and bodily injury, including death, to the extent caused by the negligence, gross negligence or willful misconduct of the indemnifying party’s employees or contractors arising out of this Agreement and while at the Customer’s premises. The foregoing indemnities are contingent upon the party seeking indemnity giving prompt written notice to the indemnifying party of any claim, demand or action, and cooperating with the indemnifying party in the defense or settlement of any such claim, demand or action.
9. INDEPENDENT CONTRACTOR. All of the services performed by BMC under this Agreement will be performed as an independent contractor.
ATTACHMENT C
ON PREMISE SUBSCRIPTIONS ATTACHMENT
to the
BMC CLOUD SERVICES MASTER AGREEMENT
Except as otherwise provided herein, the terms of the Cloud Services Master Agreement (the “Base Agreement”) are incorporated into this On Premise Subscriptions attachment (the “Attachment”). Together, this Attachment and the Base Agreement (as incorporated into this Attachment) are referred to as the “Agreement” for purposes of Customer’s purchase and ongoing use of On Premise Subscriptions, only if On Premise Subscriptions are set forth on an Order referencing the Base Agreement. For purposes of this Agreement, the term “Subscription Services” as defined in the Base Agreement shall be extended to include On Premise Subscriptions. In the event of a conflict between the Base Agreement and the terms of this Attachment, the terms of this Attachment will control for Customer’s purchase of On Premise Subscriptions only. The parties agree that the following Sections of the Base Agreement do not apply to the On Premise Subscriptions provided under this Attachment: Section 3.1 (Access Rights), Section 3.5 (Customer Responsibilities and Restrictions), Section 6 (Limited Warranty) and Section 15 (Verification).
1. DEFINITIONS.
1.1 “Authorized User” means Customer, Customer Affiliate(s), and their employees, consultants, contractors and agents that are bound by the terms and conditions no less restrictive than those contained herein and for whom Customer takes full responsibility. Authorized Users do not include service providers or outsourcers.
1.2 "Documentation" means the technical publications relating to the software, such as release notes, license entitlement descriptions, reference, user, installation, systems administrator and technical guidelines, included with the On Premise Subscription.
1.3 “Licensed Capacity” is the amount of each On Premise Subscription licensed as established in the Order.
1.4 “On Premise Subscription” is the object code of the software and all accompanying Documentation delivered to Customer, including all items delivered by BMC to Customer under Support.
2. LICENSE. Subject to the terms, conditions, payment requirements and restrictions set forth in this Agreement, BMC grants Customer a non-exclusive, non-transferable, non-sub-licensable term license to install in the Territory as defined in an Order, access and use the On Premise Subscription during the term specified on the Order (i) by Authorized User(s), (ii) up to the Licensed Capacity, (iii) for Customer’s and its Affiliates’ internal business operations, (iv) in accordance with the Documentation and the applicable Order, and (v) make a reasonable number of copies of the On Premise Subscription for archival purposes only (collectively a "License"). Affiliates may use and access the On Premise Subscriptions under the terms of this Agreement, and Customer is responsible for its Affiliates compliance with the terms of this Agreement.
3. RESTRICTIONS. Customer will not: (a) copy, operate or use any On Premise Subscription in excess of the applicable Licensed Capacity or other than as set forth in the License above; (b) modify, delete or remove any ownership, title, trademark, patent or copyright notices (“Identification”) from any On Premise Subscription, or copy or partial copy of an On Premise Subscription; (c) disassemble, reverse engineer, decompile or otherwise attempt to derive any On Premise Subscription source code from object code, except to the extent expressly permitted by applicable law despite this limitation without possibility of contractual waiver; (d) distribute, rent, lease, sublicense or provide the On Premise Subscription to any third party; (e) use the On Premise Subscriptions in an outsourcing or service bureau environment on behalf of non-Affiliate third parties, or allow the On Premise Subscriptions to be used by an outsourcing or service bureau provider on Customer’s behalf; (f) provide a third party with the results of any functional evaluation, product vulnerability or performance tests, without BMC's prior written approval; or (g) attempt to disable or circumvent any of the licensing mechanisms within the On Premise Subscription.
4. ON PREMISE SUBSCRIPTION PERFORMANCE WARRANTY. BMC warrants that (a) the On Premise Subscription will perform in substantial accordance with its Documentation for a period of one year from the date of the first Order, (b) BMC has used commercially reasonable efforts consistent with industry standards to scan for and remove software viruses, and (c) other than passwords that may be required for the operation of the On Premise Subscription, BMC has not inserted any code that is not addressed in the Documentation and that is designed to delete, interfere with or disable the normal operation of the On Premise Subscription in accordance with the License. This warranty will not apply to any problems caused by hardware, Computers, or software other than the On Premise Subscription, or misuse of the On Premise Subscription, use of the On Premise Subscription other than as provided by the applicable License, modification of the On Premise Subscription, or claims made either outside the warranty period or not in compliance with the notice and access requirements set forth below. No warranty is provided for additional Licensed Capacity, On Premise Subscription provided pursuant to Support. BMC’s entire liability, and Customer’s exclusive remedy, for breach of the above warranty is limited to: BMC’s use of commercially reasonable efforts to have the On Premise Subscription perform in substantial accordance with its Documentation, or replacement of the non-conforming On Premise Subscription within a reasonable period of time, or if BMC cannot have the On Premise Subscription perform in substantial accordance with its Documentation replace the On Premise Subscription within such time period, then BMC will refund the amount paid by Customer for the License for that On Premise Subscription. Customer’s rights and BMC's obligations in this Section are conditioned upon Customer’s providing BMC during the warranty period (i) full cooperation and access to the On Premise Subscription in resolving any claim; and (ii) written notice addressed to the BMC Legal Department that includes notice of the claim, a complete description of the alleged defects sufficient to permit their reproduction in BMC’s development or support environment, and a specific reference to the Documentation to which such alleged defects are contrary.
EXCEPT FOR THE EXPRESS WARRANTIES IN THIS ATTACHMENT, THE ON PREMISE SUBSCRIPTION IS PROVIDED WITH NO OTHER WARRANTIES WHATSOEVER, AND BMC, ITS AFFILIATES AND LICENSORS DISCLAIM ALL OTHER WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE AND IN THE UNITED STATES AND CANADA, MERCHANTABILITY AND NON-INFRINGEMENT. BMC DOES NOT WARRANT THAT THE OPERATION OF THE ON PREMISE SUBSCRIPTION WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT ALL DEFECTS CAN BE CORRECTED.
5. DELIVERY. For On Premise Subscriptions that are delivered electronically, upon request from BMC, Customer agrees to provide BMC with documentation supporting that the designated On Premise Subscription was received electronically. If Customer accepts any On Premise Subscription in a non-electronic format, there may be an additional charge and it is the sole responsibility of Customer to bear any sales/use tax obligation, penalties, and interest. All On Premise Subscriptions are licensed FCA (“Free Carrier” as per Incoterms 2000) shipping point. The On Premise Subscriptions are accepted on the date BMC delivers the On Premise Subscription to the Customer either physically or by providing access codes for electronic download, whichever occurs first, however, such acceptance will not affect the On Premise Subscription Performance Warranty provided in this Agreement.
6. AUDIT. If requested by BMC, and not more than once a year, Customer agrees to deliver to BMC, within 30 days of such request, as specified by BMC either (a) periodic product usage reports generated from specific products or (b) written periodic product usage reports, to be provided solely when the product does not generate reports (“Report”). Additionally, if requested by BMC not more than once a year and upon at least ten days prior written notice to Customer, Customer agrees to allow BMC to perform an audit (“Audit”) to ensure compliance with the terms of this Agreement at the locations where the On Premise Subscriptions are installed, during normal business hours. to ensure compliance with the terms of this Agreement. Customer agrees to cooperate during any such Audit and to provide reasonable access to its information and systems.
Effective October 5th 2022 to November 29th 2022
DownloadTable of Contents
BMC CLOUD SERVICES MASTER AGREEMENT
THIS CLOUD SERVICES MASTER AGREEMENT (“AGREEMENT”) GOVERNS YOUR FREE TRIAL, IF ANY, OF THE SUBSCRIPTION SERVICES.
IF YOU PURCHASE THE SUBSCRIPTION SERVICES, THIS AGREEMENT WILL ALSO GOVERN YOUR PURCHASE AND ONGOING USE OF THE SUBSCRIPTION SERVICES.
BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SUBSCRIPTION SERVICES.
You may not access the Subscription Services if you are BMC’s direct competitor, except with BMC’s prior written consent. In addition, you may not access the Subscription Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.
This Agreement was last updated on October 5, 2022. This Agreement is between the entity or individual entering into this Agreement (“Customer”) and the BMC Contracting Entity for the applicable region as described in Section 12 (“BMC”). It is effective between Customer and BMC as of the date of your acceptance of this Agreement. If Customer has a fully executed BMC Cloud Services Master Agreement then such fully executed BMC Cloud Services Master Agreement supersedes and replaces any clickwrap or click-through agreements (or other similar agreements) that Customer may be required to accept as a part of accessing or using the Subscription Services. For Customer’s convenience, prior versions of this Agreement are available at https://www.bmc.com/legal/csma.html.
FREE TRIAL.
BMC may make the Subscription Services available to Customer on a trial basis free of charge. If BMC offers Customer a free trial, it will run until the earlier of (a) the end of the trial period stated on the trial registration web page or (b) the start date of any Order for purchase of the Subscription Services. Additional trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.
ANY DATA CUSTOMER ENTERS INTO THE SUBSCRIPTION SERVICES, AND ANY CUSTOMIZATIONS MADE TO THE SUBSCRIPTION SERVICES BY OR FOR CUSTOMER, DURING A FREE TRIAL MAY BE PERMANENTLY LOST.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THE AGREEMENT, DURING ANY FREE TRIAL PERIOD THE SUBSCRIPTION SERVICES ARE PROVIDED “AS IS” WITH NO WARRANTY.
1. DEFINITIONS.
1.1 “Affiliate” is an entity that controls, is controlled by or shares common control with BMC or Customer, where such control arises from the legal power to direct or cause the direction of the general management and policies of the company, partnership or legal entity.
1.2 "Capacity” means the amount of access to the Subscription Services purchased as specified in an Order, which is counted in accordance with the Unit of Measure described in the Order.
1.3 “Consulting Services” means the consulting, implementation, training or other services provided under the terms of Attachment B (Consulting Services) and as further described under the applicable Order.
1.4 “Customer Content” means all electronic data or information (a) submitted to the Subscription Services by Customer, a third party on behalf of Customer, or as directed by Customer or (b) collected, processed or returned by the Subscription Services .
1.5 “Order” means (i) the agreed ordering document for the purchase of the Subscription Services, (ii) that is subject to this Agreement, and (iii) that identifies the terms of the purchase and fees to be paid. The term “Order” includes Customer’s online registration for and purchase of the Subscription Services, If any.
1.6 "Subscription Services" means the generally available hosted service which packages web-based access and the right-to-use the supported applications, installed agents and associated reference, user and technical guides.
1.7 “User Guide” means the online help, functional guide and technical specifications for the Subscription Services, as updated by BMC from time to time.
2. SCOPE. Subject to the terms of this Agreement, Customer may purchase and BMC will provide Customer with access to the Subscription Services as set forth in this Agreement and the applicable Order. Subject to the Attachments to this Agreement, Customer may also purchase BMC Platform Services, BMC Consulting Services and BMC On Premise Subscription Services. In the event of a direct conflict between any Order and the terms of this Agreement, the terms of the Order will control only if the Order is executed by an authorized representative of each party. Each Order is deemed to be a discrete contract, separate from each other Order, unless expressly stated otherwise therein. Orders may be entered under this Agreement by and between (a) BMC or an Affiliate of BMC; and (b) Customer or an Affiliate of Customer. With respect to an Order, the terms “BMC” and “Customer” as used in this Agreement will be deemed to refer to the entities that execute that Order, the Order will be considered a two party agreement between such entities, and BMC will separately invoice the Customer named in the Order for the associated fees. Orders may also be placed via a BMC authorized reseller. Neither execution of this Agreement, nor anything contained herein, shall obligate either party to enter into any Orders.
3. ACCESS TO SUBSCRIPTION SERVICES.
3.1 Access Rights. Subject to Customer’s payment of applicable fees and to the terms of this Agreement, BMC will provide Customer with worldwide access to the Subscription Services in accordance with the Order (i) up to the Capacity, (ii) for Customer’s and its Affiliates’ internal business operations, (iii) in accordance with the User Guide and the applicable Order. Customer may exercise its rights under this Section 3.1 through its service providers, outsourcers, employees, consultants, contractors, agents, and Affiliates (all, “Users”).
3.2 BMC Subscription Services Support. BMC will provide the support described at http://www.bmc.com/support/review-policies (“Support”) to Customer for the Subscription Services.
3.3 Use of Subcontractors. Customer acknowledges and agrees that BMC uses subcontractors to provide portions of the Subscription Services. BMC will provide a list of its current subcontractors upon Customer’s written request. BMC is responsible for the performance of all subcontractors providing any of the Subscription Services.
3.4 Compliance with Laws. Each party shall comply with all applicable laws in the performance of its obligations under this Agreement.
3.5 Customer Responsibilities and Restrictions.
(a) Customer will (i) maintain the confidentiality of all authentications and passwords for the Subscription Services and immediately notify BMC if it becomes aware that an unauthorized party has gained access such authentications and passwords, (ii) be responsible for use of the Subscription Services by its Users in compliance with this Agreement, (iii) prevent unauthorized access to, or use of, the Subscription Services, and notify BMC promptly of any such unauthorized access or use, and (iv) be responsible for obtaining its own Apple Push Notification certificate, if the Subscription Services are used to manage devices running iOS. Customer is responsible for the creation and implementation of a privacy policy and end user agreement, if applicable, which will set forth the guidelines of how Customer uses and protects the data and personal information of its Users, and how said Users may utilize the Subscription Services.
(b) Customer will not (i) modify, copy or create derivative works based on the Subscription Services; (ii) create Internet “links” to or reproduce any content forming part of the Subscription Services, other than for its own internal business purposes; (iii) disassemble, reverse engineer, or decompile the Subscription Services or part thereof, except to the extent expressly permitted by applicable law despite this limitation without possibility of contractual waiver; (iv) interfere with or disrupt the integrity or performance of the Subscription Services; (v) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortuous material, or send or store material in violation of any third party’s privacy rights via the Subscription Services; (vi) send or store viruses or malicious code via the Subscription Services; (vii) attempt to gain unauthorized access to the Subscription Services or its related software, systems, platforms or networks, including any form of security and/or penetration testing; (viii) use any components provided with the Subscription Services separately from the Subscription Services; or (ix) distribute, rent, lease or provide the Subscription Services to any third party or use it in a service bureau, outsourcing environment, or for the processing of third party data.
4. FEES AND PAYMENT.
4.1 Fees. The fees payable for the Subscription Services and the payment period for such fees will be set forth in and paid in accordance with the Order. All payments are due within 30 days of the date of the invoice.
4.2 Late Fees. Late balances may, at BMC’s sole election, bear interest at a rate equal to the lesser of 1% per month or the maximum amount permitted by law.
4.3 Taxes. Customer will pay taxes imposed in connection with the fees paid for the Subscription Services, which are exclusive of these taxes.
4.4 Solution Providers. With regard to Subscription Services acquired by Customer through an authorized reseller ("Solution Provider") of BMC, notwithstanding anything to the contrary in sections 4.1 and 4.2 above, Customer will have no direct payment obligations to BMC for such fees.
5. TERM, SUSPENSION AND TERMINATION.
5.1 Term. This Agreement begins on the Effective Date and will remain in effect unless terminated pursuant to Section 5.2 below, regardless of the billing frequency selected in the Order.
5.2 Termination.
(a) Termination for Convenience. Customer may terminate this Agreement by providing BMC with at least 30 days prior written notice; provided, however, such termination will have no effect on Orders in effect at the time of such termination. Orders may not be terminated for convenience unless otherwise specified therein. Customer may notify BMC of its intent to terminate by emailing BMC at order_services@bmc.com.
(b) Termination for Cause. Either party may terminate this Agreement and/or an Order for cause upon 30 days’ written notice of a material breach to the other party if such breach remains uncured at the expiration of such period. In the event Customer terminates the Agreement and an Order for BMC’s material breach, BMC will refund the amount paid by Customer to BMC for the Subscription Services on such Order, pro-rated from the date of the notice of the termination.
5.3 Suspension of Subscription Services for Cause. In addition to its other rights and remedies, BMC reserves the right, without liability to Customer, to suspend any and all access to the Subscription Services if Customer commits a material breach of this Agreement and fails to cure the same within 30 days from Customer’s receipt of written notice of such breach from BMC. Provided however, that BMC may immediately suspend any and all access to the Subscription Services without any cure period if BMC determines in good faith that Customer’s material breach of the Agreement will cause damage to BMC, the Subscription Services, or any other customer.
5.4 Effects of Termination. Upon termination or expiration of any Order or this Agreement, all rights and Licenses granted thereunder will terminate and Customer will make no further use of the Subscription Services. No termination will relieve the Customer of the obligation to pay any fees accrued or payable to BMC pursuant to any Order. Upon written request by Customer made within 45 days after the effective date of termination, BMC will make the Customer Content available to Customer for retrieval in an industry standard format. After such 45-day period, BMC shall have no obligation to maintain any Customer Content and will thereafter delete Customer Content. Any terms in this Agreement which by their nature extend beyond termination of this Agreement will remain in effect until fulfilled.
5.5 Termination Assistance. Upon Customer’s request and upon (a) the expiration of an Order or (b) the termination of an Order for any reason other than Customer’s breach, BMC shall perform such services as the parties in good faith agree are reasonably necessary to facilitate the orderly transition of the Services to the successor service provider or to the Customer. BMC will provide any such services under the terms and conditions of the Agreement, and subject to payment of the then-current fees and charges, generally applicable to BMC’s performance of such services, as agreed between the parties at such time.
6. LIMITED WARRANTY.
6.1 Warranties and Limited Remedies. BMC warrants to Customer that:
(a) the online availability of the Subscription Services will be maintained in accordance with the service levels attached to the applicable Order, if any (the “Service Level Agreement” or “SLA”). Customer’s exclusive remedy and BMC’s sole obligation for breach of the warranty in this Section 6.1(a) is described in the Service Level Agreement;
(b) the Subscription Services (i) will perform in substantial accordance with the then-current on-line User Guide available via the Subscription Services and (ii) will be performed in a manner consistent with industry standards reasonably applicable to the provision thereof. Customer’s exclusive remedy and BMC’s sole obligation for breach of the warranty in this Section 6.1(b) will be BMC’s use of commercially reasonable efforts to have the Subscription Services perform in substantial accordance with the User Guide, or replace the non-conforming portion of the Subscription Services within 60 days from the written notice of claim, or if BMC cannot have the Subscription Services perform in substantial accordance with the User Guide or replace the Subscription Services within such time period, then Customer may terminate the non-performing Subscription Services, and upon such termination BMC will refund the amount paid by Customer for the Subscription Services, pro-rated from the date of the notice of the claim. Customer’s rights and BMC’s obligations in this Section 6.1(b) are conditioned upon Customer’s providing BMC with written notice of the claim, a complete description of the alleged defects and a specific reference to the User Guide to which such alleged defects are contrary; and
(c) In connection with the Subscription Services (i) it has used commercially reasonable efforts consistent with industry standards to scan for and promptly remove any software viruses for no charge and (ii) it has not inserted any Disabling Code. “Disabling Code” means computer code inserted by BMC, that is not addressed in the User Guide, and that is designed to expose data, delete, interfere with, and/or disable the normal operation of the Subscription Services. This Disabling Code warranty does not apply to BMC passwords necessary for the operation of the Subscription Services, or for any use by Customer outside the scope of this Agreement.
6.2 Disclaimer. CUSTOMER ACKNOWLEDGES THAT, EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, BMC, ITS AFFILIATES AND LICENSORS MAKE NO WARRANTY, EXPRESS, IMPLIED OR STATUTORY WITH RESPECT TO THE SUBSCRIPTION SERVICES OR USE THEREOF. BMC, ITS AFFILIATES AND LICENSORS HEREBY EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY THAT SUBSCRIPTION SERVICES WILL BE UNINTERRUPTED, ERROR FREE OR WITHOUT DELAY, AND THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INTERFERENCE, NON-INFRINGEMENT AND INFORMATION CONTENT.
7. PROPRIETARY RIGHTS AND CONFIDENTIALITY.
7.1 Proprietary Rights. BMC, its Affiliates or licensors retain all right, title and interest to the Subscription Services and all related intellectual property and proprietary rights. The Subscription Services are protected by applicable copyright, trade secret, industrial and other intellectual property laws. BMC owns all right, title and interest in all software, programming, documentation, templates, questionnaires, methodologies, models, charts, reports, ideas, features, content, functions, graphics and any other items provided as part of the Subscription Services (“ Service Items”) and access to and use of the relevant Service Items will be governed by the terms of this Agreement. Subject to (i) BMC’s or its licensor’s ownership of any Service Items and (ii) section 3.5 (b)(i) of the Agreement, Customer owns all rights, title, and interest in Customer Applications, including all proprietary and intellectual property rights. BMC reserves any rights not expressly granted to Customer. Customer shall not access the Subscription Services in order to build a competitive product or service or copy any ideas, features, functions or graphics of the Subscription Services. “ Confidential Information” means all proprietary or confidential information that is disclosed to the recipient (“Recipient”) by the discloser (“ Discloser”), and includes, among other things (i) any and all information relating to products or services provided by a Discloser, its customer-related and financial information, software code, BMC product vulnerabilities, flow charts, techniques, specifications, development and marketing plans, strategies, and forecasts; (ii) as to BMC, and its licensors, the Subscription Services and Service Items; and (iii) the terms of this Agreement, including without limitation, pricing information. Confidential Information does not include information that Recipient can show: (a) was rightfully in Recipient’s possession without any obligation of confidentiality before receipt from the Discloser; (b) is or becomes a matter of public knowledge through no fault of Recipient; (c) is rightfully received by Recipient from a third party without violation of a duty of confidentiality; or (d) is or was independently developed by or for Recipient. Recipient may not disclose Confidential Information of Discloser to any third party or use the Confidential Information in violation of this Agreement. The Recipient (i) will exercise the same degree of care and protection with respect to the Confidential Information of the Discloser that it exercises with respect to its own Confidential Information and (ii) will not, either directly or indirectly, disclose, copy, distribute, republish, or allow any third party to have access to any Confidential Information of the Discloser. Notwithstanding the foregoing, Recipient may disclose Discloser’s Confidential Information to Recipient’s employees and agents who have need to know provided that such employees and agents have legal obligations of confidentiality substantially the same (and in no case less protective) as the provisions of this Agreement.
7.2 Notification Obligation. If the Recipient becomes aware of any unauthorized use or disclosure of Discloser’s Confidential Information, then Recipient will promptly and fully notify the Discloser of all facts known to it concerning such unauthorized use or disclosure. In addition, if the Recipient or any of its employees or agents are required (by oral questions, interrogatories, requests for information, or documents in legal proceedings, subpoena, civil investigative demand, or other similar process) to disclose any of Discloser’s Confidential Information, the Recipient will not disclose the Discloser’s Confidential Information without providing the Discloser with commercially reasonable advance prior written notice to allow Discloser to seek a protective order or other appropriate remedy or to waive compliance with this provision. In any event, the Recipient will exercise its commercially reasonable efforts to preserve the confidentiality of the Discloser’s Confidential Information, including, without limitation, cooperating with Discloser to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded to the Confidential Information.
7.3 Customer Content. As between BMC and Customer, Customer owns all rights, title and interest in and to Customer Content. Customer Content is deemed Confidential Information under this Agreement. BMC will use the Customer Content only as necessary to provide the Subscription Services in accordance with this Agreement. At any time during the term of the Subscription Services, Customer may request copies of all Customer Content from the Subscription Services. Customer is responsible for complying with all legal and contractual requirements, including its agreements with third parties. With the exception of Customer Content collected by the Subscription Services, Customer is solely responsible for the transmission of Customer Content to BMC and to the Subscription Services. Customer is solely responsible for the encryption of any Customer Content during such transmission.
7.4 Suggestions. Customer agrees that BMC shall have a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into any BMC products or services any suggestions, enhancement requests, recommendations or other feedback provided by Customer relating to the Subscription Services.
8. DISCLAIMER OF DAMAGES AND LIMITS ON LIABILITY.
8.1 DISCLAIMER OF DAMAGES. NEITHER PARTY OR ITS AFFILIATES OR LICENSORS ARE LIABLE FOR ANY, SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES RELATING TO OR ARISING OUT OF THIS AGREEMENT OR THE SUBSCRIPTION SERVICES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST COMPUTER USAGE TIME, AND DAMAGE TO, OR LOSS OF USE OF, DATA), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND IRRESPECTIVE OF ANY NEGLIGENCE OF A PARTY OR WHETHER SUCH DAMAGES RESULT FROM A CLAIM ARISING UNDER TORT OR CONTRACT LAW. THE FOREGOING LIMITATIONS DO NOT APPLY TO EACH PARTY’S RESPONSIBILITIES IN SECTION 9, INFRINGEMENT BY A PARTY OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, GROSS NEGLIGENCE, WILLFUL MISCONDUCT, DEATH OR BODILY INJURY, ACTS OF FRAUD, NOR ANY LIABILITY WHICH MAY NOT BE EXCLUDED OR LIMITED BY LAW.
8.2 LIMITS ON LIABILITY. NEITHER PARTY OR ITS AFFILIATES OR LICENSORS SHALL HAVE AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SUBSCRIPTION SERVICES, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEEDING THE AMOUNTS ACTUALLY PAID BY AND PAYABLE FROM CUSTOMER FOR THE SUBSCRIPTION SERVICES GIVING RISE TO LIABILITY PURSUANT TO THE ORDER(S) THAT ARE IN EFFECT AS OF THE DATE THE LIABILITY FIRST AROSE. THE FOREGOING LIMITATIONS DO NOT APPLY TO EACH PARTY’S RESPONSIBILITIES IN SECTION 9, INFRINGEMENT BY A PARTY OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, GROSS NEGLIGENCE, WILLFUL MISCONDUCT, DEATH OR BODILY INJURY, ACTS OF FRAUD, NOR ANY LIABILITY WHICH MAY NOT BE EXCLUDED OR LIMITED BY LAW.
9. INFRINGEMENT CLAIMS.
9.1 Indemnification by BMC . If a third party asserts a claim against Customer asserting that Customer’s use of the Subscription Services, including Platform Services, Deliverables and Licenses as defined in the Attachments to this Agreement, in accordance with this Agreement violates that third-party’s patent, trade secret or copyright rights (“Infringement Claim”), then BMC will, at its own expense: (a) defend or settle the Infringement Claim; and (b) indemnify Customer for any damages finally awarded against Customer based on infringement by the Subscription Services or Deliverables, including court costs and reasonable attorney’s fees. If BMC believes the Subscription Services may violate a right, then BMC will, at its expense: (a) modify the Subscription Services, or (b) procure the right to continue using the Subscription Services, and if (a) or (b) are not commercially reasonable, terminate Customer's right to use the Subscription Services and issue a pro-rata refund for the unexpired pre-paid portion of such Subscription Services.
9.2 Indemnification by Customer. Subject to the terms of this Agreement, if a third party asserts a claim against BMC asserting that the (i) Customer Content, (ii) Customer Applications as defined in Attachment A, (iii) Customer Property as defined in Attachment B or (iv) Customer’s use of the Subscription Services in violation of this Agreement violates that third-party’s patent, trade secret or copyright rights (“ Claim”), Customer will, at its own expense: (a) defend or settle the Claim; and (b) indemnify BMC for any damages finally awarded against BMC based on the Claim, including court costs and reasonable attorney’s fees.
9.3 Indemnity Process. Neither party’s obligations under this Section 9 will apply if: (a) the indemnifying party’s legal department does not receive prompt, detailed written notice of the Infringement Claim/Claim from the party being indemnified, (b) the indemnifying party is not able to retain sole control of the defense of the Infringement Claim/Claim and all negotiations for its settlement or compromise, or (c) the indemnifying party does not receive all reasonable assistance from the party being indemnified. Neither party will bind the indemnified party to a monetary obligation in a settlement or compromise, or make an admission on behalf of the indemnified party, without obtaining that party’s prior consent.
9.4 THIS SECTION 9 CONTAINS EACH PARTY'S EXCLUSIVE REMEDIES AND THE INDEMNIFYING PARTY'S SOLE LIABILITY FOR INFRINGEMENT CLAIMS/CLAIMS, RESPECTIVELY.
10. EXPORT CONTROLS. Both parties agree to comply with applicable export regulations, including but not limited to U.S. Export Administration Regulations and the OFAC embargoes and sanctions lists. More information on BMC’s export compliance program may be found here: https://www.bmc.com/legal/export-compliance.html.
11. GOVERNING LAW AND DISPUTE RESOLUTION. Any controversy, dispute or claim arising out of or relating to this Agreement, or to the formation, interpretation, breach, termination, or validity thereof (each, a “Controversy”) will be resolved as follows:
(i) UNITED STATES. If both parties to this Agreement are entities incorporated under the law of any state in the United States, the Controversy shall be tried in either state or federal court located in Houston, Texas and the laws of the State of Texas shall govern. Both parties hereby submit to the exclusive jurisdiction of the courts in Houston, Texas and waive all defenses based on forum non conveniens. Notwithstanding the foregoing, if Customer is a state or local governmental entity or higher education institution and legally required to apply state law, then Customer’s state law will apply to the Controversy, without reference to conflict of law principles.
(ii) CANADA. If Customer is located in Canada (outside Quebec), then the law of the Province of Ontario law apply, without reference to conflict of law principles. If Customer is located in Quebec, then the laws of the Province Quebec will apply, without reference to conflict of law principles.
(iii) EMEA. If both parties to this Agreement are entities incorporated in countries in the Europe, Middle East, or Africa regions, the Controversy shall be tried in the District Court located in Amsterdam, the Netherlands and the substantive laws of the Netherlands shall govern. Both parties hereby submit to the exclusive jurisdiction of the District Court in Amsterdam, the Netherlands and waive all defenses based on forum non conveniens.
(iv) ASIA PACIFIC. If both parties to this Agreement are entities incorporated in countries in the Asia Pacific region, the arbitration shall be held in Singapore under the then-applicable rules of the Singapore International Arbitration Centre and the substantive laws of Singapore will govern.
(v) OTHER REGIONS. In all other instances, the arbitration shall be held in New York City, New York, under the then-applicable international rules of the American Arbitration Association and the substantive laws of the State of Texas will govern.
For all arbitrations conducted hereunder: (a) the arbitration shall be conducted in English; (b) the relevant arbitral institution shall determine the number of arbitrators, but any Controversy in which the amount in dispute is greater than $10 million USD shall be decided by three arbitrators, with each party having the right to select one arbitrator; (c) the costs of such arbitration shall be borne equally, pending the arbitrator’s award; (d) the arbitration award rendered shall be final and binding on the parties, shall not be subject to appeal to any court and shall be enforceable in any court having jurisdiction over the parties; (e) the arbitration proceedings, award and pleadings shall all be confidential, unless disclosure of particular information is required for purposes of enforcing/challenging the award or to meet local securities law requirements; and (f) the party prevailing in arbitration shall be entitled to recover its reasonable attorneys’ fees and the necessary costs incurred in connection with the arbitration.
The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. Nothing in this Agreement shall be deemed as preventing either party from seeking immediate injunctive relief from any court having jurisdiction over the parties and the subject matter of the dispute.
12. The following BMC contracting entities apply to this Agreement:
Region | Contracting Entity | Address of Contracting Entity |
United States and Latin America South (not a specified Central or South America country below) | BMC Software, Inc. | 2103 CityWest Boulevard, Houston, Texas 77042 |
Canada | BMC Software Canada Inc. | 50 Minthorn Boulevard, Suite 200 Markham, Ontario L3T 7X8 Canada |
EMEA (Europe, Middle East and Africa) | BMC Software Distribution B.V. | Vision Plaza West, 2nd floor, Boeingavenue 220, 1119PN Schiphol-Rijk, The Netherlands |
Brazil | BMC Brasil Software Ltda. | Avenida Rebouças n° 3.970 e Avenida Dra. Ruth Cardoso, n° 8.501 Condomínio Eldorado Business Tower, 22° andar, Pinheiros, São Paulo – SP, CEP: 05425-070 |
Mexico | BMC Software Distribution de México, S.A. de C.V. | Calle Volcán, No.150, Piso 2, Oficina 202, Col. Lomas de Chapultepec V Sección, C.P., 11000, Alcaldía Miguel Hidalgo, Ciudad de México |
Argentina | BMC Software de Argentina S.A. | Ing. Butty 220 - Piso 18, Catalinas Plaza Buenos Aires, República de Argentina, C1001A |
S.E.A (Southeast Asia), Australia, New Zealand, Hong Kong, Taiwan | BMC Software Ireland Unlimited Company | Building 3, Cherrywood Business Park, Bray Road, Loughlinstown, CO. Dublin, D18 TF72 |
China | BMC Software (China) Limited | Room 502, Level 5, Tower W1, The Towers, Oriental Plaza, No. 1 East Chang An Ave., Dong Cheng Dist., Beijing 100738, China |
Japan | BMC Software K.K. | Harmony Tower 24th Floor, 1-32-2 Honcho, Nakano-ku, Tokyo, 164-8721 |
Korea | BMC Software Korea Ltd | 24th Fl., ASEM Tower, 1517, Yeongdong-daero,Gangnam-gu, Seoul 135-798, Korea South |
13. U.S. GOVERNMENT END USER RIGHTS. This Section applies only to acquisitions of the commercial Subscription Services subject to this Agreement by or on behalf of the United States Government, or by any prime contractor or subcontractor (at any tier) under any contract, grant, agreement or other activity with the United States Government. When Subscription Services are delivered or provided to the United States Government, the United States Government agrees that this commercial license Agreement and the Subscription Services governed by this Agreement are defined in accordance with and qualify as “commercial items” consisting of “commercial computer software” and “commercial computer software documentation” as outlined in FAR 12.211, FAR 12.212 and DFARS 227.7202-3, as applicable. The terms and conditions of this Agreement shall pertain to the United States Government’s use (including documentation or technical data), duplication, and disclosure of the Subscription Services, and shall supersede any conflicting contractual terms and conditions”.
14. DATA PROTECTION. The processing of Customer Content under this Agreement is governed by the BMC Data Processing Agreement set forth on the Order.
15. VERIFICATION. Customer agrees that BMC or its agent may monitor the Subscription Services to ensure Customer’s compliance with the terms of this Agreement. If such monitoring reveals that Customer has exceeded the Capacity for the Subscription Services, BMC may work with Customer to seek to reduce Customer’s usage so that it conforms to the Capacity limit for such Subscription Service. If, notwithstanding BMC’s efforts, Customer is unable or unwilling to abide by the Capacity limits for the Subscription Services, Customer will execute an Order for additional Capacity of such Subscription Services promptly upon BMC’s request.
16. NOTIFICATIONS. Any general notifications regarding technical matters from BMC to Customer will be sent to the Customer contact stated in the Customer Technical Contact Information section of the Order. The Customer contact in the Order has been assigned by Customer as the Customer contact for operational issues that may arise. Customer shall notify BMC of any change to the Customer contact details in writing, which may include via e-mail.
17. CONDUCTING BUSINESS WITH HONESTY AND INTEGRITY. BMC is committed to conducting business with honesty and integrity. BMC’s Code of Conduct set forth in https://www.bmc.com/legal/code-of-conduct.html governs the conduct of all officers, directors, and employees of BMC, and contingent workers and business partners acting on BMC’s behalf. BMC demonstrates its commitment to environmental stewardship by its global accreditation for ISO 14001:2015.
18. MISCELLANEOUS TERMS. The parties are independent contractors and this Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties. Customer will receive system notifications from BMC and its licensors, if applicable (i.e. planned downtime notices, etc). This Agreement, including the Attachments and Orders constitutes the entire agreement between Customer and BMC and supersedes any prior or contemporaneous negotiations or agreements, whether oral or written concerning the Subscription Services. There are no representations, promises, warranties, covenants, or undertakings between the parties other than those expressly set forth in this Agreement. There are no third-party beneficiaries to this Agreement; Customer is not entering into a contractual relationship with BMC’s licensors and BMC’s licensors have no liability to Customer. Except as provided in Section 2 above, no modification or waiver of any provision hereof will be effective unless made in a writing signed by both BMC and Customer. Customer has the right to assign this Agreement and all Orders in whole to an Affiliate, or to a successor in connection with (i) the sale of all or substantially all of the assets of that party or (ii) a merger by operation of law, by providing written notice to BMC. The assignee may not be a known direct competitor of BMC. The successor entity or Affiliate must agree in writing with BMC (in advance of the assignment) to be bound by the terms of this Agreement. Any Customer transfer or assignment except as expressly authorized above will be null and void. Should any provision of this Agreement be invalid or unenforceable, the remainder of the provisions will remain in effect. Any additional or conflicting terms of any Customer purchase order are rejected by BMC and do not apply. The Subscription Services may contain hyperlinks to websites controlled by parties other than BMC. BMC is not responsible for and does not endorse the content or accept any responsibility for Customer’s use of these websites. Customer should refer to the policies posted by other websites regarding privacy and other topics regarding data privacy before using them. In compliance with all applicable laws and for internal purposes only, BMC may compile and use de-identified, aggregate or statistical information related to Customer’s use of the BMC Subscription Services for the purposes of enhancing and improving the BMC Subscription Services, developing new products and services, and for other development, diagnostic, statistical and corrective purposes, provided that such information (a) does not incorporate Customer’s personally identifiable information or Personal Data and (b) does not identify or describe the Customer. Les parties exigent que la présente convention ainsi que les documents qui s’y rattachent soient rédigés en anglais.
Attachments incorporated into Agreement |
Attachment A – Platform Services Attachment |
Attachment B – Consulting Services Attachment |
Attachment C – On Premise Subscription Services Attachment |
PLATFORM SERVICES ATTACHMENT
to the
BMC CLOUD SERVICES MASTER AGREEMENT
Except as otherwise provided herein, the terms of the Cloud Services Master Agreement (the “Base Agreement”) are incorporated into this Platform Services attachment (the “Attachment”). Together, this Attachment and the Base Agreement (as incorporated into this Attachment) are referred to as the “Agreement” for purposes of Customer’s access and use of Platform Services, only if the Platform Services are set forth on an Order referencing the Base Agreement. For purposes of this Agreement, the term “Subscription Services” as defined in the Base Agreement shall be extended to include the Platform Services. In the event of a conflict between the Base Agreement and the terms of this Attachment, the terms of this Attachment will control for Customer’s access and use of the Platform Services only.
1. SCOPE. Subject to the terms of this Agreement, BMC will provide Customer with access to the Platform Service named in the applicable Order.
2. DEFINITIONS.
2.1 “Application” is the object code, its definitional structures, and data created to fulfill a particular purpose, which runs on the Platform Services. An Application may also include its documentation and User Guide.
2.2 “Customer Applications” means Applications that are owned or licensed by Customer, and which run on the Platform Services.
2.3 “Development Platform” means a BMC provided development platform which allows Customer to develop a custom application to run on the Platform Services. The Development Platform is a separate environment from the Platform Services.
2.4 “Platform” means the generally available BMC-provided PaaS platform and its capabilities to run Applications.
2.5 “Platform Services” means the specific Platform Services identified in the Order.
3. BMC PLATFORM SERVICES.
3.1 BMC Platform Services Support. BMC will provide Support only for Platform Services. Customer is responsible for its own support for Customer Applications.
4. CUSTOMER APPLICATIONS.
4.1 The terms contained in this section 4 apply only to Orders for Platform Services entitling Customers to develop and deploy Customer Applications onto the Platform Services. Any Customer Applications that run on the Platform Services are hereby excluded from the defined terms “Subscription Services” and “Platform Services”.
4.2 Development Platform. Customer may utilize the Development Platform to create an Application to run on the Platform Services. Customer’s use of the Development Platform is governed by the terms of this Agreement subject to the restrictions set forth in sections 4.2.1 to 4.2.6 below. Customer’s development of an Application must meet the best practices development guidelines set forth in the User Guide. Each Customer Application shall at all times materially conform to policies and best practices set forth in the User Guide. Prior to the deployment of any Customer Applications in a production or non-production environment of the Platform Services, Customer must conduct security and functional tests of each Customer Application and submit the results of such tests to BMC for review. BMC reserves the right to reject Customer’s deployment request of a Customer Application based on the results of Customer’s security and functional tests. Additionally, BMC reserves the right, during the term of this Agreement, to request Customer conduct additional security and functional tests and provide the results of said tests to BMC for review. Notwithstanding the foregoing, Customer must ensure that at all times Customer Applications are secure.
4.2.1 Scope of use. The right to access and use the Development Platform is granted solely for the purpose of performing non-production application development work on the Development Platform.
4.2.2 Restrictions of use. Customer agrees not to:
(i) use the Development Platform to (1) process production data or for any other production purposes, including but not limited to publishing digital applications, or (2) distribute applications;
(ii) use the Development Platform with data or information that has not been backed up; or
(iii) modify, delete or remove any ownership, title, trademark, patent or copyright notices.
4.2.3 Customer Responsibilities. Customer is responsible for acquiring all necessary and required licenses for the use of any third party software, source code and/or libraries Customer may use as part of its development with the Development Platform. In addition to its other rights and remedies, BMC reserves the right, without liability to Customer, to immediately, at any time and for any reason refresh Customer’s instance of the Development Platform. Upon BMC’s refreshing of Customer’s instance of the Development Platform, Customer may lose all Customer Content submitted to or stored in said instance of the Development Platform. Upon expiration or termination of the applicable Order, BMC may destroy any Customer Content submitted to or stored therein. Customer is responsible for backing up any development work with Customer Content outside of the Development Platform.
4.2.4 Open Source. Customer may not use any software, library, utility, tool, or other computer or program code (“Code”) with the Subscription Services that in any way that would (i) weaken BMC’s intellectual property rights in the Services, or (ii) require the Subscription Services to become or be disclosed or distributed as Open Source Software. For purposes of this Section, “Open Source Software” means any Code that is substantially similar to, (A) the Affero General Public License, (B) the GNU General Public License (GPL) or Lesser/Library GPL (LGPL), (C) the Artistic License (e.g. PERL), (D) the Mozilla Public License, (E) the Netscape Public License, (F) the Sun Community Source License (SCSL), (G) the Sun Standards License (SISL), or (H) any “copyleft” license, or any other license that requires as a condition of use, reproduction, modification, or distribution that such Code or other software or computer code distributed with it: (1) be disclosed or distributed in source code form; (2) be licensed for the purpose of creating derivative works; (3) be licensed under terms that allow reverse engineering, reverse assembly, or disassembly of any kind; (4) be subject to a patent non-assert or royalty-free patent license; or (iv) be redistributable at no charge.
4.2.5 No Support. BMC, its affiliates, or licensors do not provide Support for the Development Platform.
4.2.6 Disclaimer of Warranty, Limitation of Liability and Exclusive Remedy. Notwithstanding anything to the contrary in the applicable Order or this Agreement:
a. THE DEVELOPMENT PLATFORM IS PROVIDED “AS IS” WITHOUT ANY WARRANTY OF ANY KIND WHATSOEVER. BMC, ITS AFFILIATES AND LICENSORS DO NOT WARRANT THAT THE DEVELOPMENT PLATFORM WILL SATISFY CUSTOMER’S REQUIREMENTS, THAT THE DEVELOPMENT PLATFORM IS WITHOUT DEFECT, VIRUS OR ERROR FREE, WITHOUT DELAY, OR THAT THE OPERATION OF THE DEVELOPMENT PLATFORM WILL BE UNINTERUPTED. BMC, ITS AFFILIATES AND LICENSORS DISCLAIM ANY AND ALL REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, MADE WITH RESPECT TO THE DEVELOPMENT PLATFORM, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INTERFERENCE AND INFORMATION CONTENT; AND
b. NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY, FOR ANY CLAIM, LOSS, DAMAGE OR EXPENSE FOR INDIRECT, SPECIAL, CONSEQUENTIAL, PUNITIVE OR INCIDENTAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE DEVELOPMENT PLATFORM (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST COMPUTER USAGE TIME, AND DAMAGE TO, OR LOSS OF USE OF, DATA), EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EITHER PARTY’S ENTIRE LIABILITY AND THE OTHER PARTY’S EXCLUSIVE REMEDY FOR DIRECT DAMAGES ARISING OUT OF OR RELATED TO THE DEVELOPMENT PLATFORM, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, IS LIMITED TO $100.
4.3 License to Customer Applications. Subject to the terms and conditions of this Agreement, Customer hereby grants BMC a worldwide, limited, nonexclusive license during the term of the applicable Order for the Platform Services to host, copy, transmit, adapt and display Customer Applications solely for the purpose of fulfilling BMC’s obligations under this Agreement.
4.4 Functionality of Customer Applications. Customer is solely responsible for the operation of Customer Applications, including but not limited to any information stored in or transmitted by Customer Applications. Customer is responsible for monitoring the usage of each Customer Application. Customer is responsible for the configuration, functionality, performance, compliance with applicable data protection laws and security of all Customer Applications, including any interfaces used to connect to Customer Applications.
4.5 Customer Assistance. Customer will provide information or other materials related to a Customer Applications as reasonably requested by BMC to verify Customer’s compliance with the Agreement and the User Guide.
4.7 Suspension of Customer Applications. Customer’s use of the Platform Services may be immediately suspended and/or terminated due to (i) reasonable security threats regarding the Platform Services or Customer Applications, (ii) Customer Applications interfering with, disrupting or threatening the integrity or performance of the Subscription Services and/or the Platform Services, or (iii) violates the law, infringes or misappropriates the rights of any third party or otherwise violates a material term of the Agreement. In the event (i) or (ii) above apply to Customer Applications, Customer is required to remediate any such issue to BMC’s commercially reasonable satisfaction before use of Customer Applications can resume. BMC shall use reasonable commercial efforts to only suspend the non-conforming portion of the Platform Services.
4.8 CUSTOMER APPLICATIONS WARRANTIES. Customer warrants to BMC that: (a) each Customer Application will perform materially in accordance with the User Guide; (b) Customer has all rights in the Customer Content and Customer Applications necessary to grant the rights contemplated by this Agreement; (c) none of the Customer Content or Customer Applications or Users’ use of Customer Content or Customer Applications will violate the Agreement and the User Guide; and (d) Customer’s security and functional tests of Customer Applications was conducted in a commercially reasonable manner and the results of said tests provided to BMC for review are correct and valid.
ATTACHMENT B
CONSULTING SERVICES ATTACHMENT
to the
BMC CLOUD SERVICES MASTER AGREEMENT
Except as otherwise provided herein, the terms of the Cloud Services Master Agreement (the “Base Agreement”) are incorporated into this Consulting Services attachment (the “Attachment”). Together, this Attachment and the Base Agreement (as incorporated into this Attachment) are referred to as the “Agreement” for purposes of Customer’s purchase of Consulting Services, only if Consulting Services are set forth on an Order referencing the Base Agreement. For purposes of this Agreement, the term “Subscription Services” as defined in the Base Agreement shall be extended to include Consulting Services. In the event of a conflict between the Base Agreement and the terms of this Attachment, the terms of this Attachment will control for Customer’s purchase of Consulting Services only. The parties agree that the following Sections of the Base Agreement do not apply to the Consulting Services provided under this Attachment: Section 3.2 (Support), Section 4 (Fees and Payment), and Section 6 (Limited Warranty).
1. SCOPE. BMC agrees to render to Customer Consulting Services under the terms of this Agreement and as further described in an Order. BMC will render the Consulting Services in the location(s) as set forth in the Order. The performance of the Consulting Services will not relieve or alter the rights, obligations and responsibilities of Customer and of the BMC Affiliate providing Subscription Services and/or Licenses with respect to Subscription Services and/or Licenses under the applicable agreement.
2. SERVICE FEES AND EXPENSES. The fees payable to BMC for the Consulting Services to be rendered will be detailed in the Order. BMC will submit invoices to Customer for such fees and incurred expenses either upon completion of the Consulting Services, or at stated intervals, in any case in accordance with the applicable Order. Customer shall pay amounts invoiced within 30 days of the date of the invoice.
3. EDUCATION. Customer may acquire Learning Pass Credits and Education Services (collectively, “BMC Education ”) on an Order. The BMC Education terms that govern such Orders are set forth in the Education Program Guide located at https://www.bmc.com/content/dam/bmc/education/education-program-guide.pdf, and is incorporated herein by this reference.
4. STATEMENTS OF WORK. Consulting Services may require the execution of a Statement of Work, in which case, such Statement of Work will be considered an Order for such Consulting Services. In the event of any conflict between the terms of a Statement of Work and this Agreement, the Agreement shall prevail except for matters of service fees, payment and reimbursement of expense, and termination of Consulting Services if further specified in the Statement of Work. During the term of an applicable Statement of Work, and for a period of six months thereafter, neither party will solicit for employment any employees, agents, or subcontractors of the other party or its affiliates who, within six months prior to such solicitation, had contact with the soliciting party based in whole or in part upon Consulting Services provided under this Agreement. The restrictions in this section shall be deemed not to apply to general solicitations for employment posted on Internet job sites or printed in newspapers or trade or professional journals.
5. PROPRIETARY RIGHTS AND RIGHTS IN DELIVERABLES.
5.1 Ownership of Materials Used in the Consulting Services. Unless specifically provided in an Order, Customer shall supply all of the facilities; equipment; supplies; computer programs; information about Customer’s business, systems, software and needs; and other materials necessary for completion of the Consulting Services (“Customer Property”), and BMC shall supply the people described in the Order, the know-how and the tools necessary to provide the Consulting Services, which may include, among other things, software, templates, questionnaires, graphs, methodologies, models, charts and reports (“BMC Property”). Customer Property and copies and modifications of Customer Property will remain the sole property of Customer or if applicable, Customer’s licensors, and BMC Property and copies and modifications of BMC Property will remain the sole property of BMC or if applicable, BMC’s licensors. Customer hereby grants to BMC a royalty-free, paid-up, non-exclusive, non-sublicensable and non-transferable license to use the Customer Property for the purpose of providing the Consulting Services.
5.2 Deliverables. Deliverables are those created under the Order, including, but not limited to, software, software scripts, routines, libraries or other code, or appliances, methodologies, templates, tools, policies, records, working papers, reports, methodologies, know-how, data, or other intellectual property, written or otherwise, including any derivative works or modifications to the above, whether pre-existing or created during the performance of the Consulting Services and all proprietary and intellectual property rights embedded therein delivered as a result of the Consulting Services as specified under the Order. BMC owns all right, title and interest in the Deliverables. Provided Customer has paid in full for the Consulting Services that resulted in the Deliverables, BMC will deliver the Deliverables to Customer in accordance with the applicable Order. Subject to compliance with the terms of this Agreement and the applicable Order, BMC grants Customer a non-exclusive, non-transferable, non-sublicensable, royalty-free, paid-up license to use, create derivative works of and modify all Deliverables solely for its internal business operations.
5.3 Copyright Notice. Each party agrees to reproduce the copyright notice and any other legend or ownership notice on any copies made under the licenses granted pursuant to this Section 5.
5.4 Retention. Customer acknowledges that BMC provides similar services to other customers and that nothing in this Agreement shall be construed as operating to prevent BMC from carrying on such business. Further BMC may use ideas, concepts, or know-how developed or acquired by BMC during performance of the Consulting Services to the extent by BMC’s personnel as impressions and general learning.
6. LIMITED WARRANTY. BMC warrants that it will perform the Consulting Services in conformance with generally accepted practices within the software services industry and in accordance with the Order. Customer must notify BMC of any breach of this warranty no later than 90 days after completion of the Consulting Services under the Order. Customer’s exclusive remedy and BMC’s entire liability under this warranty shall be for BMC to re-perform any non-conforming portion of the Consulting Services within a reasonable period of time, or if BMC cannot remedy the breach during such time period then refund the portion of the fee attributable to such non-conforming portion of the Consulting Services under the Order. This warranty will not apply to the extent Customer, its contractors or agents have modified any Deliverable, unless otherwise authorized by BMC in writing.
EXCEPT FOR THE EXPRESS WARRANTIES IN THIS AGREEMENT, THE CONSULTING SERVICES AND DELIVERABLES ARE PROVIDED WITH NO OTHER WARRANTIES WHATSOEVER, AND BMC, ITS AFFILIATES AND LICENSORS DISCLAIM ALL OTHER WARRANTIES, INCLUDING, FITNESS FOR A PARTICULAR PURPOSE AND IN THE UNITED STATES AND CANADA, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, AND NON-INFRINGEMENT.
7. INSURANCE. BMC will provide and maintain the following insurance, but only for losses arising out of BMC’s provision of Consulting Services under this Attachment: a) Worker’s Compensation insurance as prescribed by the law of the state applicable to the employees performing the Consulting Services; (b) Employer’s Liability insurance with a limit of $1,000,000 USD for each occurrence; (c) Commercial General Liability insurance with $1,000,000 USD per occurrence combined single limit and $2,000,000 USD general aggregate, including coverage for Products Liability and Completed Operations; (d) Automobile Liability insurance, including coverage for Hired and Non-owned vehicles of $1,000,000 USD for combined single limit for bodily injury and/or property damage; and (e) Professional Liability insurance covering Errors and Omissions in the amount of $1,000,000 USD for each occurrence and in the aggregate associated with Consulting Services performed under this Agreement.
8. MUTUAL INDEMNITY. Each party shall indemnify and hold harmless the other party from all claims, liabilities or expenses for physical damage to real property or tangible personal property and bodily injury, including death, to the extent caused by the negligence, gross negligence or willful misconduct of the indemnifying party’s employees or contractors arising out of this Agreement and while at the Customer’s premises. The foregoing indemnities are contingent upon the party seeking indemnity giving prompt written notice to the indemnifying party of any claim, demand or action, and cooperating with the indemnifying party in the defense or settlement of any such claim, demand or action.
9. INDEPENDENT CONTRACTOR. All of the services performed by BMC under this Agreement will be performed as an independent contractor.
ATTACHMENT C
ON PREMISE SUBSCRIPTIONS ATTACHMENT
to the
BMC CLOUD SERVICES MASTER AGREEMENT
Except as otherwise provided herein, the terms of the Cloud Services Master Agreement (the “Base Agreement”) are incorporated into this On Premise Subscriptions attachment (the “Attachment”). Together, this Attachment and the Base Agreement (as incorporated into this Attachment) are referred to as the “Agreement” for purposes of Customer’s purchase and ongoing use of On Premise Subscriptions, only if On Premise Subscriptions are set forth on an Order referencing the Base Agreement. For purposes of this Agreement, the term “Subscription Services” as defined in the Base Agreement shall be extended to include On Premise Subscriptions. In the event of a conflict between the Base Agreement and the terms of this Attachment, the terms of this Attachment will control for Customer’s purchase of On Premise Subscriptions only. The parties agree that the following Sections of the Base Agreement do not apply to the On Premise Subscriptions provided under this Attachment: Section 3.1 (Access Rights), Section 3.5 (Customer Responsibilities and Restrictions), Section 6 (Limited Warranty) and Section 15 (Verification).
1. DEFINITIONS.
1.1 “Authorized User” means Customer, Customer Affiliate(s), and their employees, consultants, contractors and agents that are bound by the terms and conditions no less restrictive than those contained herein and for whom Customer takes full responsibility. Authorized Users do not include service providers or outsourcers.
1.2 "Documentation" means the technical publications relating to the software, such as release notes, license entitlement descriptions, reference, user, installation, systems administrator and technical guidelines, included with the On Premise Subscription.
1.3 “Licensed Capacity” is the amount of each On Premise Subscription licensed as established in the Order.
1.4 “On Premise Subscription” is the object code of the software and all accompanying Documentation delivered to Customer, including all items delivered by BMC to Customer under Support.
2. LICENSE. Subject to the terms, conditions, payment requirements and restrictions set forth in this Agreement, BMC grants Customer a non-exclusive, non-transferable, non-sub-licensable term license to install in the Territory as defined in an Order, access and use the On Premise Subscription during the term specified on the Order (i) by Authorized User(s), (ii) up to the Licensed Capacity, (iii) for Customer’s and its Affiliates’ internal business operations, (iv) in accordance with the Documentation and the applicable Order, and (v) make a reasonable number of copies of the On Premise Subscription for archival purposes only (collectively a "License"). Affiliates may use and access the On Premise Subscriptions under the terms of this Agreement, and Customer is responsible for its Affiliates compliance with the terms of this Agreement.
3. RESTRICTIONS. Customer will not: (a) copy, operate or use any On Premise Subscription in excess of the applicable Licensed Capacity or other than as set forth in the License above; (b) modify, delete or remove any ownership, title, trademark, patent or copyright notices (“Identification”) from any On Premise Subscription, or copy or partial copy of an On Premise Subscription; (c) disassemble, reverse engineer, decompile or otherwise attempt to derive any On Premise Subscription source code from object code, except to the extent expressly permitted by applicable law despite this limitation without possibility of contractual waiver; (d) distribute, rent, lease, sublicense or provide the On Premise Subscription to any third party; (e) use the On Premise Subscriptions in an outsourcing or service bureau environment on behalf of non-Affiliate third parties, or allow the On Premise Subscriptions to be used by an outsourcing or service bureau provider on Customer’s behalf (without obtaining prior written approval from BMC); (f) provide a third party with the results of any functional evaluation, product vulnerability or performance tests, without BMC's prior written approval; or (g) attempt to disable or circumvent any of the licensing mechanisms within the On Premise Subscription.
4. ON PREMISE SUBSCRIPTION PERFORMANCE WARRANTY. BMC warrants that (a) the On Premise Subscription will perform in substantial accordance with its Documentation for a period of one year from the date of the first Order, (b) BMC has used commercially reasonable efforts consistent with industry standards to scan for and remove software viruses, and (c) other than passwords that may be required for the operation of the On Premise Subscription, BMC has not inserted any code that is not addressed in the Documentation and that is designed to delete, interfere with or disable the normal operation of the On Premise Subscription in accordance with the License. This warranty will not apply to any problems caused by hardware, Computers, or software other than the On Premise Subscription, or misuse of the On Premise Subscription, use of the On Premise Subscription other than as provided by the applicable License, modification of the On Premise Subscription, or claims made either outside the warranty period or not in compliance with the notice and access requirements set forth below. No warranty is provided for additional Licensed Capacity, On Premise Subscription provided pursuant to Support. BMC’s entire liability, and Customer’s exclusive remedy, for breach of the above warranty is limited to: BMC’s use of commercially reasonable efforts to have the On Premise Subscription perform in substantial accordance with its Documentation, or replacement of the non-conforming On Premise Subscription within a reasonable period of time, or if BMC cannot have the On Premise Subscription perform in substantial accordance with its Documentation replace the On Premise Subscription within such time period, then BMC will refund the amount paid by Customer for the License for that On Premise Subscription. Customer’s rights and BMC's obligations in this Section are conditioned upon Customer’s providing BMC during the warranty period (i) full cooperation and access to the On Premise Subscription in resolving any claim; and (ii) written notice addressed to the BMC Legal Department that includes notice of the claim, a complete description of the alleged defects sufficient to permit their reproduction in BMC’s development or support environment, and a specific reference to the Documentation to which such alleged defects are contrary.
EXCEPT FOR THE EXPRESS WARRANTIES IN THIS ATTACHMENT, THE ON PREMISE SUBSCRIPTION IS PROVIDED WITH NO OTHER WARRANTIES WHATSOEVER, AND BMC, ITS AFFILIATES AND LICENSORS DISCLAIM ALL OTHER WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE AND IN THE UNITED STATES AND CANADA, MERCHANTABILITY AND NON-INFRINGEMENT. BMC DOES NOT WARRANT THAT THE OPERATION OF THE ON PREMISE SUBSCRIPTION WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT ALL DEFECTS CAN BE CORRECTED.
5. DELIVERY. For On Premise Subscriptions that are delivered electronically, upon request from BMC, Customer agrees to provide BMC with documentation supporting that the designated On Premise Subscription was received electronically. If Customer accepts any On Premise Subscription in a non-electronic format, there may be an additional charge and it is the sole responsibility of Customer to bear any sales/use tax obligation, penalties, and interest. All On Premise Subscriptions are licensed FCA (“Free Carrier” as per Incoterms 2000) shipping point. The On Premise Subscriptions are accepted on the date BMC delivers the On Premise Subscription to the Customer either physically or by providing access codes for electronic download, whichever occurs first, however, such acceptance will not affect the On Premise Subscription Performance Warranty provided in this Agreement.
6. AUDIT. If requested by BMC, and not more than once a year, Customer agrees to deliver to BMC, within 30 days of such request, as specified by BMC either (a) periodic product usage reports generated from specific products or (b) written periodic product usage reports, to be provided solely when the product does not generate reports (“Report”). Additionally, if requested by BMC not more than once a year and upon at least ten days prior written notice to Customer, Customer agrees to allow BMC to perform an audit (“Audit”) to ensure compliance with the terms of this Agreement at the locations where the On Premise Subscriptions are installed, during normal business hours. to ensure compliance with the terms of this Agreement. Customer agrees to cooperate during any such Audit and to provide reasonable access to its information and systems.
Effective August 3rd 2022 to October 5th 2022
DownloadTable of Contents
BMC CLOUD SERVICES MASTER AGREEMENT
THIS CLOUD SERVICES MASTER AGREEMENT (“AGREEMENT”) GOVERNS YOUR FREE TRIAL, IF ANY, OF THE SUBSCRIPTION SERVICES.
IF YOU PURCHASE THE SUBSCRIPTION SERVICES, THIS AGREEMENT WILL ALSO GOVERN YOUR PURCHASE AND ONGOING USE OF THE SUBSCRIPTION SERVICES.
BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SUBSCRIPTION SERVICES.
You may not access the Subscription Services if you are BMC’s direct competitor, except with BMC’s prior written consent. In addition, you may not access the Subscription Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.
This Agreement was last updated on August 3, 2022. This Agreement is between the entity or individual entering into this Agreement (“Customer”) and the BMC Contracting Entity for the applicable region as described in Section 12 (“BMC”). It is effective between Customer and BMC as of the date of your acceptance of this Agreement. If Customer has a fully executed BMC Cloud Services Master Agreement then such fully executed BMC Cloud Services Master Agreement supersedes and replaces any clickwrap or click-through agreements (or other similar agreements) that Customer may be required to accept as a part of accessing or using the Subscription Services. For Customer’s convenience, prior versions of this Agreement are available at https://www.bmc.com/legal/csma.html.
FREE TRIAL.
BMC may make the Subscription Services available to Customer on a trial basis free of charge. If BMC offers Customer a free trial, it will run until the earlier of (a) the end of the trial period stated on the trial registration web page or (b) the start date of any Order for purchase of the Subscription Services. Additional trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.
ANY DATA CUSTOMER ENTERS INTO THE SUBSCRIPTION SERVICES, AND ANY CUSTOMIZATIONS MADE TO THE SUBSCRIPTION SERVICES BY OR FOR CUSTOMER, DURING A FREE TRIAL MAY BE PERMANENTLY LOST.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THE AGREEMENT, DURING ANY FREE TRIAL PERIOD THE SUBSCRIPTION SERVICES ARE PROVIDED “AS IS” WITH NO WARRANTY.
1. DEFINITIONS.
1.1 “Affiliate” is an entity that controls, is controlled by or shares common control with BMC or Customer, where such control arises from the legal power to direct or cause the direction of the general management and policies of the company, partnership or legal entity.
1.2 "Capacity” means the amount of access to the Subscription Services purchased as specified in an Order, which is counted in accordance with the Unit of Measure described in the Order.
1.3 “Consulting Services” means the consulting, implementation, training or other services provided under the terms of Attachment B (Consulting Services) and as further described under the applicable Order.
1.4 “Customer Content” means all electronic data or information (a) submitted to the Subscription Services by Customer, a third party on behalf of Customer, or as directed by Customer or (b) collected, processed or returned by the Subscription Services .
1.5 “Order” means (i) the agreed ordering document for the purchase of the Subscription Services, (ii) that is subject to this Agreement, and (iii) that identifies the terms of the purchase and fees to be paid. The term “Order” includes Customer’s online registration for and purchase of the Subscription Services, If any.
1.6 "Subscription Services" means the generally available hosted service which packages web-based access and the right-to-use the supported applications, installed agents and associated reference, user and technical guides.
1.7 “User Guide” means the online help, functional guide and technical specifications for the Subscription Services, as updated by BMC from time to time.
2. SCOPE. Subject to the terms of this Agreement, Customer may purchase and BMC will provide Customer with access to the Subscription Services as set forth in this Agreement and the applicable Order. Subject to the Attachments to this Agreement, Customer may also purchase BMC Platform Services, BMC Consulting Services and BMC On Premise Subscription Services. In the event of a direct conflict between any Order and the terms of this Agreement, the terms of the Order will control only if the Order is executed by an authorized representative of each party. Each Order is deemed to be a discrete contract, separate from each other Order, unless expressly stated otherwise therein. Orders may be entered under this Agreement by and between (a) BMC or an Affiliate of BMC; and (b) Customer or an Affiliate of Customer. With respect to an Order, the terms “BMC” and “Customer” as used in this Agreement will be deemed to refer to the entities that execute that Order, the Order will be considered a two party agreement between such entities, and BMC will separately invoice the Customer named in the Order for the associated fees. Orders may also be placed via a BMC authorized reseller. Neither execution of this Agreement, nor anything contained herein, shall obligate either party to enter into any Orders.
3. ACCESS TO SUBSCRIPTION SERVICES.
3.1 Access Rights. Subject to Customer’s payment of applicable fees and to the terms of this Agreement, BMC will provide Customer with worldwide access to the Subscription Services in accordance with the Order (i) up to the Capacity, (ii) for Customer’s and its Affiliates’ internal business operations, (iii) in accordance with the User Guide and the applicable Order. Customer may exercise its rights under this Section 3.1 through its service providers, outsourcers, employees, consultants, contractors, agents, and Affiliates (all, “Users”).
3.2 BMC Subscription Services Support. BMC will provide the support described at http://www.bmc.com/support/review-policies (“Support”) to Customer for the Subscription Services.
3.3 Use of Subcontractors. Customer acknowledges and agrees that BMC uses subcontractors to provide portions of the Subscription Services. BMC will provide a list of its current subcontractors upon Customer’s written request. BMC is responsible for the performance of all subcontractors providing any of the Subscription Services.
3.4 Compliance with Laws. Each party shall comply with all applicable laws in the performance of its obligations under this Agreement.
3.5 Customer Responsibilities and Restrictions.
(a) Customer will (i) maintain the confidentiality of all authentications and passwords for the Subscription Services and immediately notify BMC if it becomes aware that an unauthorized party has gained access such authentications and passwords, (ii) be responsible for use of the Subscription Services by its Users in compliance with this Agreement, (iii) prevent unauthorized access to, or use of, the Subscription Services, and notify BMC promptly of any such unauthorized access or use, and (iv) be responsible for obtaining its own Apple Push Notification certificate, if the Subscription Services are used to manage devices running iOS. Customer is responsible for the creation and implementation of a privacy policy and end user agreement, if applicable, which will set forth the guidelines of how Customer uses and protects the data and personal information of its Users, and how said Users may utilize the Subscription Services.
(b) Customer will not (i) modify, copy or create derivative works based on the Subscription Services; (ii) create Internet “links” to or reproduce any content forming part of the Subscription Services, other than for its own internal business purposes; (iii) disassemble, reverse engineer, or decompile the Subscription Services or part thereof, except to the extent expressly permitted by applicable law despite this limitation without possibility of contractual waiver; (iv) interfere with or disrupt the integrity or performance of the Subscription Services; (v) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortuous material, or send or store material in violation of any third party’s privacy rights via the Subscription Services; (vi) send or store viruses or malicious code via the Subscription Services; (vii) attempt to gain unauthorized access to the Subscription Services or its related software, systems, platforms or networks, including any form of security and/or penetration testing; (viii) use any components provided with the Subscription Services separately from the Subscription Services; or (ix) distribute, rent, lease or provide the Subscription Services to any third party or use it in a service bureau, outsourcing environment, or for the processing of third party data.
4. FEES AND PAYMENT.
4.1 Fees. The fees payable for the Subscription Services and the payment period for such fees will be set forth in and paid in accordance with the Order. All payments are due within 30 days of the date of the invoice.
4.2 Late Fees. Late balances may, at BMC’s sole election, bear interest at a rate equal to the lesser of 1% per month or the maximum amount permitted by law.
4.3 Taxes. Customer will pay taxes imposed in connection with the fees paid for the Subscription Services, which are exclusive of these taxes.
4.4 Solution Providers. With regard to Subscription Services acquired by Customer through an authorized reseller ("Solution Provider") of BMC, notwithstanding anything to the contrary in sections 4.1 and 4.2 above, Customer will have no direct payment obligations to BMC for such fees.
5. TERM, SUSPENSION AND TERMINATION.
5.1 Term. This Agreement begins on the Effective Date and will remain in effect unless terminated pursuant to Section 5.2 below, regardless of the billing frequency selected in the Order.
5.2 Termination.
(a) Termination for Convenience. Customer may terminate this Agreement by providing BMC with at least 30 days prior written notice; provided, however, such termination will have no effect on Orders in effect at the time of such termination. Orders may not be terminated for convenience unless otherwise specified therein. Customer may notify BMC of its intent to terminate by emailing BMC at order_services@bmc.com.
(b) Termination for Cause. Either party may terminate this Agreement and/or an Order for cause upon 30 days’ written notice of a material breach to the other party if such breach remains uncured at the expiration of such period. In the event Customer terminates the Agreement and an Order for BMC’s material breach, BMC will refund the amount paid by Customer to BMC for the Subscription Services on such Order, pro-rated from the date of the notice of the termination.
5.3 Suspension of Subscription Services for Cause. In addition to its other rights and remedies, BMC reserves the right, without liability to Customer, to suspend any and all access to the Subscription Services if Customer commits a material breach of this Agreement and fails to cure the same within 30 days from Customer’s receipt of written notice of such breach from BMC. Provided however, that BMC may immediately suspend any and all access to the Subscription Services without any cure period if BMC determines in good faith that Customer’s material breach of the Agreement will cause damage to BMC, the Subscription Services, or any other customer.
5.4 Effects of Termination. Upon termination or expiration of any Order or this Agreement, all rights and Licenses granted thereunder will terminate and Customer will make no further use of the Subscription Services. No termination will relieve the Customer of the obligation to pay any fees accrued or payable to BMC pursuant to any Order. Upon written request by Customer made within 45 days after the effective date of termination, BMC will make the Customer Content available to Customer for retrieval in an industry standard format. After such 45-day period, BMC shall have no obligation to maintain any Customer Content and will thereafter delete Customer Content. Any terms in this Agreement which by their nature extend beyond termination of this Agreement will remain in effect until fulfilled.
5.5 Termination Assistance. Upon Customer’s request and upon (a) the expiration of an Order or (b) the termination of an Order for any reason other than Customer’s breach, BMC shall perform such services as the parties in good faith agree are reasonably necessary to facilitate the orderly transition of the Services to the successor service provider or to the Customer. BMC will provide any such services under the terms and conditions of the Agreement, and subject to payment of the then-current fees and charges, generally applicable to BMC’s performance of such services, as agreed between the parties at such time.
6. LIMITED WARRANTY.
6.1 Warranties and Limited Remedies. BMC warrants to Customer that:
(a) the online availability of the Subscription Services will be maintained in accordance with the service levels attached to the applicable Order, if any (the “Service Level Agreement” or “SLA”). Customer’s exclusive remedy and BMC’s sole obligation for breach of the warranty in this Section 6.1(a) is described in the Service Level Agreement;
(b) the Subscription Services (i) will perform in substantial accordance with the then-current on-line User Guide available via the Subscription Services and (ii) will be performed in a manner consistent with industry standards reasonably applicable to the provision thereof. Customer’s exclusive remedy and BMC’s sole obligation for breach of the warranty in this Section 6.1(b) will be BMC’s use of commercially reasonable efforts to have the Subscription Services perform in substantial accordance with the User Guide, or replace the non-conforming portion of the Subscription Services within 60 days from the written notice of claim, or if BMC cannot have the Subscription Services perform in substantial accordance with the User Guide or replace the Subscription Services within such time period, then Customer may terminate the non-performing Subscription Services, and upon such termination BMC will refund the amount paid by Customer for the Subscription Services, pro-rated from the date of the notice of the claim. Customer’s rights and BMC’s obligations in this Section 6.1(b) are conditioned upon Customer’s providing BMC with written notice of the claim, a complete description of the alleged defects and a specific reference to the User Guide to which such alleged defects are contrary; and
(c) In connection with the Subscription Services (i) it has used commercially reasonable efforts consistent with industry standards to scan for and promptly remove any software viruses for no charge and (ii) it has not inserted any Disabling Code. “Disabling Code” means computer code inserted by BMC, that is not addressed in the User Guide, and that is designed to expose data, delete, interfere with, and/or disable the normal operation of the Subscription Services. This Disabling Code warranty does not apply to BMC passwords necessary for the operation of the Subscription Services, or for any use by Customer outside the scope of this Agreement.
6.2 Disclaimer. CUSTOMER ACKNOWLEDGES THAT, EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, BMC, ITS AFFILIATES AND LICENSORS MAKE NO WARRANTY, EXPRESS, IMPLIED OR STATUTORY WITH RESPECT TO THE SUBSCRIPTION SERVICES OR USE THEREOF. BMC, ITS AFFILIATES AND LICENSORS HEREBY EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY THAT SUBSCRIPTION SERVICES WILL BE UNINTERRUPTED, ERROR FREE OR WITHOUT DELAY, AND THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INTERFERENCE, NON-INFRINGEMENT AND INFORMATION CONTENT.
7. PROPRIETARY RIGHTS AND CONFIDENTIALITY.
7.1 Proprietary Rights. BMC, its Affiliates or licensors retain all right, title and interest to the Subscription Services and all related intellectual property and proprietary rights. The Subscription Services are protected by applicable copyright, trade secret, industrial and other intellectual property laws. BMC owns all right, title and interest in all software, programming, documentation, templates, questionnaires, methodologies, models, charts, reports, ideas, features, content, functions, graphics and any other items provided as part of the Subscription Services (“ Service Items”) and access to and use of the relevant Service Items will be governed by the terms of this Agreement. Subject to (i) BMC’s or its licensor’s ownership of any Service Items and (ii) section 3.4 (b) (i) of the Agreement, Customer owns all rights, title, and interest in Customer Applications, including all proprietary and intellectual property rights. BMC reserves any rights not expressly granted to Customer. Customer shall not access the Subscription Services in order to build a competitive product or service or copy any ideas, features, functions or graphics of the Subscription Services. “ Confidential Information” means all proprietary or confidential information that is disclosed to the recipient (“Recipient”) by the discloser (“ Discloser”), and includes, among other things (i) any and all information relating to products or services provided by a Discloser, its customer-related and financial information, software code, BMC product vulnerabilities, flow charts, techniques, specifications, development and marketing plans, strategies, and forecasts; (ii) as to BMC, and its licensors, the Subscription Services and Service Items; and (iii) the terms of this Agreement, including without limitation, pricing information. Confidential Information does not include information that Recipient can show: (a) was rightfully in Recipient’s possession without any obligation of confidentiality before receipt from the Discloser; (b) is or becomes a matter of public knowledge through no fault of Recipient; (c) is rightfully received by Recipient from a third party without violation of a duty of confidentiality; or (d) is or was independently developed by or for Recipient. Recipient may not disclose Confidential Information of Discloser to any third party or use the Confidential Information in violation of this Agreement. The Recipient (i) will exercise the same degree of care and protection with respect to the Confidential Information of the Discloser that it exercises with respect to its own Confidential Information and (ii) will not, either directly or indirectly, disclose, copy, distribute, republish, or allow any third party to have access to any Confidential Information of the Discloser. Notwithstanding the foregoing, Recipient may disclose Discloser’s Confidential Information to Recipient’s employees and agents who have need to know provided that such employees and agents have legal obligations of confidentiality substantially the same (and in no case less protective) as the provisions of this Agreement.
7.2 Notification Obligation. If the Recipient becomes aware of any unauthorized use or disclosure of Discloser’s Confidential Information, then Recipient will promptly and fully notify the Discloser of all facts known to it concerning such unauthorized use or disclosure. In addition, if the Recipient or any of its employees or agents are required (by oral questions, interrogatories, requests for information, or documents in legal proceedings, subpoena, civil investigative demand, or other similar process) to disclose any of Discloser’s Confidential Information, the Recipient will not disclose the Discloser’s Confidential Information without providing the Discloser with commercially reasonable advance prior written notice to allow Discloser to seek a protective order or other appropriate remedy or to waive compliance with this provision. In any event, the Recipient will exercise its commercially reasonable efforts to preserve the confidentiality of the Discloser’s Confidential Information, including, without limitation, cooperating with Discloser to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded to the Confidential Information.
7.3 Customer Content. As between BMC and Customer, Customer owns all rights, title and interest in and to Customer Content. Customer Content is deemed Confidential Information under this Agreement. BMC will use the Customer Content only as necessary to provide the Subscription Services in accordance with this Agreement. At any time during the term of the Subscription Services, Customer may request copies of all Customer Content from the Subscription Services. Customer is responsible for complying with all legal and contractual requirements, including its agreements with third parties. With the exception of Customer Content collected by the Subscription Services, Customer is solely responsible for the transmission of Customer Content to BMC and to the Subscription Services. Customer is solely responsible for the encryption of any Customer Content during such transmission.
7.4 Suggestions. Customer agrees that BMC shall have a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into any BMC products or services any suggestions, enhancement requests, recommendations or other feedback provided by Customer relating to the Subscription Services.
8. DISCLAIMER OF DAMAGES AND LIMITS ON LIABILITY.
8.1 DISCLAIMER OF DAMAGES. NEITHER PARTY OR ITS AFFILIATES OR LICENSORS ARE LIABLE FOR ANY, SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES RELATING TO OR ARISING OUT OF THIS AGREEMENT OR THE SUBSCRIPTION SERVICES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST COMPUTER USAGE TIME, AND DAMAGE TO, OR LOSS OF USE OF, DATA), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND IRRESPECTIVE OF ANY NEGLIGENCE OF A PARTY OR WHETHER SUCH DAMAGES RESULT FROM A CLAIM ARISING UNDER TORT OR CONTRACT LAW. THE FOREGOING LIMITATIONS DO NOT APPLY TO EACH PARTY’S RESPONSIBILITIES IN SECTION 9, INFRINGEMENT BY A PARTY OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, GROSS NEGLIGENCE, WILLFUL MISCONDUCT, DEATH OR BODILY INJURY, ACTS OF FRAUD, NOR ANY LIABILITY WHICH MAY NOT BE EXCLUDED OR LIMITED BY LAW.
8.2 LIMITS ON LIABILITY. NEITHER PARTY OR ITS AFFILIATES OR LICENSORS SHALL HAVE AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SUBSCRIPTION SERVICES, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEEDING THE AMOUNTS ACTUALLY PAID BY AND PAYABLE FROM CUSTOMER FOR THE SUBSCRIPTION SERVICES GIVING RISE TO LIABILITY PURSUANT TO THE ORDER(S) THAT ARE IN EFFECT AS OF THE DATE THE LIABILITY FIRST AROSE. THE FOREGOING LIMITATIONS DO NOT APPLY TO EACH PARTY’S RESPONSIBILITIES IN SECTION 9, INFRINGEMENT BY A PARTY OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, GROSS NEGLIGENCE, WILLFUL MISCONDUCT, DEATH OR BODILY INJURY, ACTS OF FRAUD, NOR ANY LIABILITY WHICH MAY NOT BE EXCLUDED OR LIMITED BY LAW.
9. INFRINGEMENT CLAIMS.
9.1 Indemnification by BMC . If a third party asserts a claim against Customer asserting that Customer’s use of the Subscription Services, including Platform Services, Deliverables and Licenses as defined in the Attachments to this Agreement, in accordance with this Agreement violates that third-party’s patent, trade secret or copyright rights (“Infringement Claim”), then BMC will, at its own expense: (a) defend or settle the Infringement Claim; and (b) indemnify Customer for any damages finally awarded against Customer based on infringement by the Subscription Services or Deliverables, including court costs and reasonable attorney’s fees. If BMC believes the Subscription Services may violate a right, then BMC will, at its expense: (a) modify the Subscription Services, or (b) procure the right to continue using the Subscription Services, and if (a) or (b) are not commercially reasonable, terminate Customer's right to use the Subscription Services and issue a pro-rata refund for the unexpired pre-paid portion of such Subscription Services.
9.2 Indemnification by Customer. Subject to the terms of this Agreement, if a third party asserts a claim against BMC asserting that the (i) Customer Content, (ii) Customer Applications as defined in Attachment A, (iii) Customer Property as defined in Attachment B or (iv) Customer’s use of the Subscription Services in violation of this Agreement violates that third-party’s patent, trade secret or copyright rights (“ Claim”), Customer will, at its own expense: (a) defend or settle the Claim; and (b) indemnify BMC for any damages finally awarded against BMC based on the Claim, including court costs and reasonable attorney’s fees.
9.3 Indemnity Process. Neither party’s obligations under this Section 9 will apply if: (a) the indemnifying party’s legal department does not receive prompt, detailed written notice of the Infringement Claim/Claim from the party being indemnified, (b) the indemnifying party is not able to retain sole control of the defense of the Infringement Claim/Claim and all negotiations for its settlement or compromise, or (c) the indemnifying party does not receive all reasonable assistance from the party being indemnified. Neither party will bind the indemnified party to a monetary obligation in a settlement or compromise, or make an admission on behalf of the indemnified party, without obtaining that party’s prior consent.
9.4 THIS SECTION 9 CONTAINS EACH PARTY'S EXCLUSIVE REMEDIES AND THE INDEMNIFYING PARTY'S SOLE LIABILITY FOR INFRINGEMENT CLAIMS/CLAIMS, RESPECTIVELY.
10. EXPORT CONTROLS. Both parties agree to comply with applicable export regulations, including but not limited to U.S. Export Administration Regulations and the OFAC embargoes and sanctions lists. More information on BMC’s export compliance program may be found here: https://www.bmc.com/legal/export-compliance.html.
11. GOVERNING LAW AND DISPUTE RESOLUTION. Any controversy, dispute or claim arising out of or relating to this Agreement, or to the formation, interpretation, breach, termination, or validity thereof (each, a “Controversy”) will be resolved as follows:
(i) UNITED STATES. If both parties to this Agreement are entities incorporated under the law of any state in the United States, the Controversy shall be tried in either state or federal court located in Houston, Texas and the laws of the State of Texas shall govern. Both parties hereby submit to the exclusive jurisdiction of the courts in Houston, Texas and waive all defenses based on forum non conveniens. Notwithstanding the foregoing, if Customer is a state or local governmental entity or higher education institution and legally required to apply state law, then Customer’s state law will apply to the Controversy, without reference to conflict of law principles.
(ii) CANADA. If Customer is located in Canada (outside Quebec), then the law of the Province of Ontario law apply, without reference to conflict of law principles. If Customer is located in Quebec, then the laws of the Province Quebec will apply, without reference to conflict of law principles.
(iii) EMEA. If both parties to this Agreement are entities incorporated in countries in the Europe, Middle East, or Africa regions, the Controversy shall be tried in the District Court located in Amsterdam, the Netherlands and the substantive laws of the Netherlands shall govern. Both parties hereby submit to the exclusive jurisdiction of the District Court in Amsterdam, the Netherlands and waive all defenses based on forum non conveniens.
(iv) ASIA PACIFIC. If both parties to this Agreement are entities incorporated in countries in the Asia Pacific region, the arbitration shall be held in Singapore under the then-applicable rules of the Singapore International Arbitration Centre and the substantive laws of Singapore will govern.
(v) OTHER REGIONS. In all other instances, the arbitration shall be held in New York City, New York, under the then-applicable international rules of the American Arbitration Association and the substantive laws of the State of Texas will govern.
For all arbitrations conducted hereunder: (a) the arbitration shall be conducted in English; (b) the relevant arbitral institution shall determine the number of arbitrators, but any Controversy in which the amount in dispute is greater than $10 million USD shall be decided by three arbitrators, with each party having the right to select one arbitrator; (c) the costs of such arbitration shall be borne equally, pending the arbitrator’s award; (d) the arbitration award rendered shall be final and binding on the parties, shall not be subject to appeal to any court and shall be enforceable in any court having jurisdiction over the parties; (e) the arbitration proceedings, award and pleadings shall all be confidential, unless disclosure of particular information is required for purposes of enforcing/challenging the award or to meet local securities law requirements; and (f) the party prevailing in arbitration shall be entitled to recover its reasonable attorneys’ fees and the necessary costs incurred in connection with the arbitration.
The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. Nothing in this Agreement shall be deemed as preventing either party from seeking immediate injunctive relief from any court having jurisdiction over the parties and the subject matter of the dispute.
12. The following BMC contracting entities apply to this Agreement:
Region | Contracting Entity | Address of Contracting Entity |
United States and Latin America South (not a specified Central or South America country below) | BMC Software, Inc. | 2103 CityWest Boulevard, Houston, Texas 77042 |
Canada | BMC Software Canada Inc. | 50 Minthorn Boulevard, Suite 200 Markham, Ontario L3T 7X8 Canada |
EMEA (Europe, Middle East and Africa) | BMC Software Distribution B.V. | Vision Plaza West, 2nd floor, Boeingavenue 220, 1119PN Schiphol-Rijk, The Netherlands |
Brazil | BMC Brasil Software Ltda. | Avenida Rebouças n° 3.970 e Avenida Dra. Ruth Cardoso, n° 8.501 Condomínio Eldorado Business Tower, 22° andar, Pinheiros, São Paulo – SP, CEP: 05425-070 |
Mexico | BMC Software Distribution de México, S.A. de C.V. | Volcán 150, Piso 4, Col. Lomas de Chapultepec, C.P. 11000, Deleg. Miguel Hidalgo, Ciudad de México |
Argentina | BMC Software de Argentina S.A. | Ing. Butty 220 - Piso 18, Catalinas Plaza Buenos Aires, República de Argentina, C1001A |
S.E.A (Southeast Asia), Australia, New Zealand, Hong Kong, Taiwan | BMC Software Ireland Unlimited Company | Building 3, Cherrywood Business Park, Bray Road, Loughlinstown, CO. Dublin, D18 TF72 |
China | BMC Software (China) Limited | Room 502, Level 5, Tower W1, The Towers, Oriental Plaza, No. 1 East Chang An Ave., Dong Cheng Dist., Beijing 100738, China |
Japan | BMC Software K.K. | Harmony Tower 24th Floor, 1-32-2 Honcho, Nakano-ku, Tokyo, 164-8721 |
Korea | BMC Software Korea Ltd | 24th Fl., ASEM Tower, 1517, Yeongdong-daero,Gangnam-gu, Seoul 135-798, Korea South |
13. U.S. GOVERNMENT END USER RIGHTS. This Section applies only to acquisitions of the commercial Subscription Services subject to this Agreement by or on behalf of the United States Government, or by any prime contractor or subcontractor (at any tier) under any contract, grant, agreement or other activity with the United States Government. When Subscription Services are delivered or provided to the United States Government, the United States Government agrees that this commercial license Agreement and the Subscription Services governed by this Agreement are defined in accordance with and qualify as “commercial items” consisting of “commercial computer software” and “commercial computer software documentation” as outlined in FAR 12.211, FAR 12.212 and DFARS 227.7202-3, as applicable. The terms and conditions of this Agreement shall pertain to the United States Government’s use (including documentation or technical data), duplication, and disclosure of the Subscription Services, and shall supersede any conflicting contractual terms and conditions”.
14. DATA PROTECTION. The processing of Customer Content under this Agreement is governed by the BMC Data Processing Agreement set forth on the Order.
15. VERIFICATION. Customer agrees that BMC or its agent may monitor the Subscription Services to ensure Customer’s compliance with the terms of this Agreement. If such monitoring reveals that Customer has exceeded the Capacity for the Subscription Services, BMC may work with Customer to seek to reduce Customer’s usage so that it conforms to the Capacity limit for such Subscription Service. If, notwithstanding BMC’s efforts, Customer is unable or unwilling to abide by the Capacity limits for the Subscription Services, Customer will execute an Order for additional Capacity of such Subscription Services promptly upon BMC’s request.
16. NOTIFICATIONS. Any general notifications regarding technical matters from BMC to Customer will be sent to the Customer contact stated in the Customer Technical Contact Information section of the Order. The Customer contact in the Order has been assigned by Customer as the Customer contact for operational issues that may arise. Customer shall notify BMC of any change to the Customer contact details in writing, which may include via e-mail.
17. CONDUCTING BUSINESS WITH HONESTY AND INTEGRITY. BMC is committed to conducting business with honesty and integrity. BMC’s Code of Conduct set forth in https://www.bmc.com/legal/code-of-conduct.html governs the conduct of all officers, directors, and employees of BMC, and contingent workers and business partners acting on BMC’s behalf. BMC demonstrates its commitment to environmental stewardship by its global accreditation for ISO 14001:2015.
18. MISCELLANEOUS TERMS. The parties are independent contractors and this Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties. Customer will receive system notifications from BMC and its licensors, if applicable (i.e. planned downtime notices, etc). This Agreement, including the Attachments and Orders constitutes the entire agreement between Customer and BMC and supersedes any prior or contemporaneous negotiations or agreements, whether oral or written concerning the Subscription Services. There are no representations, promises, warranties, covenants, or undertakings between the parties other than those expressly set forth in this Agreement. There are no third-party beneficiaries to this Agreement; Customer is not entering into a contractual relationship with BMC’s licensors and BMC’s licensors have no liability to Customer. Except as provided in Section 2 above, no modification or waiver of any provision hereof will be effective unless made in a writing signed by both BMC and Customer. Customer has the right to assign this Agreement and all Orders in whole to an Affiliate, or to a successor in connection with (i) the sale of all or substantially all of the assets of that party or (ii) a merger by operation of law, by providing written notice to BMC. The assignee may not be a known direct competitor of BMC. The successor entity or Affiliate must agree in writing with BMC (in advance of the assignment) to be bound by the terms of this Agreement. Any Customer transfer or assignment except as expressly authorized above will be null and void. Should any provision of this Agreement be invalid or unenforceable, the remainder of the provisions will remain in effect. Any additional or conflicting terms of any Customer purchase order are rejected by BMC and do not apply. The Subscription Services may contain hyperlinks to websites controlled by parties other than BMC. BMC is not responsible for and does not endorse the content or accept any responsibility for Customer’s use of these websites. Customer should refer to the policies posted by other websites regarding privacy and other topics regarding data privacy before using them. In compliance with all applicable laws and for internal purposes only, BMC may compile and use de-identified, aggregate or statistical information related to Customer’s use of the BMC Subscription Services for the purposes of enhancing and improving the BMC Subscription Services, developing new products and services, and for other development, diagnostic, statistical and corrective purposes, provided that such information (a) does not incorporate Customer’s personally identifiable information or Personal Data and (b) does not identify or describe the Customer. Les parties exigent que la présente convention ainsi que les documents qui s’y rattachent soient rédigés en anglais.
Attachments incorporated into Agreement |
Attachment A – Platform Services Attachment |
Attachment B – Consulting Services Attachment |
Attachment C – On Premise Subscription Services Attachment |
PLATFORM SERVICES ATTACHMENT
to the
BMC CLOUD SERVICES MASTER AGREEMENT
Except as otherwise provided herein, the terms of the Cloud Services Master Agreement (the “Base Agreement”) are incorporated into this Platform Services attachment (the “Attachment”). Together, this Attachment and the Base Agreement (as incorporated into this Attachment) are referred to as the “Agreement” for purposes of Customer’s access and use of Platform Services, only if the Platform Services are set forth on an Order referencing the Base Agreement. For purposes of this Agreement, the term “Subscription Services” as defined in the Base Agreement shall be extended to include the Platform Services. In the event of a conflict between the Base Agreement and the terms of this Attachment, the terms of this Attachment will control for Customer’s access and use of the Platform Services only.
1. SCOPE. Subject to the terms of this Agreement, BMC will provide Customer with access to the Platform Service named in the applicable Order.
2. DEFINITIONS.
2.1 “Application” is the object code, its definitional structures, and data created to fulfill a particular purpose, which runs on the Platform Services. An Application may also include its documentation and User Guide.
2.2 “Customer Applications” means Applications that are owned or licensed by Customer, and which run on the Platform Services.
2.3 “Development Platform” means a BMC provided development platform which allows Customer to develop a custom application to run on the Platform Services. The Development Platform is a separate environment from the Platform Services.
2.4 “Platform” means the generally available BMC-provided PaaS platform and its capabilities to run Applications.
2.5 “Platform Services” means the specific Platform Services identified in the Order.
3. BMC PLATFORM SERVICES.
3.1 BMC Platform Services Support. BMC will provide Support only for Platform Services. Customer is responsible for its own support for Customer Applications.
4. CUSTOMER APPLICATIONS.
4.1 The terms contained in this section 4 apply only to Orders for Platform Services entitling Customers to develop and deploy Customer Applications onto the Platform Services. Any Customer Applications that run on the Platform Services are hereby excluded from the defined terms “Subscription Services” and “Platform Services”.
4.2 Development Platform. Customer may utilize the Development Platform to create an Application to run on the Platform Services. Customer’s use of the Development Platform is governed by the terms of this Agreement subject to the restrictions set forth in sections 4.2.1 to 4.2.6 below. Customer’s development of an Application must meet the best practices development guidelines set forth in the User Guide. Each Customer Application shall at all times materially conform to policies and best practices set forth in the User Guide. Prior to the deployment of any Customer Applications in a production or non-production environment of the Platform Services, Customer must conduct security and functional tests of each Customer Application and submit the results of such tests to BMC for review. BMC reserves the right to reject Customer’s deployment request of a Customer Application based on the results of Customer’s security and functional tests. Additionally, BMC reserves the right, during the term of this Agreement, to request Customer conduct additional security and functional tests and provide the results of said tests to BMC for review. Notwithstanding the foregoing, Customer must ensure that at all times Customer Applications are secure.
4.2.1 Scope of use. The right to access and use the Development Platform is granted solely for the purpose of performing non-production application development work on the Development Platform.
4.2.2 Restrictions of use. Customer agrees not to:
(i) use the Development Platform to (1) process production data or for any other production purposes, including but not limited to publishing digital applications, or (2) distribute applications;
(ii) use the Development Platform with data or information that has not been backed up; or
(iii) modify, delete or remove any ownership, title, trademark, patent or copyright notices.
4.2.3 Customer Responsibilities. Customer is responsible for acquiring all necessary and required licenses for the use of any third party software, source code and/or libraries Customer may use as part of its development with the Development Platform. In addition to its other rights and remedies, BMC reserves the right, without liability to Customer, to immediately, at any time and for any reason refresh Customer’s instance of the Development Platform. Upon BMC’s refreshing of Customer’s instance of the Development Platform, Customer may lose all Customer Content submitted to or stored in said instance of the Development Platform. Upon expiration or termination of the applicable Order, BMC may destroy any Customer Content submitted to or stored therein. Customer is responsible for backing up any development work with Customer Content outside of the Development Platform.
4.2.4 Open Source. Customer may not use any software, library, utility, tool, or other computer or program code (“Code”) with the Subscription Services that in any way that would (i) weaken BMC’s intellectual property rights in the Services, or (ii) require the Subscription Services to become or be disclosed or distributed as Open Source Software. For purposes of this Section, “Open Source Software” means any Code that is substantially similar to, (A) the Affero General Public License, (B) the GNU General Public License (GPL) or Lesser/Library GPL (LGPL), (C) the Artistic License (e.g. PERL), (D) the Mozilla Public License, (E) the Netscape Public License, (F) the Sun Community Source License (SCSL), (G) the Sun Standards License (SISL), or (H) any “copyleft” license, or any other license that requires as a condition of use, reproduction, modification, or distribution that such Code or other software or computer code distributed with it: (1) be disclosed or distributed in source code form; (2) be licensed for the purpose of creating derivative works; (3) be licensed under terms that allow reverse engineering, reverse assembly, or disassembly of any kind; (4) be subject to a patent non-assert or royalty-free patent license; or (iv) be redistributable at no charge.
4.2.5 No Support. BMC, its affiliates, or licensors do not provide Support for the Development Platform.
4.2.6 Disclaimer of Warranty, Limitation of Liability and Exclusive Remedy. Notwithstanding anything to the contrary in the applicable Order or this Agreement:
a. THE DEVELOPMENT PLATFORM IS PROVIDED “AS IS” WITHOUT ANY WARRANTY OF ANY KIND WHATSOEVER. BMC, ITS AFFILIATES AND LICENSORS DO NOT WARRANT THAT THE DEVELOPMENT PLATFORM WILL SATISFY CUSTOMER’S REQUIREMENTS, THAT THE DEVELOPMENT PLATFORM IS WITHOUT DEFECT, VIRUS OR ERROR FREE, WITHOUT DELAY, OR THAT THE OPERATION OF THE DEVELOPMENT PLATFORM WILL BE UNINTERUPTED. BMC, ITS AFFILIATES AND LICENSORS DISCLAIM ANY AND ALL REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, MADE WITH RESPECT TO THE DEVELOPMENT PLATFORM, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INTERFERENCE AND INFORMATION CONTENT; AND
b. NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY, FOR ANY CLAIM, LOSS, DAMAGE OR EXPENSE FOR INDIRECT, SPECIAL, CONSEQUENTIAL, PUNITIVE OR INCIDENTAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE DEVELOPMENT PLATFORM (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST COMPUTER USAGE TIME, AND DAMAGE TO, OR LOSS OF USE OF, DATA), EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EITHER PARTY’S ENTIRE LIABILITY AND THE OTHER PARTY’S EXCLUSIVE REMEDY FOR DIRECT DAMAGES ARISING OUT OF OR RELATED TO THE DEVELOPMENT PLATFORM, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, IS LIMITED TO $100.
4.3 License to Customer Applications. Subject to the terms and conditions of this Agreement, Customer hereby grants BMC a worldwide, limited, nonexclusive license during the term of the applicable Order for the Platform Services to host, copy, transmit, adapt and display Customer Applications solely for the purpose of fulfilling BMC’s obligations under this Agreement.
4.4 Functionality of Customer Applications. Customer is solely responsible for the operation of Customer Applications, including but not limited to any information stored in or transmitted by Customer Applications. Customer is responsible for monitoring the usage of each Customer Application. Customer is responsible for the configuration, functionality, performance, compliance with applicable data protection laws and security of all Customer Applications, including any interfaces used to connect to Customer Applications.
4.5 Customer Assistance. Customer will provide information or other materials related to a Customer Applications as reasonably requested by BMC to verify Customer’s compliance with the Agreement and the User Guide.
4.7 Suspension of Customer Applications. Customer’s use of the Platform Services may be immediately suspended and/or terminated due to (i) reasonable security threats regarding the Platform Services or Customer Applications, (ii) Customer Applications interfering with, disrupting or threatening the integrity or performance of the Subscription Services and/or the Platform Services, or (iii) violates the law, infringes or misappropriates the rights of any third party or otherwise violates a material term of the Agreement. In the event (i) or (ii) above apply to Customer Applications, Customer is required to remediate any such issue to BMC’s commercially reasonable satisfaction before use of Customer Applications can resume. BMC shall use reasonable commercial efforts to only suspend the non-conforming portion of the Platform Services.
4.8 CUSTOMER APPLICATIONS WARRANTIES. Customer warrants to BMC that: (a) each Customer Application will perform materially in accordance with the User Guide; (b) Customer has all rights in the Customer Content and Customer Applications necessary to grant the rights contemplated by this Agreement; (c) none of the Customer Content or Customer Applications or Users’ use of Customer Content or Customer Applications will violate the Agreement and the User Guide; and (d) Customer’s security and functional tests of Customer Applications was conducted in a commercially reasonable manner and the results of said tests provided to BMC for review are correct and valid.
ATTACHMENT B
CONSULTING SERVICES ATTACHMENT
to the
BMC CLOUD SERVICES MASTER AGREEMENT
Except as otherwise provided herein, the terms of the Cloud Services Master Agreement (the “Base Agreement”) are incorporated into this Consulting Services attachment (the “Attachment”). Together, this Attachment and the Base Agreement (as incorporated into this Attachment) are referred to as the “Agreement” for purposes of Customer’s purchase of Consulting Services, only if Consulting Services are set forth on an Order referencing the Base Agreement. For purposes of this Agreement, the term “Subscription Services” as defined in the Base Agreement shall be extended to include Consulting Services. In the event of a conflict between the Base Agreement and the terms of this Attachment, the terms of this Attachment will control for Customer’s purchase of Consulting Services only. The parties agree that the following Sections of the Base Agreement do not apply to the Consulting Services provided under this Attachment: Section 3.2 (Support), Section 4 (Fees and Payment), and Section 6 (Limited Warranty).
1. SCOPE. BMC agrees to render to Customer Consulting Services under the terms of this Agreement and as further described in an Order. BMC will render the Consulting Services in the location(s) as set forth in the Order. The performance of the Consulting Services will not relieve or alter the rights, obligations and responsibilities of Customer and of the BMC Affiliate providing Subscription Services and/or Licenses with respect to Subscription Services and/or Licenses under the applicable agreement.
2. SERVICE FEES AND EXPENSES. The fees payable to BMC for the Consulting Services to be rendered will be detailed in the Order. BMC will submit invoices to Customer for such fees and incurred expenses either upon completion of the Consulting Services, or at stated intervals, in any case in accordance with the applicable Order. Customer shall pay amounts invoiced within 30 days of the date of the invoice.
3. EDUCATION. Customer may acquire Learning Pass Credits and Education Services (collectively, “BMC Education ”) on an Order. The BMC Education terms that govern such Orders are set forth in the Education Program Guide located at https://www.bmc.com/content/dam/bmc/education/education-program-guide.pdf, and is incorporated herein by this reference.
4. STATEMENTS OF WORK. Consulting Services may require the execution of a Statement of Work, in which case, such Statement of Work will be considered an Order for such Consulting Services. In the event of any conflict between the terms of a Statement of Work and this Agreement, the Agreement shall prevail except for matters of service fees, payment and reimbursement of expense, and termination of Consulting Services if further specified in the Statement of Work. During the term of an applicable Statement of Work, and for a period of six months thereafter, neither party will solicit for employment any employees, agents, or subcontractors of the other party or its affiliates who, within six months prior to such solicitation, had contact with the soliciting party based in whole or in part upon Consulting Services provided under this Agreement. The restrictions in this section shall be deemed not to apply to general solicitations for employment posted on Internet job sites or printed in newspapers or trade or professional journals.
5. PROPRIETARY RIGHTS AND RIGHTS IN DELIVERABLES.
5.1 Ownership of Materials Used in the Consulting Services. Unless specifically provided in an Order, Customer shall supply all of the facilities; equipment; supplies; computer programs; information about Customer’s business, systems, software and needs; and other materials necessary for completion of the Consulting Services (“Customer Property”), and BMC shall supply the people described in the Order, the know-how and the tools necessary to provide the Consulting Services, which may include, among other things, software, templates, questionnaires, graphs, methodologies, models, charts and reports (“BMC Property”). Customer Property and copies and modifications of Customer Property will remain the sole property of Customer or if applicable, Customer’s licensors, and BMC Property and copies and modifications of BMC Property will remain the sole property of BMC or if applicable, BMC’s licensors. Customer hereby grants to BMC a royalty-free, paid-up, non-exclusive, non-sublicensable and non-transferable license to use the Customer Property for the purpose of providing the Consulting Services.
5.2 Deliverables. Deliverables are those created under the Order, including, but not limited to, software, software scripts, routines, libraries or other code, or appliances, methodologies, templates, tools, policies, records, working papers, reports, methodologies, know-how, data, or other intellectual property, written or otherwise, including any derivative works or modifications to the above, whether pre-existing or created during the performance of the Consulting Services and all proprietary and intellectual property rights embedded therein delivered as a result of the Consulting Services as specified under the Order. BMC owns all right, title and interest in the Deliverables. Provided Customer has paid in full for the Consulting Services that resulted in the Deliverables, BMC will deliver the Deliverables to Customer in accordance with the applicable Order. Subject to compliance with the terms of this Agreement and the applicable Order, BMC grants Customer a non-exclusive, non-transferable, non-sublicensable, royalty-free, paid-up license to use, create derivative works of and modify all Deliverables solely for its internal business operations.
5.3 Copyright Notice. Each party agrees to reproduce the copyright notice and any other legend or ownership notice on any copies made under the licenses granted pursuant to this Section 5.
5.4 Retention. Customer acknowledges that BMC provides similar services to other customers and that nothing in this Agreement shall be construed as operating to prevent BMC from carrying on such business. Further BMC may use ideas, concepts, or know-how developed or acquired by BMC during performance of the Consulting Services to the extent by BMC’s personnel as impressions and general learning.
6. LIMITED WARRANTY. BMC warrants that it will perform the Consulting Services in conformance with generally accepted practices within the software services industry and in accordance with the Order. Customer must notify BMC of any breach of this warranty no later than 90 days after completion of the Consulting Services under the Order. Customer’s exclusive remedy and BMC’s entire liability under this warranty shall be for BMC to re-perform any non-conforming portion of the Consulting Services within a reasonable period of time, or if BMC cannot remedy the breach during such time period then refund the portion of the fee attributable to such non-conforming portion of the Consulting Services under the Order. This warranty will not apply to the extent Customer, its contractors or agents have modified any Deliverable, unless otherwise authorized by BMC in writing.
EXCEPT FOR THE EXPRESS WARRANTIES IN THIS AGREEMENT, THE CONSULTING SERVICES AND DELIVERABLES ARE PROVIDED WITH NO OTHER WARRANTIES WHATSOEVER, AND BMC, ITS AFFILIATES AND LICENSORS DISCLAIM ALL OTHER WARRANTIES, INCLUDING, FITNESS FOR A PARTICULAR PURPOSE AND IN THE UNITED STATES AND CANADA, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, AND NON-INFRINGEMENT.
7. INSURANCE. BMC will provide and maintain the following insurance, but only for losses arising out of BMC’s provision of Consulting Services under this Attachment: a) Worker’s Compensation insurance as prescribed by the law of the state applicable to the employees performing the Consulting Services; (b) Employer’s Liability insurance with a limit of $1,000,000 USD for each occurrence; (c) Commercial General Liability insurance with $1,000,000 USD per occurrence combined single limit and $2,000,000 USD general aggregate, including coverage for Products Liability and Completed Operations; (d) Automobile Liability insurance, including coverage for Hired and Non-owned vehicles of $1,000,000 USD for combined single limit for bodily injury and/or property damage; and (e) Professional Liability insurance covering Errors and Omissions in the amount of $1,000,000 USD for each occurrence and in the aggregate associated with Consulting Services performed under this Agreement.
8. MUTUAL INDEMNITY. Each party shall indemnify and hold harmless the other party from all claims, liabilities or expenses for physical damage to real property or tangible personal property and bodily injury, including death, to the extent caused by the negligence, gross negligence or willful misconduct of the indemnifying party’s employees or contractors arising out of this Agreement and while at the Customer’s premises. The foregoing indemnities are contingent upon the party seeking indemnity giving prompt written notice to the indemnifying party of any claim, demand or action, and cooperating with the indemnifying party in the defense or settlement of any such claim, demand or action.
9. INDEPENDENT CONTRACTOR. All of the services performed by BMC under this Agreement will be performed as an independent contractor.
ATTACHMENT C
ON PREMISE SUBSCRIPTIONS ATTACHMENT
to the
BMC CLOUD SERVICES MASTER AGREEMENT
Except as otherwise provided herein, the terms of the Cloud Services Master Agreement (the “Base Agreement”) are incorporated into this On Premise Subscriptions attachment (the “Attachment”). Together, this Attachment and the Base Agreement (as incorporated into this Attachment) are referred to as the “Agreement” for purposes of Customer’s purchase and ongoing use of On Premise Subscriptions, only if On Premise Subscriptions are set forth on an Order referencing the Base Agreement. For purposes of this Agreement, the term “Subscription Services” as defined in the Base Agreement shall be extended to include On Premise Subscriptions. In the event of a conflict between the Base Agreement and the terms of this Attachment, the terms of this Attachment will control for Customer’s purchase of On Premise Subscriptions only. The parties agree that the following Sections of the Base Agreement do not apply to the On Premise Subscriptions provided under this Attachment: Section 3.1 (Access Rights), Section 3.5 (Customer Responsibilities and Restrictions), Section 6 (Limited Warranty) and Section 15 (Verification).
1. DEFINITIONS.
1.1 “Authorized User” means Customer, Customer Affiliate(s), and their employees, consultants, contractors and agents that are bound by the terms and conditions no less restrictive than those contained herein and for whom Customer takes full responsibility. Authorized Users do not include service providers or outsourcers.
1.2 "Documentation" means the technical publications relating to the software, such as release notes, license entitlement descriptions, reference, user, installation, systems administrator and technical guidelines, included with the On Premise Subscription.
1.3 “Licensed Capacity” is the amount of each On Premise Subscription licensed as established in the Order.
1.4 “On Premise Subscription” is the object code of the software and all accompanying Documentation delivered to Customer, including all items delivered by BMC to Customer under Support.
2. LICENSE. Subject to the terms, conditions, payment requirements and restrictions set forth in this Agreement, BMC grants Customer a non-exclusive, non-transferable, non-sub-licensable term license to install in the Territory as defined in an Order, access and use the On Premise Subscription during the term specified on the Order (i) by Authorized User(s), (ii) up to the Licensed Capacity, (iii) for Customer’s and its Affiliates’ internal business operations, (iv) in accordance with the Documentation and the applicable Order, and (v) make a reasonable number of copies of the On Premise Subscription for archival purposes only (collectively a "License"). Affiliates may use and access the On Premise Subscriptions under the terms of this Agreement, and Customer is responsible for its Affiliates compliance with the terms of this Agreement.
3. RESTRICTIONS. Customer will not: (a) copy, operate or use any On Premise Subscription in excess of the applicable Licensed Capacity or other than as set forth in the License above; (b) modify, delete or remove any ownership, title, trademark, patent or copyright notices (“Identification”) from any On Premise Subscription, or copy or partial copy of an On Premise Subscription; (c) disassemble, reverse engineer, decompile or otherwise attempt to derive any On Premise Subscription source code from object code, except to the extent expressly permitted by applicable law despite this limitation without possibility of contractual waiver; (d) distribute, rent, lease, sublicense or provide the On Premise Subscription to any third party; (e) use the On Premise Subscriptions in an outsourcing or service bureau environment on behalf of non-Affiliate third parties, or allow the On Premise Subscriptions to be used by an outsourcing or service bureau provider on Customer’s behalf (without obtaining prior written approval from BMC); (f) provide a third party with the results of any functional evaluation, product vulnerability or performance tests, without BMC's prior written approval; or (g) attempt to disable or circumvent any of the licensing mechanisms within the On Premise Subscription.
4. ON PREMISE SUBSCRIPTION PERFORMANCE WARRANTY. BMC warrants that (a) the On Premise Subscription will perform in substantial accordance with its Documentation for a period of one year from the date of the first Order, (b) BMC has used commercially reasonable efforts consistent with industry standards to scan for and remove software viruses, and (c) other than passwords that may be required for the operation of the On Premise Subscription, BMC has not inserted any code that is not addressed in the Documentation and that is designed to delete, interfere with or disable the normal operation of the On Premise Subscription in accordance with the License. This warranty will not apply to any problems caused by hardware, Computers, or software other than the On Premise Subscription, or misuse of the On Premise Subscription, use of the On Premise Subscription other than as provided by the applicable License, modification of the On Premise Subscription, or claims made either outside the warranty period or not in compliance with the notice and access requirements set forth below. No warranty is provided for additional Licensed Capacity, On Premise Subscription provided pursuant to Support. BMC’s entire liability, and Customer’s exclusive remedy, for breach of the above warranty is limited to: BMC’s use of commercially reasonable efforts to have the On Premise Subscription perform in substantial accordance with its Documentation, or replacement of the non-conforming On Premise Subscription within a reasonable period of time, or if BMC cannot have the On Premise Subscription perform in substantial accordance with its Documentation replace the On Premise Subscription within such time period, then BMC will refund the amount paid by Customer for the License for that On Premise Subscription. Customer’s rights and BMC's obligations in this Section are conditioned upon Customer’s providing BMC during the warranty period (i) full cooperation and access to the On Premise Subscription in resolving any claim; and (ii) written notice addressed to the BMC Legal Department that includes notice of the claim, a complete description of the alleged defects sufficient to permit their reproduction in BMC’s development or support environment, and a specific reference to the Documentation to which such alleged defects are contrary.
EXCEPT FOR THE EXPRESS WARRANTIES IN THIS ATTACHMENT, THE ON PREMISE SUBSCRIPTION IS PROVIDED WITH NO OTHER WARRANTIES WHATSOEVER, AND BMC, ITS AFFILIATES AND LICENSORS DISCLAIM ALL OTHER WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE AND IN THE UNITED STATES AND CANADA, MERCHANTABILITY AND NON-INFRINGEMENT. BMC DOES NOT WARRANT THAT THE OPERATION OF THE ON PREMISE SUBSCRIPTION WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT ALL DEFECTS CAN BE CORRECTED.
5. DELIVERY. For On Premise Subscriptions that are delivered electronically, upon request from BMC, Customer agrees to provide BMC with documentation supporting that the designated On Premise Subscription was received electronically. If Customer accepts any On Premise Subscription in a non-electronic format, there may be an additional charge and it is the sole responsibility of Customer to bear any sales/use tax obligation, penalties, and interest. All On Premise Subscriptions are licensed FCA (“Free Carrier” as per Incoterms 2000) shipping point. The On Premise Subscriptions are accepted on the date BMC delivers the On Premise Subscription to the Customer either physically or by providing access codes for electronic download, whichever occurs first, however, such acceptance will not affect the On Premise Subscription Performance Warranty provided in this Agreement.
6. AUDIT. If requested by BMC, and not more than once a year, Customer agrees to deliver to BMC, within 30 days of such request, as specified by BMC either (a) periodic product usage reports generated from specific products or (b) written periodic product usage reports, to be provided solely when the product does not generate reports (“Report”). Additionally, if requested by BMC not more than once a year and upon at least ten days prior written notice to Customer, Customer agrees to allow BMC to perform an audit (“Audit”) to ensure compliance with the terms of this Agreement at the locations where the On Premise Subscriptions are installed, during normal business hours. to ensure compliance with the terms of this Agreement. Customer agrees to cooperate during any such Audit and to provide reasonable access to its information and systems.
Effective June 1st 2022 to August 3rd 2022
DownloadTable of Contents
BMC CLOUD SERVICES MASTER AGREEMENT
THIS CLOUD SERVICES MASTER AGREEMENT (“AGREEMENT”) GOVERNS YOUR FREE TRIAL, IF ANY, OF THE SUBSCRIPTION SERVICES.
IF YOU PURCHASE THE SUBSCRIPTION SERVICES, THIS AGREEMENT WILL ALSO GOVERN YOUR PURCHASE AND ONGOING USE OF THE SUBSCRIPTION SERVICES.
BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SUBSCRIPTION SERVICES.
You may not access the Subscription Services if you are BMC’s direct competitor, except with BMC’s prior written consent. In addition, you may not access the Subscription Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.
This Agreement was last updated on June 1, 2022. This Agreement is between the entity or individual entering into this Agreement (“Customer”) and the BMC Contracting Entity for the applicable region as described in Section 12 (“BMC”). It is effective between Customer and BMC as of the date of your acceptance of this Agreement. If Customer has a fully executed BMC Cloud Services Master Agreement then such fully executed BMC Cloud Services Master Agreement supersedes and replaces any clickwrap or click-through agreements (or other similar agreements) that Customer may be required to accept as a part of accessing or using the Subscription Services. For Customer’s convenience, prior versions of this Agreement are available at https://www.bmc.com/legal/csma.html.
FREE TRIAL.
BMC may make the Subscription Services available to Customer on a trial basis free of charge. If BMC offers Customer a free trial, it will run until the earlier of (a) the end of the trial period stated on the trial registration web page or (b) the start date of any Order for purchase of the Subscription Services. Additional trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.
ANY DATA CUSTOMER ENTERS INTO THE SUBSCRIPTION SERVICES, AND ANY CUSTOMIZATIONS MADE TO THE SUBSCRIPTION SERVICES BY OR FOR CUSTOMER, DURING A FREE TRIAL MAY BE PERMANENTLY LOST.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THE AGREEMENT, DURING ANY FREE TRIAL PERIOD THE SUBSCRIPTION SERVICES ARE PROVIDED “AS IS” WITH NO WARRANTY.
1. DEFINITIONS.
1.1 “Affiliate” is an entity that controls, is controlled by or shares common control with BMC or Customer, where such control arises from the legal power to direct or cause the direction of the general management and policies of the company, partnership or legal entity.
1.2 "Capacity” means the amount of access to the Subscription Services purchased as specified in an Order, which is counted in accordance with the Unit of Measure described in the Order.
1.3 “Consulting Services” means the consulting, implementation, training or other services provided under the terms of Attachment B (Consulting Services) and as further described under the applicable Order.
1.4 “Customer Content” means all electronic data or information (a) submitted to the Subscription Services by Customer, a third party on behalf of Customer, or as directed by Customer or (b) collected, processed or returned by the Subscription Services .
1.5 “Order” means (i) the agreed ordering document for the purchase of the Subscription Services, (ii) that is subject to this Agreement, and (iii) that identifies the terms of the purchase and fees to be paid. The term “Order” includes Customer’s online registration for and purchase of the Subscription Services, If any.
1.6 "Subscription Services" means the generally available hosted service which packages web-based access and the right-to-use the supported applications, installed agents and associated reference, user and technical guides.
1.7 “User Guide” means the online help, functional guide and technical specifications for the Subscription Services, as updated by BMC from time to time.
2. SCOPE. Subject to the terms of this Agreement, Customer may purchase and BMC will provide Customer with access to the Subscription Services as set forth in this Agreement and the applicable Order. Subject to the Attachments to this Agreement, Customer may also purchase BMC Platform Services, BMC Consulting Services and BMC On Premise Subscription Services. In the event of a direct conflict between any Order and the terms of this Agreement, the terms of the Order will control only if the Order is executed by an authorized representative of each party. Orders may be entered under this Agreement by and between (a) BMC or an Affiliate of BMC; and (b) Customer or an Affiliate of Customer. With respect to an Order, the terms “BMC” and “Customer” as used in this Agreement will be deemed to refer to the entities that execute that Order, the Order will be considered a two party agreement between such entities, and BMC will separately invoice the Customer named in the Order for the associated fees. Orders may also be placed via a BMC authorized reseller. Neither execution of this Agreement, nor anything contained herein, shall obligate either party to enter into any Orders.
3. ACCESS TO SUBSCRIPTION SERVICES.
3.1 Access Rights. Subject to Customer’s payment of applicable fees and to the terms of this Agreement, BMC will provide Customer with worldwide access to the Subscription Services in accordance with the Order (i) up to the Capacity, (ii) for Customer’s and its Affiliates’ internal business operations, (iii) in accordance with the User Guide and the applicable Order. Customer may exercise its rights under this Section 3.1 through its service providers, outsourcers, employees, consultants, contractors, agents, and Affiliates (all, “Users”).
3.2 BMC Subscription Services Support. BMC will provide the support described at http://www.bmc.com/support/review-policies (“Support”) to Customer for the Subscription Services.
3.3 Use of Subcontractors. Customer acknowledges and agrees that BMC uses subcontractors to provide portions of the Subscription Services. BMC will provide a list of its current subcontractors upon Customer’s written request. BMC is responsible for the performance of all subcontractors providing any of the Subscription Services.
3.4 Compliance with Laws. Each party shall comply with all applicable laws in the performance of its obligations under this Agreement.
3.5 Customer Responsibilities and Restrictions.
(a) Customer will (i) maintain the confidentiality of all authentications and passwords for the Subscription Services and immediately notify BMC if it becomes aware that an unauthorized party has gained access such authentications and passwords, (ii) be responsible for use of the Subscription Services by its Users in compliance with this Agreement, (iii) prevent unauthorized access to, or use of, the Subscription Services, and notify BMC promptly of any such unauthorized access or use, (iv) comply with all applicable laws in using the Subscription Services, and (v) be responsible for obtaining its own Apple Push Notification certificate, if the Subscription Services are used to manage devices running iOS. Customer is responsible for the creation and implementation of a privacy policy and end user agreement, if applicable, which will set forth the guidelines of how Customer uses and protects the data and personal information of its Users, and how said Users may utilize the Subscription Services.
(b) Customer will not (i) modify, copy or create derivative works based on the Subscription Services; (ii) create Internet “links” to or reproduce any content forming part of the Subscription Services, other than for its own internal business purposes; (iii) disassemble, reverse engineer, or decompile the Subscription Services or part thereof, except to the extent expressly permitted by applicable law despite this limitation without possibility of contractual waiver; (iv) interfere with or disrupt the integrity or performance of the Subscription Services; (vi) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortuous material, or send or store material in violation of any third party’s privacy rights via the Subscription Services; (vii) send or store viruses or malicious code via the Subscription Services; (viii) attempt to gain unauthorized access to the Subscription Services or its related software, systems, platforms or networks, including any form of security and/or penetration testing; (ix) use any components provided with the Subscription Services separately from the Subscription Services; or (x) distribute, rent, lease or provide the Subscription Services to any third party or use it in a service bureau, outsourcing environment, or for the processing of third party data .
4. FEES AND PAYMENT.
4.1 Fees. The fees payable for the Subscription Services and the payment period for such fees will be set forth in and paid in accordance with the Order. All payments are due within 30 days of the date of the invoice.
4.2 Late Fees. Late balances may, at BMC’s sole election, bear interest at a rate equal to the lesser of 1% per month or the maximum amount permitted by law.
4.3 Taxes. Customer will pay taxes imposed in connection with the fees paid for the Subscription Services, which are exclusive of these taxes.
4.4 Solution Providers. With regard to Subscription Services acquired by Customer through an authorized reseller ("Solution Provider") of BMC, notwithstanding anything to the contrary in sections 4.1 and 4.2 above, Customer will have no direct payment obligations to BMC for such fees.
5. TERM, SUSPENSION AND TERMINATION.
5.1 Term. This Agreement begins on the Effective Date and will remain in effect unless terminated pursuant to Section 5.2 below, regardless of the billing frequency selected in the Order.
5.2 Termination.
(a) Termination for Convenience. Customer may terminate this Agreement by providing BMC with at least 30 days prior written notice; provided, however, such termination will have no effect on Orders in effect at the time of such termination. Orders may not be terminated for convenience unless otherwise specified therein. Customer may notify BMC of its intent to terminate by emailing BMC at order_services@bmc.com.
(b) Termination for Cause. Either party may terminate this Agreement and/or an Order for cause upon 30 days’ written notice of a material breach to the other party if such breach remains uncured at the expiration of such period. In the event Customer terminates the Agreement and an Order for BMC’s material breach, BMC will refund the amount paid by Customer to BMC for the Subscription Services on such Order, pro-rated from the date of the notice of the termination.
5.3 Suspension of Subscription Services for Cause. In addition to its other rights and remedies, BMC reserves the right, without liability to Customer, to suspend any and all access to the Subscription Services if Customer commits a material breach of this Agreement and fails to cure the same within 30 days from Customer’s receipt of written notice of such breach from BMC. Provided however, that BMC may immediately suspend any and all access to the Subscription Services without any cure period if BMC determines in good faith that Customer’s material breach of the Agreement will cause damage to BMC, the Subscription Services, or any other customer.
5.4 Effects of Termination. Upon termination or expiration of any Order or this Agreement, all rights and Licenses granted thereunder will terminate and Customer will make no further use of the Subscription Services. No termination will relieve the Customer of the obligation to pay any fees accrued or payable to BMC pursuant to any Order. Upon written request by Customer made within 45 days after the effective date of termination, BMC will make the Customer Content available to Customer for retrieval in an industry standard format. After such 45-day period, BMC shall have no obligation to maintain any Customer Content and will thereafter delete Customer Content. Any terms in this Agreement which by their nature extend beyond termination of this Agreement will remain in effect until fulfilled.
5.5 Termination Assistance. Upon Customer’s request and upon (a) the expiration of an Order or (b) the termination of an Order for any reason other than Customer’s breach, BMC shall perform such services as the parties in good faith agree are reasonably necessary to facilitate the orderly transition of the Services to the successor service provider or to the Customer. BMC will provide any such services under the terms and conditions of the Agreement, and subject to payment of the then-current fees and charges, generally applicable to BMC’s performance of such services, as agreed between the parties at such time.
6. LIMITED WARRANTY.
6.1 Warranties and Limited Remedies. BMC warrants to Customer that:
(a) the online availability of the Subscription Services will be maintained in accordance with the service levels attached to the applicable Order, if any (the “Service Level Agreement” or “SLA”). Customer’s exclusive remedy and BMC’s sole obligation for breach of the warranty in this Section 6.1(a) is described in the Service Level Agreement;
(b) the Subscription Services (i) will perform in substantial accordance with the then-current on-line User Guide available via the Subscription Services and (ii) will be performed in a manner consistent with industry standards reasonably applicable to the provision thereof. Customer’s exclusive remedy and BMC’s sole obligation for breach of the warranty in this Section 6.1(b) will be BMC’s use of commercially reasonable efforts to have the Subscription Services perform in substantial accordance with the User Guide, or replace the non-conforming portion of the Subscription Services within 60 days from the written notice of claim, or if BMC cannot have the Subscription Services perform in substantial accordance with the User Guide or replace the Subscription Services within such time period, then Customer may terminate the non-performing Subscription Services, and upon such termination BMC will refund the amount paid by Customer for the Subscription Services, pro-rated from the date of the notice of the claim. Customer’s rights and BMC’s obligations in this Section 6.1(b) are conditioned upon Customer’s providing BMC with written notice of the claim, a complete description of the alleged defects and a specific reference to the User Guide to which such alleged defects are contrary; and
(c) In connection with the Subscription Services (i) it has used commercially reasonable efforts consistent with industry standards to scan for and promptly remove any software viruses for no charge and (ii) it has not inserted any Disabling Code. “Disabling Code” means computer code inserted by BMC, that is not addressed in the User Guide, and that is designed to expose data, delete, interfere with, and/or disable the normal operation of the Subscription Services. This Disabling Code warranty does not apply to BMC passwords necessary for the operation of the Subscription Services, or for any use by Customer outside the scope of this Agreement.
6.2 Disclaimer. CUSTOMER ACKNOWLEDGES THAT, EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, BMC, ITS AFFILIATES AND LICENSORS MAKE NO WARRANTY, EXPRESS, IMPLIED OR STATUTORY WITH RESPECT TO THE SUBSCRIPTION SERVICES OR USE THEREOF. BMC, ITS AFFILIATES AND LICENSORS HEREBY EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY THAT SUBSCRIPTION SERVICES WILL BE UNINTERRUPTED, ERROR FREE OR WITHOUT DELAY, AND THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INTERFERENCE, NON-INFRINGEMENT AND INFORMATION CONTENT.
7. PROPRIETARY RIGHTS AND CONFIDENTIALITY.
7.1 Proprietary Rights. BMC, its Affiliates or licensors retain all right, title and interest to the Subscription Services and all related intellectual property and proprietary rights. The Subscription Services are protected by applicable copyright, trade secret, industrial and other intellectual property laws. BMC owns all right, title and interest in all software, programming, documentation, templates, questionnaires, methodologies, models, charts, reports, ideas, features, content, functions, graphics and any other items provided as part of the Subscription Services (“ Service Items”) and access to and use of the relevant Service Items will be governed by the terms of this Agreement. Subject to (i) BMC’s or its licensor’s ownership of any Service Items and (ii) section 3.4 (b) (i) of the Agreement, Customer owns all rights, title, and interest in Customer Applications, including all proprietary and intellectual property rights. BMC reserves any rights not expressly granted to Customer. Customer shall not access the Subscription Services in order to build a competitive product or service or copy any ideas, features, functions or graphics of the Subscription Services. “ Confidential Information” means all proprietary or confidential information that is disclosed to the recipient (“Recipient”) by the discloser (“ Discloser”), and includes, among other things (i) any and all information relating to products or services provided by a Discloser, its customer-related and financial information, software code, BMC product vulnerabilities, flow charts, techniques, specifications, development and marketing plans, strategies, and forecasts; (ii) as to BMC, and its licensors, the Subscription Services and Service Items; and (iii) the terms of this Agreement, including without limitation, pricing information. Confidential Information does not include information that Recipient can show: (a) was rightfully in Recipient’s possession without any obligation of confidentiality before receipt from the Discloser; (b) is or becomes a matter of public knowledge through no fault of Recipient; (c) is rightfully received by Recipient from a third party without violation of a duty of confidentiality; or (d) is or was independently developed by or for Recipient. Recipient may not disclose Confidential Information of Discloser to any third party or use the Confidential Information in violation of this Agreement. The Recipient (i) will exercise the same degree of care and protection with respect to the Confidential Information of the Discloser that it exercises with respect to its own Confidential Information and (ii) will not, either directly or indirectly, disclose, copy, distribute, republish, or allow any third party to have access to any Confidential Information of the Discloser. Notwithstanding the foregoing, Recipient may disclose Discloser’s Confidential Information to Recipient’s employees and agents who have need to know provided that such employees and agents have legal obligations of confidentiality substantially the same (and in no case less protective) as the provisions of this Agreement.
7.2 Notification Obligation. If the Recipient becomes aware of any unauthorized use or disclosure of Discloser’s Confidential Information, then Recipient will promptly and fully notify the Discloser of all facts known to it concerning such unauthorized use or disclosure. In addition, if the Recipient or any of its employees or agents are required (by oral questions, interrogatories, requests for information, or documents in legal proceedings, subpoena, civil investigative demand, or other similar process) to disclose any of Discloser’s Confidential Information, the Recipient will not disclose the Discloser’s Confidential Information without providing the Discloser with commercially reasonable advance prior written notice to allow Discloser to seek a protective order or other appropriate remedy or to waive compliance with this provision. In any event, the Recipient will exercise its commercially reasonable efforts to preserve the confidentiality of the Discloser’s Confidential Information, including, without limitation, cooperating with Discloser to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded to the Confidential Information.
7.3 Customer Content. As between BMC and Customer, Customer owns all rights, title and interest in and to Customer Content. Customer Content is deemed Confidential Information under this Agreement. BMC will use the Customer Content only as necessary to provide the Subscription Services in accordance with this Agreement. At any time during the term of the Subscription Services, Customer may request copies of all Customer Content from the Subscription Services. Customer is responsible for complying with all legal and contractual requirements, including its agreements with third parties. With the exception of Customer Content collected by the Subscription Services, Customer is solely responsible for the transmission of Customer Content to BMC and to the Subscription Services. Customer is solely responsible for the encryption of any Customer Content during such transmission.
7.4 Suggestions. Customer agrees that BMC shall have a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into any BMC products or services any suggestions, enhancement requests, recommendations or other feedback provided by Customer relating to the Subscription Services.
8. DISCLAIMER OF DAMAGES AND LIMITS ON LIABILITY.
8.1 DISCLAIMER OF DAMAGES. NEITHER PARTY OR ITS AFFILIATES OR LICENSORS ARE LIABLE FOR ANY, SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES RELATING TO OR ARISING OUT OF THIS AGREEMENT OR THE SUBSCRIPTION SERVICES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST COMPUTER USAGE TIME, AND DAMAGE TO, OR LOSS OF USE OF, DATA), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND IRRESPECTIVE OF ANY NEGLIGENCE OF A PARTY OR WHETHER SUCH DAMAGES RESULT FROM A CLAIM ARISING UNDER TORT OR CONTRACT LAW. THE FOREGOING LIMITATIONS DO NOT APPLY TO EACH PARTY’S RESPONSIBILITIES IN SECTION 9, INFRINGEMENT BY A PARTY OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, GROSS NEGLIGENCE, WILLFUL MISCONDUCT, DEATH OR BODILY INJURY, ACTS OF FRAUD, NOR ANY LIABILITY WHICH MAY NOT BE EXCLUDED OR LIMITED BY LAW.
8.2 LIMITS ON LIABILITY. NEITHER PARTY OR ITS AFFILIATES OR LICENSORS SHALL HAVE AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SUBSCRIPTION SERVICES, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEEDING THE AMOUNTS ACTUALLY PAID BY AND DUE FROM CUSTOMER FOR THE SUBSCRIPTION SERVICES GIVING RISE TO LIABILITY PURSUANT TO THE ORDER(S) THAT ARE IN EFFECT AS OF THE DATE THE LIABILITY FIRST AROSE. THE FOREGOING LIMITATIONS DO NOT APPLY TO EACH PARTY’S RESPONSIBILITIES IN SECTION 9, INFRINGEMENT BY A PARTY OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, GROSS NEGLIGENCE, WILLFUL MISCONDUCT, DEATH OR BODILY INJURY, ACTS OF FRAUD, NOR ANY LIABILITY WHICH MAY NOT BE EXCLUDED OR LIMITED BY LAW.
9. INFRINGEMENT CLAIMS.
9.1 Indemnification by BMC . If a third party asserts a claim against Customer asserting that Customer’s use of the Subscription Services, including Platform Services, Deliverables and Licenses as defined in the Attachments to this Agreement, in accordance with this Agreement violates that third-party’s patent, trade secret or copyright rights (“Infringement Claim”), then BMC will, at its own expense: (a) defend or settle the Infringement Claim; and (b) indemnify Customer for any damages finally awarded against Customer based on infringement by the Subscription Services or Deliverables, including court costs and reasonable attorney’s fees. If BMC believes the Subscription Services may violate a right, then BMC will, at its expense: (a) modify the Subscription Services, or (b) procure the right to continue using the Subscription Services, and if (a) or (b) are not commercially reasonable, terminate Customer's right to use the Subscription Services and issue a pro-rata refund for the unexpired pre-paid portion of such Subscription Services.
9.2 Indemnification by Customer. Subject to the terms of this Agreement, if a third party asserts a claim against BMC asserting that the (i) Customer Content, (ii) Customer Applications as defined in Attachment A, (iii) Customer Property as defined in Attachment B or (iv) Customer’s use of the Subscription Services in violation of this Agreement violates that third-party’s patent, trade secret or copyright rights (“ Claim”), Customer will, at its own expense: (a) defend or settle the Claim; and (b) indemnify BMC for any damages finally awarded against BMC based on the Claim, including court costs and reasonable attorney’s fees.
9.3 Indemnity Process. Neither party’s obligations under this Section 9 will apply if: (a) the indemnifying party’s legal department does not receive prompt, detailed written notice of the Infringement Claim/Claim from the party being indemnified, (b) the indemnifying party is not able to retain sole control of the defense of the Infringement Claim/Claim and all negotiations for its settlement or compromise, or (c) the indemnifying party does not receive all reasonable assistance from the party being indemnified. Neither party will bind the indemnified party to a monetary obligation in a settlement or compromise, or make an admission on behalf of the indemnified party, without obtaining that party’s prior consent.
9.4 THIS SECTION 9 CONTAINS EACH PARTY'S EXCLUSIVE REMEDIES AND THE INDEMNIFYING PARTY'S SOLE LIABILITY FOR INFRINGEMENT CLAIMS/CLAIMS, RESPECTIVELY.
10. EXPORT CONTROLS. Both parties agree to comply with applicable export regulations, including but not limited to U.S. Export Administration Regulations and the OFAC embargoes and sanctions lists. More information on BMC’s export compliance program may be found here: https://www.bmc.com/legal/export-compliance.html.
11. GOVERNING LAW AND DISPUTE RESOLUTION. Any controversy, dispute or claim arising out of or relating to this Agreement, or to the formation, interpretation, breach, termination, or validity thereof (each, a “Controversy”) will be resolved as follows:
(i) UNITED STATES. If both parties to this Agreement are entities incorporated under the law of any state in the United States, the Controversy shall be tried in either state or federal court located in Houston, Texas and the laws of the State of Texas shall govern. Both parties hereby submit to the exclusive jurisdiction of the courts in Houston, Texas and waive all defenses based on forum non conveniens. Notwithstanding the foregoing, if Customer is a state or local governmental entity or higher education institution and legally required to apply state law, then Customer’s state law will apply to the Controversy, without reference to conflict of law principles.
(ii) CANADA. If Customer is located in Canada (outside Quebec), then the law of the Province of Ontario law apply, without reference to conflict of law principles. If Customer is located in Quebec, then the laws of the Province Quebec will apply, without reference to conflict of law principles.
(iii) EMEA. If both parties to this Agreement are entities incorporated in countries in the Europe, Middle East, or Africa regions, the Controversy shall be tried in the District Court located in Amsterdam, the Netherlands and the substantive laws of the Netherlands shall govern. Both parties hereby submit to the exclusive jurisdiction of the District Court in Amsterdam, the Netherlands and waive all defenses based on forum non conveniens.
(iv) ASIA PACIFIC. If both parties to this Agreement are entities incorporated in countries in the Asia Pacific region, the arbitration shall be held in Singapore under the then-applicable rules of the Singapore International Arbitration Centre and the substantive laws of Singapore will govern.
(v) OTHER REGIONS. In all other instances, the arbitration shall be held in New York City, New York, under the then-applicable international rules of the American Arbitration Association and the substantive laws of the State of Texas will govern.
For all arbitrations conducted hereunder: (a) the arbitration shall be conducted in English; (b) the relevant arbitral institution shall determine the number of arbitrators, but any Controversy in which the amount in dispute is greater than $10 million USD shall be decided by three arbitrators, with each party having the right to select one arbitrator; (c) the costs of such arbitration shall be borne equally, pending the arbitrator’s award; (d) the arbitration award rendered shall be final and binding on the parties, shall not be subject to appeal to any court and shall be enforceable in any court having jurisdiction over the parties; (e) the arbitration proceedings, award and pleadings shall all be confidential, unless disclosure of particular information is required for purposes of enforcing/challenging the award or to meet local securities law requirements; and (f) the party prevailing in arbitration shall be entitled to recover its reasonable attorneys’ fees and the necessary costs incurred in connection with the arbitration.
The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. Nothing in this Agreement shall be deemed as preventing either party from seeking immediate injunctive relief from any court having jurisdiction over the parties and the subject matter of the dispute.
12. The following BMC contracting entities apply to this Agreement:
Region | Contracting Entity | Address of Contracting Entity |
United States and Latin America South (not a specified Central or South America country below) | BMC Software, Inc. | 2103 CityWest Boulevard, Houston, Texas 77042 |
Canada | BMC Software Canada Inc. | 50 Minthorn Boulevard, Suite 200 Markham, Ontario L3T 7X8 Canada |
EMEA (Europe, Middle East and Africa) | BMC Software Distribution B.V. | Vision Plaza West, 2nd floor, Boeingavenue 220, 1119PN Schiphol-Rijk, The Netherlands |
Brazil | BMC Brasil Software Ltda. | Avenida Dra. Ruth Cardoso, n° 8.501, Condomínio Eldorado Business Tower, 22° andar, Pinheiros, São Paulo – SP, CEP: 05425-070 |
Mexico | BMC Software Distribution de México, S.A. de C.V. | Volcán 150, Piso 4, Col. Lomas de Chapultepec, C.P. 11000, Deleg. Miguel Hidalgo, Ciudad de México |
Argentina | BMC Software de Argentina S.A. | Ing. Butty 220 - Piso 18, Catalinas Plaza Buenos Aires, República de Argentina, C1001A |
S.E.A (Southeast Asia), Australia, New Zealand, Hong Kong, Taiwan | BMC Software Ireland Unlimited Company | Building 3, Cherrywood Business Park, Bray Road, Loughlinstown, CO. Dublin, D18 TF72 |
China | BMC Software (China) Limited | Room 502, Level 5, Tower W1, The Towers, Oriental Plaza, No. 1 East Chang An Ave., Dong Cheng Dist., Beijing 100738, China |
Japan | BMC Software K.K. | Harmony Tower 24th Floor, 1-32-2 Honcho, Nakano-ku, Tokyo, 164-8721 |
Korea | BMC Software Korea Ltd | 24th Fl., ASEM Tower, 1517, Yeongdong-daero,Gangnam-gu, Seoul 135-798, Korea South |
13. U.S. GOVERNMENT END USER RIGHTS. This Section applies only to acquisitions of the commercial Subscription Services subject to this Agreement by or on behalf of the United States Government, or by any prime contractor or subcontractor (at any tier) under any contract, grant, agreement or other activity with the United States Government. When Subscription Services are delivered or provided to the United States Government, the United States Government agrees that this commercial license Agreement and the Subscription Services governed by this Agreement are defined in accordance with and qualify as “commercial items” consisting of “commercial computer software” and “commercial computer software documentation” as outlined in FAR 12.211, FAR 12.212 and DFARS 227.7202-3, as applicable. The terms and conditions of this Agreement shall pertain to the United States Government’s use (including documentation or technical data), duplication, and disclosure of the Subscription Services, and shall supersede any conflicting contractual terms and conditions”.
14. DATA PROTECTION. The processing of Customer Content under this Agreement is governed by the BMC Data Processing Agreement set forth on the Order.
15. VERIFICATION. Customer agrees that BMC or its agent may monitor the Subscription Services to ensure Customer’s compliance with the terms of this Agreement. If such monitoring reveals that Customer has exceeded the Capacity for the Subscription Services, BMC may work with Customer to seek to reduce Customer’s usage so that it conforms to the Capacity limit for such Subscription Service. If, notwithstanding BMC’s efforts, Customer is unable or unwilling to abide by the Capacity limits for the Subscription Services, Customer will execute an Order for additional Capacity of such Subscription Services promptly upon BMC’s request.
16. NOTIFICATIONS. Any general notifications regarding technical matters from BMC to Customer will be sent to the Customer contact stated in the Customer Technical Contact Information section of the Order. The Customer contact in the Order has been assigned by Customer as the Customer contact for operational issues that may arise. Customer shall notify BMC of any change to the Customer contact details in writing, which may include via e-mail.
17. CONDUCTING BUSINESS WITH HONESTY AND INTEGRITY. BMC is committed to conducting business with honesty and integrity. BMC’s Code of Conduct set forth in https://www.bmc.com/legal/code-of-conduct.html governs the conduct of all officers, directors, and employees of BMC, and contingent workers and business partners acting on BMC’s behalf. BMC demonstrates its commitment to environmental stewardship by its global accreditation for ISO 14001:2015.
18. MISCELLANEOUS TERMS. The parties are independent contractors and this Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties. Customer will receive system notifications from BMC and its licensors, if applicable (i.e. planned downtime notices, etc). This Agreement, including the Attachments and Orders constitutes the entire agreement between Customer and BMC and supersedes any prior or contemporaneous negotiations or agreements, whether oral or written concerning the Subscription Services. There are no representations, promises, warranties, covenants, or undertakings between the parties other than those expressly set forth in this Agreement. There are no third-party beneficiaries to this Agreement; Customer is not entering into a contractual relationship with BMC’s licensors and BMC’s licensors have no liability to Customer. Except as provided in Section 2 above, no modification or waiver of any provision hereof will be effective unless made in a writing signed by both BMC and Customer. Customer has the right to assign this Agreement and all Orders in whole to an Affiliate, or to a successor in connection with (i) the sale of all or substantially all of the assets of that party or (ii) a merger by operation of law, by providing written notice to BMC. The assignee may not be a known direct competitor of BMC. The successor entity or Affiliate must agree in writing with BMC (in advance of the assignment) to be bound by the terms of this Agreement. Any Customer transfer or assignment except as expressly authorized above will be null and void. Should any provision of this Agreement be invalid or unenforceable, the remainder of the provisions will remain in effect. Any additional or conflicting terms of any Customer purchase order are rejected by BMC and do not apply. The Subscription Services may contain hyperlinks to websites controlled by parties other than BMC. BMC is not responsible for and does not endorse the content or accept any responsibility for Customer’s use of these websites. Customer should refer to the policies posted by other websites regarding privacy and other topics regarding data privacy before using them. Les parties exigent que la présente convention ainsi que les documents qui s’y rattachent soient rédigés en anglais.
Attachments incorporated into Agreement |
Attachment A – Platform Services Attachment |
Attachment B – Consulting Services Attachment |
Attachment C – On Premise Subscription Services Attachment |
PLATFORM SERVICES ATTACHMENT
to the
BMC CLOUD SERVICES MASTER AGREEMENT
Except as otherwise provided herein, the terms of the Cloud Services Master Agreement (the “Base Agreement”) are incorporated into this Platform Services attachment (the “Attachment”). Together, this Attachment and the Base Agreement (as incorporated into this Attachment) are referred to as the “Agreement” for purposes of Customer’s access and use of Platform Services, only if the Platform Services are set forth on an Order referencing the Base Agreement. For purposes of this Agreement, the term “Subscription Services” as defined in the Base Agreement shall be extended to include the Platform Services. In the event of a conflict between the Base Agreement and the terms of this Attachment, the terms of this Attachment will control for Customer’s access and use of the Platform Services only.
1. SCOPE. Subject to the terms of this Agreement, BMC will provide Customer with access to the Platform Service named in the applicable Order.
2. DEFINITIONS.
2.1 “Application” is the object code, its definitional structures, and data created to fulfill a particular purpose, which runs on the Platform Services. An Application may also include its documentation and User Guide.
2.2 “Customer Applications” means Applications that are owned or licensed by Customer, and which run on the Platform Services.
2.3 “Development Platform” means a BMC provided development platform which allows Customer to develop a custom application to run on the Platform Services. The Development Platform is a separate environment from the Platform Services.
2.4 “Platform” means the generally available BMC-provided PaaS platform and its capabilities to run Applications.
2.5 “Platform Services” means the specific Platform Services identified in the Order.
3. BMC PLATFORM SERVICES.
3.1 BMC Platform Services Support. BMC will provide Support only for Platform Services. Customer is responsible for its own support for Customer Applications.
4. CUSTOMER APPLICATIONS.
4.1 The terms contained in this section 4 apply only to Orders for Platform Services entitling Customers to develop and deploy Customer Applications onto the Platform Services. Any Customer Applications that run on the Platform Services are hereby excluded from the defined terms “Subscription Services” and “Platform Services”.
4.2 Development Platform. Customer may utilize the Development Platform to create an Application to run on the Platform Services. Customer’s use of the Development Platform is governed by the terms of this Agreement subject to the restrictions set forth in sections 4.2.1 to 4.2.6 below. Customer’s development of an Application must meet the best practices development guidelines set forth in the User Guide. Each Customer Application shall at all times materially conform to policies and best practices set forth in the User Guide. Prior to the deployment of any Customer Applications in a production or non-production environment of the Platform Services, Customer must conduct security and functional tests of each Customer Application and submit the results of such tests to BMC for review. BMC reserves the right to reject Customer’s deployment request of a Customer Application based on the results of Customer’s security and functional tests. Additionally, BMC reserves the right, during the term of this Agreement, to request Customer conduct additional security and functional tests and provide the results of said tests to BMC for review. Notwithstanding the foregoing, Customer must ensure that at all times Customer Applications are secure.
4.2.1 Scope of use. The right to access and use the Development Platform is granted solely for the purpose of performing non-production application development work on the Development Platform.
4.2.2 Restrictions of use. Customer agrees not to:
(i) use the Development Platform to (1) process production data or for any other production purposes, including but not limited to publishing digital applications, or (2) distribute applications;
(ii) use the Development Platform with data or information that has not been backed up; or
(iii) modify, delete or remove any ownership, title, trademark, patent or copyright notices.
4.2.3 Customer Responsibilities. Customer is responsible for acquiring all necessary and required licenses for the use of any third party software, source code and/or libraries Customer may use as part of its development with the Development Platform. In addition to its other rights and remedies, BMC reserves the right, without liability to Customer, to immediately, at any time and for any reason refresh Customer’s instance of the Development Platform. Upon BMC’s refreshing of Customer’s instance of the Development Platform, Customer may lose all Customer Content submitted to or stored in said instance of the Development Platform. Upon expiration or termination of the applicable Order, BMC may destroy any Customer Content submitted to or stored therein. Customer is responsible for backing up any development work with Customer Content outside of the Development Platform.
4.2.4 Open Source. Customer may not use any software, library, utility, tool, or other computer or program code (“Code”) with the Subscription Services that in any way that would (i) weaken BMC’s intellectual property rights in the Services, or (ii) require the Subscription Services to become or be disclosed or distributed as Open Source Software. For purposes of this Section, “Open Source Software” means any Code that is substantially similar to, (A) the Affero General Public License, (B) the GNU General Public License (GPL) or Lesser/Library GPL (LGPL), (C) the Artistic License (e.g. PERL), (D) the Mozilla Public License, (E) the Netscape Public License, (F) the Sun Community Source License (SCSL), (G) the Sun Standards License (SISL), or (H) any “copyleft” license, or any other license that requires as a condition of use, reproduction, modification, or distribution that such Code or other software or computer code distributed with it: (1) be disclosed or distributed in source code form; (2) be licensed for the purpose of creating derivative works; (3) be licensed under terms that allow reverse engineering, reverse assembly, or disassembly of any kind; (4) be subject to a patent non-assert or royalty-free patent license; or (iv) be redistributable at no charge.
4.2.5 No Support. BMC, its affiliates, or licensors do not provide Support for the Development Platform.
4.2.6 Disclaimer of Warranty, Limitation of Liability and Exclusive Remedy. Notwithstanding anything to the contrary in the applicable Order or this Agreement:
a. THE DEVELOPMENT PLATFORM IS PROVIDED “AS IS” WITHOUT ANY WARRANTY OF ANY KIND WHATSOEVER. BMC, ITS AFFILIATES AND LICENSORS DO NOT WARRANT THAT THE DEVELOPMENT PLATFORM WILL SATISFY CUSTOMER’S REQUIREMENTS, THAT THE DEVELOPMENT PLATFORM IS WITHOUT DEFECT, VIRUS OR ERROR FREE, WITHOUT DELAY, OR THAT THE OPERATION OF THE DEVELOPMENT PLATFORM WILL BE UNINTERUPTED. BMC, ITS AFFILIATES AND LICENSORS DISCLAIM ANY AND ALL REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, MADE WITH RESPECT TO THE DEVELOPMENT PLATFORM, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INTERFERENCE AND INFORMATION CONTENT; AND
b. NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY, FOR ANY CLAIM, LOSS, DAMAGE OR EXPENSE FOR INDIRECT, SPECIAL, CONSEQUENTIAL, PUNITIVE OR INCIDENTAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE DEVELOPMENT PLATFORM (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST COMPUTER USAGE TIME, AND DAMAGE TO, OR LOSS OF USE OF, DATA), EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EITHER PARTY’S ENTIRE LIABILITY AND THE OTHER PARTY’S EXCLUSIVE REMEDY FOR DIRECT DAMAGES ARISING OUT OF OR RELATED TO THE DEVELOPMENT PLATFORM, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, IS LIMITED TO $100.
4.3 License to Customer Applications. Subject to the terms and conditions of this Agreement, Customer hereby grants BMC a worldwide, limited, nonexclusive license during the term of the applicable Order for the Platform Services to host, copy, transmit, adapt and display Customer Applications solely for the purpose of fulfilling BMC’s obligations under this Agreement.
4.4 Functionality of Customer Applications. Customer is solely responsible for the operation of Customer Applications, including but not limited to any information stored in or transmitted by Customer Applications. Customer is responsible for monitoring the usage of each Customer Application. Customer is responsible for the configuration, functionality, performance, compliance with applicable data protection laws and security of all Customer Applications, including any interfaces used to connect to Customer Applications.
4.5 Customer Assistance. Customer will provide information or other materials related to a Customer Applications as reasonably requested by BMC to verify Customer’s compliance with the Agreement and the User Guide.
4.7 Suspension of Customer Applications. Customer’s use of the Platform Services may be immediately suspended and/or terminated due to (i) reasonable security threats regarding the Platform Services or Customer Applications, (ii) Customer Applications interfering with, disrupting or threatening the integrity or performance of the Subscription Services and/or the Platform Services, or (iii) violates the law, infringes or misappropriates the rights of any third party or otherwise violates a material term of the Agreement. In the event (i) or (ii) above apply to Customer Applications, Customer is required to remediate any such issue to BMC’s commercially reasonable satisfaction before use of Customer Applications can resume. BMC shall use reasonable commercial efforts to only suspend the non-conforming portion of the Platform Services.
4.8 CUSTOMER APPLICATIONS WARRANTIES. Customer warrants to BMC that: (a) each Customer Application will perform materially in accordance with the User Guide; (b) Customer has all rights in the Customer Content and Customer Applications necessary to grant the rights contemplated by this Agreement; (c) none of the Customer Content or Customer Applications or Users’ use of Customer Content or Customer Applications will violate the Agreement and the User Guide; and (d) Customer’s security and functional tests of Customer Applications was conducted in a commercially reasonable manner and the results of said tests provided to BMC for review are correct and valid.
ATTACHMENT B
CONSULTING SERVICES ATTACHMENT
to the
BMC CLOUD SERVICES MASTER AGREEMENT
Except as otherwise provided herein, the terms of the Cloud Services Master Agreement (the “Base Agreement”) are incorporated into this Consulting Services attachment (the “Attachment”). Together, this Attachment and the Base Agreement (as incorporated into this Attachment) are referred to as the “Agreement” for purposes of Customer’s purchase of Consulting Services, only if Consulting Services are set forth on an Order referencing the Base Agreement. For purposes of this Agreement, the term “Subscription Services” as defined in the Base Agreement shall be extended to include Consulting Services. In the event of a conflict between the Base Agreement and the terms of this Attachment, the terms of this Attachment will control for Customer’s purchase of Consulting Services only. The parties agree that the following Sections of the Base Agreement do not apply to the Consulting Services provided under this Attachment: Section 3.2 (Support), Section 4 (Fees and Payment), and Section 6 (Limited Warranty).
1. SCOPE. BMC agrees to render to Customer Consulting Services under the terms of this Agreement and as further described in an Order. BMC will render the Consulting Services in the location(s) as set forth in the Order. The performance of the Consulting Services will not relieve or alter the rights, obligations and responsibilities of Customer and of the BMC Affiliate providing Subscription Services and/or Licenses with respect to Subscription Services and/or Licenses under the applicable agreement.
2. SERVICE FEES AND EXPENSES. The fees payable to BMC for the Consulting Services to be rendered will be detailed in the Order. BMC will submit invoices to Customer for such fees and incurred expenses either upon completion of the Consulting Services, or at stated intervals, in any case in accordance with the applicable Order. Customer shall pay amounts invoiced within 30 days of the date of the invoice.
3. EDUCATION. Customer may acquire Learning Pass Credits and Education Services (collectively, “BMC Education ”) on an Order. The BMC Education terms that govern such Orders are set forth in the Education Program Guide located at https://www.bmc.com/content/dam/bmc/education/education-program-guide.pdf, and is incorporated herein by this reference.
4. STATEMENTS OF WORK. Consulting Services may require the execution of a Statement of Work, in which case, such Statement of Work will be considered an Order for such Consulting Services. In the event of any conflict between the terms of a Statement of Work and this Agreement, the Agreement shall prevail except for matters of service fees, payment and reimbursement of expense, and termination of Consulting Services if further specified in the Statement of Work. During the term of an applicable Statement of Work, and for a period of six months thereafter, neither party will solicit for employment any employees, agents, or subcontractors of the other party or its affiliates who, within six months prior to such solicitation, had contact with the soliciting party based in whole or in part upon Consulting Services provided under this Agreement. The restrictions in this section shall be deemed not to apply to general solicitations for employment posted on Internet job sites or printed in newspapers or trade or professional journals.
5. PROPRIETARY RIGHTS AND RIGHTS IN DELIVERABLES.
5.1 Ownership of Materials Used in the Consulting Services. Unless specifically provided in an Order, Customer shall supply all of the facilities; equipment; supplies; computer programs; information about Customer’s business, systems, software and needs; and other materials necessary for completion of the Consulting Services (“Customer Property”), and BMC shall supply the people described in the Order, the know-how and the tools necessary to provide the Consulting Services, which may include, among other things, software, templates, questionnaires, graphs, methodologies, models, charts and reports (“BMC Property”). Customer Property and copies and modifications of Customer Property will remain the sole property of Customer or if applicable, Customer’s licensors, and BMC Property and copies and modifications of BMC Property will remain the sole property of BMC or if applicable, BMC’s licensors. Customer hereby grants to BMC a royalty-free, paid-up, non-exclusive, non-sublicensable and non-transferable license to use the Customer Property for the purpose of providing the Consulting Services.
5.2 Deliverables. Deliverables are those created under the Order, including, but not limited to, software, software scripts, routines, libraries or other code, or appliances, methodologies, templates, tools, policies, records, working papers, reports, methodologies, know-how, data, or other intellectual property, written or otherwise, including any derivative works or modifications to the above, whether pre-existing or created during the performance of the Consulting Services and all proprietary and intellectual property rights embedded therein delivered as a result of the Consulting Services as specified under the Order. BMC owns all right, title and interest in the Deliverables. Provided Customer has paid in full for the Consulting Services that resulted in the Deliverables, BMC will deliver the Deliverables to Customer in accordance with the applicable Order. Subject to compliance with the terms of this Agreement and the applicable Order, BMC grants Customer a non-exclusive, non-transferable, non-sublicensable, royalty-free, paid-up license to use, create derivative works of and modify all Deliverables solely for its internal business operations.
5.3 Copyright Notice. Each party agrees to reproduce the copyright notice and any other legend or ownership notice on any copies made under the licenses granted pursuant to this Section 5.
5.4 Retention. Customer acknowledges that BMC provides similar services to other customers and that nothing in this Agreement shall be construed as operating to prevent BMC from carrying on such business. Further BMC may use ideas, concepts, or know-how developed or acquired by BMC during performance of the Consulting Services to the extent by BMC’s personnel as impressions and general learning.
6. LIMITED WARRANTY. BMC warrants that it will perform the Consulting Services in conformance with generally accepted practices within the software services industry and in accordance with the Order. Customer must notify BMC of any breach of this warranty no later than 90 days after completion of the Consulting Services under the Order. Customer’s exclusive remedy and BMC’s entire liability under this warranty shall be for BMC to re-perform any non-conforming portion of the Consulting Services within a reasonable period of time, or if BMC cannot remedy the breach during such time period then refund the portion of the fee attributable to such non-conforming portion of the Consulting Services under the Order. This warranty will not apply to the extent Customer, its contractors or agents have modified any Deliverable, unless otherwise authorized by BMC in writing.
EXCEPT FOR THE EXPRESS WARRANTIES IN THIS AGREEMENT, THE CONSULTING SERVICES AND DELIVERABLES ARE PROVIDED WITH NO OTHER WARRANTIES WHATSOEVER, AND BMC, ITS AFFILIATES AND LICENSORS DISCLAIM ALL OTHER WARRANTIES, INCLUDING, FITNESS FOR A PARTICULAR PURPOSE AND IN THE UNITED STATES AND CANADA, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, AND NON-INFRINGEMENT.
7. INSURANCE. BMC will provide and maintain the following insurance, but only for losses arising out of BMC’s provision of Consulting Services under this Attachment: a) Worker’s Compensation insurance as prescribed by the law of the state applicable to the employees performing the Consulting Services; (b) Employer’s Liability insurance with a limit of $1,000,000 USD for each occurrence; (c) Commercial General Liability insurance with $1,000,000 USD per occurrence combined single limit and $2,000,000 USD general aggregate, including coverage for Products Liability and Completed Operations; (d) Automobile Liability insurance, including coverage for Hired and Non-owned vehicles of $1,000,000 USD for combined single limit for bodily injury and/or property damage; and (e) Professional Liability insurance covering Errors and Omissions in the amount of $1,000,000 USD for each occurrence and in the aggregate associated with Consulting Services performed under this Agreement.
8. MUTUAL INDEMNITY. Each party shall indemnify and hold harmless the other party from all claims, liabilities or expenses for physical damage to real property or tangible personal property and bodily injury, including death, to the extent caused by the negligence, gross negligence or willful misconduct of the indemnifying party’s employees or contractors arising out of this Agreement and while at the Customer’s premises. The foregoing indemnities are contingent upon the party seeking indemnity giving prompt written notice to the indemnifying party of any claim, demand or action, and cooperating with the indemnifying party in the defense or settlement of any such claim, demand or action.
9. INDEPENDENT CONTRACTOR. All of the services performed by BMC under this Agreement will be performed as an independent contractor.
ATTACHMENT C
ON PREMISE SUBSCRIPTIONS ATTACHMENT
to the
BMC CLOUD SERVICES MASTER AGREEMENT
Except as otherwise provided herein, the terms of the Cloud Services Master Agreement (the “Base Agreement”) are incorporated into this On Premise Subscriptions attachment (the “Attachment”). Together, this Attachment and the Base Agreement (as incorporated into this Attachment) are referred to as the “Agreement” for purposes of Customer’s purchase and ongoing use of On Premise Subscriptions, only if On Premise Subscriptions are set forth on an Order referencing the Base Agreement. For purposes of this Agreement, the term “Subscription Services” as defined in the Base Agreement shall be extended to include On Premise Subscriptions. In the event of a conflict between the Base Agreement and the terms of this Attachment, the terms of this Attachment will control for Customer’s purchase of On Premise Subscriptions only. The parties agree that the following Sections of the Base Agreement do not apply to the On Premise Subscriptions provided under this Attachment: Section 3.1 (Access Rights), Section 3.4 (Customer Responsibilities and Restrictions), Section 6 (Limited Warranty) and Section 14 (Verification).
1. DEFINITIONS.
1.1 “Authorized User” means Customer, Customer Affiliate(s), and their employees, consultants, contractors and agents that are bound by the terms and conditions no less restrictive than those contained herein and for whom Customer takes full responsibility. Authorized Users do not include service providers or outsourcers.
1.2 "Documentation" means the technical publications relating to the software, such as release notes, license entitlement descriptions, reference, user, installation, systems administrator and technical guidelines, included with the On Premise Subscription.
1.3 “Licensed Capacity” is the amount of each On Premise Subscription licensed as established in the Order.
1.4 “On Premise Subscription” is the object code of the software and all accompanying Documentation delivered to Customer, including all items delivered by BMC to Customer under Support.
2. LICENSE. Subject to the terms, conditions, payment requirements and restrictions set forth in this Agreement, BMC grants Customer a non-exclusive, non-transferable, non-sub-licensable term license to install in the Territory as defined in an Order, access and use the On Premise Subscription during the term specified on the Order (i) by Authorized User(s), (ii) up to the Licensed Capacity, (iii) for Customer’s and its Affiliates’ internal business operations, (iv) in accordance with the Documentation and the applicable Order, and (v) make a reasonable number of copies of the On Premise Subscription for archival purposes only (collectively a "License"). Affiliates may use and access the On Premise Subscriptions under the terms of this Agreement, and Customer is responsible for its Affiliates compliance with the terms of this Agreement.
3. RESTRICTIONS. Customer will not: (a) copy, operate or use any On Premise Subscription in excess of the applicable Licensed Capacity or other than as set forth in the License above; (b) modify, delete or remove any ownership, title, trademark, patent or copyright notices (“Identification”) from any On Premise Subscription, or copy or partial copy of an On Premise Subscription; (c) disassemble, reverse engineer, decompile or otherwise attempt to derive any On Premise Subscription source code from object code, except to the extent expressly permitted by applicable law despite this limitation without possibility of contractual waiver; (d) distribute, rent, lease, sublicense or provide the On Premise Subscription to any third party; (e) use the On Premise Subscriptions in an outsourcing or service bureau environment on behalf of non-Affiliate third parties, or allow the On Premise Subscriptions to be used by an outsourcing or service bureau provider on Customer’s behalf (without obtaining prior written approval from BMC); (f) provide a third party with the results of any functional evaluation, product vulnerability or performance tests, without BMC's prior written approval; or (g) attempt to disable or circumvent any of the licensing mechanisms within the On Premise Subscription.
4. ON PREMISE SUBSCRIPTION PERFORMANCE WARRANTY. BMC warrants that (a) the On Premise Subscription will perform in substantial accordance with its Documentation for a period of one year from the date of the first Order, (b) BMC has used commercially reasonable efforts consistent with industry standards to scan for and remove software viruses, and (c) other than passwords that may be required for the operation of the On Premise Subscription, BMC has not inserted any code that is not addressed in the Documentation and that is designed to delete, interfere with or disable the normal operation of the On Premise Subscription in accordance with the License. This warranty will not apply to any problems caused by hardware, Computers, or software other than the On Premise Subscription, or misuse of the On Premise Subscription, use of the On Premise Subscription other than as provided by the applicable License, modification of the On Premise Subscription, or claims made either outside the warranty period or not in compliance with the notice and access requirements set forth below. No warranty is provided for additional Licensed Capacity, On Premise Subscription provided pursuant to Support. BMC’s entire liability, and Customer’s exclusive remedy, for breach of the above warranty is limited to: BMC’s use of commercially reasonable efforts to have the On Premise Subscription perform in substantial accordance with its Documentation, or replacement of the non-conforming On Premise Subscription within a reasonable period of time, or if BMC cannot have the On Premise Subscription perform in substantial accordance with its Documentation replace the On Premise Subscription within such time period, then BMC will refund the amount paid by Customer for the License for that On Premise Subscription. Customer’s rights and BMC's obligations in this Section are conditioned upon Customer’s providing BMC during the warranty period (i) full cooperation and access to the On Premise Subscription in resolving any claim; and (ii) written notice addressed to the BMC Legal Department that includes notice of the claim, a complete description of the alleged defects sufficient to permit their reproduction in BMC’s development or support environment, and a specific reference to the Documentation to which such alleged defects are contrary.
EXCEPT FOR THE EXPRESS WARRANTIES IN THIS ATTACHMENT, THE ON PREMISE SUBSCRIPTION IS PROVIDED WITH NO OTHER WARRANTIES WHATSOEVER, AND BMC, ITS AFFILIATES AND LICENSORS DISCLAIM ALL OTHER WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE AND IN THE UNITED STATES AND CANADA, MERCHANTABILITY AND NON-INFRINGEMENT. BMC DOES NOT WARRANT THAT THE OPERATION OF THE ON PREMISE SUBSCRIPTION WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT ALL DEFECTS CAN BE CORRECTED.
5. DELIVERY. For On Premise Subscriptions that are delivered electronically, upon request from BMC, Customer agrees to provide BMC with documentation supporting that the designated On Premise Subscription was received electronically. If Customer accepts any On Premise Subscription in a non-electronic format, there may be an additional charge and it is the sole responsibility of Customer to bear any sales/use tax obligation, penalties, and interest. All On Premise Subscriptions are licensed FCA (“Free Carrier” as per Incoterms 2000) shipping point. The On Premise Subscriptions are accepted on the date BMC delivers the On Premise Subscription to the Customer either physically or by providing access codes for electronic download, whichever occurs first, however, such acceptance will not affect the On Premise Subscription Performance Warranty provided in this Agreement.
6. AUDIT. If requested by BMC, and not more than once a year, Customer agrees to deliver to BMC, within 30 days of such request, as specified by BMC either (a) periodic product usage reports generated from specific products or (b) written periodic product usage reports, to be provided solely when the product does not generate reports (“Report”). Additionally, if requested by BMC not more than once a year and upon at least ten days prior written notice to Customer, Customer agrees to allow BMC to perform an audit (“Audit”) to ensure compliance with the terms of this Agreement at the locations where the On Premise Subscriptions are installed, during normal business hours. to ensure compliance with the terms of this Agreement. Customer agrees to cooperate during any such Audit and to provide reasonable access to its information and systems.
Effective February 15th 2022 to June 1st 2022
DownloadTable of Contents
BMC CLOUD SERVICES MASTER AGREEMENT
THIS CLOUD SERVICES MASTER AGREEMENT (“AGREEMENT”) GOVERNS YOUR FREE TRIAL, IF ANY, OF THE SUBSCRIPTION SERVICES.
IF YOU PURCHASE THE SUBSCRIPTION SERVICES, THIS AGREEMENT WILL ALSO GOVERN YOUR PURCHASE AND ONGOING USE OF THE SUBSCRIPTION SERVICES.
BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SUBSCRIPTION SERVICES.
You may not access the Subscription Services if you are BMC’s direct competitor, except with BMC’s prior written consent. In addition, you may not access the Subscription Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.
This Agreement was last updated on February 15, 2022. This Agreement is between the entity or individual entering into this Agreement (“Customer”) and the BMC Contracting Entity for the applicable region as described in Section 12 (“BMC”). It is effective between Customer and BMC as of the date of your acceptance of this Agreement. If Customer has a fully executed BMC Cloud Services Master Agreement then such fully executed BMC Cloud Services Master Agreement supersedes and replaces any clickwrap or click-through agreements (or other similar agreements) that Customer may be required to accept as a part of accessing or using the Subscription Services. For Customer’s convenience, prior versions of this Agreement are available at https://www.bmc.com/legal/csma.html.
FREE TRIAL.
BMC may make the Subscription Services available to Customer on a trial basis free of charge. If BMC offers Customer a free trial, it will run until the earlier of (a) the end of the trial period stated on the trial registration web page or (b) the start date of any Order for purchase of the Subscription Services. Additional trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.
ANY DATA CUSTOMER ENTERS INTO THE SUBSCRIPTION SERVICES, AND ANY CUSTOMIZATIONS MADE TO THE SUBSCRIPTION SERVICES BY OR FOR CUSTOMER, DURING A FREE TRIAL MAY BE PERMANENTLY LOST.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THE AGREEMENT, DURING ANY FREE TRIAL PERIOD THE SUBSCRIPTION SERVICES ARE PROVIDED “AS IS” WITH NO WARRANTY.
1. DEFINITIONS.
1.1 “Affiliate” is an entity that controls, is controlled by or shares common control with BMC or Customer, where such control arises from the legal power to direct or cause the direction of the general management and policies of the company, partnership or legal entity.
1.2 "Capacity” means the amount of access to the Subscription Services purchased as specified in an Order, which is counted in accordance with the Unit of Measure described in the Order.
1.3 “Consulting Services” means the consulting, implementation, training or other services provided under the terms of Attachment B (Consulting Services) and as further described under the applicable Order.
1.4 “Customer Content” means all electronic data or information (a) submitted to the Subscription Services by Customer, a third party on behalf of Customer, or as directed by Customer or (b) collected, processed or returned by the Subscription Services .
1.5 “Order” means (i) the agreed ordering document for the purchase of the Subscription Services, (ii) that is subject to this Agreement, and (iii) that identifies the terms of the purchase and fees to be paid. The term “Order” includes Customer’s online registration for and purchase of the Subscription Services, If any.
1.6 "Subscription Services" means the generally available hosted service which packages web-based access and the right-to-use the supported applications, installed agents and associated reference, user and technical guides.
1.7 “User Guide” means the online help, functional guide and technical specifications for the Subscription Services, as updated by BMC from time to time.
2. SCOPE. Subject to the terms of this Agreement, Customer may purchase and BMC will provide Customer with access to the Subscription Services as set forth in this Agreement and the applicable Order. Subject to the Attachments to this Agreement, Customer may also purchase BMC Platform Services, BMC Consulting Services and BMC On Premise Subscription Services. In the event of a direct conflict between any Order and the terms of this Agreement, the terms of the Order will control only if the Order is executed by an authorized representative of each party. Orders may be entered under this Agreement by and between (a) BMC or an Affiliate of BMC; and (b) Customer or an Affiliate of Customer. With respect to an Order, the terms “BMC” and “Customer” as used in this Agreement will be deemed to refer to the entities that execute that Order, the Order will be considered a two party agreement between such entities, and BMC will separately invoice the Customer named in the Order for the associated fees. Orders may also be placed via a BMC authorized reseller. Neither execution of this Agreement, nor anything contained herein, shall obligate either party to enter into any Orders.
3. ACCESS TO SUBSCRIPTION SERVICES.
3.1 Access Rights. Subject to Customer’s payment of applicable fees and to the terms of this Agreement, BMC will provide Customer with worldwide access to the Subscription Services in accordance with the Order (i) up to the Capacity, (ii) for Customer’s and its Affiliates’ internal business operations, (iii) in accordance with the User Guide and the applicable Order. Customer may exercise its rights under this Section 3.1 through its service providers, outsourcers, employees, consultants, contractors, agents, and Affiliates (all, “Users”).
3.2 BMC Subscription Services Support. BMC will provide the support described at http://www.bmc.com/support/review-policies (“Support”) to Customer for the Subscription Services.
3.3 Use of Subcontractors. Customer acknowledges and agrees that BMC uses subcontractors to provide portions of the Subscription Services. BMC will provide a list of its current subcontractors upon Customer’s written request. BMC is responsible for the performance of all subcontractors providing any of the Subscription Services.
3.4 Compliance with Laws. Each party shall comply with all applicable laws in the performance of its obligations under this Agreement.
3.5 Customer Responsibilities and Restrictions.
(a) Customer will (i) maintain the confidentiality of all authentications and passwords for the Subscription Services and immediately notify BMC if it becomes aware that an unauthorized party has gained access such authentications and passwords, (ii) be responsible for use of the Subscription Services by its Users in compliance with this Agreement, (iii) prevent unauthorized access to, or use of, the Subscription Services, and notify BMC promptly of any such unauthorized access or use, (iv) comply with all applicable laws in using the Subscription Services, and (v) be responsible for obtaining its own Apple Push Notification certificate, if the Subscription Services are used to manage devices running iOS. Customer is responsible for the creation and implementation of a privacy policy and end user agreement, if applicable, which will set forth the guidelines of how Customer uses and protects the data and personal information of its Users, and how said Users may utilize the Subscription Services.
(b) Customer will not (i) modify, copy or create derivative works based on the Subscription Services; (ii) create Internet “links” to or reproduce any content forming part of the Subscription Services, other than for its own internal business purposes; (iii) disassemble, reverse engineer, or decompile the Subscription Services or part thereof, except to the extent expressly permitted by applicable law despite this limitation without possibility of contractual waiver; (iv) interfere with or disrupt the integrity or performance of the Subscription Services; (vi) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortuous material, or send or store material in violation of any third party’s privacy rights via the Subscription Services; (vii) send or store viruses or malicious code via the Subscription Services; (viii) attempt to gain unauthorized access to the Subscription Services or its related software, systems, platforms or networks, including any form of security and/or penetration testing; (ix) use any components provided with the Subscription Services separately from the Subscription Services; or (x) distribute, rent, lease or provide the Subscription Services to any third party or use it in a service bureau, outsourcing environment, or for the processing of third party data .
4. FEES AND PAYMENT.
4.1 Fees. The fees payable for the Subscription Services and the payment period for such fees will be set forth in and paid in accordance with the Order. All payments are due within 30 days of the date of the invoice.
4.2 Late Fees. Late balances may, at BMC’s sole election, bear interest at a rate equal to the lesser of 1% per month or the maximum amount permitted by law.
4.3 Taxes. Customer will pay taxes imposed in connection with the fees paid for the Subscription Services, which are exclusive of these taxes.
4.4 Solution Providers. With regard to Subscription Services acquired by Customer through an authorized reseller ("Solution Provider") of BMC, notwithstanding anything to the contrary in sections 4.1 and 4.2 above, Customer will have no direct payment obligations to BMC for such fees.
5. TERM, SUSPENSION AND TERMINATION.
5.1 Term. This Agreement begins on the Effective Date and will remain in effect unless terminated pursuant to Section 5.2 below, regardless of the billing frequency selected in the Order.
5.2 Termination.
(a) Termination for Convenience. Customer may terminate this Agreement by providing BMC with at least 30 days prior written notice; provided, however, such termination will have no effect on Orders in effect at the time of such termination. Orders may not be terminated for convenience unless otherwise specified therein. Customer may notify BMC of its intent to terminate by emailing BMC at order_services@bmc.com.
(b) Termination for Cause. Either party may terminate this Agreement and/or an Order for cause upon 30 days’ written notice of a material breach to the other party if such breach remains uncured at the expiration of such period. In the event Customer terminates the Agreement and an Order for BMC’s material breach, BMC will refund the amount paid by Customer to BMC for the Subscription Services on such Order, pro-rated from the date of the notice of the termination.
5.3 Suspension of Subscription Services for Cause. In addition to its other rights and remedies, BMC reserves the right, without liability to Customer, to suspend any and all access to the Subscription Services if Customer commits a material breach of this Agreement and fails to cure the same within 30 days from Customer’s receipt of written notice of such breach from BMC. Provided however, that BMC may immediately suspend any and all access to the Subscription Services without any cure period if BMC determines in good faith that Customer’s material breach of the Agreement will cause damage to BMC, the Subscription Services, or any other customer.
5.4 Effects of Termination. Upon termination or expiration of any Order or this Agreement, all rights and Licenses granted thereunder will terminate and Customer will make no further use of the Subscription Services. No termination will relieve the Customer of the obligation to pay any fees accrued or payable to BMC pursuant to any Order. Upon written request by Customer made within 45 days after the effective date of termination, BMC will make the Customer Content available to Customer for retrieval in an industry standard format. After such 45-day period, BMC shall have no obligation to maintain any Customer Content and will thereafter delete Customer Content. Any terms in this Agreement which by their nature extend beyond termination of this Agreement will remain in effect until fulfilled.
5.5 Termination Assistance. Upon Customer’s request and upon (a) the expiration of an Order or (b) the termination of an Order for any reason other than Customer’s breach, BMC shall perform such services as the parties in good faith agree are reasonably necessary to facilitate the orderly transition of the Services to the successor service provider or to the Customer. BMC will provide any such services under the terms and conditions of the Agreement, and subject to payment of the then-current fees and charges, generally applicable to BMC’s performance of such services, as agreed between the parties at such time.
6. LIMITED WARRANTY.
6.1 Warranties and Limited Remedies. BMC warrants to Customer that:
(a) the online availability of the Subscription Services will be maintained in accordance with the service levels attached to the applicable Order, if any (the “Service Level Agreement” or “SLA”). Customer’s exclusive remedy and BMC’s sole obligation for breach of the warranty in this Section 6.1(a) is described in the Service Level Agreement;
(b) the Subscription Services (i) will perform in substantial accordance with the then-current on-line User Guide available via the Subscription Services and (ii) will be performed in a manner consistent with industry standards reasonably applicable to the provision thereof. Customer’s exclusive remedy and BMC’s sole obligation for breach of the warranty in this Section 6.1(b) will be BMC’s use of commercially reasonable efforts to have the Subscription Services perform in substantial accordance with the User Guide, or replace the non-conforming portion of the Subscription Services within 60 days from the written notice of claim, or if BMC cannot have the Subscription Services perform in substantial accordance with the User Guide or replace the Subscription Services within such time period, then Customer may terminate the non-performing Subscription Services, and upon such termination BMC will refund the amount paid by Customer for the Subscription Services, pro-rated from the date of the notice of the claim. Customer’s rights and BMC’s obligations in this Section 6.1(b) are conditioned upon Customer’s providing BMC with written notice of the claim, a complete description of the alleged defects and a specific reference to the User Guide to which such alleged defects are contrary; and
(c) In connection with the Subscription Services (i) it has used commercially reasonable efforts consistent with industry standards to scan for and promptly remove any software viruses for no charge and (ii) it has not inserted any Disabling Code. “Disabling Code” means computer code inserted by BMC, that is not addressed in the User Guide, and that is designed to expose data, delete, interfere with, and/or disable the normal operation of the Subscription Services. This Disabling Code warranty does not apply to BMC passwords necessary for the operation of the Subscription Services, or for any use by Customer outside the scope of this Agreement.
6.2 Disclaimer. CUSTOMER ACKNOWLEDGES THAT, EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, BMC, ITS AFFILIATES AND LICENSORS MAKE NO WARRANTY, EXPRESS, IMPLIED OR STATUTORY WITH RESPECT TO THE SUBSCRIPTION SERVICES OR USE THEREOF. BMC, ITS AFFILIATES AND LICENSORS HEREBY EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY THAT SUBSCRIPTION SERVICES WILL BE UNINTERRUPTED, ERROR FREE OR WITHOUT DELAY, AND THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INTERFERENCE, NON-INFRINGEMENT AND INFORMATION CONTENT.
7. PROPRIETARY RIGHTS AND CONFIDENTIALITY.
7.1 Proprietary Rights. BMC, its Affiliates or licensors retain all right, title and interest to the Subscription Services and all related intellectual property and proprietary rights. The Subscription Services are protected by applicable copyright, trade secret, industrial and other intellectual property laws. BMC owns all right, title and interest in all software, programming, documentation, templates, questionnaires, methodologies, models, charts, reports, ideas, features, content, functions, graphics and any other items provided as part of the Subscription Services (“ Service Items”) and access to and use of the relevant Service Items will be governed by the terms of this Agreement. Subject to (i) BMC’s or its licensor’s ownership of any Service Items and (ii) section 3.4 (b) (i) of the Agreement, Customer owns all rights, title, and interest in Customer Applications, including all proprietary and intellectual property rights. BMC reserves any rights not expressly granted to Customer. Customer shall not access the Subscription Services in order to build a competitive product or service or copy any ideas, features, functions or graphics of the Subscription Services. “ Confidential Information” means all proprietary or confidential information that is disclosed to the recipient (“Recipient”) by the discloser (“ Discloser”), and includes, among other things (i) any and all information relating to products or services provided by a Discloser, its customer-related and financial information, software code, BMC product vulnerabilities, flow charts, techniques, specifications, development and marketing plans, strategies, and forecasts; (ii) as to BMC, and its licensors, the Subscription Services and Service Items; and (iii) the terms of this Agreement, including without limitation, pricing information. Confidential Information does not include information that Recipient can show: (a) was rightfully in Recipient’s possession without any obligation of confidentiality before receipt from the Discloser; (b) is or becomes a matter of public knowledge through no fault of Recipient; (c) is rightfully received by Recipient from a third party without violation of a duty of confidentiality; or (d) is or was independently developed by or for Recipient. Recipient may not disclose Confidential Information of Discloser to any third party or use the Confidential Information in violation of this Agreement. The Recipient (i) will exercise the same degree of care and protection with respect to the Confidential Information of the Discloser that it exercises with respect to its own Confidential Information and (ii) will not, either directly or indirectly, disclose, copy, distribute, republish, or allow any third party to have access to any Confidential Information of the Discloser. Notwithstanding the foregoing, Recipient may disclose Discloser’s Confidential Information to Recipient’s employees and agents who have need to know provided that such employees and agents have legal obligations of confidentiality substantially the same (and in no case less protective) as the provisions of this Agreement.
7.2 Notification Obligation. If the Recipient becomes aware of any unauthorized use or disclosure of Discloser’s Confidential Information, then Recipient will promptly and fully notify the Discloser of all facts known to it concerning such unauthorized use or disclosure. In addition, if the Recipient or any of its employees or agents are required (by oral questions, interrogatories, requests for information, or documents in legal proceedings, subpoena, civil investigative demand, or other similar process) to disclose any of Discloser’s Confidential Information, the Recipient will not disclose the Discloser’s Confidential Information without providing the Discloser with commercially reasonable advance prior written notice to allow Discloser to seek a protective order or other appropriate remedy or to waive compliance with this provision. In any event, the Recipient will exercise its commercially reasonable efforts to preserve the confidentiality of the Discloser’s Confidential Information, including, without limitation, cooperating with Discloser to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded to the Confidential Information.
7.3 Customer Content. As between BMC and Customer, Customer owns all rights, title and interest in and to Customer Content. Customer Content is deemed Confidential Information under this Agreement. BMC will use the Customer Content only as necessary to provide the Subscription Services in accordance with this Agreement. At any time during the term of the Subscription Services, Customer may request copies of all Customer Content from the Subscription Services. Customer is responsible for complying with all legal and contractual requirements, including its agreements with third parties. With the exception of Customer Content collected by the Subscription Services, Customer is solely responsible for the transmission of Customer Content to BMC and to the Subscription Services. Customer is solely responsible for the encryption of any Customer Content during such transmission.
7.4 Suggestions. Customer agrees that BMC shall have a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into any BMC products or services any suggestions, enhancement requests, recommendations or other feedback provided by Customer relating to the Subscription Services.
8. DISCLAIMER OF DAMAGES AND LIMITS ON LIABILITY.
8.1 DISCLAIMER OF DAMAGES. NEITHER PARTY OR ITS AFFILIATES OR LICENSORS ARE LIABLE FOR ANY, SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES RELATING TO OR ARISING OUT OF THIS AGREEMENT OR THE SUBSCRIPTION SERVICES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST COMPUTER USAGE TIME, AND DAMAGE TO, OR LOSS OF USE OF, DATA), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND IRRESPECTIVE OF ANY NEGLIGENCE OF A PARTY OR WHETHER SUCH DAMAGES RESULT FROM A CLAIM ARISING UNDER TORT OR CONTRACT LAW. THE FOREGOING LIMITATIONS DO NOT APPLY TO EACH PARTY’S RESPONSIBILITIES IN SECTION 9, INFRINGEMENT BY A PARTY OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, GROSS NEGLIGENCE, WILLFUL MISCONDUCT, DEATH OR BODILY INJURY, ACTS OF FRAUD, NOR ANY LIABILITY WHICH MAY NOT BE EXCLUDED OR LIMITED BY LAW.
8.2 LIMITS ON LIABILITY. NEITHER PARTY OR ITS AFFILIATES OR LICENSORS SHALL HAVE AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SUBSCRIPTION SERVICES, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEEDING THE AMOUNTS ACTUALLY PAID BY AND DUE FROM CUSTOMER FOR THE SUBSCRIPTION SERVICES GIVING RISE TO LIABILITY PURSUANT TO THE ORDER(S) THAT ARE IN EFFECT AS OF THE DATE THE LIABILITY FIRST AROSE. THE FOREGOING LIMITATIONS DO NOT APPLY TO EACH PARTY’S RESPONSIBILITIES IN SECTION 9, INFRINGEMENT BY A PARTY OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, GROSS NEGLIGENCE, WILLFUL MISCONDUCT, DEATH OR BODILY INJURY, ACTS OF FRAUD, NOR ANY LIABILITY WHICH MAY NOT BE EXCLUDED OR LIMITED BY LAW.
9. INFRINGEMENT CLAIMS.
9.1 Indemnification by BMC . If a third party asserts a claim against Customer asserting that Customer’s use of the Subscription Services, including Platform Services, Deliverables and Licenses as defined in the Attachments to this Agreement, in accordance with this Agreement violates that third-party’s patent, trade secret or copyright rights (“Infringement Claim”), then BMC will, at its own expense: (a) defend or settle the Infringement Claim; and (b) indemnify Customer for any damages finally awarded against Customer based on infringement by the Subscription Services or Deliverables, including court costs and reasonable attorney’s fees. If BMC believes the Subscription Services may violate a right, then BMC will, at its expense: (a) modify the Subscription Services, or (b) procure the right to continue using the Subscription Services, and if (a) or (b) are not commercially reasonable, terminate Customer's right to use the Subscription Services and issue a pro-rata refund for the unexpired pre-paid portion of such Subscription Services.
9.2 Indemnification by Customer. Subject to the terms of this Agreement, if a third party asserts a claim against BMC asserting that the (i) Customer Content, (ii) Customer Applications as defined in Attachment A, (iii) Customer Property as defined in Attachment B or (iv) Customer’s use of the Subscription Services in violation of this Agreement violates that third-party’s patent, trade secret or copyright rights (“ Claim”), Customer will, at its own expense: (a) defend or settle the Claim; and (b) indemnify BMC for any damages finally awarded against BMC based on the Claim, including court costs and reasonable attorney’s fees.
9.3 Indemnity Process. Neither party’s obligations under this Section 9 will apply if: (a) the indemnifying party’s legal department does not receive prompt, detailed written notice of the Infringement Claim/Claim from the party being indemnified, (b) the indemnifying party is not able to retain sole control of the defense of the Infringement Claim/Claim and all negotiations for its settlement or compromise, or (c) the indemnifying party does not receive all reasonable assistance from the party being indemnified. Neither party will bind the indemnified party to a monetary obligation in a settlement or compromise, or make an admission on behalf of the indemnified party, without obtaining that party’s prior consent.
9.4 THIS SECTION 9 CONTAINS EACH PARTY'S EXCLUSIVE REMEDIES AND THE INDEMNIFYING PARTY'S SOLE LIABILITY FOR INFRINGEMENT CLAIMS/CLAIMS, RESPECTIVELY.
10. EXPORT CONTROLS. Both parties agree to comply with applicable export regulations, including but not limited to U.S. Export Administration Regulations and the OFAC embargoes and sanctions lists. More information on BMC’s export compliance program may be found here: https://www.bmc.com/legal/export-compliance.html.
11. GOVERNING LAW AND DISPUTE RESOLUTION. Any controversy, dispute or claim arising out of or relating to this Agreement, or to the formation, interpretation, breach, termination, or validity thereof (each, a “Controversy”) will be resolved as follows:
(i) UNITED STATES. If both parties to this Agreement are entities incorporated under the law of any state in the United States, the Controversy shall be tried in either state or federal court located in Houston, Texas and the laws of the State of Texas shall govern. Both parties hereby submit to the exclusive jurisdiction of the courts in Houston, Texas and waive all defenses based on forum non conveniens. Notwithstanding the foregoing, if Customer is a state or local governmental entity or higher education institution and legally required to apply state law, then Customer’s state law will apply to the Controversy, without reference to conflict of law principles.
(ii) CANADA. If Customer is located in Canada (outside Quebec), then the law of the Province of Ontario law apply, without reference to conflict of law principles. If Customer is located in Quebec, then the laws of the Province Quebec will apply, without reference to conflict of law principles.
(iii) EMEA. If both parties to this Agreement are entities incorporated in countries in the Europe, Middle East, or Africa regions, the Controversy shall be tried in the District Court located in Amsterdam, the Netherlands and the substantive laws of the Netherlands shall govern. Both parties hereby submit to the exclusive jurisdiction of the District Court in Amsterdam, the Netherlands and waive all defenses based on forum non conveniens.
(iv) ASIA PACIFIC. If both parties to this Agreement are entities incorporated in countries in the Asia Pacific region, the arbitration shall be held in Singapore under the then-applicable rules of the Singapore International Arbitration Centre and the substantive laws of Singapore will govern.
(v) OTHER REGIONS. In all other instances, the arbitration shall be held in New York City, New York, under the then-applicable international rules of the American Arbitration Association and the substantive laws of the State of Texas will govern.
For all arbitrations conducted hereunder: (a) the arbitration shall be conducted in English; (b) the relevant arbitral institution shall determine the number of arbitrators, but any Controversy in which the amount in dispute is greater than $10 million USD shall be decided by three arbitrators, with each party having the right to select one arbitrator; (c) the costs of such arbitration shall be borne equally, pending the arbitrator’s award; (d) the arbitration award rendered shall be final and binding on the parties, shall not be subject to appeal to any court and shall be enforceable in any court having jurisdiction over the parties; (e) the arbitration proceedings, award and pleadings shall all be confidential, unless disclosure of particular information is required for purposes of enforcing/challenging the award or to meet local securities law requirements; and (f) the party prevailing in arbitration shall be entitled to recover its reasonable attorneys’ fees and the necessary costs incurred in connection with the arbitration.
The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. Nothing in this Agreement shall be deemed as preventing either party from seeking immediate injunctive relief from any court having jurisdiction over the parties and the subject matter of the dispute.
12. The following BMC contracting entities apply to this Agreement:
Region | Contracting Entity | Address of Contracting Entity |
United States and Latin America South (not a specified Central or South America country below) | BMC Software, Inc. | 2103 CityWest Boulevard, Houston, Texas 77042 |
Canada | BMC Software Canada Inc. | 50 Minthorn Boulevard, Suite 200 Markham, Ontario L3T 7X8 Canada |
EMEA (Europe, Middle East and Africa) | BMC Software Distribution B.V. | Vision Plaza West, 2nd floor, Boeingavenue 220, 1119PN Schiphol-Rijk, The Netherlands |
Brazil | BMC Brasil Software Ltda. | Avenida Dra. Ruth Cardoso, n° 8.501, Condomínio Eldorado Business Tower, 22° andar, Pinheiros, São Paulo – SP, CEP: 05425-070 |
Mexico | BMC Software Distribution de México, S.A. de C.V. | Volcán 150, Piso 4, Col. Lomas de Chapultepec, C.P. 11000, Deleg. Miguel Hidalgo, Ciudad de México |
Argentina | BMC Software de Argentina S.A. | Ing. Butty 220 - Piso 18, Catalinas Plaza Buenos Aires, República de Argentina, C1001A |
S.E.A (Southeast Asia), Australia, New Zealand, Hong Kong, Taiwan | BMC Software Ireland Unlimited Company | Building 3, Cherrywood Business Park, Bray Road, Loughlinstown, CO. Dublin, D18 TF72 |
China | BMC Software (China) Limited | Room 502, Level 5, Tower W1, The Towers, Oriental Plaza, No. 1 East Chang An Ave., Dong Cheng Dist., Beijing 100738, China |
Japan | BMC Software K.K. | Harmony Tower 24th Floor, 1-32-2 Honcho, Nakano-ku, Tokyo, 164-8721 |
Korea | BMC Software Korea Ltd | 24th Fl., ASEM Tower, 1517, Yeongdong-daero,Gangnam-gu, Seoul 135-798, Korea South |
13. U.S. GOVERNMENT END USER RIGHTS. This Section applies only to acquisitions of the commercial Subscription Services subject to this Agreement by or on behalf of the United States Government, or by any prime contractor or subcontractor (at any tier) under any contract, grant, agreement or other activity with the United States Government. When Subscription Services are delivered or provided to the United States Government, the United States Government agrees that this commercial license Agreement and the Subscription Services governed by this Agreement are defined in accordance with and qualify as “commercial items” consisting of “commercial computer software” and “commercial computer software documentation” as outlined in FAR 12.211, FAR 12.212 and DFARS 227.7202-3, as applicable. The terms and conditions of this Agreement shall pertain to the United States Government’s use (including documentation or technical data), duplication, and disclosure of the Subscription Services, and shall supersede any conflicting contractual terms and conditions”.
14. DATA PROTECTION. The processing of Customer Content under this Agreement is governed by the BMC Data Processing Agreement set forth on the Order.
15. VERIFICATION. Customer agrees that BMC or its agent may monitor the Subscription Services to ensure Customer’s compliance with the terms of this Agreement. If such monitoring reveals that Customer has exceeded the Capacity for the Subscription Services, BMC may work with Customer to seek to reduce Customer’s usage so that it conforms to the Capacity limit for such Subscription Service. If, notwithstanding BMC’s efforts, Customer is unable or unwilling to abide by the Capacity limits for the Subscription Services, Customer will execute an Order for additional Capacity of such Subscription Services promptly upon BMC’s request.
16. NOTIFICATIONS. Any general notifications regarding technical matters from BMC to Customer will be sent to the Customer contact stated in the Customer Technical Contact Information section of the Order. The Customer contact in the Order has been assigned by Customer as the Customer contact for operational issues that may arise. Customer shall notify BMC of any change to the Customer contact details in writing, which may include via e-mail.
17. CONDUCTING BUSINESS WITH HONESTY AND INTEGRITY. BMC is committed to conducting business with honesty and integrity. BMC’s Code of Conduct set forth in https://www.bmc.com/legal/code-of-conduct.html governs the conduct of all officers, directors, and employees of BMC, and contingent workers and business partners acting on BMC’s behalf. BMC demonstrates its commitment to environmental stewardship by its global accreditation for ISO 14001:2015.
18. MISCELLANEOUS TERMS. The parties are independent contractors and this Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties. Customer will receive system notifications from BMC and its licensors, if applicable (i.e. planned downtime notices, etc). This Agreement, including the Attachments and Orders constitutes the entire agreement between Customer and BMC and supersedes any prior or contemporaneous negotiations or agreements, whether oral or written concerning the Subscription Services. There are no representations, promises, warranties, covenants, or undertakings between the parties other than those expressly set forth in this Agreement. There are no third-party beneficiaries to this Agreement; Customer is not entering into a contractual relationship with BMC’s licensors and BMC’s licensors have no liability to Customer. Except as provided in Section 2 above, no modification or waiver of any provision hereof will be effective unless made in a writing signed by both BMC and Customer. Customer has the right to assign this Agreement and all Orders in whole to an Affiliate, or to a successor in connection with (i) the sale of all or substantially all of the assets of that party or (ii) a merger by operation of law, by providing written notice to BMC. The assignee may not be a known direct competitor of BMC. The successor entity or Affiliate must agree in writing with BMC (in advance of the assignment) to be bound by the terms of this Agreement. Any Customer transfer or assignment except as expressly authorized above will be null and void. Should any provision of this Agreement be invalid or unenforceable, the remainder of the provisions will remain in effect. Any additional or conflicting terms of any Customer purchase order are rejected by BMC and do not apply. The Subscription Services may contain hyperlinks to websites controlled by parties other than BMC. BMC is not responsible for and does not endorse the content or accept any responsibility for Customer’s use of these websites. Customer should refer to the policies posted by other websites regarding privacy and other topics regarding data privacy before using them. Les parties exigent que la présente convention ainsi que les documents qui s’y rattachent soient rédigés en anglais.
Attachments incorporated into Agreement |
Attachment A – Platform Services Attachment |
Attachment B – Consulting Services Attachment |
Attachment C – On Premise Subscription Services Attachment |
PLATFORM SERVICES ATTACHMENT
to the
BMC CLOUD SERVICES MASTER AGREEMENT
Except as otherwise provided herein, the terms of the Cloud Services Master Agreement (the “Base Agreement”) are incorporated into this Platform Services attachment (the “Attachment”). Together, this Attachment and the Base Agreement (as incorporated into this Attachment) are referred to as the “Agreement” for purposes of Customer’s access and use of Platform Services, only if the Platform Services are set forth on an Order referencing the Base Agreement. For purposes of this Agreement, the term “Subscription Services” as defined in the Base Agreement shall be extended to include the Platform Services. In the event of a conflict between the Base Agreement and the terms of this Attachment, the terms of this Attachment will control for Customer’s access and use of the Platform Services only.
1. SCOPE. Subject to the terms of this Agreement, BMC will provide Customer with access to the Platform Service named in the applicable Order.
2. DEFINITIONS.
2.1 “Application” is the object code, its definitional structures, and data created to fulfill a particular purpose, which runs on the Platform Services. An Application may also include its documentation and User Guide.
2.2 “Customer Applications” means Applications that are owned or licensed by Customer, and which run on the Platform Services.
2.3 “Development Platform” means a BMC provided development platform which allows Customer to develop a custom application to run on the Platform Services. The Development Platform is a separate environment from the Platform Services.
2.4 “Platform” means the generally available BMC-provided PaaS platform and its capabilities to run Applications.
2.5 “Platform Services” means the specific Platform Services identified in the Order.
3. BMC PLATFORM SERVICES.
3.1 BMC Platform Services Support. BMC will provide Support only for Platform Services. Customer is responsible for its own support for Customer Applications.
4. CUSTOMER APPLICATIONS.
4.1 The terms contained in this section 4 apply only to Orders for Platform Services entitling Customers to develop and deploy Customer Applications onto the Platform Services. Any Customer Applications that run on the Platform Services are hereby excluded from the defined terms “Subscription Services” and “Platform Services”.
4.2 Development Platform. Customer may utilize the Development Platform to create an Application to run on the Platform Services. Customer’s use of the Development Platform is governed by the terms of this Agreement subject to the restrictions set forth in sections 4.2.1 to 4.2.6 below. Customer’s development of an Application must meet the best practices development guidelines set forth in the User Guide. Each Customer Application shall at all times materially conform to policies and best practices set forth in the User Guide. Prior to the deployment of any Customer Applications in a production or non-production environment of the Platform Services, Customer must conduct security and functional tests of each Customer Application and submit the results of such tests to BMC for review. BMC reserves the right to reject Customer’s deployment request of a Customer Application based on the results of Customer’s security and functional tests. Additionally, BMC reserves the right, during the term of this Agreement, to request Customer conduct additional security and functional tests and provide the results of said tests to BMC for review. Notwithstanding the foregoing, Customer must ensure that at all times Customer Applications are secure.
4.2.1 Scope of use. The right to access and use the Development Platform is granted solely for the purpose of performing non-production application development work on the Development Platform.
4.2.2 Restrictions of use. Customer agrees not to:
(i) use the Development Platform to (1) process production data or for any other production purposes, including but not limited to publishing digital applications, or (2) distribute applications;
(ii) use the Development Platform with data or information that has not been backed up; or
(iii) modify, delete or remove any ownership, title, trademark, patent or copyright notices.
4.2.3 Customer Responsibilities. Customer is responsible for acquiring all necessary and required licenses for the use of any third party software, source code and/or libraries Customer may use as part of its development with the Development Platform. In addition to its other rights and remedies, BMC reserves the right, without liability to Customer, to immediately, at any time and for any reason refresh Customer’s instance of the Development Platform. Upon BMC’s refreshing of Customer’s instance of the Development Platform, Customer may lose all Customer Content submitted to or stored in said instance of the Development Platform. Upon expiration or termination of the applicable Order, BMC may destroy any Customer Content submitted to or stored therein. Customer is responsible for backing up any development work with Customer Content outside of the Development Platform.
4.2.4 Open Source. Customer may not use any software, library, utility, tool, or other computer or program code (“Code”) with the Subscription Services that in any way that would (i) weaken BMC’s intellectual property rights in the Services, or (ii) require the Subscription Services to become or be disclosed or distributed as Open Source Software. For purposes of this Section, “Open Source Software” means any Code that is substantially similar to, (A) the Affero General Public License, (B) the GNU General Public License (GPL) or Lesser/Library GPL (LGPL), (C) the Artistic License (e.g. PERL), (D) the Mozilla Public License, (E) the Netscape Public License, (F) the Sun Community Source License (SCSL), (G) the Sun Standards License (SISL), or (H) any “copyleft” license, or any other license that requires as a condition of use, reproduction, modification, or distribution that such Code or other software or computer code distributed with it: (1) be disclosed or distributed in source code form; (2) be licensed for the purpose of creating derivative works; (3) be licensed under terms that allow reverse engineering, reverse assembly, or disassembly of any kind; (4) be subject to a patent non-assert or royalty-free patent license; or (iv) be redistributable at no charge.
4.2.5 No Support. BMC, its affiliates, or licensors do not provide Support for the Development Platform.
4.2.6 Disclaimer of Warranty, Limitation of Liability and Exclusive Remedy. Notwithstanding anything to the contrary in the applicable Order or this Agreement:
a. THE DEVELOPMENT PLATFORM IS PROVIDED “AS IS” WITHOUT ANY WARRANTY OF ANY KIND WHATSOEVER. BMC, ITS AFFILIATES AND LICENSORS DO NOT WARRANT THAT THE DEVELOPMENT PLATFORM WILL SATISFY CUSTOMER’S REQUIREMENTS, THAT THE DEVELOPMENT PLATFORM IS WITHOUT DEFECT, VIRUS OR ERROR FREE, WITHOUT DELAY, OR THAT THE OPERATION OF THE DEVELOPMENT PLATFORM WILL BE UNINTERUPTED. BMC, ITS AFFILIATES AND LICENSORS DISCLAIM ANY AND ALL REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, MADE WITH RESPECT TO THE DEVELOPMENT PLATFORM, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INTERFERENCE AND INFORMATION CONTENT; AND
b. NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY, FOR ANY CLAIM, LOSS, DAMAGE OR EXPENSE FOR INDIRECT, SPECIAL, CONSEQUENTIAL, PUNITIVE OR INCIDENTAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE DEVELOPMENT PLATFORM (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST COMPUTER USAGE TIME, AND DAMAGE TO, OR LOSS OF USE OF, DATA), EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EITHER PARTY’S ENTIRE LIABILITY AND THE OTHER PARTY’S EXCLUSIVE REMEDY FOR DIRECT DAMAGES ARISING OUT OF OR RELATED TO THE DEVELOPMENT PLATFORM, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, IS LIMITED TO $100.
4.3 License to Customer Applications. Subject to the terms and conditions of this Agreement, Customer hereby grants BMC a worldwide, limited, nonexclusive license during the term of the applicable Order for the Platform Services to host, copy, transmit, adapt and display Customer Applications solely for the purpose of fulfilling BMC’s obligations under this Agreement.
4.4 Functionality of Customer Applications. Customer is solely responsible for the operation of Customer Applications, including but not limited to any information stored in or transmitted by Customer Applications. Customer is responsible for monitoring the usage of each Customer Application. Customer is responsible for the configuration, functionality, performance, compliance with applicable data protection laws and security of all Customer Applications, including any interfaces used to connect to Customer Applications.
4.5 Customer Assistance. Customer will provide information or other materials related to a Customer Applications as reasonably requested by BMC to verify Customer’s compliance with the Agreement and the User Guide.
4.7 Suspension of Customer Applications. Customer’s use of the Platform Services may be immediately suspended and/or terminated due to (i) reasonable security threats regarding the Platform Services or Customer Applications, (ii) Customer Applications interfering with, disrupting or threatening the integrity or performance of the Subscription Services and/or the Platform Services, or (iii) violates the law, infringes or misappropriates the rights of any third party or otherwise violates a material term of the Agreement. In the event (i) or (ii) above apply to Customer Applications, Customer is required to remediate any such issue to BMC’s commercially reasonable satisfaction before use of Customer Applications can resume. BMC shall use reasonable commercial efforts to only suspend the non-conforming portion of the Platform Services.
4.8 CUSTOMER APPLICATIONS WARRANTIES. Customer warrants to BMC that: (a) each Customer Application will perform materially in accordance with the User Guide; (b) Customer has all rights in the Customer Content and Customer Applications necessary to grant the rights contemplated by this Agreement; (c) none of the Customer Content or Customer Applications or Users’ use of Customer Content or Customer Applications will violate the Agreement and the User Guide; and (d) Customer’s security and functional tests of Customer Applications was conducted in a commercially reasonable manner and the results of said tests provided to BMC for review are correct and valid.
ATTACHMENT B
CONSULTING SERVICES ATTACHMENT
to the
BMC CLOUD SERVICES MASTER AGREEMENT
Except as otherwise provided herein, the terms of the Cloud Services Master Agreement (the “Base Agreement”) are incorporated into this Consulting Services attachment (the “Attachment”). Together, this Attachment and the Base Agreement (as incorporated into this Attachment) are referred to as the “Agreement” for purposes of Customer’s purchase of Consulting Services, only if Consulting Services are set forth on an Order referencing the Base Agreement. For purposes of this Agreement, the term “Subscription Services” as defined in the Base Agreement shall be extended to include Consulting Services. In the event of a conflict between the Base Agreement and the terms of this Attachment, the terms of this Attachment will control for Customer’s purchase of Consulting Services only. The parties agree that the following Sections of the Base Agreement do not apply to the Consulting Services provided under this Attachment: Section 3.2 (Support), Section 4 (Fees and Payment), and Section 6 (Limited Warranty).
1. SCOPE. BMC agrees to render to Customer Consulting Services under the terms of this Agreement and as further described in an Order. BMC will render the Consulting Services in the location(s) as set forth in the Order. The performance of the Consulting Services will not relieve or alter the rights, obligations and responsibilities of Customer and of the BMC Affiliate providing Subscription Services and/or Licenses with respect to Subscription Services and/or Licenses under the applicable agreement.
2. SERVICE FEES AND EXPENSES. The fees payable to BMC for the Consulting Services to be rendered will be detailed in the Order. BMC will submit invoices to Customer for such fees and incurred expenses either upon completion of the Consulting Services, or at stated intervals, in any case in accordance with the applicable Order. Customer shall pay amounts invoiced within 30 days following receipt of the invoice.
3. EDUCATION. Customer may acquire Learning Pass Credits and Education Services (collectively, “BMC Education ”) on an Order. The BMC Education terms that govern such Orders are set forth in the Education Program Guide located at https://www.bmc.com/content/dam/bmc/education/education-program-guide.pdf, and is incorporated herein by this reference.
4. STATEMENTS OF WORK. Consulting Services may require the execution of a Statement of Work, in which case, such Statement of Work will be considered an Order for such Consulting Services. In the event of any conflict between the terms of a Statement of Work and this Agreement, the Agreement shall prevail except for matters of service fees, payment and reimbursement of expense, and termination of Consulting Services if further specified in the Statement of Work. During the term of an applicable Statement of Work, and for a period of six months thereafter, neither party will solicit for employment any employees, agents, or subcontractors of the other party or its affiliates who, within six months prior to such solicitation, had contact with the soliciting party based in whole or in part upon Consulting Services provided under this Agreement. The restrictions in this section shall be deemed not to apply to general solicitations for employment posted on Internet job sites or printed in newspapers or trade or professional journals.
5. PROPRIETARY RIGHTS AND RIGHTS IN DELIVERABLES.
5.1 Ownership of Materials Used in the Consulting Services. Unless specifically provided in an Order, Customer shall supply all of the facilities; equipment; supplies; computer programs; information about Customer’s business, systems, software and needs; and other materials necessary for completion of the Consulting Services (“Customer Property”), and BMC shall supply the people described in the Order, the know-how and the tools necessary to provide the Consulting Services, which may include, among other things, software, templates, questionnaires, graphs, methodologies, models, charts and reports (“BMC Property”). Customer Property and copies and modifications of Customer Property will remain the sole property of Customer or if applicable, Customer’s licensors, and BMC Property and copies and modifications of BMC Property will remain the sole property of BMC or if applicable, BMC’s licensors. Customer hereby grants to BMC a royalty-free, paid-up, non-exclusive, non-sublicensable and non-transferable license to use the Customer Property for the purpose of providing the Consulting Services.
5.2 Deliverables. Deliverables are those created under the Order, including, but not limited to, software, software scripts, routines, libraries or other code, or appliances, methodologies, templates, tools, policies, records, working papers, reports, methodologies, know-how, data, or other intellectual property, written or otherwise, including any derivative works or modifications to the above, whether pre-existing or created during the performance of the Consulting Services and all proprietary and intellectual property rights embedded therein delivered as a result of the Consulting Services as specified under the Order. BMC owns all right, title and interest in the Deliverables. Provided Customer has paid in full for the Consulting Services that resulted in the Deliverables, BMC will deliver the Deliverables to Customer in accordance with the applicable Order. Subject to compliance with the terms of this Agreement and the applicable Order, BMC grants Customer a non-exclusive, non-transferable, non-sublicensable, royalty-free, paid-up license to use, create derivative works of and modify all Deliverables solely for its internal business operations.
5.3 Copyright Notice. Each party agrees to reproduce the copyright notice and any other legend or ownership notice on any copies made under the licenses granted pursuant to this Section 5.
5.4 Retention. Customer acknowledges that BMC provides similar services to other customers and that nothing in this Agreement shall be construed as operating to prevent BMC from carrying on such business. Further BMC may use ideas, concepts, or know-how developed or acquired by BMC during performance of the Consulting Services to the extent by BMC’s personnel as impressions and general learning.
6. LIMITED WARRANTY. BMC warrants that it will perform the Consulting Services in conformance with generally accepted practices within the software services industry and in accordance with the Order. Customer must notify BMC of any breach of this warranty no later than 90 days after completion of the Consulting Services under the Order. Customer’s exclusive remedy and BMC’s entire liability under this warranty shall be for BMC to re-perform any non-conforming portion of the Consulting Services within a reasonable period of time, or if BMC cannot remedy the breach during such time period then refund the portion of the fee attributable to such non-conforming portion of the Consulting Services under the Order. This warranty will not apply to the extent Customer, its contractors or agents have modified any Deliverable, unless otherwise authorized by BMC in writing.
EXCEPT FOR THE EXPRESS WARRANTIES IN THIS AGREEMENT, THE CONSULTING SERVICES AND DELIVERABLES ARE PROVIDED WITH NO OTHER WARRANTIES WHATSOEVER, AND BMC, ITS AFFILIATES AND LICENSORS DISCLAIM ALL OTHER WARRANTIES, INCLUDING, FITNESS FOR A PARTICULAR PURPOSE AND IN THE UNITED STATES AND CANADA, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, AND NON-INFRINGEMENT.
7. INSURANCE. BMC will provide and maintain the following insurance, but only for losses arising out of BMC’s provision of Consulting Services under this Attachment: a) Worker’s Compensation insurance as prescribed by the law of the state applicable to the employees performing the Consulting Services; (b) Employer’s Liability insurance with a limit of $1,000,000 USD for each occurrence; (c) Commercial General Liability insurance with $1,000,000 USD per occurrence combined single limit and $2,000,000 USD general aggregate, including coverage for Products Liability and Completed Operations; (d) Automobile Liability insurance, including coverage for Hired and Non-owned vehicles of $1,000,000 USD for combined single limit for bodily injury and/or property damage; and (e) Professional Liability insurance covering Errors and Omissions in the amount of $1,000,000 USD for each occurrence and in the aggregate associated with Consulting Services performed under this Agreement.
8. MUTUAL INDEMNITY. Each party shall indemnify and hold harmless the other party from all claims, liabilities or expenses for physical damage to real property or tangible personal property and bodily injury, including death, to the extent caused by the negligence, gross negligence or willful misconduct of the indemnifying party’s employees or contractors arising out of this Agreement and while at the Customer’s premises. The foregoing indemnities are contingent upon the party seeking indemnity giving prompt written notice to the indemnifying party of any claim, demand or action, and cooperating with the indemnifying party in the defense or settlement of any such claim, demand or action.
9. INDEPENDENT CONTRACTOR. All of the services performed by BMC under this Agreement will be performed as an independent contractor.
ATTACHMENT C
ON PREMISE SUBSCRIPTIONS ATTACHMENT
to the
BMC CLOUD SERVICES MASTER AGREEMENT
Except as otherwise provided herein, the terms of the Cloud Services Master Agreement (the “Base Agreement”) are incorporated into this On Premise Subscriptions attachment (the “Attachment”). Together, this Attachment and the Base Agreement (as incorporated into this Attachment) are referred to as the “Agreement” for purposes of Customer’s purchase and ongoing use of On Premise Subscriptions, only if On Premise Subscriptions are set forth on an Order referencing the Base Agreement. For purposes of this Agreement, the term “Subscription Services” as defined in the Base Agreement shall be extended to include On Premise Subscriptions. In the event of a conflict between the Base Agreement and the terms of this Attachment, the terms of this Attachment will control for Customer’s purchase of On Premise Subscriptions only. The parties agree that the following Sections of the Base Agreement do not apply to the On Premise Subscriptions provided under this Attachment: Section 3.1 (Access Rights), Section 3.4 (Customer Responsibilities and Restrictions), Section 6 (Limited Warranty) and Section 14 (Verification).
1. DEFINITIONS.
1.1 “Authorized User” means Customer, Customer Affiliate(s), and their employees, consultants, contractors and agents that are bound by the terms and conditions no less restrictive than those contained herein and for whom Customer takes full responsibility. Authorized Users do not include service providers or outsourcers.
1.2 "Documentation" means the technical publications relating to the software, such as release notes, license entitlement descriptions, reference, user, installation, systems administrator and technical guidelines, included with the On Premise Subscription.
1.3 “Licensed Capacity” is the amount of each On Premise Subscription licensed as established in the Order.
1.4 “On Premise Subscription” is the object code of the software and all accompanying Documentation delivered to Customer, including all items delivered by BMC to Customer under Support.
2. LICENSE. Subject to the terms, conditions, payment requirements and restrictions set forth in this Agreement, BMC grants Customer a non-exclusive, non-transferable, non-sub-licensable term license to install in the Territory as defined in an Order, access and use the On Premise Subscription during the term specified on the Order (i) by Authorized User(s), (ii) up to the Licensed Capacity, (iii) for Customer’s and its Affiliates’ internal business operations, (iv) in accordance with the Documentation and the applicable Order, and (v) make a reasonable number of copies of the On Premise Subscription for archival purposes only (collectively a "License"). Affiliates may use and access the On Premise Subscriptions under the terms of this Agreement, and Customer is responsible for its Affiliates compliance with the terms of this Agreement.
3. RESTRICTIONS. Customer will not: (a) copy, operate or use any On Premise Subscription in excess of the applicable Licensed Capacity or other than as set forth in the License above; (b) modify, delete or remove any ownership, title, trademark, patent or copyright notices (“Identification”) from any On Premise Subscription, or copy or partial copy of an On Premise Subscription; (c) disassemble, reverse engineer, decompile or otherwise attempt to derive any On Premise Subscription source code from object code, except to the extent expressly permitted by applicable law despite this limitation without possibility of contractual waiver; (d) distribute, rent, lease, sublicense or provide the On Premise Subscription to any third party; (e) use the On Premise Subscriptions in an outsourcing or service bureau environment on behalf of non-Affiliate third parties, or allow the On Premise Subscriptions to be used by an outsourcing or service bureau provider on Customer’s behalf (without obtaining prior written approval from BMC); (f) provide a third party with the results of any functional evaluation, or performance tests, without BMC's prior written approval; or (g) attempt to disable or circumvent any of the licensing mechanisms within the On Premise Subscription.
4. ON PREMISE SUBSCRIPTION PERFORMANCE WARRANTY. BMC warrants that (a) the On Premise Subscription will perform in substantial accordance with its Documentation for a period of one year from the date of the first Order, (b) BMC has used commercially reasonable efforts consistent with industry standards to scan for and remove software viruses, and (c) other than passwords that may be required for the operation of the On Premise Subscription, BMC has not inserted any code that is not addressed in the Documentation and that is designed to delete, interfere with or disable the normal operation of the On Premise Subscription in accordance with the License. This warranty will not apply to any problems caused by hardware, Computers, or software other than the On Premise Subscription, or misuse of the On Premise Subscription, use of the On Premise Subscription other than as provided by the applicable License, modification of the On Premise Subscription, or claims made either outside the warranty period or not in compliance with the notice and access requirements set forth below. No warranty is provided for additional Licensed Capacity, On Premise Subscription provided pursuant to Support. BMC’s entire liability, and Customer’s exclusive remedy, for breach of the above warranty is limited to: BMC’s use of commercially reasonable efforts to have the On Premise Subscription perform in substantial accordance with its Documentation, or replacement of the non-conforming On Premise Subscription within a reasonable period of time, or if BMC cannot have the On Premise Subscription perform in substantial accordance with its Documentation replace the On Premise Subscription within such time period, then BMC will refund the amount paid by Customer for the License for that On Premise Subscription. Customer’s rights and BMC's obligations in this Section are conditioned upon Customer’s providing BMC during the warranty period (i) full cooperation and access to the On Premise Subscription in resolving any claim; and (ii) written notice addressed to the BMC Legal Department that includes notice of the claim, a complete description of the alleged defects sufficient to permit their reproduction in BMC’s development or support environment, and a specific reference to the Documentation to which such alleged defects are contrary.
EXCEPT FOR THE EXPRESS WARRANTIES IN THIS ATTACHMENT, THE ON PREMISE SUBSCRIPTION IS PROVIDED WITH NO OTHER WARRANTIES WHATSOEVER, AND BMC, ITS AFFILIATES AND LICENSORS DISCLAIM ALL OTHER WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE AND IN THE UNITED STATES AND CANADA, MERCHANTABILITY AND NON-INFRINGEMENT. BMC DOES NOT WARRANT THAT THE OPERATION OF THE ON PREMISE SUBSCRIPTION WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT ALL DEFECTS CAN BE CORRECTED.
5. DELIVERY. For On Premise Subscriptions that are delivered electronically, upon request from BMC, Customer agrees to provide BMC with documentation supporting that the designated On Premise Subscription was received electronically. If Customer accepts any On Premise Subscription in a non-electronic format, there may be an additional charge and it is the sole responsibility of Customer to bear any sales/use tax obligation, penalties, and interest. All On Premise Subscriptions are licensed FCA (“Free Carrier” as per Incoterms 2000) shipping point. The On Premise Subscriptions are accepted on the date BMC delivers the On Premise Subscription to the Customer either physically or by providing access codes for electronic download, whichever occurs first, however, such acceptance will not affect the On Premise Subscription Performance Warranty provided in this Agreement.
6. AUDIT. If requested by BMC, and not more than once a year, Customer agrees to deliver to BMC, within 30 days of such request, as specified by BMC either (a) periodic product usage reports generated from specific products or (b) written periodic product usage reports, to be provided solely when the product does not generate reports (“Report”). Additionally, if requested by BMC not more than once a year and upon at least ten days prior written notice to Customer, Customer agrees to allow BMC to perform an audit (“Audit”) to ensure compliance with the terms of this Agreement at the locations where the On Premise Subscriptions are installed, during normal business hours. to ensure compliance with the terms of this Agreement. Customer agrees to cooperate during any such Audit and to provide reasonable access to its information and systems.
Effective February 15th 2022 to February 15th 2022
DownloadTable of Contents
BMC CLOUD SERVICES MASTER AGREEMENT
THIS CLOUD SERVICES MASTER AGREEMENT (“AGREEMENT”) GOVERNS YOUR FREE TRIAL, IF ANY, OF THE SUBSCRIPTION SERVICES.
IF YOU PURCHASE THE SUBSCRIPTION SERVICES, THIS AGREEMENT WILL ALSO GOVERN YOUR PURCHASE AND ONGOING USE OF THE SUBSCRIPTION SERVICES.
BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SUBSCRIPTION SERVICES.
You may not access the Subscription Services if you are BMC’s direct competitor, except with BMC’s prior written consent. In addition, you may not access the Subscription Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.
This Agreement was last updated on September 6,, 2021. This Agreement is between the entity or individual entering into this Agreement (“Customer”) and the BMC Contracting Entity for the applicable region as described in Section 12 (“BMC”). It is effective between Customer and BMC as of the date of your acceptance of this Agreement. If Customer has a fully executed BMC Cloud Services Master Agreement then such fully executed BMC Cloud Services Master Agreement supersedes and replaces any clickwrap or click-through agreements (or other similar agreements) that Customer may be required to accept as a part of accessing or using the Subscription Services. For Customer’s convenience, prior versions of this Agreement are available at https://www.bmc.com/legal/csma.html.
FREE TRIAL.
BMC may make the Subscription Services available to Customer on a trial basis free of charge. If BMC offers Customer a free trial, it will run until the earlier of (a) the end of the trial period stated on the trial registration web page or (b) the start date of any Order for purchase of the Subscription Services. Additional trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.
ANY DATA CUSTOMER ENTERS INTO THE SUBSCRIPTION SERVICES, AND ANY CUSTOMIZATIONS MADE TO THE SUBSCRIPTION SERVICES BY OR FOR CUSTOMER, DURING A FREE TRIAL MAY BE PERMANENTLY LOST.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THE AGREEMENT, DURING ANY FREE TRIAL PERIOD THE SUBSCRIPTION SERVICES ARE PROVIDED “AS IS” WITH NO WARRANTY.
1. DEFINITIONS.
1.1 “Affiliate” is an entity that controls, is controlled by or shares common control with BMC or Customer, where such control arises from the legal power to direct or cause the direction of the general management and policies of the company, partnership or legal entity.
1.2 "Capacity” means the amount of access to the Subscription Services purchased as specified in an Order, which is counted in accordance with the Unit of Measure described in the Order.
1.3 “Consulting Services” means the consulting, implementation, training or other services provided under the terms of Attachment B (Consulting Services) and as further described under the applicable Order.
1.4 “Customer Content” means all electronic data or information (a) submitted to the Subscription Services by Customer, a third party on behalf of Customer, or as directed by Customer or (b) collected, processed or returned by the Subscription Services .
1.5 “Order” means (i) the agreed ordering document for the purchase of the Subscription Services, (ii) that is subject to this Agreement, and (iii) that identifies the terms of the purchase and fees to be paid. The term “Order” includes Customer’s online registration for and purchase of the Subscription Services, If any.
1.6 "Subscription Services" means the generally available hosted service which packages web-based access and the right-to-use the supported applications, installed agents and associated reference, user and technical guides.
1.7 “User Guide” means the online help, functional guide and technical specifications for the Subscription Services, as updated by BMC from time to time.
2. SCOPE. Subject to the terms of this Agreement, Customer may purchase and BMC will provide Customer with access to the Subscription Services as set forth in this Agreement and the applicable Order. Subject to the Attachments to this Agreement, Customer may also purchase BMC Platform Services, BMC Consulting Services and BMC On Premise Subscription Services. In the event of a direct conflict between any Order and the terms of this Agreement, the terms of the Order will control only if the Order is executed by an authorized representative of each party. Orders may be entered under this Agreement by and between (a) BMC or an Affiliate of BMC; and (b) Customer or an Affiliate of Customer. With respect to an Order, the terms “BMC” and “Customer” as used in this Agreement will be deemed to refer to the entities that execute that Order, the Order will be considered a two party agreement between such entities, and BMC will separately invoice the Customer named in the Order for the associated fees. Orders may also be placed via a BMC authorized reseller. Neither execution of this Agreement, nor anything contained herein, shall obligate either party to enter into any Orders.
3. ACCESS TO SUBSCRIPTION SERVICES.
3.1 Access Rights. Subject to Customer’s payment of applicable fees and to the terms of this Agreement, BMC will provide Customer with worldwide access to the Subscription Services in accordance with the Order (i) up to the Capacity, (ii) for Customer’s and its Affiliates’ internal business operations, (iii) in accordance with the User Guide and the applicable Order. Customer may exercise its rights under this Section 3.1 through its service providers, outsourcers, employees, consultants, contractors, agents, and Affiliates (all, “Users”).
3.2 BMC Subscription Services Support. BMC will provide the support described at http://www.bmc.com/support/review-policies (“Support”) to Customer for the Subscription Services.
3.3 Use of Subcontractors. Customer acknowledges and agrees that BMC uses subcontractors to provide portions of the Subscription Services. BMC will provide a list of its current subcontractors upon Customer’s written request. BMC is responsible for the performance of all subcontractors providing any of the Subscription Services.
3.4 Compliance with Laws. Each party shall comply with all applicable laws in the performance of its obligations under this Agreement.
3.5 Customer Responsibilities and Restrictions.
(a) Customer will (i) maintain the confidentiality of all authentications and passwords for the Subscription Services and immediately notify BMC if it becomes aware that an unauthorized party has gained access such authentications and passwords, (ii) be responsible for use of the Subscription Services by its Users in compliance with this Agreement, (iii) prevent unauthorized access to, or use of, the Subscription Services, and notify BMC promptly of any such unauthorized access or use, (iv) comply with all applicable laws in using the Subscription Services, and (v) be responsible for obtaining its own Apple Push Notification certificate, if the Subscription Services are used to manage devices running iOS. Customer is responsible for the creation and implementation of a privacy policy and end user agreement, if applicable, which will set forth the guidelines of how Customer uses and protects the data and personal information of its Users, and how said Users may utilize the Subscription Services.
(b) Customer will not (i) modify, copy or create derivative works based on the Subscription Services; (ii) create Internet “links” to or reproduce any content forming part of the Subscription Services, other than for its own internal business purposes; (iii) disassemble, reverse engineer, or decompile the Subscription Services or part thereof, except to the extent expressly permitted by applicable law despite this limitation without possibility of contractual waiver; (iv) interfere with or disrupt the integrity or performance of the Subscription Services; (vi) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortuous material, or send or store material in violation of any third party’s privacy rights via the Subscription Services; (vii) send or store viruses or malicious code via the Subscription Services; (viii) attempt to gain unauthorized access to the Subscription Services or its related software, systems, platforms or networks, including any form of security and/or penetration testing; (ix) use any components provided with the Subscription Services separately from the Subscription Services; or (x) distribute, rent, lease or provide the Subscription Services to any third party or use it in a service bureau, outsourcing environment, or for the processing of third party data .
4. FEES AND PAYMENT.
4.1 Fees. The fees payable for the Subscription Services and the payment period for such fees will be set forth in and paid in accordance with the Order. All payments are due within 30 days of the date of the invoice.
4.2 Late Fees. Late balances may, at BMC’s sole election, bear interest at a rate equal to the lesser of 1% per month or the maximum amount permitted by law.
4.3 Taxes. Customer will pay taxes imposed in connection with the fees paid for the Subscription Services, which are exclusive of these taxes.
4.4 Solution Providers. With regard to Subscription Services acquired by Customer through an authorized reseller ("Solution Provider") of BMC, notwithstanding anything to the contrary in sections 4.1 and 4.2 above, Customer will have no direct payment obligations to BMC for such fees.
5. TERM, SUSPENSION AND TERMINATION.
5.1 Term. This Agreement begins on the Effective Date and will remain in effect unless terminated pursuant to Section 5.2 below, regardless of the billing frequency selected in the Order.
5.2 Termination.
(a) Termination for Convenience. Customer may terminate this Agreement by providing BMC with at least 30 days prior written notice; provided, however, such termination will have no effect on Orders in effect at the time of such termination. Orders may not be terminated for convenience unless otherwise specified therein. Customer may notify BMC of its intent to terminate by emailing BMC at order_services@bmc.com.
(b) Termination for Cause. Either party may terminate this Agreement and/or an Order for cause upon 30 days’ written notice of a material breach to the other party if such breach remains uncured at the expiration of such period. In the event Customer terminates the Agreement and an Order for BMC’s material breach, BMC will refund the amount paid by Customer to BMC for the Subscription Services on such Order, pro-rated from the date of the notice of the termination.
5.3 Suspension of Subscription Services for Cause. In addition to its other rights and remedies, BMC reserves the right, without liability to Customer, to suspend any and all access to the Subscription Services if Customer commits a material breach of this Agreement and fails to cure the same within 30 days from Customer’s receipt of written notice of such breach from BMC. Provided however, that BMC may immediately suspend any and all access to the Subscription Services without any cure period if BMC determines in good faith that Customer’s material breach of the Agreement will cause damage to BMC, the Subscription Services, or any other customer.
5.4 Effects of Termination. Upon termination or expiration of any Order or this Agreement, all rights and Licenses granted thereunder will terminate and Customer will make no further use of the Subscription Services. No termination will relieve the Customer of the obligation to pay any fees accrued or payable to BMC pursuant to any Order. Upon written request by Customer made within 45 days after the effective date of termination, BMC will make the Customer Content available to Customer for retrieval in an industry standard format. After such 45-day period, BMC shall have no obligation to maintain any Customer Content and will thereafter delete Customer Content. Any terms in this Agreement which by their nature extend beyond termination of this Agreement will remain in effect until fulfilled.
5.5 Termination Assistance. Upon Customer’s request and upon (a) the expiration of an Order or (b) the termination of an Order for any reason other than Customer’s breach, BMC shall perform such services as the parties in good faith agree are reasonably necessary to facilitate the orderly transition of the Services to the successor service provider or to the Customer. BMC will provide any such services under the terms and conditions of the Agreement, and subject to payment of the then-current fees and charges, generally applicable to BMC’s performance of such services, as agreed between the parties at such time.
6. LIMITED WARRANTY.
6.1 Warranties and Limited Remedies. BMC warrants to Customer that:
(a) the online availability of the Subscription Services will be maintained in accordance with the service levels attached to the applicable Order, if any (the “Service Level Agreement” or “SLA”). Customer’s exclusive remedy and BMC’s sole obligation for breach of the warranty in this Section 6.1(a) is described in the Service Level Agreement;
(b) the Subscription Services (i) will perform in substantial accordance with the then-current on-line User Guide available via the Subscription Services and (ii) will be performed in a manner consistent with industry standards reasonably applicable to the provision thereof. Customer’s exclusive remedy and BMC’s sole obligation for breach of the warranty in this Section 6.1(b) will be BMC’s use of commercially reasonable efforts to have the Subscription Services perform in substantial accordance with the User Guide, or replace the non-conforming portion of the Subscription Services within 60 days from the written notice of claim, or if BMC cannot have the Subscription Services perform in substantial accordance with the User Guide or replace the Subscription Services within such time period, then Customer may terminate the non-performing Subscription Services, and upon such termination BMC will refund the amount paid by Customer for the Subscription Services, pro-rated from the date of the notice of the claim. Customer’s rights and BMC’s obligations in this Section 6.1(b) are conditioned upon Customer’s providing BMC with written notice of the claim, a complete description of the alleged defects and a specific reference to the User Guide to which such alleged defects are contrary; and
(c) In connection with the Subscription Services (i) it has used commercially reasonable efforts consistent with industry standards to scan for and promptly remove any software viruses for no charge and (ii) it has not inserted any Disabling Code. “Disabling Code” means computer code inserted by BMC, that is not addressed in the User Guide, and that is designed to expose data, delete, interfere with, and/or disable the normal operation of the Subscription Services. This Disabling Code warranty does not apply to BMC passwords necessary for the operation of the Subscription Services, or for any use by Customer outside the scope of this Agreement.
6.2 Disclaimer. CUSTOMER ACKNOWLEDGES THAT, EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, BMC, ITS AFFILIATES AND LICENSORS MAKE NO WARRANTY, EXPRESS, IMPLIED OR STATUTORY WITH RESPECT TO THE SUBSCRIPTION SERVICES OR USE THEREOF. BMC, ITS AFFILIATES AND LICENSORS HEREBY EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY THAT SUBSCRIPTION SERVICES WILL BE UNINTERRUPTED, ERROR FREE OR WITHOUT DELAY, AND THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INTERFERENCE, NON-INFRINGEMENT AND INFORMATION CONTENT.
7. PROPRIETARY RIGHTS AND CONFIDENTIALITY.
7.1 Proprietary Rights. BMC, its Affiliates or licensors retain all right, title and interest to the Subscription Services and all related intellectual property and proprietary rights. The Subscription Services are protected by applicable copyright, trade secret, industrial and other intellectual property laws. BMC owns all right, title and interest in all software, programming, documentation, templates, questionnaires, methodologies, models, charts, reports, ideas, features, content, functions, graphics and any other items provided as part of the Subscription Services (“ Service Items”) and access to and use of the relevant Service Items will be governed by the terms of this Agreement. Subject to (i) BMC’s or its licensor’s ownership of any Service Items and (ii) section 3.4 (b) (i) of the Agreement, Customer owns all rights, title, and interest in Customer Applications, including all proprietary and intellectual property rights. BMC reserves any rights not expressly granted to Customer. Customer shall not access the Subscription Services in order to build a competitive product or service or copy any ideas, features, functions or graphics of the Subscription Services. “ Confidential Information” means all proprietary or confidential information that is disclosed to the recipient (“Recipient”) by the discloser (“ Discloser”), and includes, among other things (i) any and all information relating to products or services provided by a Discloser, its customer-related and financial information, software code, BMC product vulnerabilities, flow charts, techniques, specifications, development and marketing plans, strategies, and forecasts; (ii) as to BMC, and its licensors, the Subscription Services and Service Items; and (iii) the terms of this Agreement, including without limitation, pricing information. Confidential Information does not include information that Recipient can show: (a) was rightfully in Recipient’s possession without any obligation of confidentiality before receipt from the Discloser; (b) is or becomes a matter of public knowledge through no fault of Recipient; (c) is rightfully received by Recipient from a third party without violation of a duty of confidentiality; or (d) is or was independently developed by or for Recipient. Recipient may not disclose Confidential Information of Discloser to any third party or use the Confidential Information in violation of this Agreement. The Recipient (i) will exercise the same degree of care and protection with respect to the Confidential Information of the Discloser that it exercises with respect to its own Confidential Information and (ii) will not, either directly or indirectly, disclose, copy, distribute, republish, or allow any third party to have access to any Confidential Information of the Discloser. Notwithstanding the foregoing, Recipient may disclose Discloser’s Confidential Information to Recipient’s employees and agents who have need to know provided that such employees and agents have legal obligations of confidentiality substantially the same (and in no case less protective) as the provisions of this Agreement.
7.2 Notification Obligation. If the Recipient becomes aware of any unauthorized use or disclosure of Discloser’s Confidential Information, then Recipient will promptly and fully notify the Discloser of all facts known to it concerning such unauthorized use or disclosure. In addition, if the Recipient or any of its employees or agents are required (by oral questions, interrogatories, requests for information, or documents in legal proceedings, subpoena, civil investigative demand, or other similar process) to disclose any of Discloser’s Confidential Information, the Recipient will not disclose the Discloser’s Confidential Information without providing the Discloser with commercially reasonable advance prior written notice to allow Discloser to seek a protective order or other appropriate remedy or to waive compliance with this provision. In any event, the Recipient will exercise its commercially reasonable efforts to preserve the confidentiality of the Discloser’s Confidential Information, including, without limitation, cooperating with Discloser to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded to the Confidential Information.
7.3 Customer Content. As between BMC and Customer, Customer owns all rights, title and interest in and to Customer Content. Customer Content is deemed Confidential Information under this Agreement. BMC will use the Customer Content only as necessary to provide the Subscription Services in accordance with this Agreement. At any time during the term of the Subscription Services, Customer may request copies of all Customer Content from the Subscription Services. Customer is responsible for complying with all legal and contractual requirements, including its agreements with third parties. With the exception of Customer Content collected by the Subscription Services, Customer is solely responsible for the transmission of Customer Content to BMC and to the Subscription Services. Customer is solely responsible for the encryption of any Customer Content during such transmission.
7.4 Suggestions. Customer agrees that BMC shall have a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into any BMC products or services any suggestions, enhancement requests, recommendations or other feedback provided by Customer relating to the Subscription Services.
8. DISCLAIMER OF DAMAGES AND LIMITS ON LIABILITY.
8.1 DISCLAIMER OF DAMAGES. NEITHER PARTY OR ITS AFFILIATES OR LICENSORS ARE LIABLE FOR ANY, SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES RELATING TO OR ARISING OUT OF THIS AGREEMENT OR THE SUBSCRIPTION SERVICES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST COMPUTER USAGE TIME, AND DAMAGE TO, OR LOSS OF USE OF, DATA), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND IRRESPECTIVE OF ANY NEGLIGENCE OF A PARTY OR WHETHER SUCH DAMAGES RESULT FROM A CLAIM ARISING UNDER TORT OR CONTRACT LAW. THE FOREGOING LIMITATIONS DO NOT APPLY TO EACH PARTY’S RESPONSIBILITIES IN SECTION 9, INFRINGEMENT BY A PARTY OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, GROSS NEGLIGENCE, WILLFUL MISCONDUCT, DEATH OR BODILY INJURY, ACTS OF FRAUD, NOR ANY LIABILITY WHICH MAY NOT BE EXCLUDED OR LIMITED BY LAW.
8.2 LIMITS ON LIABILITY. NEITHER PARTY OR ITS AFFILIATES OR LICENSORS SHALL HAVE AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SUBSCRIPTION SERVICES, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEEDING THE AMOUNTS ACTUALLY PAID BY AND DUE FROM CUSTOMER FOR THE SUBSCRIPTION SERVICES GIVING RISE TO LIABILITY PURSUANT TO THE ORDER(S) THAT ARE IN EFFECT AS OF THE DATE THE LIABILITY FIRST AROSE. THE FOREGOING LIMITATIONS DO NOT APPLY TO EACH PARTY’S RESPONSIBILITIES IN SECTION 9, INFRINGEMENT BY A PARTY OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, GROSS NEGLIGENCE, WILLFUL MISCONDUCT, DEATH OR BODILY INJURY, ACTS OF FRAUD, NOR ANY LIABILITY WHICH MAY NOT BE EXCLUDED OR LIMITED BY LAW.
9. INFRINGEMENT CLAIMS.
9.1 Indemnification by BMC . If a third party asserts a claim against Customer asserting that Customer’s use of the Subscription Services, including Platform Services, Deliverables and Licenses as defined in the Attachments to this Agreement, in accordance with this Agreement violates that third-party’s patent, trade secret or copyright rights (“Infringement Claim”), then BMC will, at its own expense: (a) defend or settle the Infringement Claim; and (b) indemnify Customer for any damages finally awarded against Customer based on infringement by the Subscription Services or Deliverables, including court costs and reasonable attorney’s fees. If BMC believes the Subscription Services may violate a right, then BMC will, at its expense: (a) modify the Subscription Services, or (b) procure the right to continue using the Subscription Services, and if (a) or (b) are not commercially reasonable, terminate Customer's right to use the Subscription Services and issue a pro-rata refund for the unexpired pre-paid portion of such Subscription Services.
9.2 Indemnification by Customer. Subject to the terms of this Agreement, if a third party asserts a claim against BMC asserting that the (i) Customer Content, (ii) Customer Applications as defined in Attachment A, (iii) Customer Property as defined in Attachment B or (iv) Customer’s use of the Subscription Services in violation of this Agreement violates that third-party’s patent, trade secret or copyright rights (“ Claim”), Customer will, at its own expense: (a) defend or settle the Claim; and (b) indemnify BMC for any damages finally awarded against BMC based on the Claim, including court costs and reasonable attorney’s fees.
9.3 Indemnity Process. Neither party’s obligations under this Section 9 will apply if: (a) the indemnifying party’s legal department does not receive prompt, detailed written notice of the Infringement Claim/Claim from the party being indemnified, (b) the indemnifying party is not able to retain sole control of the defense of the Infringement Claim/Claim and all negotiations for its settlement or compromise, or (c) the indemnifying party does not receive all reasonable assistance from the party being indemnified. Neither party will bind the indemnified party to a monetary obligation in a settlement or compromise, or make an admission on behalf of the indemnified party, without obtaining that party’s prior consent.
9.4 THIS SECTION 9 CONTAINS EACH PARTY'S EXCLUSIVE REMEDIES AND THE INDEMNIFYING PARTY'S SOLE LIABILITY FOR INFRINGEMENT CLAIMS/CLAIMS, RESPECTIVELY.
10. EXPORT CONTROLS. Both parties agree to comply with applicable export regulations, including but not limited to U.S. Export Administration Regulations and the OFAC embargoes and sanctions lists. More information on BMC’s export compliance program may be found here: https://www.bmc.com/legal/export-compliance.html.
11. GOVERNING LAW AND DISPUTE RESOLUTION. Any controversy, dispute or claim arising out of or relating to this Agreement, or to the formation, interpretation, breach, termination, or validity thereof (each, a “Controversy”) will be resolved as follows:
(i) UNITED STATES. If both parties to this Agreement are entities incorporated under the law of any state in the United States, the Controversy shall be tried in either state or federal court located in Houston, Texas and the laws of the State of Texas shall govern. Both parties hereby submit to the exclusive jurisdiction of the courts in Houston, Texas and waive all defenses based on forum non conveniens. Notwithstanding the foregoing, if Customer is a state or local governmental entity or higher education institution and legally required to apply state law, then Customer’s state law will apply to the Controversy, without reference to conflict of law principles.
(ii) CANADA. If Customer is located in Canada (outside Quebec), then the law of the Province of Ontario law apply, without reference to conflict of law principles. If Customer is located in Quebec, then the laws of the Province Quebec will apply, without reference to conflict of law principles.
(iii) EMEA. If both parties to this Agreement are entities incorporated in countries in the Europe, Middle East, or Africa regions, the Controversy shall be tried in the District Court located in Amsterdam, the Netherlands and the substantive laws of the Netherlands shall govern. Both parties hereby submit to the exclusive jurisdiction of the District Court in Amsterdam, the Netherlands and waive all defenses based on forum non conveniens.
(iv) ASIA PACIFIC. If both parties to this Agreement are entities incorporated in countries in the Asia Pacific region, the arbitration shall be held in Singapore under the then-applicable rules of the Singapore International Arbitration Centre and the substantive laws of Singapore will govern.
(v) OTHER REGIONS. In all other instances, the arbitration shall be held in New York City, New York, under the then-applicable international rules of the American Arbitration Association and the substantive laws of the State of Texas will govern.
For all arbitrations conducted hereunder: (a) the arbitration shall be conducted in English; (b) the relevant arbitral institution shall determine the number of arbitrators, but any Controversy in which the amount in dispute is greater than $10 million USD shall be decided by three arbitrators, with each party having the right to select one arbitrator; (c) the costs of such arbitration shall be borne equally, pending the arbitrator’s award; (d) the arbitration award rendered shall be final and binding on the parties, shall not be subject to appeal to any court and shall be enforceable in any court having jurisdiction over the parties; (e) the arbitration proceedings, award and pleadings shall all be confidential, unless disclosure of particular information is required for purposes of enforcing/challenging the award or to meet local securities law requirements; and (f) the party prevailing in arbitration shall be entitled to recover its reasonable attorneys’ fees and the necessary costs incurred in connection with the arbitration.
The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. Nothing in this Agreement shall be deemed as preventing either party from seeking immediate injunctive relief from any court having jurisdiction over the parties and the subject matter of the dispute.
12. The following BMC contracting entities apply to this Agreement:
Region | Contracting Entity | Address of Contracting Entity |
United States and Latin America South (not a specified Central or South America country below) | BMC Software, Inc. | 2103 CityWest Boulevard, Houston, Texas 77042 |
Canada | BMC Software Canada Inc. | 50 Minthorn Boulevard, Suite 200 Markham, Ontario L3T 7X8 Canada |
EMEA (Europe, Middle East and Africa) | BMC Software Distribution B.V. | Vision Plaza West, 2nd floor, Boeingavenue 220, 1119PN Schiphol-Rijk, The Netherlands |
Brazil | BMC Brasil Software Ltda. | Avenida Dra. Ruth Cardoso, n° 8.501, Condomínio Eldorado Business Tower, 22° andar, Pinheiros, São Paulo – SP, CEP: 05425-070 |
Mexico | BMC Software Distribution de México, S.A. de C.V. | Volcán 150, Piso 4, Col. Lomas de Chapultepec, C.P. 11000, Deleg. Miguel Hidalgo, Ciudad de México |
Argentina | BMC Software de Argentina S.A. | Ing. Butty 220 - Piso 18, Catalinas Plaza Buenos Aires, República de Argentina, C1001A |
S.E.A (Southeast Asia), Australia, New Zealand, Hong Kong, Taiwan | BMC Software Ireland Unlimited Company | Building 3, Cherrywood Business Park, Bray Road, Loughlinstown, CO. Dublin, D18 TF72 |
China | BMC Software (China) Limited | Room 502, Level 5, Tower W1, The Towers, Oriental Plaza, No. 1 East Chang An Ave., Dong Cheng Dist., Beijing 100738, China |
Japan | BMC Software K.K. | Harmony Tower 24th Floor, 1-32-2 Honcho, Nakano-ku, Tokyo, 164-8721 |
Korea | BMC Software Korea Ltd | 24th Fl., ASEM Tower, 1517, Yeongdong-daero,Gangnam-gu, Seoul 135-798, Korea South |
13. U.S. GOVERNMENT END USER RIGHTS. This Section applies only to acquisitions of the commercial Subscription Services subject to this Agreement by or on behalf of the United States Government, or by any prime contractor or subcontractor (at any tier) under any contract, grant, agreement or other activity with the United States Government. When Subscription Services are delivered or provided to the United States Government, the United States Government agrees that this commercial license Agreement and the Subscription Services governed by this Agreement are defined in accordance with and qualify as “commercial items” consisting of “commercial computer software” and “commercial computer software documentation” as outlined in FAR 12.211, FAR 12.212 and DFARS 227.7202-3, as applicable. The terms and conditions of this Agreement shall pertain to the United States Government’s use (including documentation or technical data), duplication, and disclosure of the Subscription Services, and shall supersede any conflicting contractual terms and conditions”.
14. DATA PROTECTION. The processing of Customer Content under this Agreement is governed by the BMC Data Processing Agreement set forth on the Order.
15. VERIFICATION. Customer agrees that BMC or its agent may monitor the Subscription Services to ensure Customer’s compliance with the terms of this Agreement. If such monitoring reveals that Customer has exceeded the Capacity for the Subscription Services, BMC may work with Customer to seek to reduce Customer’s usage so that it conforms to the Capacity limit for such Subscription Service. If, notwithstanding BMC’s efforts, Customer is unable or unwilling to abide by the Capacity limits for the Subscription Services, Customer will execute an Order for additional Capacity of such Subscription Services promptly upon BMC’s request.
16. NOTIFICATIONS. Any general notifications regarding technical matters from BMC to Customer will be sent to the Customer contact stated in the Customer Technical Contact Information section of the Order. The Customer contact in the Order has been assigned by Customer as the Customer contact for operational issues that may arise. Customer shall notify BMC of any change to the Customer contact details in writing, which may include via e-mail.
17. CONDUCTING BUSINESS WITH HONESTY AND INTEGRITY. BMC is committed to conducting business with honesty and integrity. BMC’s Code of Conduct set forth in https://www.bmc.com/legal/code-of-conduct.html governs the conduct of all officers, directors, and employees of BMC, and contingent workers and business partners acting on BMC’s behalf. BMC demonstrates its commitment to environmental stewardship by its global accreditation for ISO 14001:2015.
18. MISCELLANEOUS TERMS. The parties are independent contractors and this Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties. Customer will receive system notifications from BMC and its licensors, if applicable (i.e. planned downtime notices, etc). This Agreement, including the Attachments and Orders constitutes the entire agreement between Customer and BMC and supersedes any prior or contemporaneous negotiations or agreements, whether oral or written concerning the Subscription Services. There are no representations, promises, warranties, covenants, or undertakings between the parties other than those expressly set forth in this Agreement. There are no third-party beneficiaries to this Agreement; Customer is not entering into a contractual relationship with BMC’s licensors and BMC’s licensors have no liability to Customer. Except as provided in Section 2 above, no modification or waiver of any provision hereof will be effective unless made in a writing signed by both BMC and Customer. Customer has the right to assign this Agreement and all Orders in whole to an Affiliate, or to a successor in connection with (i) the sale of all or substantially all of the assets of that party or (ii) a merger by operation of law, by providing written notice to BMC. The assignee may not be a known direct competitor of BMC. The successor entity or Affiliate must agree in writing with BMC (in advance of the assignment) to be bound by the terms of this Agreement. Any Customer transfer or assignment except as expressly authorized above will be null and void. Should any provision of this Agreement be invalid or unenforceable, the remainder of the provisions will remain in effect. Any additional or conflicting terms of any Customer purchase order are rejected by BMC and do not apply. The Subscription Services may contain hyperlinks to websites controlled by parties other than BMC. BMC is not responsible for and does not endorse the content or accept any responsibility for Customer’s use of these websites. Customer should refer to the policies posted by other websites regarding privacy and other topics regarding data privacy before using them. Les parties exigent que la présente convention ainsi que les documents qui s’y rattachent soient rédigés en anglais.
Attachments incorporated into Agreement |
Attachment A – Platform Services Attachment |
Attachment B – Consulting Services Attachment |
Attachment C – On Premise Subscription Services Attachment |
PLATFORM SERVICES ATTACHMENT
to the
BMC CLOUD SERVICES MASTER AGREEMENT
Except as otherwise provided herein, the terms of the Cloud Services Master Agreement (the “Base Agreement”) are incorporated into this Platform Services attachment (the “Attachment”). Together, this Attachment and the Base Agreement (as incorporated into this Attachment) are referred to as the “Agreement” for purposes of Customer’s access and use of Platform Services, only if the Platform Services are set forth on an Order referencing the Base Agreement. For purposes of this Agreement, the term “Subscription Services” as defined in the Base Agreement shall be extended to include the Platform Services. In the event of a conflict between the Base Agreement and the terms of this Attachment, the terms of this Attachment will control for Customer’s access and use of the Platform Services only.
1. SCOPE. Subject to the terms of this Agreement, BMC will provide Customer with access to the Platform Service named in the applicable Order.
2. DEFINITIONS.
2.1 “Application” is the object code, its definitional structures, and data created to fulfill a particular purpose, which runs on the Platform Services. An Application may also include its documentation and User Guide.
2.2 “Customer Applications” means Applications that are owned or licensed by Customer, and which run on the Platform Services.
2.3 “Development Platform” means a BMC provided development platform which allows Customer to develop a custom application to run on the Platform Services. The Development Platform is a separate environment from the Platform Services.
2.4 “Platform” means the generally available BMC-provided PaaS platform and its capabilities to run Applications.
2.5 “Platform Services” means the specific Platform Services identified in the Order.
3. BMC PLATFORM SERVICES.
3.1 BMC Platform Services Support. BMC will provide Support only for Platform Services. Customer is responsible for its own support for Customer Applications.
4. CUSTOMER APPLICATIONS.
4.1 The terms contained in this section 4 apply only to Orders for Platform Services entitling Customers to develop and deploy Customer Applications onto the Platform Services. Any Customer Applications that run on the Platform Services are hereby excluded from the defined terms “Subscription Services” and “Platform Services”.
4.2 Development Platform. Customer may utilize the Development Platform to create an Application to run on the Platform Services. Customer’s use of the Development Platform is governed by the terms of this Agreement subject to the restrictions set forth in sections 4.2.1 to 4.2.6 below. Customer’s development of an Application must meet the best practices development guidelines set forth in the User Guide. Each Customer Application shall at all times materially conform to policies and best practices set forth in the User Guide. Prior to the deployment of any Customer Applications in a production or non-production environment of the Platform Services, Customer must conduct security and functional tests of each Customer Application and submit the results of such tests to BMC for review. BMC reserves the right to reject Customer’s deployment request of a Customer Application based on the results of Customer’s security and functional tests. Additionally, BMC reserves the right, during the term of this Agreement, to request Customer conduct additional security and functional tests and provide the results of said tests to BMC for review. Notwithstanding the foregoing, Customer must ensure that at all times Customer Applications are secure.
4.2.1 Scope of use. The right to access and use the Development Platform is granted solely for the purpose of performing non-production application development work on the Development Platform.
4.2.2 Restrictions of use. Customer agrees not to:
(i) use the Development Platform to (1) process production data or for any other production purposes, including but not limited to publishing digital applications, or (2) distribute applications;
(ii) use the Development Platform with data or information that has not been backed up; or
(iii) modify, delete or remove any ownership, title, trademark, patent or copyright notices.
4.2.3 Customer Responsibilities. Customer is responsible for acquiring all necessary and required licenses for the use of any third party software, source code and/or libraries Customer may use as part of its development with the Development Platform. In addition to its other rights and remedies, BMC reserves the right, without liability to Customer, to immediately, at any time and for any reason refresh Customer’s instance of the Development Platform. Upon BMC’s refreshing of Customer’s instance of the Development Platform, Customer may lose all Customer Content submitted to or stored in said instance of the Development Platform. Upon expiration or termination of the applicable Order, BMC may destroy any Customer Content submitted to or stored therein. Customer is responsible for backing up any development work with Customer Content outside of the Development Platform.
4.2.4 Open Source. Customer may not use any software, library, utility, tool, or other computer or program code (“Code”) with the Subscription Services that in any way that would (i) weaken BMC’s intellectual property rights in the Services, or (ii) require the Subscription Services to become or be disclosed or distributed as Open Source Software. For purposes of this Section, “Open Source Software” means any Code that is substantially similar to, (A) the Affero General Public License, (B) the GNU General Public License (GPL) or Lesser/Library GPL (LGPL), (C) the Artistic License (e.g. PERL), (D) the Mozilla Public License, (E) the Netscape Public License, (F) the Sun Community Source License (SCSL), (G) the Sun Standards License (SISL), or (H) any “copyleft” license, or any other license that requires as a condition of use, reproduction, modification, or distribution that such Code or other software or computer code distributed with it: (1) be disclosed or distributed in source code form; (2) be licensed for the purpose of creating derivative works; (3) be licensed under terms that allow reverse engineering, reverse assembly, or disassembly of any kind; (4) be subject to a patent non-assert or royalty-free patent license; or (iv) be redistributable at no charge.
4.2.5 No Support. BMC, its affiliates, or licensors do not provide Support for the Development Platform.
4.2.6 Disclaimer of Warranty, Limitation of Liability and Exclusive Remedy. Notwithstanding anything to the contrary in the applicable Order or this Agreement:
a. THE DEVELOPMENT PLATFORM IS PROVIDED “AS IS” WITHOUT ANY WARRANTY OF ANY KIND WHATSOEVER. BMC, ITS AFFILIATES AND LICENSORS DO NOT WARRANT THAT THE DEVELOPMENT PLATFORM WILL SATISFY CUSTOMER’S REQUIREMENTS, THAT THE DEVELOPMENT PLATFORM IS WITHOUT DEFECT, VIRUS OR ERROR FREE, WITHOUT DELAY, OR THAT THE OPERATION OF THE DEVELOPMENT PLATFORM WILL BE UNINTERUPTED. BMC, ITS AFFILIATES AND LICENSORS DISCLAIM ANY AND ALL REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, MADE WITH RESPECT TO THE DEVELOPMENT PLATFORM, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INTERFERENCE AND INFORMATION CONTENT; AND
b. NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY, FOR ANY CLAIM, LOSS, DAMAGE OR EXPENSE FOR INDIRECT, SPECIAL, CONSEQUENTIAL, PUNITIVE OR INCIDENTAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE DEVELOPMENT PLATFORM (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST COMPUTER USAGE TIME, AND DAMAGE TO, OR LOSS OF USE OF, DATA), EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EITHER PARTY’S ENTIRE LIABILITY AND THE OTHER PARTY’S EXCLUSIVE REMEDY FOR DIRECT DAMAGES ARISING OUT OF OR RELATED TO THE DEVELOPMENT PLATFORM, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, IS LIMITED TO $100.
4.3 License to Customer Applications. Subject to the terms and conditions of this Agreement, Customer hereby grants BMC a worldwide, limited, nonexclusive license during the term of the applicable Order for the Platform Services to host, copy, transmit, adapt and display Customer Applications solely for the purpose of fulfilling BMC’s obligations under this Agreement.
4.4 Functionality of Customer Applications. Customer is solely responsible for the operation of Customer Applications, including but not limited to any information stored in or transmitted by Customer Applications. Customer is responsible for monitoring the usage of each Customer Application. Customer is responsible for the configuration, functionality, performance, compliance with applicable data protection laws and security of all Customer Applications, including any interfaces used to connect to Customer Applications.
4.5 Customer Assistance. Customer will provide information or other materials related to a Customer Applications as reasonably requested by BMC to verify Customer’s compliance with the Agreement and the User Guide.
4.7 Suspension of Customer Applications. Customer’s use of the Platform Services may be immediately suspended and/or terminated due to (i) reasonable security threats regarding the Platform Services or Customer Applications, (ii) Customer Applications interfering with, disrupting or threatening the integrity or performance of the Subscription Services and/or the Platform Services, or (iii) violates the law, infringes or misappropriates the rights of any third party or otherwise violates a material term of the Agreement. In the event (i) or (ii) above apply to Customer Applications, Customer is required to remediate any such issue to BMC’s commercially reasonable satisfaction before use of Customer Applications can resume. BMC shall use reasonable commercial efforts to only suspend the non-conforming portion of the Platform Services.
4.8 CUSTOMER APPLICATIONS WARRANTIES. Customer warrants to BMC that: (a) each Customer Application will perform materially in accordance with the User Guide; (b) Customer has all rights in the Customer Content and Customer Applications necessary to grant the rights contemplated by this Agreement; (c) none of the Customer Content or Customer Applications or Users’ use of Customer Content or Customer Applications will violate the Agreement and the User Guide; and (d) Customer’s security and functional tests of Customer Applications was conducted in a commercially reasonable manner and the results of said tests provided to BMC for review are correct and valid.
ATTACHMENT B
CONSULTING SERVICES ATTACHMENT
to the
BMC CLOUD SERVICES MASTER AGREEMENT
Except as otherwise provided herein, the terms of the Cloud Services Master Agreement (the “Base Agreement”) are incorporated into this Consulting Services attachment (the “Attachment”). Together, this Attachment and the Base Agreement (as incorporated into this Attachment) are referred to as the “Agreement” for purposes of Customer’s purchase of Consulting Services, only if Consulting Services are set forth on an Order referencing the Base Agreement. For purposes of this Agreement, the term “Subscription Services” as defined in the Base Agreement shall be extended to include Consulting Services. In the event of a conflict between the Base Agreement and the terms of this Attachment, the terms of this Attachment will control for Customer’s purchase of Consulting Services only. The parties agree that the following Sections of the Base Agreement do not apply to the Consulting Services provided under this Attachment: Section 3.2 (Support), Section 4 (Fees and Payment), and Section 6 (Limited Warranty).
1. SCOPE. BMC agrees to render to Customer Consulting Services under the terms of this Agreement and as further described in an Order. BMC will render the Consulting Services in the location(s) as set forth in the Order. The performance of the Consulting Services will not relieve or alter the rights, obligations and responsibilities of Customer and of the BMC Affiliate providing Subscription Services and/or Licenses with respect to Subscription Services and/or Licenses under the applicable agreement.
2. SERVICE FEES AND EXPENSES. The fees payable to BMC for the Consulting Services to be rendered will be detailed in the Order. BMC will submit invoices to Customer for such fees and incurred expenses either upon completion of the Consulting Services, or at stated intervals, in any case in accordance with the applicable Order. Customer shall pay amounts invoiced within 30 days following receipt of the invoice.
3. EDUCATION. Customer may acquire Learning Pass Credits and Education Services (collectively, “BMC Education ”) on an Order. The BMC Education terms that govern such Orders are set forth in the Education Program Guide located at https://www.bmc.com/content/dam/bmc/education/education-program-guide.pdf, and is incorporated herein by this reference.
4. STATEMENTS OF WORK. Consulting Services may require the execution of a Statement of Work, in which case, such Statement of Work will be considered an Order for such Consulting Services. In the event of any conflict between the terms of a Statement of Work and this Agreement, the Agreement shall prevail except for matters of service fees, payment and reimbursement of expense, and termination of Consulting Services if further specified in the Statement of Work. During the term of an applicable Statement of Work, and for a period of six months thereafter, neither party will solicit for employment any employees, agents, or subcontractors of the other party or its affiliates who, within six months prior to such solicitation, had contact with the soliciting party based in whole or in part upon Consulting Services provided under this Agreement. The restrictions in this section shall be deemed not to apply to general solicitations for employment posted on Internet job sites or printed in newspapers or trade or professional journals.
5. PROPRIETARY RIGHTS AND RIGHTS IN DELIVERABLES.
5.1 Ownership of Materials Used in the Consulting Services. Unless specifically provided in an Order, Customer shall supply all of the facilities; equipment; supplies; computer programs; information about Customer’s business, systems, software and needs; and other materials necessary for completion of the Consulting Services (“Customer Property”), and BMC shall supply the people described in the Order, the know-how and the tools necessary to provide the Consulting Services, which may include, among other things, software, templates, questionnaires, graphs, methodologies, models, charts and reports (“BMC Property”). Customer Property and copies and modifications of Customer Property will remain the sole property of Customer or if applicable, Customer’s licensors, and BMC Property and copies and modifications of BMC Property will remain the sole property of BMC or if applicable, BMC’s licensors. Customer hereby grants to BMC a royalty-free, paid-up, non-exclusive, non-sublicensable and non-transferable license to use the Customer Property for the purpose of providing the Consulting Services.
5.2 Deliverables. Deliverables are those created under the Order, including, but not limited to, software, software scripts, routines, libraries or other code, or appliances, methodologies, templates, tools, policies, records, working papers, reports, methodologies, know-how, data, or other intellectual property, written or otherwise, including any derivative works or modifications to the above, whether pre-existing or created during the performance of the Consulting Services and all proprietary and intellectual property rights embedded therein delivered as a result of the Consulting Services as specified under the Order. BMC owns all right, title and interest in the Deliverables. Provided Customer has paid in full for the Consulting Services that resulted in the Deliverables, BMC will deliver the Deliverables to Customer in accordance with the applicable Order. Subject to compliance with the terms of this Agreement and the applicable Order, BMC grants Customer a non-exclusive, non-transferable, non-sublicensable, royalty-free, paid-up license to use, create derivative works of and modify all Deliverables solely for its internal business operations.
5.3 Copyright Notice. Each party agrees to reproduce the copyright notice and any other legend or ownership notice on any copies made under the licenses granted pursuant to this Section 5.
5.4 Retention. Customer acknowledges that BMC provides similar services to other customers and that nothing in this Agreement shall be construed as operating to prevent BMC from carrying on such business. Further BMC may use ideas, concepts, or know-how developed or acquired by BMC during performance of the Consulting Services to the extent by BMC’s personnel as impressions and general learning.
6. LIMITED WARRANTY. BMC warrants that it will perform the Consulting Services in conformance with generally accepted practices within the software services industry and in accordance with the Order. Customer must notify BMC of any breach of this warranty no later than 90 days after completion of the Consulting Services under the Order. Customer’s exclusive remedy and BMC’s entire liability under this warranty shall be for BMC to re-perform any non-conforming portion of the Consulting Services within a reasonable period of time, or if BMC cannot remedy the breach during such time period then refund the portion of the fee attributable to such non-conforming portion of the Consulting Services under the Order. This warranty will not apply to the extent Customer, its contractors or agents have modified any Deliverable, unless otherwise authorized by BMC in writing.
EXCEPT FOR THE EXPRESS WARRANTIES IN THIS AGREEMENT, THE CONSULTING SERVICES AND DELIVERABLES ARE PROVIDED WITH NO OTHER WARRANTIES WHATSOEVER, AND BMC, ITS AFFILIATES AND LICENSORS DISCLAIM ALL OTHER WARRANTIES, INCLUDING, FITNESS FOR A PARTICULAR PURPOSE AND IN THE UNITED STATES AND CANADA, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, AND NON-INFRINGEMENT.
7. INSURANCE. BMC will provide and maintain the following insurance, but only for losses arising out of BMC’s provision of Consulting Services under this Attachment: a) Worker’s Compensation insurance as prescribed by the law of the state applicable to the employees performing the Consulting Services; (b) Employer’s Liability insurance with a limit of $1,000,000 USD for each occurrence; (c) Commercial General Liability insurance with $1,000,000 USD per occurrence combined single limit and $2,000,000 USD general aggregate, including coverage for Products Liability and Completed Operations; (d) Automobile Liability insurance, including coverage for Hired and Non-owned vehicles of $1,000,000 USD for combined single limit for bodily injury and/or property damage; and (e) Professional Liability insurance covering Errors and Omissions in the amount of $1,000,000 USD for each occurrence and in the aggregate associated with Consulting Services performed under this Agreement.
8. MUTUAL INDEMNITY. Each party shall indemnify and hold harmless the other party from all claims, liabilities or expenses for physical damage to real property or tangible personal property and bodily injury, including death, to the extent caused by the negligence, gross negligence or willful misconduct of the indemnifying party’s employees or contractors arising out of this Agreement and while at the Customer’s premises. The foregoing indemnities are contingent upon the party seeking indemnity giving prompt written notice to the indemnifying party of any claim, demand or action, and cooperating with the indemnifying party in the defense or settlement of any such claim, demand or action.
9. INDEPENDENT CONTRACTOR. All of the services performed by BMC under this Agreement will be performed as an independent contractor.
ATTACHMENT C
ON PREMISE SUBSCRIPTIONS ATTACHMENT
to the
BMC CLOUD SERVICES MASTER AGREEMENT
Except as otherwise provided herein, the terms of the Cloud Services Master Agreement (the “Base Agreement”) are incorporated into this On Premise Subscriptions attachment (the “Attachment”). Together, this Attachment and the Base Agreement (as incorporated into this Attachment) are referred to as the “Agreement” for purposes of Customer’s purchase and ongoing use of On Premise Subscriptions, only if On Premise Subscriptions are set forth on an Order referencing the Base Agreement. For purposes of this Agreement, the term “Subscription Services” as defined in the Base Agreement shall be extended to include On Premise Subscriptions. In the event of a conflict between the Base Agreement and the terms of this Attachment, the terms of this Attachment will control for Customer’s purchase of On Premise Subscriptions only. The parties agree that the following Sections of the Base Agreement do not apply to the On Premise Subscriptions provided under this Attachment: Section 3.1 (Access Rights), Section 3.4 (Customer Responsibilities and Restrictions), Section 6 (Limited Warranty) and Section 14 (Verification).
1. DEFINITIONS.
1.1 “Authorized User” means Customer, Customer Affiliate(s), and their employees, consultants, contractors and agents that are bound by the terms and conditions no less restrictive than those contained herein and for whom Customer takes full responsibility. Authorized Users do not include service providers or outsourcers.
1.2 "Documentation" means the technical publications relating to the software, such as release notes, license entitlement descriptions, reference, user, installation, systems administrator and technical guidelines, included with the On Premise Subscription.
1.3 “Licensed Capacity” is the amount of each On Premise Subscription licensed as established in the Order.
1.4 “On Premise Subscription” is the object code of the software and all accompanying Documentation delivered to Customer, including all items delivered by BMC to Customer under Support.
2. LICENSE. Subject to the terms, conditions, payment requirements and restrictions set forth in this Agreement, BMC grants Customer a non-exclusive, non-transferable, non-sub-licensable term license to install in the Territory as defined in an Order, access and use the On Premise Subscription during the term specified on the Order (i) by Authorized User(s), (ii) up to the Licensed Capacity, (iii) for Customer’s and its Affiliates’ internal business operations, (iv) in accordance with the Documentation and the applicable Order, and (v) make a reasonable number of copies of the On Premise Subscription for archival purposes only (collectively a "License"). Affiliates may use and access the On Premise Subscriptions under the terms of this Agreement, and Customer is responsible for its Affiliates compliance with the terms of this Agreement.
3. RESTRICTIONS. Customer will not: (a) copy, operate or use any On Premise Subscription in excess of the applicable Licensed Capacity or other than as set forth in the License above; (b) modify, delete or remove any ownership, title, trademark, patent or copyright notices (“Identification”) from any On Premise Subscription, or copy or partial copy of an On Premise Subscription; (c) disassemble, reverse engineer, decompile or otherwise attempt to derive any On Premise Subscription source code from object code, except to the extent expressly permitted by applicable law despite this limitation without possibility of contractual waiver; (d) distribute, rent, lease, sublicense or provide the On Premise Subscription to any third party; (e) use the On Premise Subscriptions in an outsourcing or service bureau environment on behalf of non-Affiliate third parties, or allow the On Premise Subscriptions to be used by an outsourcing or service bureau provider on Customer’s behalf (without obtaining prior written approval from BMC); (f) provide a third party with the results of any functional evaluation, or performance tests, without BMC's prior written approval; or (g) attempt to disable or circumvent any of the licensing mechanisms within the On Premise Subscription.
4. ON PREMISE SUBSCRIPTION PERFORMANCE WARRANTY. BMC warrants that (a) the On Premise Subscription will perform in substantial accordance with its Documentation for a period of one year from the date of the first Order, (b) BMC has used commercially reasonable efforts consistent with industry standards to scan for and remove software viruses, and (c) other than passwords that may be required for the operation of the On Premise Subscription, BMC has not inserted any code that is not addressed in the Documentation and that is designed to delete, interfere with or disable the normal operation of the On Premise Subscription in accordance with the License. This warranty will not apply to any problems caused by hardware, Computers, or software other than the On Premise Subscription, or misuse of the On Premise Subscription, use of the On Premise Subscription other than as provided by the applicable License, modification of the On Premise Subscription, or claims made either outside the warranty period or not in compliance with the notice and access requirements set forth below. No warranty is provided for additional Licensed Capacity, On Premise Subscription provided pursuant to Support. BMC’s entire liability, and Customer’s exclusive remedy, for breach of the above warranty is limited to: BMC’s use of commercially reasonable efforts to have the On Premise Subscription perform in substantial accordance with its Documentation, or replacement of the non-conforming On Premise Subscription within a reasonable period of time, or if BMC cannot have the On Premise Subscription perform in substantial accordance with its Documentation replace the On Premise Subscription within such time period, then BMC will refund the amount paid by Customer for the License for that On Premise Subscription. Customer’s rights and BMC's obligations in this Section are conditioned upon Customer’s providing BMC during the warranty period (i) full cooperation and access to the On Premise Subscription in resolving any claim; and (ii) written notice addressed to the BMC Legal Department that includes notice of the claim, a complete description of the alleged defects sufficient to permit their reproduction in BMC’s development or support environment, and a specific reference to the Documentation to which such alleged defects are contrary.
EXCEPT FOR THE EXPRESS WARRANTIES IN THIS ATTACHMENT, THE ON PREMISE SUBSCRIPTION IS PROVIDED WITH NO OTHER WARRANTIES WHATSOEVER, AND BMC, ITS AFFILIATES AND LICENSORS DISCLAIM ALL OTHER WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE AND IN THE UNITED STATES AND CANADA, MERCHANTABILITY AND NON-INFRINGEMENT. BMC DOES NOT WARRANT THAT THE OPERATION OF THE ON PREMISE SUBSCRIPTION WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT ALL DEFECTS CAN BE CORRECTED.
5. DELIVERY. For On Premise Subscriptions that are delivered electronically, upon request from BMC, Customer agrees to provide BMC with documentation supporting that the designated On Premise Subscription was received electronically. If Customer accepts any On Premise Subscription in a non-electronic format, there may be an additional charge and it is the sole responsibility of Customer to bear any sales/use tax obligation, penalties, and interest. All On Premise Subscriptions are licensed FCA (“Free Carrier” as per Incoterms 2000) shipping point. The On Premise Subscriptions are accepted on the date BMC delivers the On Premise Subscription to the Customer either physically or by providing access codes for electronic download, whichever occurs first, however, such acceptance will not affect the On Premise Subscription Performance Warranty provided in this Agreement.
6. AUDIT. If requested by BMC, and not more than once a year, Customer agrees to deliver to BMC, within 30 days of such request, as specified by BMC either (a) periodic product usage reports generated from specific products or (b) written periodic product usage reports, to be provided solely when the product does not generate reports (“Report”). Additionally, if requested by BMC not more than once a year and upon at least ten days prior written notice to Customer, Customer agrees to allow BMC to perform an audit (“Audit”) to ensure compliance with the terms of this Agreement at the locations where the On Premise Subscriptions are installed, during normal business hours. to ensure compliance with the terms of this Agreement. Customer agrees to cooperate during any such Audit and to provide reasonable access to its information and systems.
Effective September 6th 2021 to February 15th 2022
DownloadTable of Contents
BMC CLOUD SERVICES MASTER AGREEMENT
THIS CLOUD SERVICES MASTER AGREEMENT (“AGREEMENT”) GOVERNS YOUR FREE TRIAL, IF ANY, OF THE SUBSCRIPTION SERVICES.
IF YOU PURCHASE THE SUBSCRIPTION SERVICES, THIS AGREEMENT WILL ALSO GOVERN YOUR PURCHASE AND ONGOING USE OF THE SUBSCRIPTION SERVICES.
BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SUBSCRIPTION SERVICES.
You may not access the Subscription Services if you are BMC’s direct competitor, except with BMC’s prior written consent. In addition, you may not access the Subscription Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.
This Agreement was last updated on September 6,, 2021. This Agreement is between the entity or individual entering into this Agreement (“Customer”) and the BMC Contracting Entity for the applicable region as described in Section 12 (“BMC”). It is effective between Customer and BMC as of the date of your acceptance of this Agreement. If Customer has a fully executed BMC Cloud Services Master Agreement then such fully executed BMC Cloud Services Master Agreement supersedes and replaces any clickwrap or click-through agreements (or other similar agreements) that Customer may be required to accept as a part of accessing or using the Subscription Services. For Customer’s convenience, prior versions of this Agreement are available at https://www.bmc.com/legal/csma.html.
FREE TRIAL.
BMC may make the Subscription Services available to Customer on a trial basis free of charge. If BMC offers Customer a free trial, it will run until the earlier of (a) the end of the trial period stated on the trial registration web page or (b) the start date of any Order for purchase of the Subscription Services. Additional trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.
ANY DATA CUSTOMER ENTERS INTO THE SUBSCRIPTION SERVICES, AND ANY CUSTOMIZATIONS MADE TO THE SUBSCRIPTION SERVICES BY OR FOR CUSTOMER, DURING A FREE TRIAL MAY BE PERMANENTLY LOST.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THE AGREEMENT, DURING ANY FREE TRIAL PERIOD THE SUBSCRIPTION SERVICES ARE PROVIDED “AS IS” WITH NO WARRANTY.
1. DEFINITIONS.
1.1 “Affiliate” is an entity that controls, is controlled by or shares common control with BMC or Customer, where such control arises from the legal power to direct or cause the direction of the general management and policies of the company, partnership or legal entity.
1.2 "Capacity” means the amount of access to the Subscription Services purchased as specified in an Order, which is counted in accordance with the Unit of Measure described in the Order.
1.3 “Consulting Services” means the consulting, implementation, training or other services provided under the terms of Attachment B (Consulting Services) and as further described under the applicable Order.
1.4 “Customer Content” means all electronic data or information (a) submitted to the Subscription Services by Customer, a third party on behalf of Customer, or as directed by Customer or (b) collected, processed or returned by the Subscription Services .
1.5 “Order” means (i) the agreed ordering document for the purchase of the Subscription Services, (ii) that is subject to this Agreement, and (iii) that identifies the terms of the purchase and fees to be paid. The term “Order” includes Customer’s online registration for and purchase of the Subscription Services, If any.
1.6 "Subscription Services" means the generally available hosted service which packages web-based access and the right-to-use the supported applications, installed agents and associated reference, user and technical guides.
1.7 “User Guide” means the online help, functional guide and technical specifications for the Subscription Services, as updated by BMC from time to time.
2. SCOPE. Subject to the terms of this Agreement, Customer may purchase and BMC will provide Customer with access to the Subscription Services as set forth in this Agreement and the applicable Order. Subject to the Attachments to this Agreement, Customer may also purchase BMC Platform Services, BMC Consulting Services and BMC On Premise Subscription Services. In the event of a direct conflict between any Order and the terms of this Agreement, the terms of the Order will control only if the Order is executed by an authorized representative of each party. Orders may be entered under this Agreement by and between (a) BMC or an Affiliate of BMC; and (b) Customer or an Affiliate of Customer. With respect to an Order, the terms “BMC” and “Customer” as used in this Agreement will be deemed to refer to the entities that execute that Order, the Order will be considered a two party agreement between such entities, and BMC will separately invoice the Customer named in the Order for the associated fees. Orders may also be placed via a BMC authorized reseller. Neither execution of this Agreement, nor anything contained herein, shall obligate either party to enter into any Orders.
3. ACCESS TO SUBSCRIPTION SERVICES.
3.1 Access Rights. Subject to Customer’s payment of applicable fees and to the terms of this Agreement, BMC will provide Customer with worldwide access to the Subscription Services in accordance with the Order (i) up to the Capacity, (ii) for Customer’s and its Affiliates’ internal business operations, (iii) in accordance with the User Guide and the applicable Order. Customer may exercise its rights under this Section 3.1 through its service providers, outsourcers, employees, consultants, contractors, agents, and Affiliates (all, “Users”).
3.2 BMC Subscription Services Support. BMC will provide the support described at http://www.bmc.com/support/review-policies (“Support”) to Customer for the Subscription Services.
3.3 Use of Subcontractors. Customer acknowledges and agrees that BMC uses subcontractors to provide portions of the Subscription Services. BMC will provide a list of its current subcontractors upon Customer’s written request. BMC is responsible for the performance of all subcontractors providing any of the Subscription Services.
3.4 Compliance with Laws. Each party shall comply with all applicable laws in the performance of its obligations under this Agreement.
3.5 Customer Responsibilities and Restrictions.
(a) Customer will (i) maintain the confidentiality of all authentications and passwords for the Subscription Services and immediately notify BMC if it becomes aware that an unauthorized party has gained access such authentications and passwords, (ii) be responsible for use of the Subscription Services by its Users in compliance with this Agreement, (iii) prevent unauthorized access to, or use of, the Subscription Services, and notify BMC promptly of any such unauthorized access or use, (iv) comply with all applicable laws in using the Subscription Services, and (v) be responsible for obtaining its own Apple Push Notification certificate, if the Subscription Services are used to manage devices running iOS. Customer is responsible for the creation and implementation of a privacy policy and end user agreement, if applicable, which will set forth the guidelines of how Customer uses and protects the data and personal information of its Users, and how said Users may utilize the Subscription Services.
(b) Customer will not (i) modify, copy or create derivative works based on the Subscription Services; (ii) create Internet “links” to or reproduce any content forming part of the Subscription Services, other than for its own internal business purposes; (iii) disassemble, reverse engineer, or decompile the Subscription Services or part thereof, except to the extent expressly permitted by applicable law despite this limitation without possibility of contractual waiver; (iv) interfere with or disrupt the integrity or performance of the Subscription Services; (vi) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortuous material, or send or store material in violation of any third party’s privacy rights via the Subscription Services; (vii) send or store viruses or malicious code via the Subscription Services; (viii) attempt to gain unauthorized access to the Subscription Services or its related software, systems, platforms or networks, including any form of security and/or penetration testing; (ix) use any components provided with the Subscription Services separately from the Subscription Services; or (x) distribute, rent, lease or provide the Subscription Services to any third party or use it in a service bureau, outsourcing environment, or for the processing of third party data .
4. FEES AND PAYMENT.
4.1 Fees. The fees payable for the Subscription Services and the payment period for such fees will be set forth in and paid in accordance with the Order. All payments are due within 30 days of the date of the invoice.
4.2 Late Fees. Late balances may, at BMC’s sole election, bear interest at a rate equal to the lesser of 1% per month or the maximum amount permitted by law.
4.3 Taxes. Customer will pay taxes imposed in connection with the fees paid for the Subscription Services, which are exclusive of these taxes.
4.4 Solution Providers. With regard to Subscription Services acquired by Customer through an authorized reseller ("Solution Provider") of BMC, notwithstanding anything to the contrary in sections 4.1 and 4.2 above, Customer will have no direct payment obligations to BMC for such fees.
5. TERM, SUSPENSION AND TERMINATION.
5.1 Term. This Agreement begins on the Effective Date and will remain in effect unless terminated pursuant to Section 5.2 below, regardless of the billing frequency selected in the Order.
5.2 Termination.
(a) Termination for Convenience. Customer may terminate this Agreement by providing BMC with at least 30 days prior written notice; provided, however, such termination will have no effect on Orders in effect at the time of such termination. Orders may not be terminated for convenience unless otherwise specified therein. Customer may notify BMC of its intent to terminate by emailing BMC at order_services@bmc.com.
(b) Termination for Cause. Either party may terminate this Agreement and/or an Order for cause upon 30 days’ written notice of a material breach to the other party if such breach remains uncured at the expiration of such period. In the event Customer terminates the Agreement and an Order for BMC’s material breach, BMC will refund the amount paid by Customer to BMC for the Subscription Services on such Order, pro-rated from the date of the notice of the termination.
5.3 Suspension of Subscription Services for Cause. In addition to its other rights and remedies, BMC reserves the right, without liability to Customer, to suspend any and all access to the Subscription Services if Customer commits a material breach of this Agreement and fails to cure the same within 30 days from Customer’s receipt of written notice of such breach from BMC. Provided however, that BMC may immediately suspend any and all access to the Subscription Services without any cure period if BMC determines in good faith that Customer’s material breach of the Agreement will cause damage to BMC, the Subscription Services, or any other customer.
5.4 Effects of Termination. Upon termination or expiration of any Order or this Agreement, all rights and Licenses granted thereunder will terminate and Customer will make no further use of the Subscription Services. No termination will relieve the Customer of the obligation to pay any fees accrued or payable to BMC pursuant to any Order. Upon written request by Customer made within 45 days after the effective date of termination, BMC will make the Customer Content available to Customer for retrieval in an industry standard format. After such 45-day period, BMC shall have no obligation to maintain any Customer Content and will thereafter delete Customer Content. Any terms in this Agreement which by their nature extend beyond termination of this Agreement will remain in effect until fulfilled.
5.5 Termination Assistance. Upon Customer’s request and upon (a) the expiration of an Order or (b) the termination of an Order for any reason other than Customer’s breach, BMC shall perform such services as the parties in good faith agree are reasonably necessary to facilitate the orderly transition of the Services to the successor service provider or to the Customer. BMC will provide any such services under the terms and conditions of the Agreement, and subject to payment of the then-current fees and charges, generally applicable to BMC’s performance of such services, as agreed between the parties at such time.
6. LIMITED WARRANTY.
6.1 Warranties and Limited Remedies. BMC warrants to Customer that:
(a) the online availability of the Subscription Services will be maintained in accordance with the service levels attached to the applicable Order, if any (the “Service Level Agreement” or “SLA”). Customer’s exclusive remedy and BMC’s sole obligation for breach of the warranty in this Section 6.1(a) is described in the Service Level Agreement;
(b) the Subscription Services (i) will perform in substantial accordance with the then-current on-line User Guide available via the Subscription Services and (ii) will be performed in a manner consistent with industry standards reasonably applicable to the provision thereof. Customer’s exclusive remedy and BMC’s sole obligation for breach of the warranty in this Section 6.1(b) will be BMC’s use of commercially reasonable efforts to have the Subscription Services perform in substantial accordance with the User Guide, or replace the non-conforming portion of the Subscription Services within 60 days from the written notice of claim, or if BMC cannot have the Subscription Services perform in substantial accordance with the User Guide or replace the Subscription Services within such time period, then Customer may terminate the non-performing Subscription Services, and upon such termination BMC will refund the amount paid by Customer for the Subscription Services, pro-rated from the date of the notice of the claim. Customer’s rights and BMC’s obligations in this Section 6.1(b) are conditioned upon Customer’s providing BMC with written notice of the claim, a complete description of the alleged defects and a specific reference to the User Guide to which such alleged defects are contrary; and
(c) In connection with the Subscription Services (i) it has used commercially reasonable efforts consistent with industry standards to scan for and promptly remove any software viruses for no charge and (ii) it has not inserted any Disabling Code. “Disabling Code” means computer code inserted by BMC, that is not addressed in the User Guide, and that is designed to expose data, delete, interfere with, and/or disable the normal operation of the Subscription Services. This Disabling Code warranty does not apply to BMC passwords necessary for the operation of the Subscription Services, or for any use by Customer outside the scope of this Agreement.
6.2 Disclaimer. CUSTOMER ACKNOWLEDGES THAT, EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, BMC, ITS AFFILIATES AND LICENSORS MAKE NO WARRANTY, EXPRESS, IMPLIED OR STATUTORY WITH RESPECT TO THE SUBSCRIPTION SERVICES OR USE THEREOF. BMC, ITS AFFILIATES AND LICENSORS HEREBY EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY THAT SUBSCRIPTION SERVICES WILL BE UNINTERRUPTED, ERROR FREE OR WITHOUT DELAY, AND THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INTERFERENCE, NON-INFRINGEMENT AND INFORMATION CONTENT.
7. PROPRIETARY RIGHTS AND CONFIDENTIALITY.
7.1 Proprietary Rights. BMC, its Affiliates or licensors retain all right, title and interest to the Subscription Services and all related intellectual property and proprietary rights. The Subscription Services are protected by applicable copyright, trade secret, industrial and other intellectual property laws. BMC owns all right, title and interest in all software, programming, documentation, templates, questionnaires, methodologies, models, charts, reports, ideas, features, content, functions, graphics and any other items provided as part of the Subscription Services (“ Service Items”) and access to and use of the relevant Service Items will be governed by the terms of this Agreement. Subject to (i) BMC’s or its licensor’s ownership of any Service Items and (ii) section 3.4 (b) (i) of the Agreement, Customer owns all rights, title, and interest in Customer Applications, including all proprietary and intellectual property rights. BMC reserves any rights not expressly granted to Customer. Customer shall not access the Subscription Services in order to build a competitive product or service or copy any ideas, features, functions or graphics of the Subscription Services. “ Confidential Information” means all proprietary or confidential information that is disclosed to the recipient (“Recipient”) by the discloser (“ Discloser”), and includes, among other things (i) any and all information relating to products or services provided by a Discloser, its customer-related and financial information, software code, flow charts, techniques, specifications, development and marketing plans, strategies, and forecasts; (ii) as to BMC, and its licensors, the Subscription Services and Service Items; and (iii) the terms of this Agreement, including without limitation, pricing information. Confidential Information does not include information that Recipient can show: (a) was rightfully in Recipient’s possession without any obligation of confidentiality before receipt from the Discloser; (b) is or becomes a matter of public knowledge through no fault of Recipient; (c) is rightfully received by Recipient from a third party without violation of a duty of confidentiality; or (d) is or was independently developed by or for Recipient. Recipient may not disclose Confidential Information of Discloser to any third party or use the Confidential Information in violation of this Agreement. The Recipient (i) will exercise the same degree of care and protection with respect to the Confidential Information of the Discloser that it exercises with respect to its own Confidential Information and (ii) will not, either directly or indirectly, disclose, copy, distribute, republish, or allow any third party to have access to any Confidential Information of the Discloser. Notwithstanding the foregoing, Recipient may disclose Discloser’s Confidential Information to Recipient’s employees and agents who have need to know provided that such employees and agents have legal obligations of confidentiality substantially the same (and in no case less protective) as the provisions of this Agreement.
7.2 Notification Obligation. If the Recipient becomes aware of any unauthorized use or disclosure of Discloser’s Confidential Information, then Recipient will promptly and fully notify the Discloser of all facts known to it concerning such unauthorized use or disclosure. In addition, if the Recipient or any of its employees or agents are required (by oral questions, interrogatories, requests for information, or documents in legal proceedings, subpoena, civil investigative demand, or other similar process) to disclose any of Discloser’s Confidential Information, the Recipient will not disclose the Discloser’s Confidential Information without providing the Discloser with commercially reasonable advance prior written notice to allow Discloser to seek a protective order or other appropriate remedy or to waive compliance with this provision. In any event, the Recipient will exercise its commercially reasonable efforts to preserve the confidentiality of the Discloser’s Confidential Information, including, without limitation, cooperating with Discloser to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded to the Confidential Information.
7.3 Customer Content. As between BMC and Customer, Customer owns all rights, title and interest in and to Customer Content. Customer Content is deemed Confidential Information under this Agreement. BMC will use the Customer Content only as necessary to provide the Subscription Services in accordance with this Agreement. At any time during the term of the Subscription Services, Customer may request copies of all Customer Content from the Subscription Services. Customer is responsible for complying with all legal and contractual requirements, including its agreements with third parties. With the exception of Customer Content collected by the Subscription Services, Customer is solely responsible for the transmission of Customer Content to BMC and to the Subscription Services. Customer is solely responsible for the encryption of any Customer Content during such transmission.
7.4 Suggestions. Customer agrees that BMC shall have a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into any BMC products or services any suggestions, enhancement requests, recommendations or other feedback provided by Customer relating to the Subscription Services.
8. DISCLAIMER OF DAMAGES AND LIMITS ON LIABILITY.
8.1 DISCLAIMER OF DAMAGES. NEITHER PARTY OR ITS AFFILIATES OR LICENSORS ARE LIABLE FOR ANY, SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES RELATING TO OR ARISING OUT OF THIS AGREEMENT OR THE SUBSCRIPTION SERVICES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST COMPUTER USAGE TIME, AND DAMAGE TO, OR LOSS OF USE OF, DATA), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND IRRESPECTIVE OF ANY NEGLIGENCE OF A PARTY OR WHETHER SUCH DAMAGES RESULT FROM A CLAIM ARISING UNDER TORT OR CONTRACT LAW. THE FOREGOING LIMITATIONS DO NOT APPLY TO EACH PARTY’S RESPONSIBILITIES IN SECTION 9, INFRINGEMENT BY A PARTY OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, GROSS NEGLIGENCE, WILLFUL MISCONDUCT, DEATH OR BODILY INJURY, ACTS OF FRAUD, NOR ANY LIABILITY WHICH MAY NOT BE EXCLUDED OR LIMITED BY LAW.
8.2 LIMITS ON LIABILITY. NEITHER PARTY OR ITS AFFILIATES OR LICENSORS SHALL HAVE AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SUBSCRIPTION SERVICES, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEEDING THE AMOUNTS ACTUALLY PAID BY AND DUE FROM CUSTOMER FOR THE SUBSCRIPTION SERVICES GIVING RISE TO LIABILITY PURSUANT TO THE ORDER(S) THAT ARE IN EFFECT AS OF THE DATE THE LIABILITY FIRST AROSE. THE FOREGOING LIMITATIONS DO NOT APPLY TO EACH PARTY’S RESPONSIBILITIES IN SECTION 9, INFRINGEMENT BY A PARTY OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, GROSS NEGLIGENCE, WILLFUL MISCONDUCT, DEATH OR BODILY INJURY, ACTS OF FRAUD, NOR ANY LIABILITY WHICH MAY NOT BE EXCLUDED OR LIMITED BY LAW.
9. INFRINGEMENT CLAIMS.
9.1 Indemnification by BMC . If a third party asserts a claim against Customer asserting that Customer’s use of the Subscription Services, including Platform Services, Deliverables and Licenses as defined in the Attachments to this Agreement, in accordance with this Agreement violates that third-party’s patent, trade secret or copyright rights (“Infringement Claim”), then BMC will, at its own expense: (a) defend or settle the Infringement Claim; and (b) indemnify Customer for any damages finally awarded against Customer based on infringement by the Subscription Services or Deliverables, including court costs and reasonable attorney’s fees. If BMC believes the Subscription Services may violate a right, then BMC will, at its expense: (a) modify the Subscription Services, or (b) procure the right to continue using the Subscription Services, and if (a) or (b) are not commercially reasonable, terminate Customer's right to use the Subscription Services and issue a pro-rata refund for the unexpired pre-paid portion of such Subscription Services.
9.2 Indemnification by Customer. Subject to the terms of this Agreement, if a third party asserts a claim against BMC asserting that the (i) Customer Content, (ii) Customer Applications as defined in Attachment A, (iii) Customer Property as defined in Attachment B or (iv) Customer’s use of the Subscription Services in violation of this Agreement violates that third-party’s patent, trade secret or copyright rights (“ Claim”), Customer will, at its own expense: (a) defend or settle the Claim; and (b) indemnify BMC for any damages finally awarded against BMC based on the Claim, including court costs and reasonable attorney’s fees.
9.3 Indemnity Process. Neither party’s obligations under this Section will apply if: (a) the indemnifying party’s legal department does not receive prompt, detailed written notice of the Infringement Claim/Claim from the party being indemnified, (b) the indemnifying party is not able to retain sole control of the defense of the Infringement Claim/Claim and all negotiations for its settlement or compromise, or (c) the indemnifying party does not receive all reasonable assistance from the party being indemnified. Neither party will bind the indemnified party to a monetary obligation in a settlement or compromise, or make an admission on behalf of the indemnified party, without obtaining that party’s prior consent.
9.4 THIS SECTION 9 CONTAINS EACH PARTY'S EXCLUSIVE REMEDIES AND THE INDEMNIFYING PARTY'S SOLE LIABILITY FOR INFRINGEMENT CLAIMS/CLAIMS, RESPECTIVELY.
10. EXPORT CONTROLS. Both parties agree to comply with applicable export regulations, including but not limited to U.S. Export Administration Regulations and the OFAC embargoes and sanctions lists. More information on BMC’s export compliance program may be found here: https://www.bmc.com/legal/export-compliance.html.
11. GOVERNING LAW AND DISPUTE RESOLUTION. Any controversy, dispute or claim arising out of or relating to this Agreement, or to the formation, interpretation, breach, termination, or validity thereof (each, a “Controversy”) will be resolved as follows:
(i) UNITED STATES. If both parties to this Agreement are entities incorporated under the law of any state in the United States, the Controversy shall be tried in either state or federal court located in Houston, Texas and the laws of the State of Texas shall govern. Both parties hereby submit to the exclusive jurisdiction of the courts in Houston, Texas and waive all defenses based on forum non conveniens. Notwithstanding the foregoing, if Customer is a state or local governmental entity or higher education institution and legally required to apply state law, then Customer’s state law will apply to the Controversy, without reference to conflict of law principles.
(ii) CANADA. If Customer is located in Canada (outside Quebec), then the law of the Province of Ontario law apply, without reference to conflict of law principles. If Customer is located in Quebec, then the laws of the Province Quebec will apply, without reference to conflict of law principles.
(iii) EMEA. If both parties to this Agreement are entities incorporated in countries in the Europe, Middle East, or Africa regions, the Controversy shall be tried in the District Court located in Amsterdam, the Netherlands and the substantive laws of the Netherlands shall govern. Both parties hereby submit to the exclusive jurisdiction of the District Court in Amsterdam, the Netherlands and waive all defenses based on forum non conveniens.
(iv) ASIA PACIFIC. If both parties to this Agreement are entities incorporated in countries in the Asia Pacific region, the arbitration shall be held in Singapore under the then-applicable rules of the Singapore International Arbitration Centre and the substantive laws of Singapore will govern.
(v) OTHER REGIONS. In all other instances, the arbitration shall be held in New York City, New York, under the then-applicable international rules of the American Arbitration Association and the substantive laws of the State of Texas will govern.
For all arbitrations conducted hereunder: (a) the arbitration shall be conducted in English; (b) the relevant arbitral institution shall determine the number of arbitrators, but any Controversy in which the amount in dispute is greater than $10 million USD shall be decided by three arbitrators, with each party having the right to select one arbitrator; (c) the costs of such arbitration shall be borne equally, pending the arbitrator’s award; (d) the arbitration award rendered shall be final and binding on the parties, shall not be subject to appeal to any court and shall be enforceable in any court having jurisdiction over the parties; (e) the arbitration proceedings, award and pleadings shall all be confidential, unless disclosure of particular information is required for purposes of enforcing/challenging the award or to meet local securities law requirements; and (f) the party prevailing in arbitration shall be entitled to recover its reasonable attorneys’ fees and the necessary costs incurred in connection with the arbitration.
The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. Nothing in this Agreement shall be deemed as preventing either party from seeking immediate injunctive relief from any court having jurisdiction over the parties and the subject matter of the dispute.
12. The following BMC contracting entities apply to this Agreement:
Region | Contracting Entity | Address of Contracting Entity |
United States and Latin America South (not a specified Central or South America country below) | BMC Software, Inc. | 2103 CityWest Boulevard, Houston, Texas 77042 |
Canada | BMC Software Canada Inc. | 50 Minthorn Boulevard, Suite 200 Markham, Ontario L3T 7X8 Canada |
EMEA (Europe, Middle East and Africa) | BMC Software Distribution B.V. | Vision Plaza West, 2nd floor, Boeingavenue 220, 1119PN Schiphol-Rijk, The Netherlands |
Brazil | BMC Brasil Software Ltda. | Avenida Dra. Ruth Cardoso, n° 8.501, Condomínio Eldorado Business Tower, 22° andar, Pinheiros, São Paulo – SP, CEP: 05425-070 |
Mexico | BMC Software Distribution de México, S.A. de C.V. | Volcán 150, Piso 4, Col. Lomas de Chapultepec, C.P. 11000, Deleg. Miguel Hidalgo, Ciudad de México |
Argentina | BMC Software de Argentina S.A. | Ing. Butty 220 - Piso 18, Catalinas Plaza Buenos Aires, República de Argentina, C1001A |
S.E.A (Southeast Asia), Australia, New Zealand, Hong Kong, Taiwan | BMC Software Ireland Unlimited Company | Building 3, Cherrywood Business Park, Bray Road, Loughlinstown, CO. Dublin, D18 TF72 |
China | BMC Software (China) Limited | Room 502, Level 5, Tower W1, The Towers, Oriental Plaza, No. 1 East Chang An Ave., Dong Cheng Dist., Beijing 100738, China |
Japan | BMC Software K.K. | Harmony Tower 24th Floor, 1-32-2 Honcho, Nakano-ku, Tokyo, 164-8721 |
Korea | BMC Software Korea Ltd | 24th Fl., ASEM Tower, 1517, Yeongdong-daero,Gangnam-gu, Seoul 135-798, Korea South |
13. U.S. GOVERNMENT END USER RIGHTS. This Section applies only to acquisitions of the commercial Subscription Services subject to this Agreement by or on behalf of the United States Government, or by any prime contractor or subcontractor (at any tier) under any contract, grant, agreement or other activity with the United States Government. When Subscription Services are delivered or provided to the United States Government, the United States Government agrees that this commercial license Agreement and the Subscription Services governed by this Agreement are defined in accordance with and qualify as “commercial items” consisting of “commercial computer software” and “commercial computer software documentation” as outlined in FAR 12.211, FAR 12.212 and DFARS 227.7202-3, as applicable. The terms and conditions of this Agreement shall pertain to the United States Government’s use (including documentation or technical data), duplication, and disclosure of the Subscription Services, and shall supersede any conflicting contractual terms and conditions”.
14. DATA PROTECTION. The processing of Customer Content under this Agreement is governed by the BMC Data Processing Agreement set forth on the Order.
15. VERIFICATION. Customer agrees that BMC or its agent may monitor the Subscription Services to ensure Customer’s compliance with the terms of this Agreement. If such monitoring reveals that Customer has exceeded the Capacity for the Subscription Services, BMC may work with Customer to seek to reduce Customer’s usage so that it conforms to the Capacity limit for such Subscription Service. If, notwithstanding BMC’s efforts, Customer is unable or unwilling to abide by the Capacity limits for the Subscription Services, Customer will execute an Order for additional Capacity of such Subscription Services promptly upon BMC’s request.
16. NOTIFICATIONS. Any general notifications regarding technical matters from BMC to Customer will be sent to the Customer contact stated in the Customer Technical Contact Information section of the Order. The Customer contact in the Order has been assigned by Customer as the Customer contact for operational issues that may arise. Customer shall notify BMC of any change to the Customer contact details in writing, which may include via e-mail.
17. CONDUCTING BUSINESS WITH HONESTY AND INTEGRITY. BMC is committed to conducting business with honesty and integrity. BMC’s Code of Conduct set forth in https://www.bmc.com/legal/code-of-conduct.html governs the conduct of all officers, directors, and employees of BMC, and contingent workers and business partners acting on BMC’s behalf. BMC demonstrates its commitment to environmental stewardship by its global accreditation for ISO 14001:2015.
18. MISCELLANEOUS TERMS. The parties are independent contractors and this Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties. Customer will receive system notifications from BMC and its licensors, if applicable (i.e. planned downtime notices, etc). This Agreement, including the Attachments and Orders constitutes the entire agreement between Customer and BMC and supersedes any prior or contemporaneous negotiations or agreements, whether oral or written concerning the Subscription Services. There are no representations, promises, warranties, covenants, or undertakings between the parties other than those expressly set forth in this Agreement. There are no third-party beneficiaries to this Agreement; Customer is not entering into a contractual relationship with BMC’s licensors and BMC’s licensors have no liability to Customer. Except as provided in Section 2 above, no modification or waiver of any provision hereof will be effective unless made in a writing signed by both BMC and Customer. Customer has the right to assign this Agreement and all Orders in whole to an Affiliate, or to a successor in connection with (i) the sale of all or substantially all of the assets of that party or (ii) a merger by operation of law, by providing written notice to BMC. The assignee may not be a known direct competitor of BMC. The successor entity or Affiliate must agree in writing with BMC (in advance of the assignment) to be bound by the terms of this Agreement. Any Customer transfer or assignment except as expressly authorized above will be null and void. Should any provision of this Agreement be invalid or unenforceable, the remainder of the provisions will remain in effect. Any additional or conflicting terms of any Customer purchase order are rejected by BMC and do not apply. The Subscription Services may contain hyperlinks to websites controlled by parties other than BMC. BMC is not responsible for and does not endorse the content or accept any responsibility for Customer’s use of these websites. Customer should refer to the policies posted by other websites regarding privacy and other topics regarding data privacy before using them. Les parties exigent que la présente convention ainsi que les documents qui s’y rattachent soient rédigés en anglais.
Attachments incorporated into Agreement |
Attachment A – Platform Services Attachment |
Attachment B – Consulting Services Attachment |
Attachment C – On Premise Subscription Services Attachment |
PLATFORM SERVICES ATTACHMENT
to the
BMC CLOUD SERVICES MASTER AGREEMENT
Except as otherwise provided herein, the terms of the Cloud Services Master Agreement (the “Base Agreement”) are incorporated into this Platform Services attachment (the “Attachment”). Together, this Attachment and the Base Agreement (as incorporated into this Attachment) are referred to as the “Agreement” for purposes of Customer’s access and use of Platform Services, only if the Platform Services are set forth on an Order referencing the Base Agreement. For purposes of this Agreement, the term “Subscription Services” as defined in the Base Agreement shall be extended to include the Platform Services. In the event of a conflict between the Base Agreement and the terms of this Attachment, the terms of this Attachment will control for Customer’s access and use of the Platform Services only.
1. SCOPE. Subject to the terms of this Agreement, BMC will provide Customer with access to the Platform Service named in the applicable Order.
2. DEFINITIONS.
2.1 “Application” is the object code, its definitional structures, and data created to fulfill a particular purpose, which runs on the Platform Services. An Application may also include its documentation and User Guide.
2.2 “Customer Applications” means Applications that are owned or licensed by Customer, and which run on the Platform Services.
2.3 “Development Platform” means a BMC provided development platform which allows Customer to develop a custom application to run on the Platform Services. The Development Platform is a separate environment from the Platform Services.
2.4 “Platform” means the generally available BMC-provided PaaS platform and its capabilities to run Applications.
2.5 “Platform Services” means the specific Platform Services identified in the Order.
3. BMC PLATFORM SERVICES.
3.1 BMC Platform Services Support. BMC will provide Support only for Platform Services. Customer is responsible for its own support for Customer Applications.
4. CUSTOMER APPLICATIONS.
4.1 The terms contained in this section 4 apply only to Orders for Platform Services entitling Customers to develop and deploy Customer Applications onto the Platform Services. Any Customer Applications that run on the Platform Services are hereby excluded from the defined terms “Subscription Services” and “Platform Services”.
4.2 Development Platform. Customer may utilize the Development Platform to create an Application to run on the Platform Services. Customer’s use of the Development Platform is governed by the terms of this Agreement subject to the restrictions set forth in sections 4.2.1 to 4.2.6 below. Customer’s development of an Application must meet the best practices development guidelines set forth in the User Guide. Each Customer Application shall at all times materially conform to policies and best practices set forth in the User Guide. Prior to the deployment of any Customer Applications in a production or non-production environment of the Platform Services, Customer must conduct security and functional tests of each Customer Application and submit the results of such tests to BMC for review. BMC reserves the right to reject Customer’s deployment request of a Customer Application based on the results of Customer’s security and functional tests. Additionally, BMC reserves the right, during the term of this Agreement, to request Customer conduct additional security and functional tests and provide the results of said tests to BMC for review. Notwithstanding the foregoing, Customer must ensure that at all times Customer Applications are secure.
4.2.1 Scope of use. The right to access and use the Development Platform is granted solely for the purpose of performing non-production application development work on the Development Platform.
4.2.2 Restrictions of use. Customer agrees not to:
(i) use the Development Platform to (1) process production data or for any other production purposes, including but not limited to publishing digital applications, or (2) distribute applications;
(ii) use the Development Platform with data or information that has not been backed up; or
(iii) modify, delete or remove any ownership, title, trademark, patent or copyright notices.
4.2.3 Customer Responsibilities. Customer is responsible for acquiring all necessary and required licenses for the use of any third party software, source code and/or libraries Customer may use as part of its development with the Development Platform. In addition to its other rights and remedies, BMC reserves the right, without liability to Customer, to immediately, at any time and for any reason refresh Customer’s instance of the Development Platform. Upon BMC’s refreshing of Customer’s instance of the Development Platform, Customer may lose all Customer Content submitted to or stored in said instance of the Development Platform. Upon expiration or termination of the applicable Order, BMC may destroy any Customer Content submitted to or stored therein. Customer is responsible for backing up any development work with Customer Content outside of the Development Platform.
4.2.4 Open Source. Customer may not use any software, library, utility, tool, or other computer or program code (“Code”) with the Subscription Services that in any way that would (i) weaken BMC’s intellectual property rights in the Services, or (ii) require the Subscription Services to become or be disclosed or distributed as Open Source Software. For purposes of this Section, “Open Source Software” means any Code that is substantially similar to, (A) the Affero General Public License, (B) the GNU General Public License (GPL) or Lesser/Library GPL (LGPL), (C) the Artistic License (e.g. PERL), (D) the Mozilla Public License, (E) the Netscape Public License, (F) the Sun Community Source License (SCSL), (G) the Sun Standards License (SISL), or (H) any “copyleft” license, or any other license that requires as a condition of use, reproduction, modification, or distribution that such Code or other software or computer code distributed with it: (1) be disclosed or distributed in source code form; (2) be licensed for the purpose of creating derivative works; (3) be licensed under terms that allow reverse engineering, reverse assembly, or disassembly of any kind; (4) be subject to a patent non-assert or royalty-free patent license; or (iv) be redistributable at no charge.
4.2.5 No Support. BMC, its affiliates, or licensors do not provide Support for the Development Platform.
4.2.6 Disclaimer of Warranty, Limitation of Liability and Exclusive Remedy. Notwithstanding anything to the contrary in the applicable Order or this Agreement:
a. THE DEVELOPMENT PLATFORM IS PROVIDED “AS IS” WITHOUT ANY WARRANTY OF ANY KIND WHATSOEVER. BMC, ITS AFFILIATES AND LICENSORS DO NOT WARRANT THAT THE DEVELOPMENT PLATFORM WILL SATISFY CUSTOMER’S REQUIREMENTS, THAT THE DEVELOPMENT PLATFORM IS WITHOUT DEFECT, VIRUS OR ERROR FREE, WITHOUT DELAY, OR THAT THE OPERATION OF THE DEVELOPMENT PLATFORM WILL BE UNINTERUPTED. BMC, ITS AFFILIATES AND LICENSORS DISCLAIM ANY AND ALL REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, MADE WITH RESPECT TO THE DEVELOPMENT PLATFORM, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INTERFERENCE AND INFORMATION CONTENT; AND
b. NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY, FOR ANY CLAIM, LOSS, DAMAGE OR EXPENSE FOR INDIRECT, SPECIAL, CONSEQUENTIAL, PUNITIVE OR INCIDENTAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE DEVELOPMENT PLATFORM (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST COMPUTER USAGE TIME, AND DAMAGE TO, OR LOSS OF USE OF, DATA), EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EITHER PARTY’S ENTIRE LIABILITY AND THE OTHER PARTY’S EXCLUSIVE REMEDY FOR DIRECT DAMAGES ARISING OUT OF OR RELATED TO THE DEVELOPMENT PLATFORM, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, IS LIMITED TO $100.
4.3 License to Customer Applications. Subject to the terms and conditions of this Agreement, Customer hereby grants BMC a worldwide, limited, nonexclusive license during the term of the applicable Order for the Platform Services to host, copy, transmit, adapt and display Customer Applications solely for the purpose of fulfilling BMC’s obligations under this Agreement.
4.4 Functionality of Customer Applications. Customer is solely responsible for the operation of Customer Applications, including but not limited to any information stored in or transmitted by Customer Applications. Customer is responsible for monitoring the usage of each Customer Application. Customer is responsible for the configuration, functionality, performance, compliance with applicable data protection laws and security of all Customer Applications, including any interfaces used to connect to Customer Applications.
4.5 Customer Assistance. Customer will provide information or other materials related to a Customer Applications as reasonably requested by BMC to verify Customer’s compliance with the Agreement and the User Guide.
4.7 Suspension of Customer Applications. Customer’s use of the Platform Services may be immediately suspended and/or terminated due to (i) reasonable security threats regarding the Platform Services or Customer Applications, (ii) Customer Applications interfering with, disrupting or threatening the integrity or performance of the Subscription Services and/or the Platform Services, or (iii) violates the law, infringes or misappropriates the rights of any third party or otherwise violates a material term of the Agreement. In the event (i) or (ii) above apply to Customer Applications, Customer is required to remediate any such issue to BMC’s commercially reasonable satisfaction before use of Customer Applications can resume. BMC shall use reasonable commercial efforts to only suspend the non-conforming portion of the Platform Services.
4.8 CUSTOMER APPLICATIONS WARRANTIES. Customer warrants to BMC that: (a) each Customer Application will perform materially in accordance with the User Guide; (b) Customer has all rights in the Customer Content and Customer Applications necessary to grant the rights contemplated by this Agreement; (c) none of the Customer Content or Customer Applications or Users’ use of Customer Content or Customer Applications will violate the Agreement and the User Guide; and (d) Customer’s security and functional tests of Customer Applications was conducted in a commercially reasonable manner and the results of said tests provided to BMC for review are correct and valid.
ATTACHMENT B
CONSULTING SERVICES ATTACHMENT
to the
BMC CLOUD SERVICES MASTER AGREEMENT
Except as otherwise provided herein, the terms of the Cloud Services Master Agreement (the “Base Agreement”) are incorporated into this Consulting Services attachment (the “Attachment”). Together, this Attachment and the Base Agreement (as incorporated into this Attachment) are referred to as the “Agreement” for purposes of Customer’s purchase of Consulting Services, only if Consulting Services are set forth on an Order referencing the Base Agreement. For purposes of this Agreement, the term “Subscription Services” as defined in the Base Agreement shall be extended to include Consulting Services. In the event of a conflict between the Base Agreement and the terms of this Attachment, the terms of this Attachment will control for Customer’s purchase of Consulting Services only. The parties agree that the following Sections of the Base Agreement do not apply to the Consulting Services provided under this Attachment: Section 3.2 (Support), Section 4 (Fees and Payment), and Section 6 (Limited Warranty).
1. SCOPE. BMC agrees to render to Customer Consulting Services under the terms of this Agreement and as further described in an Order. BMC will render the Consulting Services in the location(s) as set forth in the Order. The performance of the Consulting Services will not relieve or alter the rights, obligations and responsibilities of Customer and of the BMC Affiliate providing Subscription Services and/or Licenses with respect to Subscription Services and/or Licenses under the applicable agreement.
2. SERVICE FEES AND EXPENSES. The fees payable to BMC for the Consulting Services to be rendered will be detailed in the Order. BMC will submit invoices to Customer for such fees and incurred expenses either upon completion of the Consulting Services, or at stated intervals, in any case in accordance with the applicable Order. Customer shall pay amounts invoiced within 30 days following receipt of the invoice.
3. EDUCATION. Customer may acquire Learning Pass Credits and Education Services (collectively, “BMC Education ”) on an Order. The BMC Education terms that govern such Orders are set forth in the Education Program Guide located at https://www.bmc.com/content/dam/bmc/education/education-program-guide.pdf, and is incorporated herein by this reference.
4. STATEMENTS OF WORK. Consulting Services may require the execution of a Statement of Work, in which case, such Statement of Work will be considered an Order for such Consulting Services. In the event of any conflict between the terms of a Statement of Work and this Agreement, the Agreement shall prevail except for matters of service fees, payment and reimbursement of expense, and termination of Consulting Services if further specified in the Statement of Work. During the term of an applicable Statement of Work, and for a period of six months thereafter, neither party will solicit for employment any employees, agents, or subcontractors of the other party or its affiliates who, within six months prior to such solicitation, had contact with the soliciting party based in whole or in part upon Consulting Services provided under this Agreement. The restrictions in this section shall be deemed not to apply to general solicitations for employment posted on Internet job sites or printed in newspapers or trade or professional journals.
5. PROPRIETARY RIGHTS AND RIGHTS IN DELIVERABLES.
5.1 Ownership of Materials Used in the Consulting Services. Unless specifically provided in an Order, Customer shall supply all of the facilities; equipment; supplies; computer programs; information about Customer’s business, systems, software and needs; and other materials necessary for completion of the Consulting Services (“Customer Property”), and BMC shall supply the people described in the Order, the know-how and the tools necessary to provide the Consulting Services, which may include, among other things, software, templates, questionnaires, graphs, methodologies, models, charts and reports (“BMC Property”). Customer Property and copies and modifications of Customer Property will remain the sole property of Customer or if applicable, Customer’s licensors, and BMC Property and copies and modifications of BMC Property will remain the sole property of BMC or if applicable, BMC’s licensors. Customer hereby grants to BMC a royalty-free, paid-up, non-exclusive, non-sublicensable and non-transferable license to use the Customer Property for the purpose of providing the Consulting Services.
5.2 Deliverables. Deliverables are those created under the Order, including, but not limited to, software, software scripts, routines, libraries or other code, or appliances, methodologies, templates, tools, policies, records, working papers, reports, methodologies, know-how, data, or other intellectual property, written or otherwise, including any derivative works or modifications to the above, whether pre-existing or created during the performance of the Consulting Services and all proprietary and intellectual property rights embedded therein delivered as a result of the Consulting Services as specified under the Order. BMC owns all right, title and interest in the Deliverables. Provided Customer has paid in full for the Consulting Services that resulted in the Deliverables, BMC will deliver the Deliverables to Customer in accordance with the applicable Order. Subject to compliance with the terms of this Agreement and the applicable Order, BMC grants Customer a non-exclusive, non-transferable, non-sublicensable, royalty-free, paid-up license to use, create derivative works of and modify all Deliverables solely for its internal business operations.
5.3 Copyright Notice. Each party agrees to reproduce the copyright notice and any other legend or ownership notice on any copies made under the licenses granted pursuant to this Section 5.
5.4 Retention. Customer acknowledges that BMC provides similar services to other customers and that nothing in this Agreement shall be construed as operating to prevent BMC from carrying on such business. Further BMC may use ideas, concepts, or know-how developed or acquired by BMC during performance of the Consulting Services to the extent by BMC’s personnel as impressions and general learning.
6. LIMITED WARRANTY. BMC warrants that it will perform the Consulting Services in conformance with generally accepted practices within the software services industry and in accordance with the Order. Customer must notify BMC of any breach of this warranty no later than 90 days after completion of the Consulting Services under the Order. Customer’s exclusive remedy and BMC’s entire liability under this warranty shall be for BMC to re-perform any non-conforming portion of the Consulting Services within a reasonable period of time, or if BMC cannot remedy the breach during such time period then refund the portion of the fee attributable to such non-conforming portion of the Consulting Services under the Order. This warranty will not apply to the extent Customer, its contractors or agents have modified any Deliverable, unless otherwise authorized by BMC in writing.
EXCEPT FOR THE EXPRESS WARRANTIES IN THIS AGREEMENT, THE CONSULTING SERVICES AND DELIVERABLES ARE PROVIDED WITH NO OTHER WARRANTIES WHATSOEVER, AND BMC, ITS AFFILIATES AND LICENSORS DISCLAIM ALL OTHER WARRANTIES, INCLUDING, FITNESS FOR A PARTICULAR PURPOSE AND IN THE UNITED STATES AND CANADA, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, AND NON-INFRINGEMENT.
7. INSURANCE. BMC will provide and maintain the following insurance, but only for losses arising out of BMC’s provision of Consulting Services under this Attachment: a) Worker’s Compensation insurance as prescribed by the law of the state applicable to the employees performing the Consulting Services; (b) Employer’s Liability insurance with a limit of $1,000,000 USD for each occurrence; (c) Commercial General Liability insurance with $1,000,000 USD per occurrence combined single limit and $2,000,000 USD general aggregate, including coverage for Products Liability and Completed Operations; (d) Automobile Liability insurance, including coverage for Hired and Non-owned vehicles of $1,000,000 USD for combined single limit for bodily injury and/or property damage; and (e) Professional Liability insurance covering Errors and Omissions in the amount of $1,000,000 USD for each occurrence and in the aggregate associated with Consulting Services performed under this Agreement.
8. MUTUAL INDEMNITY. Each party shall indemnify and hold harmless the other party from all claims, liabilities or expenses for physical damage to real property or tangible personal property and bodily injury, including death, to the extent caused by the negligence, gross negligence or willful misconduct of the indemnifying party’s employees or contractors arising out of this Agreement and while at the Customer’s premises. The foregoing indemnities are contingent upon the party seeking indemnity giving prompt written notice to the indemnifying party of any claim, demand or action, and cooperating with the indemnifying party in the defense or settlement of any such claim, demand or action.
9. INDEPENDENT CONTRACTOR. All of the services performed by BMC under this Agreement will be performed as an independent contractor.
ATTACHMENT C
ON PREMISE SUBSCRIPTIONS ATTACHMENT
to the
BMC CLOUD SERVICES MASTER AGREEMENT
Except as otherwise provided herein, the terms of the Cloud Services Master Agreement (the “Base Agreement”) are incorporated into this On Premise Subscriptions attachment (the “Attachment”). Together, this Attachment and the Base Agreement (as incorporated into this Attachment) are referred to as the “Agreement” for purposes of Customer’s purchase and ongoing use of On Premise Subscriptions, only if On Premise Subscriptions are set forth on an Order referencing the Base Agreement. For purposes of this Agreement, the term “Subscription Services” as defined in the Base Agreement shall be extended to include On Premise Subscriptions. In the event of a conflict between the Base Agreement and the terms of this Attachment, the terms of this Attachment will control for Customer’s purchase of On Premise Subscriptions only. The parties agree that the following Sections of the Base Agreement do not apply to the On Premise Subscriptions provided under this Attachment: Section 3.1 (Access Rights), Section 3.4 (Customer Responsibilities and Restrictions), Section 6 (Limited Warranty) and Section 14 (Verification).
1. DEFINITIONS.
1.1 “Authorized User” means Customer, Customer Affiliate(s), and their employees, consultants, contractors and agents that are bound by the terms and conditions no less restrictive than those contained herein and for whom Customer takes full responsibility. Authorized Users do not include service providers or outsourcers.
1.2 "Documentation" means the technical publications relating to the software, such as release notes, license entitlement descriptions, reference, user, installation, systems administrator and technical guidelines, included with the On Premise Subscription.
1.3 “Licensed Capacity” is the amount of each On Premise Subscription licensed as established in the Order.
1.4 “On Premise Subscription” is the object code of the software and all accompanying Documentation delivered to Customer, including all items delivered by BMC to Customer under Support.
2. LICENSE. Subject to the terms, conditions, payment requirements and restrictions set forth in this Agreement, BMC grants Customer a non-exclusive, non-transferable, non-sub-licensable term license to install in the Territory as defined in an Order, access and use the On Premise Subscription during the term specified on the Order (i) by Authorized User(s), (ii) up to the Licensed Capacity, (iii) for Customer’s and its Affiliates’ internal business operations, (iv) in accordance with the Documentation and the applicable Order, and (v) make a reasonable number of copies of the On Premise Subscription for archival purposes only (collectively a "License"). Affiliates may use and access the On Premise Subscriptions under the terms of this Agreement, and Customer is responsible for its Affiliates compliance with the terms of this Agreement.
3. RESTRICTIONS. Customer will not: (a) copy, operate or use any On Premise Subscription in excess of the applicable Licensed Capacity or other than as set forth in the License above; (b) modify, delete or remove any ownership, title, trademark, patent or copyright notices (“Identification”) from any On Premise Subscription, or copy or partial copy of an On Premise Subscription; (c) disassemble, reverse engineer, decompile or otherwise attempt to derive any On Premise Subscription source code from object code, except to the extent expressly permitted by applicable law despite this limitation without possibility of contractual waiver; (d) distribute, rent, lease, sublicense or provide the On Premise Subscription to any third party; (e) use the On Premise Subscriptions in an outsourcing or service bureau environment on behalf of non-Affiliate third parties, or allow the On Premise Subscriptions to be used by an outsourcing or service bureau provider on Customer’s behalf (without obtaining prior written approval from BMC); (f) provide a third party with the results of any functional evaluation, or performance tests, without BMC's prior written approval; or (g) attempt to disable or circumvent any of the licensing mechanisms within the On Premise Subscription.
4. ON PREMISE SUBSCRIPTION PERFORMANCE WARRANTY. BMC warrants that (a) the On Premise Subscription will perform in substantial accordance with its Documentation for a period of one year from the date of the first Order, (b) BMC has used commercially reasonable efforts consistent with industry standards to scan for and remove software viruses, and (c) other than passwords that may be required for the operation of the On Premise Subscription, BMC has not inserted any code that is not addressed in the Documentation and that is designed to delete, interfere with or disable the normal operation of the On Premise Subscription in accordance with the License. This warranty will not apply to any problems caused by hardware, Computers, or software other than the On Premise Subscription, or misuse of the On Premise Subscription, use of the On Premise Subscription other than as provided by the applicable License, modification of the On Premise Subscription, or claims made either outside the warranty period or not in compliance with the notice and access requirements set forth below. No warranty is provided for additional Licensed Capacity, On Premise Subscription provided pursuant to Support. BMC’s entire liability, and Customer’s exclusive remedy, for breach of the above warranty is limited to: BMC’s use of commercially reasonable efforts to have the On Premise Subscription perform in substantial accordance with its Documentation, or replacement of the non-conforming On Premise Subscription within a reasonable period of time, or if BMC cannot have the On Premise Subscription perform in substantial accordance with its Documentation replace the On Premise Subscription within such time period, then BMC will refund the amount paid by Customer for the License for that On Premise Subscription. Customer’s rights and BMC's obligations in this Section are conditioned upon Customer’s providing BMC during the warranty period (i) full cooperation and access to the On Premise Subscription in resolving any claim; and (ii) written notice addressed to the BMC Legal Department that includes notice of the claim, a complete description of the alleged defects sufficient to permit their reproduction in BMC’s development or support environment, and a specific reference to the Documentation to which such alleged defects are contrary.
EXCEPT FOR THE EXPRESS WARRANTIES IN THIS ATTACHMENT, THE ON PREMISE SUBSCRIPTION IS PROVIDED WITH NO OTHER WARRANTIES WHATSOEVER, AND BMC, ITS AFFILIATES AND LICENSORS DISCLAIM ALL OTHER WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE AND IN THE UNITED STATES AND CANADA, MERCHANTABILITY AND NON-INFRINGEMENT. BMC DOES NOT WARRANT THAT THE OPERATION OF THE ON PREMISE SUBSCRIPTION WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT ALL DEFECTS CAN BE CORRECTED.
5. DELIVERY. For On Premise Subscriptions that are delivered electronically, upon request from BMC, Customer agrees to provide BMC with documentation supporting that the designated On Premise Subscription was received electronically. If Customer accepts any On Premise Subscription in a non-electronic format, there may be an additional charge and it is the sole responsibility of Customer to bear any sales/use tax obligation, penalties, and interest. All On Premise Subscriptions are licensed FCA (“Free Carrier” as per Incoterms 2000) shipping point. The On Premise Subscriptions are accepted on the date BMC delivers the On Premise Subscription to the Customer either physically or by providing access codes for electronic download, whichever occurs first, however, such acceptance will not affect the On Premise Subscription Performance Warranty provided in this Agreement.
6. AUDIT. If requested by BMC, and not more than once a year, Customer agrees to deliver to BMC, within 30 days of such request, as specified by BMC either (a) periodic product usage reports generated from specific products or (b) written periodic product usage reports, to be provided solely when the product does not generate reports (“Report”). Additionally, if requested by BMC not more than once a year and upon at least ten days prior written notice to Customer, Customer agrees to allow BMC to perform an audit (“Audit”) to ensure compliance with the terms of this Agreement at the locations where the On Premise Subscriptions are installed, during normal business hours. to ensure compliance with the terms of this Agreement. Customer agrees to cooperate during any such Audit and to provide reasonable access to its information and systems.
Effective May 21st 2021 to September 6th 2021
DownloadTable of Contents
BMC CLOUD SERVICES MASTER AGREEMENT
THIS CLOUD SERVICES MASTER AGREEMENT (“AGREEMENT”) GOVERNS YOUR FREE TRIAL, IF ANY, OF THE SUBSCRIPTION SERVICES.
IF YOU PURCHASE THE SUBSCRIPTION SERVICES, THIS AGREEMENT WILL ALSO GOVERN YOUR PURCHASE AND ONGOING USE OF THE SUBSCRIPTION SERVICES.
BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SUBSCRIPTION SERVICES.
You may not access the Subscription Services if you are BMC’s direct competitor, except with BMC’s prior written consent. In addition, you may not access the Subscription Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.
This Agreement was last updated on May 21, 2021. This Agreement is between the entity or individual entering into this Agreement (“Customer”) and the BMC Contracting Entity for the applicable region as described in Section 12 (“BMC”). It is effective between Customer and BMC as of the date of your acceptance of this Agreement. If Customer has a fully executed BMC Cloud Services Master Agreement then such fully executed BMC Cloud Services Master Agreement supersedes and replaces any clickwrap or click-through agreements (or other similar agreements) that Customer may be required to accept as a part of accessing or using the Subscription Services. For Customer’s convenience, prior versions of this Agreement are available at https://www.bmc.com/legal/csma.html.
FREE TRIAL.
BMC may make the Subscription Services available to Customer on a trial basis free of charge. If BMC offers Customer a free trial, it will run until the earlier of (a) the end of the trial period stated on the trial registration web page or (b) the start date of any Order for purchase of the Subscription Services. Additional trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.
ANY DATA CUSTOMER ENTERS INTO THE SUBSCRIPTION SERVICES, AND ANY CUSTOMIZATIONS MADE TO THE SUBSCRIPTION SERVICES BY OR FOR CUSTOMER, DURING A FREE TRIAL MAY BE PERMANENTLY LOST.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THE AGREEMENT, DURING ANY FREE TRIAL PERIOD THE SUBSCRIPTION SERVICES ARE PROVIDED “AS IS” WITH NO WARRANTY.
1. DEFINITIONS.
1.1 “Affiliate” is an entity that controls, is controlled by or shares common control with BMC or Customer, where such control arises from the legal power to direct or cause the direction of the general management and policies of the company, partnership or legal entity.
1.2 "Subscription Services" means the generally available hosted service which packages web-based access and the right-to-use the supported applications, installed agents and associated reference, user and technical guides.
1.3 “Capacity” means the amount of access to the Subscription Services purchased as specified in an Order, which is counted in accordance with the Unit of Measure described in the Order.
1.4 “Customer Content” means all electronic data or information (a) submitted to the Subscription Services by Customer, a third party on behalf of Customer, or as directed by Customer or (b) collected, processed or returned by the Subscription Services .
1.5 “Order” means (i) the agreed ordering document for the purchase of the Subscription Services, (ii) that is subject to this Agreement, and (iii) that identifies the terms of the purchase and fees to be paid. The term “Order” includes Customer’s online registration for and purchase of the Subscription Services, If any.
1.6 “User Guide” means the online help, functional guide and technical specifications for the Subscription Services, as updated by BMC from time to time.
2. SCOPE. Subject to the terms of this Agreement, Customer may purchase and BMC will provide Customer with access to the Subscription Services as set forth in this Agreement and the applicable Order. Subject to the Attachments to this Agreement, Customer may also purchase BMC Platform Services, BMC Consulting Services and BMC On Premise Subscription Services. In the event of a direct conflict between any Order and the terms of this Agreement, the terms of the Order will control only if the Order is executed by an authorized representative of each party. Orders may be entered under this Agreement by and between (a) BMC or an Affiliate of BMC; and (b) Customer or an Affiliate of Customer. With respect to an Order, the terms “BMC” and “Customer” as used in this Agreement will be deemed to refer to the entities that execute that Order, the Order will be considered a two party agreement between such entities, and BMC will separately invoice the Customer named in the Order for the associated fees. Orders may also be placed via a BMC authorized reseller. Neither execution of this Agreement, nor anything contained herein, shall obligate either party to enter into any Orders.
3. ACCESS TO SUBSCRIPTION SERVICES.
3.1 Access Rights. Subject to Customer’s payment of applicable fees and to the terms of this Agreement, BMC will provide Customer with worldwide access to the Subscription Services in accordance with the Order (i) up to the Capacity, (ii) for Customer’s and its Affiliates’ internal business operations, (iii) in accordance with the User Guide and the applicable Order. Customer may exercise its rights under this Section 3.1 through its service providers, outsourcers, employees, consultants, contractors, agents, and Affiliates (all, “Users”).
3.2 BMC Subscription Services Support. BMC will provide the support described at http://www.bmc.com/support/review-policies (“Support”) to Customer for the Subscription Services.
3.3 Use of Subcontractors. Customer acknowledges and agrees that BMC uses subcontractors to provide portions of the Subscription Services. BMC will provide a list of its current subcontractors upon Customer’s written request. BMC is responsible for the performance of all subcontractors providing any of the Subscription Services.
3.4 Compliance with Laws. Each party shall comply with all applicable laws in the performance of its obligations under this Agreement.
3.5 Customer Responsibilities and Restrictions.
(a) Customer will (i) maintain the confidentiality of all authentications and passwords for the Subscription Services and immediately notify BMC if it becomes aware that an unauthorized party has gained access such authentications and passwords, (ii) be responsible for use of the Subscription Services by its Users in compliance with this Agreement, (iii) prevent unauthorized access to, or use of, the Subscription Services, and notify BMC promptly of any such unauthorized access or use, (iv) comply with all applicable laws in using the Subscription Services, and (v) be responsible for obtaining its own Apple Push Notification certificate, if the Subscription Services are used to manage devices running iOS. Customer is responsible for the creation and implementation of a privacy policy and end user agreement, if applicable, which will set forth the guidelines of how Customer uses and protects the data and personal information of its Users, and how said Users may utilize the Subscription Services.
(b) Customer will not (i) modify, copy or create derivative works based on the Subscription Services; (ii) create Internet “links” to or reproduce any content forming part of the Subscription Services, other than for its own internal business purposes; (iii) disassemble, reverse engineer, or decompile the Subscription Services or part thereof, except to the extent expressly permitted by applicable law despite this limitation without possibility of contractual waiver; (iv) interfere with or disrupt the integrity or performance of the Subscription Services; (vi) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortuous material, or send or store material in violation of any third party’s privacy rights via the Subscription Services; (vii) send or store viruses or malicious code via the Subscription Services; (viii) attempt to gain unauthorized access to the Subscription Services or its related software, systems, platforms or networks, including any form of security and/or penetration testing; (ix) use any components provided with the Subscription Services separately from the Subscription Services; or (x) distribute, rent, lease or provide the Subscription Services to any third party or use it in a service bureau, outsourcing environment, or for the processing of third party data .
4. FEES AND PAYMENT.
4.1 Fees. The fees payable for the Subscription Services and the payment period for such fees will be set forth in and paid in accordance with the Order. All payments are due within 30 days of the date of the invoice.
4.2 Late Fees. Late balances may, at BMC’s sole election, bear interest at a rate equal to the lesser of 1% per month or the maximum amount permitted by law.
4.3 Taxes. Customer will pay taxes imposed in connection with the fees paid for the Subscription Services, which are exclusive of these taxes.
4.4 Solution Providers. With regard to Subscription Services acquired by Customer through an authorized Solution Provider of BMC, notwithstanding anything to the contrary in sections 4.1 and 4.2 above, Customer will have no direct payment obligations to BMC for such fees.
5. TERM, SUSPENSION AND TERMINATION.
5.1 Term. This Agreement begins on the Effective Date and will remain in effect unless terminated pursuant to Section 5.2 below, regardless of the billing frequency selected in the Order.
5.2 Termination.
(a) Termination for Convenience. Customer may terminate this Agreement by providing BMC with at least 30 days prior written notice; provided, however, such termination will have no effect on Orders in effect at the time of such termination. Orders may not be terminated for convenience unless otherwise specified therein. Customer may notify BMC of its intent to terminate by emailing BMC at order_services@bmc.com.
(b) Termination for Cause. Either party may terminate this Agreement and/or an Order for cause upon 30 days’ written notice of a material breach to the other party if such breach remains uncured at the expiration of such period. In the event Customer terminates the Agreement and an Order for BMC’s material breach, BMC will refund the amount paid by Customer to BMC for the Subscription Services on such Order, pro-rated from the date of the notice of the termination.
5.3 Suspension of Subscription Services for Cause. In addition to its other rights and remedies, BMC reserves the right, without liability to Customer, to suspend any and all access to the Subscription Services if Customer commits a material breach of this Agreement and fails to cure the same within 30 days from Customer’s receipt of written notice of such breach from BMC. Provided however, that BMC may immediately suspend any and all access to the Subscription Services without any cure period if BMC determines in good faith that Customer’s material breach of the Agreement will cause damage to BMC, the Subscription Services, or any other customer.
5.4 Effects of Termination. Upon termination or expiration of any Order or this Agreement, all rights and Licenses granted thereunder will terminate and Customer will make no further use of the Subscription Services. No termination will relieve the Customer of the obligation to pay any fees accrued or payable to BMC pursuant to any Order. Upon written request by Customer made within 45 days after the effective date of termination, BMC will make the Customer Content available to Customer for retrieval in an industry standard format. After such 45-day period, BMC shall have no obligation to maintain any Customer Content and will thereafter delete Customer Content. Any terms in this Agreement which by their nature extend beyond termination of this Agreement will remain in effect until fulfilled.
5.5 Termination Assistance. Upon Customer’s request and upon (a) the expiration of an Order or (b) the termination of an Order for any reason other than Customer’s breach, BMC shall perform such services as the parties in good faith agree are reasonably necessary to facilitate the orderly transition of the Services to the successor service provider or to the Customer. BMC will provide any such services under the terms and conditions of the Agreement, and subject to payment of the then-current fees and charges, generally applicable to BMC’s performance of such services, as agreed between the parties at such time.
6. LIMITED WARRANTY.
6.1 Warranties and Limited Remedies. BMC warrants to Customer that:
(a) the online availability of the Subscription Services will be maintained in accordance with the service levels attached to the applicable Order, if any (the “Service Level Agreement” or “SLA”). Customer’s exclusive remedy and BMC’s sole obligation for breach of the warranty in this Section 6.1(a) is described in the Service Level Agreement;
(b) the Subscription Services (i) will perform in substantial accordance with the then-current on-line User Guide available via the Subscription Services and (ii) will be performed in a manner consistent with industry standards reasonably applicable to the provision thereof. Customer’s exclusive remedy and BMC’s sole obligation for breach of the warranty in this Section 6.1(b) will be BMC’s use of commercially reasonable efforts to have the Subscription Services perform in substantial accordance with the User Guide, or replace the non-conforming portion of the Subscription Services within 60 days from the written notice of claim, or if BMC cannot have the Subscription Services perform in substantial accordance with the User Guide or replace the Subscription Services within such time period, then Customer may terminate the non-performing Subscription Services, and upon such termination BMC will refund the amount paid by Customer for the Subscription Services, pro-rated from the date of the notice of the claim. Customer’s rights and BMC’s obligations in this Section 6.1(b) are conditioned upon Customer’s providing BMC with written notice of the claim, a complete description of the alleged defects and a specific reference to the User Guide to which such alleged defects are contrary; and
(c) In connection with the Subscription Services (i) it has used commercially reasonable efforts consistent with industry standards to scan for and promptly remove any software viruses for no charge and (ii) it has not inserted any Disabling Code. “Disabling Code” means computer code inserted by BMC, that is not addressed in the User Guide, and that is designed to expose data, delete, interfere with, and/or disable the normal operation of the Subscription Services. This Disabling Code warranty does not apply to BMC passwords necessary for the operation of the Subscription Services, or for any use by Customer outside the scope of this Agreement.
6.2 Disclaimer. CUSTOMER ACKNOWLEDGES THAT, EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, BMC, ITS AFFILIATES AND LICENSORS MAKE NO WARRANTY, EXPRESS, IMPLIED OR STATUTORY WITH RESPECT TO THE SUBSCRIPTION SERVICES OR USE THEREOF. BMC, ITS AFFILIATES AND LICENSORS HEREBY EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY THAT SUBSCRIPTION SERVICES WILL BE UNINTERRUPTED, ERROR FREE OR WITHOUT DELAY, AND THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INTERFERENCE, NON-INFRINGEMENT AND INFORMATION CONTENT.
7. PROPRIETARY RIGHTS AND CONFIDENTIALITY.
7.1 Proprietary Rights. BMC, its Affiliates or licensors retain all right, title and interest to the Subscription Services and all related intellectual property and proprietary rights. The Subscription Services are protected by applicable copyright, trade secret, industrial and other intellectual property laws. BMC owns all right, title and interest in all software, programming, documentation, templates, questionnaires, methodologies, models, charts, reports, ideas, features, content, functions, graphics and any other items provided as part of the Subscription Services (“ Service Items”) and access to and use of the relevant Service Items will be governed by the terms of this Agreement. Subject to (i) BMC’s or its licensor’s ownership of any Service Items and (ii) section 3.4 (b) (i) of the Agreement, Customer owns all rights, title, and interest in Customer Applications, including all proprietary and intellectual property rights. BMC reserves any rights not expressly granted to Customer. Customer shall not access the Subscription Services in order to build a competitive product or service or copy any ideas, features, functions or graphics of the Subscription Services. “ Confidential Information” means all proprietary or confidential information that is disclosed to the recipient (“Recipient”) by the discloser (“ Discloser”), and includes, among other things (i) any and all information relating to products or services provided by a Discloser, its customer-related and financial information, software code, flow charts, techniques, specifications, development and marketing plans, strategies, and forecasts; (ii) as to BMC, and its licensors, the Subscription Services and Service Items; and (iii) the terms of this Agreement, including without limitation, pricing information. Confidential Information does not include information that Recipient can show: (a) was rightfully in Recipient’s possession without any obligation of confidentiality before receipt from the Discloser; (b) is or becomes a matter of public knowledge through no fault of Recipient; (c) is rightfully received by Recipient from a third party without violation of a duty of confidentiality; or (d) is or was independently developed by or for Recipient. Recipient may not disclose Confidential Information of Discloser to any third party or use the Confidential Information in violation of this Agreement. The Recipient (i) will exercise the same degree of care and protection with respect to the Confidential Information of the Discloser that it exercises with respect to its own Confidential Information and (ii) will not, either directly or indirectly, disclose, copy, distribute, republish, or allow any third party to have access to any Confidential Information of the Discloser. Notwithstanding the foregoing, Recipient may disclose Discloser’s Confidential Information to Recipient’s employees and agents who have need to know provided that such employees and agents have legal obligations of confidentiality substantially the same (and in no case less protective) as the provisions of this Agreement.
7.2 Notification Obligation. If the Recipient becomes aware of any unauthorized use or disclosure of Discloser’s Confidential Information, then Recipient will promptly and fully notify the Discloser of all facts known to it concerning such unauthorized use or disclosure. In addition, if the Recipient or any of its employees or agents are required (by oral questions, interrogatories, requests for information, or documents in legal proceedings, subpoena, civil investigative demand, or other similar process) to disclose any of Discloser’s Confidential Information, the Recipient will not disclose the Discloser’s Confidential Information without providing the Discloser with commercially reasonable advance prior written notice to allow Discloser to seek a protective order or other appropriate remedy or to waive compliance with this provision. In any event, the Recipient will exercise its commercially reasonable efforts to preserve the confidentiality of the Discloser’s Confidential Information, including, without limitation, cooperating with Discloser to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded to the Confidential Information.
7.3 Customer Content. As between BMC and Customer, Customer owns all rights, title and interest in and to Customer Content. Customer Content is deemed Confidential Information under this Agreement. BMC will use the Customer Content only as necessary to provide the Subscription Services in accordance with this Agreement. At any time during the term of the Subscription Services, Customer may request copies of all Customer Content from the Subscription Services. Customer is responsible for complying with all legal and contractual requirements, including its agreements with third parties. With the exception of Customer Content collected by the Subscription Services, Customer is solely responsible for the transmission of Customer Content to BMC and to the Subscription Services. Customer is solely responsible for the encryption of any Customer Content during such transmission.
7.4 Suggestions. Customer agrees that BMC shall have a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into any BMC products or services any suggestions, enhancement requests, recommendations or other feedback provided by Customer relating to the Subscription Services.
8. DISCLAIMER OF DAMAGES AND LIMITS ON LIABILITY.
8.1 DISCLAIMER OF DAMAGES. NEITHER PARTY OR ITS AFFILIATES OR LICENSORS ARE LIABLE FOR ANY, SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES RELATING TO OR ARISING OUT OF THIS AGREEMENT OR THE SUBSCRIPTION SERVICES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST COMPUTER USAGE TIME, AND DAMAGE TO, OR LOSS OF USE OF, DATA), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND IRRESPECTIVE OF ANY NEGLIGENCE OF A PARTY OR WHETHER SUCH DAMAGES RESULT FROM A CLAIM ARISING UNDER TORT OR CONTRACT LAW. THE FOREGOING LIMITATIONS DO NOT APPLY TO EACH PARTY’S RESPONSIBILITIES IN SECTION 9, INFRINGEMENT BY A PARTY OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, GROSS NEGLIGENCE, WILLFUL MISCONDUCT, DEATH OR BODILY INJURY, ACTS OF FRAUD, NOR ANY LIABILITY WHICH MAY NOT BE EXCLUDED OR LIMITED BY LAW.
8.2 LIMITS ON LIABILITY. NEITHER PARTY OR ITS AFFILIATES OR LICENSORS SHALL HAVE AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SUBSCRIPTION SERVICES, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEEDING THE AMOUNTS ACTUALLY PAID BY AND DUE FROM CUSTOMER FOR THE SUBSCRIPTION SERVICES GIVING RISE TO LIABILITY PURSUANT TO THE ORDER(S) THAT ARE IN EFFECT AS OF THE DATE THE LIABILITY FIRST AROSE. THE FOREGOING LIMITATIONS DO NOT APPLY TO EACH PARTY’S RESPONSIBILITIES IN SECTION 9, INFRINGEMENT BY A PARTY OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, GROSS NEGLIGENCE, WILLFUL MISCONDUCT, DEATH OR BODILY INJURY, ACTS OF FRAUD, NOR ANY LIABILITY WHICH MAY NOT BE EXCLUDED OR LIMITED BY LAW.
9. INFRINGEMENT CLAIMS.
9.1 Indemnification by BMC . If a third party asserts a claim against Customer asserting that Customer’s use of the Subscription Services, including Platform Services, Deliverables and Licenses as defined in the Attachments to this Agreement, in accordance with this Agreement violates that third-party’s patent, trade secret or copyright rights (“Infringement Claim”), then BMC will, at its own expense: (a) defend or settle the Infringement Claim; and (b) indemnify Customer for any damages finally awarded against Customer based on infringement by the Subscription Services or Deliverables, including court costs and reasonable attorney’s fees. If BMC believes the Subscription Services may violate a right, then BMC will, at its expense: (a) modify the Subscription Services, or (b) procure the right to continue using the Subscription Services, and if (a) or (b) are not commercially reasonable, terminate Customer's right to use the Subscription Services and issue a pro-rata refund for the unexpired pre-paid portion of such Subscription Services.
9.2 Indemnification by Customer. Subject to the terms of this Agreement, if a third party asserts a claim against BMC asserting that the (i) Customer Content, (ii) Customer Applications as defined in Attachment A, (iii) Customer Property as defined in Attachment B or (iv) Customer’s use of the Subscription Services in violation of this Agreement violates that third-party’s patent, trade secret or copyright rights (“ Claim”), Customer will, at its own expense: (a) defend or settle the Claim; and (b) indemnify BMC for any damages finally awarded against BMC based on the Claim, including court costs and reasonable attorney’s fees.
9.3 Indemnity Process. Neither party’s obligations under this Section will apply if: (a) the indemnifying party’s legal department does not receive prompt, detailed written notice of the Infringement Claim/Claim from the party being indemnified, (b) the indemnifying party is not able to retain sole control of the defense of the Infringement Claim/Claim and all negotiations for its settlement or compromise, or (c) the indemnifying party does not receive all reasonable assistance from the party being indemnified. Neither party will bind the indemnified party to a monetary obligation in a settlement or compromise, or make an admission on behalf of the indemnified party, without obtaining that party’s prior consent.
9.4 THIS SECTION 9 CONTAINS EACH PARTY'S EXCLUSIVE REMEDIES AND THE INDEMNIFYING PARTY'S SOLE LIABILITY FOR INFRINGEMENT CLAIMS/CLAIMS, RESPECTIVELY.
10. EXPORT CONTROLS. Both parties agree to comply with applicable export regulations, including but not limited to U.S. Export Administration Regulations and the OFAC embargoes and sanctions lists. More information on BMC’s export compliance program may be found here: https://www.bmc.com/legal/export-compliance.html.
11. GOVERNING LAW AND DISPUTE RESOLUTION. Any controversy, dispute or claim arising out of or relating to this Agreement, or to the formation, interpretation, breach, termination, or validity thereof (each, a “Controversy”) will be resolved as follows:
(i) UNITED STATES. If both parties to this Agreement are entities incorporated under the law of any state in the United States, the Controversy shall be tried in either state or federal court located in Houston, Texas and the laws of the State of Texas shall govern. Both parties hereby submit to the exclusive jurisdiction of the courts in Houston, Texas and waive all defenses based on forum non conveniens. Notwithstanding the foregoing, if Customer is a state or local governmental entity or higher education institution and legally required to apply state law, then Customer’s state law will apply to the Controversy, without reference to conflict of law principles.
(ii) CANADA. If Customer is located in Canada (outside Quebec), then the law of the Province of Ontario law apply, without reference to conflict of law principles. If Customer is located in Quebec, then the laws of the Province Quebec will apply, without reference to conflict of law principles.
(iii) EMEA. If both parties to this Agreement are entities incorporated in countries in the Europe, Middle East, or Africa regions, the Controversy shall be tried in the District Court located in Amsterdam, the Netherlands and the substantive laws of the Netherlands shall govern. Both parties hereby submit to the exclusive jurisdiction of the District Court in Amsterdam, the Netherlands and waive all defenses based on forum non conveniens.
(iv) ASIA PACIFIC. If both parties to this Agreement are entities incorporated in countries in the Asia Pacific region, the arbitration shall be held in Singapore under the then-applicable rules of the Singapore International Arbitration Centre and the substantive laws of Singapore will govern.
(v) OTHER REGIONS. In all other instances, the arbitration shall be held in New York City, New York, under the then-applicable international rules of the American Arbitration Association and the substantive laws of the State of Texas will govern.
For all arbitrations conducted hereunder: (a) the arbitration shall be conducted in English; (b) the relevant arbitral institution shall determine the number of arbitrators, but any Controversy in which the amount in dispute is greater than $10 million USD shall be decided by three arbitrators, with each party having the right to select one arbitrator; (c) the costs of such arbitration shall be borne equally, pending the arbitrator’s award; (d) the arbitration award rendered shall be final and binding on the parties, shall not be subject to appeal to any court and shall be enforceable in any court having jurisdiction over the parties; (e) the arbitration proceedings, award and pleadings shall all be confidential, unless disclosure of particular information is required for purposes of enforcing/challenging the award or to meet local securities law requirements; and (f) the party prevailing in arbitration shall be entitled to recover its reasonable attorneys’ fees and the necessary costs incurred in connection with the arbitration.
The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. Nothing in this Agreement shall be deemed as preventing either party from seeking immediate injunctive relief from any court having jurisdiction over the parties and the subject matter of the dispute.
12. The following BMC contracting entities apply to this Agreement:
Region | Contracting Entity | Address of Contracting Entity |
United States and Latin America South (not a specified Central or South America country below) | BMC Software, Inc. | 2103 CityWest Boulevard, Houston, Texas 77042 |
Canada | BMC Software Canada Inc. | 50 Minthorn Boulevard, Suite 200 Markham, Ontario L3T 7X8 Canada |
EMEA (Europe, Middle East and Africa) | BMC Software Distribution B.V. | Vision Plaza West, 2nd floor, Boeingavenue 220, 1119PN Schiphol-Rijk, The Netherlands |
Brazil | BMC Brasil Software Ltda. | Avenida Dra. Ruth Cardoso, n° 8.501, Condomínio Eldorado Business Tower, 22° andar, Pinheiros, São Paulo – SP, CEP: 05425-070 |
Mexico | BMC Software Distribution de México, S.A. de C.V. | Volcán 150, Piso 4, Col. Lomas de Chapultepec, C.P. 11000, Deleg. Miguel Hidalgo, Ciudad de México |
Argentina | BMC Software de Argentina S.A. | Ing. Butty 220 - Piso 18, Catalinas Plaza Buenos Aires, República de Argentina, C1001A |
S.E.A (Southeast Asia), Australia, New Zealand, Hong Kong, Taiwan | BMC Software Ireland Unlimited Company | Building 3, Cherrywood Business Park, Bray Road, Loughlinstown, CO. Dublin, D18 TF72 |
China | BMC Software (China) Limited | Room 502, Level 5, Tower W1, The Towers, Oriental Plaza, No. 1 East Chang An Ave., Dong Cheng Dist., Beijing 100738, China |
Japan | BMC Software K.K. | Harmony Tower 24th Floor, 1-32-2 Honcho, Nakano-ku, Tokyo, 164-8721 |
Korea | BMC Software Korea Ltd | 24th Fl., ASEM Tower, 1517, Yeongdong-daero,Gangnam-gu, Seoul 135-798, Korea South |
13. U.S. GOVERNMENT END USER RIGHTS. This Section applies only to acquisitions of the commercial Subscription Services subject to this Agreement by or on behalf of the United States Government, or by any prime contractor or subcontractor (at any tier) under any contract, grant, agreement or other activity with the United States Government. When Subscription Services are delivered or provided to the United States Government, the United States Government agrees that this commercial license Agreement and the Subscription Services governed by this Agreement are defined in accordance with and qualify as “commercial items” consisting of “commercial computer software” and “commercial computer software documentation” as outlined in FAR 12.211, FAR 12.212 and DFARS 227.7202-3, as applicable. The terms and conditions of this Agreement shall pertain to the United States Government’s use (including documentation or technical data), duplication, and disclosure of the Subscription Services, and shall supersede any conflicting contractual terms and conditions”.
14. DATA PROTECTION. The processing of Customer Content under this Agreement is governed by the BMC Data Processing Agreement set forth on the Order.
15. VERIFICATION. Customer agrees that BMC or its agent may monitor the Subscription Services to ensure Customer’s compliance with the terms of this Agreement. If such monitoring reveals that Customer has exceeded the Capacity for the Subscription Services, BMC may work with Customer to seek to reduce Customer’s usage so that it conforms to the Capacity limit for such Subscription Service. If, notwithstanding BMC’s efforts, Customer is unable or unwilling to abide by the Capacity limits for the Subscription Services, Customer will execute an Order for additional Capacity of such Subscription Services promptly upon BMC’s request.
16. NOTIFICATIONS. Any general notifications regarding technical matters from BMC to Customer will be sent to the Customer contact stated in the Customer Technical Contact Information section of the Order. The Customer contact in the Order has been assigned by Customer as the Customer contact for operational issues that may arise. Customer shall notify BMC of any change to the Customer contact details in writing, which may include via e-mail.
17. CONDUCTING BUSINESS WITH HONESTY AND INTEGRITY. BMC is committed to conducting business with honesty and integrity. BMC’s Code of Conduct set forth in https://www.bmc.com/legal/code-of-conduct.html governs the conduct of all officers, directors, and employees of BMC, and contingent workers and business partners acting on BMC’s behalf. BMC demonstrates its commitment to environmental stewardship by its global accreditation for ISO 14001:2015.
18. MISCELLANEOUS TERMS. The parties are independent contractors and this Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties. Customer will receive system notifications from BMC and its licensors, if applicable (i.e. planned downtime notices, etc). This Agreement, including the Attachments and Orders constitutes the entire agreement between Customer and BMC and supersedes any prior or contemporaneous negotiations or agreements, whether oral or written concerning the Subscription Services. There are no representations, promises, warranties, covenants, or undertakings between the parties other than those expressly set forth in this Agreement. There are no third-party beneficiaries to this Agreement; Customer is not entering into a contractual relationship with BMC’s licensors and BMC’s licensors have no liability to Customer. Except as provided in Section 2 above, no modification or waiver of any provision hereof will be effective unless made in a writing signed by both BMC and Customer. Customer has the right to assign this Agreement and all Orders in whole to an Affiliate, or to a successor in connection with (i) the sale of all or substantially all of the assets of that party or (ii) a merger by operation of law, by providing written notice to BMC. The assignee may not be a known direct competitor of BMC. The successor entity or Affiliate must agree in writing with BMC (in advance of the assignment) to be bound by the terms of this Agreement. Any Customer transfer or assignment except as expressly authorized above will be null and void. Should any provision of this Agreement be invalid or unenforceable, the remainder of the provisions will remain in effect. Any additional or conflicting terms of any Customer purchase order are rejected by BMC and do not apply. The Subscription Services may contain hyperlinks to websites controlled by parties other than BMC. BMC is not responsible for and does not endorse the content or accept any responsibility for Customer’s use of these websites. Customer should refer to the policies posted by other websites regarding privacy and other topics regarding data privacy before using them. Les parties exigent que la présente convention ainsi que les documents qui s’y rattachent soient rédigés en anglais.
Attachments incorporated into Agreement |
Attachment A – Platform Services Attachment |
Attachment B – Consulting Services Attachment |
Attachment C – On Premise Subscription Services Attachment |
PLATFORM SERVICES ATTACHMENT
to the
BMC CLOUD SERVICES MASTER AGREEMENT
Except as otherwise provided herein, the terms of the Cloud Services Master Agreement (the “Base Agreement”) are incorporated into this Platform Services attachment (the “Attachment”). Together, this Attachment and the Base Agreement (as incorporated into this Attachment) are referred to as the “Agreement” for purposes of Customer’s access and use of Platform Services, only if the Platform Services are set forth on an Order referencing the Base Agreement. For purposes of this Agreement, the term “Subscription Services” as defined in the Base Agreement shall be extended to include the Platform Services. In the event of a conflict between the Base Agreement and the terms of this Attachment, the terms of this Attachment will control for Customer’s access and use of the Platform Services only.
1. SCOPE. Subject to the terms of this Agreement, BMC will provide Customer with access to the Platform Service named in the applicable Order.
2. DEFINITIONS.
2.1 “Application” is the object code, its definitional structures, and data created to fulfill a particular purpose, which runs on the Platform Services. An Application may also include its documentation and User Guide.
2.2 “Customer Applications” means Applications that are owned or licensed by Customer, and which run on the Platform Services.
2.3 “Development Platform” means a BMC provided development platform which allows Customer to develop a custom application to run on the Platform Services. The Development Platform is a separate environment from the Platform Services.
2.4 “Platform” means the generally available BMC-provided PaaS platform and its capabilities to run Applications.
2.5 “Platform Services” means the specific Platform Services identified in the Order.
3. BMC PLATFORM SERVICES.
3.1 BMC Platform Services Support. BMC will provide Support only for Platform Services. Customer is responsible for its own support for Customer Applications.
4. CUSTOMER APPLICATIONS.
4.1 The terms contained in this section 4 apply only to Orders for Platform Services entitling Customers to develop and deploy Customer Applications onto the Platform Services. Any Customer Applications that run on the Platform Services are hereby excluded from the defined terms “Subscription Services” and “Platform Services”.
4.2 Development Platform. Customer may utilize the Development Platform to create an Application to run on the Platform Services. Customer’s use of the Development Platform is governed by the terms of this Agreement subject to the restrictions set forth in sections 4.2.1 to 4.2.6 below. Customer’s development of an Application must meet the best practices development guidelines set forth in the User Guide. Each Customer Application shall at all times materially conform to policies and best practices set forth in the User Guide. Prior to the deployment of any Customer Applications in a production or non-production environment of the Platform Services, Customer must conduct security and functional tests of each Customer Application and submit the results of such tests to BMC for review. BMC reserves the right to reject Customer’s deployment request of a Customer Application based on the results of Customer’s security and functional tests. Additionally, BMC reserves the right, during the term of this Agreement, to request Customer conduct additional security and functional tests and provide the results of said tests to BMC for review. Notwithstanding the foregoing, Customer must ensure that at all times Customer Applications are secure.
4.2.1 Scope of use. The right to access and use the Development Platform is granted solely for the purpose of performing non-production application development work on the Development Platform.
4.2.2 Restrictions of use. Customer agrees not to:
(i) use the Development Platform to (1) process production data or for any other production purposes, including but not limited to publishing digital applications, or (2) distribute applications;
(ii) use the Development Platform with data or information that has not been backed up; or
(iii) modify, delete or remove any ownership, title, trademark, patent or copyright notices.
4.2.3 Customer Responsibilities. Customer is responsible for acquiring all necessary and required licenses for the use of any third party software, source code and/or libraries Customer may use as part of its development with the Development Platform. In addition to its other rights and remedies, BMC reserves the right, without liability to Customer, to immediately, at any time and for any reason refresh Customer’s instance of the Development Platform. Upon BMC’s refreshing of Customer’s instance of the Development Platform, Customer may lose all Customer Content submitted to or stored in said instance of the Development Platform. Upon expiration or termination of the applicable Order, BMC may destroy any Customer Content submitted to or stored therein. Customer is responsible for backing up any development work with Customer Content outside of the Development Platform.
4.2.4 Open Source. Customer may not use any software, library, utility, tool, or other computer or program code (“Code”) with the Subscription Services that in any way that would (i) weaken BMC’s intellectual property rights in the Services, or (ii) require the Subscription Services to become or be disclosed or distributed as Open Source Software. For purposes of this Section, “Open Source Software” means any Code that is substantially similar to, (A) the Affero General Public License, (B) the GNU General Public License (GPL) or Lesser/Library GPL (LGPL), (C) the Artistic License (e.g. PERL), (D) the Mozilla Public License, (E) the Netscape Public License, (F) the Sun Community Source License (SCSL), (G) the Sun Standards License (SISL), or (H) any “copyleft” license, or any other license that requires as a condition of use, reproduction, modification, or distribution that such Code or other software or computer code distributed with it: (1) be disclosed or distributed in source code form; (2) be licensed for the purpose of creating derivative works; (3) be licensed under terms that allow reverse engineering, reverse assembly, or disassembly of any kind; (4) be subject to a patent non-assert or royalty-free patent license; or (iv) be redistributable at no charge.
4.2.5 No Support. BMC, its affiliates, or licensors do not provide Support for the Development Platform.
4.2.6 Disclaimer of Warranty, Limitation of Liability and Exclusive Remedy. Notwithstanding anything to the contrary in the applicable Order or this Agreement:
a. THE DEVELOPMENT PLATFORM IS PROVIDED “AS IS” WITHOUT ANY WARRANTY OF ANY KIND WHATSOEVER. BMC, ITS AFFILIATES AND LICENSORS DO NOT WARRANT THAT THE DEVELOPMENT PLATFORM WILL SATISFY CUSTOMER’S REQUIREMENTS, THAT THE DEVELOPMENT PLATFORM IS WITHOUT DEFECT, VIRUS OR ERROR FREE, WITHOUT DELAY, OR THAT THE OPERATION OF THE DEVELOPMENT PLATFORM WILL BE UNINTERUPTED. BMC, ITS AFFILIATES AND LICENSORS DISCLAIM ANY AND ALL REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, MADE WITH RESPECT TO THE DEVELOPMENT PLATFORM, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INTERFERENCE AND INFORMATION CONTENT; AND
b. NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY, FOR ANY CLAIM, LOSS, DAMAGE OR EXPENSE FOR INDIRECT, SPECIAL, CONSEQUENTIAL, PUNITIVE OR INCIDENTAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE DEVELOPMENT PLATFORM (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST COMPUTER USAGE TIME, AND DAMAGE TO, OR LOSS OF USE OF, DATA), EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EITHER PARTY’S ENTIRE LIABILITY AND THE OTHER PARTY’S EXCLUSIVE REMEDY FOR DIRECT DAMAGES ARISING OUT OF OR RELATED TO THE DEVELOPMENT PLATFORM, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, IS LIMITED TO $100.
4.3 License to Customer Applications. Subject to the terms and conditions of this Agreement, Customer hereby grants BMC a worldwide, limited, nonexclusive license during the term of the applicable Order for the Platform Services to host, copy, transmit, adapt and display Customer Applications solely for the purpose of fulfilling BMC’s obligations under this Agreement.
4.4 Functionality of Customer Applications. Customer is solely responsible for the operation of Customer Applications, including but not limited to any information stored in or transmitted by Customer Applications. Customer is responsible for monitoring the usage of each Customer Application. Customer is responsible for the configuration, functionality, performance, compliance with applicable data protection laws and security of all Customer Applications, including any interfaces used to connect to Customer Applications.
4.5 Customer will provide information or other materials related to a Customer Applications as reasonably requested by BMC to verify Customer’s compliance with the Agreement and the User Guide.
4.7 Suspension of Customer Applications. Customer’s use of the Platform Services may be immediately suspended and/or terminated due to (i) reasonable security threats regarding the Platform Services or Customer Applications, (ii) Customer Applications interfering with, disrupting or threatening the integrity or performance of the Subscription Services and/or the Platform Services, or (iii) violates the law, infringes or misappropriates the rights of any third party or otherwise violates a material term of the Agreement. In the event (i) or (ii) above apply to Customer Applications, Customer is required to remediate any such issue to BMC’s commercially reasonable satisfaction before use of Customer Applications can resume. BMC shall use reasonable commercial efforts to only suspend the non-conforming portion of the Platform Services.
4.8 CUSTOMER APPLICATIONS WARRANTIES. Customer warrants to BMC that: (a) each Customer Application will perform materially in accordance with the User Guide; (b) Customer has all rights in the Customer Content and Customer Applications necessary to grant the rights contemplated by this Agreement; (c) none of the Customer Content or Customer Applications or Users’ use of Customer Content or Customer Applications will violate the Agreement and the User Guide; and (d) Customer’s security and functional tests of Customer Applications was conducted in a commercially reasonable manner and the results of said tests provided to BMC for review are correct and valid.
ATTACHMENT B
CONSULTING SERVICES ATTACHMENT
to the
BMC CLOUD SERVICES MASTER AGREEMENT
Except as otherwise provided herein, the terms of the Cloud Services Master Agreement (the “Base Agreement”) are incorporated into this Consulting Services attachment (the “Attachment”). Together, this Attachment and the Base Agreement (as incorporated into this Attachment) are referred to as the “Agreement” for purposes of Customer’s purchase of Consulting Services, only if Consulting Services are set forth on an Order referencing the Base Agreement. For purposes of this Agreement, the term “Subscription Services” as defined in the Base Agreement shall be extended to include Consulting Services. In the event of a conflict between the Base Agreement and the terms of this Attachment, the terms of this Attachment will control for Customer’s purchase of Consulting Services only. The parties agree that the following Sections of the Base Agreement do not apply to the Consulting Services provided under this Attachment: Section 3.2 (Support), Section 4 (Fees and Payment), and Section 6 (Limited Warranty).
1. SCOPE. BMC agrees to render to Customer Consulting Services under the terms of this Agreement and as further described in an Order. BMC will render the Consulting Services in the location(s) as set forth in the Order. The performance of the Consulting Services will not relieve or alter the rights, obligations and responsibilities of Customer and of the BMC Affiliate providing Subscription Services and/or Licenses with respect to Subscription Services and/or Licenses under the applicable agreement.
2. SERVICE FEES AND EXPENSES. The fees payable to BMC for the Consulting Services to be rendered will be detailed in the Order. BMC will submit invoices to Customer for such fees and incurred expenses either upon completion of the Consulting Services, or at stated intervals, in any case in accordance with the applicable Order. Customer shall pay amounts invoiced within 30 days following receipt of the invoice.
3. EDUCATION. Customer may acquire Learning Pass Credits and Education Services (collectively, “BMC Education ”) on an Order. The BMC Education terms that govern such Orders are set forth in the Education Program Guide located at https://www.bmc.com/content/dam/bmc/education/education-program-guide.pdf, and is incorporated herein by this reference.
4. STATEMENTS OF WORK. Consulting Services may require the execution of a Statement of Work, in which case, such Statement of Work will be considered an Order for such Consulting Services. In the event of any conflict between the terms of a Statement of Work and this Agreement, the Agreement shall prevail except for matters of service fees, payment and reimbursement of expense, and termination of Consulting Services if further specified in the Statement of Work. During the term of an applicable Statement of Work, and for a period of six months thereafter, neither party will solicit for employment any employees, agents, or subcontractors of the other party or its affiliates who, within six months prior to such solicitation, had contact with the soliciting party based in whole or in part upon Consulting Services provided under this Agreement. The restrictions in this section shall be deemed not to apply to general solicitations for employment posted on Internet job sites or printed in newspapers or trade or professional journals.
5. PROPRIETARY RIGHTS AND RIGHTS IN DELIVERABLES.
5.1 Ownership of Materials Used in the Consulting Services. Unless specifically provided in an Order, Customer shall supply all of the facilities; equipment; supplies; computer programs; information about Customer’s business, systems, software and needs; and other materials necessary for completion of the Consulting Services (“Customer Property”), and BMC shall supply the people described in the Order, the know-how and the tools necessary to provide the Consulting Services, which may include, among other things, software, templates, questionnaires, graphs, methodologies, models, charts and reports (“BMC Property”). Customer Property and copies and modifications of Customer Property will remain the sole property of Customer or if applicable, Customer’s licensors, and BMC Property and copies and modifications of BMC Property will remain the sole property of BMC or if applicable, BMC’s licensors. Customer hereby grants to BMC a royalty-free, paid-up, non-exclusive, non-sublicensable and non-transferable license to use the Customer Property for the purpose of providing the Consulting Services.
5.2 Deliverables. Deliverables are those created under the Order, including, but not limited to, software, software scripts, routines, libraries or other code, or appliances, methodologies, templates, tools, policies, records, working papers, reports, methodologies, know-how, data, or other intellectual property, written or otherwise, including any derivative works or modifications to the above, whether pre-existing or created during the performance of the Consulting Services and all proprietary and intellectual property rights embedded therein delivered as a result of the Consulting Services as specified under the Order. BMC owns all right, title and interest in the Deliverables. Provided Customer has paid in full for the Consulting Services that resulted in the Deliverables, BMC will deliver the Deliverables to Customer in accordance with the applicable Order. Subject to compliance with the terms of this Agreement and the applicable Order, BMC grants Customer a non-exclusive, non-transferable, non-sublicensable, royalty-free, paid-up license to use, create derivative works of and modify all Deliverables solely for its internal business operations.
5.3 Copyright Notice. Each party agrees to reproduce the copyright notice and any other legend or ownership notice on any copies made under the licenses granted pursuant to this Section 5.
5.4 Retention. Customer acknowledges that BMC provides similar services to other customers and that nothing in this Agreement shall be construed as operating to prevent BMC from carrying on such business. Further BMC may use ideas, concepts, or know-how developed or acquired by BMC during performance of the Consulting Services to the extent by BMC’s personnel as impressions and general learning.
6. LIMITED WARRANTY. BMC warrants that it will perform the Consulting Services in conformance with generally accepted practices within the software services industry and in accordance with the Order. Customer must notify BMC of any breach of this warranty no later than 90 days after completion of the Consulting Services under the Order. Customer’s exclusive remedy and BMC’s entire liability under this warranty shall be for BMC to re-perform any non-conforming portion of the Consulting Services within a reasonable period of time, or if BMC cannot remedy the breach during such time period then refund the portion of the fee attributable to such non-conforming portion of the Consulting Services under the Order. This warranty will not apply to the extent Customer, its contractors or agents have modified any Deliverable, unless otherwise authorized by BMC in writing.
THIS WARRANTY AND CONDITION IS IN LIEU OF ALL OTHER WARRANTIES AND CONDITIONS. THERE ARE NO OTHER EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS, INCLUDING THE IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
7. INSURANCE. BMC will provide and maintain the following insurance, but only for losses arising out of BMC’s provision of Consulting Services under this Attachment:
7.1 Worker’s Compensation insurance as prescribed by the law of the state applicable to the employees performing the Consulting Services;
7.2 Employer’s Liability insurance with a limit of one million US dollars ($1,000,000) for each occurrence;
7.3 Commercial General Liability insurance with one million US dollars ($1,000,000) per occurrence combined single limit and two million US dollars ($2,000,000) general aggregate, including coverage for Products Liability and Completed Operations;
7.4 Automobile Liability insurance, including coverage for Hired and Non-owned vehicles of one million US dollars ($1,000,000) for combined single limit for bodily injury and/or property damage; and
7.5 Professional Liability insurance covering Errors and Omissions in the amount of one million US dollars ($1,000,000) for each occurrence and in the aggregate associated with Consulting Services performed under this AGREEMENT.
8. MUTUAL INDEMNITY. Each party shall indemnify and hold harmless the other party from all claims, liabilities or expenses for physical damage to real property or tangible personal property and bodily injury, including death, to the extent caused by the negligence, gross negligence or willful misconduct of the indemnifying party’s employees or contractors arising out of this Agreement and while at the Customer’s premises. The foregoing indemnities are contingent upon the party seeking indemnity giving prompt written notice to the indemnifying party of any claim, demand or action, and cooperating with the indemnifying party in the defense or settlement of any such claim, demand or action.
9. INDEPENDENT CONTRACTOR. All of the services performed by BMC under this Agreement will be performed as an independent contractor.
ATTACHMENT C
ON PREMISE SUBSCRIPTIONS ATTACHMENT
to the
BMC CLOUD SERVICES MASTER AGREEMENT
Except as otherwise provided herein, the terms of the Cloud Services Master Agreement (the “Base Agreement”) are incorporated into this On Premise Subscriptions attachment (the “Attachment”). Together, this Attachment and the Base Agreement (as incorporated into this Attachment) are referred to as the “Agreement” for purposes of Customer’s purchase and ongoing use of On Premise Subscriptions, only if On Premise Subscriptions are set forth on an Order referencing the Base Agreement. For purposes of this Agreement, the term “Subscription Services” as defined in the Base Agreement shall be extended to include On Premise Subscriptions. In the event of a conflict between the Base Agreement and the terms of this Attachment, the terms of this Attachment will control for Customer’s purchase of On Premise Subscriptions only. The parties agree that the following Sections of the Base Agreement do not apply to the On Premise Subscriptions provided under this Attachment: Section 3.1 (Access Rights), Section 3.4 (Customer Responsibilities and Restrictions), Section 6 (Limited Warranty) and Section 14 (Verification).
1. DEFINITIONS.
1.1 “Authorized User” means Customer, Customer Affiliate(s), and their employees, consultants, contractors and agents that are bound by the terms and conditions no less restrictive than those contained herein and for whom Customer takes full responsibility. Authorized Users do not include service providers or outsourcers.
1.2 "Documentation" means the technical publications relating to the software, such as release notes, license entitlement descriptions, reference, user, installation, systems administrator and technical guidelines, included with the On Premise Subscription.
1.3 “Licensed Capacity” is the amount of each On Premise Subscription licensed as established in the Order.
1.4 “On Premise Subscription” is the object code of the software and all accompanying Documentation delivered to Customer, including all items delivered by BMC to Customer under Support.
2. LICENSE. Subject to the terms, conditions, payment requirements and restrictions set forth in this Agreement, BMC grants Customer a non-exclusive, non-transferable, non-sub-licensable term license to install in the Territory as defined in an Order, access and use the On Premise Subscription during the term specified on the Order (i) by Authorized User(s), (ii) up to the Licensed Capacity, (iii) for Customer’s and its Affiliates’ internal business operations, (iv) in accordance with the Documentation and the applicable Order, and (v) make a reasonable number of copies of the On Premise Subscription for archival purposes only (collectively a "License"). Affiliates may use and access the On Premise Subscriptions under the terms of this Agreement, and Customer is responsible for its Affiliates compliance with the terms of this Agreement.
3. RESTRICTIONS. Customer will not: (a) copy, operate or use any On Premise Subscription in excess of the applicable Licensed Capacity or other than as set forth in the License above; (b) modify, delete or remove any ownership, title, trademark, patent or copyright notices (“Identification”) from any On Premise Subscription, or copy or partial copy of an On Premise Subscription; (c) disassemble, reverse engineer, decompile or otherwise attempt to derive any On Premise Subscription source code from object code, except to the extent expressly permitted by applicable law despite this limitation without possibility of contractual waiver; (d) distribute, rent, lease, sublicense or provide the On Premise Subscription to any third party; (e) use the On Premise Subscriptions in an outsourcing or service bureau environment on behalf of non-Affiliate third parties, or allow the On Premise Subscriptions to be used by an outsourcing or service bureau provider on Customer’s behalf (without obtaining prior written approval from BMC); (f) provide a third party with the results of any functional evaluation, or performance tests, without BMC's prior written approval; or (g) attempt to disable or circumvent any of the licensing mechanisms within the On Premise Subscription.
4. ON PREMISE SUBSCRIPTION PERFORMANCE WARRANTY. BMC warrants that (a) the On Premise Subscription will perform in substantial accordance with its Documentation for a period of one year from the date of the first Order, (b) BMC has used commercially reasonable efforts consistent with industry standards to scan for and remove software viruses, and (c) other than passwords that may be required for the operation of the On Premise Subscription, BMC has not inserted any code that is not addressed in the Documentation and that is designed to delete, interfere with or disable the normal operation of the On Premise Subscription in accordance with the License. This warranty will not apply to any problems caused by hardware, Computers, or software other than the On Premise Subscription, or misuse of the On Premise Subscription, use of the On Premise Subscription other than as provided by the applicable License, modification of the On Premise Subscription, or claims made either outside the warranty period or not in compliance with the notice and access requirements set forth below. No warranty is provided for additional Licensed Capacity, On Premise Subscription provided pursuant to Support. BMC’s entire liability, and Customer’s exclusive remedy, for breach of the above warranty is limited to: BMC’s use of commercially reasonable efforts to have the On Premise Subscription perform in substantial accordance with its Documentation, or replacement of the non-conforming On Premise Subscription within a reasonable period of time, or if BMC cannot have the On Premise Subscription perform in substantial accordance with its Documentation replace the On Premise Subscription within such time period, then BMC will refund the amount paid by Customer for the License for that On Premise Subscription. Customer’s rights and BMC's obligations in this Section are conditioned upon Customer’s providing BMC during the warranty period (i) full cooperation and access to the On Premise Subscription in resolving any claim; and (ii) written notice addressed to the BMC Legal Department that includes notice of the claim, a complete description of the alleged defects sufficient to permit their reproduction in BMC’s development or support environment, and a specific reference to the Documentation to which such alleged defects are contrary.
EXCEPT FOR THE EXPRESS WARRANTIES IN THIS ATTACHMENT, THE ON PREMISE SUBSCRIPTION IS PROVIDED WITH NO OTHER WARRANTIES WHATSOEVER, AND BMC, ITS AFFILIATES AND LICENSORS DISCLAIM ALL OTHER WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE AND IN THE UNITED STATES AND CANADA, MERCHANTABILITY AND NON-INFRINGEMENT. BMC DOES NOT WARRANT THAT THE OPERATION OF THE ON PREMISE SUBSCRIPTION WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT ALL DEFECTS CAN BE CORRECTED.
5. DELIVERY. For On Premise Subscriptions that are delivered electronically, upon request from BMC, Customer agrees to provide BMC with documentation supporting that the designated On Premise Subscription was received electronically. If Customer accepts any On Premise Subscription in a non-electronic format, there may be an additional charge and it is the sole responsibility of Customer to bear any sales/use tax obligation, penalties, and interest. All On Premise Subscriptions are licensed FCA (“Free Carrier” as per Incoterms 2000) shipping point. The On Premise Subscriptions are accepted on the date BMC delivers the On Premise Subscription to the Customer either physically or by providing access codes for electronic download, whichever occurs first, however, such acceptance will not affect the On Premise Subscription Performance Warranty provided in this Agreement.
6. AUDIT. If requested by BMC, and not more than once a year, Customer agrees to deliver to BMC, within 30 days of such request, as specified by BMC either (a) periodic product usage reports generated from specific products or (b) written periodic product usage reports, to be provided solely when the product does not generate reports (“Report”). Additionally, if requested by BMC not more than once a year and upon at least ten days prior written notice to Customer, Customer agrees to allow BMC to perform an audit (“Audit”) to ensure compliance with the terms of this Agreement at the locations where the On Premise Subscriptions are installed, during normal business hours. to ensure compliance with the terms of this Agreement. Customer agrees to cooperate during any such Audit and to provide reasonable access to its information and systems.
Effective March 11th 2021 to May 21st 2021
DownloadTable of Contents
BMC CLOUD SERVICES MASTER AGREEMENT
THIS CLOUD SERVICES MASTER AGREEMENT (“AGREEMENT”) GOVERNS YOUR FREE TRIAL, IF ANY, OF THE SUBSCRIPTION SERVICES.
IF YOU PURCHASE THE SUBSCRIPTION SERVICES, THIS AGREEMENT WILL ALSO GOVERN YOUR PURCHASE AND ONGOING USE OF THE SUBSCRIPTION SERVICES.
BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SUBSCRIPTION SERVICES.
You may not access the Subscription Services if you are BMC’s direct competitor, except with BMC’s prior written consent. In addition, you may not access the Subscription Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.
This Agreement was last updated on March 11, 2021. This Agreement is between the entity or individual entering into this Agreement (“Customer”) and the BMC Contracting Entity for the applicable region as described in Section 12 (“BMC”). It is effective between Customer and BMC as of the date of your acceptance of this Agreement. If Customer has a fully executed BMC Cloud Services Master Agreement then such fully executed BMC Cloud Services Master Agreement supersedes and replaces any clickwrap or click-through agreements (or other similar agreements) that Customer may be required to accept as a part of accessing or using the Subscription Services. For Customer’s convenience, prior versions of this Agreement are available at https://www.bmc.com/legal/csma.html.
FREE TRIAL.
BMC may make the Subscription Services available to Customer on a trial basis free of charge. If BMC offers Customer a free trial, it will run until the earlier of (a) the end of the trial period stated on the trial registration web page or (b) the start date of any Order for purchase of the Subscription Services. Additional trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.
ANY DATA CUSTOMER ENTERS INTO THE SUBSCRIPTION SERVICES, AND ANY CUSTOMIZATIONS MADE TO THE SUBSCRIPTION SERVICES BY OR FOR CUSTOMER, DURING A FREE TRIAL MAY BE PERMANENTLY LOST.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THE AGREEMENT, DURING ANY FREE TRIAL PERIOD THE SUBSCRIPTION SERVICES ARE PROVIDED “AS IS” WITH NO WARRANTY.
1. DEFINITIONS.
1.1 “Affiliate” is an entity that controls, is controlled by or shares common control with BMC or Customer, where such control arises from the legal power to direct or cause the direction of the general management and policies of the company, partnership or legal entity.
1.2 "Subscription Services" means the generally available hosted service which packages web-based access and the right-to-use the supported applications, installed agents and associated reference, user and technical guides.
1.3 “Capacity” means the amount of access to the Subscription Services purchased as specified in an Order, which is counted in accordance with the Unit of Measure described in the Order.
1.4 “Customer Content” means all electronic data or information (a) submitted to the Subscription Services by Customer, a third party on behalf of Customer, or as directed by Customer or (b) collected, processed or returned by the Subscription Services .
1.5 “Order” means (i) the agreed ordering document for the purchase of the Subscription Services, (ii) that is subject to this Agreement, and (iii) that identifies the terms of the purchase and fees to be paid. The term “Order” includes Customer’s online registration for and purchase of the Subscription Services, If any.
1.6 “User Guide” means the online help, functional guide and technical specifications for the Subscription Services, as updated by BMC from time to time.
2. SCOPE. Subject to the terms of this Agreement, Customer may purchase and BMC will provide Customer with access to the Subscription Services as set forth in this Agreement and the applicable Order. Subject to the Attachments to this Agreement, Customer may also purchase BMC Platform Services, BMC Consulting Services and BMC On Premise Subscription Services. In the event of a direct conflict between any Order and the terms of this Agreement, the terms of the Order will control only if the Order is executed by an authorized representative of each party. Orders may be entered under this Agreement by and between (a) BMC or an Affiliate of BMC; and (b) Customer or an Affiliate of Customer. With respect to an Order, the terms “BMC” and “Customer” as used in this Agreement will be deemed to refer to the entities that execute that Order, the Order will be considered a two party agreement between such entities, and BMC will separately invoice the Customer named in the Order for the associated fees. Orders may also be placed via a BMC authorized reseller. Neither execution of this Agreement, nor anything contained herein, shall obligate either party to enter into any Orders.
3. ACCESS TO SUBSCRIPTION SERVICES.
3.1 Access Rights. Subject to Customer’s payment of applicable fees and to the terms of this Agreement, BMC will provide Customer with worldwide access to the Subscription Services in accordance with the Order (i) up to the Capacity, (ii) for Customer’s and its Affiliates’ internal business operations, (iii) in accordance with the User Guide and the applicable Order. Customer may exercise its rights under this Section 3.1 through its service providers, outsourcers, employees, consultants, contractors, agents, and Affiliates (all, “Users”).
3.2 BMC Subscription Services Support. BMC will provide the support described at http://www.bmc.com/support/review-policies (“Support”) to Customer for the Subscription Services.
3.3 Use of Subcontractors. Customer acknowledges and agrees that BMC uses subcontractors to provide portions of the Subscription Services. BMC will provide a list of its current subcontractors upon Customer’s written request. BMC is responsible for the performance of all subcontractors providing any of the Subscription Services.
3.4 Compliance with Laws. Each party shall comply with all applicable laws in the performance of its obligations under this Agreement.
3.5 Customer Responsibilities and Restrictions.
(a) Customer will (i) maintain the confidentiality of all authentications and passwords for the Subscription Services and immediately notify BMC if it becomes aware that an unauthorized party has gained access such authentications and passwords, (ii) be responsible for use of the Subscription Services by its Users in compliance with this Agreement, (iii) prevent unauthorized access to, or use of, the Subscription Services, and notify BMC promptly of any such unauthorized access or use, (iv) comply with all applicable laws in using the Subscription Services, and (v) be responsible for obtaining its own Apple Push Notification certificate, if the Subscription Services are used to manage devices running iOS. Customer is responsible for the creation and implementation of a privacy policy and end user agreement, if applicable, which will set forth the guidelines of how Customer uses and protects the data and personal information of its Users, and how said Users may utilize the Subscription Services.
(b) Customer will not (i) modify, copy or create derivative works based on the Subscription Services; (ii) create Internet “links” to or reproduce any content forming part of the Subscription Services, other than for its own internal business purposes; (iii) disassemble, reverse engineer, or decompile the Subscription Services or part thereof, except to the extent expressly permitted by applicable law despite this limitation without possibility of contractual waiver; (iv) interfere with or disrupt the integrity or performance of the Subscription Services; (vi) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortuous material, or send or store material in violation of any third party’s privacy rights via the Subscription Services; (vii) send or store viruses or malicious code via the Subscription Services; (viii) attempt to gain unauthorized access to the Subscription Services or its related software, systems, platforms or networks, including any form of security and/or penetration testing; (ix) use any components provided with the Subscription Services separately from the Subscription Services; or (x) distribute, rent, lease or provide the Subscription Services to any third party or use it in a service bureau, outsourcing environment, or for the processing of third party data .
4. FEES AND PAYMENT.
4.1 Fees. The fees payable for the Subscription Services and the payment period for such fees will be set forth in and paid in accordance with the Order. All payments are due within 30 days of the date of the invoice.
4.2 Late Fees. Late balances may, at BMC’s sole election, bear interest at a rate equal to the lesser of 1% per month or the maximum amount permitted by law.
4.3 Taxes. Customer will pay taxes imposed in connection with the fees paid for the Subscription Services, which are exclusive of these taxes.
4.4 Solution Providers. With regard to Subscription Services acquired by Customer through an authorized Solution Provider of BMC, notwithstanding anything to the contrary in sections 4.1 and 4.2 above, Customer will have no direct payment obligations to BMC for such fees.
5. TERM, SUSPENSION AND TERMINATION.
5.1 Term. This Agreement begins on the Effective Date and will remain in effect unless terminated pursuant to Section 5.2 below, regardless of the billing frequency selected in the Order.
5.2 Termination.
(a) Termination for Convenience. Customer may terminate this Agreement by providing BMC with at least 30 days prior written notice; provided, however, such termination will have no effect on Orders in effect at the time of such termination. Orders may not be terminated for convenience unless otherwise specified therein. Customer may notify BMC of its intent to terminate by emailing BMC at order_services@bmc.com.
(b) Termination for Cause. Either party may terminate this Agreement and/or an Order for cause: (i) upon 30 days’ written notice of a material breach to the other party if such breach remains uncured at the expiration of such period; or (ii) immediately if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. In the event Customer terminates the Agreement and an Order for BMC’s material breach, BMC will refund the amount paid by Customer to BMC for the Subscription Services on such Order, pro-rated from the date of the notice of the termination.
5.3 Suspension of Subscription Services for Cause. In addition to its other rights and remedies, BMC reserves the right, without liability to Customer, to suspend any and all access to the Subscription Services if Customer commits a material breach of this Agreement and fails to cure the same within 30 days from Customer’s receipt of written notice of such breach from BMC. Provided however, that BMC may immediately suspend any and all access to the Subscription Services without any cure period if BMC determines in good faith that Customer’s material breach of the Agreement will cause damage to BMC, the Subscription Services, or any other customer.
5.4 Effects of Termination. Upon termination or expiration of any Order or this Agreement, all rights and Licenses granted thereunder will terminate and Customer will make no further use of the Subscription Services. No termination will relieve the Customer of the obligation to pay any fees accrued or payable to BMC pursuant to any Order. Upon written request by Customer made within 45 days after the effective date of termination, BMC will make the Customer Content available to Customer for retrieval in an industry standard format. After such 45-day period, BMC shall have no obligation to maintain any Customer Content and will thereafter delete Customer Content. Any terms in this Agreement which by their nature extend beyond termination of this Agreement will remain in effect until fulfilled.
5.5 Termination Assistance. Upon Customer’s request and upon (a) the expiration of an Order or (b) the termination of an Order for any reason other than Customer’s breach, BMC shall perform such services as the parties in good faith agree are reasonably necessary to facilitate the orderly transition of the Services to the successor service provider or to the Customer. BMC will provide any such services under the terms and conditions of the Agreement, and subject to payment of the then-current fees and charges, generally applicable to BMC’s performance of such services, as agreed between the parties at such time.
6. LIMITED WARRANTY.
6.1 Warranties and Limited Remedies. BMC warrants to Customer that:
(a) the online availability of the Subscription Services will be maintained in accordance with the service levels attached to the applicable Order, if any (the “Service Level Agreement” or “SLA”). Customer’s exclusive remedy and BMC’s sole obligation for breach of the warranty in this Section 6.1(a) is described in the Service Level Agreement;
(b) the Subscription Services (i) will perform in substantial accordance with the then-current on-line User Guide available via the Subscription Services and (ii) will be performed in a manner consistent with industry standards reasonably applicable to the provision thereof. Customer’s exclusive remedy and BMC’s sole obligation for breach of the warranty in this Section 6.1(b) will be BMC’s use of commercially reasonable efforts to have the Subscription Services perform in substantial accordance with the User Guide, or replace the non-conforming portion of the Subscription Services within 60 days from the written notice of claim, or if BMC cannot have the Subscription Services perform in substantial accordance with the User Guide or replace the Subscription Services within such time period, then Customer may terminate the non-performing Subscription Services, and upon such termination BMC will refund the amount paid by Customer for the Subscription Services, pro-rated from the date of the notice of the claim. Customer’s rights and BMC’s obligations in this Section 6.1(b) are conditioned upon Customer’s providing BMC with written notice of the claim, a complete description of the alleged defects and a specific reference to the User Guide to which such alleged defects are contrary; and
(c) In connection with the Subscription Services (i) it has used commercially reasonable efforts consistent with industry standards to scan for and promptly remove any software viruses for no charge and (ii) it has not inserted any Disabling Code. “Disabling Code” means computer code inserted by BMC, that is not addressed in the User Guide, and that is designed to expose data, delete, interfere with, and/or disable the normal operation of the Subscription Services. This Disabling Code warranty does not apply to BMC passwords necessary for the operation of the Subscription Services, or for any use by Customer outside the scope of this Agreement.
6.2 Disclaimer. CUSTOMER ACKNOWLEDGES THAT, EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, BMC, ITS AFFILIATES AND LICENSORS MAKE NO WARRANTY, EXPRESS, IMPLIED OR STATUTORY WITH RESPECT TO THE SUBSCRIPTION SERVICES OR USE THEREOF. BMC, ITS AFFILIATES AND LICENSORS HEREBY EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY THAT SUBSCRIPTION SERVICES WILL BE UNINTERRUPTED, ERROR FREE OR WITHOUT DELAY, AND THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INTERFERENCE, NON-INFRINGEMENT AND INFORMATION CONTENT.
7. PROPRIETARY RIGHTS AND CONFIDENTIALITY.
7.1 Proprietary Rights. BMC, its Affiliates or licensors retain all right, title and interest to the Subscription Services and all related intellectual property and proprietary rights. The Subscription Services are protected by applicable copyright, trade secret, industrial and other intellectual property laws. BMC owns all right, title and interest in all software, programming, documentation, templates, questionnaires, methodologies, models, charts, reports, ideas, features, content, functions, graphics and any other items provided as part of the Subscription Services (“ Service Items”) and access to and use of the relevant Service Items will be governed by the terms of this Agreement. Subject to (i) BMC’s or its licensor’s ownership of any Service Items and (ii) section 3.4 (b) (i) of the Agreement, Customer owns all rights, title, and interest in Customer Applications, including all proprietary and intellectual property rights. BMC reserves any rights not expressly granted to Customer. Customer shall not access the Subscription Services in order to build a competitive product or service or copy any ideas, features, functions or graphics of the Subscription Services. “ Confidential Information” means all proprietary or confidential information that is disclosed to the recipient (“Recipient”) by the discloser (“ Discloser”), and includes, among other things (i) any and all information relating to products or services provided by a Discloser, its customer-related and financial information, software code, flow charts, techniques, specifications, development and marketing plans, strategies, and forecasts; (ii) as to BMC, and its licensors, the Subscription Services and Service Items; and (iii) the terms of this Agreement, including without limitation, pricing information. Confidential Information does not include information that Recipient can show: (a) was rightfully in Recipient’s possession without any obligation of confidentiality before receipt from the Discloser; (b) is or becomes a matter of public knowledge through no fault of Recipient; (c) is rightfully received by Recipient from a third party without violation of a duty of confidentiality; or (d) is or was independently developed by or for Recipient. Recipient may not disclose Confidential Information of Discloser to any third party or use the Confidential Information in violation of this Agreement. The Recipient (i) will exercise the same degree of care and protection with respect to the Confidential Information of the Discloser that it exercises with respect to its own Confidential Information and (ii) will not, either directly or indirectly, disclose, copy, distribute, republish, or allow any third party to have access to any Confidential Information of the Discloser. Notwithstanding the foregoing, Recipient may disclose Discloser’s Confidential Information to Recipient’s employees and agents who have need to know provided that such employees and agents have legal obligations of confidentiality substantially the same (and in no case less protective) as the provisions of this Agreement.
7.2 Notification Obligation. If the Recipient becomes aware of any unauthorized use or disclosure of Discloser’s Confidential Information, then Recipient will promptly and fully notify the Discloser of all facts known to it concerning such unauthorized use or disclosure. In addition, if the Recipient or any of its employees or agents are required (by oral questions, interrogatories, requests for information, or documents in legal proceedings, subpoena, civil investigative demand, or other similar process) to disclose any of Discloser’s Confidential Information, the Recipient will not disclose the Discloser’s Confidential Information without providing the Discloser with commercially reasonable advance prior written notice to allow Discloser to seek a protective order or other appropriate remedy or to waive compliance with this provision. In any event, the Recipient will exercise its commercially reasonable efforts to preserve the confidentiality of the Discloser’s Confidential Information, including, without limitation, cooperating with Discloser to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded to the Confidential Information.
7.3 Customer Content. As between BMC and Customer, Customer owns all rights, title and interest in and to Customer Content. Customer Content is deemed Confidential Information under this Agreement. BMC will use the Customer Content only as necessary to provide the Subscription Services in accordance with this Agreement. At any time during the term of the Subscription Services, Customer may request copies of all Customer Content from the Subscription Services. Customer is responsible for complying with all legal and contractual requirements, including its agreements with third parties. With the exception of Customer Content collected by the Subscription Services, Customer is solely responsible for the transmission of Customer Content to BMC and to the Subscription Services. Customer is solely responsible for the encryption of any Customer Content during such transmission.
7.4 Suggestions. Customer agrees that BMC shall have a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into any BMC products or services any suggestions, enhancement requests, recommendations or other feedback provided by Customer relating to the Subscription Services.
8. DISCLAIMER OF DAMAGES AND LIMITS ON LIABILITY.
8.1 DISCLAIMER OF DAMAGES. NEITHER PARTY OR ITS AFFILIATES OR LICENSORS ARE LIABLE FOR ANY, SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES RELATING TO OR ARISING OUT OF THIS AGREEMENT OR THE SUBSCRIPTION SERVICES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST COMPUTER USAGE TIME, AND DAMAGE TO, OR LOSS OF USE OF, DATA), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND IRRESPECTIVE OF ANY NEGLIGENCE OF A PARTY OR WHETHER SUCH DAMAGES RESULT FROM A CLAIM ARISING UNDER TORT OR CONTRACT LAW. THE FOREGOING LIMITATIONS DO NOT APPLY TO EACH PARTY’S RESPONSIBILITIES IN SECTION 9, INFRINGEMENT BY A PARTY OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, GROSS NEGLIGENCE, WILLFUL MISCONDUCT, DEATH OR BODILY INJURY, ACTS OF FRAUD, NOR ANY LIABILITY WHICH MAY NOT BE EXCLUDED OR LIMITED BY LAW.
8.2 LIMITS ON LIABILITY. NEITHER PARTY OR ITS AFFILIATES OR LICENSORS SHALL HAVE AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SUBSCRIPTION SERVICES, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEEDING THE AMOUNTS ACTUALLY PAID BY AND DUE FROM CUSTOMER FOR THE SUBSCRIPTION SERVICES GIVING RISE TO LIABILITY PURSUANT TO THE ORDER(S) THAT ARE IN EFFECT AS OF THE DATE THE LIABILITY FIRST AROSE. THE FOREGOING LIMITATIONS DO NOT APPLY TO EACH PARTY’S RESPONSIBILITIES IN SECTION 9, INFRINGEMENT BY A PARTY OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, GROSS NEGLIGENCE, WILLFUL MISCONDUCT, DEATH OR BODILY INJURY, ACTS OF FRAUD, NOR ANY LIABILITY WHICH MAY NOT BE EXCLUDED OR LIMITED BY LAW.
9. INFRINGEMENT CLAIMS.
9.1 Indemnification by BMC . If a third party asserts a claim against Customer asserting that Customer’s use of the Subscription Services, including Platform Services, Deliverables and Licenses as defined in the Attachments to this Agreement, in accordance with this Agreement violates that third-party’s patent, trade secret or copyright rights (“Infringement Claim”), then BMC will, at its own expense: (a) defend or settle the Infringement Claim; and (b) indemnify Customer for any damages finally awarded against Customer based on infringement by the Subscription Services or Deliverables, including court costs and reasonable attorney’s fees. If BMC believes the Subscription Services may violate a right, then BMC will, at its expense: (a) modify the Subscription Services, or (b) procure the right to continue using the Subscription Services, and if (a) or (b) are not commercially reasonable, terminate Customer's right to use the Subscription Services and issue a pro-rata refund for the unexpired pre-paid portion of such Subscription Services.
9.2 Indemnification by Customer. Subject to the terms of this Agreement, if a third party asserts a claim against BMC asserting that the (i) Customer Content, (ii) Customer Applications as defined in Attachment A, (iii) Customer Property as defined in Attachment B or (iv) Customer’s use of the Subscription Services in violation of this Agreement violates that third-party’s patent, trade secret or copyright rights (“ Claim”), Customer will, at its own expense: (a) defend or settle the Claim; and (b) indemnify BMC for any damages finally awarded against BMC based on the Claim, including court costs and reasonable attorney’s fees.
9.3 Indemnity Process. Neither party’s obligations under this Section will apply if: (a) the indemnifying party’s legal department does not receive prompt, detailed written notice of the Infringement Claim/Claim from the party being indemnified, (b) the indemnifying party is not able to retain sole control of the defense of the Infringement Claim/Claim and all negotiations for its settlement or compromise, or (c) the indemnifying party does not receive all reasonable assistance from the party being indemnified. Neither party will bind the indemnified party to a monetary obligation in a settlement or compromise, or make an admission on behalf of the indemnified party, without obtaining that party’s prior consent.
9.4 THIS SECTION 9 CONTAINS EACH PARTY'S EXCLUSIVE REMEDIES AND THE INDEMNIFYING PARTY'S SOLE LIABILITY FOR INFRINGEMENT CLAIMS/CLAIMS, RESPECTIVELY.
10. EXPORT CONTROLS. Both parties agree to comply with applicable export regulations, including but not limited to U.S. Export Administration Regulations and the OFAC embargoes and sanctions lists. More information on BMC’s export compliance program may be found here: https://www.bmc.com/legal/export-compliance.html.
11. GOVERNING LAW AND DISPUTE RESOLUTION. Any controversy, dispute or claim arising out of or relating to this Agreement, or to the formation, interpretation, breach, termination, or validity thereof (each, a “Controversy”) will be resolved as follows:
(i) UNITED STATES. If both parties to this Agreement are entities incorporated under the law of any state in the United States, the Controversy shall be tried in either state or federal court located in Houston, Texas and the laws of the State of Texas shall govern. Both parties hereby submit to the exclusive jurisdiction of the courts in Houston, Texas and waive all defenses based on forum non conveniens. Notwithstanding the foregoing, if Customer is a state or local governmental entity or higher education institution and legally required to apply state law, then Customer’s state law will apply to the Controversy, without reference to conflict of law principles.
(ii) CANADA. If Customer is located in Canada (outside Quebec), then the law of the Province of Ontario law apply, without reference to conflict of law principles. If Customer is located in Quebec, then the laws of the Province Quebec will apply, without reference to conflict of law principles.
(iii) EMEA. If both parties to this Agreement are entities incorporated in countries in the Europe, Middle East, or Africa regions, the Controversy shall be tried in the District Court located in Amsterdam, the Netherlands and the substantive laws of the Netherlands shall govern. Both parties hereby submit to the exclusive jurisdiction of the District Court in Amsterdam, the Netherlands and waive all defenses based on forum non conveniens.
(iv) ASIA PACIFIC. If both parties to this Agreement are entities incorporated in countries in the Asia Pacific region, the arbitration shall be held in Singapore under the then-applicable rules of the Singapore International Arbitration Centre and the substantive laws of Singapore will govern.
(v) OTHER REGIONS. In all other instances, the arbitration shall be held in New York City, New York, under the then-applicable international rules of the American Arbitration Association and the substantive laws of the State of Texas will govern.
For all arbitrations conducted hereunder: (a) the arbitration shall be conducted in English; (b) the relevant arbitral institution shall determine the number of arbitrators, but any Controversy in which the amount in dispute is greater than $10 million USD shall be decided by three arbitrators, with each party having the right to select one arbitrator; (c) the costs of such arbitration shall be borne equally, pending the arbitrator’s award; (d) the arbitration award rendered shall be final and binding on the parties, shall not be subject to appeal to any court and shall be enforceable in any court having jurisdiction over the parties; (e) the arbitration proceedings, award and pleadings shall all be confidential, unless disclosure of particular information is required for purposes of enforcing/challenging the award or to meet local securities law requirements; and (f) the party prevailing in arbitration shall be entitled to recover its reasonable attorneys’ fees and the necessary costs incurred in connection with the arbitration.
The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. Nothing in this Agreement shall be deemed as preventing either party from seeking immediate injunctive relief from any court having jurisdiction over the parties and the subject matter of the dispute.
12. The following BMC contracting entities apply to this Agreement:
Region | Contracting Entity | Address of Contracting Entity |
United States and Latin America South (not a specified Central or South America country below) | BMC Software, Inc. | 2103 CityWest Boulevard, Houston, Texas 77042 |
Canada | BMC Software Canada Inc. | 50 Minthorn Boulevard, Suite 200 Markham, Ontario L3T 7X8 Canada |
EMEA (Europe, Middle East and Africa) | BMC Software Distribution B.V. | Vision Plaza West, 2nd floor, Boeingavenue 220, 1119PN Schiphol-Rijk, The Netherlands |
Brazil | BMC Brasil Software Ltda. | Avenida Dra. Ruth Cardoso, n° 8.501, Condomínio Eldorado Business Tower, 22° andar, Pinheiros, São Paulo – SP, CEP: 05425-070 |
Mexico | BMC Software Distribution de México, S.A. de C.V. | Volcán 150, Piso 4, Col. Lomas de Chapultepec, C.P. 11000, Deleg. Miguel Hidalgo, Ciudad de México |
Argentina | BMC Software de Argentina S.A. | Ing. Butty 220 - Piso 18, Catalinas Plaza Buenos Aires, República de Argentina, C1001A |
S.E.A (Southeast Asia), Australia, New Zealand, Hong Kong, Taiwan | BMC Software Ireland Unlimited Company | Building 3, Cherrywood Business Park, Bray Road, Loughlinstown, CO. Dublin, D18 TF72 |
China | BMC Software (China) Limited | Room 502, Level 5, Tower W1, The Towers, Oriental Plaza, No. 1 East Chang An Ave., Dong Cheng Dist., Beijing 100738, China |
Japan | BMC Software K.K. | Harmony Tower 24th Floor, 1-32-2 Honcho, Nakano-ku, Tokyo, 164-8721 |
Korea | BMC Software Korea Ltd | 24th Fl., ASEM Tower, 1517, Yeongdong-daero,Gangnam-gu, Seoul 135-798, Korea South |
13. U.S. GOVERNMENT END USER RIGHTS. This Section applies only to acquisitions of the commercial Subscription Services subject to this Agreement by or on behalf of the United States Government, or by any prime contractor or subcontractor (at any tier) under any contract, grant, agreement or other activity with the United States Government. When Subscription Services are delivered or provided to the United States Government, the United States Government agrees that this commercial license Agreement and the Subscription Services governed by this Agreement are defined in accordance with and qualify as “commercial items” consisting of “commercial computer software” and “commercial computer software documentation” as outlined in FAR 12.211, FAR 12.212 and DFARS 227.7202-3, as applicable. The terms and conditions of this Agreement shall pertain to the United States Government’s use (including documentation or technical data), duplication, and disclosure of the Subscription Services, and shall supersede any conflicting contractual terms and conditions”.
14. DATA PROTECTION. The processing of Customer Content under this Agreement is governed by the BMC Data Processing Agreement set forth on the Order.
15. VERIFICATION. Customer agrees that BMC or its agent may monitor the Subscription Services to ensure Customer’s compliance with the terms of this Agreement. If such monitoring reveals that Customer has exceeded the Capacity for the Subscription Services, BMC may work with Customer to seek to reduce Customer’s usage so that it conforms to the Capacity limit for such Subscription Service. If, notwithstanding BMC’s efforts, Customer is unable or unwilling to abide by the Capacity limits for the Subscription Services, Customer will execute an Order for additional Capacity of such Subscription Services promptly upon BMC’s request.
16. NOTIFICATIONS. Any general notifications regarding technical matters from BMC to Customer will be sent to the Customer contact stated in the Customer Technical Contact Information section of the Order. The Customer contact in the Order has been assigned by Customer as the Customer contact for operational issues that may arise. Customer shall notify BMC of any change to the Customer contact details in writing, which may include via e-mail.
17. CONDUCTING BUSINESS WITH HONESTY AND INTEGRITY. BMC is committed to conducting business with honesty and integrity. BMC’s Code of Conduct set forth in https://www.bmc.com/content/dam/bmc/corporate/Code%2Bof%2BConduct(English).pdf governs the conduct of all officers, directors, and employees of BMC. BMC’s Third-Party Code of Conduct set forth in https://www.bmc.com/content/dam/bmc/corporate/Third+Party+Code+of+Conduct.pdf governs the conduct of contingent workers and business partners acting on BMC’s behalf. BMC demonstrates its commitment to environmental stewardship by its global accreditation for ISO 14001:2015.
18. MISCELLANEOUS TERMS. The parties are independent contractors and this Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties. Customer will receive system notifications from BMC and its licensors, if applicable (i.e. planned downtime notices, etc). This Agreement, including the Attachments and Orders constitutes the entire agreement between Customer and BMC and supersedes any prior or contemporaneous negotiations or agreements, whether oral or written concerning the Subscription Services. There are no representations, promises, warranties, covenants, or undertakings between the parties other than those expressly set forth in this Agreement. There are no third-party beneficiaries to this Agreement; Customer is not entering into a contractual relationship with BMC’s licensors and BMC’s licensors have no liability to Customer. Except as provided in Section 2 above, no modification or waiver of any provision hereof will be effective unless made in a writing signed by both BMC and Customer. Customer has the right to assign this Agreement and all Orders in whole to an Affiliate, or to a successor in connection with (i) the sale of all or substantially all of the assets of that party or (ii) a merger by operation of law, by providing written notice to BMC. The assignee may not be a known direct competitor of BMC. The successor entity or Affiliate must agree in writing with BMC (in advance of the assignment) to be bound by the terms of this Agreement. Any Customer transfer or assignment except as expressly authorized above will be null and void. Should any provision of this Agreement be invalid or unenforceable, the remainder of the provisions will remain in effect. Any additional or conflicting terms of any Customer purchase order are rejected by BMC and do not apply. The Subscription Services may contain hyperlinks to websites controlled by parties other than BMC. BMC is not responsible for and does not endorse the content or accept any responsibility for Customer’s use of these websites. Customer should refer to the policies posted by other websites regarding privacy and other topics regarding data privacy before using them. Les parties exigent que la présente convention ainsi que les documents qui s’y rattachent soient rédigés en anglais.
Attachments incorporated into Agreement |
Attachment A – Platform Services Attachment |
Attachment B – Consulting Services Attachment |
Attachment C – On Premise Subscription Services Attachment |
PLATFORM SERVICES ATTACHMENT
to the
BMC CLOUD SERVICES MASTER AGREEMENT
Except as otherwise provided herein, the terms of the Cloud Services Master Agreement (the “Base Agreement”) are incorporated into this Platform Services attachment (the “Attachment”). Together, this Attachment and the Base Agreement (as incorporated into this Attachment) are referred to as the “Agreement” for purposes of Customer’s access and use of Platform Services, only if the Platform Services are set forth on an Order referencing the Base Agreement. For purposes of this Agreement, the term “Subscription Services” as defined in the Base Agreement shall be extended to include the Platform Services. In the event of a conflict between the Base Agreement and the terms of this Attachment, the terms of this Attachment will control for Customer’s access and use of the Platform Services only.
1. SCOPE. Subject to the terms of this Agreement, BMC will provide Customer with access to the Platform Service named in the applicable Order.
2. DEFINITIONS.
2.1 “Application” is the object code, its definitional structures, and data created to fulfill a particular purpose, which runs on the Platform Services. An Application may also include its documentation and User Guide.
2.2 “Customer Applications” means Applications that are owned or licensed by Customer, and which run on the Platform Services.
2.3 “Development Platform” means a BMC provided development platform which allows Customer to develop a custom application to run on the Platform Services. The Development Platform is a separate environment from the Platform Services.
2.4 “Platform” means the generally available BMC-provided PaaS platform and its capabilities to run Applications.
2.5 “Platform Services” means the specific Platform Services identified in the Order.
3. BMC PLATFORM SERVICES.
3.1 BMC Platform Services Support. BMC will provide Support only for Platform Services. Customer is responsible for its own support for Customer Applications.
4. CUSTOMER APPLICATIONS.
4.1 The terms contained in this section 4 apply only to Orders for Platform Services entitling Customers to develop and deploy Customer Applications onto the Platform Services. Any Customer Applications that run on the Platform Services are hereby excluded from the defined terms “Subscription Services” and “Platform Services”.
4.2 Development Platform. Customer may utilize the Development Platform to create an Application to run on the Platform Services. Customer’s use of the Development Platform is governed by the terms of this Agreement subject to the restrictions set forth in sections 4.2.1 to 4.2.6 below. Customer’s development of an Application must meet the best practices development guidelines set forth in the User Guide. Each Customer Application shall at all times materially conform to policies and best practices set forth in the User Guide. Prior to the deployment of any Customer Applications in a production or non-production environment of the Platform Services, Customer must conduct security and functional tests of each Customer Application and submit the results of such tests to BMC for review. BMC reserves the right to reject Customer’s deployment request of a Customer Application based on the results of Customer’s security and functional tests. Additionally, BMC reserves the right, during the term of this Agreement, to request Customer conduct additional security and functional tests and provide the results of said tests to BMC for review. Notwithstanding the foregoing, Customer must ensure that at all times Customer Applications are secure.
4.2.1 Scope of use. The right to access and use the Development Platform is granted solely for the purpose of performing non-production application development work on the Development Platform.
4.2.2 Restrictions of use. Customer agrees not to:
(i) use the Development Platform to (1) process production data or for any other production purposes, including but not limited to publishing digital applications, or (2) distribute applications;
(ii) use the Development Platform with data or information that has not been backed up; or
(iii) modify, delete or remove any ownership, title, trademark, patent or copyright notices.
4.2.3 Customer Responsibilities. Customer is responsible for acquiring all necessary and required licenses for the use of any third party software, source code and/or libraries Customer may use as part of its development with the Development Platform. In addition to its other rights and remedies, BMC reserves the right, without liability to Customer, to immediately, at any time and for any reason refresh Customer’s instance of the Development Platform. Upon BMC’s refreshing of Customer’s instance of the Development Platform, Customer may lose all Customer Content submitted to or stored in said instance of the Development Platform. Upon expiration or termination of the applicable Order, BMC may destroy any Customer Content submitted to or stored therein. Customer is responsible for backing up any development work with Customer Content outside of the Development Platform.
4.2.4 Open Source. Customer may not use any software, library, utility, tool, or other computer or program code (“Code”) with the Subscription Services that in any way that would (i) weaken BMC’s intellectual property rights in the Services, or (ii) require the Subscription Services to become or be disclosed or distributed as Open Source Software. For purposes of this Section, “Open Source Software” means any Code that is substantially similar to, (A) the Affero General Public License, (B) the GNU General Public License (GPL) or Lesser/Library GPL (LGPL), (C) the Artistic License (e.g. PERL), (D) the Mozilla Public License, (E) the Netscape Public License, (F) the Sun Community Source License (SCSL), (G) the Sun Standards License (SISL), or (H) any “copyleft” license, or any other license that requires as a condition of use, reproduction, modification, or distribution that such Code or other software or computer code distributed with it: (1) be disclosed or distributed in source code form; (2) be licensed for the purpose of creating derivative works; (3) be licensed under terms that allow reverse engineering, reverse assembly, or disassembly of any kind; (4) be subject to a patent non-assert or royalty-free patent license; or (iv) be redistributable at no charge.
4.2.5 No Support. BMC, its affiliates, or licensors do not provide Support for the Development Platform.
4.2.6 Disclaimer of Warranty, Limitation of Liability and Exclusive Remedy. Notwithstanding anything to the contrary in the applicable Order or this Agreement:
a. THE DEVELOPMENT PLATFORM IS PROVIDED “AS IS” WITHOUT ANY WARRANTY OF ANY KIND WHATSOEVER. BMC, ITS AFFILIATES AND LICENSORS DO NOT WARRANT THAT THE DEVELOPMENT PLATFORM WILL SATISFY CUSTOMER’S REQUIREMENTS, THAT THE DEVELOPMENT PLATFORM IS WITHOUT DEFECT, VIRUS OR ERROR FREE, WITHOUT DELAY, OR THAT THE OPERATION OF THE DEVELOPMENT PLATFORM WILL BE UNINTERUPTED. BMC, ITS AFFILIATES AND LICENSORS DISCLAIM ANY AND ALL REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, MADE WITH RESPECT TO THE DEVELOPMENT PLATFORM, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INTERFERENCE AND INFORMATION CONTENT; AND
b. NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY, FOR ANY CLAIM, LOSS, DAMAGE OR EXPENSE FOR INDIRECT, SPECIAL, CONSEQUENTIAL, PUNITIVE OR INCIDENTAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE DEVELOPMENT PLATFORM (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST COMPUTER USAGE TIME, AND DAMAGE TO, OR LOSS OF USE OF, DATA), EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EITHER PARTY’S ENTIRE LIABILITY AND THE OTHER PARTY’S EXCLUSIVE REMEDY FOR DIRECT DAMAGES ARISING OUT OF OR RELATED TO THE DEVELOPMENT PLATFORM, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, IS LIMITED TO $100.
4.3 License to Customer Applications. Subject to the terms and conditions of this Agreement, Customer hereby grants BMC a worldwide, limited, nonexclusive license during the term of the applicable Order for the Platform Services to host, copy, transmit, adapt and display Customer Applications solely for the purpose of fulfilling BMC’s obligations under this Agreement.
4.4 Functionality of Customer Applications. Customer is solely responsible for the operation of Customer Applications, including but not limited to any information stored in or transmitted by Customer Applications. Customer is responsible for monitoring the usage of each Customer Application. Customer is responsible for the configuration, functionality, performance, compliance with applicable data protection laws and security of all Customer Applications, including any interfaces used to connect to Customer Applications.
4.5 Customer will provide information or other materials related to a Customer Applications as reasonably requested by BMC to verify Customer’s compliance with the Agreement and the User Guide.
4.7 Suspension of Customer Applications. Customer’s use of the Platform Services may be immediately suspended and/or terminated due to (i) reasonable security threats regarding the Platform Services or Customer Applications, (ii) Customer Applications interfering with, disrupting or threatening the integrity or performance of the Subscription Services and/or the Platform Services, or (iii) violates the law, infringes or misappropriates the rights of any third party or otherwise violates a material term of the Agreement. In the event (i) or (ii) above apply to Customer Applications, Customer is required to remediate any such issue to BMC’s commercially reasonable satisfaction before use of Customer Applications can resume. BMC shall use reasonable commercial efforts to only suspend the non-conforming portion of the Platform Services.
4.8 CUSTOMER APPLICATIONS WARRANTIES. Customer warrants to BMC that: (a) each Customer Application will perform materially in accordance with the User Guide; (b) Customer has all rights in the Customer Content and Customer Applications necessary to grant the rights contemplated by this Agreement; (c) none of the Customer Content or Customer Applications or Users’ use of Customer Content or Customer Applications will violate the Agreement and the User Guide; and (d) Customer’s security and functional tests of Customer Applications was conducted in a commercially reasonable manner and the results of said tests provided to BMC for review are correct and valid.
ATTACHMENT B
CONSULTING SERVICES ATTACHMENT
to the
BMC CLOUD SERVICES MASTER AGREEMENT
Except as otherwise provided herein, the terms of the Cloud Services Master Agreement (the “Base Agreement”) are incorporated into this Consulting Services attachment (the “Attachment”). Together, this Attachment and the Base Agreement (as incorporated into this Attachment) are referred to as the “Agreement” for purposes of Customer’s purchase of Consulting Services, only if Consulting Services are set forth on an Order referencing the Base Agreement. For purposes of this Agreement, the term “Subscription Services” as defined in the Base Agreement shall be extended to include Consulting Services. In the event of a conflict between the Base Agreement and the terms of this Attachment, the terms of this Attachment will control for Customer’s purchase of Consulting Services only. The parties agree that the following Sections of the Base Agreement do not apply to the Consulting Services provided under this Attachment: Section 3.2 (Support), Section 4 (Fees and Payment), and Section 6 (Limited Warranty).
1. SCOPE. BMC agrees to render to Customer Consulting Services under the terms of this Agreement and as further described in an Order. BMC will render the Consulting Services in the location(s) as set forth in the Order. The performance of the Consulting Services will not relieve or alter the rights, obligations and responsibilities of Customer and of the BMC Affiliate providing Subscription Services and/or Licenses with respect to Subscription Services and/or Licenses under the applicable agreement.
2. SERVICE FEES AND EXPENSES. The fees payable to BMC for the Consulting Services to be rendered will be detailed in the Order. BMC will submit invoices to Customer for such fees and incurred expenses either upon completion of the Consulting Services, or at stated intervals, in any case in accordance with the applicable Order. Customer shall pay amounts invoiced within 30 days following receipt of the invoice.
3. EDUCATION. Customer may acquire Learning Pass Credits and Education Services (collectively, “BMC Education ”) on an Order. The BMC Education terms that govern such Orders are set forth in the Education Program Guide located at https://www.bmc.com/content/dam/bmc/education/education-program-guide.pdf, and is incorporated herein by this reference.
4. STATEMENTS OF WORK. Consulting Services may require the execution of a Statement of Work, in which case, such Statement of Work will be considered an Order for such Consulting Services. In the event of any conflict between the terms of a Statement of Work and this Agreement, the Agreement shall prevail except for matters of service fees, payment and reimbursement of expense, and termination of Consulting Services if further specified in the Statement of Work. During the term of an applicable Statement of Work, and for a period of six months thereafter, neither party will solicit for employment any employees, agents, or subcontractors of the other party or its affiliates who, within six months prior to such solicitation, had contact with the soliciting party based in whole or in part upon Consulting Services provided under this Agreement. The restrictions in this section shall be deemed not to apply to general solicitations for employment posted on Internet job sites or printed in newspapers or trade or professional journals.
5. PROPRIETARY RIGHTS AND RIGHTS IN DELIVERABLES.
5.1 Ownership of Materials Used in the Consulting Services. Unless specifically provided in an Order, Customer shall supply all of the facilities; equipment; supplies; computer programs; information about Customer’s business, systems, software and needs; and other materials necessary for completion of the Consulting Services (“Customer Property”), and BMC shall supply the people described in the Order, the know-how and the tools necessary to provide the Consulting Services, which may include, among other things, software, templates, questionnaires, graphs, methodologies, models, charts and reports (“BMC Property”). Customer Property and copies and modifications of Customer Property will remain the sole property of Customer or if applicable, Customer’s licensors, and BMC Property and copies and modifications of BMC Property will remain the sole property of BMC or if applicable, BMC’s licensors. Customer hereby grants to BMC a royalty-free, paid-up, non-exclusive, non-sublicensable and non-transferable license to use the Customer Property for the purpose of providing the Consulting Services.
5.2 Deliverables. Deliverables are those created under the Order, including, but not limited to, software, software scripts, routines, libraries or other code, or appliances, methodologies, templates, tools, policies, records, working papers, reports, methodologies, know-how, data, or other intellectual property, written or otherwise, including any derivative works or modifications to the above, whether pre-existing or created during the performance of the Consulting Services and all proprietary and intellectual property rights embedded therein delivered as a result of the Consulting Services as specified under the Order. BMC owns all right, title and interest in the Deliverables. Provided Customer has paid in full for the Consulting Services that resulted in the Deliverables, BMC will deliver the Deliverables to Customer in accordance with the applicable Order. Subject to compliance with the terms of this Agreement and the applicable Order, BMC grants Customer a non-exclusive, non-transferable, non-sublicensable, royalty-free, paid-up license to use, create derivative works of and modify all Deliverables solely for its internal business operations.
5.3 Copyright Notice. Each party agrees to reproduce the copyright notice and any other legend or ownership notice on any copies made under the licenses granted pursuant to this Section 5.
5.4 Retention. Customer acknowledges that BMC provides similar services to other customers and that nothing in this Agreement shall be construed as operating to prevent BMC from carrying on such business. Further BMC may use ideas, concepts, or know-how developed or acquired by BMC during performance of the Consulting Services to the extent by BMC’s personnel as impressions and general learning.
6. LIMITED WARRANTY. BMC warrants that it will perform the Consulting Services in conformance with generally accepted practices within the software services industry and in accordance with the Order. Customer must notify BMC of any breach of this warranty no later than 90 days after completion of the Consulting Services under the Order. Customer’s exclusive remedy and BMC’s entire liability under this warranty shall be for BMC to re-perform any non-conforming portion of the Consulting Services within a reasonable period of time, or if BMC cannot remedy the breach during such time period then refund the portion of the fee attributable to such non-conforming portion of the Consulting Services under the Order. This warranty will not apply to the extent Customer, its contractors or agents have modified any Deliverable, unless otherwise authorized by BMC in writing.
THIS WARRANTY AND CONDITION IS IN LIEU OF ALL OTHER WARRANTIES AND CONDITIONS. THERE ARE NO OTHER EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS, INCLUDING THE IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
7. INSURANCE. BMC will provide and maintain the following insurance, but only for losses arising out of BMC’s provision of Consulting Services under this Attachment:
7.1 Worker’s Compensation insurance as prescribed by the law of the state applicable to the employees performing the Consulting Services;
7.2 Employer’s Liability insurance with a limit of one million US dollars ($1,000,000) for each occurrence;
7.3 Commercial General Liability insurance with one million US dollars ($1,000,000) per occurrence combined single limit and two million US dollars ($2,000,000) general aggregate, including coverage for Products Liability and Completed Operations;
7.4 Automobile Liability insurance, including coverage for Hired and Non-owned vehicles of one million US dollars ($1,000,000) for combined single limit for bodily injury and/or property damage; and
7.5 Professional Liability insurance covering Errors and Omissions in the amount of one million US dollars ($1,000,000) for each occurrence and in the aggregate associated with Consulting Services performed under this AGREEMENT.
8. MUTUAL INDEMNITY. Each party shall indemnify and hold harmless the other party from all claims, liabilities or expenses for physical damage to real property or tangible personal property and bodily injury, including death, to the extent caused by the negligence, gross negligence or willful misconduct of the indemnifying party’s employees or contractors arising out of this Agreement and while at the Customer’s premises. The foregoing indemnities are contingent upon the party seeking indemnity giving prompt written notice to the indemnifying party of any claim, demand or action, and cooperating with the indemnifying party in the defense or settlement of any such claim, demand or action.
9. INDEPENDENT CONTRACTOR. All of the services performed by BMC under this Agreement will be performed as an independent contractor.
ATTACHMENT C
ON PREMISE SUBSCRIPTIONS ATTACHMENT
to the
BMC CLOUD SERVICES MASTER AGREEMENT
Except as otherwise provided herein, the terms of the Cloud Services Master Agreement (the “Base Agreement”) are incorporated into this On Premise Subscriptions attachment (the “Attachment”). Together, this Attachment and the Base Agreement (as incorporated into this Attachment) are referred to as the “Agreement” for purposes of Customer’s purchase and ongoing use of On Premise Subscriptions, only if On Premise Subscriptions are set forth on an Order referencing the Base Agreement. For purposes of this Agreement, the term “Subscription Services” as defined in the Base Agreement shall be extended to include On Premise Subscriptions. In the event of a conflict between the Base Agreement and the terms of this Attachment, the terms of this Attachment will control for Customer’s purchase of On Premise Subscriptions only. The parties agree that the following Sections of the Base Agreement do not apply to the On Premise Subscriptions provided under this Attachment: Section 3.1 (Access Rights), Section 3.4 (Customer Responsibilities and Restrictions), Section 6 (Limited Warranty) and Section 14 (Verification).
1. DEFINITIONS.
1.1 “Authorized User” means Customer, Customer Affiliate(s), and their employees, consultants, contractors and agents that are bound by the terms and conditions no less restrictive than those contained herein and for whom Customer takes full responsibility. Authorized Users do not include service providers or outsourcers.
1.2 "Documentation" means the technical publications relating to the software, such as release notes, license entitlement descriptions, reference, user, installation, systems administrator and technical guidelines, included with the On Premise Subscription.
1.3 “Licensed Capacity” is the amount of each On Premise Subscription licensed as established in the Order.
1.4 “On Premise Subscription” is the object code of the software and all accompanying Documentation delivered to Customer, including all items delivered by BMC to Customer under Support.
2. LICENSE. Subject to the terms, conditions, payment requirements and restrictions set forth in this Agreement, BMC grants Customer a non-exclusive, non-transferable, non-sub-licensable term license to install in the Territory as defined in an Order, access and use the On Premise Subscription during the term specified on the Order (i) by Authorized User(s), (ii) up to the Licensed Capacity, (iii) for Customer’s and its Affiliates’ internal business operations, (iv) in accordance with the Documentation and the applicable Order, and (v) make a reasonable number of copies of the On Premise Subscription for archival purposes only (collectively a "License"). Affiliates may use and access the On Premise Subscriptions under the terms of this Agreement, and Customer is responsible for its Affiliates compliance with the terms of this Agreement.
3. RESTRICTIONS. Customer will not: (a) copy, operate or use any On Premise Subscription in excess of the applicable Licensed Capacity or other than as set forth in the License above; (b) modify, delete or remove any ownership, title, trademark, patent or copyright notices (“Identification”) from any On Premise Subscription, or copy or partial copy of an On Premise Subscription; (c) disassemble, reverse engineer, decompile or otherwise attempt to derive any On Premise Subscription source code from object code, except to the extent expressly permitted by applicable law despite this limitation without possibility of contractual waiver; (d) distribute, rent, lease, sublicense or provide the On Premise Subscription to any third party; (e) use the On Premise Subscriptions in an outsourcing or service bureau environment on behalf of non-Affiliate third parties, or allow the On Premise Subscriptions to be used by an outsourcing or service bureau provider on Customer’s behalf (without obtaining prior written approval from BMC); (f) provide a third party with the results of any functional evaluation, or performance tests, without BMC's prior written approval; or (g) attempt to disable or circumvent any of the licensing mechanisms within the On Premise Subscription.
4. ON PREMISE SUBSCRIPTION PERFORMANCE WARRANTY. BMC warrants that (a) the On Premise Subscription will perform in substantial accordance with its Documentation for a period of one year from the date of the first Order, (b) BMC has used commercially reasonable efforts consistent with industry standards to scan for and remove software viruses, and (c) other than passwords that may be required for the operation of the On Premise Subscription, BMC has not inserted any code that is not addressed in the Documentation and that is designed to delete, interfere with or disable the normal operation of the On Premise Subscription in accordance with the License. This warranty will not apply to any problems caused by hardware, Computers, or software other than the On Premise Subscription, or misuse of the On Premise Subscription, use of the On Premise Subscription other than as provided by the applicable License, modification of the On Premise Subscription, or claims made either outside the warranty period or not in compliance with the notice and access requirements set forth below. No warranty is provided for additional Licensed Capacity, On Premise Subscription provided pursuant to Support. BMC’s entire liability, and Customer’s exclusive remedy, for breach of the above warranty is limited to: BMC’s use of commercially reasonable efforts to have the On Premise Subscription perform in substantial accordance with its Documentation, or replacement of the non-conforming On Premise Subscription within a reasonable period of time, or if BMC cannot have the On Premise Subscription perform in substantial accordance with its Documentation replace the On Premise Subscription within such time period, then BMC will refund the amount paid by Customer for the License for that On Premise Subscription. Customer’s rights and BMC's obligations in this Section are conditioned upon Customer’s providing BMC during the warranty period (i) full cooperation and access to the On Premise Subscription in resolving any claim; and (ii) written notice addressed to the BMC Legal Department that includes notice of the claim, a complete description of the alleged defects sufficient to permit their reproduction in BMC’s development or support environment, and a specific reference to the Documentation to which such alleged defects are contrary.
EXCEPT FOR THE EXPRESS WARRANTIES IN THIS ATTACHMENT, THE ON PREMISE SUBSCRIPTION IS PROVIDED WITH NO OTHER WARRANTIES WHATSOEVER, AND BMC, ITS AFFILIATES AND LICENSORS DISCLAIM ALL OTHER WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE AND IN THE UNITED STATES AND CANADA, MERCHANTABILITY AND NON-INFRINGEMENT. BMC DOES NOT WARRANT THAT THE OPERATION OF THE ON PREMISE SUBSCRIPTION WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT ALL DEFECTS CAN BE CORRECTED.
5. DELIVERY. For On Premise Subscriptions that are delivered electronically, upon request from BMC, Customer agrees to provide BMC with documentation supporting that the designated On Premise Subscription was received electronically. If Customer accepts any On Premise Subscription in a non-electronic format, there may be an additional charge and it is the sole responsibility of Customer to bear any sales/use tax obligation, penalties, and interest. All On Premise Subscriptions are licensed FCA (“Free Carrier” as per Incoterms 2000) shipping point. The On Premise Subscriptions are accepted on the date BMC delivers the On Premise Subscription to the Customer either physically or by providing access codes for electronic download, whichever occurs first, however, such acceptance will not affect the On Premise Subscription Performance Warranty provided in this Agreement.
6. AUDIT. If requested by BMC, and not more than once a year, Customer agrees to deliver to BMC, within 30 days of such request, as specified by BMC either (a) periodic product usage reports generated from specific products or (b) written periodic product usage reports, to be provided solely when the product does not generate reports (“Report”). Additionally, if requested by BMC not more than once a year and upon at least ten days prior written notice to Customer, Customer agrees to allow BMC to perform an audit (“Audit”) to ensure compliance with the terms of this Agreement at the locations where the On Premise Subscriptions are installed, during normal business hours. to ensure compliance with the terms of this Agreement. Customer agrees to cooperate during any such Audit and to provide reasonable access to its information and systems.
Effective October 16th 2020 to March 11th 2021
DownloadTable of Contents
BMC CLOUD SERVICES MASTER AGREEMENT
THIS CLOUD SERVICES MASTER AGREEMENT (“AGREEMENT”) GOVERNS YOUR FREE TRIAL, IF ANY, OF THE SUBSCRIPTION SERVICES.
IF YOU PURCHASE THE SUBSCRIPTION SERVICES, THIS AGREEMENT WILL ALSO GOVERN YOUR PURCHASE AND ONGOING USE OF THE SUBSCRIPTION SERVICES.
BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SUBSCRIPTION SERVICES.
You may not access the Subscription Services if you are BMC’s direct competitor, except with BMC’s prior written consent. In addition, you may not access the Subscription Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.
This Agreement was last updated on October 16, 2020. This Agreement is between the entity or individual entering into this Agreement (“Customer”) and the BMC Contracting Entity for the applicable region as described in Section 12 (“BMC”). It is effective between Customer and BMC as of the date of your acceptance of this Agreement. If Customer has a fully executed BMC Cloud Services Master Agreement then such fully executed BMC Cloud Services Master Agreement supersedes and replaces any clickwrap or click-through agreements (or other similar agreements) that Customer may be required to accept as a part of accessing or using the Subscription Services. For Customer’s convenience, prior versions of this Agreement are available at https://www.bmc.com/legal/csma.html.
FREE TRIAL.
BMC may make the Subscription Services available to Customer on a trial basis free of charge. If BMC offers Customer a free trial, it will run until the earlier of (a) the end of the trial period stated on the trial registration web page or (b) the start date of any Order for purchase of the Subscription Services. Additional trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.
ANY DATA CUSTOMER ENTERS INTO THE SUBSCRIPTION SERVICES, AND ANY CUSTOMIZATIONS MADE TO THE SUBSCRIPTION SERVICES BY OR FOR CUSTOMER, DURING A FREE TRIAL MAY BE PERMANENTLY LOST.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THE AGREEMENT, DURING ANY FREE TRIAL PERIOD THE SUBSCRIPTION SERVICES ARE PROVIDED “AS IS” WITH NO WARRANTY.
1. DEFINITIONS.
1.1 “Affiliate” is an entity that controls, is controlled by or shares common control with BMC or Customer, where such control arises from the legal power to direct or cause the direction of the general management and policies of the company, partnership or legal entity.
1.2 "Subscription Services" means the generally available hosted service which packages web-based access and the right-to-use the supported applications, installed agents and associated reference, user and technical guides.
1.3 “Capacity” means the amount of access to the Subscription Services purchased as specified in an Order, which is counted in accordance with the Unit of Measure described in the Order.
1.4 “Customer Content” means all electronic data or information (a) submitted to the Subscription Services by Customer, a third party on behalf of Customer, or as directed by Customer or (b) collected, processed or returned by the Subscription Services .
1.5 “Order” means (i) the agreed ordering document for the purchase of the Subscription Services, (ii) that is subject to this Agreement, and (iii) that identifies the terms of the purchase and fees to be paid. The term “Order” includes Customer’s online registration for and purchase of the Subscription Services, If any.
1.6 “User Guide” means the online help, functional guide and technical specifications for the Subscription Services, as updated by BMC from time to time.
2. SCOPE. Subject to the terms of this Agreement, Customer may purchase and BMC will provide Customer with access to the Subscription Services as set forth in this Agreement and the applicable Order. Subject to the Attachments to this Agreement, Customer may also purchase BMC Platform Services, BMC Consulting Services and BMC On Premise Subscription Services. In the event of a direct conflict between any Order and the terms of this Agreement, the terms of the Order will control only if the Order is executed by an authorized representative of each party. Orders may be entered under this Agreement by and between (a) BMC or an Affiliate of BMC; and (b) Customer or an Affiliate of Customer. With respect to an Order, the terms “BMC” and “Customer” as used in this Agreement will be deemed to refer to the entities that execute that Order, the Order will be considered a two party agreement between such entities, and BMC will separately invoice the Customer named in the Order for the associated fees. Orders may also be placed via a BMC authorized reseller. Neither execution of this Agreement, nor anything contained herein, shall obligate either party to enter into any Orders.
3. ACCESS TO SUBSCRIPTION SERVICES.
3.1 Access Rights. Subject to Customer’s payment of applicable fees and to the terms of this Agreement, BMC will provide Customer with worldwide access to the Subscription Services in accordance with the Order (i) up to the Capacity, (ii) for Customer’s and its Affiliates’ internal business operations, (iii) in accordance with the User Guide and the applicable Order. Customer may exercise its rights under this Section 3.1 through its service providers, outsourcers, employees, consultants, contractors, agents, and Affiliates (all, “Users”).
3.2 BMC Subscription Services Support. BMC will provide the support described at http://www.bmc.com/support/review-policies (“Support”) to Customer for the Subscription Services.
3.3 Use of Subcontractors. Customer acknowledges and agrees that BMC uses subcontractors to provide portions of the Subscription Services. BMC will provide a list of its current subcontractors upon Customer’s written request. BMC is responsible for the performance of all subcontractors providing any of the Subscription Services.
3.4 Compliance with Laws. Each party shall comply with all applicable laws in the performance of its obligations under this Agreement.
3.5 Customer Responsibilities and Restrictions.
(a) Customer will (i) maintain the confidentiality of all authentications and passwords for the Subscription Services and immediately notify BMC if it becomes aware that an unauthorized party has gained access such authentications and passwords, (ii) be responsible for use of the Subscription Services by its Users in compliance with this Agreement, (iii) prevent unauthorized access to, or use of, the Subscription Services, and notify BMC promptly of any such unauthorized access or use, (iv) comply with all applicable laws in using the Subscription Services, and (v) be responsible for obtaining its own Apple Push Notification certificate, if the Subscription Services are used to manage devices running iOS. Customer is responsible for the creation and implementation of a privacy policy and end user agreement, if applicable, which will set forth the guidelines of how Customer uses and protects the data and personal information of its Users, and how said Users may utilize the Subscription Services.
(b) Customer will not (i) modify, copy or create derivative works based on the Subscription Services; (ii) create Internet “links” to or reproduce any content forming part of the Subscription Services, other than for its own internal business purposes; (iii) disassemble, reverse engineer, or decompile the Subscription Services or part thereof, except to the extent expressly permitted by applicable law despite this limitation without possibility of contractual waiver; (iv) interfere with or disrupt the integrity or performance of the Subscription Services; (vi) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortuous material, or send or store material in violation of any third party’s privacy rights via the Subscription Services; (vii) send or store viruses or malicious code via the Subscription Services; (viii) attempt to gain unauthorized access to the Subscription Services or its related software, systems, platforms or networks, including any form of security and/or penetration testing; (ix) use any components provided with the Subscription Services separately from the Subscription Services; or (x) distribute, rent, lease or provide the Subscription Services to any third party or use it in a service bureau, outsourcing environment, or for the processing of third party data .
4. FEES AND PAYMENT.
4.1 Fees. The fees payable for the Subscription Services and the payment period for such fees will be set forth in and paid in accordance with the Order. All payments are due within 30 days of the date of the invoice.
4.2 Late Fees. Late balances may, at BMC’s sole election, bear interest at a rate equal to the lesser of 1% per month or the maximum amount permitted by law.
4.3 Taxes. Customer will pay taxes imposed in connection with the fees paid for the Subscription Services, which are exclusive of these taxes.
4.4 Solution Providers. With regard to Subscription Services acquired by Customer through an authorized Solution Provider of BMC, notwithstanding anything to the contrary in sections 4.1 and 4.2 above, Customer will have no direct payment obligations to BMC for such fees.
5. TERM, SUSPENSION AND TERMINATION.
5.1 Term. This Agreement begins on the Effective Date and will remain in effect unless terminated pursuant to Section 5.2 below, regardless of the billing frequency selected in the Order.
5.2 Termination.
(a) Termination for Convenience. Customer may terminate this Agreement by providing BMC with at least 30 days prior written notice; provided, however, such termination will have no effect on Orders in effect at the time of such termination. Orders may not be terminated for convenience unless otherwise specified therein. Customer may notify BMC of its intent to terminate by emailing BMC at order_services@bmc.com.
(b) Termination for Cause. Either party may terminate this Agreement and/or an Order for cause: (i) upon 30 days’ written notice of a material breach to the other party if such breach remains uncured at the expiration of such period; or (ii) immediately if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. In the event Customer terminates the Agreement and an Order for BMC’s material breach, BMC will refund the amount paid by Customer to BMC for the Subscription Services on such Order, pro-rated from the date of the notice of the termination.
5.3 Suspension of Subscription Services for Cause. In addition to its other rights and remedies, BMC reserves the right, without liability to Customer, to suspend any and all access to the Subscription Services if Customer commits a material breach of this Agreement and fails to cure the same within 30 days from Customer’s receipt of written notice of such breach from BMC. Provided however, that BMC may immediately suspend any and all access to the Subscription Services without any cure period if BMC determines in good faith that Customer’s material breach of the Agreement will cause damage to BMC, the Subscription Services, or any other customer.
5.4 Effects of Termination. Upon termination or expiration of any Order or this Agreement, all rights and Licenses granted thereunder will terminate and Customer will make no further use of the Subscription Services. No termination will relieve the Customer of the obligation to pay any fees accrued or payable to BMC pursuant to any Order. Upon written request by Customer made within 45 days after the effective date of termination, BMC will make the Customer Content available to Customer for retrieval in an industry standard format. After such 45-day period, BMC shall have no obligation to maintain any Customer Content and will thereafter delete Customer Content. Any terms in this Agreement which by their nature extend beyond termination of this Agreement will remain in effect until fulfilled.
5.5 Termination Assistance. Upon Customer’s request and upon (a) the expiration of an Order or (b) the termination of an Order for any reason other than Customer’s breach, BMC shall perform such services as the parties in good faith agree are reasonably necessary to facilitate the orderly transition of the Services to the successor service provider or to the Customer. BMC will provide any such services under the terms and conditions of the Agreement, and subject to payment of the then-current fees and charges, generally applicable to BMC’s performance of such services, as agreed between the parties at such time.
6. LIMITED WARRANTY.
6.1 Warranties and Limited Remedies. BMC warrants to Customer that:
(a) the online availability of the Subscription Services will be maintained in accordance with the service levels attached to the applicable Order, if any (the “Service Level Agreement” or “SLA”). Customer’s exclusive remedy and BMC’s sole obligation for breach of the warranty in this Section 6.1(a) is described in the Service Level Agreement;
(b) the Subscription Services (i) will perform in substantial accordance with the then-current on-line User Guide available via the Subscription Services and (ii) will be performed in a manner consistent with industry standards reasonably applicable to the provision thereof. Customer’s exclusive remedy and BMC’s sole obligation for breach of the warranty in this Section 6.1(b) will be BMC’s use of commercially reasonable efforts to have the Subscription Services perform in substantial accordance with the User Guide, or replace the non-conforming portion of the Subscription Services within 60 days from the written notice of claim, or if BMC cannot have the Subscription Services perform in substantial accordance with the User Guide or replace the Subscription Services within such time period, then Customer may terminate the non-performing Subscription Services, and upon such termination BMC will refund the amount paid by Customer for the Subscription Services, pro-rated from the date of the notice of the claim. Customer’s rights and BMC’s obligations in this Section 6.1(b) are conditioned upon Customer’s providing BMC with written notice of the claim, a complete description of the alleged defects and a specific reference to the User Guide to which such alleged defects are contrary; and
(c) In connection with the Subscription Services (i) it has used commercially reasonable efforts consistent with industry standards to scan for and promptly remove any software viruses for no charge and (ii) it has not inserted any Disabling Code. “Disabling Code” means computer code inserted by BMC, that is not addressed in the User Guide, and that is designed to expose data, delete, interfere with, and/or disable the normal operation of the Subscription Services. This Disabling Code warranty does not apply to BMC passwords necessary for the operation of the Subscription Services, or for any use by Customer outside the scope of this Agreement.
6.2 Disclaimer. CUSTOMER ACKNOWLEDGES THAT, EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, BMC, ITS AFFILIATES AND LICENSORS MAKE NO WARRANTY, EXPRESS, IMPLIED OR STATUTORY WITH RESPECT TO THE SUBSCRIPTION SERVICES OR USE THEREOF. BMC, ITS AFFILIATES AND LICENSORS HEREBY EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY THAT SUBSCRIPTION SERVICES WILL BE UNINTERRUPTED, ERROR FREE OR WITHOUT DELAY, AND THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INTERFERENCE, NON-INFRINGEMENT AND INFORMATION CONTENT.
7. PROPRIETARY RIGHTS AND CONFIDENTIALITY.
7.1 Proprietary Rights. BMC, its Affiliates or licensors retain all right, title and interest to the Subscription Services and all related intellectual property and proprietary rights. The Subscription Services are protected by applicable copyright, trade secret, industrial and other intellectual property laws. BMC owns all right, title and interest in all software, programming, documentation, templates, questionnaires, methodologies, models, charts, reports, ideas, features, content, functions, graphics and any other items provided as part of the Subscription Services (“ Service Items”) and access to and use of the relevant Service Items will be governed by the terms of this Agreement. Subject to (i) BMC’s or its licensor’s ownership of any Service Items and (ii) section 3.4 (b) (i) of the Agreement, Customer owns all rights, title, and interest in Customer Applications, including all proprietary and intellectual property rights. BMC reserves any rights not expressly granted to Customer. Customer shall not access the Subscription Services in order to build a competitive product or service or copy any ideas, features, functions or graphics of the Subscription Services. “ Confidential Information” means all proprietary or confidential information that is disclosed to the recipient (“Recipient”) by the discloser (“ Discloser”), and includes, among other things (i) any and all information relating to products or services provided by a Discloser, its customer-related and financial information, software code, flow charts, techniques, specifications, development and marketing plans, strategies, and forecasts; (ii) as to BMC, and its licensors, the Subscription Services and Service Items; and (iii) the terms of this Agreement, including without limitation, pricing information. Confidential Information does not include information that Recipient can show: (a) was rightfully in Recipient’s possession without any obligation of confidentiality before receipt from the Discloser; (b) is or becomes a matter of public knowledge through no fault of Recipient; (c) is rightfully received by Recipient from a third party without violation of a duty of confidentiality; or (d) is or was independently developed by or for Recipient. Recipient may not disclose Confidential Information of Discloser to any third party or use the Confidential Information in violation of this Agreement. The Recipient (i) will exercise the same degree of care and protection with respect to the Confidential Information of the Discloser that it exercises with respect to its own Confidential Information and (ii) will not, either directly or indirectly, disclose, copy, distribute, republish, or allow any third party to have access to any Confidential Information of the Discloser. Notwithstanding the foregoing, Recipient may disclose Discloser’s Confidential Information to Recipient’s employees and agents who have need to know provided that such employees and agents have legal obligations of confidentiality substantially the same (and in no case less protective) as the provisions of this Agreement.
7.2 Notification Obligation. If the Recipient becomes aware of any unauthorized use or disclosure of Discloser’s Confidential Information, then Recipient will promptly and fully notify the Discloser of all facts known to it concerning such unauthorized use or disclosure. In addition, if the Recipient or any of its employees or agents are required (by oral questions, interrogatories, requests for information, or documents in legal proceedings, subpoena, civil investigative demand, or other similar process) to disclose any of Discloser’s Confidential Information, the Recipient will not disclose the Discloser’s Confidential Information without providing the Discloser with commercially reasonable advance prior written notice to allow Discloser to seek a protective order or other appropriate remedy or to waive compliance with this provision. In any event, the Recipient will exercise its commercially reasonable efforts to preserve the confidentiality of the Discloser’s Confidential Information, including, without limitation, cooperating with Discloser to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded to the Confidential Information.
7.3 Customer Content. As between BMC and Customer, Customer owns all rights, title and interest in and to Customer Content. Customer Content is deemed Confidential Information under this Agreement. BMC will use the Customer Content only as necessary to provide the Subscription Services in accordance with this Agreement. At any time during the term of the Subscription Services, Customer may request copies of all Customer Content from the Subscription Services. Customer is responsible for complying with all legal and contractual requirements, including its agreements with third parties. With the exception of Customer Content collected by the Subscription Services, Customer is solely responsible for the transmission of Customer Content to BMC and to the Subscription Services. Customer is solely responsible for the encryption of any Customer Content during such transmission.
7.4 Suggestions. Customer agrees that BMC shall have a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into any BMC products or services any suggestions, enhancement requests, recommendations or other feedback provided by Customer relating to the Subscription Services.
8. DISCLAIMER OF DAMAGES AND LIMITS ON LIABILITY.
8.1 DISCLAIMER OF DAMAGES. NEITHER PARTY OR ITS AFFILIATES OR LICENSORS ARE LIABLE FOR ANY, SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES RELATING TO OR ARISING OUT OF THIS AGREEMENT OR THE SUBSCRIPTION SERVICES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST COMPUTER USAGE TIME, AND DAMAGE TO, OR LOSS OF USE OF, DATA), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND IRRESPECTIVE OF ANY NEGLIGENCE OF A PARTY OR WHETHER SUCH DAMAGES RESULT FROM A CLAIM ARISING UNDER TORT OR CONTRACT LAW. THE FOREGOING LIMITATIONS DO NOT APPLY TO EACH PARTY’S RESPONSIBILITIES IN SECTION 9, INFRINGEMENT BY A PARTY OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, GROSS NEGLIGENCE, WILLFUL MISCONDUCT, DEATH OR BODILY INJURY, ACTS OF FRAUD, NOR ANY LIABILITY WHICH MAY NOT BE EXCLUDED OR LIMITED BY LAW.
8.2 LIMITS ON LIABILITY. NEITHER PARTY OR ITS AFFILIATES OR LICENSORS SHALL HAVE AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SUBSCRIPTION SERVICES, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEEDING THE AMOUNTS ACTUALLY PAID BY AND DUE FROM CUSTOMER FOR THE SUBSCRIPTION SERVICES GIVING RISE TO LIABILITY PURSUANT TO THE ORDER(S) THAT ARE IN EFFECT AS OF THE DATE THE LIABILITY FIRST AROSE. THE FOREGOING LIMITATIONS DO NOT APPLY TO EACH PARTY’S RESPONSIBILITIES IN SECTION 9, INFRINGEMENT BY A PARTY OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, GROSS NEGLIGENCE, WILLFUL MISCONDUCT, DEATH OR BODILY INJURY, ACTS OF FRAUD, NOR ANY LIABILITY WHICH MAY NOT BE EXCLUDED OR LIMITED BY LAW.
9. INFRINGEMENT CLAIMS.
9.1 Indemnification by BMC . If a third party asserts a claim against Customer asserting that Customer’s use of the Subscription Services, including Platform Services, Deliverables and Licenses as defined in the Attachments to this Agreement, in accordance with this Agreement violates that third-party’s patent, trade secret or copyright rights (“Infringement Claim”), then BMC will, at its own expense: (a) defend or settle the Infringement Claim; and (b) indemnify Customer for any damages finally awarded against Customer based on infringement by the Subscription Services or Deliverables, including court costs and reasonable attorney’s fees. If BMC believes the Subscription Services may violate a right, then BMC will, at its expense: (a) modify the Subscription Services, or (b) procure the right to continue using the Subscription Services, and if (a) or (b) are not commercially reasonable, terminate Customer's right to use the Subscription Services and issue a pro-rata refund for the unexpired pre-paid portion of such Subscription Services.
9.2 Indemnification by Customer. Subject to the terms of this Agreement, if a third party asserts a claim against BMC asserting that the (i) Customer Content, (ii) Customer Applications as defined in Attachment A, (iii) Customer Property as defined in Attachment B or (iv) Customer’s use of the Subscription Services in violation of this Agreement violates that third-party’s patent, trade secret or copyright rights (“ Claim”), Customer will, at its own expense: (a) defend or settle the Claim; and (b) indemnify BMC for any damages finally awarded against BMC based on the Claim, including court costs and reasonable attorney’s fees.
9.3 Indemnity Process. Neither party’s obligations under this Section will apply if: (a) the indemnifying party’s legal department does not receive prompt, detailed written notice of the Infringement Claim/Claim from the party being indemnified, (b) the indemnifying party is not able to retain sole control of the defense of the Infringement Claim/Claim and all negotiations for its settlement or compromise, or (c) the indemnifying party does not receive all reasonable assistance from the party being indemnified. Neither party will bind the indemnified party to a monetary obligation in a settlement or compromise, or make an admission on behalf of the indemnified party, without obtaining that party’s prior consent.
9.4 THIS SECTION 9 CONTAINS EACH PARTY'S EXCLUSIVE REMEDIES AND THE INDEMNIFYING PARTY'S SOLE LIABILITY FOR INFRINGEMENT CLAIMS/CLAIMS, RESPECTIVELY.
10. EXPORT CONTROLS. Both parties agree to comply with applicable export regulations, including but not limited to U.S. Export Administration Regulations and the OFAC embargoes and sanctions lists. More information on BMC’s export compliance program may be found here: https://www.bmc.com/legal/export-compliance.html.
11. GOVERNING LAW AND DISPUTE RESOLUTION. Any controversy, dispute or claim arising out of or relating to this Agreement, or to the formation, interpretation, breach, termination, or validity thereof (each, a “Controversy”) will be resolved as follows:
(i) UNITED STATES. If both parties to this Agreement are entities incorporated under the law of any state in the United States, the Controversy shall be tried in either state or federal court located in Houston, Texas and the laws of the State of Texas shall govern. Both parties hereby submit to the exclusive jurisdiction of the courts in Houston, Texas and waive all defenses based on forum non conveniens. Notwithstanding the foregoing, if Customer is a state or local governmental entity or higher education institution and legally required to apply state law, then Customer’s state law will apply to the Controversy, without reference to conflict of law principles.
(ii) CANADA. If Customer is located in Canada (outside Quebec), then the law of the Province of Ontario law apply, without reference to conflict of law principles. If Customer is located in Quebec, then the laws of the Province Quebec will apply, without reference to conflict of law principles.
(iii) EMEA. If both parties to this Agreement are entities incorporated in countries in the Europe, Middle East, or Africa regions, the Controversy shall be tried in the District Court located in Amsterdam, the Netherlands and the substantive laws of the Netherlands shall govern. Both parties hereby submit to the exclusive jurisdiction of the District Court in Amsterdam, the Netherlands and waive all defenses based on forum non conveniens.
(iv) ASIA PACIFIC. If both parties to this Agreement are entities incorporated in countries in the Asia Pacific region, the arbitration shall be held in Singapore under the then-applicable rules of the Singapore International Arbitration Centre and the substantive laws of Singapore will govern.
(v) OTHER REGIONS. In all other instances, the arbitration shall be held in New York City, New York, under the then-applicable international rules of the American Arbitration Association and the substantive laws of the State of Texas will govern.
For all arbitrations conducted hereunder: (a) the arbitration shall be conducted in English; (b) the relevant arbitral institution shall determine the number of arbitrators, but any Controversy in which the amount in dispute is greater than $10 million USD shall be decided by three arbitrators, with each party having the right to select one arbitrator; (c) the costs of such arbitration shall be borne equally, pending the arbitrator’s award; (d) the arbitration award rendered shall be final and binding on the parties, shall not be subject to appeal to any court and shall be enforceable in any court having jurisdiction over the parties; (e) the arbitration proceedings, award and pleadings shall all be confidential, unless disclosure of particular information is required for purposes of enforcing/challenging the award or to meet local securities law requirements; and (f) the party prevailing in arbitration shall be entitled to recover its reasonable attorneys’ fees and the necessary costs incurred in connection with the arbitration.
The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. Nothing in this Agreement shall be deemed as preventing either party from seeking immediate injunctive relief from any court having jurisdiction over the parties and the subject matter of the dispute.
12. The following BMC contracting entities apply to this Agreement:
Region | Contracting Entity | Address of Contracting Entity |
United States and Latin America South (not a specified Central or South America country below) | BMC Software, Inc. | 2103 CityWest Boulevard, Houston, Texas 77042 |
Canada | BMC Software Canada Inc. | 50 Minthorn Boulevard, Suite 200 Markham, Ontario L3T 7X8 Canada |
EMEA (Europe, Middle East and Africa) | BMC Software Distribution B.V. | Vision Plaza West, 2nd floor, Boeingavenue 220, 1119PN Schiphol-Rijk, The Netherlands |
Brazil | BMC Brasil Software Ltda. | Avenida Dra. Ruth Cardoso, n° 8.501, Condomínio Eldorado Business Tower, 22° andar, Pinheiros, São Paulo – SP, CEP: 05425-070 |
Mexico | BMC Software Distribution de México, S.A. de C.V. | Volcán 150, Piso 4, Col. Lomas de Chapultepec, C.P. 11000, Deleg. Miguel Hidalgo, Ciudad de México |
Argentina | BMC Software de Argentina S.A. | Ing. Butty 220 - Piso 18, Catalinas Plaza Buenos Aires, República de Argentina, C1001A |
S.E.A (Southeast Asia), Australia, New Zealand, Hong Kong, Taiwan | BMC Software Ireland Limited | Building 3, Cherrywood Business Park, Bray Road, Loughlinstown, CO. Dublin, D18 TF72 |
China | BMC Software (China) Limited | Room 502, Level 5, Tower W1, The Towers, Oriental Plaza, No. 1 East Chang An Ave., Dong Cheng Dist., Beijing 100738, China |
Japan | BMC Software K.K. | Harmony Tower 24th Floor, 1-32-2 Honcho, Nakano-ku, Tokyo, 164-8721 |
Korea | BMC Software Korea Ltd | 24th Fl., ASEM Tower, 1517, Yeongdong-daero,Gangnam-gu, Seoul 135-798, Korea South |
13. U.S. GOVERNMENT END USER RIGHTS. This Section applies only to acquisitions of the commercial Subscription Services subject to this Agreement by or on behalf of the United States Government, or by any prime contractor or subcontractor (at any tier) under any contract, grant, agreement or other activity with the United States Government. When Subscription Services are delivered or provided to the United States Government, the United States Government agrees that this commercial license Agreement and the Subscription Services governed by this Agreement are defined in accordance with and qualify as “commercial items” consisting of “commercial computer software” and “commercial computer software documentation” as outlined in FAR 12.211, FAR 12.212 and DFARS 227.7202-3, as applicable. The terms and conditions of this Agreement shall pertain to the United States Government’s use (including documentation or technical data), duplication, and disclosure of the Subscription Services, and shall supersede any conflicting contractual terms and conditions”.
14. DATA PROTECTION. The processing of Customer Content under this Agreement is governed by the BMC Data Processing Agreement set forth on the Order.
15. VERIFICATION. Customer agrees that BMC or its agent may monitor the Subscription Services to ensure Customer’s compliance with the terms of this Agreement. If such monitoring reveals that Customer has exceeded the Capacity for the Subscription Services, BMC may work with Customer to seek to reduce Customer’s usage so that it conforms to the Capacity limit for such Subscription Service. If, notwithstanding BMC’s efforts, Customer is unable or unwilling to abide by the Capacity limits for the Subscription Services, Customer will execute an Order for additional Capacity of such Subscription Services promptly upon BMC’s request.
16. NOTIFICATIONS. Any general notifications regarding technical matters from BMC to Customer will be sent to the Customer contact stated in the Customer Technical Contact Information section of the Order. The Customer contact in the Order has been assigned by Customer as the Customer contact for operational issues that may arise. Customer shall notify BMC of any change to the Customer contact details in writing, which may include via e-mail.
17. CONDUCTING BUSINESS WITH HONESTY AND INTEGRITY. BMC is committed to conducting business with honesty and integrity. BMC’s Code of Conduct set forth in https://www.bmc.com/content/dam/bmc/corporate/Code%2Bof%2BConduct(English).pdf governs the conduct of all officers, directors, and employees of BMC. BMC’s Third-Party Code of Conduct set forth in https://www.bmc.com/content/dam/bmc/corporate/Third+Party+Code+of+Conduct.pdf governs the conduct of contingent workers and business partners acting on BMC’s behalf. BMC demonstrates its commitment to environmental stewardship by its global accreditation for ISO 14001:2015.
18. MISCELLANEOUS TERMS. The parties are independent contractors and this Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties. Customer will receive system notifications from BMC and its licensors, if applicable (i.e. planned downtime notices, etc). This Agreement, including the Attachments and Orders constitutes the entire agreement between Customer and BMC and supersedes any prior or contemporaneous negotiations or agreements, whether oral or written concerning the Subscription Services. There are no representations, promises, warranties, covenants, or undertakings between the parties other than those expressly set forth in this Agreement. There are no third-party beneficiaries to this Agreement; Customer is not entering into a contractual relationship with BMC’s licensors and BMC’s licensors have no liability to Customer. Except as provided in Section 2 above, no modification or waiver of any provision hereof will be effective unless made in a writing signed by both BMC and Customer. Customer has the right to assign this Agreement and all Orders in whole to an Affiliate, or to a successor in connection with (i) the sale of all or substantially all of the assets of that party or (ii) a merger by operation of law, by providing written notice to BMC. The assignee may not be a known direct competitor of BMC. The successor entity or Affiliate must agree in writing with BMC (in advance of the assignment) to be bound by the terms of this Agreement. Any Customer transfer or assignment except as expressly authorized above will be null and void. Should any provision of this Agreement be invalid or unenforceable, the remainder of the provisions will remain in effect. Any additional or conflicting terms of any Customer purchase order are rejected by BMC and do not apply. The Subscription Services may contain hyperlinks to websites controlled by parties other than BMC. BMC is not responsible for and does not endorse the content or accept any responsibility for Customer’s use of these websites. Customer should refer to the policies posted by other websites regarding privacy and other topics regarding data privacy before using them. Les parties exigent que la présente convention ainsi que les documents qui s’y rattachent soient rédigés en anglais.
Attachments incorporated into Agreement |
Attachment A – Platform Services Attachment |
Attachment B – Consulting Services Attachment |
Attachment C – On Premise Subscription Services Attachment |
PLATFORM SERVICES ATTACHMENT
to the
BMC CLOUD SERVICES MASTER AGREEMENT
Except as otherwise provided herein, the terms of the Cloud Services Master Agreement (the “Base Agreement”) are incorporated into this Platform Services attachment (the “Attachment”). Together, this Attachment and the Base Agreement (as incorporated into this Attachment) are referred to as the “Agreement” for purposes of Customer’s access and use of Platform Services, only if the Platform Services are set forth on an Order referencing the Base Agreement. For purposes of this Agreement, the term “Subscription Services” as defined in the Base Agreement shall be extended to include the Platform Services. In the event of a conflict between the Base Agreement and the terms of this Attachment, the terms of this Attachment will control for Customer’s access and use of the Platform Services only.
1. SCOPE. Subject to the terms of this Agreement, BMC will provide Customer with access to the Platform Service named in the applicable Order.
2. DEFINITIONS.
2.1 “Application” is the object code, its definitional structures, and data created to fulfill a particular purpose, which runs on the Platform Services. An Application may also include its documentation and User Guide.
2.2 “Customer Applications” means Applications that are owned or licensed by Customer, and which run on the Platform Services.
2.3 “Development Platform” means a BMC provided development platform which allows Customer to develop a custom application to run on the Platform Services. The Development Platform is a separate environment from the Platform Services.
2.4 “Platform” means the generally available BMC-provided PaaS platform and its capabilities to run Applications.
2.5 “Platform Services” means the specific Platform Services identified in the Order.
3. BMC PLATFORM SERVICES.
3.1 BMC Platform Services Support. BMC will provide Support only for Platform Services. Customer is responsible for its own support for Customer Applications.
4. CUSTOMER APPLICATIONS.
4.1 The terms contained in this section 4 apply only to Orders for Platform Services entitling Customers to develop and deploy Customer Applications onto the Platform Services. Any Customer Applications that run on the Platform Services are hereby excluded from the defined terms “Subscription Services” and “Platform Services”.
4.2 Development Platform. Customer may utilize the Development Platform to create an Application to run on the Platform Services. Customer’s use of the Development Platform is governed by the terms of this Agreement subject to the restrictions set forth in sections 4.2.1 to 4.2.6 below. Customer’s development of an Application must meet the best practices development guidelines set forth in the User Guide. Each Customer Application shall at all times materially conform to policies and best practices set forth in the User Guide. Prior to the deployment of any Customer Applications in a production or non-production environment of the Platform Services, Customer must conduct security and functional tests of each Customer Application and submit the results of such tests to BMC for review. BMC reserves the right to reject Customer’s deployment request of a Customer Application based on the results of Customer’s security and functional tests. Additionally, BMC reserves the right, during the term of this Agreement, to request Customer conduct additional security and functional tests and provide the results of said tests to BMC for review. Notwithstanding the foregoing, Customer must ensure that at all times Customer Applications are secure.
4.2.1 Scope of use. The right to access and use the Development Platform is granted solely for the purpose of performing non-production application development work on the Development Platform.
4.2.2 Restrictions of use. Customer agrees not to:
(i) use the Development Platform to (1) process production data or for any other production purposes, including but not limited to publishing digital applications, or (2) distribute applications;
(ii) use the Development Platform with data or information that has not been backed up; or
(iii) modify, delete or remove any ownership, title, trademark, patent or copyright notices.
4.2.3 Customer Responsibilities. Customer is responsible for acquiring all necessary and required licenses for the use of any third party software, source code and/or libraries Customer may use as part of its development with the Development Platform. In addition to its other rights and remedies, BMC reserves the right, without liability to Customer, to immediately, at any time and for any reason refresh Customer’s instance of the Development Platform. Upon BMC’s refreshing of Customer’s instance of the Development Platform, Customer may lose all Customer Content submitted to or stored in said instance of the Development Platform. Upon expiration or termination of the applicable Order, BMC may destroy any Customer Content submitted to or stored therein. Customer is responsible for backing up any development work with Customer Content outside of the Development Platform.
4.2.4 Open Source. Customer may not use any software, library, utility, tool, or other computer or program code (“Code”) with the Subscription Services that in any way that would (i) weaken BMC’s intellectual property rights in the Services, or (ii) require the Subscription Services to become or be disclosed or distributed as Open Source Software. For purposes of this Section, “Open Source Software” means any Code that is substantially similar to, (A) the Affero General Public License, (B) the GNU General Public License (GPL) or Lesser/Library GPL (LGPL), (C) the Artistic License (e.g. PERL), (D) the Mozilla Public License, (E) the Netscape Public License, (F) the Sun Community Source License (SCSL), (G) the Sun Standards License (SISL), or (H) any “copyleft” license, or any other license that requires as a condition of use, reproduction, modification, or distribution that such Code or other software or computer code distributed with it: (1) be disclosed or distributed in source code form; (2) be licensed for the purpose of creating derivative works; (3) be licensed under terms that allow reverse engineering, reverse assembly, or disassembly of any kind; (4) be subject to a patent non-assert or royalty-free patent license; or (iv) be redistributable at no charge.
4.2.5 No Support. BMC, its affiliates, or licensors do not provide Support for the Development Platform.
4.2.6 Disclaimer of Warranty, Limitation of Liability and Exclusive Remedy. Notwithstanding anything to the contrary in the applicable Order or this Agreement:
a. THE DEVELOPMENT PLATFORM IS PROVIDED “AS IS” WITHOUT ANY WARRANTY OF ANY KIND WHATSOEVER. BMC, ITS AFFILIATES AND LICENSORS DO NOT WARRANT THAT THE DEVELOPMENT PLATFORM WILL SATISFY CUSTOMER’S REQUIREMENTS, THAT THE DEVELOPMENT PLATFORM IS WITHOUT DEFECT, VIRUS OR ERROR FREE, WITHOUT DELAY, OR THAT THE OPERATION OF THE DEVELOPMENT PLATFORM WILL BE UNINTERUPTED. BMC, ITS AFFILIATES AND LICENSORS DISCLAIM ANY AND ALL REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, MADE WITH RESPECT TO THE DEVELOPMENT PLATFORM, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INTERFERENCE AND INFORMATION CONTENT; AND
b. NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY, FOR ANY CLAIM, LOSS, DAMAGE OR EXPENSE FOR INDIRECT, SPECIAL, CONSEQUENTIAL, PUNITIVE OR INCIDENTAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE DEVELOPMENT PLATFORM (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST COMPUTER USAGE TIME, AND DAMAGE TO, OR LOSS OF USE OF, DATA), EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EITHER PARTY’S ENTIRE LIABILITY AND THE OTHER PARTY’S EXCLUSIVE REMEDY FOR DIRECT DAMAGES ARISING OUT OF OR RELATED TO THE DEVELOPMENT PLATFORM, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, IS LIMITED TO $100.
4.3 License to Customer Applications. Subject to the terms and conditions of this Agreement, Customer hereby grants BMC a worldwide, limited, nonexclusive license during the term of the applicable Order for the Platform Services to host, copy, transmit, adapt and display Customer Applications solely for the purpose of fulfilling BMC’s obligations under this Agreement.
4.4 Functionality of Customer Applications. Customer is solely responsible for the operation of Customer Applications, including but not limited to any information stored in or transmitted by Customer Applications. Customer is responsible for monitoring the usage of each Customer Application. Customer is responsible for the configuration, functionality, performance, compliance with applicable data protection laws and security of all Customer Applications, including any interfaces used to connect to Customer Applications.
4.5 Customer will provide information or other materials related to a Customer Applications as reasonably requested by BMC to verify Customer’s compliance with the Agreement and the User Guide.
4.7 Suspension of Customer Applications. Customer’s use of the Platform Services may be immediately suspended and/or terminated due to (i) reasonable security threats regarding the Platform Services or Customer Applications, (ii) Customer Applications interfering with, disrupting or threatening the integrity or performance of the Subscription Services and/or the Platform Services, or (iii) violates the law, infringes or misappropriates the rights of any third party or otherwise violates a material term of the Agreement. In the event (i) or (ii) above apply to Customer Applications, Customer is required to remediate any such issue to BMC’s commercially reasonable satisfaction before use of Customer Applications can resume. BMC shall use reasonable commercial efforts to only suspend the non-conforming portion of the Platform Services.
4.8 CUSTOMER APPLICATIONS WARRANTIES. Customer warrants to BMC that: (a) each Customer Application will perform materially in accordance with the User Guide; (b) Customer has all rights in the Customer Content and Customer Applications necessary to grant the rights contemplated by this Agreement; (c) none of the Customer Content or Customer Applications or Users’ use of Customer Content or Customer Applications will violate the Agreement and the User Guide; and (d) Customer’s security and functional tests of Customer Applications was conducted in a commercially reasonable manner and the results of said tests provided to BMC for review are correct and valid.
ATTACHMENT B
CONSULTING SERVICES ATTACHMENT
to the
BMC CLOUD SERVICES MASTER AGREEMENT
Except as otherwise provided herein, the terms of the Cloud Services Master Agreement (the “Base Agreement”) are incorporated into this Consulting Services attachment (the “Attachment”). Together, this Attachment and the Base Agreement (as incorporated into this Attachment) are referred to as the “Agreement” for purposes of Customer’s purchase of Consulting Services, only if Consulting Services are set forth on an Order referencing the Base Agreement. For purposes of this Agreement, the term “Subscription Services” as defined in the Base Agreement shall be extended to include Consulting Services. In the event of a conflict between the Base Agreement and the terms of this Attachment, the terms of this Attachment will control for Customer’s purchase of Consulting Services only. The parties agree that the following Sections of the Base Agreement do not apply to the Consulting Services provided under this Attachment: Section 3.2 (Support), Section 4 (Fees and Payment), and Section 6 (Limited Warranty).
1. SCOPE. BMC agrees to render to Customer Consulting Services under the terms of this Agreement and as further described in an Order. BMC will render the Consulting Services in the location(s) as set forth in the Order. The performance of the Consulting Services will not relieve or alter the rights, obligations and responsibilities of Customer and of the BMC Affiliate providing Subscription Services and/or Licenses with respect to Subscription Services and/or Licenses under the applicable agreement.
2. SERVICE FEES AND EXPENSES. The fees payable to BMC for the Consulting Services to be rendered will be detailed in the Order. BMC will submit invoices to Customer for such fees and incurred expenses either upon completion of the Consulting Services, or at stated intervals, in any case in accordance with the applicable Order. Customer shall pay amounts invoiced within 30 days following receipt of the invoice.
3. EDUCATION. Customer may acquire Learning Pass Credits and Education Services (collectively, “BMC Education ”) on an Order. The BMC Education terms that govern such Orders are set forth in the Education Program Guide located at https://www.bmc.com/content/dam/bmc/education/education-program-guide.pdf, and is incorporated herein by this reference.
4. STATEMENTS OF WORK. Consulting Services may require the execution of a Statement of Work, in which case, such Statement of Work will be considered an Order for such Consulting Services. In the event of any conflict between the terms of a Statement of Work and this Agreement, the Agreement shall prevail except for matters of service fees, payment and reimbursement of expense, and termination of Consulting Services if further specified in the Statement of Work. During the term of an applicable Statement of Work, and for a period of six months thereafter, neither party will solicit for employment any employees, agents, or subcontractors of the other party or its affiliates who, within six months prior to such solicitation, had contact with the soliciting party based in whole or in part upon Consulting Services provided under this Agreement. The restrictions in this section shall be deemed not to apply to general solicitations for employment posted on Internet job sites or printed in newspapers or trade or professional journals.
5. PROPRIETARY RIGHTS AND RIGHTS IN DELIVERABLES.
5.1 Ownership of Materials Used in the Consulting Services. Unless specifically provided in an Order, Customer shall supply all of the facilities; equipment; supplies; computer programs; information about Customer’s business, systems, software and needs; and other materials necessary for completion of the Consulting Services (“Customer Property”), and BMC shall supply the people described in the Order, the know-how and the tools necessary to provide the Consulting Services, which may include, among other things, software, templates, questionnaires, graphs, methodologies, models, charts and reports (“BMC Property”). Customer Property and copies and modifications of Customer Property will remain the sole property of Customer or if applicable, Customer’s licensors, and BMC Property and copies and modifications of BMC Property will remain the sole property of BMC or if applicable, BMC’s licensors. Customer hereby grants to BMC a royalty-free, paid-up, non-exclusive, non-sublicensable and non-transferable license to use the Customer Property for the purpose of providing the Consulting Services.
5.2 Deliverables. Deliverables are those created under the Order, including, but not limited to, software, software scripts, routines, libraries or other code, or appliances, methodologies, templates, tools, policies, records, working papers, reports, methodologies, know-how, data, or other intellectual property, written or otherwise, including any derivative works or modifications to the above, whether pre-existing or created during the performance of the Consulting Services and all proprietary and intellectual property rights embedded therein delivered as a result of the Consulting Services as specified under the Order. BMC owns all right, title and interest in the Deliverables. Provided Customer has paid in full for the Consulting Services that resulted in the Deliverables, BMC will deliver the Deliverables to Customer in accordance with the applicable Order. Subject to compliance with the terms of this Agreement and the applicable Order, BMC grants Customer a non-exclusive, non-transferable, non-sublicensable, royalty-free, paid-up license to use, create derivative works of and modify all Deliverables solely for its internal business operations.
5.3 Copyright Notice. Each party agrees to reproduce the copyright notice and any other legend or ownership notice on any copies made under the licenses granted pursuant to this Section 5.
5.4 Retention. Customer acknowledges that BMC provides similar services to other customers and that nothing in this Agreement shall be construed as operating to prevent BMC from carrying on such business. Further BMC may use ideas, concepts, or know-how developed or acquired by BMC during performance of the Consulting Services to the extent by BMC’s personnel as impressions and general learning.
6. LIMITED WARRANTY. BMC warrants that it will perform the Consulting Services in conformance with generally accepted practices within the software services industry and in accordance with the Order. Customer must notify BMC of any breach of this warranty no later than 90 days after completion of the Consulting Services under the Order. Customer’s exclusive remedy and BMC’s entire liability under this warranty shall be for BMC to re-perform any non-conforming portion of the Consulting Services within a reasonable period of time, or if BMC cannot remedy the breach during such time period then refund the portion of the fee attributable to such non-conforming portion of the Consulting Services under the Order. This warranty will not apply to the extent Customer, its contractors or agents have modified any Deliverable, unless otherwise authorized by BMC in writing.
THIS WARRANTY AND CONDITION IS IN LIEU OF ALL OTHER WARRANTIES AND CONDITIONS. THERE ARE NO OTHER EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS, INCLUDING THE IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
7. INSURANCE. BMC will provide and maintain the following insurance, but only for losses arising out of BMC’s provision of Consulting Services under this Attachment:
7.1 Worker’s Compensation insurance as prescribed by the law of the state applicable to the employees performing the Consulting Services;
7.2 Employer’s Liability insurance with a limit of one million US dollars ($1,000,000) for each occurrence;
7.3 Commercial General Liability insurance with one million US dollars ($1,000,000) per occurrence combined single limit and five million US dollars ($5,000,000) general aggregate, including coverage for Products Liability and Completed Operations;
7.4 Automobile Liability insurance, including coverage for Hired and Non-owned vehicles of one million US dollars ($1,000,000) for combined single limit for bodily injury and/or property damage; and
7.5 Professional Liability insurance covering Errors and Omissions in the amount of one million US dollars ($1,000,000) for each occurrence and in the aggregate associated with Consulting Services performed under this AGREEMENT.
8. MUTUAL INDEMNITY. Each party shall indemnify and hold harmless the other party from all claims, liabilities or expenses for physical damage to real property or tangible personal property and bodily injury, including death, to the extent caused by the negligence, gross negligence or willful misconduct of the indemnifying party’s employees or contractors arising out of this Agreement and while at the Customer’s premises. The foregoing indemnities are contingent upon the party seeking indemnity giving prompt written notice to the indemnifying party of any claim, demand or action, and cooperating with the indemnifying party in the defense or settlement of any such claim, demand or action.
9. INDEPENDENT CONTRACTOR. All of the services performed by BMC under this Agreement will be performed as an independent contractor.
ATTACHMENT C
ON PREMISE SUBSCRIPTIONS ATTACHMENT
to the
BMC CLOUD SERVICES MASTER AGREEMENT
Except as otherwise provided herein, the terms of the Cloud Services Master Agreement (the “Base Agreement”) are incorporated into this On Premise Subscriptions attachment (the “Attachment”). Together, this Attachment and the Base Agreement (as incorporated into this Attachment) are referred to as the “Agreement” for purposes of Customer’s purchase and ongoing use of On Premise Subscriptions, only if On Premise Subscriptions are set forth on an Order referencing the Base Agreement. For purposes of this Agreement, the term “Subscription Services” as defined in the Base Agreement shall be extended to include On Premise Subscriptions. In the event of a conflict between the Base Agreement and the terms of this Attachment, the terms of this Attachment will control for Customer’s purchase of On Premise Subscriptions only. The parties agree that the following Sections of the Base Agreement do not apply to the On Premise Subscriptions provided under this Attachment: Section 3.1 (Access Rights), Section 3.4 (Customer Responsibilities and Restrictions), Section 6 (Limited Warranty) and Section 14 (Verification).
1. DEFINITIONS.
1.1 “Authorized User” means Customer, Customer Affiliate(s), and their employees, consultants, contractors and agents that are bound by the terms and conditions no less restrictive than those contained herein and for whom Customer takes full responsibility. Authorized Users do not include service providers or outsourcers.
1.2 "Documentation" means the technical publications relating to the software, such as release notes, license entitlement descriptions, reference, user, installation, systems administrator and technical guidelines, included with the On Premise Subscription.
1.3 “Licensed Capacity” is the amount of each On Premise Subscription licensed as established in the Order.
1.4 “On Premise Subscription” is the object code of the software and all accompanying Documentation delivered to Customer, including all items delivered by BMC to Customer under Support.
2. LICENSE. Subject to the terms, conditions, payment requirements and restrictions set forth in this Agreement, BMC grants Customer a non-exclusive, non-transferable, non-sub-licensable term license to install in the Territory as defined in an Order, access and use the On Premise Subscription during the term specified on the Order (i) by Authorized User(s), (ii) up to the Licensed Capacity, (iii) for Customer’s and its Affiliates’ internal business operations, (iv) in accordance with the Documentation and the applicable Order, and (v) make a reasonable number of copies of the On Premise Subscription for archival purposes only (collectively a "License"). Affiliates may use and access the On Premise Subscriptions under the terms of this Agreement, and Customer is responsible for its Affiliates compliance with the terms of this Agreement.
3. RESTRICTIONS. Customer will not: (a) copy, operate or use any On Premise Subscription in excess of the applicable Licensed Capacity or other than as set forth in the License above; (b) modify, delete or remove any ownership, title, trademark, patent or copyright notices (“Identification”) from any On Premise Subscription, or copy or partial copy of an On Premise Subscription; (c) disassemble, reverse engineer, decompile or otherwise attempt to derive any On Premise Subscription source code from object code, except to the extent expressly permitted by applicable law despite this limitation without possibility of contractual waiver; (d) distribute, rent, lease, sublicense or provide the On Premise Subscription to any third party; (e) use the On Premise Subscriptions in an outsourcing or service bureau environment on behalf of non-Affiliate third parties, or allow the On Premise Subscriptions to be used by an outsourcing or service bureau provider on Customer’s behalf (without obtaining prior written approval from BMC); (f) provide a third party with the results of any functional evaluation, or performance tests, without BMC's prior written approval; or (g) attempt to disable or circumvent any of the licensing mechanisms within the On Premise Subscription.
4. ON PREMISE SUBSCRIPTION PERFORMANCE WARRANTY. BMC warrants that (a) the On Premise Subscription will perform in substantial accordance with its Documentation for a period of one year from the date of the first Order, (b) BMC has used commercially reasonable efforts consistent with industry standards to scan for and remove software viruses, and (c) other than passwords that may be required for the operation of the On Premise Subscription, BMC has not inserted any code that is not addressed in the Documentation and that is designed to delete, interfere with or disable the normal operation of the On Premise Subscription in accordance with the License. This warranty will not apply to any problems caused by hardware, Computers, or software other than the On Premise Subscription, or misuse of the On Premise Subscription, use of the On Premise Subscription other than as provided by the applicable License, modification of the On Premise Subscription, or claims made either outside the warranty period or not in compliance with the notice and access requirements set forth below. No warranty is provided for additional Licensed Capacity, On Premise Subscription provided pursuant to Support. BMC’s entire liability, and Customer’s exclusive remedy, for breach of the above warranty is limited to: BMC’s use of commercially reasonable efforts to have the On Premise Subscription perform in substantial accordance with its Documentation, or replacement of the non-conforming On Premise Subscription within a reasonable period of time, or if BMC cannot have the On Premise Subscription perform in substantial accordance with its Documentation replace the On Premise Subscription within such time period, then BMC will refund the amount paid by Customer for the License for that On Premise Subscription. Customer’s rights and BMC's obligations in this Section are conditioned upon Customer’s providing BMC during the warranty period (i) full cooperation and access to the On Premise Subscription in resolving any claim; and (ii) written notice addressed to the BMC Legal Department that includes notice of the claim, a complete description of the alleged defects sufficient to permit their reproduction in BMC’s development or support environment, and a specific reference to the Documentation to which such alleged defects are contrary.
EXCEPT FOR THE EXPRESS WARRANTIES IN THIS ATTACHMENT, THE ON PREMISE SUBSCRIPTION IS PROVIDED WITH NO OTHER WARRANTIES WHATSOEVER, AND BMC, ITS AFFILIATES AND LICENSORS DISCLAIM ALL OTHER WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE AND IN THE UNITED STATES AND CANADA, MERCHANTABILITY AND NON-INFRINGEMENT. BMC DOES NOT WARRANT THAT THE OPERATION OF THE ON PREMISE SUBSCRIPTION WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT ALL DEFECTS CAN BE CORRECTED.
5. DELIVERY. For On Premise Subscriptions that are delivered electronically, upon request from BMC, Customer agrees to provide BMC with documentation supporting that the designated On Premise Subscription was received electronically. If Customer accepts any On Premise Subscription in a non-electronic format, there may be an additional charge and it is the sole responsibility of Customer to bear any sales/use tax obligation, penalties, and interest. All On Premise Subscriptions are licensed FCA (“Free Carrier” as per Incoterms 2000) shipping point. The On Premise Subscriptions are accepted on the date BMC delivers the On Premise Subscription to the Customer either physically or by providing access codes for electronic download, whichever occurs first, however, such acceptance will not affect the On Premise Subscription Performance Warranty provided in this Agreement.
6. AUDIT. If requested by BMC, and not more than once a year, Customer agrees to deliver to BMC, within 30 days of such request, as specified by BMC either (a) periodic product usage reports generated from specific products or (b) written periodic product usage reports, to be provided solely when the product does not generate reports (“Report”). Additionally, if requested by BMC not more than once a year and upon at least ten days prior written notice to Customer, Customer agrees to allow BMC to perform an audit (“Audit”) to ensure compliance with the terms of this Agreement at the locations where the On Premise Subscriptions are installed, during normal business hours. to ensure compliance with the terms of this Agreement. Customer agrees to cooperate during any such Audit and to provide reasonable access to its information and systems.
Effective September 9th 2020 to October 16th 2020
DownloadTable of Contents
BMC CLOUD SERVICES MASTER AGREEMENT
THIS CLOUD SERVICES MASTER AGREEMENT (“AGREEMENT”) GOVERNS YOUR FREE TRIAL, IF ANY, OF THE SUBSCRIPTION SERVICES.
IF YOU PURCHASE THE SUBSCRIPTION SERVICES, THIS AGREEMENT WILL ALSO GOVERN YOUR PURCHASE AND ONGOING USE OF THE SUBSCRIPTION SERVICES.
BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SUBSCRIPTION SERVICES.
You may not access the Subscription Services if you are BMC’s direct competitor, except with BMC’s prior written consent. In addition, you may not access the Subscription Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.
This Agreement was last updated on September 10, 2020. This Agreement is between the entity or individual entering into this Agreement (“Customer”) and the BMC Contracting Entity for the applicable region as described in Section 12 (“BMC”). It is effective between Customer and BMC as of the date of your acceptance of this Agreement. If Customer has a fully executed BMC Cloud Services Master Agreement then such fully executed BMC Cloud Services Master Agreement supersedes and replaces any clickwrap or click-through agreements (or other similar agreements) that Customer may be required to accept as a part of accessing or using the Subscription Services. For Customer’s convenience, prior versions of this Agreement are available at https://www.bmc.com/legal/csma.html.
FREE TRIAL.
BMC may make the Subscription Services available to Customer on a trial basis free of charge. If BMC offers Customer a free trial, it will run until the earlier of (a) the end of the trial period stated on the trial registration web page or (b) the start date of any Order for purchase of the Subscription Services. Additional trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.
ANY DATA CUSTOMER ENTERS INTO THE SUBSCRIPTION SERVICES, AND ANY CUSTOMIZATIONS MADE TO THE SUBSCRIPTION SERVICES BY OR FOR CUSTOMER, DURING A FREE TRIAL MAY BE PERMANENTLY LOST.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THE AGREEMENT, DURING ANY FREE TRIAL PERIOD THE SUBSCRIPTION SERVICES ARE PROVIDED “AS IS” WITH NO WARRANTY.
1. DEFINITIONS.
1.1 “Affiliate” is an entity that controls, is controlled by or shares common control with BMC or Customer, where such control arises from the legal power to direct or cause the direction of the general management and policies of the company, partnership or legal entity.
1.2 "Subscription Services" means the generally available hosted service which packages web-based access and the right-to-use the supported applications, installed agents and associated reference, user and technical guides.
1.3 “Capacity” means the amount of access to the Subscription Services purchased as specified in an Order, which is counted in accordance with the Unit of Measure described in the Order.
1.4 “Customer Content” means all electronic data or information (a) submitted to the Subscription Services by Customer, a third party on behalf of Customer, or as directed by Customer or (b) collected, processed or returned by the Subscription Services .
1.5 “Order” means (i) the agreed ordering document for the purchase of the Subscription Services, (ii) that is subject to this Agreement, and (iii) that identifies the terms of the purchase and fees to be paid. The term “Order” includes Customer’s online registration for and purchase of the Subscription Services, If any.
1.6 “User Guide” means the online help, functional guide and technical specifications for the Subscription Services, as updated by BMC from time to time.
2. SCOPE. Subject to the terms of this Agreement, Customer may purchase and BMC will provide Customer with access to the Subscription Services as set forth in this Agreement and the applicable Order. Subject to the Attachments to this Agreement, Customer may also purchase BMC Platform Services, BMC Consulting Services and BMC On Premise Subscription Services. In the event of a direct conflict between any Order and the terms of this Agreement, the terms of the Order will control only if the Order is executed by an authorized representative of each party. Orders may also be placed via a BMC authorized reseller. Neither execution of this Agreement, nor anything contained herein, shall obligate either party to enter into any Orders.
3. ACCESS TO SUBSCRIPTION SERVICES.
3.1 Access Rights. Subject to Customer’s payment of applicable fees and to the terms of this Agreement, BMC will provide Customer with worldwide access to the Subscription Services in accordance with the Order (i) up to the Capacity, (ii) for Customer’s and its Affiliates’ internal business operations, (iii) in accordance with the User Guide and the applicable Order. Customer may exercise its rights under this Section 3.1 through its service providers, outsourcers, employees, consultants, contractors, agents, and Affiliates (all, “Users”).
3.2 BMC Subscription Services Support. BMC will provide the support described at http://www.bmc.com/support/review-policies (“Support”) to Customer for the Subscription Services.
3.3 Use of Subcontractors. Customer acknowledges and agrees that BMC uses subcontractors to provide portions of the Subscription Services. BMC will provide a list of its current subcontractors upon Customer’s written request. BMC is responsible for the performance of all subcontractors providing any of the Subscription Services.
3.4 Compliance with Laws. Each party shall comply with all applicable laws in the performance of its obligations under this Agreement.
3.5 Customer Responsibilities and Restrictions.
(a) Customer will (i) maintain the confidentiality of all authentications and passwords for the Subscription Services and immediately notify BMC if it becomes aware that an unauthorized party has gained access such authentications and passwords, (ii) be responsible for use of the Subscription Services by its Users in compliance with this Agreement, (iii) prevent unauthorized access to, or use of, the Subscription Services, and notify BMC promptly of any such unauthorized access or use, (iv) comply with all applicable laws in using the Subscription Services, and (v) be responsible for obtaining its own Apple Push Notification certificate, if the Subscription Services are used to manage devices running iOS. Customer is responsible for the creation and implementation of a privacy policy and end user agreement, if applicable, which will set forth the guidelines of how Customer uses and protects the data and personal information of its Users, and how said Users may utilize the Subscription Services.
(b) Customer will not (i) modify, copy or create derivative works based on the Subscription Services; (ii) create Internet “links” to or reproduce any content forming part of the Subscription Services, other than for its own internal business purposes; (iii) disassemble, reverse engineer, or decompile the Subscription Services or part thereof; (iv) interfere with or disrupt the integrity or performance of the Subscription Services; (vi) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortuous material, or send or store material in violation of any third party’s privacy rights via the Subscription Services; (vii) send or store viruses or malicious code via the Subscription Services; (viii) attempt to gain unauthorized access to the Subscription Services or its related software, systems, platforms or networks, including any form of security and/or penetration testing; (ix) use any components provided with the Subscription Services separately from the Subscription Services; or (x) distribute, rent, lease or provide the Subscription Services to any third party or use it in a service bureau, outsourcing environment, or for the processing of third party data .
4. FEES AND PAYMENT.
4.1 Fees. The fees payable for the Subscription Services and the payment period for such fees will be set forth in and paid in accordance with the Order. All payments are due within 30 days of the date of the invoice.
4.2 Late Fees. Late balances may, at BMC’s sole election, bear interest at a rate equal to the lesser of 1% per month or the maximum amount permitted by law.
4.3 Taxes. Customer will pay taxes imposed in connection with the fees paid for the Subscription Services, which are exclusive of these taxes.
4.4 Solution Providers. With regard to Subscription Services acquired by Customer through an authorized Solution Provider of BMC, notwithstanding anything to the contrary in sections 4.1 and 4.2 above, Customer will have no direct payment obligations to BMC for such fees.
5. TERM, SUSPENSION AND TERMINATION.
5.1 Term. This Agreement begins on the Effective Date and will remain in effect unless terminated pursuant to Section 5.2 below, regardless of the billing frequency selected in the Order.
5.2 Termination.
(a) Termination for Convenience. Customer may terminate this Agreement by providing BMC with at least 30 days prior written notice; provided, however, such termination will have no effect on Orders in effect at the time of such termination. Orders may not be terminated for convenience unless otherwise specified therein. Customer may notify BMC of its intent to terminate by emailing BMC at order_services@bmc.com.
(b) Termination for Cause. Either party may terminate this Agreement and/or an Order for cause: (i) upon 30 days’ written notice of a material breach to the other party if such breach remains uncured at the expiration of such period; or (ii) immediately if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. In the event Customer terminates the Agreement and an Order for BMC’s material breach, BMC will refund the amount paid by Customer to BMC for the Subscription Services on such Order, pro-rated from the date of the notice of the termination.
5.3 Suspension of Subscription Services for Cause. In addition to its other rights and remedies, BMC reserves the right, without liability to Customer, to suspend any and all access to the Subscription Services if Customer commits a material breach of this Agreement and fails to cure the same within 30 days from Customer’s receipt of written notice of such breach from BMC. Provided however, that BMC may immediately suspend any and all access to the Subscription Services without any cure period if BMC determines in good faith that Customer’s material breach of the Agreement will cause damage to BMC, the Subscription Services, or any other customer.
5.4 Effects of Termination. Upon termination or expiration of any Order or this Agreement, all rights and Licenses granted thereunder will terminate and Customer will make no further use of the Subscription Services. No termination will relieve the Customer of the obligation to pay any fees accrued or payable to BMC pursuant to any Order. Upon written request by Customer made within 45 days after the effective date of termination, BMC will make the Customer Content available to Customer for retrieval in an industry standard format. After such 45-day period, BMC shall have no obligation to maintain any Customer Content and will thereafter delete Customer Content. Any terms in this Agreement which by their nature extend beyond termination of this Agreement will remain in effect until fulfilled.
5.5 Termination Assistance. Upon Customer’s request and upon (a) the expiration of an Order or (b) the termination of an Order for any reason other than Customer’s breach, BMC shall perform such services as the parties in good faith agree are reasonably necessary to facilitate the orderly transition of the Services to the successor service provider or to the Customer. BMC will provide any such services under the terms and conditions of the Agreement, and subject to payment of the then-current fees and charges, generally applicable to BMC’s performance of such services, as agreed between the parties at such time.
6. LIMITED WARRANTY.
6.1 Warranties and Limited Remedies. BMC warrants to Customer that:
(a) the online availability of the Subscription Services will be maintained in accordance with the service levels attached to the applicable Order, if any (the “Service Level Agreement” or “SLA”). Customer’s exclusive remedy and BMC’s sole obligation for breach of the warranty in this Section 6.1(a) is described in the Service Level Agreement;
(b) the Subscription Services (i) will perform in substantial accordance with the then-current on-line User Guide available via the Subscription Services and (ii) will be performed in a manner consistent with industry standards reasonably applicable to the provision thereof. Customer’s exclusive remedy and BMC’s sole obligation for breach of the warranty in this Section 6.1(b) will be BMC’s use of commercially reasonable efforts to have the Subscription Services perform in substantial accordance with the User Guide, or replace the non-conforming portion of the Subscription Services within 60 days from the written notice of claim, or if BMC cannot have the Subscription Services perform in substantial accordance with the User Guide or replace the Subscription Services within such time period, then Customer may terminate the non-performing Subscription Services, and upon such termination BMC will refund the amount paid by Customer for the Subscription Services, pro-rated from the date of the notice of the claim. Customer’s rights and BMC’s obligations in this Section 6.1(b) are conditioned upon Customer’s providing BMC with written notice of the claim, a complete description of the alleged defects and a specific reference to the User Guide to which such alleged defects are contrary; and
(c) In connection with the Subscription Services (i) it has used commercially reasonable efforts consistent with industry standards to scan for and promptly remove any software viruses for no charge and (ii) it has not inserted any Disabling Code. “Disabling Code” means computer code inserted by BMC, that is not addressed in the User Guide, and that is designed to expose data, delete, interfere with, and/or disable the normal operation of the Subscription Services. This Disabling Code warranty does not apply to BMC passwords necessary for the operation of the Subscription Services, or for any use by Customer outside the scope of this Agreement.
6.2 Disclaimer. CUSTOMER ACKNOWLEDGES THAT, EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, BMC, ITS AFFILIATES AND LICENSORS MAKE NO WARRANTY, EXPRESS, IMPLIED OR STATUTORY WITH RESPECT TO THE SUBSCRIPTION SERVICES OR USE THEREOF. BMC, ITS AFFILIATES AND LICENSORS HEREBY EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY THAT SUBSCRIPTION SERVICES WILL BE UNINTERRUPTED, ERROR FREE OR WITHOUT DELAY, AND THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INTERFERENCE, NON-INFRINGEMENT AND INFORMATION CONTENT.
7. PROPRIETARY RIGHTS AND CONFIDENTIALITY.
7.1 Proprietary Rights. BMC, its Affiliates or licensors retain all right, title and interest to the Subscription Services and all related intellectual property and proprietary rights. The Subscription Services are protected by applicable copyright, trade secret, industrial and other intellectual property laws. BMC owns all right, title and interest in all software, programming, documentation, templates, questionnaires, methodologies, models, charts, reports, ideas, features, content, functions, graphics and any other items provided as part of the Subscription Services (“ Service Items”) and access to and use of the relevant Service Items will be governed by the terms of this Agreement. Subject to (i) BMC’s or its licensor’s ownership of any Service Items and (ii) section 3.4 (b) (i) of the Agreement, Customer owns all rights, title, and interest in Customer Applications, including all proprietary and intellectual property rights. BMC reserves any rights not expressly granted to Customer. Customer shall not access the Subscription Services in order to build a competitive product or service or copy any ideas, features, functions or graphics of the Subscription Services. “ Confidential Information” means all proprietary or confidential information that is disclosed to the recipient (“Recipient”) by the discloser (“ Discloser”), and includes, among other things (i) any and all information relating to products or services provided by a Discloser, its customer-related and financial information, software code, flow charts, techniques, specifications, development and marketing plans, strategies, and forecasts; (ii) as to BMC, and its licensors, the Subscription Services and Service Items; and (iii) the terms of this Agreement, including without limitation, pricing information. Confidential Information does not include information that Recipient can show: (a) was rightfully in Recipient’s possession without any obligation of confidentiality before receipt from the Discloser; (b) is or becomes a matter of public knowledge through no fault of Recipient; (c) is rightfully received by Recipient from a third party without violation of a duty of confidentiality; or (d) is or was independently developed by or for Recipient. Recipient may not disclose Confidential Information of Discloser to any third party or use the Confidential Information in violation of this Agreement. The Recipient (i) will exercise the same degree of care and protection with respect to the Confidential Information of the Discloser that it exercises with respect to its own Confidential Information and (ii) will not, either directly or indirectly, disclose, copy, distribute, republish, or allow any third party to have access to any Confidential Information of the Discloser. Notwithstanding the foregoing, Recipient may disclose Discloser’s Confidential Information to Recipient’s employees and agents who have need to know provided that such employees and agents have legal obligations of confidentiality substantially the same (and in no case less protective) as the provisions of this Agreement.
7.2 Notification Obligation. If the Recipient becomes aware of any unauthorized use or disclosure of Discloser’s Confidential Information, then Recipient will promptly and fully notify the Discloser of all facts known to it concerning such unauthorized use or disclosure. In addition, if the Recipient or any of its employees or agents are required (by oral questions, interrogatories, requests for information, or documents in legal proceedings, subpoena, civil investigative demand, or other similar process) to disclose any of Discloser’s Confidential Information, the Recipient will not disclose the Discloser’s Confidential Information without providing the Discloser with commercially reasonable advance prior written notice to allow Discloser to seek a protective order or other appropriate remedy or to waive compliance with this provision. In any event, the Recipient will exercise its commercially reasonable efforts to preserve the confidentiality of the Discloser’s Confidential Information, including, without limitation, cooperating with Discloser to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded to the Confidential Information.
7.3 Customer Content. As between BMC and Customer, Customer owns all rights, title and interest in and to Customer Content. Customer Content is deemed Confidential Information under this Agreement. BMC will use the Customer Content only as necessary to provide the Subscription Services in accordance with this Agreement. At any time during the term of the Subscription Services, Customer may request copies of all Customer Content from the Subscription Services. Customer is responsible for complying with all legal and contractual requirements, including its agreements with third parties. With the exception of Customer Content collected by the Subscription Services, Customer is solely responsible for the transmission of Customer Content to BMC and to the Subscription Services. Customer is solely responsible for the encryption of any Customer Content during such transmission.
7.4 Suggestions. Customer agrees that BMC shall have a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into any BMC products or services any suggestions, enhancement requests, recommendations or other feedback provided by Customer relating to the Subscription Services.
8. DISCLAIMER OF DAMAGES AND LIMITS ON LIABILITY.
8.1 DISCLAIMER OF DAMAGES. NEITHER PARTY OR ITS AFFILIATES OR LICENSORS ARE LIABLE FOR ANY, SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES RELATING TO OR ARISING OUT OF THIS AGREEMENT OR THE SUBSCRIPTION SERVICES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST COMPUTER USAGE TIME, AND DAMAGE TO, OR LOSS OF USE OF, DATA), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND IRRESPECTIVE OF ANY NEGLIGENCE OF A PARTY OR WHETHER SUCH DAMAGES RESULT FROM A CLAIM ARISING UNDER TORT OR CONTRACT LAW. THE FOREGOING LIMITATIONS DO NOT APPLY TO EACH PARTY’S RESPONSIBILITIES IN SECTION 9, INFRINGEMENT BY A PARTY OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, GROSS NEGLIGENCE, WILLFUL MISCONDUCT, DEATH OR BODILY INJURY, ACTS OF FRAUD, NOR ANY LIABILITY WHICH MAY NOT BE EXCLUDED OR LIMITED BY LAW.
8.2 LIMITS ON LIABILITY. NEITHER PARTY OR ITS AFFILIATES OR LICENSORS SHALL HAVE AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SUBSCRIPTION SERVICES, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEEDING THE AMOUNTS ACTUALLY PAID BY AND DUE FROM CUSTOMER FOR THE SUBSCRIPTION SERVICES GIVING RISE TO LIABILITY PURSUANT TO THE ORDER(S) THAT ARE IN EFFECT AS OF THE DATE THE LIABILITY FIRST AROSE. THE FOREGOING LIMITATIONS DO NOT APPLY TO EACH PARTY’S RESPONSIBILITIES IN SECTION 9, INFRINGEMENT BY A PARTY OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, GROSS NEGLIGENCE, WILLFUL MISCONDUCT, DEATH OR BODILY INJURY, ACTS OF FRAUD, NOR ANY LIABILITY WHICH MAY NOT BE EXCLUDED OR LIMITED BY LAW.
9. INFRINGEMENT CLAIMS.
9.1 Indemnification by BMC . If a third party asserts a claim against Customer asserting that Customer’s use of the Subscription Services, including Platform Services, Deliverables and Licenses as defined in the Attachments to this Agreement, in accordance with this Agreement violates that third-party’s patent, trade secret or copyright rights (“Infringement Claim”), then BMC will, at its own expense: (a) defend or settle the Infringement Claim; and (b) indemnify Customer for any damages finally awarded against Customer based on infringement by the Subscription Services or Deliverables, including court costs and reasonable attorney’s fees. If BMC believes the Subscription Services may violate a right, then BMC will, at its expense: (a) modify the Subscription Services, or (b) procure the right to continue using the Subscription Services, and if (a) or (b) are not commercially reasonable, terminate Customer's right to use the Subscription Services and issue a pro-rata refund for the unexpired pre-paid portion of such Subscription Services.
9.2 Indemnification by Customer. Subject to the terms of this Agreement, if a third party asserts a claim against BMC asserting that the (i) Customer Content, (ii) Customer Applications as defined in Attachment A, (iii) Customer Property as defined in Attachment B or (iv) Customer’s use of the Subscription Services in violation of this Agreement violates that third-party’s patent, trade secret or copyright rights (“ Claim”), Customer will, at its own expense: (a) defend or settle the Claim; and (b) indemnify BMC for any damages finally awarded against BMC based on the Claim, including court costs and reasonable attorney’s fees.
9.3 Indemnity Process. Neither party’s obligations under this Section will apply if: (a) the indemnifying party’s legal department does not receive prompt, detailed written notice of the Infringement Claim/Claim from the party being indemnified, (b) the indemnifying party is not able to retain sole control of the defense of the Infringement Claim/Claim and all negotiations for its settlement or compromise, or (c) the indemnifying party does not receive all reasonable assistance from the party being indemnified. Neither party will bind the indemnified party to a monetary obligation in a settlement or compromise, or make an admission on behalf of the indemnified party, without obtaining that party’s prior consent.
9.4 THIS SECTION 9 CONTAINS EACH PARTY'S EXCLUSIVE REMEDIES AND THE INDEMNIFYING PARTY'S SOLE LIABILITY FOR INFRINGEMENT CLAIMS/CLAIMS, RESPECTIVELY.
10. EXPORT CONTROLS. Both parties agree to comply with applicable export regulations, including but not limited to U.S. Export Administration Regulations and the OFAC embargoes and sanctions lists. More information on BMC’s export compliance program may be found here: https://www.bmc.com/legal/export-compliance.html.
11. GOVERNING LAW AND DISPUTE RESOLUTION. Any controversy, dispute or claim arising out of or relating to this Agreement, or to the formation, interpretation, breach, termination, or validity thereof (each, a “Controversy”) will be resolved as follows:
(i) UNITED STATES. If both parties to this Agreement are entities incorporated under the law of any state in the United States, the Controversy shall be tried in either state or federal court located in Houston, Texas and the laws of the State of Texas shall govern. Both parties hereby submit to the exclusive jurisdiction of the courts in Houston, Texas and waive all defenses based on forum non conveniens. Notwithstanding the foregoing, if Customer is a state or local governmental entity or higher education institution and legally required to apply state law, then Customer’s state law will apply to the Controversy, without reference to conflict of law principles.
(ii) CANADA. If Customer is located in Canada (outside Quebec), then the law of the Province of Ontario law apply, without reference to conflict of law principles. If Customer is located in Quebec, then the laws of the Province Quebec will apply, without reference to conflict of law principles.
(iii) EMEA. If both parties to this Agreement are entities incorporated in countries in the Europe, Middle East, or Africa regions, the Controversy shall be tried in the District Court located in Amsterdam, the Netherlands and the substantive laws of the Netherlands shall govern. Both parties hereby submit to the exclusive jurisdiction of the District Court in Amsterdam, the Netherlands and waive all defenses based on forum non conveniens.
(iv) ASIA PACIFIC. If both parties to this Agreement are entities incorporated in countries in the Asia Pacific region, the arbitration shall be held in Singapore under the then-applicable rules of the Singapore International Arbitration Centre and the substantive laws of Singapore will govern.
(v) OTHER REGIONS. In all other instances, the arbitration shall be held in New York City, New York, under the then-applicable international rules of the American Arbitration Association and the substantive laws of the State of Texas will govern.
For all arbitrations conducted hereunder: (a) the arbitration shall be conducted in English; (b) the relevant arbitral institution shall determine the number of arbitrators, but any Controversy in which the amount in dispute is greater than $10 million USD shall be decided by three arbitrators, with each party having the right to select one arbitrator; (c) the costs of such arbitration shall be borne equally, pending the arbitrator’s award; (d) the arbitration award rendered shall be final and binding on the parties, shall not be subject to appeal to any court and shall be enforceable in any court having jurisdiction over the parties; (e) the arbitration proceedings, award and pleadings shall all be confidential, unless disclosure of particular information is required for purposes of enforcing/challenging the award or to meet local securities law requirements; and (f) the party prevailing in arbitration shall be entitled to recover its reasonable attorneys’ fees and the necessary costs incurred in connection with the arbitration.
The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. Nothing in this Agreement shall be deemed as preventing either party from seeking immediate injunctive relief from any court having jurisdiction over the parties and the subject matter of the dispute.
12. The following BMC contracting entities apply to this Agreement:
Region | Contracting Entity | Address of Contracting Entity |
United States and Latin America South (not a specified Central or South America country below) | BMC Software, Inc. | 2103 CityWest Boulevard, Houston, Texas 77042 |
Canada | BMC Software Canada Inc. | 50 Minthorn Boulevard, Suite 200 Markham, Ontario L3T 7X8 Canada |
EMEA (Europe, Middle East and Africa) | BMC Software Distribution B.V. | Vision Plaza West, 2nd floor, Boeingavenue 220, 1119PN Schiphol-Rijk, The Netherlands |
Brazil | BMC Brasil Software Ltda. | Avenida Dra. Ruth Cardoso, n° 8.501, Condomínio Eldorado Business Tower, 22° andar, Pinheiros, São Paulo – SP, CEP: 05425-070 |
Mexico | BMC Software Distribution de México, S.A. de C.V. | Volcán 150, Piso 4, Col. Lomas de Chapultepec, C.P. 11000, Deleg. Miguel Hidalgo, Ciudad de México |
Argentina | BMC Software de Argentina S.A. | Ing. Butty 220 - Piso 18, Catalinas Plaza Buenos Aires, República de Argentina, C1001A |
S.E.A (Southeast Asia), Australia, New Zealand, Hong Kong, Taiwan | BMC Software Ireland Limited | Building 3, Cherrywood Business Park, Bray Road, Loughlinstown, CO. Dublin, D18 TF72 |
China | BMC Software (China) Limited | Room 502, Level 5, Tower W1, The Towers, Oriental Plaza, No. 1 East Chang An Ave., Dong Cheng Dist., Beijing 100738, China |
Japan | BMC Software K.K. | Harmony Tower 24th Floor, 1-32-2 Honcho, Nakano-ku, Tokyo, 164-8721 |
Korea | BMC Software Korea Ltd | 24th Fl., ASEM Tower, 1517, Yeongdong-daero,Gangnam-gu, Seoul 135-798, Korea South |
13. U.S. GOVERNMENT END USER RIGHTS. This Section applies only to acquisitions of the commercial Subscription Services subject to this Agreement by or on behalf of the United States Government, or by any prime contractor or subcontractor (at any tier) under any contract, grant, agreement or other activity with the United States Government. When Subscription Services are delivered or provided to the United States Government, the United States Government agrees that this commercial license Agreement and the Subscription Services governed by this Agreement are defined in accordance with and qualify as “commercial items” consisting of “commercial computer software” and “commercial computer software documentation” as outlined in FAR 12.211, FAR 12.212 and DFARS 227.7202-3, as applicable. The terms and conditions of this Agreement shall pertain to the United States Government’s use (including documentation or technical data), duplication, and disclosure of the Subscription Services, and shall supersede any conflicting contractual terms and conditions”.
14. DATA PROTECTION. The processing of Customer Content under this Agreement is governed by the BMC Data Processing Agreement set forth on the Order.
15. VERIFICATION. Customer agrees that BMC or its agent may monitor the Subscription Services to ensure Customer’s compliance with the terms of this Agreement. If such monitoring reveals that Customer has exceeded the Capacity for the Subscription Services, BMC may work with Customer to seek to reduce Customer’s usage so that it conforms to the Capacity limit for such Subscription Service. If, notwithstanding BMC’s efforts, Customer is unable or unwilling to abide by the Capacity limits for the Subscription Services, Customer will execute an Order for additional Capacity of such Subscription Services promptly upon BMC’s request.
16. NOTIFICATIONS. Any general notifications regarding technical matters from BMC to Customer will be sent to the Customer contact stated in the Customer Technical Contact Information section of the Order. The Customer contact in the Order has been assigned by Customer as the Customer contact for operational issues that may arise. Customer shall notify BMC of any change to the Customer contact details in writing, which may include via e-mail.
17. CONDUCTING BUSINESS WITH HONESTY AND INTEGRITY. BMC is committed to conducting business with honesty and integrity. BMC’s Code of Conduct set forth in https://www.bmc.com/content/dam/bmc/corporate/Code%2Bof%2BConduct(English).pdf governs the conduct of all officers, directors, and employees of BMC. BMC’s Third-Party Code of Conduct set forth in https://www.bmc.com/content/dam/bmc/corporate/Third+Party+Code+of+Conduct.pdf governs the conduct of contingent workers and business partners acting on BMC’s behalf. BMC demonstrates its commitment to environmental stewardship by its global accreditation for ISO 14001:2015.
18. MISCELLANEOUS TERMS. The parties are independent contractors and this Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties. Customer will receive system notifications from BMC and its licensors, if applicable (i.e. planned downtime notices, etc). This Agreement, including the Attachments and Orders constitutes the entire agreement between Customer and BMC and supersedes any prior or contemporaneous negotiations or agreements, whether oral or written concerning the Subscription Services. There are no representations, promises, warranties, covenants, or undertakings between the parties other than those expressly set forth in this Agreement. There are no third-party beneficiaries to this Agreement; Customer is not entering into a contractual relationship with BMC’s licensors and BMC’s licensors have no liability to Customer. Except as provided in Section 2 above, no modification or waiver of any provision hereof will be effective unless made in a writing signed by both BMC and Customer. Customer has the right to assign this Agreement and all Orders in whole to an Affiliate, or to a successor in connection with (i) the sale of all or substantially all of the assets of that party or (ii) a merger by operation of law, by providing written notice to BMC. The assignee may not be a known direct competitor of BMC. The successor entity or Affiliate must agree in writing with BMC (in advance of the assignment) to be bound by the terms of this Agreement. Any Customer transfer or assignment except as expressly authorized above will be null and void. Should any provision of this Agreement be invalid or unenforceable, the remainder of the provisions will remain in effect. Any additional or conflicting terms of any Customer purchase order are rejected by BMC and do not apply. The Subscription Services may contain hyperlinks to websites controlled by parties other than BMC. BMC is not responsible for and does not endorse the content or accept any responsibility for Customer’s use of these websites. Customer should refer to the policies posted by other websites regarding privacy and other topics regarding data privacy before using them. Les parties exigent que la présente convention ainsi que les documents qui s’y rattachent soient rédigés en anglais.
Attachments incorporated into Agreement |
Attachment A – Platform Services Attachment |
Attachment B – Consulting Services Attachment |
Attachment C – On Premise Subscription Services Attachment |
PLATFORM SERVICES ATTACHMENT
to the
BMC CLOUD SERVICES MASTER AGREEMENT
Except as otherwise provided herein, the terms of the Cloud Services Master Agreement (the “Base Agreement”) are incorporated into this Platform Services attachment (the “Attachment”). Together, this Attachment and the Base Agreement (as incorporated into this Attachment) are referred to as the “Agreement” for purposes of Customer’s access and use of Platform Services, only if the Platform Services are set forth on an Order referencing the Base Agreement. For purposes of this Agreement, the term “Subscription Services” as defined in the Base Agreement shall be extended to include the Platform Services. In the event of a conflict between the Base Agreement and the terms of this Attachment, the terms of this Attachment will control for Customer’s access and use of the Platform Services only.
1. SCOPE. Subject to the terms of this Agreement, BMC will provide Customer with access to the Platform Service named in the applicable Order.
2. DEFINITIONS.
2.1 “Application” is the object code, its definitional structures, and data created to fulfill a particular purpose, which runs on the Platform Services. An Application may also include its documentation and User Guide.
2.2 “Customer Applications” means Applications that are owned or licensed by Customer, and which run on the Platform Services.
2.3 “Development Platform” means a BMC provided development platform which allows Customer to develop a custom application to run on the Platform Services. The Development Platform is a separate environment from the Platform Services.
2.4 “Platform” means the generally available BMC-provided PaaS platform and its capabilities to run Applications.
2.5 “Platform Services” means the specific Platform Services identified in the Order.
3. BMC PLATFORM SERVICES.
3.1 BMC Platform Services Support. BMC will provide Support only for Platform Services. Customer is responsible for its own support for Customer Applications.
4. CUSTOMER APPLICATIONS.
4.1 The terms contained in this section 4 apply only to Orders for Platform Services entitling Customers to develop and deploy Customer Applications onto the Platform Services. Any Customer Applications that run on the Platform Services are hereby excluded from the defined terms “Subscription Services” and “Platform Services”.
4.2 Development Platform. Customer may utilize the Development Platform to create an Application to run on the Platform Services. Customer’s use of the Development Platform is governed by the terms of this Agreement subject to the restrictions set forth in sections 4.2.1 to 4.2.6 below. Customer’s development of an Application must meet the best practices development guidelines set forth in the User Guide. Each Customer Application shall at all times materially conform to policies and best practices set forth in the User Guide. Prior to the deployment of any Customer Applications in a production or non-production environment of the Platform Services, Customer must conduct security and functional tests of each Customer Application and submit the results of such tests to BMC for review. BMC reserves the right to reject Customer’s deployment request of a Customer Application based on the results of Customer’s security and functional tests. Additionally, BMC reserves the right, during the term of this Agreement, to request Customer conduct additional security and functional tests and provide the results of said tests to BMC for review. Notwithstanding the foregoing, Customer must ensure that at all times Customer Applications are secure.
4.2.1 Scope of use. The right to access and use the Development Platform is granted solely for the purpose of performing non-production application development work on the Development Platform.
4.2.2 Restrictions of use. Customer agrees not to:
(i) use the Development Platform to (1) process production data or for any other production purposes, including but not limited to publishing digital applications, or (2) distribute applications;
(ii) use the Development Platform with data or information that has not been backed up; or
(iii) modify, delete or remove any ownership, title, trademark, patent or copyright notices.
4.2.3 Customer Responsibilities. Customer is responsible for acquiring all necessary and required licenses for the use of any third party software, source code and/or libraries Customer may use as part of its development with the Development Platform. In addition to its other rights and remedies, BMC reserves the right, without liability to Customer, to immediately, at any time and for any reason refresh Customer’s instance of the Development Platform. Upon BMC’s refreshing of Customer’s instance of the Development Platform, Customer may lose all Customer Content submitted to or stored in said instance of the Development Platform. Upon expiration or termination of the applicable Order, BMC may destroy any Customer Content submitted to or stored therein. Customer is responsible for backing up any development work with Customer Content outside of the Development Platform.
4.2.4 Open Source. Customer may not use any software, library, utility, tool, or other computer or program code (“Code”) with the Subscription Services that in any way that would (i) weaken BMC’s intellectual property rights in the Services, or (ii) require the Subscription Services to become or be disclosed or distributed as Open Source Software. For purposes of this Section, “Open Source Software” means any Code that is substantially similar to, (A) the Affero General Public License, (B) the GNU General Public License (GPL) or Lesser/Library GPL (LGPL), (C) the Artistic License (e.g. PERL), (D) the Mozilla Public License, (E) the Netscape Public License, (F) the Sun Community Source License (SCSL), (G) the Sun Standards License (SISL), or (H) any “copyleft” license, or any other license that requires as a condition of use, reproduction, modification, or distribution that such Code or other software or computer code distributed with it: (1) be disclosed or distributed in source code form; (2) be licensed for the purpose of creating derivative works; (3) be licensed under terms that allow reverse engineering, reverse assembly, or disassembly of any kind; (4) be subject to a patent non-assert or royalty-free patent license; or (iv) be redistributable at no charge.
4.2.5 No Support. BMC, its affiliates, or licensors do not provide Support for the Development Platform.
4.2.6 Disclaimer of Warranty, Limitation of Liability and Exclusive Remedy. Notwithstanding anything to the contrary in the applicable Order or this Agreement:
a. THE DEVELOPMENT PLATFORM IS PROVIDED “AS IS” WITHOUT ANY WARRANTY OF ANY KIND WHATSOEVER. BMC, ITS AFFILIATES AND LICENSORS DO NOT WARRANT THAT THE DEVELOPMENT PLATFORM WILL SATISFY CUSTOMER’S REQUIREMENTS, THAT THE DEVELOPMENT PLATFORM IS WITHOUT DEFECT, VIRUS OR ERROR FREE, WITHOUT DELAY, OR THAT THE OPERATION OF THE DEVELOPMENT PLATFORM WILL BE UNINTERUPTED. BMC, ITS AFFILIATES AND LICENSORS DISCLAIM ANY AND ALL REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, MADE WITH RESPECT TO THE DEVELOPMENT PLATFORM, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INTERFERENCE AND INFORMATION CONTENT; AND
b. NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY, FOR ANY CLAIM, LOSS, DAMAGE OR EXPENSE FOR INDIRECT, SPECIAL, CONSEQUENTIAL, PUNITIVE OR INCIDENTAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE DEVELOPMENT PLATFORM (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST COMPUTER USAGE TIME, AND DAMAGE TO, OR LOSS OF USE OF, DATA), EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EITHER PARTY’S ENTIRE LIABILITY AND THE OTHER PARTY’S EXCLUSIVE REMEDY FOR DIRECT DAMAGES ARISING OUT OF OR RELATED TO THE DEVELOPMENT PLATFORM, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, IS LIMITED TO $100.
4.3 License to Customer Applications. Subject to the terms and conditions of this Agreement, Customer hereby grants BMC a worldwide, limited, nonexclusive license during the term of the applicable Order for the Platform Services to host, copy, transmit, adapt and display Customer Applications solely for the purpose of fulfilling BMC’s obligations under this Agreement.
4.4 Functionality of Customer Applications. Customer is solely responsible for the operation of Customer Applications, including but not limited to any information stored in or transmitted by Customer Applications. Customer is responsible for monitoring the usage of each Customer Application. Customer is responsible for the configuration, functionality, performance, compliance with applicable data protection laws and security of all Customer Applications, including any interfaces used to connect to Customer Applications.
4.5 Customer will provide information or other materials related to a Customer Applications as reasonably requested by BMC to verify Customer’s compliance with the Agreement and the User Guide.
4.7 Suspension of Customer Applications. Customer’s use of the Platform Services may be immediately suspended and/or terminated due to (i) reasonable security threats regarding the Platform Services or Customer Applications, (ii) Customer Applications interfering with, disrupting or threatening the integrity or performance of the Subscription Services and/or the Platform Services, or (iii) violates the law, infringes or misappropriates the rights of any third party or otherwise violates a material term of the Agreement. In the event (i) or (ii) above apply to Customer Applications, Customer is required to remediate any such issue to BMC’s commercially reasonable satisfaction before use of Customer Applications can resume. BMC shall use reasonable commercial efforts to only suspend the non-conforming portion of the Platform Services.
4.8 CUSTOMER APPLICATIONS WARRANTIES. Customer warrants to BMC that: (a) each Customer Application will perform materially in accordance with the User Guide; (b) Customer has all rights in the Customer Content and Customer Applications necessary to grant the rights contemplated by this Agreement; (c) none of the Customer Content or Customer Applications or Users’ use of Customer Content or Customer Applications will violate the Agreement and the User Guide; and (d) Customer’s security and functional tests of Customer Applications was conducted in a commercially reasonable manner and the results of said tests provided to BMC for review are correct and valid.
ATTACHMENT B
CONSULTING SERVICES ATTACHMENT
to the
BMC CLOUD SERVICES MASTER AGREEMENT
Except as otherwise provided herein, the terms of the Cloud Services Master Agreement (the “Base Agreement”) are incorporated into this Consulting Services attachment (the “Attachment”). Together, this Attachment and the Base Agreement (as incorporated into this Attachment) are referred to as the “Agreement” for purposes of Customer’s purchase of Consulting Services, only if Consulting Services are set forth on an Order referencing the Base Agreement. For purposes of this Agreement, the term “Subscription Services” as defined in the Base Agreement shall be extended to include Consulting Services. In the event of a conflict between the Base Agreement and the terms of this Attachment, the terms of this Attachment will control for Customer’s purchase of Consulting Services only. The parties agree that the following Sections of the Base Agreement do not apply to the Consulting Services provided under this Attachment: Section 3.2 (Support), Section 4 (Fees and Payment), and Section 6 (Limited Warranty).
1. SCOPE. BMC agrees to render to Customer Consulting Services under the terms of this Agreement and as further described in an Order. BMC will render the Consulting Services in the location(s) as set forth in the Order. The performance of the Consulting Services will not relieve or alter the rights, obligations and responsibilities of Customer and of the BMC Affiliate providing Subscription Services and/or Licenses with respect to Subscription Services and/or Licenses under the applicable agreement.
2. SERVICE FEES AND EXPENSES. The fees payable to BMC for the Consulting Services to be rendered will be detailed in the Order. BMC will submit invoices to Customer for such fees and incurred expenses either upon completion of the Consulting Services, or at stated intervals, in any case in accordance with the applicable Order. Customer shall pay amounts invoiced within 30 days following receipt of the invoice.
3. EDUCATION. Customer may acquire Learning Pass Credits and Education Services (collectively, “BMC Education ”) on an Order. The BMC Education terms that govern such Orders are set forth in the Education Program Guide located at https://www.bmc.com/content/dam/bmc/education/education-program-guide.pdf, and is incorporated herein by this reference.
4. STATEMENTS OF WORK. Consulting Services may require the execution of a Statement of Work, in which case, such Statement of Work will be considered an Order for such Consulting Services. In the event of any conflict between the terms of a Statement of Work and this Agreement, the Agreement shall prevail except for matters of service fees, payment and reimbursement of expense, and termination of Consulting Services if further specified in the Statement of Work. During the term of an applicable Statement of Work, and for a period of six months thereafter, neither party will solicit for employment any employees, agents, or subcontractors of the other party or its affiliates who, within six months prior to such solicitation, had contact with the soliciting party based in whole or in part upon Consulting Services provided under this Agreement. The restrictions in this section shall be deemed not to apply to general solicitations for employment posted on Internet job sites or printed in newspapers or trade or professional journals.
5. PROPRIETARY RIGHTS AND RIGHTS IN DELIVERABLES.
5.1 Ownership of Materials Used in the Consulting Services. Unless specifically provided in an Order, Customer shall supply all of the facilities; equipment; supplies; computer programs; information about Customer’s business, systems, software and needs; and other materials necessary for completion of the Consulting Services (“Customer Property”), and BMC shall supply the people described in the Order, the know-how and the tools necessary to provide the Consulting Services, which may include, among other things, software, templates, questionnaires, graphs, methodologies, models, charts and reports (“BMC Property”). Customer Property and copies and modifications of Customer Property will remain the sole property of Customer or if applicable, Customer’s licensors, and BMC Property and copies and modifications of BMC Property will remain the sole property of BMC or if applicable, BMC’s licensors. Customer hereby grants to BMC a royalty-free, paid-up, non-exclusive, non-sublicensable and non-transferable license to use the Customer Property for the purpose of providing the Consulting Services.
5.2 Deliverables. Deliverables are those created under the Order, including, but not limited to, software, software scripts, routines, libraries or other code, or appliances, methodologies, templates, tools, policies, records, working papers, reports, methodologies, know-how, data, or other intellectual property, written or otherwise, including any derivative works or modifications to the above, whether pre-existing or created during the performance of the Consulting Services and all proprietary and intellectual property rights embedded therein delivered as a result of the Consulting Services as specified under the Order. BMC owns all right, title and interest in the Deliverables. Provided Customer has paid in full for the Consulting Services that resulted in the Deliverables, BMC will deliver the Deliverables to Customer in accordance with the applicable Order. Subject to compliance with the terms of this Agreement and the applicable Order, BMC grants Customer a non-exclusive, non-transferable, non-sublicensable, royalty-free, paid-up license to use, create derivative works of and modify all Deliverables solely for its internal business operations.
5.3 Copyright Notice. Each party agrees to reproduce the copyright notice and any other legend or ownership notice on any copies made under the licenses granted pursuant to this Section 5.
5.4 Retention. Customer acknowledges that BMC provides similar services to other customers and that nothing in this Agreement shall be construed as operating to prevent BMC from carrying on such business. Further BMC may use ideas, concepts, or know-how developed or acquired by BMC during performance of the Consulting Services to the extent by BMC’s personnel as impressions and general learning.
6. LIMITED WARRANTY. BMC warrants that it will perform the Consulting Services in conformance with generally accepted practices within the software services industry and in accordance with the Order. Customer must notify BMC of any breach of this warranty no later than 90 days after completion of the Consulting Services under the Order. Customer’s exclusive remedy and BMC’s entire liability under this warranty shall be for BMC to re-perform any non-conforming portion of the Consulting Services within a reasonable period of time, or if BMC cannot remedy the breach during such time period then refund the portion of the fee attributable to such non-conforming portion of the Consulting Services under the Order. This warranty will not apply to the extent Customer, its contractors or agents have modified any Deliverable, unless otherwise authorized by BMC in writing.
THIS WARRANTY AND CONDITION IS IN LIEU OF ALL OTHER WARRANTIES AND CONDITIONS. THERE ARE NO OTHER EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS, INCLUDING THE IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
7. INSURANCE. BMC will provide and maintain the following insurance, but only for losses arising out of BMC’s provision of Consulting Services under this Attachment:
7.1 Worker’s Compensation insurance as prescribed by the law of the state applicable to the employees performing the Consulting Services;
7.2 Employer’s Liability insurance with a limit of one million US dollars ($1,000,000) for each occurrence;
7.3 Commercial General Liability insurance with one million US dollars ($1,000,000) per occurrence combined single limit and five million US dollars ($5,000,000) general aggregate, including coverage for Products Liability and Completed Operations;
7.4 Automobile Liability insurance, including coverage for Hired and Non-owned vehicles of one million US dollars ($1,000,000) for combined single limit for bodily injury and/or property damage; and
7.5 Professional Liability insurance covering Errors and Omissions in the amount of one million US dollars ($1,000,000) for each occurrence and in the aggregate associated with Consulting Services performed under this AGREEMENT.
8. MUTUAL INDEMNITY. Each party shall indemnify and hold harmless the other party from all claims, liabilities or expenses for physical damage to real property or tangible personal property and bodily injury, including death, to the extent caused by the negligence, gross negligence or willful misconduct of the indemnifying party’s employees or contractors arising out of this Agreement and while at the Customer’s premises. The foregoing indemnities are contingent upon the party seeking indemnity giving prompt written notice to the indemnifying party of any claim, demand or action, and cooperating with the indemnifying party in the defense or settlement of any such claim, demand or action.
9. INDEPENDENT CONTRACTOR. All of the services performed by BMC under this Agreement will be performed as an independent contractor.
ATTACHMENT C
ON PREMISE SUBSCRIPTIONS ATTACHMENT
to the
BMC CLOUD SERVICES MASTER AGREEMENT
Except as otherwise provided herein, the terms of the Cloud Services Master Agreement (the “Base Agreement”) are incorporated into this On Premise Subscriptions attachment (the “Attachment”). Together, this Attachment and the Base Agreement (as incorporated into this Attachment) are referred to as the “Agreement” for purposes of Customer’s purchase and ongoing use of On Premise Subscriptions, only if On Premise Subscriptions are set forth on an Order referencing the Base Agreement. For purposes of this Agreement, the term “Subscription Services” as defined in the Base Agreement shall be extended to include On Premise Subscriptions. In the event of a conflict between the Base Agreement and the terms of this Attachment, the terms of this Attachment will control for Customer’s purchase of On Premise Subscriptions only. The parties agree that the following Sections of the Base Agreement do not apply to the On Premise Subscriptions provided under this Attachment: Section 3.1 (Access Rights), Section 3.4 (Customer Responsibilities and Restrictions), Section 6 (Limited Warranty) and Section 14 (Verification).
1. DEFINITIONS.
1.1 “Authorized User” means Customer, Customer Affiliate(s), and their employees, consultants, contractors and agents that are bound by the terms and conditions no less restrictive than those contained herein and for whom Customer takes full responsibility. Authorized Users do not include service providers or outsourcers.
1.2 "Documentation" means the technical publications relating to the software, such as release notes, license entitlement descriptions, reference, user, installation, systems administrator and technical guidelines, included with the On Premise Subscription.
1.3 “Licensed Capacity” is the amount of each On Premise Subscription licensed as established in the Order.
1.4 “On Premise Subscription” is the object code of the software and all accompanying Documentation delivered to Customer, including all items delivered by BMC to Customer under Support.
2. LICENSE. Subject to the terms, conditions, payment requirements and restrictions set forth in this Agreement, BMC grants Customer a non-exclusive, non-transferable, non-sub-licensable term license to install in the Territory, access and use the On Premise Subscription during the term specified on the Order (i) by Authorized User(s), (ii) up to the Licensed Capacity, (iii) for Customer’s and its Affiliates’ internal business operations, (iv) in accordance with the Documentation and the applicable Order, and (v) make a reasonable number of copies of the On Premise Subscription for archival purposes only (collectively a "License"). Affiliates may use and access the On Premise Subscriptions under the terms of this Agreement, and Customer is responsible for its Affiliates compliance with the terms of this Agreement.
3. RESTRICTIONS. Customer will not: (a) copy, operate or use any On Premise Subscription in excess of the applicable Licensed Capacity or other than as set forth in the License above; (b) modify, delete or remove any ownership, title, trademark, patent or copyright notices (“Identification”) from any On Premise Subscription, or copy or partial copy of an On Premise Subscription; (c) disassemble, reverse engineer, decompile or otherwise attempt to derive any On Premise Subscription source code from object code, except to the extent expressly permitted by applicable law despite this limitation without possibility of contractual waiver; (d) distribute, rent, lease, sublicense or provide the On Premise Subscription to any third party; (e) use the On Premise Subscriptions in an outsourcing or service bureau environment on behalf of non-Affiliate third parties, or allow the On Premise Subscriptions to be used by an outsourcing or service bureau provider on Customer’s behalf (without obtaining prior written approval from BMC); (f) provide a third party with the results of any functional evaluation, or performance tests, without BMC's prior written approval; or (g) attempt to disable or circumvent any of the licensing mechanisms within the On Premise Subscription.
4. ON PREMISE SUBSCRIPTION PERFORMANCE WARRANTY. BMC warrants that (a) the On Premise Subscription will perform in substantial accordance with its Documentation for a period of one year from the date of the first Order, (b) BMC has used commercially reasonable efforts consistent with industry standards to scan for and remove software viruses, and (c) other than passwords that may be required for the operation of the On Premise Subscription, BMC has not inserted any code that is not addressed in the Documentation and that is designed to delete, interfere with or disable the normal operation of the On Premise Subscription in accordance with the License. This warranty will not apply to any problems caused by hardware, Computers, or software other than the On Premise Subscription, or misuse of the On Premise Subscription, use of the On Premise Subscription other than as provided by the applicable License, modification of the On Premise Subscription, or claims made either outside the warranty period or not in compliance with the notice and access requirements set forth below. No warranty is provided for additional Licensed Capacity, On Premise Subscription provided pursuant to Support. BMC’s entire liability, and Customer’s exclusive remedy, for breach of the above warranty is limited to: BMC’s use of commercially reasonable efforts to have the On Premise Subscription perform in substantial accordance with its Documentation, or replacement of the non-conforming On Premise Subscription within a reasonable period of time, or if BMC cannot have the On Premise Subscription perform in substantial accordance with its Documentation replace the On Premise Subscription within such time period, then BMC will refund the amount paid by Customer for the License for that On Premise Subscription. Customer’s rights and BMC's obligations in this Section are conditioned upon Customer’s providing BMC during the warranty period (i) full cooperation and access to the On Premise Subscription in resolving any claim; and (ii) written notice addressed to the BMC Legal Department that includes notice of the claim, a complete description of the alleged defects sufficient to permit their reproduction in BMC’s development or support environment, and a specific reference to the Documentation to which such alleged defects are contrary.
EXCEPT FOR THE EXPRESS WARRANTIES IN THIS ATTACHMENT, THE ON PREMISE SUBSCRIPTION IS PROVIDED WITH NO OTHER WARRANTIES WHATSOEVER, AND BMC, ITS AFFILIATES AND LICENSORS DISCLAIM ALL OTHER WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE AND IN THE UNITED STATES AND CANADA, MERCHANTABILITY AND NON-INFRINGEMENT. BMC DOES NOT WARRANT THAT THE OPERATION OF THE ON PREMISE SUBSCRIPTION WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT ALL DEFECTS CAN BE CORRECTED.
5. DELIVERY. For On Premise Subscriptions that are delivered electronically, upon request from BMC, Customer agrees to provide BMC with documentation supporting that the designated On Premise Subscription was received electronically. If Customer accepts any On Premise Subscription in a non-electronic format, there may be an additional charge and it is the sole responsibility of Customer to bear any sales/use tax obligation, penalties, and interest. All On Premise Subscriptions are licensed FCA (“Free Carrier” as per Incoterms 2000) shipping point. The On Premise Subscriptions are accepted on the date BMC delivers the On Premise Subscription to the Customer either physically or by providing access codes for electronic download, whichever occurs first, however, such acceptance will not affect the On Premise Subscription Performance Warranty provided in this Agreement.
6. AUDIT. If requested by BMC, and not more than once a year, Customer agrees to deliver to BMC, within 30 days of such request, as specified by BMC either (a) periodic product usage reports generated from specific products or (b) written periodic product usage reports, to be provided solely when the product does not generate reports (“Report”). Additionally, if requested by BMC not more than once a year and upon at least ten days prior written notice to Customer, Customer agrees to allow BMC to perform an audit (“Audit”) to ensure compliance with the terms of this Agreement at the locations where the On Premise Subscriptions are installed, during normal business hours. to ensure compliance with the terms of this Agreement. Customer agrees to cooperate during any such Audit and to provide reasonable access to its information and systems.
Effective August 27th 2020 to September 9th 2020
DownloadTable of Contents
BMC CLOUD SERVICES MASTER AGREEMENT
THIS CLOUD SERVICES MASTER AGREEMENT (“AGREEMENT”) GOVERNS YOUR FREE TRIAL, IF ANY, OF THE SUBSCRIPTION SERVICES.
IF YOU PURCHASE THE SUBSCRIPTION SERVICES, THIS AGREEMENT WILL ALSO GOVERN YOUR PURCHASE AND ONGOING USE OF THE SUBSCRIPTION SERVICES.
BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SUBSCRIPTION SERVICES.
You may not access the Subscription Services if you are BMC’s direct competitor, except with BMC’s prior written consent. In addition, you may not access the Subscription Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.
This Agreement was last updated on August 27, 2020. This Agreement is between the entity or individual entering into this Agreement (“Customer”) and the BMC Contracting Entity for the applicable region as described in Section 12 (“BMC”). It is effective between Customer and BMC as of the date of your acceptance of this Agreement. If Customer has a fully executed BMC Cloud Services Master Agreement then such fully executed BMC Cloud Services Master Agreement supersedes and replaces any clickwrap or click-through agreements (or other similar agreements) that Customer may be required to accept as a part of accessing or using the Subscription Services. For Customer’s convenience, prior versions of this Agreement are available at https://www.bmc.com/legal/csma.html.
FREE TRIAL.
BMC may make the Subscription Services available to Customer on a trial basis free of charge. If BMC offers Customer a free trial, it will run until the earlier of (a) the end of the trial period stated on the trial registration web page or (b) the start date of any Order for purchase of the Subscription Services. Additional trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.
ANY DATA CUSTOMER ENTERS INTO THE SUBSCRIPTION SERVICES, AND ANY CUSTOMIZATIONS MADE TO THE SUBSCRIPTION SERVICES BY OR FOR CUSTOMER, DURING A FREE TRIAL MAY BE PERMANENTLY LOST.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THE AGREEMENT, DURING ANY FREE TRIAL PERIOD THE SUBSCRIPTION SERVICES ARE PROVIDED “AS IS” WITH NO WARRANTY.
1. DEFINITIONS.
1.1 “Affiliate” is an entity that controls, is controlled by or shares common control with BMC or Customer, where such control arises from the legal power to direct or cause the direction of the general management and policies of the company, partnership or legal entity.
1.2 "Subscription Services" means the generally available hosted service which packages web-based access and the right-to-use the supported applications, installed agents and associated reference, user and technical guides.
1.3 “Capacity” means the amount of access to the Subscription Services purchased as specified in an Order, which is counted in accordance with the Unit of Measure described in the Order.
1.4 “Customer Content” means all electronic data or information (a) submitted to the Subscription Services by Customer, a third party on behalf of Customer, or as directed by Customer or (b) collected, processed or returned by the Subscription Services .
1.5 “Order” means (i) the agreed ordering document for the purchase of the Subscription Services, (ii) that is subject to this Agreement, and (iii) that identifies the terms of the purchase and fees to be paid. The term “Order” includes Customer’s online registration for and purchase of the Subscription Services, If any.
1.6 “User Guide” means the online help, functional guide and technical specifications for the Subscription Services, as updated by BMC from time to time.
2. SCOPE. Subject to the terms of this Agreement, Customer may purchase and BMC will provide Customer with access to the Subscription Services as set forth in this Agreement and the applicable Order. Subject to the Attachments to this Agreement, Customer may also purchase BMC Platform Services, BMC Consulting Services and BMC On Premise Subscription Services. In the event of a direct conflict between any Order and the terms of this Agreement, the terms of the Order will control only if the Order is executed by an authorized representative of each party. Orders may also be placed via a BMC authorized reseller. Neither execution of this Agreement, nor anything contained herein, shall obligate either party to enter into any Orders.
3. ACCESS TO SUBSCRIPTION SERVICES.
3.1 Access Rights. Subject to Customer’s payment of applicable fees and to the terms of this Agreement, BMC will provide Customer with worldwide access to the Subscription Services in accordance with the Order (i) up to the Capacity, (ii) for Customer’s and its Affiliates’ internal business operations, (iii) in accordance with the User Guide and the applicable Order. Customer may exercise its rights under this Section 3.1 through its service providers, outsourcers, employees, consultants, contractors, agents, and Affiliates (all, “Users”).
3.2 BMC Subscription Services Support. BMC will provide the support described at http://www.bmc.com/support/review-policies (“Support”) to Customer for the Subscription Services.
3.3 Use of Subcontractors. Customer acknowledges and agrees that BMC uses subcontractors to provide portions of the Subscription Services. BMC will provide a list of its current subcontractors upon Customer’s written request. BMC is responsible for the performance of all subcontractors providing any of the Subscription Services.
3.4 Compliance with Laws. Each party shall comply with all applicable laws in the performance of its obligations under this Agreement.
3.5 Customer Responsibilities and Restrictions.
(a) Customer will (i) maintain the confidentiality of all authentications and passwords for the Subscription Services and immediately notify BMC if it becomes aware that an unauthorized party has gained access such authentications and passwords, (ii) be responsible for use of the Subscription Services by its Users in compliance with this Agreement, (iii) prevent unauthorized access to, or use of, the Subscription Services, and notify BMC promptly of any such unauthorized access or use, (iv) comply with all applicable laws in using the Subscription Services, and (v) be responsible for obtaining its own Apple Push Notification certificate, if the Subscription Services are used to manage devices running iOS. Customer is responsible for the creation and implementation of a privacy policy and end user agreement, if applicable, which will set forth the guidelines of how Customer uses and protects the data and personal information of its Users, and how said Users may utilize the Subscription Services.
(b) Customer will not (i) modify, copy or create derivative works based on the Subscription Services; (ii) create Internet “links” to or reproduce any content forming part of the Subscription Services, other than for its own internal business purposes; (iii) disassemble, reverse engineer, or decompile the Subscription Services or part thereof; (iv) interfere with or disrupt the integrity or performance of the Subscription Services; (vi) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortuous material, or send or store material in violation of any third party’s privacy rights via the Subscription Services; (vii) send or store viruses or malicious code via the Subscription Services; (viii) attempt to gain unauthorized access to the Subscription Services or its related software, systems, platforms or networks, including any form of security and/or penetration testing; (ix) use any components provided with the Subscription Services separately from the Subscription Services; or (x) distribute, rent, lease or provide the Subscription Services to any third party or use it in a service bureau, outsourcing environment, or for the processing of third party data .
4. FEES AND PAYMENT.
4.1 Fees. The fees payable for the Subscription Services and the payment period for such fees will be set forth in and paid in accordance with the Order. All payments are due within 30 days of the date of the invoice.
4.2 Late Fees. Late balances may, at BMC’s sole election, bear interest at a rate equal to the lesser of 1% per month or the maximum amount permitted by law.
4.3 Taxes. Customer will pay taxes imposed in connection with the fees paid for the Subscription Services, which are exclusive of these taxes.
4.4 Solution Providers. With regard to Subscription Services acquired by Customer through an authorized Solution Provider of BMC, notwithstanding anything to the contrary in sections 4.1 and 4.2 above, Customer will have no direct payment obligations to BMC for such fees.
5. TERM, SUSPENSION AND TERMINATION.
5.1 Term. This Agreement begins on the Effective Date and will remain in effect unless terminated pursuant to Section 5.2 below, regardless of the billing frequency selected in the Order.
5.2 Termination.
(a) Termination for Convenience. Customer may terminate this Agreement by providing BMC with at least 30 days prior written notice; provided, however, such termination will have no effect on Orders in effect at the time of such termination. Orders may not be terminated for convenience unless otherwise specified therein. Customer may notify BMC of its intent to terminate by emailing BMC at order_services@bmc.com.
(b) Termination for Cause. Either party may terminate this Agreement and/or an Order for cause: (i) upon 30 days’ written notice of a material breach to the other party if such breach remains uncured at the expiration of such period; or (ii) immediately if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. In the event Customer terminates the Agreement and an Order for BMC’s material breach, BMC will refund the amount paid by Customer to BMC for the Subscription Services on such Order, pro-rated from the date of the notice of the termination.
5.3 Suspension of Subscription Services for Cause. In addition to its other rights and remedies, BMC reserves the right, without liability to Customer, to suspend any and all access to the Subscription Services if Customer commits a material breach of this Agreement and fails to cure the same within 30 days from Customer’s receipt of written notice of such breach from BMC. Provided however, that BMC may immediately suspend any and all access to the Subscription Services without any cure period if BMC determines in good faith that Customer’s material breach of the Agreement will cause damage to BMC, the Subscription Services, or any other customer.
5.4 Effects of Termination. Upon termination or expiration of any Order or this Agreement, all rights and Licenses granted thereunder will terminate and Customer will make no further use of the Subscription Services. No termination will relieve the Customer of the obligation to pay any fees accrued or payable to BMC pursuant to any Order. Upon written request by Customer made within 45 days after the effective date of termination, BMC will make the Customer Content available to Customer for retrieval in an industry standard format. After such 45-day period, BMC shall have no obligation to maintain any Customer Content and will thereafter delete Customer Content. Any terms in this Agreement which by their nature extend beyond termination of this Agreement will remain in effect until fulfilled.
5.5 Termination Assistance. Upon Customer’s request and upon (a) the expiration of an Order or (b) the termination of an Order for any reason other than Customer’s breach, BMC shall perform such services as the parties in good faith agree are reasonably necessary to facilitate the orderly transition of the Services to the successor service provider or to the Customer. BMC will provide any such services under the terms and conditions of the Agreement, and subject to payment of the then-current fees and charges, generally applicable to BMC’s performance of such services, as agreed between the parties at such time.
6. LIMITED WARRANTY.
6.1 Warranties and Limited Remedies. BMC warrants to Customer that:
(a) the online availability of the Subscription Services will be maintained in accordance with the service levels attached to the applicable Order, if any (the “Service Level Agreement” or “SLA”). Customer’s exclusive remedy and BMC’s sole obligation for breach of the warranty in this Section 6.1(a) is described in the Service Level Agreement;
(b) the Subscription Services (i) will perform in substantial accordance with the then-current on-line User Guide available via the Subscription Services and (ii) will be performed in a manner consistent with industry standards reasonably applicable to the provision thereof. Customer’s exclusive remedy and BMC’s sole obligation for breach of the warranty in this Section 6.1(b) will be BMC’s use of commercially reasonable efforts to have the Subscription Services perform in substantial accordance with the User Guide, or replace the non-conforming portion of the Subscription Services within 60 days from the written notice of claim, or if BMC cannot have the Subscription Services perform in substantial accordance with the User Guide or replace the Subscription Services within such time period, then Customer may terminate the non-performing Subscription Services, and upon such termination BMC will refund the amount paid by Customer for the Subscription Services, pro-rated from the date of the notice of the claim. Customer’s rights and BMC’s obligations in this Section 6.1(b) are conditioned upon Customer’s providing BMC with written notice of the claim, a complete description of the alleged defects and a specific reference to the User Guide to which such alleged defects are contrary; and
(c) In connection with the Subscription Services (i) it has used commercially reasonable efforts consistent with industry standards to scan for and promptly remove any software viruses for no charge and (ii) it has not inserted any Disabling Code. “Disabling Code” means computer code inserted by BMC, that is not addressed in the User Guide, and that is designed to expose data, delete, interfere with, and/or disable the normal operation of the Subscription Services. This Disabling Code warranty does not apply to BMC passwords necessary for the operation of the Subscription Services, or for any use by Customer outside the scope of this Agreement.
6.2 Disclaimer. CUSTOMER ACKNOWLEDGES THAT, EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, BMC, ITS AFFILIATES AND LICENSORS MAKE NO WARRANTY, EXPRESS, IMPLIED OR STATUTORY WITH RESPECT TO THE SUBSCRIPTION SERVICES OR USE THEREOF. BMC, ITS AFFILIATES AND LICENSORS HEREBY EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY THAT SUBSCRIPTION SERVICES WILL BE UNINTERRUPTED, ERROR FREE OR WITHOUT DELAY, AND THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INTERFERENCE, NON-INFRINGEMENT AND INFORMATION CONTENT.
7. PROPRIETARY RIGHTS AND CONFIDENTIALITY.
7.1 Proprietary Rights. BMC, its Affiliates or licensors retain all right, title and interest to the Subscription Services and all related intellectual property and proprietary rights. The Subscription Services are protected by applicable copyright, trade secret, industrial and other intellectual property laws. BMC owns all right, title and interest in all software, programming, documentation, templates, questionnaires, methodologies, models, charts, reports, ideas, features, content, functions, graphics and any other items provided as part of the Subscription Services (“ Service Items”) and access to and use of the relevant Service Items will be governed by the terms of this Agreement. Subject to (i) BMC’s or its licensor’s ownership of any Service Items and (ii) section 3.4 (b) (i) of the Agreement, Customer owns all rights, title, and interest in Customer Applications, including all proprietary and intellectual property rights. BMC reserves any rights not expressly granted to Customer. Customer shall not access the Subscription Services in order to build a competitive product or service or copy any ideas, features, functions or graphics of the Subscription Services. “ Confidential Information” means all proprietary or confidential information that is disclosed to the recipient (“Recipient”) by the discloser (“ Discloser”), and includes, among other things (i) any and all information relating to products or services provided by a Discloser, its customer-related and financial information, software code, flow charts, techniques, specifications, development and marketing plans, strategies, and forecasts; (ii) as to BMC, and its licensors, the Subscription Services and Service Items; and (iii) the terms of this Agreement, including without limitation, pricing information. Confidential Information does not include information that Recipient can show: (a) was rightfully in Recipient’s possession without any obligation of confidentiality before receipt from the Discloser; (b) is or becomes a matter of public knowledge through no fault of Recipient; (c) is rightfully received by Recipient from a third party without violation of a duty of confidentiality; or (d) is or was independently developed by or for Recipient. Recipient may not disclose Confidential Information of Discloser to any third party or use the Confidential Information in violation of this Agreement. The Recipient (i) will exercise the same degree of care and protection with respect to the Confidential Information of the Discloser that it exercises with respect to its own Confidential Information and (ii) will not, either directly or indirectly, disclose, copy, distribute, republish, or allow any third party to have access to any Confidential Information of the Discloser. Notwithstanding the foregoing, Recipient may disclose Discloser’s Confidential Information to Recipient’s employees and agents who have need to know provided that such employees and agents have legal obligations of confidentiality substantially the same (and in no case less protective) as the provisions of this Agreement.
7.2 Notification Obligation. If the Recipient becomes aware of any unauthorized use or disclosure of Discloser’s Confidential Information, then Recipient will promptly and fully notify the Discloser of all facts known to it concerning such unauthorized use or disclosure. In addition, if the Recipient or any of its employees or agents are required (by oral questions, interrogatories, requests for information, or documents in legal proceedings, subpoena, civil investigative demand, or other similar process) to disclose any of Discloser’s Confidential Information, the Recipient will not disclose the Discloser’s Confidential Information without providing the Discloser with commercially reasonable advance prior written notice to allow Discloser to seek a protective order or other appropriate remedy or to waive compliance with this provision. In any event, the Recipient will exercise its commercially reasonable efforts to preserve the confidentiality of the Discloser’s Confidential Information, including, without limitation, cooperating with Discloser to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded to the Confidential Information.
7.3 Customer Content. As between BMC and Customer, Customer owns all rights, title and interest in and to Customer Content. Customer Content is deemed Confidential Information under this Agreement. BMC will use the Customer Content only as necessary to provide the Subscription Services in accordance with this Agreement. At any time during the term of the Subscription Services, Customer may request copies of all Customer Content from the Subscription Services. Customer is responsible for complying with all legal and contractual requirements, including its agreements with third parties. With the exception of Customer Content collected by the Subscription Services, Customer is solely responsible for the transmission of Customer Content to BMC and to the Subscription Services. Customer is solely responsible for the encryption of any Customer Content during such transmission.
7.4 Suggestions. Customer agrees that BMC shall have a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into any BMC products or services any suggestions, enhancement requests, recommendations or other feedback provided by Customer relating to the Subscription Services.
8. DISCLAIMER OF DAMAGES AND LIMITS ON LIABILITY.
8.1 DISCLAIMER OF DAMAGES. NEITHER PARTY OR ITS AFFILIATES OR LICENSORS ARE LIABLE FOR ANY, SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES RELATING TO OR ARISING OUT OF THIS AGREEMENT OR THE SUBSCRIPTION SERVICES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST COMPUTER USAGE TIME, AND DAMAGE TO, OR LOSS OF USE OF, DATA), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND IRRESPECTIVE OF ANY NEGLIGENCE OF A PARTY OR WHETHER SUCH DAMAGES RESULT FROM A CLAIM ARISING UNDER TORT OR CONTRACT LAW. THE FOREGOING LIMITATIONS DO NOT APPLY TO EACH PARTY’S RESPONSIBILITIES IN SECTION 9, INFRINGEMENT BY A PARTY OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, GROSS NEGLIGENCE, WILLFUL MISCONDUCT, DEATH OR BODILY INJURY, ACTS OF FRAUD, NOR ANY LIABILITY WHICH MAY NOT BE EXCLUDED OR LIMITED BY LAW.
8.2 LIMITS ON LIABILITY. NEITHER PARTY OR ITS AFFILIATES OR LICENSORS SHALL HAVE AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SUBSCRIPTION SERVICES, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEEDING THE AMOUNTS ACTUALLY PAID BY AND DUE FROM CUSTOMER FOR THE SUBSCRIPTION SERVICES GIVING RISE TO LIABILITY PURSUANT TO THE ORDER(S) THAT ARE IN EFFECT AS OF THE DATE THE LIABILITY FIRST AROSE. THE FOREGOING LIMITATIONS DO NOT APPLY TO EACH PARTY’S RESPONSIBILITIES IN SECTION 9, INFRINGEMENT BY A PARTY OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, GROSS NEGLIGENCE, WILLFUL MISCONDUCT, DEATH OR BODILY INJURY, ACTS OF FRAUD, NOR ANY LIABILITY WHICH MAY NOT BE EXCLUDED OR LIMITED BY LAW.
9. INFRINGEMENT CLAIMS.
9.1 Indemnification by BMC . If a third party asserts a claim against Customer asserting that Customer’s use of the Subscription Services, including Platform Services, Deliverables and Licenses as defined in the Attachments to this Agreement, in accordance with this Agreement violates that third-party’s patent, trade secret or copyright rights (“Infringement Claim”), then BMC will, at its own expense: (a) defend or settle the Infringement Claim; and (b) indemnify Customer for any damages finally awarded against Customer based on infringement by the Subscription Services or Deliverables, including court costs and reasonable attorney’s fees. If BMC believes the Subscription Services may violate a right, then BMC will, at its expense: (a) modify the Subscription Services, or (b) procure the right to continue using the Subscription Services, and if (a) or (b) are not commercially reasonable, terminate Customer's right to use the Subscription Services and issue a pro-rata refund for the unexpired pre-paid portion of such Subscription Services.
9.2 Indemnification by Customer. Subject to the terms of this Agreement, if a third party asserts a claim against BMC asserting that the (i) Customer Content, (ii) Customer Applications as defined in Attachment A, (iii) Customer Property as defined in Attachment B or (iv) Customer’s use of the Subscription Services in violation of this Agreement violates that third-party’s patent, trade secret or copyright rights (“ Claim”), Customer will, at its own expense: (a) defend or settle the Claim; and (b) indemnify BMC for any damages finally awarded against BMC based on the Claim, including court costs and reasonable attorney’s fees.
9.3 Indemnity Process. Neither party’s obligations under this Section will apply if: (a) the indemnifying party’s legal department does not receive prompt, detailed written notice of the Infringement Claim/Claim from the party being indemnified, (b) the indemnifying party is not able to retain sole control of the defense of the Infringement Claim/Claim and all negotiations for its settlement or compromise, or (c) the indemnifying party does not receive all reasonable assistance from the party being indemnified. Neither party will bind the indemnified party to a monetary obligation in a settlement or compromise, or make an admission on behalf of the indemnified party, without obtaining that party’s prior consent.
9.4 THIS SECTION 9 CONTAINS EACH PARTY'S EXCLUSIVE REMEDIES AND THE INDEMNIFYING PARTY'S SOLE LIABILITY FOR INFRINGEMENT CLAIMS/CLAIMS, RESPECTIVELY.
10. EXPORT CONTROLS. Both parties agree to comply with applicable export regulations, including but not limited to U.S. Export Administration Regulations and the OFAC embargoes and sanctions lists. More information on BMC’s export compliance program may be found here: https://www.bmc.com/legal/export-compliance.html.
11. GOVERNING LAW AND DISPUTE RESOLUTION. Any controversy, dispute or claim arising out of or relating to this Agreement, or to the formation, interpretation, breach, termination, or validity thereof (each, a “Controversy”) will be resolved as follows:
(i) UNITED STATES. If both parties to this Agreement are entities incorporated under the law of any state in the United States, the Controversy shall be tried in either state or federal court located in Houston, Texas and the laws of the State of Texas shall govern. Both parties hereby submit to the exclusive jurisdiction of the courts in Houston, Texas and waive all defenses based on forum non conveniens. Notwithstanding the foregoing, if Customer is a state or local governmental entity or higher education institution and legally required to apply state law, then Customer’s state law will apply to the Controversy, without reference to conflict of law principles.
(ii) CANADA. If Customer is located in Canada (outside Quebec), then the law of the Province of Ontario law apply, without reference to conflict of law principles. If Customer is located in Quebec, then the laws of the Province Quebec will apply, without reference to conflict of law principles.
(iii) EMEA. If both parties to this Agreement are entities incorporated in countries in the Europe, Middle East, or Africa regions, the Controversy shall be tried in the District Court located in Amsterdam, the Netherlands and the substantive laws of the Netherlands shall govern. Both parties hereby submit to the exclusive jurisdiction of the District Court in Amsterdam, the Netherlands and waive all defenses based on forum non conveniens.
(iv) ASIA PACIFIC. If both parties to this Agreement are entities incorporated in countries in the Asia Pacific region, the arbitration shall be held in Singapore under the then-applicable rules of the Singapore International Arbitration Centre and the substantive laws of Singapore will govern.
(v) OTHER REGIONS. In all other instances, the arbitration shall be held in New York City, New York, under the then-applicable international rules of the American Arbitration Association and the substantive laws of the State of Texas will govern.
For all arbitrations conducted hereunder: (a) the arbitration shall be conducted in English; (b) the relevant arbitral institution shall determine the number of arbitrators, but any Controversy in which the amount in dispute is greater than $10 million USD shall be decided by three arbitrators, with each party having the right to select one arbitrator; (c) the costs of such arbitration shall be borne equally, pending the arbitrator’s award; (d) the arbitration award rendered shall be final and binding on the parties, shall not be subject to appeal to any court and shall be enforceable in any court having jurisdiction over the parties; (e) the arbitration proceedings, award and pleadings shall all be confidential, unless disclosure of particular information is required for purposes of enforcing/challenging the award or to meet local securities law requirements; and (f) the party prevailing in arbitration shall be entitled to recover its reasonable attorneys’ fees and the necessary costs incurred in connection with the arbitration.
The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. Nothing in this Agreement shall be deemed as preventing either party from seeking immediate injunctive relief from any court having jurisdiction over the parties and the subject matter of the dispute.
12. The following BMC contracting entities apply to this Agreement:
Region | Contracting Entity | Address of Contracting Entity |
United States and Latin America South (not a specified Central or South America country below) | BMC Software, Inc. | 2103 CityWest Boulevard, Houston, Texas 77042 |
Canada | BMC Software Canada Inc. | 50 Minthorn Boulevard, Suite 200 Markham, Ontario L3T 7X8 Canada |
EMEA (Europe, Middle East and Africa) | BMC Software Distribution B.V. | Vision Plaza West, 2nd floor, Boeingavenue 250, 1119PZ Schiphol-Rijk, The Netherlands |
Brazil | BMC Brasil Software Ltda. | Avenida Dra. Ruth Cardoso, n° 8.501, Condomínio Eldorado Business Tower, 22° andar, Pinheiros, São Paulo – SP, CEP: 05425-070 |
Mexico | BMC Software Distribution de México, S.A. de C.V. | Volcán 150, Piso 4, Col. Lomas de Chapultepec, C.P. 11000, Deleg. Miguel Hidalgo, Ciudad de México |
Argentina | BMC Software de Argentina S.A. | Ing. Butty 220 - Piso 18, Catalinas Plaza Buenos Aires, República de Argentina, C1001A |
S.E.A (Southeast Asia), Australia, New Zealand, Hong Kong, Taiwan | BMC Software Asia Pacific Pte Ltd | 600 North Bridge Road, #20-01/10 Parkview Square, Singapore 188778 |
China | BMC Software (China) Limited | Room 502, Level 5, Tower W1, The Towers, Oriental Plaza, No. 1 East Chang An Ave., Dong Cheng Dist., Beijing 100738, China |
Japan | BMC Software K.K. | Harmony Tower 24th Floor, 1-32-2 Honcho, Nakano-ku, Tokyo, 164-8721 |
Korea | BMC Software Korea Ltd | 24th Fl., ASEM Tower, 1517, Yeongdong-daero,Gangnam-gu, Seoul 135-798, Korea South |
13. U.S. GOVERNMENT END USER RIGHTS. This Section applies only to acquisitions of the commercial Subscription Services subject to this Agreement by or on behalf of the United States Government, or by any prime contractor or subcontractor (at any tier) under any contract, grant, agreement or other activity with the United States Government. When Subscription Services are delivered or provided to the United States Government, the United States Government agrees that this commercial license Agreement and the Subscription Services governed by this Agreement are defined in accordance with and qualify as “commercial items” consisting of “commercial computer software” and “commercial computer software documentation” as outlined in FAR 12.211, FAR 12.212 and DFARS 227.7202-3, as applicable. The terms and conditions of this Agreement shall pertain to the United States Government’s use (including documentation or technical data), duplication, and disclosure of the Subscription Services, and shall supersede any conflicting contractual terms and conditions”.
14. DATA PROTECTION. The processing of Customer Content under this Agreement is governed by the BMC Data Processing Agreement set forth on the Order.
15. VERIFICATION. Customer agrees that BMC or its agent may monitor the Subscription Services to ensure Customer’s compliance with the terms of this Agreement. If such monitoring reveals that Customer has exceeded the Capacity for the Subscription Services, BMC may work with Customer to seek to reduce Customer’s usage so that it conforms to the Capacity limit for such Subscription Service. If, notwithstanding BMC’s efforts, Customer is unable or unwilling to abide by the Capacity limits for the Subscription Services, Customer will execute an Order for additional Capacity of such Subscription Services promptly upon BMC’s request.
16. NOTIFICATIONS. Any general notifications regarding technical matters from BMC to Customer will be sent to the Customer contact stated in the Customer Technical Contact Information section of the Order. The Customer contact in the Order has been assigned by Customer as the Customer contact for operational issues that may arise. Customer shall notify BMC of any change to the Customer contact details in writing, which may include via e-mail.
17. CONDUCTING BUSINESS WITH HONESTY AND INTEGRITY. BMC is committed to conducting business with honesty and integrity. BMC’s Code of Conduct set forth in https://www.bmc.com/content/dam/bmc/corporate/Code%2Bof%2BConduct(English).pdf governs the conduct of all officers, directors, and employees of BMC. BMC’s Third-Party Code of Conduct set forth in https://www.bmc.com/content/dam/bmc/corporate/Third+Party+Code+of+Conduct.pdf governs the conduct of contingent workers and business partners acting on BMC’s behalf. BMC demonstrates its commitment to environmental stewardship by its global accreditation for ISO 14001:2015.
18. MISCELLANEOUS TERMS. The parties are independent contractors and this Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties. Customer will receive system notifications from BMC and its licensors, if applicable (i.e. planned downtime notices, etc). This Agreement, including the Attachments and Orders constitutes the entire agreement between Customer and BMC and supersedes any prior or contemporaneous negotiations or agreements, whether oral or written concerning the Subscription Services. There are no representations, promises, warranties, covenants, or undertakings between the parties other than those expressly set forth in this Agreement. There are no third-party beneficiaries to this Agreement; Customer is not entering into a contractual relationship with BMC’s licensors and BMC’s licensors have no liability to Customer. Except as provided in Section 2 above, no modification or waiver of any provision hereof will be effective unless made in a writing signed by both BMC and Customer. Customer has the right to assign this Agreement and all Orders in whole to an Affiliate, or to a successor in connection with (i) the sale of all or substantially all of the assets of that party or (ii) a merger by operation of law, by providing written notice to BMC. The assignee may not be a known direct competitor of BMC. The successor entity or Affiliate must agree in writing with BMC (in advance of the assignment) to be bound by the terms of this Agreement. Any Customer transfer or assignment except as expressly authorized above will be null and void. Should any provision of this Agreement be invalid or unenforceable, the remainder of the provisions will remain in effect. Any additional or conflicting terms of any Customer purchase order are rejected by BMC and do not apply. The Subscription Services may contain hyperlinks to websites controlled by parties other than BMC. BMC is not responsible for and does not endorse the content or accept any responsibility for Customer’s use of these websites. Customer should refer to the policies posted by other websites regarding privacy and other topics regarding data privacy before using them. Les parties exigent que la présente convention ainsi que les documents qui s’y rattachent soient rédigés en anglais.
Attachments incorporated into Agreement |
Attachment A – Platform Services Attachment |
Attachment B – Consulting Services Attachment |
Attachment C – On Premise Subscription Services Attachment |
PLATFORM SERVICES ATTACHMENT
to the
BMC CLOUD SERVICES MASTER AGREEMENT
Except as otherwise provided herein, the terms of the Cloud Services Master Agreement (the “Base Agreement”) are incorporated into this Platform Services attachment (the “Attachment”). Together, this Attachment and the Base Agreement (as incorporated into this Attachment) are referred to as the “Agreement” for purposes of Customer’s access and use of Platform Services, only if the Platform Services are set forth on an Order referencing the Base Agreement. For purposes of this Agreement, the term “Subscription Services” as defined in the Base Agreement shall be extended to include the Platform Services. In the event of a conflict between the Base Agreement and the terms of this Attachment, the terms of this Attachment will control for Customer’s access and use of the Platform Services only.
1. SCOPE. Subject to the terms of this Agreement, BMC will provide Customer with access to the Platform Service named in the applicable Order.
2. DEFINITIONS.
2.1 “Application” is the object code, its definitional structures, and data created to fulfill a particular purpose, which runs on the Platform Services. An Application may also include its documentation and User Guide.
2.2 “Customer Applications” means Applications that are owned or licensed by Customer, and which run on the Platform Services.
2.3 “Development Platform” means a BMC provided development platform which allows Customer to develop a custom application to run on the Platform Services. The Development Platform is a separate environment from the Platform Services.
2.4 “Platform” means the generally available BMC-provided PaaS platform and its capabilities to run Applications.
2.5 “Platform Services” means the specific Platform Services identified in the Order.
3. BMC PLATFORM SERVICES.
3.1 BMC Platform Services Support. BMC will provide Support only for Platform Services. Customer is responsible for its own support for Customer Applications.
4. CUSTOMER APPLICATIONS.
4.1 The terms contained in this section 4 apply only to Orders for Platform Services entitling Customers to develop and deploy Customer Applications onto the Platform Services. Any Customer Applications that run on the Platform Services are hereby excluded from the defined terms “Subscription Services” and “Platform Services”.
4.2 Development Platform. Customer may utilize the Development Platform to create an Application to run on the Platform Services. Customer’s use of the Development Platform is governed by the terms of this Agreement subject to the restrictions set forth in sections 4.2.1 to 4.2.6 below. Customer’s development of an Application must meet the best practices development guidelines set forth in the User Guide. Each Customer Application shall at all times materially conform to policies and best practices set forth in the User Guide. Prior to the deployment of any Customer Applications in a production or non-production environment of the Platform Services, Customer must conduct security and functional tests of each Customer Application and submit the results of such tests to BMC for review. BMC reserves the right to reject Customer’s deployment request of a Customer Application based on the results of Customer’s security and functional tests. Additionally, BMC reserves the right, during the term of this Agreement, to request Customer conduct additional security and functional tests and provide the results of said tests to BMC for review. Notwithstanding the foregoing, Customer must ensure that at all times Customer Applications are secure.
4.2.1 Scope of use. The right to access and use the Development Platform is granted solely for the purpose of performing non-production application development work on the Development Platform.
4.2.2 Restrictions of use. Customer agrees not to:
(i) use the Development Platform to (1) process production data or for any other production purposes, including but not limited to publishing digital applications, or (2) distribute applications;
(ii) use the Development Platform with data or information that has not been backed up; or
(iii) modify, delete or remove any ownership, title, trademark, patent or copyright notices.
4.2.3 Customer Responsibilities. Customer is responsible for acquiring all necessary and required licenses for the use of any third party software, source code and/or libraries Customer may use as part of its development with the Development Platform. In addition to its other rights and remedies, BMC reserves the right, without liability to Customer, to immediately, at any time and for any reason refresh Customer’s instance of the Development Platform. Upon BMC’s refreshing of Customer’s instance of the Development Platform, Customer may lose all Customer Content submitted to or stored in said instance of the Development Platform. Upon expiration or termination of the applicable Order, BMC may destroy any Customer Content submitted to or stored therein. Customer is responsible for backing up any development work with Customer Content outside of the Development Platform.
4.2.4 Open Source. Customer may not use any software, library, utility, tool, or other computer or program code (“Code”) with the Subscription Services that in any way that would (i) weaken BMC’s intellectual property rights in the Services, or (ii) require the Subscription Services to become or be disclosed or distributed as Open Source Software. For purposes of this Section, “Open Source Software” means any Code that is substantially similar to, (A) the Affero General Public License, (B) the GNU General Public License (GPL) or Lesser/Library GPL (LGPL), (C) the Artistic License (e.g. PERL), (D) the Mozilla Public License, (E) the Netscape Public License, (F) the Sun Community Source License (SCSL), (G) the Sun Standards License (SISL), or (H) any “copyleft” license, or any other license that requires as a condition of use, reproduction, modification, or distribution that such Code or other software or computer code distributed with it: (1) be disclosed or distributed in source code form; (2) be licensed for the purpose of creating derivative works; (3) be licensed under terms that allow reverse engineering, reverse assembly, or disassembly of any kind; (4) be subject to a patent non-assert or royalty-free patent license; or (iv) be redistributable at no charge.
4.2.5 No Support. BMC, its affiliates, or licensors do not provide Support for the Development Platform.
4.2.6 Disclaimer of Warranty, Limitation of Liability and Exclusive Remedy. Notwithstanding anything to the contrary in the applicable Order or this Agreement:
a. THE DEVELOPMENT PLATFORM IS PROVIDED “AS IS” WITHOUT ANY WARRANTY OF ANY KIND WHATSOEVER. BMC, ITS AFFILIATES AND LICENSORS DO NOT WARRANT THAT THE DEVELOPMENT PLATFORM WILL SATISFY CUSTOMER’S REQUIREMENTS, THAT THE DEVELOPMENT PLATFORM IS WITHOUT DEFECT, VIRUS OR ERROR FREE, WITHOUT DELAY, OR THAT THE OPERATION OF THE DEVELOPMENT PLATFORM WILL BE UNINTERUPTED. BMC, ITS AFFILIATES AND LICENSORS DISCLAIM ANY AND ALL REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, MADE WITH RESPECT TO THE DEVELOPMENT PLATFORM, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INTERFERENCE AND INFORMATION CONTENT; AND
b. NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY, FOR ANY CLAIM, LOSS, DAMAGE OR EXPENSE FOR INDIRECT, SPECIAL, CONSEQUENTIAL, PUNITIVE OR INCIDENTAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE DEVELOPMENT PLATFORM (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST COMPUTER USAGE TIME, AND DAMAGE TO, OR LOSS OF USE OF, DATA), EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EITHER PARTY’S ENTIRE LIABILITY AND THE OTHER PARTY’S EXCLUSIVE REMEDY FOR DIRECT DAMAGES ARISING OUT OF OR RELATED TO THE DEVELOPMENT PLATFORM, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, IS LIMITED TO $100.
4.3 License to Customer Applications. Subject to the terms and conditions of this Agreement, Customer hereby grants BMC a worldwide, limited, nonexclusive license during the term of the applicable Order for the Platform Services to host, copy, transmit, adapt and display Customer Applications solely for the purpose of fulfilling BMC’s obligations under this Agreement.
4.4 Functionality of Customer Applications. Customer is solely responsible for the operation of Customer Applications, including but not limited to any information stored in or transmitted by Customer Applications. Customer is responsible for monitoring the usage of each Customer Application. Customer is responsible for the configuration, functionality, performance, compliance with applicable data protection laws and security of all Customer Applications, including any interfaces used to connect to Customer Applications.
4.5 Customer will provide information or other materials related to a Customer Applications as reasonably requested by BMC to verify Customer’s compliance with the Agreement and the User Guide.
4.7 Suspension of Customer Applications. Customer’s use of the Platform Services may be immediately suspended and/or terminated due to (i) reasonable security threats regarding the Platform Services or Customer Applications, (ii) Customer Applications interfering with, disrupting or threatening the integrity or performance of the Subscription Services and/or the Platform Services, or (iii) violates the law, infringes or misappropriates the rights of any third party or otherwise violates a material term of the Agreement. In the event (i) or (ii) above apply to Customer Applications, Customer is required to remediate any such issue to BMC’s commercially reasonable satisfaction before use of Customer Applications can resume. BMC shall use reasonable commercial efforts to only suspend the non-conforming portion of the Platform Services.
4.8 CUSTOMER APPLICATIONS WARRANTIES. Customer warrants to BMC that: (a) each Customer Application will perform materially in accordance with the User Guide; (b) Customer has all rights in the Customer Content and Customer Applications necessary to grant the rights contemplated by this Agreement; (c) none of the Customer Content or Customer Applications or Users’ use of Customer Content or Customer Applications will violate the Agreement and the User Guide; and (d) Customer’s security and functional tests of Customer Applications was conducted in a commercially reasonable manner and the results of said tests provided to BMC for review are correct and valid.
ATTACHMENT B
CONSULTING SERVICES ATTACHMENT
to the
BMC CLOUD SERVICES MASTER AGREEMENT
Except as otherwise provided herein, the terms of the Cloud Services Master Agreement (the “Base Agreement”) are incorporated into this Consulting Services attachment (the “Attachment”). Together, this Attachment and the Base Agreement (as incorporated into this Attachment) are referred to as the “Agreement” for purposes of Customer’s purchase of Consulting Services, only if Consulting Services are set forth on an Order referencing the Base Agreement. For purposes of this Agreement, the term “Subscription Services” as defined in the Base Agreement shall be extended to include Consulting Services. In the event of a conflict between the Base Agreement and the terms of this Attachment, the terms of this Attachment will control for Customer’s purchase of Consulting Services only. The parties agree that the following Sections of the Base Agreement do not apply to the Consulting Services provided under this Attachment: Section 3.2 (Support), Section 4 (Fees and Payment), and Section 6 (Limited Warranty).
1. SCOPE. BMC agrees to render to Customer Consulting Services under the terms of this Agreement and as further described in an Order. BMC will render the Consulting Services in the location(s) as set forth in the Order. The performance of the Consulting Services will not relieve or alter the rights, obligations and responsibilities of Customer and of the BMC Affiliate providing Subscription Services and/or Licenses with respect to Subscription Services and/or Licenses under the applicable agreement.
2. SERVICE FEES AND EXPENSES. The fees payable to BMC for the Consulting Services to be rendered will be detailed in the Order. BMC will submit invoices to Customer for such fees and incurred expenses either upon completion of the Consulting Services, or at stated intervals, in any case in accordance with the applicable Order. Customer shall pay amounts invoiced within 30 days following receipt of the invoice.
3. EDUCATION. Customer may acquire Learning Pass Credits and Education Services (collectively, “BMC Education ”) on an Order. The BMC Education terms that govern such Orders are set forth in the Education Program Guide located at https://www.bmc.com/content/dam/bmc/education/education-program-guide.pdf, and is incorporated herein by this reference.
4. STATEMENTS OF WORK. Consulting Services may require the execution of a Statement of Work, in which case, such Statement of Work will be considered an Order for such Consulting Services. In the event of any conflict between the terms of a Statement of Work and this Agreement, the Agreement shall prevail except for matters of service fees, payment and reimbursement of expense, and termination of Consulting Services if further specified in the Statement of Work. During the term of an applicable Statement of Work, and for a period of six months thereafter, neither party will solicit for employment any employees, agents, or subcontractors of the other party or its affiliates who, within six months prior to such solicitation, had contact with the soliciting party based in whole or in part upon Consulting Services provided under this Agreement. The restrictions in this section shall be deemed not to apply to general solicitations for employment posted on Internet job sites or printed in newspapers or trade or professional journals.
5. PROPRIETARY RIGHTS AND RIGHTS IN DELIVERABLES.
5.1 Ownership of Materials Used in the Consulting Services. Unless specifically provided in an Order, Customer shall supply all of the facilities; equipment; supplies; computer programs; information about Customer’s business, systems, software and needs; and other materials necessary for completion of the Consulting Services (“Customer Property”), and BMC shall supply the people described in the Order, the know-how and the tools necessary to provide the Consulting Services, which may include, among other things, software, templates, questionnaires, graphs, methodologies, models, charts and reports (“BMC Property”). Customer Property and copies and modifications of Customer Property will remain the sole property of Customer or if applicable, Customer’s licensors, and BMC Property and copies and modifications of BMC Property will remain the sole property of BMC or if applicable, BMC’s licensors. Customer hereby grants to BMC a royalty-free, paid-up, non-exclusive, non-sublicensable and non-transferable license to use the Customer Property for the purpose of providing the Consulting Services.
5.2 Deliverables. Deliverables are those created under the Order, including, but not limited to, software, software scripts, routines, libraries or other code, or appliances, methodologies, templates, tools, policies, records, working papers, reports, methodologies, know-how, data, or other intellectual property, written or otherwise, including any derivative works or modifications to the above, whether pre-existing or created during the performance of the Consulting Services and all proprietary and intellectual property rights embedded therein delivered as a result of the Consulting Services as specified under the Order. BMC owns all right, title and interest in the Deliverables. Provided Customer has paid in full for the Consulting Services that resulted in the Deliverables, BMC will deliver the Deliverables to Customer in accordance with the applicable Order. Subject to compliance with the terms of this Agreement and the applicable Order, BMC grants Customer a non-exclusive, non-transferable, non-sublicensable, royalty-free, paid-up license to use, create derivative works of and modify all Deliverables solely for its internal business operations.
5.3 Copyright Notice. Each party agrees to reproduce the copyright notice and any other legend or ownership notice on any copies made under the licenses granted pursuant to this Section 5.
5.4 Retention. Customer acknowledges that BMC provides similar services to other customers and that nothing in this Agreement shall be construed as operating to prevent BMC from carrying on such business. Further BMC may use ideas, concepts, or know-how developed or acquired by BMC during performance of the Consulting Services to the extent by BMC’s personnel as impressions and general learning.
6. LIMITED WARRANTY. BMC warrants that it will perform the Consulting Services in conformance with generally accepted practices within the software services industry and in accordance with the Order. Customer must notify BMC of any breach of this warranty no later than 90 days after completion of the Consulting Services under the Order. Customer’s exclusive remedy and BMC’s entire liability under this warranty shall be for BMC to re-perform any non-conforming portion of the Consulting Services within a reasonable period of time, or if BMC cannot remedy the breach during such time period then refund the portion of the fee attributable to such non-conforming portion of the Consulting Services under the Order. This warranty will not apply to the extent Customer, its contractors or agents have modified any Deliverable, unless otherwise authorized by BMC in writing.
THIS WARRANTY AND CONDITION IS IN LIEU OF ALL OTHER WARRANTIES AND CONDITIONS. THERE ARE NO OTHER EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS, INCLUDING THE IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
7. INSURANCE. BMC will provide and maintain the following insurance, but only for losses arising out of BMC’s provision of Consulting Services under this Attachment:
7.1 Worker’s Compensation insurance as prescribed by the law of the state applicable to the employees performing the Consulting Services;
7.2 Employer’s Liability insurance with a limit of one million US dollars ($1,000,000) for each occurrence;
7.3 Commercial General Liability insurance with one million US dollars ($1,000,000) per occurrence combined single limit and five million US dollars ($5,000,000) general aggregate, including coverage for Products Liability and Completed Operations;
7.4 Automobile Liability insurance, including coverage for Hired and Non-owned vehicles of one million US dollars ($1,000,000) for combined single limit for bodily injury and/or property damage; and
7.5 Professional Liability insurance covering Errors and Omissions in the amount of one million US dollars ($1,000,000) for each occurrence and in the aggregate associated with Consulting Services performed under this AGREEMENT.
8. MUTUAL INDEMNITY. Each party shall indemnify and hold harmless the other party from all claims, liabilities or expenses for physical damage to real property or tangible personal property and bodily injury, including death, to the extent caused by the negligence, gross negligence or willful misconduct of the indemnifying party’s employees or contractors arising out of this Agreement and while at the Customer’s premises. The foregoing indemnities are contingent upon the party seeking indemnity giving prompt written notice to the indemnifying party of any claim, demand or action, and cooperating with the indemnifying party in the defense or settlement of any such claim, demand or action.
9. INDEPENDENT CONTRACTOR. All of the services performed by BMC under this Agreement will be performed as an independent contractor.
ATTACHMENT C
ON PREMISE SUBSCRIPTIONS ATTACHMENT
to the
BMC CLOUD SERVICES MASTER AGREEMENT
Except as otherwise provided herein, the terms of the Cloud Services Master Agreement (the “Base Agreement”) are incorporated into this On Premise Subscriptions attachment (the “Attachment”). Together, this Attachment and the Base Agreement (as incorporated into this Attachment) are referred to as the “Agreement” for purposes of Customer’s purchase and ongoing use of On Premise Subscriptions, only if On Premise Subscriptions are set forth on an Order referencing the Base Agreement. For purposes of this Agreement, the term “Subscription Services” as defined in the Base Agreement shall be extended to include On Premise Subscriptions. In the event of a conflict between the Base Agreement and the terms of this Attachment, the terms of this Attachment will control for Customer’s purchase of On Premise Subscriptions only. The parties agree that the following Sections of the Base Agreement do not apply to the On Premise Subscriptions provided under this Attachment: Section 3.1 (Access Rights), Section 3.4 (Customer Responsibilities and Restrictions), Section 6 (Limited Warranty) and Section 14 (Verification).
1. DEFINITIONS.
1.1 “Authorized User” means Customer, Customer Affiliate(s), and their employees, consultants, contractors and agents that are bound by the terms and conditions no less restrictive than those contained herein and for whom Customer takes full responsibility. Authorized Users do not include service providers or outsourcers.
1.2 "Documentation" means the technical publications relating to the software, such as release notes, license entitlement descriptions, reference, user, installation, systems administrator and technical guidelines, included with the On Premise Subscription.
1.3 “Licensed Capacity” is the amount of each On Premise Subscription licensed as established in the Order.
1.4 “On Premise Subscription” is the object code of the software and all accompanying Documentation delivered to Customer, including all items delivered by BMC to Customer under Support.
2. LICENSE. Subject to the terms, conditions, payment requirements and restrictions set forth in this Agreement, BMC grants Customer a non-exclusive, non-transferable, non-sub-licensable term license to install in the Territory, access and use the On Premise Subscription during the term specified on the Order (i) by Authorized User(s), (ii) up to the Licensed Capacity, (iii) for Customer’s and its Affiliates’ internal business operations, (iv) in accordance with the Documentation and the applicable Order, and (v) make a reasonable number of copies of the On Premise Subscription for archival purposes only (collectively a "License"). Affiliates may use and access the On Premise Subscriptions under the terms of this Agreement, and Customer is responsible for its Affiliates compliance with the terms of this Agreement.
3. RESTRICTIONS. Customer will not: (a) copy, operate or use any On Premise Subscription in excess of the applicable Licensed Capacity or other than as set forth in the License above; (b) modify, delete or remove any ownership, title, trademark, patent or copyright notices (“Identification”) from any On Premise Subscription, or copy or partial copy of an On Premise Subscription; (c) disassemble, reverse engineer, decompile or otherwise attempt to derive any On Premise Subscription source code from object code, except to the extent expressly permitted by applicable law despite this limitation without possibility of contractual waiver; (d) distribute, rent, lease, sublicense or provide the On Premise Subscription to any third party; (e) use the On Premise Subscriptions in an outsourcing or service bureau environment on behalf of non-Affiliate third parties, or allow the On Premise Subscriptions to be used by an outsourcing or service bureau provider on Customer’s behalf (without obtaining prior written approval from BMC); (f) provide a third party with the results of any functional evaluation, or performance tests, without BMC's prior written approval; or (g) attempt to disable or circumvent any of the licensing mechanisms within the On Premise Subscription.
4. ON PREMISE SUBSCRIPTION PERFORMANCE WARRANTY. BMC warrants that (a) the On Premise Subscription will perform in substantial accordance with its Documentation for a period of one year from the date of the first Order, (b) BMC has used commercially reasonable efforts consistent with industry standards to scan for and remove software viruses, and (c) other than passwords that may be required for the operation of the On Premise Subscription, BMC has not inserted any code that is not addressed in the Documentation and that is designed to delete, interfere with or disable the normal operation of the On Premise Subscription in accordance with the License. This warranty will not apply to any problems caused by hardware, Computers, or software other than the On Premise Subscription, or misuse of the On Premise Subscription, use of the On Premise Subscription other than as provided by the applicable License, modification of the On Premise Subscription, or claims made either outside the warranty period or not in compliance with the notice and access requirements set forth below. No warranty is provided for additional Licensed Capacity, On Premise Subscription provided pursuant to Support. BMC’s entire liability, and Customer’s exclusive remedy, for breach of the above warranty is limited to: BMC’s use of commercially reasonable efforts to have the On Premise Subscription perform in substantial accordance with its Documentation, or replacement of the non-conforming On Premise Subscription within a reasonable period of time, or if BMC cannot have the On Premise Subscription perform in substantial accordance with its Documentation replace the On Premise Subscription within such time period, then BMC will refund the amount paid by Customer for the License for that On Premise Subscription. Customer’s rights and BMC's obligations in this Section are conditioned upon Customer’s providing BMC during the warranty period (i) full cooperation and access to the On Premise Subscription in resolving any claim; and (ii) written notice addressed to the BMC Legal Department that includes notice of the claim, a complete description of the alleged defects sufficient to permit their reproduction in BMC’s development or support environment, and a specific reference to the Documentation to which such alleged defects are contrary.
EXCEPT FOR THE EXPRESS WARRANTIES IN THIS ATTACHMENT, THE ON PREMISE SUBSCRIPTION IS PROVIDED WITH NO OTHER WARRANTIES WHATSOEVER, AND BMC, ITS AFFILIATES AND LICENSORS DISCLAIM ALL OTHER WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE AND IN THE UNITED STATES AND CANADA, MERCHANTABILITY AND NON-INFRINGEMENT. BMC DOES NOT WARRANT THAT THE OPERATION OF THE ON PREMISE SUBSCRIPTION WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT ALL DEFECTS CAN BE CORRECTED.
5. DELIVERY. For On Premise Subscriptions that are delivered electronically, upon request from BMC, Customer agrees to provide BMC with documentation supporting that the designated On Premise Subscription was received electronically. If Customer accepts any On Premise Subscription in a non-electronic format, there may be an additional charge and it is the sole responsibility of Customer to bear any sales/use tax obligation, penalties, and interest. All On Premise Subscriptions are licensed FCA (“Free Carrier” as per Incoterms 2000) shipping point. The On Premise Subscriptions are accepted on the date BMC delivers the On Premise Subscription to the Customer either physically or by providing access codes for electronic download, whichever occurs first, however, such acceptance will not affect the On Premise Subscription Performance Warranty provided in this Agreement.
6. AUDIT. If requested by BMC, and not more than once a year, Customer agrees to deliver to BMC, within 30 days of such request, as specified by BMC either (a) periodic product usage reports generated from specific products or (b) written periodic product usage reports, to be provided solely when the product does not generate reports (“Report”). Additionally, if requested by BMC not more than once a year and upon at least ten days prior written notice to Customer, Customer agrees to allow BMC to perform an audit (“Audit”) to ensure compliance with the terms of this Agreement at the locations where the On Premise Subscriptions are installed, during normal business hours. to ensure compliance with the terms of this Agreement. Customer agrees to cooperate during any such Audit and to provide reasonable access to its information and systems.
Effective July 7th 2020 to August 27th 2020
DownloadTable of Contents
BMC CLOUD SERVICES MASTER AGREEMENT
THIS CLOUD SERVICES MASTER AGREEMENT (“AGREEMENT”) GOVERNS YOUR FREE TRIAL, IF ANY, OF THE SUBSCRIPTION SERVICES.
IF YOU PURCHASE THE SUBSCRIPTION SERVICES, THIS AGREEMENT WILL ALSO GOVERN YOUR PURCHASE AND ONGOING USE OF THE SUBSCRIPTION SERVICES.
BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SUBSCRIPTION SERVICES.
You may not access the Subscription Services if you are BMC’s direct competitor, except with BMC’s prior written consent. In addition, you may not access the Subscription Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.
This Agreement was last updated on July 7, 2020. This Agreement is between the entity or individual entering into this Agreement (“Customer”) and the BMC Contracting Entity for the applicable region as described in Section 12 (“BMC”). It is effective between Customer and BMC as of the date of your acceptance of this Agreement. If Customer has a fully executed BMC Cloud Services Master Agreement then such fully executed BMC Cloud Services Master Agreement supersedes and replaces any clickwrap or click-through agreements (or other similar agreements) that Customer may be required to accept as a part of accessing or using the Subscription Services. For Customer’s convenience, prior versions of this Agreement are available at https://www.bmc.com/legal/csma.html.
FREE TRIAL.
BMC may make the Subscription Services available to Customer on a trial basis free of charge. If BMC offers Customer a free trial, it will run until the earlier of (a) the end of the trial period stated on the trial registration web page or (b) the start date of any Order for purchase of the Subscription Services. Additional trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.
ANY DATA CUSTOMER ENTERS INTO THE SUBSCRIPTION SERVICES, AND ANY CUSTOMIZATIONS MADE TO THE SUBSCRIPTION SERVICES BY OR FOR CUSTOMER, DURING A FREE TRIAL MAY BE PERMANENTLY LOST.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THE AGREEMENT, DURING ANY FREE TRIAL PERIOD THE SUBSCRIPTION SERVICES ARE PROVIDED “AS IS” WITH NO WARRANTY.
1. DEFINITIONS.
1.1 “Affiliate” is an entity that controls, is controlled by or shares common control with BMC or Customer, where such control arises from the legal power to direct or cause the direction of the general management and policies of the company, partnership or legal entity.
1.2 "Subscription Services" means the generally available hosted service which packages web-based access and the right-to-use the supported applications, installed agents and associated reference, user and technical guides.
1.3 “Capacity” means the amount of access to the Subscription Services purchased as specified in an Order, which is counted in accordance with the Unit of Measure described in the Order.
1.4 “Customer Content” means all electronic data or information (a) submitted to the Subscription Services by Customer, a third party on behalf of Customer, or as directed by Customer or (b) collected, processed or returned by the Subscription Services .
1.5 “Order” means (i) the agreed ordering document for the purchase of the Subscription Services, (ii) that is subject to this Agreement, and (iii) that identifies the terms of the purchase and fees to be paid. The term “Order” includes Customer’s online registration for and purchase of the Subscription Services, If any.
1.6 “User Guide” means the online help, functional guide and technical specifications for the Subscription Services, as updated by BMC from time to time.
2. SCOPE. Subject to the terms of this Agreement, Customer may purchase and BMC will provide Customer with access to the Subscription Services as set forth in this Agreement and the applicable Order. Subject to the Attachments to this Agreement, Customer may also purchase BMC Platform Services, BMC Consulting Services and BMC On Premise Subscription Services. In the event of a direct conflict between any Order and the terms of this Agreement, the terms of the Order will control only if the Order is executed by an authorized representative of each party. Orders may also be placed via a BMC authorized reseller. Neither execution of this Agreement, nor anything contained herein, shall obligate either party to enter into any Orders.
3. ACCESS TO SUBSCRIPTION SERVICES.
3.1 Access Rights. Subject to Customer’s payment of applicable fees and to the terms of this Agreement, BMC will provide Customer with worldwide access to the Subscription Services in accordance with the Order (i) up to the Capacity, (ii) for Customer’s and its Affiliates’ internal business operations, (iii) in accordance with the User Guide and the applicable Order. Customer may exercise its rights under this Section 3.1 through its service providers, outsourcers, employees, consultants, contractors, agents, and Affiliates (all, “Users”).
3.2 BMC Subscription Services Support. BMC will provide the support described at http://www.bmc.com/support/review-policies (“Support”) to Customer for the Subscription Services.
3.3 Use of Subcontractors. Customer acknowledges and agrees that BMC uses subcontractors to provide portions of the Subscription Services. BMC will provide a list of its current subcontractors upon Customer’s written request. BMC is responsible for the performance of all subcontractors providing any of the Subscription Services.
3.4 Compliance with Laws. Each party shall comply with all applicable laws in the performance of its obligations under this Agreement.
3.5 Customer Responsibilities and Restrictions.
(a) Customer will (i) maintain the confidentiality of all authentications and passwords for the Subscription Services and immediately notify BMC if it becomes aware that an unauthorized party has gained access such authentications and passwords, (ii) be responsible for use of the Subscription Services by its Users in compliance with this Agreement, (iii) prevent unauthorized access to, or use of, the Subscription Services, and notify BMC promptly of any such unauthorized access or use, (iv) comply with all applicable laws in using the Subscription Services, and (v) be responsible for obtaining its own Apple Push Notification certificate, if the Subscription Services are used to manage devices running iOS. Customer is responsible for the creation and implementation of a privacy policy and end user agreement, if applicable, which will set forth the guidelines of how Customer uses and protects the data and personal information of its Users, and how said Users may utilize the Subscription Services.
(b) Customer will not (i) modify, copy or create derivative works based on the Subscription Services; (ii) create Internet “links” to or reproduce any content forming part of the Subscription Services, other than for its own internal business purposes; (iii) disassemble, reverse engineer, or decompile the Subscription Services or part thereof; (iv) interfere with or disrupt the integrity or performance of the Subscription Services; (vi) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortuous material, or send or store material in violation of any third party’s privacy rights via the Subscription Services; (vii) send or store viruses or malicious code via the Subscription Services; (viii) attempt to gain unauthorized access to the Subscription Services or its related software, systems, platforms or networks, including any form of security and/or penetration testing; (ix) use any components provided with the Subscription Services separately from the Subscription Services; or (x) distribute, rent, lease or provide the Subscription Services to any third party or use it in a service bureau, outsourcing environment, or for the processing of third party data .
4. FEES AND PAYMENT.
4.1 Fees. The fees payable for the Subscription Services and the payment period for such fees will be set forth in and paid in accordance with the Order. All payments are due within 30 days of the date of the invoice.
4.2 Late Fees. Late balances may, at BMC’s sole election, bear interest at a rate equal to the lesser of 1% per month or the maximum amount permitted by law.
4.3 Taxes. Customer will pay taxes imposed in connection with the fees paid for the Subscription Services, which are exclusive of these taxes.
4.4 Solution Providers. With regard to Subscription Services acquired by Customer through an authorized Solution Provider of BMC, notwithstanding anything to the contrary in sections 4.1 and 4.2 above, Customer will have no direct payment obligations to BMC for such fees.
5. TERM, SUSPENSION AND TERMINATION.
5.1 Term. This Agreement begins on the Effective Date and will remain in effect unless terminated pursuant to Section 5.2 below, regardless of the billing frequency selected in the Order.
5.2 Termination.
(a) Termination for Convenience. Customer may terminate this Agreement by providing BMC with at least 30 days prior written notice; provided, however, such termination will have no effect on Orders in effect at the time of such termination. Orders may not be terminated for convenience unless otherwise specified therein. Customer may notify BMC of its intent to terminate by emailing BMC at order_services@bmc.com.
(b) Termination for Cause. Either party may terminate this Agreement and/or an Order for cause: (i) upon 30 days’ written notice of a material breach to the other party if such breach remains uncured at the expiration of such period; or (ii) immediately if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. In the event Customer terminates the Agreement and an Order for BMC’s material breach, BMC will refund the amount paid by Customer to BMC for the Subscription Services on such Order, pro-rated from the date of the notice of the termination.
5.3 Suspension of Subscription Services for Cause. In addition to its other rights and remedies, BMC reserves the right, without liability to Customer, to suspend any and all access to the Subscription Services if Customer commits a material breach of this Agreement and fails to cure the same within 30 days from Customer’s receipt of written notice of such breach from BMC. Provided however, that BMC may immediately suspend any and all access to the Subscription Services without any cure period if BMC determines in good faith that Customer’s material breach of the Agreement will cause damage to BMC, the Subscription Services, or any other customer.
5.4 Effects of Termination. Upon termination or expiration of any Order or this Agreement, all rights and Licenses granted thereunder will terminate and Customer will make no further use of the Subscription Services. No termination will relieve the Customer of the obligation to pay any fees accrued or payable to BMC pursuant to any Order. Upon written request by Customer made within 45 days after the effective date of termination, BMC will make the Customer Content available to Customer for retrieval in an industry standard format. After such 45-day period, BMC shall have no obligation to maintain any Customer Content and will thereafter delete Customer Content. Any terms in this Agreement which by their nature extend beyond termination of this Agreement will remain in effect until fulfilled.
5.5 Termination Assistance. Upon Customer’s request and upon (a) the expiration of an Order or (b) the termination of an Order for any reason other than Customer’s breach, BMC shall perform such services as the parties in good faith agree are reasonably necessary to facilitate the orderly transition of the Services to the successor service provider or to the Customer. BMC will provide any such services under the terms and conditions of the Agreement, and subject to payment of the then-current fees and charges, generally applicable to BMC’s performance of such services, as agreed between the parties at such time.
6. LIMITED WARRANTY.
6.1 Warranties and Limited Remedies. BMC warrants to Customer that:
(a) the online availability of the Subscription Services will be maintained in accordance with the service levels attached to the applicable Order, if any (the “Service Level Agreement” or “SLA”). Customer’s exclusive remedy and BMC’s sole obligation for breach of the warranty in this Section 6.1(a) is described in the Service Level Agreement;
(b) the Subscription Services (i) will perform in substantial accordance with the then-current on-line User Guide available via the Subscription Services and (ii) will be performed in a manner consistent with industry standards reasonably applicable to the provision thereof. Customer’s exclusive remedy and BMC’s sole obligation for breach of the warranty in this Section 6.1(b) will be BMC’s use of commercially reasonable efforts to have the Subscription Services perform in substantial accordance with the User Guide, or replace the non-conforming portion of the Subscription Services within 60 days from the written notice of claim, or if BMC cannot have the Subscription Services perform in substantial accordance with the User Guide or replace the Subscription Services within such time period, then Customer may terminate the non-performing Subscription Services, and upon such termination BMC will refund the amount paid by Customer for the Subscription Services, pro-rated from the date of the notice of the claim. Customer’s rights and BMC’s obligations in this Section 6.1(b) are conditioned upon Customer’s providing BMC with written notice of the claim, a complete description of the alleged defects and a specific reference to the User Guide to which such alleged defects are contrary; and
(c) In connection with the Subscription Services (i) it has used commercially reasonable efforts consistent with industry standards to scan for and promptly remove any software viruses for no charge and (ii) it has not inserted any Disabling Code. “Disabling Code” means computer code inserted by BMC, that is not addressed in the User Guide, and that is designed to expose data, delete, interfere with, and/or disable the normal operation of the Subscription Services. This Disabling Code warranty does not apply to BMC passwords necessary for the operation of the Subscription Services, or for any use by Customer outside the scope of this Agreement.
6.2 Disclaimer. CUSTOMER ACKNOWLEDGES THAT, EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, BMC, ITS AFFILIATES AND LICENSORS MAKE NO WARRANTY, EXPRESS, IMPLIED OR STATUTORY WITH RESPECT TO THE SUBSCRIPTION SERVICES OR USE THEREOF. BMC, ITS AFFILIATES AND LICENSORS HEREBY EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY THAT SUBSCRIPTION SERVICES WILL BE UNINTERRUPTED, ERROR FREE OR WITHOUT DELAY, AND THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INTERFERENCE, NON-INFRINGEMENT AND INFORMATION CONTENT.
7. PROPRIETARY RIGHTS AND CONFIDENTIALITY.
7.1 Proprietary Rights. BMC, its Affiliates or licensors retain all right, title and interest to the Subscription Services and all related intellectual property and proprietary rights. The Subscription Services are protected by applicable copyright, trade secret, industrial and other intellectual property laws. BMC owns all right, title and interest in all software, programming, documentation, templates, questionnaires, methodologies, models, charts, reports, ideas, features, content, functions, graphics and any other items provided as part of the Subscription Services (“ Service Items”) and access to and use of the relevant Service Items will be governed by the terms of this Agreement. Subject to (i) BMC’s or its licensor’s ownership of any Service Items and (ii) section 3.4 (b) (i) of the Agreement, Customer owns all rights, title, and interest in Customer Applications, including all proprietary and intellectual property rights. BMC reserves any rights not expressly granted to Customer. Customer shall not access the Subscription Services in order to build a competitive product or service or copy any ideas, features, functions or graphics of the Subscription Services. “ Confidential Information” means all proprietary or confidential information that is disclosed to the recipient (“Recipient”) by the discloser (“ Discloser”), and includes, among other things (i) any and all information relating to products or services provided by a Discloser, its customer-related and financial information, software code, flow charts, techniques, specifications, development and marketing plans, strategies, and forecasts; (ii) as to BMC, and its licensors, the Subscription Services and Service Items; and (iii) the terms of this Agreement, including without limitation, pricing information. Confidential Information does not include information that Recipient can show: (a) was rightfully in Recipient’s possession without any obligation of confidentiality before receipt from the Discloser; (b) is or becomes a matter of public knowledge through no fault of Recipient; (c) is rightfully received by Recipient from a third party without violation of a duty of confidentiality; or (d) is or was independently developed by or for Recipient. Recipient may not disclose Confidential Information of Discloser to any third party or use the Confidential Information in violation of this Agreement. The Recipient (i) will exercise the same degree of care and protection with respect to the Confidential Information of the Discloser that it exercises with respect to its own Confidential Information and (ii) will not, either directly or indirectly, disclose, copy, distribute, republish, or allow any third party to have access to any Confidential Information of the Discloser. Notwithstanding the foregoing, Recipient may disclose Discloser’s Confidential Information to Recipient’s employees and agents who have need to know provided that such employees and agents have legal obligations of confidentiality substantially the same (and in no case less protective) as the provisions of this Agreement.
7.2 Notification Obligation. If the Recipient becomes aware of any unauthorized use or disclosure of Discloser’s Confidential Information, then Recipient will promptly and fully notify the Discloser of all facts known to it concerning such unauthorized use or disclosure. In addition, if the Recipient or any of its employees or agents are required (by oral questions, interrogatories, requests for information, or documents in legal proceedings, subpoena, civil investigative demand, or other similar process) to disclose any of Discloser’s Confidential Information, the Recipient will not disclose the Discloser’s Confidential Information without providing the Discloser with commercially reasonable advance prior written notice to allow Discloser to seek a protective order or other appropriate remedy or to waive compliance with this provision. In any event, the Recipient will exercise its commercially reasonable efforts to preserve the confidentiality of the Discloser’s Confidential Information, including, without limitation, cooperating with Discloser to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded to the Confidential Information.
7.3 Customer Content. As between BMC and Customer, Customer owns all rights, title and interest in and to Customer Content. Customer Content is deemed Confidential Information under this Agreement. BMC will use the Customer Content only as necessary to provide the Subscription Services in accordance with this Agreement. At any time during the term of the Subscription Services, Customer may request copies of all Customer Content from the Subscription Services. Customer is responsible for complying with all legal and contractual requirements, including its agreements with third parties. With the exception of Customer Content collected by the Subscription Services, Customer is solely responsible for the transmission of Customer Content to BMC and to the Subscription Services. Customer is solely responsible for the encryption of any Customer Content during such transmission.
7.4 Suggestions. Customer agrees that BMC shall have a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into any BMC products or services any suggestions, enhancement requests, recommendations or other feedback provided by Customer relating to the Subscription Services.
8. DISCLAIMER OF DAMAGES AND LIMITS ON LIABILITY.
8.1 DISCLAIMER OF DAMAGES. NEITHER PARTY OR ITS AFFILIATES OR LICENSORS ARE LIABLE FOR ANY, SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES RELATING TO OR ARISING OUT OF THIS AGREEMENT OR THE SUBSCRIPTION SERVICES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST COMPUTER USAGE TIME, AND DAMAGE TO, OR LOSS OF USE OF, DATA), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND IRRESPECTIVE OF ANY NEGLIGENCE OF A PARTY OR WHETHER SUCH DAMAGES RESULT FROM A CLAIM ARISING UNDER TORT OR CONTRACT LAW. THE FOREGOING LIMITATIONS DO NOT APPLY TO EACH PARTY’S RESPONSIBILITIES IN SECTION 9, INFRINGEMENT BY A PARTY OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, GROSS NEGLIGENCE, WILLFUL MISCONDUCT, DEATH OR BODILY INJURY, ACTS OF FRAUD, NOR ANY LIABILITY WHICH MAY NOT BE EXCLUDED OR LIMITED BY LAW.
8.2 LIMITS ON LIABILITY. NEITHER PARTY OR ITS AFFILIATES OR LICENSORS SHALL HAVE AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SUBSCRIPTION SERVICES, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEEDING THE AMOUNTS ACTUALLY PAID BY AND DUE FROM CUSTOMER FOR THE SUBSCRIPTION SERVICES GIVING RISE TO LIABILITY PURSUANT TO THE ORDER(S) THAT ARE IN EFFECT AS OF THE DATE THE LIABILITY FIRST AROSE. THE FOREGOING LIMITATIONS DO NOT APPLY TO EACH PARTY’S RESPONSIBILITIES IN SECTION 9, INFRINGEMENT BY A PARTY OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, GROSS NEGLIGENCE, WILLFUL MISCONDUCT, DEATH OR BODILY INJURY, ACTS OF FRAUD, NOR ANY LIABILITY WHICH MAY NOT BE EXCLUDED OR LIMITED BY LAW.
9. INFRINGEMENT CLAIMS.
9.1 Indemnification by BMC . If a third party asserts a claim against Customer asserting that Customer’s use of the Subscription Services, including Platform Services, Deliverables and Licenses as defined in the Attachments to this Agreement, in accordance with this Agreement violates that third-party’s patent, trade secret or copyright rights (“Infringement Claim”), then BMC will, at its own expense: (a) defend or settle the Infringement Claim; and (b) indemnify Customer for any damages finally awarded against Customer based on infringement by the Subscription Services or Deliverables, including court costs and reasonable attorney’s fees. If BMC believes the Subscription Services may violate a right, then BMC will, at its expense: (a) modify the Subscription Services, or (b) procure the right to continue using the Subscription Services, and if (a) or (b) are not commercially reasonable, terminate Customer's right to use the Subscription Services and issue a pro-rata refund for the unexpired pre-paid portion of such Subscription Services.
9.2 Indemnification by Customer. Subject to the terms of this Agreement, if a third party asserts a claim against BMC asserting that the (i) Customer Content, (ii) Customer Applications as defined in Attachment A, (iii) Customer Property as defined in Attachment B or (iv) Customer’s use of the Subscription Services in violation of this Agreement violates that third-party’s patent, trade secret or copyright rights (“ Claim”), Customer will, at its own expense: (a) defend or settle the Claim; and (b) indemnify BMC for any damages finally awarded against BMC based on the Claim, including court costs and reasonable attorney’s fees.
9.3 Indemnity Process. Neither party’s obligations under this Section will apply if: (a) the indemnifying party’s legal department does not receive prompt, detailed written notice of the Infringement Claim/Claim from the party being indemnified, (b) the indemnifying party is not able to retain sole control of the defense of the Infringement Claim/Claim and all negotiations for its settlement or compromise, or (c) the indemnifying party does not receive all reasonable assistance from the party being indemnified. Neither party will bind the indemnified party to a monetary obligation in a settlement or compromise, or make an admission on behalf of the indemnified party, without obtaining that party’s prior consent.
9.4 THIS SECTION 9 CONTAINS EACH PARTY'S EXCLUSIVE REMEDIES AND THE INDEMNIFYING PARTY'S SOLE LIABILITY FOR INFRINGEMENT CLAIMS/CLAIMS, RESPECTIVELY.
10. EXPORT CONTROLS. Both parties agree to comply with applicable export regulations, including but not limited to U.S. Export Administration Regulations and the OFAC embargoes and sanctions lists. More information on BMC’s export compliance program may be found here: https://www.bmc.com/legal/export-compliance.html.
11. GOVERNING LAW AND DISPUTE RESOLUTION. Any controversy, dispute or claim arising out of or relating to this Agreement, or to the formation, interpretation, breach, termination, or validity thereof (each, a “Controversy”) will be resolved as follows:
(i) UNITED STATES. If both parties to this Agreement are entities incorporated under the law of any state in the United States, the Controversy shall be tried in either state or federal court located in Houston, Texas and the laws of the State of Texas shall govern. Both parties hereby submit to the exclusive jurisdiction of the courts in Houston, Texas and waive all defenses based on forum non conveniens. Notwithstanding the foregoing, if Customer is a state or local governmental entity or higher education institution and legally required to apply state law, then Customer’s state law will apply to the Controversy, without reference to conflict of law principles.
(ii) CANADA. If Customer is located in Canada (outside Quebec), then the law of the Province of Ontario law apply, without reference to conflict of law principles. If Customer is located in Quebec, then the laws of the Province Quebec will apply, without reference to conflict of law principles.
(iii) EMEA. If both parties to this Agreement are entities incorporated in countries in the Europe, Middle East, or Africa regions, the Controversy shall be tried in the District Court located in Amsterdam, the Netherlands and the substantive laws of the Netherlands shall govern. Both parties hereby submit to the exclusive jurisdiction of the District Court in Amsterdam, the Netherlands and waive all defenses based on forum non conveniens.
(iv) ASIA PACIFIC. If both parties to this Agreement are entities incorporated in countries in the Asia Pacific region, the arbitration shall be held in Singapore under the then-applicable rules of the Singapore International Arbitration Centre and the substantive laws of Singapore will govern.
(v) OTHER REGIONS. In all other instances, the arbitration shall be held in New York City, New York, under the then-applicable international rules of the American Arbitration Association and the substantive laws of the State of Texas will govern.
For all arbitrations conducted hereunder: (a) the arbitration shall be conducted in English; (b) the relevant arbitral institution shall determine the number of arbitrators, but any Controversy in which the amount in dispute is greater than $10 million USD shall be decided by three arbitrators, with each party having the right to select one arbitrator; (c) the costs of such arbitration shall be borne equally, pending the arbitrator’s award; (d) the arbitration award rendered shall be final and binding on the parties, shall not be subject to appeal to any court and shall be enforceable in any court having jurisdiction over the parties; (e) the arbitration proceedings, award and pleadings shall all be confidential, unless disclosure of particular information is required for purposes of enforcing/challenging the award or to meet local securities law requirements; and (f) the party prevailing in arbitration shall be entitled to recover its reasonable attorneys’ fees and the necessary costs incurred in connection with the arbitration.
The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. Nothing in this Agreement shall be deemed as preventing either party from seeking immediate injunctive relief from any court having jurisdiction over the parties and the subject matter of the dispute.
12. The following BMC contracting entities apply to this Agreement:
Region | Contracting Entity | Address of Contracting Entity |
United States and Latin America South (not a specified Central or South America country below) | BMC Software, Inc. | 2103 CityWest Boulevard, Houston, Texas 77042 |
Canada | BMC Software Canada Inc. | 50 Minthorn Boulevard, Suite 200 Markham, Ontario L3T 7X8 Canada |
EMEA (Europe, Middle East and Africa) | BMC Software Distribution B.V. | Boeing Avenue 245, 1119 PD Schiphol Rijk, The Netherlands |
Brazil | BMC Brasil Software Ltda. | Avenida Dra. Ruth Cardoso, n° 8.501, Condomínio Eldorado Business Tower, 22° andar, Pinheiros, São Paulo – SP, CEP: 05425-070 |
Mexico | BMC Software Distribution de México, S.A. de C.V. | Volcán 150, Piso 4, Col. Lomas de Chapultepec, C.P. 11000, Deleg. Miguel Hidalgo, Ciudad de México |
Argentina | BMC Software de Argentina S.A. | Ing. Butty 220 - Piso 18, Catalinas Plaza Buenos Aires, República de Argentina, C1001A |
S.E.A (Southeast Asia), Australia, New Zealand, Hong Kong, Taiwan | BMC Software Asia Pacific Pte Ltd | 600 North Bridge Road, #20-01/10 Parkview Square, Singapore 188778 |
China | BMC Software (China) Limited | Room 502, Level 5, Tower W1, The Towers, Oriental Plaza, No. 1 East Chang An Ave., Dong Cheng Dist., Beijing 100738, China |
Japan | BMC Software K.K. | Harmony Tower 24th Floor, 1-32-2 Honcho, Nakano-ku, Tokyo, 164-8721 |
Korea | BMC Software Korea Ltd | 24th Fl., ASEM Tower, 1517, Yeongdong-daero,Gangnam-gu, Seoul 135-798, Korea South |
13. U.S. GOVERNMENT END USER RIGHTS. This Section applies only to acquisitions of the commercial Subscription Services subject to this Agreement by or on behalf of the United States Government, or by any prime contractor or subcontractor (at any tier) under any contract, grant, agreement or other activity with the United States Government. When Subscription Services are delivered or provided to the United States Government, the United States Government agrees that this commercial license Agreement and the Subscription Services governed by this Agreement are defined in accordance with and qualify as “commercial items” consisting of “commercial computer software” and “commercial computer software documentation” as outlined in FAR 12.211, FAR 12.212 and DFARS 227.7202-3, as applicable. The terms and conditions of this Agreement shall pertain to the United States Government’s use (including documentation or technical data), duplication, and disclosure of the Subscription Services, and shall supersede any conflicting contractual terms and conditions”.
14. DATA PROTECTION. The processing of Customer Content under this Agreement is governed by the BMC Data Processing Agreement set forth on the Order.
15. VERIFICATION. Customer agrees that BMC or its agent may monitor the Subscription Services to ensure Customer’s compliance with the terms of this Agreement. If such monitoring reveals that Customer has exceeded the Capacity for the Subscription Services, BMC may work with Customer to seek to reduce Customer’s usage so that it conforms to the Capacity limit for such Subscription Service. If, notwithstanding BMC’s efforts, Customer is unable or unwilling to abide by the Capacity limits for the Subscription Services, Customer will execute an Order for additional Capacity of such Subscription Services promptly upon BMC’s request.
16. NOTIFICATIONS. Any general notifications from BMC Operations to Customer will be sent to the Customer contact stated in the Customer Technical Contact Information section of the Order. The Customer contact in the Order has been assigned by Customer as the Customer contact for operational issues that may arise. Customer shall notify BMC of any change to the Customer contact details in writing, which may include via e-mail.
17. CONDUCTING BUSINESS WITH HONESTY AND INTEGRITY. BMC is committed to conducting business with honesty and integrity. BMC’s Code of Conduct set forth in https://www.bmc.com/content/dam/bmc/corporate/Code%2Bof%2BConduct(English).pdf governs the conduct of all officers, directors, and employees of BMC. BMC’s Third-Party Code of Conduct set forth in https://www.bmc.com/content/dam/bmc/corporate/Third+Party+Code+of+Conduct.pdf governs the conduct of contingent workers and business partners acting on BMC’s behalf. BMC demonstrates its commitment to environmental stewardship by its global accreditation for ISO 14001:2015.
18. MISCELLANEOUS TERMS. The parties are independent contractors and this Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties. Customer will receive system notifications from BMC and its licensors, if applicable (i.e. planned downtime notices, etc). This Agreement, including the Attachments and Orders constitutes the entire agreement between Customer and BMC and supersedes any prior or contemporaneous negotiations or agreements, whether oral or written concerning the Subscription Services. There are no representations, promises, warranties, covenants, or undertakings between the parties other than those expressly set forth in this Agreement. There are no third-party beneficiaries to this Agreement; Customer is not entering into a contractual relationship with BMC’s licensors and BMC’s licensors have no liability to Customer. Except as provided in Section 2 above, no modification or waiver of any provision hereof will be effective unless made in a writing signed by both BMC and Customer. Customer has the right to assign this Agreement and all Orders in whole to an Affiliate, or to a successor in connection with (i) the sale of all or substantially all of the assets of that party or (ii) a merger by operation of law, by providing written notice to BMC. The assignee may not be a known direct competitor of BMC. The successor entity or Affiliate must agree in writing with BMC (in advance of the assignment) to be bound by the terms of this Agreement. Any Customer transfer or assignment except as expressly authorized above will be null and void. Should any provision of this Agreement be invalid or unenforceable, the remainder of the provisions will remain in effect. Any additional or conflicting terms of any Customer purchase order are rejected by BMC and do not apply. The Subscription Services may contain hyperlinks to websites controlled by parties other than BMC. BMC is not responsible for and does not endorse the content or accept any responsibility for Customer’s use of these websites. Customer should refer to the policies posted by other websites regarding privacy and other topics regarding data privacy before using them. Les parties exigent que la présente convention ainsi que les documents qui s’y rattachent soient rédigés en anglais.
Attachments incorporated into Agreement |
Attachment A – Platform Services Attachment |
Attachment B – Consulting Services Attachment |
Attachment C – On Premise Subscription Services Attachment |
PLATFORM SERVICES ATTACHMENT
to the
BMC CLOUD SERVICES MASTER AGREEMENT
Except as otherwise provided herein, the terms of the Cloud Services Master Agreement (the “Base Agreement”) are incorporated into this Platform Services attachment (the “Attachment”). Together, this Attachment and the Base Agreement (as incorporated into this Attachment) are referred to as the “Agreement” for purposes of Customer’s access and use of Platform Services, only if the Platform Services are set forth on an Order referencing the Base Agreement. For purposes of this Agreement, the term “Subscription Services” as defined in the Base Agreement shall be extended to include the Platform Services. In the event of a conflict between the Base Agreement and the terms of this Attachment, the terms of this Attachment will control for Customer’s access and use of the Platform Services only.
1. SCOPE. Subject to the terms of this Agreement, BMC will provide Customer with access to the Platform Service named in the applicable Order.
2. DEFINITIONS.
2.1 “Application” is the object code, its definitional structures, and data created to fulfill a particular purpose, which runs on the Platform Services. An Application may also include its documentation and User Guide.
2.2 “Customer Applications” means Applications that are owned or licensed by Customer, and which run on the Platform Services.
2.3 “Development Platform” means a BMC provided development platform which allows Customer to develop a custom application to run on the Platform Services. The Development Platform is a separate environment from the Platform Services.
2.4 “Platform” means the generally available BMC-provided PaaS platform and its capabilities to run Applications.
2.5 “Platform Services” means the specific Platform Services identified in the Order.
3. BMC PLATFORM SERVICES.
3.1 BMC Platform Services Support. BMC will provide Support only for Platform Services. Customer is responsible for its own support for Customer Applications.
4. CUSTOMER APPLICATIONS.
4.1 The terms contained in this section 4 apply only to Orders for Platform Services entitling Customers to develop and deploy Customer Applications onto the Platform Services. Any Customer Applications that run on the Platform Services are hereby excluded from the defined terms “Subscription Services” and “Platform Services”.
4.2 Development Platform. Customer may utilize the Development Platform to create an Application to run on the Platform Services. Customer’s use of the Development Platform is governed by the terms of this Agreement subject to the restrictions set forth in sections 4.2.1 to 4.2.6 below. Customer’s development of an Application must meet the best practices development guidelines set forth in the User Guide. Each Customer Application shall at all times materially conform to policies and best practices set forth in the User Guide. Prior to the deployment of any Customer Applications in a production or non-production environment of the Platform Services, Customer must conduct security and functional tests of each Customer Application and submit the results of such tests to BMC for review. BMC reserves the right to reject Customer’s deployment request of a Customer Application based on the results of Customer’s security and functional tests. Additionally, BMC reserves the right, during the term of this Agreement, to request Customer conduct additional security and functional tests and provide the results of said tests to BMC for review. Notwithstanding the foregoing, Customer must ensure that at all times Customer Applications are secure.
4.2.1 Scope of use. The right to access and use the Development Platform is granted solely for the purpose of performing non-production application development work on the Development Platform.
4.2.2 Restrictions of use. Customer agrees not to:
(i) use the Development Platform to (1) process production data or for any other production purposes, including but not limited to publishing digital applications, or (2) distribute applications;
(ii) use the Development Platform with data or information that has not been backed up; or
(iii) modify, delete or remove any ownership, title, trademark, patent or copyright notices.
4.2.3 Customer Responsibilities. Customer is responsible for acquiring all necessary and required licenses for the use of any third party software, source code and/or libraries Customer may use as part of its development with the Development Platform. In addition to its other rights and remedies, BMC reserves the right, without liability to Customer, to immediately, at any time and for any reason refresh Customer’s instance of the Development Platform. Upon BMC’s refreshing of Customer’s instance of the Development Platform, Customer may lose all Customer Content submitted to or stored in said instance of the Development Platform. Upon expiration or termination of the applicable Order, BMC may destroy any Customer Content submitted to or stored therein. Customer is responsible for backing up any development work with Customer Content outside of the Development Platform.
4.2.4 Open Source. Customer may not use any software, library, utility, tool, or other computer or program code (“Code”) with the Subscription Services that in any way that would (i) weaken BMC’s intellectual property rights in the Services, or (ii) require the Subscription Services to become or be disclosed or distributed as Open Source Software. For purposes of this Section, “Open Source Software” means any Code that is substantially similar to, (A) the Affero General Public License, (B) the GNU General Public License (GPL) or Lesser/Library GPL (LGPL), (C) the Artistic License (e.g. PERL), (D) the Mozilla Public License, (E) the Netscape Public License, (F) the Sun Community Source License (SCSL), (G) the Sun Standards License (SISL), or (H) any “copyleft” license, or any other license that requires as a condition of use, reproduction, modification, or distribution that such Code or other software or computer code distributed with it: (1) be disclosed or distributed in source code form; (2) be licensed for the purpose of creating derivative works; (3) be licensed under terms that allow reverse engineering, reverse assembly, or disassembly of any kind; (4) be subject to a patent non-assert or royalty-free patent license; or (iv) be redistributable at no charge.
4.2.5 No Support. BMC, its affiliates, or licensors do not provide Support for the Development Platform.
4.2.6 Disclaimer of Warranty, Limitation of Liability and Exclusive Remedy. Notwithstanding anything to the contrary in the applicable Order or this Agreement:
a. THE DEVELOPMENT PLATFORM IS PROVIDED “AS IS” WITHOUT ANY WARRANTY OF ANY KIND WHATSOEVER. BMC, ITS AFFILIATES AND LICENSORS DO NOT WARRANT THAT THE DEVELOPMENT PLATFORM WILL SATISFY CUSTOMER’S REQUIREMENTS, THAT THE DEVELOPMENT PLATFORM IS WITHOUT DEFECT, VIRUS OR ERROR FREE, WITHOUT DELAY, OR THAT THE OPERATION OF THE DEVELOPMENT PLATFORM WILL BE UNINTERUPTED. BMC, ITS AFFILIATES AND LICENSORS DISCLAIM ANY AND ALL REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, MADE WITH RESPECT TO THE DEVELOPMENT PLATFORM, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INTERFERENCE AND INFORMATION CONTENT; AND
b. NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY, FOR ANY CLAIM, LOSS, DAMAGE OR EXPENSE FOR INDIRECT, SPECIAL, CONSEQUENTIAL, PUNITIVE OR INCIDENTAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE DEVELOPMENT PLATFORM (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST COMPUTER USAGE TIME, AND DAMAGE TO, OR LOSS OF USE OF, DATA), EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EITHER PARTY’S ENTIRE LIABILITY AND THE OTHER PARTY’S EXCLUSIVE REMEDY FOR DIRECT DAMAGES ARISING OUT OF OR RELATED TO THE DEVELOPMENT PLATFORM, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, IS LIMITED TO $100.
4.3 License to Customer Applications. Subject to the terms and conditions of this Agreement, Customer hereby grants BMC a worldwide, limited, nonexclusive license during the term of the applicable Order for the Platform Services to host, copy, transmit, adapt and display Customer Applications solely for the purpose of fulfilling BMC’s obligations under this Agreement.
4.4 Functionality of Customer Applications. Customer is solely responsible for the operation of Customer Applications, including but not limited to any information stored in or transmitted by Customer Applications. Customer is responsible for monitoring the usage of each Customer Application. Customer is responsible for the configuration, functionality, performance, compliance with applicable data protection laws and security of all Customer Applications, including any interfaces used to connect to Customer Applications.
4.5 Customer will provide information or other materials related to a Customer Applications as reasonably requested by BMC to verify Customer’s compliance with the Agreement and the User Guide.
4.7 Suspension of Customer Applications. Customer’s use of the Platform Services may be immediately suspended and/or terminated due to (i) reasonable security threats regarding the Platform Services or Customer Applications, (ii) Customer Applications interfering with, disrupting or threatening the integrity or performance of the Subscription Services and/or the Platform Services, or (iii) violates the law, infringes or misappropriates the rights of any third party or otherwise violates a material term of the Agreement. In the event (i) or (ii) above apply to Customer Applications, Customer is required to remediate any such issue to BMC’s commercially reasonable satisfaction before use of Customer Applications can resume. BMC shall use reasonable commercial efforts to only suspend the non-conforming portion of the Platform Services.
4.8 CUSTOMER APPLICATIONS WARRANTIES. Customer warrants to BMC that: (a) each Customer Application will perform materially in accordance with the User Guide; (b) Customer has all rights in the Customer Content and Customer Applications necessary to grant the rights contemplated by this Agreement; (c) none of the Customer Content or Customer Applications or Users’ use of Customer Content or Customer Applications will violate the Agreement and the User Guide; and (d) Customer’s security and functional tests of Customer Applications was conducted in a commercially reasonable manner and the results of said tests provided to BMC for review are correct and valid.
ATTACHMENT B
CONSULTING SERVICES ATTACHMENT
to the
BMC CLOUD SERVICES MASTER AGREEMENT
Except as otherwise provided herein, the terms of the Cloud Services Master Agreement (the “Base Agreement”) are incorporated into this Consulting Services attachment (the “Attachment”). Together, this Attachment and the Base Agreement (as incorporated into this Attachment) are referred to as the “Agreement” for purposes of Customer’s purchase of Consulting Services, only if Consulting Services are set forth on an Order referencing the Base Agreement. For purposes of this Agreement, the term “Subscription Services” as defined in the Base Agreement shall be extended to include Consulting Services. In the event of a conflict between the Base Agreement and the terms of this Attachment, the terms of this Attachment will control for Customer’s purchase of Consulting Services only. The parties agree that the following Sections of the Base Agreement do not apply to the Consulting Services provided under this Attachment: Section 3.2 (Support), Section 4 (Fees and Payment), and Section 6 (Limited Warranty).
1. SCOPE. BMC agrees to render to Customer Consulting Services under the terms of this Agreement and as further described in an Order. BMC will render the Consulting Services in the location(s) as set forth in the Order. The performance of the Consulting Services will not relieve or alter the rights, obligations and responsibilities of Customer and of the BMC Affiliate providing Subscription Services and/or Licenses with respect to Subscription Services and/or Licenses under the applicable agreement.
2. SERVICE FEES AND EXPENSES. The fees payable to BMC for the Consulting Services to be rendered will be detailed in the Order. BMC will submit invoices to Customer for such fees and incurred expenses either upon completion of the Consulting Services, or at stated intervals, in any case in accordance with the applicable Order. Customer shall pay amounts invoiced within 30 days following receipt of the invoice.
3. EDUCATION. Customer may acquire Learning Pass Credits and Education Services (collectively, “BMC Education ”) on an Order. The BMC Education terms that govern such Orders are set forth in the Education Program Guide located at https://www.bmc.com/content/dam/bmc/education/education-program-guide.pdf, and is incorporated herein by this reference.
4. STATEMENTS OF WORK. Consulting Services may require the execution of a Statement of Work, in which case, such Statement of Work will be considered an Order for such Consulting Services. In the event of any conflict between the terms of a Statement of Work and this Agreement, the Agreement shall prevail except for matters of service fees, payment and reimbursement of expense, and termination of Consulting Services if further specified in the Statement of Work. During the term of an applicable Statement of Work, and for a period of six months thereafter, neither party will solicit for employment any employees, agents, or subcontractors of the other party or its affiliates who, within six months prior to such solicitation, had contact with the soliciting party based in whole or in part upon Consulting Services provided under this Agreement. The restrictions in this section shall be deemed not to apply to general solicitations for employment posted on Internet job sites or printed in newspapers or trade or professional journals.
5. PROPRIETARY RIGHTS AND RIGHTS IN DELIVERABLES.
5.1 Ownership of Materials Used in the Consulting Services. Unless specifically provided in an Order, Customer shall supply all of the facilities; equipment; supplies; computer programs; information about Customer’s business, systems, software and needs; and other materials necessary for completion of the Consulting Services (“Customer Property”), and BMC shall supply the people described in the Order, the know-how and the tools necessary to provide the Consulting Services, which may include, among other things, software, templates, questionnaires, graphs, methodologies, models, charts and reports (“BMC Property”). Customer Property and copies and modifications of Customer Property will remain the sole property of Customer or if applicable, Customer’s licensors, and BMC Property and copies and modifications of BMC Property will remain the sole property of BMC or if applicable, BMC’s licensors. Customer hereby grants to BMC a royalty-free, paid-up, non-exclusive, non-sublicensable and non-transferable license to use the Customer Property for the purpose of providing the Consulting Services.
5.2 Deliverables. Deliverables are those created under the Order, including, but not limited to, software, software scripts, routines, libraries or other code, or appliances, methodologies, templates, tools, policies, records, working papers, reports, methodologies, know-how, data, or other intellectual property, written or otherwise, including any derivative works or modifications to the above, whether pre-existing or created during the performance of the Consulting Services and all proprietary and intellectual property rights embedded therein delivered as a result of the Consulting Services as specified under the Order. BMC owns all right, title and interest in the Deliverables. Provided Customer has paid in full for the Consulting Services that resulted in the Deliverables, BMC will deliver the Deliverables to Customer in accordance with the applicable Order. Subject to compliance with the terms of this Agreement and the applicable Order, BMC grants Customer a non-exclusive, non-transferable, non-sublicensable, royalty-free, paid-up license to use, create derivative works of and modify all Deliverables solely for its internal business operations.
5.3 Copyright Notice. Each party agrees to reproduce the copyright notice and any other legend or ownership notice on any copies made under the licenses granted pursuant to this Section 5.
5.4 Retention. Customer acknowledges that BMC provides similar services to other customers and that nothing in this Agreement shall be construed as operating to prevent BMC from carrying on such business. Further BMC may use ideas, concepts, or know-how developed or acquired by BMC during performance of the Consulting Services to the extent by BMC’s personnel as impressions and general learning.
6. LIMITED WARRANTY. BMC warrants that it will perform the Consulting Services in conformance with generally accepted practices within the software services industry and in accordance with the Order. Customer must notify BMC of any breach of this warranty no later than 90 days after completion of the Consulting Services under the Order. Customer’s exclusive remedy and BMC’s entire liability under this warranty shall be for BMC to re-perform any non-conforming portion of the Consulting Services within a reasonable period of time, or if BMC cannot remedy the breach during such time period then refund the portion of the fee attributable to such non-conforming portion of the Consulting Services under the Order. This warranty will not apply to the extent Customer, its contractors or agents have modified any Deliverable, unless otherwise authorized by BMC in writing.
THIS WARRANTY AND CONDITION IS IN LIEU OF ALL OTHER WARRANTIES AND CONDITIONS. THERE ARE NO OTHER EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS, INCLUDING THE IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
7. INSURANCE. BMC will provide and maintain the following insurance, but only for losses arising out of BMC’s provision of Consulting Services under this Attachment:
7.1 Worker’s Compensation insurance as prescribed by the law of the state applicable to the employees performing the Consulting Services;
7.2 Employer’s Liability insurance with a limit of one million US dollars ($1,000,000) for each occurrence;
7.3 Commercial General Liability insurance with one million US dollars ($1,000,000) per occurrence combined single limit and five million US dollars ($5,000,000) general aggregate, including coverage for Products Liability and Completed Operations;
7.4 Automobile Liability insurance, including coverage for Hired and Non-owned vehicles of one million US dollars ($1,000,000) for combined single limit for bodily injury and/or property damage; and
7.5 Professional Liability insurance covering Errors and Omissions in the amount of one million US dollars ($1,000,000) for each occurrence and in the aggregate associated with Consulting Services performed under this AGREEMENT.
8. MUTUAL INDEMNITY. Each party shall indemnify and hold harmless the other party from all claims, liabilities or expenses for physical damage to real property or tangible personal property and bodily injury, including death, to the extent caused by the negligence, gross negligence or willful misconduct of the indemnifying party’s employees or contractors arising out of this Agreement and while at the Customer’s premises. The foregoing indemnities are contingent upon the party seeking indemnity giving prompt written notice to the indemnifying party of any claim, demand or action, and cooperating with the indemnifying party in the defense or settlement of any such claim, demand or action.
9. INDEPENDENT CONTRACTOR. All of the services performed by BMC under this Agreement will be performed as an independent contractor.
ATTACHMENT C
ON PREMISE SUBSCRIPTIONS ATTACHMENT
to the
BMC CLOUD SERVICES MASTER AGREEMENT
Except as otherwise provided herein, the terms of the Cloud Services Master Agreement (the “Base Agreement”) are incorporated into this On Premise Subscriptions attachment (the “Attachment”). Together, this Attachment and the Base Agreement (as incorporated into this Attachment) are referred to as the “Agreement” for purposes of Customer’s purchase and ongoing use of On Premise Subscriptions, only if On Premise Subscriptions are set forth on an Order referencing the Base Agreement. For purposes of this Agreement, the term “Subscription Services” as defined in the Base Agreement shall be extended to include On Premise Subscriptions. In the event of a conflict between the Base Agreement and the terms of this Attachment, the terms of this Attachment will control for Customer’s purchase of On Premise Subscriptions only. The parties agree that the following Sections of the Base Agreement do not apply to the On Premise Subscriptions provided under this Attachment: Section 3.1 (Access Rights), Section 3.4 (Customer Responsibilities and Restrictions), Section 6 (Limited Warranty) and Section 14 (Verification).
1. DEFINITIONS.
1.1 “Authorized User” means Customer, Customer Affiliate(s), and their employees, consultants, contractors and agents that are bound by the terms and conditions no less restrictive than those contained herein and for whom Customer takes full responsibility. Authorized Users do not include service providers or outsourcers.
1.2 "Documentation" means the technical publications relating to the software, such as release notes, license entitlement descriptions, reference, user, installation, systems administrator and technical guidelines, included with the On Premise Subscription.
1.3 “Licensed Capacity” is the amount of each On Premise Subscription licensed as established in the Order.
1.4 “On Premise Subscription” is the object code of the software and all accompanying Documentation delivered to Customer, including all items delivered by BMC to Customer under Support.
2. LICENSE. Subject to the terms, conditions, payment requirements and restrictions set forth in this Agreement, BMC grants Customer a non-exclusive, non-transferable, non-sub-licensable term license to install in the Territory, access and use the On Premise Subscription during the term specified on the Order (i) by Authorized User(s), (ii) up to the Licensed Capacity, (iii) for Customer’s and its Affiliates’ internal business operations, (iv) in accordance with the Documentation and the applicable Order, and (v) make a reasonable number of copies of the On Premise Subscription for archival purposes only (collectively a "License"). Affiliates may use and access the On Premise Subscriptions under the terms of this Agreement, and Customer is responsible for its Affiliates compliance with the terms of this Agreement.
3. RESTRICTIONS. Customer will not: (a) copy, operate or use any On Premise Subscription in excess of the applicable Licensed Capacity or other than as set forth in the License above; (b) modify, delete or remove any ownership, title, trademark, patent or copyright notices (“Identification”) from any On Premise Subscription, or copy or partial copy of an On Premise Subscription; (c) disassemble, reverse engineer, decompile or otherwise attempt to derive any On Premise Subscription source code from object code, except to the extent expressly permitted by applicable law despite this limitation without possibility of contractual waiver; (d) distribute, rent, lease, sublicense or provide the On Premise Subscription to any third party; (e) use the On Premise Subscriptions in an outsourcing or service bureau environment on behalf of non-Affiliate third parties, or allow the On Premise Subscriptions to be used by an outsourcing or service bureau provider on Customer’s behalf (without obtaining prior written approval from BMC); (f) provide a third party with the results of any functional evaluation, or performance tests, without BMC's prior written approval; or (g) attempt to disable or circumvent any of the licensing mechanisms within the On Premise Subscription.
4. ON PREMISE SUBSCRIPTION PERFORMANCE WARRANTY. BMC warrants that (a) the On Premise Subscription will perform in substantial accordance with its Documentation for a period of one year from the date of the first Order, (b) BMC has used commercially reasonable efforts consistent with industry standards to scan for and remove software viruses, and (c) other than passwords that may be required for the operation of the On Premise Subscription, BMC has not inserted any code that is not addressed in the Documentation and that is designed to delete, interfere with or disable the normal operation of the On Premise Subscription in accordance with the License. This warranty will not apply to any problems caused by hardware, Computers, or software other than the On Premise Subscription, or misuse of the On Premise Subscription, use of the On Premise Subscription other than as provided by the applicable License, modification of the On Premise Subscription, or claims made either outside the warranty period or not in compliance with the notice and access requirements set forth below. No warranty is provided for additional Licensed Capacity, On Premise Subscription provided pursuant to Support. BMC’s entire liability, and Customer’s exclusive remedy, for breach of the above warranty is limited to: BMC’s use of commercially reasonable efforts to have the On Premise Subscription perform in substantial accordance with its Documentation, or replacement of the non-conforming On Premise Subscription within a reasonable period of time, or if BMC cannot have the On Premise Subscription perform in substantial accordance with its Documentation replace the On Premise Subscription within such time period, then BMC will refund the amount paid by Customer for the License for that On Premise Subscription. Customer’s rights and BMC's obligations in this Section are conditioned upon Customer’s providing BMC during the warranty period (i) full cooperation and access to the On Premise Subscription in resolving any claim; and (ii) written notice addressed to the BMC Legal Department that includes notice of the claim, a complete description of the alleged defects sufficient to permit their reproduction in BMC’s development or support environment, and a specific reference to the Documentation to which such alleged defects are contrary.
EXCEPT FOR THE EXPRESS WARRANTIES IN THIS ATTACHMENT, THE ON PREMISE SUBSCRIPTION IS PROVIDED WITH NO OTHER WARRANTIES WHATSOEVER, AND BMC, ITS AFFILIATES AND LICENSORS DISCLAIM ALL OTHER WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE AND IN THE UNITED STATES AND CANADA, MERCHANTABILITY AND NON-INFRINGEMENT. BMC DOES NOT WARRANT THAT THE OPERATION OF THE ON PREMISE SUBSCRIPTION WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT ALL DEFECTS CAN BE CORRECTED.
5. DELIVERY. For On Premise Subscriptions that are delivered electronically, upon request from BMC, Customer agrees to provide BMC with documentation supporting that the designated On Premise Subscription was received electronically. If Customer accepts any On Premise Subscription in a non-electronic format, there may be an additional charge and it is the sole responsibility of Customer to bear any sales/use tax obligation, penalties, and interest. All On Premise Subscriptions are licensed FCA (“Free Carrier” as per Incoterms 2000) shipping point. The On Premise Subscriptions are accepted on the date BMC delivers the On Premise Subscription to the Customer either physically or by providing access codes for electronic download, whichever occurs first, however, such acceptance will not affect the On Premise Subscription Performance Warranty provided in this Agreement.
6. AUDIT. If requested by BMC, and not more than once a year, Customer agrees to deliver to BMC, within 30 days of such request, as specified by BMC either (a) periodic product usage reports generated from specific products or (b) written periodic product usage reports, to be provided solely when the product does not generate reports (“Report”). Additionally, if requested by BMC not more than once a year and upon at least ten days prior written notice to Customer, Customer agrees to allow BMC to perform an audit (“Audit”) to ensure compliance with the terms of this Agreement at the locations where the On Premise Subscriptions are installed, during normal business hours. to ensure compliance with the terms of this Agreement. Customer agrees to cooperate during any such Audit and to provide reasonable access to its information and systems.
Effective February 12th 2020 to July 7th 2020
DownloadTable of Contents
BMC CLOUD SERVICES MASTER AGREEMENT
THIS CLOUD SERVICES MASTER AGREEMENT (“AGREEMENT”) GOVERNS YOUR FREE TRIAL, IF ANY, OF THE SUBSCRIPTION SERVICES.
IF YOU PURCHASE THE SUBSCRIPTION SERVICES, THIS AGREEMENT WILL ALSO GOVERN YOUR PURCHASE AND ONGOING USE OF THE SUBSCRIPTION SERVICES.
BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SUBSCRIPTION SERVICES.
You may not access the Subscription Services if you are BMC’s direct competitor, except with BMC’s prior written consent. In addition, you may not access the Subscription Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.
This Agreement was last updated on February 12, 2020. This Agreement is between the entity or individual entering into this Agreement (“Customer”) and the BMC Contracting Entity for the applicable region as described in Section 12 (“BMC”). It is effective between Customer and BMC as of the date of your acceptance of this Agreement. If Customer has a fully executed BMC Cloud Services Master Agreement then such fully executed BMC Cloud Services Master Agreement supersedes and replaces any clickwrap or click-through agreements (or other similar agreements) that Customer may be required to accept as a part of accessing or using the Subscription Services. For Customer’s convenience, prior versions of this Agreement are available at https://www.bmc.com/legal/csma.html.
FREE TRIAL.
BMC may make the Subscription Services available to Customer on a trial basis free of charge. If BMC offers Customer a free trial, it will run until the earlier of (a) the end of the trial period stated on the trial registration web page or (b) the start date of any Order for purchase of the Subscription Services. Additional trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.
ANY DATA CUSTOMER ENTERS INTO THE SUBSCRIPTION SERVICES, AND ANY CUSTOMIZATIONS MADE TO THE SUBSCRIPTION SERVICES BY OR FOR CUSTOMER, DURING A FREE TRIAL MAY BE PERMANENTLY LOST.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THE AGREEMENT, DURING ANY FREE TRIAL PERIOD THE SUBSCRIPTION SERVICES ARE PROVIDED “AS IS” WITH NO WARRANTY.
1. DEFINITIONS.
1.1 “Affiliate” is an entity that controls, is controlled by or shares common control with BMC or Customer, where such control arises from either (a) a direct or indirect ownership interest of more than 50% or (b) the power to direct or cause the direction of the management and policies, whether through the ownership of voting stock by contract, or otherwise, equal to that provided by a direct or indirect ownership of more than 50%.
1.2 “Subscription Services” means the generally available hosted service which packages web-based access and the right-to-use the supported applications, installed agents and associated reference, user and technical guides.
1.3 “Capacity” means the amount of access to the Subscription Services purchased as specified in an Order, which is counted in accordance with the Unit of Measure described in the Order.
1.4 “Customer Content” means all electronic data or information (a) submitted to the Subscription Services by Customer, a third party on behalf of Customer, or as directed by Customer or (b) collected, processed or returned by the Subscription Services .
1.5 “Order” means (i) the agreed ordering document for the purchase of the Subscription Services, (ii) that is subject to this Agreement, and (iii) that identifies the terms of the purchase and fees to be paid. The term “Order” includes Customer’s online registration for and purchase of the Subscription Services, If any.
1.6 “User Guide” means the online help, functional guide and technical specifications for the Subscription Services, as updated by BMC from time to time.
2. SCOPE. Subject to the terms of this Agreement, Customer may purchase and BMC will provide Customer with access to the Subscription Services as set forth in this Agreement and the applicable Order. Subject to the Attachments to this Agreement, Customer may also purchase BMC Platform Services, BMC Consulting Services and BMC On Premise Subscription Services. In the event of a direct conflict between any Order and the terms of this Agreement, the terms of the Order will control only if the Order is executed by an authorized representative of each party. Each Order is deemed to be a discrete contract, separate from each other Order, unless expressly stated otherwise therein. Orders may be entered under this Agreement by and between (a) BMC or an Affiliate of BMC; and (b) Customer or an Affiliate of Customer. With respect to an Order, the terms “BMC” and “Customer” as used in this Agreement will be deemed to refer to the entities that execute that Order, the Order will be considered a two party agreement between such entities, and BMC will separately invoice the Customer named in the Order for the associated fees. Orders may also be placed via a BMC authorized reseller. Neither execution of this Agreement, nor anything contained herein, shall obligate either party to enter into any Orders.
3. ACCESS TO SUBSCRIPTION SERVICES.
3.1 Access Rights. Subject to Customer’s payment of applicable fees and to the terms of this Agreement, BMC will provide Customer with worldwide access to the Subscription Services in accordance with the Order (i) up to the Capacity, (ii) for Customer’s and its Affiliates’ internal business operations, (iii) in accordance with the User Guide and the applicable Order. Customer may exercise its rights under this Section 3.1 through its service providers, outsourcers, employees, consultants, contractors, agents, and Affiliates (all, “Users”).
3.2 BMC Subscription Services Support. BMC will provide the support described at http://www.bmc.com/support/review-policies (“Support”) to Customer for the Subscription Services.
3.3 Use of Subcontractors. Customer acknowledges and agrees that BMC uses subcontractors to provide portions of the Subscription Services. BMC will provide a list of its current subcontractors upon Customer’s written request. BMC is responsible for the performance of all subcontractors providing any of the Subscription Services.
3.4 Customer Responsibilities and Restrictions.
(a) Customer will (i) maintain the confidentiality of all authentications and passwords for the Subscription Services and immediately notify BMC if it becomes aware that an unauthorized party has gained access such authentications and passwords, (ii) be responsible for use of the Subscription Services by its Users in compliance with this Agreement, (iii) prevent unauthorized access to, or use of, the Subscription Services, and notify BMC promptly of any such unauthorized access or use, (iv) comply with all applicable laws in using the Subscription Services, and (v) be responsible for obtaining its own Apple Push Notification certificate, if the Subscription Services are used to manage devices running iOS. Customer is responsible for the creation and implementation of a privacy policy and end user agreement, if applicable, which will set forth the guidelines of how Customer uses and protects the data and personal information of its Users, and how said Users may utilize the Subscription Services.
(b) Customer will not (i) modify, copy or create derivative works based on the Subscription Services; (ii) create Internet “links” to or reproduce any content forming part of the Subscription Services, other than for its own internal business purposes; (iii) disassemble, reverse engineer, or decompile the Subscription Services or part thereof; (iv) interfere with or disrupt the integrity or performance of the Subscription Services; (vi) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortuous material, or send or store material in violation of any third party’s privacy rights via the Subscription Services; (vii) send or store viruses or malicious code via the Subscription Services; (viii) attempt to gain unauthorized access to the Subscription Services or its related software, systems, platforms or networks, including any form of security and/or penetration testing; (ix) use any components provided with the Subscription Services separately from the Subscription Services; or (x) distribute, rent, lease or provide the Subscription Services to any third party or use it in a service bureau, outsourcing environment, or for the processing of third party data .
4. FEES AND PAYMENT.
4.1 Fees. The fees payable for the Subscription Services and the payment period for such fees will be set forth in and paid in accordance with the Order. All payments are due upon receipt of invoice.
4.2 Late Fees. The unpaid balance of each late payment bears interest at a rate equal to the lesser of 1% per month or the maximum amount permitted by law. All fees are nonrefundable and BMC will not provide any refunds or credits for partially used periods of the Subscription Services.
4.3 Taxes. Customer will pay or reimburse BMC or, when required by law, the appropriate governmental agency, for taxes of any kind, including sales, use, VAT, excise, customs duties, withholding, property, and other similar taxes (other than taxes based on BMC’s net income or arising from the employment relationship between BMC and its personnel) imposed in connection with the fees paid for the Subscription Services, which are exclusive of these taxes.
5. TERM, SUSPENSION AND TERMINATION.
5.1 Term. This Agreement begins on the Effective Date and will remain in effect unless terminated pursuant to Section 5.2 below, regardless of the billing frequency selected in the Order.
5.2 Termination.
(a)Termination for Convenience. Customer may terminate this Agreement by providing BMC with at least 30 days prior written notice; provided, however, such termination will have no effect on Orders in effect at the time of such termination. Orders may not be terminated for convenience unless otherwise specified therein. Customer may notify BMC of its intent to terminate by emailing BMC at order_services@bmc.com.
(b) Termination for Cause. Either party may terminate this Agreement and/or an Order for cause: (i) upon 30 days’ written notice of a material breach to the other party if such breach remains uncured at the expiration of such period; or (ii) immediately if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
5.3 Suspension of Subscription Services for Cause. In addition to its other rights and remedies, BMC reserves the right, without liability to Customer, to immediately suspend any and all access to the Subscription Services if Customer commits a material breach of this Agreement or any relevant Order until such material breach is cured.
5.4 Effects of Termination. Upon termination or expiration of any Order or this Agreement, all rights and Licenses granted thereunder will terminate and Customer will make no further use of the Subscription Services. No termination will relieve the Customer of the obligation to pay any fees accrued or payable to BMC pursuant to any Order. Upon written request by Customer made within 30 days after the effective date of termination, BMC will make the Customer Content available to Customer for retrieval in an industry standard format. After such 30-day period, BMC shall have no obligation to maintain any Customer Content and will thereafter delete Customer Content.
5.5 Termination Assistance. Upon Customer’s request and upon (a) the expiration of an Order or (b) the termination of an Order for any reason other than Customer’s breach, BMC shall perform such services as the parties in good faith agree are reasonably necessary to facilitate the orderly transition of the Services to the successor service provider or to the Customer. BMC will provide any such services under the terms and conditions of the Agreement, and subject to payment of the then-current fees and charges, generally applicable to BMC’s performance of such services, as agreed between the parties at such time.
6. LIMITED WARRANTY.
6.1 Warranties and Limited Remedies. BMC warrants to Customer that:
(a) the online availability of the Subscription Services will be maintained in accordance with the service levels attached to the applicable Order, if any (the “Service Level Agreement” or “SLA”). Customer’s exclusive remedy and BMC’s sole obligation for breach of the warranty in this Section 6.1(a) is described in the Service Level Agreement;
(b) the Subscription Services (i) will perform in substantial accordance with the then-current on-line User Guide available via the Subscription Services and (ii) will be performed in a manner consistent with industry standards reasonably applicable to the provision thereof. Customer’s exclusive remedy and BMC’s sole obligation for breach of the warranty in this Section 6.1(b) will be BMC’s use of commercially reasonable efforts to have the Subscription Services perform in substantial accordance with the User Guide, or replace the non-conforming portion of the Subscription Services within a reasonable period of time, or if BMC cannot have the Subscription Services perform in substantial accordance with the User Guide or replace the Subscription Services within such time period, then BMC will refund the amount paid by Customer for the Subscription Services, pro-rated from the date of the notice of the claim. Customer’s rights and BMC’s obligations in this Section 6.1(b) are conditioned upon Customer’s providing BMC with written notice of the claim, a complete description of the alleged defects and a specific reference to the User Guide to which such alleged defects are contrary; and
(c) In connection with the Subscription Services (i) it has used commercially reasonable efforts consistent with industry standards to scan for and promptly remove any software viruses for no charge and (ii) it has not inserted any Disabling Code. “Disabling Code” means computer code inserted by BMC, that is not addressed in the User Guide, and that is designed to expose data, delete, interfere with, and/or disable the normal operation of the Subscription Services. This Disabling Code warranty does not apply to BMC passwords necessary for the operation of the Subscription Services, or for any use by Customer outside the scope of this Agreement.
6.2 Disclaimer. CUSTOMER ACKNOWLEDGES THAT, EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, BMC, ITS AFFILIATES AND LICENSORS MAKE NO WARRANTY, EXPRESS, IMPLIED OR STATUTORY WITH RESPECT TO THE SUBSCRIPTION SERVICES OR USE THEREOF. BMC, ITS AFFILIATES AND LICENSORS HEREBY EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY THAT SUBSCRIPTION SERVICES WILL BE UNINTERRUPTED, ERROR FREE OR WITHOUT DELAY, AND THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INTERFERENCE, NON-INFRINGEMENT AND INFORMATION CONTENT.
7. PROPRIETARY RIGHTS AND CONFIDENTIALITY.
7.1 Proprietary Rights. BMC, its Affiliates or licensors retain all right, title and interest to the Subscription Services and all related intellectual property and proprietary rights. The Subscription Services are protected by applicable copyright, trade secret, industrial and other intellectual property laws. BMC owns all right, title and interest in all software, programming, documentation, templates, questionnaires, methodologies, models, charts, reports, ideas, features, content, functions, graphics and any other items provided as part of the Subscription Services (“ Service Items”) and access to and use of the relevant Service Items will be governed by the terms of this Agreement. Subject to (i) BMC’s or its licensor’s ownership of any Service Items and (ii) section 3.4 (b) (i) of the Agreement, Customer owns all rights, title, and interest in Customer Applications, including all proprietary and intellectual property rights. BMC reserves any rights not expressly granted to Customer. Customer shall not access the Subscription Services in order to build a competitive product or service or copy any ideas, features, functions or graphics of the Subscription Services. “ Confidential Information” means all proprietary or confidential information that is disclosed to the recipient (“Recipient”) by the discloser (“ Discloser”), and includes, among other things (i) any and all information relating to products or services provided by a Discloser, its customer-related and financial information, software code, flow charts, techniques, specifications, development and marketing plans, strategies, and forecasts; (ii) as to BMC, and its licensors, the Subscription Services and Service Items; and (iii) the terms of this Agreement, including without limitation, pricing information. Confidential Information does not include information that Recipient can show: (a) was rightfully in Recipient’s possession without any obligation of confidentiality before receipt from the Discloser; (b) is or becomes a matter of public knowledge through no fault of Recipient; (c) is rightfully received by Recipient from a third party without violation of a duty of confidentiality; or (d) is or was independently developed by or for Recipient. Recipient may not disclose Confidential Information of Discloser to any third party or use the Confidential Information in violation of this Agreement. The Recipient (i) will exercise the same degree of care and protection with respect to the Confidential Information of the Discloser that it exercises with respect to its own Confidential Information and (ii) will not, either directly or indirectly, disclose, copy, distribute, republish, or allow any third party to have access to any Confidential Information of the Discloser. Notwithstanding the foregoing, Recipient may disclose Discloser’s Confidential Information to Recipient’s employees and agents who have need to know provided that such employees and agents have legal obligations of confidentiality substantially the same (and in no case less protective) as the provisions of this Agreement.
7.2 Notification Obligation. If the Recipient becomes aware of any unauthorized use or disclosure of Discloser’s Confidential Information, then Recipient will promptly and fully notify the Discloser of all facts known to it concerning such unauthorized use or disclosure. In addition, if the Recipient or any of its employees or agents are required (by oral questions, interrogatories, requests for information, or documents in legal proceedings, subpoena, civil investigative demand, or other similar process) to disclose any of Discloser’s Confidential Information, the Recipient will not disclose the Discloser’s Confidential Information without providing the Discloser with commercially reasonable advance prior written notice to allow Discloser to seek a protective order or other appropriate remedy or to waive compliance with this provision. In any event, the Recipient will exercise its commercially reasonable efforts to preserve the confidentiality of the Discloser’s Confidential Information, including, without limitation, cooperating with Discloser to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded to the Confidential Information.
7.3 Customer Content. As between BMC and Customer, Customer owns all rights, title and interest in and to Customer Content. Customer Content is deemed Confidential Information under this Agreement. BMC will use the Customer Content only as necessary to provide the Subscription Services in accordance with this Agreement. At any time during the term of the Subscription Services, Customer may request copies of all Customer Content from the Subscription Services. Customer is responsible for complying with all legal and contractual requirements, including its agreements with third parties. With the exception of Customer Content collected by the Subscription Services, Customer is solely responsible for the transmission of Customer Content to BMC and to the Subscription Services. Customer is solely responsible for the encryption of any Customer Content during such transmission.
7.4 Suggestions. Customer agrees that BMC shall have a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into any BMC products or services any suggestions, enhancement requests, recommendations or other feedback provided by Customer relating to the Subscription Services.
8. DISCLAIMER OF DAMAGES AND LIMITS ON LIABILITY.
8.1 DISCLAIMER OF DAMAGES. NEITHER PARTY OR ITS AFFILIATES OR LICENSORS ARE LIABLE FOR ANY, SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES RELATING TO OR ARISING OUT OF THIS AGREEMENT OR THE SUBSCRIPTION SERVICES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST COMPUTER USAGE TIME, AND DAMAGE TO, OR LOSS OF USE OF, DATA), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND IRRESPECTIVE OF ANY NEGLIGENCE OF A PARTY OR WHETHER SUCH DAMAGES RESULT FROM A CLAIM ARISING UNDER TORT OR CONTRACT LAW. THE FOREGOING LIMITATIONS DO NOT APPLY TO EACH PARTY’S RESPONSIBILITIES IN SECTION 9 OR INFRINGEMENT BY A PARTY OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS.
8.2 LIMITS ON LIABILITY. NEITHER PARTY OR ITS AFFILIATES OR LICENSORS SHALL HAVE AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SUBSCRIPTION SERVICES, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEEDING THE AMOUNTS ACTUALLY PAID BY AND DUE FROM CUSTOMER FOR THE SUBSCRIPTION SERVICES GIVING RISE TO LIABILITY PURSUANT TO THE ORDER(S) THAT ARE IN EFFECT AS OF THE DATE THE LIABILITY FIRST AROSE. THE FOREGOING LIMITATIONS DO NOT APPLY TO EACH PARTY’S RESPONSIBILITIES IN SECTION 9 OR INFRINGEMENT BY A PARTY OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS.
9. INFRINGEMENT CLAIMS.
9.1 Indemnification by BMC . If a third party asserts a claim against Customer asserting that Customer’s use of the Subscription Services, including Platform Services, Deliverables and Licenses as defined in the Attachments to this Agreement, in accordance with this Agreement violates that third-party’s patent, trade secret or copyright rights (“ Infringement Claim”), then BMC will, at its own expense: (a) defend or settle the Infringement Claim; and (b) indemnify Customer for any damages finally awarded against Customer based on infringement by the Subscription Services, including court costs and reasonable attorney’s fees. If BMC believes the Subscription Services may violate a right, then BMC will, at its expense: (a) modify the Subscription Services, or (b) procure the right to continue using the Subscription Services, and if (a) or (b) are not commercially reasonable, terminate Customer's right to use the Subscription Services and issue a pro-rata refund for the unexpired pre-paid portion of such Subscription Services.
9.2 Indemnification by Customer. Subject to the terms of this Agreement, if a third party asserts a claim against BMC asserting that the (i) Customer Content, (ii) Customer Applications as defined in Attachment A, (iii) Customer Property as defined in Attachment B or (iv) Customer’s use of the Subscription Services in violation of this Agreement violates that third-party’s patent, trade secret or copyright rights (“ Claim”), Customer will, at its own expense: (a) defend or settle the Claim; and (b) indemnify BMC for any damages finally awarded against BMC based on the Claim, including court costs and reasonable attorney’s fees.
9.3 Indemnity Process. Neither party’s obligations under this Section will apply if: (a) the indemnifying party’s legal department does not receive prompt, detailed written notice of the Infringement Claim/Claim from the party being indemnified, (b) the indemnifying party is not able to retain sole control of the defense of the Infringement Claim/Claim and all negotiations for its settlement or compromise, or (c) the indemnifying party does not receive all reasonable assistance from the party being indemnified. Neither party will bind the indemnified party to a monetary obligation in a settlement or compromise, or make an admission on behalf of the indemnified party, without obtaining that party’s prior consent.
9.4 THIS SECTION 9 CONTAINS EACH PARTY'S EXCLUSIVE REMEDIES AND THE INDEMNIFYING PARTY'S SOLE LIABILITY FOR INFRINGEMENT CLAIMS/CLAIMS, RESPECTIVELY.
10. EXPORT CONTROLS. Customer represents and warrants that it: a) will comply with the United States Export Administration Regulations and other U.S. or foreign export regulations; b) no individual accessing or using the Subscription Services is a citizen of or from an embargoed country (currently Iran, Syria, Sudan, Cuba and North Korea); c) is not prohibited from receiving the Subscription Services under such regulations; d) will not acquire the Subscription Services for a person who is restricted under such regulations; e) will not use the Subscription Services in contradiction to such regulations; and f) will not use the Subscription Services for prohibited uses, including but not limited to nuclear, chemical, missile or biological weapons related end uses. For Subscription Services exported from Ireland, EC No. 428/2009 sets up a Community regime for control of exports of dual-use items and technology, and it is declared that this Subscription Services is intended for civil purposes only. Therefore, Customer agrees to comply with both the U.S. regulations and those E.U. regulations and will not export in violation of the regulations and without all proper licenses. Customer’ failure to comply with these regulations will result in an automatic termination of the Agreement and all rights to the Subscription Services thereunder.
11. GOVERNING LAW AND DISPUTE RESOLUTION. Any controversy, dispute or claim arising out of or relating to this Agreement, or to the formation, interpretation, breach, termination, or validity thereof (each, a “Controversy”) will be resolved as follows:
(i) UNITED STATES. If both parties to this Agreement are entities incorporated under the law of any state in the United States, the Controversy shall be tried in either state or federal court located in Houston, Texas and the laws of the State of Texas shall govern. Both parties hereby submit to the exclusive jurisdiction of the courts in Houston, Texas and waive all defenses based on forum non conveniens.
(ii) EMEA. If both parties to this Agreement are entities incorporated in countries in the Europe, Middle East, or Africa regions, the Controversy shall be tried in the District Court located in Amsterdam, the Netherlands and the substantive laws of the Netherlands shall govern. Both parties hereby submit to the exclusive jurisdiction of the District Court in Amsterdam, the Netherlands and waive all defenses based on forum non conveniens.
(iii) ASIA PACIFIC. If both parties to this Agreement are entities incorporated in countries in the Asia Pacific region, the arbitration shall be held in Singapore under the then-applicable rules of the Singapore International Arbitration Centre and the substantive laws of Singapore will govern.
(iv) OTHER REGIONS. In all other instances, the arbitration shall be held in New York City, New York, under the then-applicable international rules of the American Arbitration Association and the substantive laws of the State of Texas will govern.
For all arbitrations conducted hereunder: (a) the arbitration shall be conducted in English; (b) the relevant arbitral institution shall determine the number of arbitrators, but any Controversy in which the amount in dispute is greater than $10 million USD shall be decided by three arbitrators, with each party having the right to select one arbitrator; (c) the costs of such arbitration shall be borne equally, pending the arbitrator’s award; (d) the arbitration award rendered shall be final and binding on the parties, shall not be subject to appeal to any court and shall be enforceable in any court having jurisdiction over the parties; (e) the arbitration proceedings, award and pleadings shall all be confidential, unless disclosure of particular information is required for purposes of enforcing/challenging the award or to meet local securities law requirements; and (f) the party prevailing in arbitration shall be entitled to recover its reasonable attorneys’ fees and the necessary costs incurred in connection with the arbitration.
The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. Nothing in this Agreement shall be deemed as preventing either party from seeking immediate injunctive relief from any court having jurisdiction over the parties and the subject matter of the dispute.
12. The following BMC contracting entities apply to this Agreement:
Region | Contracting Entity | Address of Contracting Entity |
United States and Latin America South (not a specified Central or South America country below) | BMC Software, Inc. | 2103 CityWest Boulevard, Houston, Texas 77042 |
Canada | BMC Software Canada Inc. | 50 Minthorn Boulevard, Suite 200 Markham, Ontario L3T 7X8 Canada |
EMEA (Europe, Middle East and Africa) | BMC Software Distribution B.V. | Boeing Avenue 245, 1119 PD Schiphol Rijk, The Netherlands |
Brazil | BMC Brasil Software Ltda. | Avenida Dra. Ruth Cardoso, n° 8.501, Condomínio Eldorado Business Tower, 22° andar, Pinheiros, São Paulo – SP, CEP: 05425-070 |
Mexico | BMC Software Distribution de México, S.A. de C.V. | Volcán 150, Piso 4, Col. Lomas de Chapultepec, C.P. 11000, Deleg. Miguel Hidalgo, Ciudad de México |
Argentina | BMC Software de Argentina S.A. | Ing. Butty 220 - Piso 18, Catalinas Plaza Buenos Aires, República de Argentina, C1001A |
S.E.A (Southeast Asia), Australia, New Zealand, Hong Kong, Taiwan | BMC Software Asia Pacific Pte Ltd | 600 North Bridge Road, #20-01/10 Parkview Square, Singapore 188778 |
China | BMC Software (China) Limited | Room 502, Level 5, Tower W1, The Towers, Oriental Plaza, No. 1 East Chang An Ave., Dong Cheng Dist., Beijing 100738, China |
Japan | BMC Software K.K. | Harmony Tower 24th Floor, 1-32-2 Honcho, Nakano-ku, Tokyo, 164-8721 |
Korea | BMC Software Korea Ltd | 24th Fl., ASEM Tower, 1517, Yeongdong-daero,Gangnam-gu, Seoul 135-798, Korea South |
13. U.S. FEDERAL ACQUISITIONS. This Section applies only to acquisitions of the commercial Subscription Services and Documentation subject to this Agreement by or on behalf of the United States Government, or by any prime contractor or subcontractor (at any tier) under any contract, grant, cooperative agreement or other activity with the United States Government. In the event the Subscription Services are delivered to the United States Government, the United States Government hereby agrees that the Subscription Services qualify as “commercial items” within the meaning of the Federal acquisition regulation(s) applicable to this procurement. The terms and conditions of this Agreement shall pertain to the United States Government’s use and disclosure of the Product, and shall supersede any conflicting contractual terms and conditions. The following additional statement applies only to acquisitions governed by DFARS Subpart 227.4 (October 1988): “Restricted Rights – Use, duplication and disclosure by the Government is subject to restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 (Oct. 1988).”
14. DATA PROTECTION. The processing of Customer Content under this Agreement is governed by the BMC Data Processing Agreement set forth on the Order.
15. VERIFICATION. Customer agrees that BMC or its agent may monitor the Subscription Services to ensure Customer’s compliance with the terms of this Agreement. If such monitoring reveals that Customer has exceeded the Capacity for the Subscription Services, BMC may work with Customer to seek to reduce Customer’s usage so that it conforms to the Capacity limit for such Subscription Service. If, notwithstanding BMC’s efforts, Customer is unable or unwilling to abide by the Capacity limits for the Subscription Services, Customer will execute an Order for additional Capacity of such Subscription Services promptly upon BMC’s request.
16. MISCELLANEOUS TERMS. BMC is not liable for its failure to perform any of its obligations under this Agreement during any period in which performance is delayed by Customer or circumstances beyond BMC's reasonable control. The parties are independent contractors and this Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties. Customer will receive system notifications from BMC and its licensors, if applicable (i.e. planned downtime notices, etc). This Agreement, including the Attachments and Orders constitutes the entire agreement between Customer and BMC and supersedes any prior or contemporaneous negotiations or agreements, whether oral or written concerning the Subscription Services. There are no representations, promises, warranties, covenants, or undertakings between the parties other than those expressly set forth in this Agreement. There are no third-party beneficiaries to this Agreement; Customer is not entering into a contractual relationship with BMC’s licensors and BMC’s licensors have no liability to Customer. Except as provided in Section 2 above, no modification or waiver of any provision hereof will be effective unless made in a writing signed by both BMC and Customer. Customer may not assign or transfer this Agreement or the Subscription Services to a third party, whether by merger, operation of law, or otherwise. Should any provision of this Agreement be invalid or unenforceable, the remainder of the provisions will remain in effect. Any additional or conflicting terms of any Customer purchase order are rejected by BMC and do not apply. The Subscription Services may contain hyperlinks to websites controlled by parties other than BMC. BMC is not responsible for and does not endorse the content or accept any responsibility for Customer’s use of these websites. Customer should refer to the policies posted by other websites regarding privacy and other topics regarding data privacy before using them.
Attachments incorporated into Agreement |
Attachment A – Platform Services Attachment |
Attachment B – Consulting Services Attachment |
Attachment C – On Premise Subscription Services Attachment |
PLATFORM SERVICES ATTACHMENT
to the
BMC CLOUD SERVICES MASTER AGREEMENT
to the
BMC CLOUD SERVICES MASTER AGREEMENT
Except as otherwise provided herein, the terms of the Cloud Services Master Agreement (the “Base Agreement”) are incorporated into this Platform Services attachment (the “Attachment”). Together, this Attachment and the Base Agreement (as incorporated into this Attachment) are referred to as the “Agreement” for purposes of Customer’s access and use of Platform Services, only if the Platform Services are set forth on an Order referencing the Base Agreement. For purposes of this Agreement, the term “Subscription Services” as defined in the Base Agreement shall be extended to include the Platform Services. In the event of a conflict between the Base Agreement and the terms of this Attachment, the terms of this Attachment will control for Customer’s access and use of the Platform Services only.
1. SCOPE. Subject to the terms of this Agreement, BMC will provide Customer with access to the Platform Service named in the applicable Order. Customer may only use the Platform Services to store, retrieve, query, serve, and process Customer Content that is owned, licensed or lawfully obtained by Customer. As part of Customer’s subscription to the Platform Services, Customer may be allowed to run certain Applications on the Platform Services that are either (i) sold by BMC, (ii) sold by a Third Party Publisher, or (iii) owned or licensed by Customer.
2. DEFINITIONS.
2.1 “Application” is the object code, its definitional structures, and data created to fulfill a particular purpose, which runs on the Platform Services. An Application may also include its documentation and User Guide.
2.2 “BMC Application Services” means a generally available Application that is provided as a subscription by BMC to customers, including all items delivered by BMC to Customer under Support related to such Application .
2.3 “Customer Applications” means Applications that are owned or licensed by Customer, not including any Third Party Applications, and which run on the Platform Services.
2.4 “Customer Content” means all information uploaded or entered by Customer to the Platform Services, excluding Customer Applications.
2.5 “Development Platform” means a BMC provided development platform which allows Customer to develop a custom application to run on the Platform Services. The Development Platform is a separate environment from the Platform Services.
2.6 “Platform Services” means the generally available BMC-provided platform specified on the Order and its capabilities to run Applications. The specific Platform Services being will be identified in the Order.
2.7 “Third Party Applications” means Applications that are owned by a Third Party Publisher with a valid independent software vendor agreement in place with BMC, and are licensed by said Third Party Publisher to customers.
2.8 “Third Party Publisher” means a party other than BMC or a BMC Affiliate that is the owner and licensor of a Third Party Application, and has a valid independent software vendor agreement in place with BMC. For the sake of clarity, Customer is informed that Third Party Publishers are not BMC Subcontractors.
3. BMC PLATFORM SERVICES.
3.1 BMC Platform Services Support. BMC will provide Support only for Platform Services and BMC Application Services. Customer is responsible for its own support for Customer Applications and Third Party Applications.
3.2 Notifications to Customer. Any general notifications from BMC Operations to Customer will be sent to the Customer contact stated in the Customer Technical Contact Information section of the Order. The Customer contact in the Order has been assigned by Customer as the Customer contact for operational issues that may arise. Customer shall notify BMC of any change to the Customer contact details in writing, which may include via e-mail.
3.3 Subcontractors. For the sake of clarity, Customer is informed that Third Party Publishers are not BMC Subcontractors.
3.4 Customer Responsibilities. In addition to the Customer Responsibilities set forth in the Base Agreement, Customer may not (i) transfer a BMC Application outside of the Platform Services; or (ii) tamper with or circumvent any controls or make unauthorized copies of a BMC Application .
4. CUSTOMER APPLICATIONS AND THIRD PARTY APPLICATIONS.
4.1 Any Third Party Applications or Customer Applications that run on the Platform Services are hereby excluded from the defined terms “Subscription Services”, “BMC Application Services” and “Platform Services”. Such Third Party Applications are governed by the terms provided with the Third Party Applications, and are by and between Customer and the applicable Third Party Publisher. Customer and Third Party Publishers shall agree upon their respective obligations with respect to the processing of personal data by Third Party Publishers. Customer acknowledges and agrees that this Agreement does not govern Customer’s subscription, use and access of any Third Party Applications or Customer Applications, and said Third Party Applications and Customer Applications are specifically excluded from this Agreement.
4.2 Customer may utilize the Development Platform to create an Application to run on the Platform Services. Customer’s use of the Development Platform is governed by the terms of this Agreement subject to the restrictions set forth in sections 4.2.1 to 4.2.6 below. Customer’s development of an Application must meet the best practices development guidelines set forth in the User Guide. Each Customer Application shall at all times materially conform to policies and best practices set forth in the User Guide. Prior to the deployment of any Customer Applications in a production or non-production environment of the Platform Services, Customer must conduct security and functional tests of each Customer Application and submit the results of such tests to BMC for review. BMC reserves the right to reject Customer’s deployment request of a Customer Application based on the results of Customer’s security and functional tests. Additionally, BMC reserves the right, during the term of this Agreement, to request Customer conduct additional security and functional tests and provide the results of said tests to BMC for review. Notwithstanding the foregoing, Customer must ensure that at all times Customer Applications are secure.
4.2.1 Scope of use. The right to access and use the Development Platform is granted solely for the purpose of performing non-production application development work on the Development Platform.
4.2.2 Restrictions of use . Customer agrees not to:
(i) use the Development Platform to (1) process production data or for any other production purposes, including but not limited to publishing digital applications, or (2) distribute applications;
(ii) use the Development Platform with data or information that has not been backed up; or
(iii) modify, delete or remove any ownership, title, trademark, patent or copyright notices.
4.2.3 Customer Responsibilities. Customer is responsible for acquiring all necessary and required licenses for the use of any third party software, source code and/or libraries Customer may use as part of its development with the Development Platform. In addition to its other rights and remedies, BMC reserves the right, without liability to Customer, to immediately, at any time and for any reason refresh Customer’s instance of the Development Platform. Upon BMC’s refreshing of Customer’s instance of the Development Platform, Customer may lose all Customer Content submitted to or stored in said instance of the Development Platform. Upon expiration or termination of the applicable Ordert, BMC may destroy any Customer Content submitted to or stored therein. Customer is responsible for backing up any development work with Customer Content outside of the Development Platform.
4.2.4 Open Source. Customer may not use any software, library, utility, tool, or other computer or program code (“Code”) with the Subscription Services that in any way that would (i) weaken BMC’s intellectual property rights in the Services, or (ii) require the Subscription Services to become or be disclosed or distributed as Open Source Software. For purposes of this Section, “Open Source Software” means any Code that is substantially similar to, (A) the Affero General Public License, (B) the GNU General Public License (GPL) or Lesser/Library GPL (LGPL), (C) the Artistic License (e.g. PERL), (D) the Mozilla Public License, (E) the Netscape Public License, (F) the Sun Community Source License (SCSL), (G) the Sun Standards License (SISL), or (H) any “copyleft” license, or any other license that requires as a condition of use, reproduction, modification, or distribution that such Code or other software or computer code distributed with it: (1) be disclosed or distributed in source code form; (2) be licensed for the purpose of creating derivative works; (3) be licensed under terms that allow reverse engineering, reverse assembly, or disassembly of any kind; (4) be subject to a patent non-assert or royalty-free patent license; or (iv) be redistributable at no charge.
4.2.5 No Support. BMC, its affiliates, or licensors do not provide Support for the Development Platform.
4.2.6 Disclaimer of Warranty, Limitation of Liability and Exclusive Remedy . Notwithstanding anything to the contrary in the applicable Order or this Agreement:
a. THE DEVELOPMENT PLATFORM IS PROVIDED “AS IS” WITHOUT ANY WARRANTY OF ANY KIND WHATSOEVER. BMC, ITS AFFILIATES AND LICENSORS DO NOT WARRANT THAT THE DEVELOPMENT PLATFORM WILL SATISFY CUSTOMER’S REQUIREMENTS, THAT THE DEVELOPMENT PLATFORM IS WITHOUT DEFECT, VIRUS OR ERROR FREE, WITHOUT DELAY, OR THAT THE OPERATION OF THE DEVELOPMENT PLATFORM WILL BE UNINTERUPTED. BMC, ITS AFFILIATES AND LICENSORS DISCLAIM ANY AND ALL REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, MADE WITH RESPECT TO THE DEVELOPMENT PLATFORM, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INTERFERENCE AND INFORMATION CONTENT; AND
b. NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY, FOR ANY CLAIM, LOSS, DAMAGE OR EXPENSE FOR INDIRECT, SPECIAL, CONSEQUENTIAL, PUNITIVE OR INCIDENTAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE DEVELOPMENT PLATFORM (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST COMPUTER USAGE TIME, AND DAMAGE TO, OR LOSS OF USE OF, DATA), EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBLITY OF SUCH DAMAGES. EITHER PARTY’S ENTIRE LIABILITY AND THE OTHER PARTY’S EXCLUSIVE REMEDY FOR DIRECT DAMAGES ARISING OUT OF OR RELATED TO THE DEVELOPMENT PLATFORM, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, IS LIMITED TO $100.
4.3 License to Customer Applications. Subject to the terms and conditions of this Agreement, Customer hereby grants BMC a worldwide, limited, nonexclusive license during the term of the applicable Order for the Platform Services to host, copy, transmit, adapt and display Customer Applications solely for the purpose of fulfilling BMC’s obligations under this Agreement.
4.4 Functionality of Customer Applications. Customer is solely responsible for the operation of Customer Applications, including but not limited to any information stored in or transmitted by Customer Applications. Customer is responsible for monitoring the usage of each Customer Application. Customer is responsible for the configuration, functionality, performance, compliance with applicable data protection laws and security of all Customer Applications, including any interfaces used to connect to Customer Applications.
4.5 Use of Customer Applications. Customer has sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of Customer Applications and all Customer Content entered therein by Customer, its Users or on Customer’s behalf, the means by which Customer acquired such Customer Content, and the use of such Customer Content. Without limiting Customer’s obligations under the terms of this Agreement, Customer must (i) provide any necessary notice to, and obtain any necessary consent from, Users for the collection, use, transfer, and storage of Customer Content (including by BMC), and (b) collect, use, transfer, and store Customer Content in accordance with any privacy notice you provide, and all applicable laws.
4.6 Use of Third Party Applications. Customer is responsible for monitoring its usage of each Third Party Application, and such Third Party Publisher’s usage and license compliance is governed by the terms of the agreement entered into between Customer and the Third Party Publisher. Customer is responsible for all applicable fees associated with Customer’s use of Third Party Applications. Please note, Customer’s usage of such Third Party Applications may incur additional license fees between Customer and the applicable Third Party Publisher, as well as additional Platform Services fees.
4.7 Customer will provide information or other materials related to a Customer Applications as reasonably requested by BMC to verify Customer’s compliance with the Agreement and the User Guide. BMC may monitor Customer Applications and Third Party Applications running on the Platform Services to verify Customer’s compliance with the Agreement. Customer will not block or interfere with BMC’s monitoring. Customer will cooperate with BMC to identify the source of any problem with the Platform Services that BMC reasonably believes may be attributable to Customer Applications or Third Party Applications, or any Customer Content.
4.8 If BMC reasonably believes any Customer Content, Customer Applications or Third Party Applications violates the law, infringes or misappropriates the rights of any third party or otherwise violates a material term of the Agreement (including the User Guide) (“Prohibited Content”), BMC will notify Customer of the Prohibited Content and may request that such content be removed from the Platform Services or access to it be disabled. If Customer does not remove or disable access to the Prohibited Content within two (2) business days of BMC’s notice, BMC may remove or disable access to the Prohibited Content or suspend the Platform Services to the extent BMC is not able to remove or disable access to the Prohibited Content. Notwithstanding the foregoing, BMC may remove or disable access to any Prohibited Content without prior notice in connection with illegal content, where the content may disrupt or threaten the Platform Services, pursuant to the Digital Millennium Copyright Act or as required to comply with law or any judicial, regulatory or other governmental order or request. In the event that BMC removes content without prior notice, BMC will provide prompt notice to Customer unless prohibited by law.
4.9 Customer’s use of the Platform Services, BMC Application Services, Customer Applications and/or Third Party Applications may be immediately suspended and/or terminated due to (i) reasonable security threats regarding the Platform Services, Customer Applications or Third Party Applications, (ii) Customer Applications or Third Party Applications interfering with, disrupting or threatening the integrity or performance of the Subscription Services and/or the Platform Services or BMC Application Services, or (iii) a third party’s claim that Customer Applications or Third Party Applications may violate applicable law or third party rights. In the event of (i) or (ii) above apply to Customer Applications, Customer is required to remediate any such issue to BMC’s commercially reasonable satisfaction before use of Customer Applications can resume.
4.10 Customer’s access to Third Party Applications may be immediately suspended and/or terminated by BMC at the direction of the Third Party Publisher. Customer acknowledges and understands that access to Customer Applications and/or Third Party Applications used in connection with the Platform Services may be suspended due to Customer’s non-payment to BMC for use and access to the Platform Services or other breach of this Agreement. In no case will any such suspension or termination under the terms of this Agreement give rise to any BMC liability to Customer for a refund or other compensation.
4.11 Except with regard to applicable data protection laws, BMC takes no responsibility with regard to Customer Content (i) processed by Third Party Publishers and/or (ii) through the use by Customer of Third Party Applications.
4.12 BMC may conduct periodic security evaluations of all Customer Applications, which may include security review, a qualitative assessment involving review of a completed questionnaire, and an interview with appropriate Customer personnel. BMC conducts such security evaluations for its own benefit and Customer may not rely on the successful results of such evaluation. BMC may conduct such testing itself or, subject to the confidentiality obligations set forth in the Agreement, through a third party. BMC will provide reasonable notice to Customer before starting such testing. BMC will also cooperate reasonably with Customer to minimize the effects of such testing on Customer’s business and operations. Customer agrees to cooperate reasonably with such testing. Despite the foregoing, such testing may in rare cases cause downtime or other adverse effects on Customer Applications, Third Party Applications, the Platform Services or other BMC Application Services used by Customer. Any nonpublic information to which BMC obtains access in the course of such security testing will be considered Customer’s Confidential Information.
4.13 Customer Responsibilities . Customer’s obligations set forth in section 3.4 (a) of the Base Agreement shall apply in full to Platform Services, Customer Applications and Third Party Applications.
5. WARRANTIES. Customer warrants to BMC that: (a) each Customer Application will perform materially in accordance with the User Guide; (b) Customer owns all right, title, and interest in and to Customer Content, including but not limited to any Customer Content uploaded or entered into Customer Applications or Third Party Applications; (c) Customer has the necessary rights to use and access any Customer Applications and Third Party Applications deployed in a production or non-production environment of the Platform Services; (d) Customer has all rights in the Customer Content and Customer Applications necessary to grant the rights contemplated by this Agreement; (e) none of the Customer Content or Customer Applications or Users’ use of Customer Content or Customer Applications will violate the Agreement and the User Guide; (f) Customer’s security and functional tests of Customer Applications was conducted in a commercially reasonable manner and the results of said tests provided to BMC for review are correct and valid; and (g) none of the Third Party Applications or Users’ use of Third Party Applications will violate the Agreement or the User Guide.
ATTACHMENT B
CONSULTING SERVICES ATTACHMENT
to the
BMC CLOUD SERVICES MASTER AGREEMENT
to the
BMC CLOUD SERVICES MASTER AGREEMENT
Except as otherwise provided herein, the terms of the Cloud Services Master Agreement (the “Base Agreement”) are incorporated into this Consulting Services attachment (the “Attachment”). Together, this Attachment and the Base Agreement (as incorporated into this Attachment) are referred to as the “Agreement” for purposes of Customer’s purchase of Consulting Services, only if Consulting Services are set forth on an Order referencing the Base Agreement. For purposes of this Agreement, the term “Subscription Services” as defined in the Base Agreement shall be extended to include Consulting Services. In the event of a conflict between the Base Agreement and the terms of this Attachment, the terms of this Attachment will control for Customer’s purchase of Consulting Services only. The parties agree that the following Sections of the Base Agreement do not apply to the Consulting Services provided under this Attachment: Section 3.2 (Support), Section 4 (Fees and Payment), and Section 6 (Limited Warranty).
1. SCOPE. BMC agrees to render to Customer Consulting Services under the terms of this Agreement and as further described in an Order. BMC will render the Consulting Services in the location(s) as set forth in the Order. The performance of the Consulting Services will not relieve or alter the rights, obligations and responsibilities of Customer and of the BMC Affiliate providing Subscription Services and/or Licenses with respect to Subscription Services and/or Licenses under the applicable agreement.
2. SERVICE FEES AND EXPENSES. The fees payable to BMC for the Consulting Services to be rendered will be detailed in the Order. BMC will submit invoices to Customer for such fees and incurred expenses either upon completion of the Consulting Services, or at stated intervals, in any case in accordance with the applicable Order. Customer shall pay amounts invoiced within 30 days following receipt of the invoice.
3. EDUCATION. Customer may acquire Learning Pass Credits and Education Services (collectively, “BMC Education ”) on an Order. The BMC Education terms that govern such Orders are set forth in the Education Program Guide located at https://www.bmc.com/content/dam/bmc/education/education-program-guide.pdf , and is incorporated herein by this reference.
4. STATEMENTS OF WORK. Consulting Services may require the execution of a Statement of Work, in which case, such Statement of Work will be considered an Order for Consulting Services. In the event of any conflict between the terms of a Statement of Work and this Agreement, the Agreement shall prevail except for matters of service fees, payment and reimbursement of expense, and termination of Consulting Services if further specified in the Statement of Work. During the term of an applicable Statement of Work, and for a period of six months thereafter, neither party will solicit for employment any employees, agents, or subcontractors of the other party or its affiliates who, within six months prior to such solicitation, had contact with the soliciting party based in whole or in part upon Consulting Services provided under this Agreement. The restrictions in this section shall be deemed not to apply to general solicitations for employment posted on Internet job sites or printed in newspapers or trade or professional journals.
5. PROPRIETARY RIGHTS AND RIGHTS IN DELIVERABLES.
5.1 Ownership of Materials Used in the Consulting Services. Unless specifically provided in an Order, Customer shall supply all of the facilities; equipment; supplies; computer programs; information about Customer’s business, systems, software and needs; and other materials necessary for completion of the Consulting Services (“Customer Property”), and BMC shall supply the people described in the Order, the know-how and the tools necessary to provide the Consulting Services, which may include, among other things, software, templates, questionnaires, graphs, methodologies, models, charts and reports (“BMC Property”). Customer Property and copies and modifications of Customer Property will remain the sole property of Customer or if applicable, Customer’s licensors, and BMC Property and copies and modifications of BMC Property will remain the sole property of BMC or if applicable, BMC’s licensors. Customer hereby grants to BMC a royalty-free, paid-up, non-exclusive, non-sublicensable and non-transferable license to use the Customer Property for the purpose of providing the Consulting Services.
5.2 Deliverables. Deliverables are those created under the Order, including, but not limited to, software, software scripts, routines, libraries or other code, or appliances, methodologies, templates, tools, policies, records, working papers, reports, methodologies, know-how, data, or other intellectual property, written or otherwise, including any derivative works or modifications to the above, whether pre-existing or created during the performance of the Consulting Services and all proprietary and intellectual property rights embedded therein delivered as a result of the Consulting Services as specified under the Order. BMC owns all right, title and interest in the Deliverables. Provided Customer has paid in full for the Consulting Services that resulted in the Deliverables, BMC will deliver the Deliverables to Customer in accordance with the applicable Order. Subject to compliance with the terms of this Agreement and the applicable Order, BMC grants Customer a non-exclusive, non-transferable, non-sublicensable, royalty-free, paid-up license to use, create derivative works of and modify all Deliverables solely for its internal business operations.
5.3 Copyright Notice. Each party agrees to reproduce the copyright notice and any other legend or ownership notice on any copies made under the licenses granted pursuant to this Section 5.
5.4 Retention. Customer acknowledges that BMC provides similar services to other customers and that nothing in this Agreement shall be construed as operating to prevent BMC from carrying on such business. Further BMC may use ideas, concepts, or know-how developed or acquired by BMC during performance of the Consulting Services to the extent by BMC’s personnel as impressions and general learning.
6. LIMITED WARRANTY. BMC warrants that it will perform the Consulting Services in conformance with generally accepted practices within the software services industry and in accordance with the Order. Customer must notify BMC of any breach of this warranty no later than 90 days after completion of the Consulting Services under the Order. Customer’s exclusive remedy and BMC’s entire liability under this warranty shall be for BMC to re-perform any non-conforming portion of the Consulting Services within a reasonable period of time, or if BMC cannot remedy the breach during such time period then refund the portion of the fee attributable to such non-conforming portion of the Consulting Services under the Order. This warranty will not apply to the extent Customer, its contractors or agents have modified any Deliverable, unless otherwise authorized by BMC in writing.
THIS WARRANTY AND CONDITION IS IN LIEU OF ALL OTHER WARRANTIES AND CONDITIONS. THERE ARE NO OTHER EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS, INCLUDING THE IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
7. INSURANCE. BMC will provide and maintain the following insurance, but only for losses arising out of BMC’s provision of Consulting Services under this Attachment:
7.1 Worker’s Compensation insurance as prescribed by the law of the state applicable to the employees performing the Consulting Services;
7.2 Employer’s Liability insurance with a limit of one million US dollars ($1,000,000) for each occurrence;
7.3 Commercial General Liability insurance with one million US dollars ($1,000,000) per occurrence combined single limit and five million US dollars ($5,000,000) general aggregate, including coverage for Products Liability and Completed Operations;
7.4 Automobile Liability insurance, including coverage for Hired and Non-owned vehicles of one million US dollars ($1,000,000) for combined single limit for bodily injury and/or property damage; and
7.5 Professional Liability insurance covering Errors and Omissions in the amount of one million US dollars ($1,000,000) for each occurrence and in the aggregate associated with Consulting Services performed under this AGREEMENT.
8. MUTUAL INDEMNITY. Each party shall indemnify and hold harmless the other party from all claims, liabilities or expenses for physical damage to real property or tangible personal property and bodily injury, including death, to the extent caused by the gross negligence or willful misconduct of the indemnifying party’s employees or contractors arising out of this Agreement and while at the Customer’s premises. The foregoing indemnities are contingent upon the party seeking indemnity giving prompt written notice to the indemnifying party of any claim, demand or action, and cooperating with the indemnifying party in the defense or settlement of any such claim, demand or action.
9. INDEPENDENT CONTRACTOR. All of the services performed by BMC under this Agreement will be performed as an independent contractor.
ATTACHMENT C
ON PREMISE SUBSCRIPTIONS ATTACHMENT
to the
BMC CLOUD SERVICES MASTER AGREEMENT
to the
BMC CLOUD SERVICES MASTER AGREEMENT
Except as otherwise provided herein, the terms of the Cloud Services Master Agreement (the “Base Agreement”) are incorporated into this On Premise Subscriptions attachment (the “Attachment”). Together, this Attachment and the Base Agreement (as incorporated into this Attachment) are referred to as the “Agreement” for purposes of Customer’s purchase and ongoing use of On Premise Subscriptions, only if On Premise Subscriptions are set forth on an Order referencing the Base Agreement. For purposes of this Agreement, the term “Subscription Services” as defined in the Base Agreement shall be extended to include On Premise Subscriptions. In the event of a conflict between the Base Agreement and the terms of this Attachment, the terms of this Attachment will control for Customer’s purchase of On Premise Subscriptions only. The parties agree that the following Sections of the Base Agreement do not apply to the On Premise Subscriptions provided under this Attachment: Section 3.1 (Access Rights), Section 3.4 (Customer Responsibilities and Restrictions), Section 6 (Limited Warranty) and Section 14 (Verification).
1. DEFINITIONS.
1.1"Documentation" means the technical publications relating to the software, such as release notes, license entitlement descriptions, reference, user, installation, systems administrator and technical guidelines, included with the On Premise Subscription.
1.2“Licensed Capacity” is the amount of each On Premise Subscription licensed as established in the Order.
1.3“On Premise Subscription” is the object code of the software and all accompanying Documentation delivered to Customer, including all items delivered by BMC to Customer under Support.
2. LICENSE. Subject to the terms, conditions, payment requirements and restrictions set forth in this Agreement, BMC grants Customer a non-exclusive, non-transferable, non-sub-licensable term license to install in the Territory, access and use the On Premise Subscription during the term specified on the Order (i) up to the Licensed Capacity, (ii) for Customer’s and its Affiliates internal business operations, (iii) in accordance with the Documentation and the applicable Order, and (iv) make one copy of the On Premise Subscription for archival purposes only (collectively a "License"). Affiliates may use and access the On Premise Subscriptions under the terms of this Agreement, and Customer is responsible for its Affiliates compliance with the terms of this Agreement.
3. RESTRICTIONS. Customer will not: (a) copy, operate or use any On Premise Subscription in excess of the applicable Licensed Capacity or other than as set forth in the License above; (b) modify, delete or remove any ownership, title, trademark, patent or copyright notices (“Identification”) from any On Premise Subscription, or copy or partial copy of an On Premise Subscription; (c) disassemble, reverse engineer, decompile or otherwise attempt to derive any On Premise Subscription source code from object code, except to the extent expressly permitted by applicable law despite this limitation without possibility of contractual waiver; (d) distribute, rent, lease, sublicense or provide the On Premise Subscription to any third party; (e) use the On Premise Subscriptions in an outsourcing or service bureau environment on behalf of non-Affiliate third parties, or allow the On Premise Subscriptions to be used by an outsourcing or service bureau provider on Customer’s behalf; (f) provide a third party with the results of any functional evaluation, or performance tests, without BMC's prior written approval; or (g) attempt to disable or circumvent any of the licensing mechanisms within the On Premise Subscription.
4. ON PREMISE SUBSCRIPTION PERFORMANCE WARRANTY. BMC warrants that (a) the On Premise Subscription will perform in substantial accordance with its Documentation for a period of one year from the date of the first Order, (b) BMC has used commercially reasonable efforts consistent with industry standards to scan for and remove software viruses, and (c) other than passwords that may be required for the operation of the On Premise Subscription, BMC has not inserted any code that is not addressed in the Documentation and that is designed to delete, interfere with or disable the normal operation of the On Premise Subscription in accordance with the License. This warranty will not apply to any problems caused by hardware, Computers, or software other than the On Premise Subscription, or misuse of the On Premise Subscription, use of the On Premise Subscription other than as provided by the applicable License, modification of the On Premise Subscription, or claims made either outside the warranty period or not in compliance with the notice and access requirements set forth below. No warranty is provided for additional Licensed Capacity, On Premise Subscription provided pursuant to Support. BMC’s entire liability, and Customer’s exclusive remedy, for breach of the above warranty is limited to: BMC’s use of commercially reasonable efforts to have the On Premise Subscription perform in substantial accordance with its Documentation, or replacement of the non-conforming On Premise Subscription within a reasonable period of time, or if BMC cannot have the On Premise Subscription perform in substantial accordance with its Documentation replace the On Premise Subscription within such time period, then BMC will refund the amount paid by Customer for the License for that On Premise Subscription. Customer’s rights and BMC's obligations in this Section are conditioned upon Customer’s providing BMC during the warranty period (i) full cooperation and access to the On Premise Subscription in resolving any claim; and (ii) written notice addressed to the BMC Legal Department that includes notice of the claim, a complete description of the alleged defects sufficient to permit their reproduction in BMC’s development or support environment, and a specific reference to the Documentation to which such alleged defects are contrary.
EXCEPT FOR THE EXPRESS WARRANTIES IN THIS ATTACHMENT, THE ON PREMISE SUBSCRIPTION IS PROVIDED WITH NO OTHER WARRANTIES WHATSOEVER, AND BMC, ITS AFFILIATES AND LICENSORS DISCLAIM ALL OTHER WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. BMC DOES NOT WARRANT THAT THE OPERATION OF THE ON PREMISE SUBSCRIPTION WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT ALL DEFECTS CAN BE CORRECTED.
5. DELIVERY. For On Premise Subscriptions that are delivered electronically, upon request from BMC, Customer agrees to provide BMC with documentation supporting that the designated On Premise Subscription was received electronically. If Customer accepts any On Premise Subscription in a non-electronic format, there may be an additional charge and it is the sole responsibility of Customer to bear any sales/use tax obligation, penalties, and interest. All On Premise Subscriptions are licensed FCA (“Free Carrier” as per Incoterms 2000) shipping point. The On Premise Subscriptions are accepted on the date BMC delivers the On Premise Subscription to the Customer either physically or by providing access codes for electronic download, whichever occurs first, however, such acceptance will not affect the On Premise Subscription Performance Warranty provided in this Agreement.
6. AUDIT. If requested by BMC, and not more than once a year, Customer agrees to deliver to BMC, within 30 days of such request, as specified by BMC either (a) periodic product usage reports generated from specific products or (b) written periodic product usage reports, to be provided solely when the product does not generate reports (“ Report”). Additionally, if requested by BMC not more than once a year, Customer agrees to allow BMC to perform an audit (“Audit ”) at the locations where the On Premise Subscriptions are installed, during normal business hours to ensure compliance with the terms of this Agreement. Customer agrees to cooperate during any such Audit and to provide reasonable access to its information and systems. If an Audit or Report reveals that Customer has exceeded the Licensed Capacity for a On Premise Subscription, Customer agrees to pay the applicable fees for additional capacity upon receipt of invoice. If the understated capacity exceeds 5% of the Licensed Capacity of the applicable On Premise Subscription, then Customer agrees to also pay BMC’s reasonable costs of conducting the audit.
Effective October 11th 2019 to February 12th 2020
DownloadTable of Contents
BMC CLOUD SERVICES MASTER AGREEMENT
THIS CLOUD SERVICES MASTER AGREEMENT (“AGREEMENT”) GOVERNS YOUR FREE TRIAL, IF ANY, OF THE SUBSCRIPTION SERVICES.
IF YOU PURCHASE THE SUBSCRIPTION SERVICES, THIS AGREEMENT WILL ALSO GOVERN YOUR PURCHASE AND ONGOING USE OF THE SUBSCRIPTION SERVICES.
BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SUBSCRIPTION SERVICES.
You may not access the Subscription Services if you are BMC’s direct competitor, except with BMC’s prior written consent. In addition, you may not access the Subscription Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.
This Agreement was last updated on July 25, 2019. This Agreement is between the entity or individual entering into this Agreement (“Customer”) and the BMC Contracting Entity for the applicable region as described in Section 12 (“BMC”). It is effective between Customer and BMC as of the date of your acceptance of this Agreement. If Customer has a fully executed BMC Cloud Services Master Agreement then such fully executed BMC Cloud Services Master Agreement supersedes and replaces any clickwrap or click-through agreements (or other similar agreements) that Customer may be required to accept as a part of accessing or using the Subscription Services. For Customer’s convenience, prior versions of this Agreement are available at https://www.bmc.com/legal/csma.html.
FREE TRIAL.
BMC may make the Subscription Services available to Customer on a trial basis free of charge. If BMC offers Customer a free trial, it will run until the earlier of (a) the end of the trial period stated on the trial registration web page or (b) the start date of any Order for purchase of the Subscription Services. Additional trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.
ANY DATA CUSTOMER ENTERS INTO THE SUBSCRIPTION SERVICES, AND ANY CUSTOMIZATIONS MADE TO THE SUBSCRIPTION SERVICES BY OR FOR CUSTOMER, DURING A FREE TRIAL WILL BE PERMANENTLY LOST UNLESS CUSTOMER PURCHASES A SUBSCRIPTION TO THE SAME SUBSCRIPTION SERVICES AS THOSE COVERED BY THE TRIAL, OR EXPORTS SUCH DATA BEFORE THE END OF THE TRIAL PERIOD.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THE AGREEMENT, DURING ANY FREE TRIAL PERIOD THE SUBSCRIPTION SERVICES ARE PROVIDED “AS IS” WITH NO WARRANTY.
1. DEFINITIONS.
1.1 “Affiliate” is an entity that controls, is controlled by or shares common control with BMC or Customer, where such control arises from either (a) a direct or indirect ownership interest of more than 50% or (b) the power to direct or cause the direction of the management and policies, whether through the ownership of voting stock by contract, or otherwise, equal to that provided by a direct or indirect ownership of more than 50%.
1.2 “Subscription Services” means the generally available hosted service which packages web-based access and the right-to-use the supported applications, installed agents and associated reference, user and technical guides.
1.3 “Capacity” means the amount of access to the Subscription Services purchased as specified in an Order, which is counted in accordance with the Unit of Measure described in the Order.
1.4 “Customer Content” means all electronic data or information (a) submitted to the Subscription Services by Customer, a third party on behalf of Customer, or as directed by Customer or (b) collected, processed or returned by the Subscription Services.
1.5 “Order” means (i) the agreed ordering document for the purchase of the Subscription Services, (ii) that is subject to this Agreement, and (iii) that identifies the terms of the purchase and fees to be paid. The term “Order” includes Customer’s online registration for and purchase of the Subscription Services, If any.
1.6 “User Guide” means the online help, functional guide and technical specifications for the Subscription Services, as updated by BMC from time to time.
2. SCOPE. Subject to the terms of this Agreement, Customer may purchase and BMC will provide Customer with access to the Subscription Services as set forth in this Agreement and the applicable Order. Subject to the Attachments to this Agreement, Customer may also purchase BMC Platform Services, BMC Consulting Services and BMC On Premise Subscription Services. In the event of a direct conflict between any Order and the terms of this Agreement, the terms of the Order will control only if the Order is executed by an authorized representative of each party. Each Order is deemed to be a discrete contract, separate from each other Order, unless expressly stated otherwise therein. Orders may be entered under this Agreement by and between (a) BMC or an Affiliate of BMC; and (b) Customer or an Affiliate of Customer. With respect to an Order, the terms “BMC” and “Customer” as used in this Agreement will be deemed to refer to the entities that execute that Order, the Order will be considered a two party agreement between such entities, and BMC will separately invoice the Customer named in the Order for the associated fees. Orders may also be placed via a BMC authorized reseller. Neither execution of this Agreement, nor anything contained herein, shall obligate either party to enter into any Orders.
3. ACCESS TO SUBSCRIPTION SERVICES.
3.1 Access Rights. Subject to Customer’s payment of applicable fees and to the terms of this Agreement, BMC will provide Customer with worldwide access to the Subscription Services in accordance with the Order (i) up to the Capacity, (ii) for Customer’s and its Affiliates’ internal business operations, (iii) in accordance with the User Guide and the applicable Order. Customer may exercise its rights under this Section 3.1 through its service providers, outsourcers, employees, consultants, contractors, agents, and Affiliates (all, “Users”).
3.2 BMC Subscription Services Support. BMC will provide the support described at http://www.bmc.com/support/review-policies (“Support”) to Customer for the Subscription Services, which may be changed by BMC upon prior notice to Customer.
3.3 Use of Subcontractors. Customer acknowledges and agrees that BMC uses subcontractors to provide portions of the Subscription Services. BMC will provide a list of its current subcontractors upon Customer’s written request. BMC is responsible for the performance of all subcontractors providing any of the Subscription Services.
3.4 Customer Responsibilities and Restrictions.
(a) Customer will (i) maintain the confidentiality of all authentications and passwords for the Subscription Services and immediately notify BMC if it becomes aware that an unauthorized party has gained access such authentications and passwords, (ii) be responsible for use of the Subscription Services by its Users in compliance with this Agreement, (iii) prevent unauthorized access to, or use of, the Subscription Services, and notify BMC promptly of any such unauthorized access or use, (iv) comply with all applicable laws in using the Subscription Services, and (v) be responsible for obtaining its own Apple Push Notification certificate, if the Subscription Services are used to manage devices running iOS. Customer is responsible for the creation and implementation of a privacy policy and end user agreement, if applicable, which will set forth the guidelines of how Customer uses and protects the data and personal information of its Users, and how said Users may utilize the Subscription Services.
(b) Customer will not (i) modify, copy or create derivative works based on the Subscription Services; (ii) create Internet “links” to or reproduce any content forming part of the Subscription Services, other than for its own internal business purposes; (iii) disassemble, reverse engineer, or decompile the Subscription Services or part thereof; (iv) interfere with or disrupt the integrity or performance of the Subscription Services; (vi) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortuous material, or send or store material in violation of any third party’s privacy rights via the Subscription Services; (vii) send or store viruses or malicious code via the Subscription Services; (viii) attempt to gain unauthorized access to the Subscription Services or its related software, systems, platforms or networks, including any form of security and/or penetration testing; (ix) use any components provided with the Subscription Services separately from the Subscription Services; or (x) distribute, rent, lease or provide the Subscription Services to any third party or use it in a service bureau, outsourcing environment, or for the processing of third party data.
4. FEES AND PAYMENT.
4.1 Fees. The fees payable for the Subscription Services and the payment period for such fees will be set forth in and paid in accordance with the Order. All invoices are due upon receipt of invoice.
4.2 Late Fees. The unpaid balance of each late payment bears interest at a rate equal to the lesser of 1% per month or the maximum amount permitted by law. All fees are nonrefundable and BMC will not provide any refunds or credits for partially used periods of the Subscription Services.
4.3 Taxes. Customer will pay or reimburse BMC or, when required by law, the appropriate governmental agency, for taxes of any kind, including sales, use, VAT, excise, customs duties, withholding, property, and other similar taxes (other than taxes based on BMC’s net income or arising from the employment relationship between BMC and its personnel) imposed in connection with the fees paid for the Subscription Services, which are exclusive of these taxes.
5. TERM, SUSPENSION AND TERMINATION.
5.1 Term. This Agreement begins on the Effective Date and will remain in effect unless terminated pursuant to Section 5.2 below, regardless of the billing frequency selected in the Order.
5.2 Termination.
(a)Termination for Convenience. Customer may terminate this Agreement by providing BMC with at least 30 days prior written notice; provided, however, such termination will have no effect on Orders in effect at the time of such termination. Orders may not be terminated for convenience unless otherwise specified therein. Customer may notify BMC of its intent to terminate by emailing BMC at order_services@bmc.com.
(b) Termination for Cause. Either party may terminate this Agreement and/or an Order for cause: (i) upon 30 days’ written notice of a material breach to the other party if such breach remains uncured at the expiration of such period; or (ii) immediately if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
5.3 Suspension of Subscription Services for Cause. In addition to its other rights and remedies, BMC reserves the right, without liability to Customer, to immediately suspend any and all access to the Subscription Services if Customer commits a material breach of this Agreement or any relevant Order until such material breach is cured.
5.4 Effects of Termination. Upon termination or expiration of any Order or this Agreement, all rights and Licenses granted thereunder will terminate and Customer will make no further use of the Subscription Services. No termination will relieve the Customer of the obligation to pay any fees accrued or payable to BMC pursuant to any Order. Upon written request by Customer made within 30 days after the effective date of termination, BMC will make the Customer Content available to Customer for retrieval in an industry standard format. After such 30-day period, BMC shall have no obligation to maintain any Customer Content and will thereafter delete Customer Content.
5.5 Termination Assistance. Upon Customer’s request and upon (a) the expiration of an Order or (b) the termination of an Order for any reason other than Customer’s breach, BMC shall perform such services as the parties in good faith agree are reasonably necessary to facilitate the orderly transition of the Services to the successor service provider or to the Customer. BMC will provide any such services under the terms and conditions of the Agreement, and subject to payment of the then-current fees and charges, generally applicable to BMC’s performance of such services, as agreed between the parties at such time.
6. LIMITED WARRANTY.
6.1 Warranties and Limited Remedies. BMC warrants to Customer that:
(a)the online availability of the Subscription Services will be maintained in accordance with the service levels attached to the applicable Order, if any (the “Service Level Agreement” or “SLA”). Customer’s exclusive remedy and BMC’s sole obligation for breach of the warranty in this Section 6.1(a) is described in the Service Level Agreement; and
(b)the Subscription Services (i) will perform in substantial accordance with the then-current on-line User Guide available via the Subscription Services and (ii) will be performed in a manner consistent with industry standards reasonably applicable to the provision thereof. Customer’s exclusive remedy and BMC’s sole obligation for breach of the warranty in this Section 6.1(b) will be BMC’s use of commercially reasonable efforts to have the Subscription Services perform in substantial accordance with the User Guide, or replace the non-conforming portion of the Subscription Services within a reasonable period of time, or if BMC cannot have the Subscription Services perform in substantial accordance with the User Guide or replace the Subscription Services within such time period, then BMC will refund the amount paid by Customer for the Subscription Services, pro-rated from the date of the notice of the claim. Customer’s rights and BMC’s obligations in this Section 6.1(b) are conditioned upon Customer’s providing BMC with written notice of the claim, a complete description of the alleged defects and a specific reference to the User Guide to which such alleged defects are contrary.
6.2 Disclaimer. CUSTOMER ACKNOWLEDGES THAT, EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, BMC, ITS AFFILIATES AND LICENSORS MAKE NO WARRANTY, EXPRESS, IMPLIED OR STATUTORY WITH RESPECT TO THE SUBSCRIPTION SERVICES OR USE THEREOF. BMC, ITS AFFILIATES AND LICENSORS HEREBY EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY THAT SUBSCRIPTION SERVICES WILL BE UNINTERRUPTED, ERROR FREE OR WITHOUT DELAY, AND THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INTERFERENCE, NON-INFRINGEMENT AND INFORMATION CONTENT.
7. PROPRIETARY RIGHTS AND CONFIDENTIALITY.
7.1 Proprietary Rights. BMC, its Affiliates or licensors retain all right, title and interest to the Subscription Services and all related intellectual property and proprietary rights. The Subscription Services are protected by applicable copyright, trade secret, industrial and other intellectual property laws. BMC owns all right, title and interest in all software, programming, documentation, templates, questionnaires, methodologies, models, charts, reports, ideas, features, content, functions, graphics and any other items provided as part of the Subscription Services (“Service Items”) and access to and use of the relevant Service Items will be governed by the terms of this Agreement. Subject to (i) BMC’s or its licensor’s ownership of any Service Items and (ii) section 3.4 (b) (i) of the Agreement, Customer owns all rights, title, and interest in Customer Applications, including all proprietary and intellectual property rights. BMC reserves any rights not expressly granted to Customer. Customer shall not access the Subscription Services in order to build a competitive product or service or copy any ideas, features, functions or graphics of the Subscription Services. “Confidential Information” means all proprietary or confidential information that is disclosed to the recipient (“Recipient”) by the discloser (“Discloser”), and includes, among other things (i) any and all information relating to products or services provided by a Discloser, its customer-related and financial information, software code, flow charts, techniques, specifications, development and marketing plans, strategies, and forecasts; (ii) as to BMC, and its licensors, the Subscription Services and Service Items; and (iii) the terms of this Agreement, including without limitation, pricing information. Confidential Information does not include information that Recipient can show: (a) was rightfully in Recipient’s possession without any obligation of confidentiality before receipt from the Discloser; (b) is or becomes a matter of public knowledge through no fault of Recipient; (c) is rightfully received by Recipient from a third party without violation of a duty of confidentiality; or (d) is or was independently developed by or for Recipient. Recipient may not disclose Confidential Information of Discloser to any third party or use the Confidential Information in violation of this Agreement. The Recipient (i) will exercise the same degree of care and protection with respect to the Confidential Information of the Discloser that it exercises with respect to its own Confidential Information and (ii) will not, either directly or indirectly, disclose, copy, distribute, republish, or allow any third party to have access to any Confidential Information of the Discloser. Notwithstanding the foregoing, Recipient may disclose Discloser’s Confidential Information to Recipient’s employees and agents who have need to know provided that such employees and agents have legal obligations of confidentiality substantially the same (and in no case less protective) as the provisions of this Agreement.
7.2 Notification Obligation. If the Recipient becomes aware of any unauthorized use or disclosure of Discloser’s Confidential Information, then Recipient will promptly and fully notify the Discloser of all facts known to it concerning such unauthorized use or disclosure. In addition, if the Recipient or any of its employees or agents are required (by oral questions, interrogatories, requests for information, or documents in legal proceedings, subpoena, civil investigative demand, or other similar process) to disclose any of Discloser’s Confidential Information, the Recipient will not disclose the Discloser’s Confidential Information without providing the Discloser with commercially reasonable advance prior written notice to allow Discloser to seek a protective order or other appropriate remedy or to waive compliance with this provision. In any event, the Recipient will exercise its commercially reasonable efforts to preserve the confidentiality of the Discloser’s Confidential Information, including, without limitation, cooperating with Discloser to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded to the Confidential Information.
7.3 Customer Content. As between BMC and Customer, Customer owns all rights, title and interest in and to Customer Content. Customer Content is deemed Confidential Information under this Agreement. BMC will use the Customer Content only as necessary to provide the Subscription Services in accordance with this Agreement. At any time during the term of the Subscription Services, Customer may request copies of all Customer Content from the Subscription Services. Customer is responsible for complying with all legal and contractual requirements, including its agreements with third parties. With the exception of Customer Content collected by the Subscription Services, Customer is solely responsible for the transmission of Customer Content to BMC and to the Subscription Services. Customer is solely responsible for the encryption of any Customer Content.
7.4 Suggestions. Customer agrees that BMC shall have a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into any BMC products or services any suggestions, enhancement requests, recommendations or other feedback provided by Customer relating to the Subscription Services.
8. DISCLAIMER OF DAMAGES AND LIMITS ON LIABILITY.
8.1 DISCLAIMER OF DAMAGES. NEITHER PARTY OR ITS AFFILIATES OR LICENSORS ARE LIABLE FOR ANY, SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES RELATING TO OR ARISING OUT OF THIS AGREEMENT OR THE SUBSCRIPTION SERVICES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST COMPUTER USAGE TIME, AND DAMAGE TO, OR LOSS OF USE OF, DATA), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND IRRESPECTIVE OF ANY NEGLIGENCE OF A PARTY OR WHETHER SUCH DAMAGES RESULT FROM A CLAIM ARISING UNDER TORT OR CONTRACT LAW. THE FOREGOING LIMITATIONS DO NOT APPLY TO EACH PARTY’S RESPONSIBILITIES IN SECTION 9 OR INFRINGEMENT BY A PARTY OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS.
8.2 LIMITS ON LIABILITY. NEITHER PARTY OR ITS AFFILIATES OR LICENSORS SHALL HAVE AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SUBSCRIPTION SERVICES, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEEDING THE AMOUNTS ACTUALLY PAID BY AND DUE FROM CUSTOMER FOR THE SUBSCRIPTION SERVICES PURSUANT TO THE ORDER(S) GIVING RISE TO LIABILITY THAT ARE IN EFFECT AS OF SUCH DATE. THE FOREGOING LIMITATIONS DO NOT APPLY TO EACH PARTY’S RESPONSIBILITIES IN SECTION 9 OR INFRINGEMENT BY A PARTY OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS.
9. INFRINGEMENT CLAIMS.
9.1 Indemnification by BMC. If a third party asserts a claim against Customer asserting that Customer’s use of the Subscription Services, including Platform Services, Deliverables and Licenses as defined in the Attachments to this Agreement, in accordance with this Agreement violates that third-party’s patent, trade secret or copyright rights (“Infringement Claim”), then BMC will, at its own expense: (a) defend or settle the Infringement Claim; and (b) indemnify Customer for any damages finally awarded against Customer based on infringement by the Subscription Services, including court costs and reasonable attorney’s fees. If BMC believes the Subscription Services may violate a right, then BMC will, at its expense: (a) modify the Subscription Services, or (b) procure the right to continue using the Subscription Services, and if (a) or (b) are not commercially reasonable, terminate Customer's right to use the Subscription Services and issue a pro-rata refund for the unexpired pre-paid portion of such Subscription Services.
9.2 Indemnification by Customer. Subject to the terms of this Agreement, if a third party asserts a claim against BMC asserting that the (i) Customer Content, (ii) Customer Applications as defined in Attachment A, (iii) Customer Property as defined in Attachment B or (iv) Customer’s use of the Subscription Services in violation of this Agreement violates that third-party’s patent, trade secret or copyright rights (“Claim”), Customer will, at its own expense: (a) defend or settle the Claim; and (b) indemnify BMC for any damages finally awarded against BMC based on the Claim, including court costs and reasonable attorney’s fees.
9.3 Indemnity Process. Neither party’s obligations under this Section will apply if: (a) the indemnifying party’s legal department does not receive prompt, detailed written notice of the Infringement Claim/Claim from the party being indemnified, (b) the indemnifying party is not able to retain sole control of the defense of the Infringement Claim/Claim and all negotiations for its settlement or compromise, or (c) the indemnifying party does not receive all reasonable assistance from the party being indemnified. Neither party will bind the indemnified party to a monetary obligation in a settlement or compromise, or make an admission on behalf of the indemnified party, without obtaining that party’s prior consent.
9.4 THIS SECTION 9 CONTAINS EACH PARTY'S EXCLUSIVE REMEDIES AND THE INDEMNIFYING PARTY'S SOLE LIABILITY FOR INFRINGEMENT CLAIMS/CLAIMS, RESPECTIVELY.
10. EXPORT CONTROLS. Customer represents and warrants that it: a) will comply with the United States Export Administration Regulations and other U.S. or foreign export regulations; b) no individual accessing or using the Subscription Services is a citizen of or from an embargoed country (currently Iran, Syria, Sudan, Cuba and North Korea); c) is not prohibited from receiving the Subscription Services under such regulations; d) will not acquire the Subscription Services for a person who is restricted under such regulations; e) will not use the Subscription Services in contradiction to such regulations; and f) will not use the Subscription Services for prohibited uses, including but not limited to nuclear, chemical, missile or biological weapons related end uses. For Subscription Services exported from Ireland, EC No. 428/2009 sets up a Community regime for control of exports of dual-use items and technology, and it is declared that this Subscription Services is intended for civil purposes only. Therefore, Customer agrees to comply with both the U.S. regulations and those E.U. regulations and will not export in violation of the regulations and without all proper licenses. Customer’ failure to comply with these regulations will result in an automatic termination of the Agreement and all rights to the Subscription Services thereunder.
11. GOVERNING LAW AND DISPUTE RESOLUTION. Any controversy, dispute or claim arising out of or relating to this Agreement, or to the formation, interpretation, breach, termination, or validity thereof (each, a “Controversy”) will be resolved as follows:
(i) UNITED STATES. If both parties to this Agreement are entities incorporated under the law of any state in the United States, the Controversy shall be tried in either state or federal court located in Houston, Texas and the laws of the State of Texas shall govern. Both parties hereby submit to the exclusive jurisdiction of the courts in Houston, Texas and waive all defenses based on forum non conveniens.
(ii) EMEA. If both parties to this Agreement are entities incorporated in countries in the Europe, Middle East, or Africa regions, the Controversy shall be tried in the District Court located in Amsterdam, the Netherlands and the substantive laws of the Netherlands shall govern. Both parties hereby submit to the exclusive jurisdiction of the District Court in Amsterdam, the Netherlands and waive all defenses based on forum non conveniens.
(iii) ASIA PACIFIC. If both parties to this Agreement are entities incorporated in countries in the Asia Pacific region, the arbitration shall be held in Singapore under the then-applicable rules of the Singapore International Arbitration Centre and the substantive laws of Singapore will govern.
(iv) OTHER REGIONS. In all other instances, the arbitration shall be held in New York City, New York, under the then-applicable international rules of the American Arbitration Association and the substantive laws of the State of Texas will govern.
For all arbitrations conducted hereunder: (a) the arbitration shall be conducted in English; (b) the relevant arbitral institution shall determine the number of arbitrators, but any Controversy in which the amount in dispute is greater than $10 million USD shall be decided by three arbitrators, with each party having the right to select one arbitrator; (c) the costs of such arbitration shall be borne equally, pending the arbitrator’s award; (d) the arbitration award rendered shall be final and binding on the parties, shall not be subject to appeal to any court and shall be enforceable in any court having jurisdiction over the parties; (e) the arbitration proceedings, award and pleadings shall all be confidential, unless disclosure of particular information is required for purposes of enforcing/challenging the award or to meet local securities law requirements; and (f) the party prevailing in arbitration shall be entitled to recover its reasonable attorneys’ fees and the necessary costs incurred in connection with the arbitration.
The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. Nothing in this Agreement shall be deemed as preventing either party from seeking immediate injunctive relief from any court having jurisdiction over the parties and the subject matter of the dispute.
12. The following BMC contracting entities apply to this Agreement:
Region | Contracting Entity | Address of Contracting Entity |
United States and Latin America South (not a specified Central or South America country below) | BMC Software, Inc. | 2103 CityWest Boulevard, Houston, Texas 77042 |
Canada | BMC Software Canada Inc. | 50 Minthorn Boulevard, Suite 200 Markham, Ontario L3T 7X8 Canada |
EMEA (Europe, Middle East and Africa) | BMC Software Distribution B.V. | Boeing Avenue 245, 1119 PD Schiphol Rijk, The Netherlands |
Brazil | BMC Brasil Software Ltda. | Avenida Dra. Ruth Cardoso, n° 8.501, Condomínio Eldorado Business Tower, 22° andar, Pinheiros, São Paulo – SP, CEP: 05425-070 |
Mexico | BMC Software Distribution de México, S.A. de C.V. | Volcán 150, Piso 4, Col. Lomas de Chapultepec, C.P. 11000, Deleg. Miguel Hidalgo, Ciudad de México |
Argentina | BMC Software de Argentina S.A. | Ing. Butty 220 - Piso 18, Catalinas Plaza Buenos Aires, República de Argentina, C1001A |
S.E.A (Southeast Asia), Australia, New Zealand, Hong Kong, Taiwan | BMC Software Asia Pacific Pte Ltd | 600 North Bridge Road, #20-01/10 Parkview Square, Singapore 188778 |
China | BMC Software (China) Limited | Room 502, Level 5, Tower W1, The Towers, Oriental Plaza, No. 1 East Chang An Ave., Dong Cheng Dist., Beijing 100738, China |
Japan | BMC Software K.K. | Harmony Tower 24th Floor, 1-32-2 Honcho, Nakano-ku, Tokyo, 164-8721 |
Korea | BMC Software Korea Ltd | 24th Fl., ASEM Tower, 1517, Yeongdong-daero,Gangnam-gu, Seoul 135-798, Korea South |
13. U.S. FEDERAL ACQUISITIONS. This Section applies only to acquisitions of the commercial Subscription Services and Documentation subject to this Agreement by or on behalf of the United States Government, or by any prime contractor or subcontractor (at any tier) under any contract, grant, cooperative agreement or other activity with the United States Government. In the event the Subscription Services are delivered to the United States Government, the United States Government hereby agrees that the Subscription Services qualify as “commercial items” within the meaning of the Federal acquisition regulation(s) applicable to this procurement. The terms and conditions of this Agreement shall pertain to the United States Government’s use and disclosure of the Product, and shall supersede any conflicting contractual terms and conditions. The following additional statement applies only to acquisitions governed by DFARS Subpart 227.4 (October 1988): “Restricted Rights – Use, duplication and disclosure by the Government is subject to restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 (Oct. 1988).”
14. DATA PROTECTION. The processing of Customer Content under this Agreement is governed by the BMC Data Processing Agreement set forth on the Order.
15. VERIFICATION. Customer agrees that BMC or its agent may monitor the Subscription Services to ensure Customer’s compliance with the terms of this Agreement. If such monitoring reveals that Customer has exceeded the Capacity for the Subscription Services, Customer agrees to pay the applicable fees for additional capacity upon receipt of an invoice from BMC.
16. MISCELLANEOUS TERMS. BMC is not liable for its failure to perform any of its obligations under this Agreement during any period in which performance is delayed by Customer or circumstances beyond BMC's reasonable control. The parties are independent contractors and this Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties. Customer will receive system notifications from BMC and its licensors, if applicable (i.e. planned downtime notices, etc). This Agreement, including the Attachments and Orders constitutes the entire agreement between Customer and BMC and supersedes any prior or contemporaneous negotiations or agreements, whether oral or written concerning the Subscription Services. There are no representations, promises, warranties, covenants, or undertakings between the parties other than those expressly set forth in this Agreement. There are no third-party beneficiaries to this Agreement; Customer is not entering into a contractual relationship with BMC’s licensors and BMC’s licensors have no liability to Customer. Except as provided in Section 2 above, no modification or waiver of any provision hereof will be effective unless made in a writing signed by both BMC and Customer. Customer may not assign or transfer this Agreement or the Subscription Services to a third party, whether by merger, operation of law, or otherwise. Should any provision of this Agreement be invalid or unenforceable, the remainder of the provisions will remain in effect. Any additional or conflicting terms of any Customer purchase order are rejected by BMC and do not apply. The Subscription Services may contain hyperlinks to websites controlled by parties other than BMC. BMC is not responsible for and does not endorse the content or accept any responsibility for Customer’s use of these websites. Customer should refer to the policies posted by other websites regarding privacy and other topics regarding data privacy before using them.
Attachments incorporated into Agreement |
Attachment A – Platform Services Attachment |
Attachment B – Consulting Services Attachment |
Attachment C – On Premise Subscription Services Attachment |
PLATFORM SERVICES ATTACHMENT
to the
BMC CLOUD SERVICES MASTER AGREEMENT
to the
BMC CLOUD SERVICES MASTER AGREEMENT
Except as otherwise provided herein, the terms of the Cloud Services Master Agreement (the “Base Agreement”) are incorporated into this Platform Services attachment (the “Attachment”). Together, this Attachment and the Base Agreement (as incorporated into this Attachment) are referred to as the “Agreement” for purposes of Customer’s access and use of Platform Services, only if the Platform Services are set forth on an Order referencing the Base Agreement. For purposes of this Agreement, the term “Subscription Services” as defined in the Base Agreement shall be extended to include the Platform Services. In the event of a conflict between the Base Agreement and the terms of this Attachment, the terms of this Attachment will control for Customer’s access and use of the Platform Services only.
1. SCOPE. Subject to the terms of this Agreement, BMC will provide Customer with access to the Platform Service named in the applicable Order. Customer may only use the Platform Services to store, retrieve, query, serve, and process Customer Content that is owned, licensed or lawfully obtained by Customer. As part of Customer’s subscription to the Platform Services, Customer may be allowed to run certain Applications on the Platform Services that are either (i) sold by BMC, (ii) sold by a Third Party Publisher, or (iii) owned or licensed by Customer.
2. DEFINITIONS.
2.1 “Application” is the object code, its definitional structures, and data created to fulfill a particular purpose, which runs on the Platform Services. An Application may also include its documentation and User Guide.
2.2 “BMC Application Services” means a generally available Application that is provided as a subscription by BMC to customers, including all items delivered by BMC to Customer under Support related to such Application.
2.3 “Customer Applications” means Applications that are owned or licensed by Customer, not including any Third Party Applications, and which run on the Platform Services.
2.4 “Customer Content” means all information uploaded or entered by Customer to the Platform Services, excluding Customer Applications.
2.5 “Development Platform” means a BMC provided development platform which allows Customer to develop a custom application to run on the Platform Services. The Development Platform is a separate environment from the Platform Services.
2.6 “Platform Services” means the generally available BMC-provided platform specified on the Order and its capabilities to run Applications. The specific Platform Services being will be identified in the Order.
2.7 “Third Party Applications” means Applications that are owned by a Third Party Publisher with a valid independent software vendor agreement in place with BMC, and are licensed by said Third Party Publisher to customers.
2.8 “Third Party Publisher” means a party other than BMC or a BMC Affiliate that is the owner and licensor of a Third Party Application, and has a valid independent software vendor agreement in place with BMC. For the sake of clarity, Customer is informed that Third Party Publishers are not BMC Subcontractors.
3. BMC PLATFORM SERVICES.
3.1 BMC Platform Services Support. BMC will provide Support only for Platform Services and BMC Application Services. Customer is responsible for its own support for Customer Applications and Third Party Applications.
3.2 Notifications to Customer. Any general notifications from BMC Operations to Customer will be sent to the Customer contact stated in the Customer Technical Contact Information section of the Order. The Customer contact in the Order has been assigned by Customer as the Customer contact for operational issues that may arise. Customer shall notify BMC of any change to the Customer contact details in writing, which may include via e-mail.
3.3 Subcontractors. For the sake of clarity, Customer is informed that Third Party Publishers are not BMC Subcontractors.
3.4 Customer Responsibilities. In addition to the Customer Responsibilities set forth in the Base Agreement, Customer may not (i) transfer an Application outside of the Platform Services; or (ii) tamper with or circumvent any controls or make unauthorized copies of a BMC Application.
4. CUSTOMER APPLICATIONS AND THIRD PARTY APPLICATIONS.
4.1 Any Third Party Applications or Customer Applications that run on the Platform Services are hereby excluded from the defined terms “Subscription Services”, “BMC Application Services” and “Platform Services”. Such Third Party Applications are governed by the terms provided with the Third Party Applications, and are by and between Customer and the applicable Third Party Publisher. Customer and Third Party Publishers shall agree upon their respective obligations with respect to the processing of personal data by Third Party Publishers. Customer acknowledges and agrees that this Agreement does not govern Customer’s subscription, use and access of any Third Party Applications or Customer Applications, and said Third Party Applications and Customer Applications are specifically excluded from this Agreement.
4.2 Customer may utilize the Development Platform to create an Application to run on the Platform Services. Customer’s use of the Development Platform is governed by the terms of this Agreement subject to the restrictions set forth in sections 4.2.1 to 4.2.6 below. Customer’s development of an Application must meet the best practices development guidelines set forth in the User Guide. Each Customer Application shall at all times materially conform to policies and best practices set forth in the User Guide. Prior to the deployment of any Customer Applications in a production or non-production environment of the Platform Services, Customer must conduct security and functional tests of each Customer Application and submit the results of such tests to BMC for review. BMC reserves the right to reject Customer’s deployment request of a Customer Application based on the results of Customer’s security and functional tests. Additionally, BMC reserves the right, during the term of this Agreement, to request Customer conduct additional security and functional tests and provide the results of said tests to BMC for review. Notwithstanding the foregoing, Customer must ensure that at all times Customer Applications are secure.
4.2.1 Scope of use. The right to access and use the Development Platform is granted solely for the purpose of performing non-production application development work on the Development Platform.
4.2.2 Restrictions of use. Customer agrees not to:
(i) use the Development Platform to (1) process production data or for any other production purposes, including but not limited to publishing digital applications, or (2) distribute applications;
(ii) use the Development Platform with data or information that has not been backed up; or
(iii) modify, delete or remove any ownership, title, trademark, patent or copyright notices. 4.2.3 Customer Responsibilities. Customer is responsible for acquiring all necessary and required licenses for the use of any third party software, source code and/or libraries Customer may use as part of its development with the Development Platform. In addition to its other rights and remedies, BMC reserves the right, without liability to Customer, to immediately, at any time and for any reason refresh Customer’s instance of the Development Platform. Upon BMC’s refreshing of Customer’s instance of the Development Platform, Customer may lose all Customer Content submitted to or stored in said instance of the Development Platform. Upon expiration or termination of the applicable Ordert, BMC may destroy any Customer Content submitted to or stored therein. Customer is responsible for backing up any development work with Customer Content outside of the Development Platform.
4.2.4 Open Source. Customer may not use any software, library, utility, tool, or other computer or program code (“Code”) with the Subscription Services that in any way that would (i) weaken BMC’s intellectual property rights in the Services, or (ii) require the Subscription Services to become or be disclosed or distributed as Open Source Software. For purposes of this Section, “Open Source Software” means any Code that is substantially similar to, (A) the Affero General Public License, (B) the GNU General Public License (GPL) or Lesser/Library GPL (LGPL), (C) the Artistic License (e.g. PERL), (D) the Mozilla Public License, (E) the Netscape Public License, (F) the Sun Community Source License (SCSL), (G) the Sun Standards License (SISL), or (H) any “copyleft” license, or any other license that requires as a condition of use, reproduction, modification, or distribution that such Code or other software or computer code distributed with it: (1) be disclosed or distributed in source code form; (2) be licensed for the purpose of creating derivative works; (3) be licensed under terms that allow reverse engineering, reverse assembly, or disassembly of any kind; (4) be subject to a patent non-assert or royalty-free patent license; or (iv) be redistributable at no charge.
4.2.5 No Support. BMC, its affiliates, or licensors do not provide Support for the Development Platform.
4.2.6 Disclaimer of Warranty, Limitation of Liability and Exclusive Remedy. Notwithstanding anything to the contrary in the applicable Order or this Agreement:
a. THE DEVELOPMENT PLATFORM IS PROVIDED “AS IS” WITHOUT ANY WARRANTY OF ANY KIND WHATSOEVER. BMC, ITS AFFILIATES AND LICENSORS DO NOT WARRANT THAT THE DEVELOPMENT PLATFORM WILL SATISFY CUSTOMER’S REQUIREMENTS, THAT THE DEVELOPMENT PLATFORM IS WITHOUT DEFECT, VIRUS OR ERROR FREE, WITHOUT DELAY, OR THAT THE OPERATION OF THE DEVELOPMENT PLATFORM WILL BE UNINTERUPTED. BMC, ITS AFFILIATES AND LICENSORS DISCLAIM ANY AND ALL REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, MADE WITH RESPECT TO THE DEVELOPMENT PLATFORM, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INTERFERENCE AND INFORMATION CONTENT; AND
b. NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY, FOR ANY CLAIM, LOSS, DAMAGE OR EXPENSE FOR INDIRECT, SPECIAL, CONSEQUENTIAL, PUNITIVE OR INCIDENTAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE DEVELOPMENT PLATFORM (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST COMPUTER USAGE TIME, AND DAMAGE TO, OR LOSS OF USE OF, DATA), EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBLITY OF SUCH DAMAGES. EITHER PARTY’S ENTIRE LIABILITY AND THE OTHER PARTY’S EXCLUSIVE REMEDY FOR DIRECT DAMAGES ARISING OUT OF OR RELATED TO THE DEVELOPMENT PLATFORM, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, IS LIMITED TO $100.
4.3 License to Customer Applications. Subject to the terms and conditions of this Agreement, Customer hereby grants BMC a worldwide, limited, nonexclusive license during the term of the applicable Order for the Platform Services to host, copy, transmit, adapt and display Customer Applications solely for the purpose of fulfilling BMC’s obligations under this Agreement.
4.4 Functionality of Customer Applications. Customer is solely responsible for the operation of Customer Applications, including but not limited to any information stored in or transmitted by Customer Applications. Customer is responsible for monitoring the usage of each Customer Application. Customer is responsible for the configuration, functionality, performance, compliance with applicable data protection laws and security of all Customer Applications, including any interfaces used to connect to Customer Applications.
4.5 Use of Customer Applications. Customer has sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of Customer Applications and all Customer Content entered therein by Customer, its Users or on Customer’s behalf, the means by which Customer acquired such Customer Content, and the use of such Customer Content. Without limiting Customer’s obligations under the terms of this Agreement, Customer must (i) provide any necessary notice to, and obtain any necessary consent from, Users for the collection, use, transfer, and storage of Customer Content (including by BMC), and (b) collect, use, transfer, and store Customer Content in accordance with any privacy notice you provide, and all applicable laws.
4.6 Use of Third Party Applications. Customer is responsible for monitoring its usage of each Third Party Application, and such Third Party Publisher’s usage and license compliance is governed by the terms of the agreement entered into between Customer and the Third Party Publisher. Customer is responsible for all applicable fees associated with Customer’s use of Third Party Applications. Please note, Customer’s usage of such Third Party Applications may incur additional license fees between Customer and the applicable Third Party Publisher, as well as additional Platform Services fees.
4.7 Customer will provide information or other materials related to a Customer Applications as reasonably requested by BMC to verify Customer’s compliance with the Agreement and the User Guide. BMC may monitor Customer Applications and Third Party Applications running on the Platform Services to verify Customer’s compliance with the Agreement. Customer will not block or interfere with BMC’s monitoring. Customer will cooperate with BMC to identify the source of any problem with the Platform Services that BMC reasonably believes may be attributable to Customer Applications or Third Party Applications, or any Customer Content.
4.8 If BMC reasonably believes any Customer Content, Customer Applications or Third Party Applications violates the law, infringes or misappropriates the rights of any third party or otherwise violates a material term of the Agreement (including the User Guide) (“Prohibited Content”), BMC will notify Customer of the Prohibited Content and may request that such content be removed from the Platform Services or access to it be disabled. If Customer does not remove or disable access to the Prohibited Content within two (2) business days of BMC’s notice, BMC may remove or disable access to the Prohibited Content or suspend the Platform Services to the extent BMC is not able to remove or disable access to the Prohibited Content. Notwithstanding the foregoing, BMC may remove or disable access to any Prohibited Content without prior notice in connection with illegal content, where the content may disrupt or threaten the Platform Services, pursuant to the Digital Millennium Copyright Act or as required to comply with law or any judicial, regulatory or other governmental order or request. In the event that BMC removes content without prior notice, BMC will provide prompt notice to Customer unless prohibited by law.
4.9 Customer’s use of the Platform Services, BMC Application Services, Customer Applications and/or Third Party Applications may be immediately suspended and/or terminated due to (i) reasonable security threats regarding the Platform Services, Customer Applications or Third Party Applications, (ii) Customer Applications or Third Party Applications interfering with, disrupting or threatening the integrity or performance of the Subscription Services and/or the Platform Services or BMC Application Services, or (iii) a third party’s claim that Customer Applications or Third Party Applications may violate applicable law or third party rights. In the event of (i) or (ii) above apply to Customer Applications, Customer is required to remediate any such issue to BMC’s commercially reasonable satisfaction before use of Customer Applications can resume.
4.10 Customer’s access to Third Party Applications may be immediately suspended and/or terminated by BMC at the direction of the Third Party Publisher. Customer acknowledges and understands that access to Customer Applications and/or Third Party Applications used in connection with the Platform Services may be suspended due to Customer’s non-payment to BMC for use and access to the Platform Services or other breach of this Agreement. In no case will any such suspension or termination under the terms of this Agreement give rise to any BMC liability to Customer for a refund or other compensation.
4.11 Except with regard to applicable data protection laws, BMC takes no responsibility with regard to Customer Content (i) processed by Third Party Publishers and/or (ii) through the use by Customer of Third Party Applications.
4.12 BMC may conduct periodic security evaluations of all Customer Applications, which may include security review, a qualitative assessment involving review of a completed questionnaire, and an interview with appropriate Customer personnel. BMC conducts such security evaluations for its own benefit and Customer may not rely on the successful results of such evaluation. BMC may conduct such testing itself or, subject to the confidentiality obligations set forth in the Agreement, through a third party. BMC will provide reasonable notice to Customer before starting such testing. BMC will also cooperate reasonably with Customer to minimize the effects of such testing on Customer’s business and operations. Customer agrees to cooperate reasonably with such testing. Despite the foregoing, such testing may in rare cases cause downtime or other adverse effects on Customer Applications, Third Party Applications, the Platform Services or other BMC Application Services used by Customer. Any nonpublic information to which BMC obtains access in the course of such security testing will be considered Customer’s Confidential Information.
4.13 Customer Responsibilities. Customer’s obligations set forth in section 3.4 (a) of the Base Agreement shall apply in full to Platform Services, Customer Applications and Third Party Applications.
5. WARRANTIES. Customer warrants to BMC that: (a) each Customer Application will perform materially in accordance with the User Guide; (b) Customer owns all right, title, and interest in and to Customer Content, including but not limited to any Customer Content uploaded or entered into Customer Applications or Third Party Applications; (c) Customer has the necessary rights to use and access any Customer Applications and Third Party Applications deployed in a production or non-production environment of the Platform Services; (d) Customer has all rights in the Customer Content and Customer Applications necessary to grant the rights contemplated by this Agreement; (e) none of the Customer Content or Customer Applications or Users’ use of Customer Content or Customer Applications will violate the Agreement and the User Guide; (f) Customer’s security and functional tests of Customer Applications was conducted in a commercially reasonable manner and the results of said tests provided to BMC for review are correct and valid; and (g) none of the Third Party Applications or Users’ use of Third Party Applications will violate the Agreement or the User Guide.
ATTACHMENT B
CONSULTING SERVICES ATTACHMENT
to the
BMC CLOUD SERVICES MASTER AGREEMENT
to the
BMC CLOUD SERVICES MASTER AGREEMENT
Except as otherwise provided herein, the terms of the Cloud Services Master Agreement (the “Base Agreement”) are incorporated into this Consulting Services attachment (the “Attachment”). Together, this Attachment and the Base Agreement (as incorporated into this Attachment) are referred to as the “Agreement” for purposes of Customer’s purchase of Consulting Services, only if Consulting Services are set forth on an Order referencing the Base Agreement. For purposes of this Agreement, the term “Subscription Services” as defined in the Base Agreement shall be extended to include Consulting Services. In the event of a conflict between the Base Agreement and the terms of this Attachment, the terms of this Attachment will control for Customer’s purchase of Consulting Services only. The parties agree that the following Sections of the Base Agreement do not apply to the Consulting Services provided under this Attachment: Section 3.2 (Support), Section 4 (Fees and Payment), and Section 6 (Limited Warranty).
1. SCOPE. BMC agrees to render to Customer Consulting Services under the terms of this Agreement and as further described in an Order. BMC will render the Consulting Services in the location(s) as set forth in the Order. The performance of the Consulting Services will not relieve or alter the rights, obligations and responsibilities of Customer and of the BMC Affiliate providing Subscription Services and/or Licenses with respect to Subscription Services and/or Licenses under the applicable agreement in.
2. SERVICE FEES AND EXPENSES. The fees payable to BMC for the Consulting Services to be rendered will be detailed in the Order. BMC will submit invoices to Customer for such fees and incurred expenses either upon completion of the Consulting Services, or at stated intervals, in any case in accordance with the applicable Order. Customer shall pay amounts invoiced within 30 days following receipt of the invoice.
3. EDUCATION. Customer may acquire Learning Pass Credits and Education Services (collectively, “BMC Education”) on a Order. The BMC Education terms that govern such Orders are set forth in the Education Program Guide located at https://www.bmc.com/content/dam/bmc/education/education-program-guide.pdf, and is incorporated herein by this reference.
4. STATEMENTS OF WORK. Consulting Services may require the execution of a Statement of Work, in which case, such Statement of Work will be considered an Order for Consulting Services. In the event of any conflict between the terms of a Statement of Work and this Agreement, the Agreement shall prevail except for matters of service fees, payment and reimbursement of expense, and termination of Consulting Services if further specified in the Statement of Work. During the term of an applicable Statement of Work, and for a period of six months thereafter, neither party will solicit for employment any employees, agents, or subcontractors of the other party or its affiliates who, within six months prior to such solicitation, had contact with the soliciting party based in whole or in part upon Consulting Services provided under this Agreement. The restrictions in this section shall be deemed not to apply to general solicitations for employment posted on Internet job sites or printed in newspapers or trade or professional journals.
5. PROPRIETARY RIGHTS AND RIGHTS IN DELIVERABLES.
5.1 Ownership of Materials Used in the Consulting Services. Unless specifically provided in an Order, Customer shall supply all of the facilities; equipment; supplies; computer programs; information about Customer’s business, systems, software and needs; and other materials necessary for completion of the Consulting Services (“Customer Property”), and BMC shall supply the people described in the Order, the know-how and the tools necessary to provide the Consulting Services, which may include, among other things, software, templates, questionnaires, graphs, methodologies, models, charts and reports (“BMC Property”). Customer Property and copies and modifications of Customer Property will remain the sole property of Customer or if applicable, Customer’s licensors, and BMC Property and copies and modifications of BMC Property will remain the sole property of BMC or if applicable, BMC’s licensors. Customer hereby grants to BMC a royalty-free, paid-up, non-exclusive, non-sublicensable and non-transferable license to use the Customer Property for the purpose of providing the Consulting Services.
5.2 Deliverables. Deliverables are those created under the Order, including, but not limited to, software, software scripts, routines, libraries or other code, or appliances, methodologies, templates, tools, policies, records, working papers, reports, methodologies, know-how, data, or other intellectual property, written or otherwise, including any derivative works or modifications to the above, whether pre-existing or created during the performance of the Consulting Services and all proprietary and intellectual property rights embedded therein delivered as a result of the Consulting Services as specified under the Order. BMC owns all right, title and interest in the Deliverables. Provided Customer has paid in full for the Consulting Services that resulted in the Deliverables, BMC will deliver the Deliverables to Customer in accordance with the applicable Order. Subject to compliance with the terms of this Agreement and the applicable Order, BMC grants Customer a non-exclusive, non-transferable, non-sublicensable, royalty-free, paid-up license to use, create derivative works of and modify all Deliverables solely for its internal business operations.
5.3 Copyright Notice. Each party agrees to reproduce the copyright notice and any other legend or ownership notice on any copies made under the licenses granted pursuant to this Section 5.
5.4 Retention. Customer acknowledges that BMC provides similar services to other customers and that nothing in this Agreement shall be construed as operating to prevent BMC from carrying on such business. Further BMC may use ideas, concepts, or know-how developed or acquired by BMC during performance of the Consulting Services to the extent acquired by BMC’s personnel as impressions and general learning.
6. LIMITED WARRANTY. BMC warrants that it will perform the Consulting Services in conformance with generally accepted practices within the software services industry and in accordance with the Order. Customer must notify BMC of any breach of this warranty no later than 90 days after completion of the Consulting Services under the Order. Customer’s exclusive remedy and BMC’s entire liability under this warranty shall be for BMC to re-perform any non-conforming portion of the Consulting Services within a reasonable period of time, or if BMC cannot remedy the breach during such time period then refund the portion of the fee attributable to such non-conforming portion of the Consulting Services under the Order. This warranty will not apply to the extent Customer, its contractors or agents have modified any Deliverable, unless otherwise authorized by BMC in writing.
THIS WARRANTY AND CONDITION IS IN LIEU OF ALL OTHER WARRANTIES AND CONDITIONS. THERE ARE NO OTHER EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS, INCLUDING THE IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
7. INSURANCE. BMC will provide and maintain the following insurance, but only for losses arising out of BMC’s provision of Consulting Services under this Attachment:
7.1 Worker’s Compensation insurance as prescribed by the law of the state applicable to the employees performing the Consulting Services;
7.2 Employer’s Liability insurance with a limit of one million US dollars ($1,000,000) for each occurrence;
7.3 Commercial General Liability insurance with one million US dollars ($1,000,000) per occurrence combined single limit and five million US dollars ($5,000,000) general aggregate, including coverage for Products Liability and Completed Operations;
7.4 Automobile Liability insurance, including coverage for Hired and Non-owned vehicles of one million US dollars ($1,000,000) for combined single limit for bodily injury and/or property damage; and
7.5 Professional Liability insurance covering Errors and Omissions in the amount of one million US dollars ($1,000,000) for each occurrence and in the aggregate associated with Consulting Services performed under this AGREEMENT.
8. MUTUAL INDEMNITY. Each party shall indemnify and hold harmless the other party from all claims, liabilities or expenses for physical damage to real property or tangible personal property and bodily injury, including death, to the extent caused by the gross negligence or willful misconduct of the indemnifying party’s employees or contractors arising out of this Agreement and while at the Customer’s premises. The foregoing indemnities are contingent upon the party seeking indemnity giving prompt written notice to the indemnifying party of any claim, demand or action, and cooperating with the indemnifying party in the defense or settlement of any such claim, demand or action.
9. INDEPENDENT CONTRACTOR. All of the services performed by BMC under this Agreement will be performed as an independent contractor.
ATTACHMENT C
ON PREMISE SUBSCRIPTIONS ATTACHMENT
to the
BMC CLOUD SERVICES MASTER AGREEMENT
to the
BMC CLOUD SERVICES MASTER AGREEMENT
Except as otherwise provided herein, the terms of the Cloud Services Master Agreement (the “Base Agreement”) are incorporated into this On Premise Subscriptions attachment (the “Attachment”). Together, this Attachment and the Base Agreement (as incorporated into this Attachment) are referred to as the “Agreement” for purposes of Customer’s purchase and ongoing use of On Premise Subscriptions, only if On Premise Subscriptions are set forth on an Order referencing the Base Agreement. For purposes of this Agreement, the term “Subscription Services” as defined in the Base Agreement shall be extended to include On Premise Subscriptions. In the event of a conflict between the Base Agreement and the terms of this Attachment, the terms of this Attachment will control for Customer’s purchase of On Premise Subscriptions only. The parties agree that the following Sections of the Base Agreement do not apply to the On Premise Subscriptions provided under this Attachment: Section 3.1 (Access Rights), Section 3.4 (Customer Responsibilities and Restrictions), Section 6 (Limited Warranty) and Section 14 (Verification).
1. DEFINITIONS.
1.1"Documentation" means the technical publications relating to the software, such as release notes, license entitlement descriptions, reference, user, installation, systems administrator and technical guidelines, included with the On Premise Subscription.
1.2“Licensed Capacity” is the amount of each On Premise Subscription licensed as established in the Order.
1.3“On Premise Subscription” is the object code of the software and all accompanying Documentation delivered to Customer, including all items delivered by BMC to Customer under Support.
2. LICENSE. Subject to the terms, conditions, payment requirements and restrictions set forth in this Agreement, BMC grants Customer a non-exclusive, non-transferable, non-sub-licensable term license to install in the Territory, access and use the On Premise Subscription during the term specified on the Order (i) up to the Licensed Capacity, (ii) for Customer’s and its Affiliates internal business operations, (iii) in accordance with the Documentation and the applicable Order, and (iv) make one copy of the On Premise Subscription for archival purposes only (collectively a "License"). Affiliates may use and access the On Premise Subscriptions under the terms of this Agreement, and Customer is responsible for its Affiliates compliance with the terms of this Agreement.
3. RESTRICTIONS. Customer will not: (a) copy, operate or use any On Premise Subscription in excess of the applicable Licensed Capacity or other than as set forth in the License above; (b) modify, delete or remove any ownership, title, trademark, patent or copyright notices (“Identification”) from any On Premise Subscription, or copy or partial copy of an On Premise Subscription; (c) disassemble, reverse engineer, decompile or otherwise attempt to derive any On Premise Subscription source code from object code, except to the extent expressly permitted by applicable law despite this limitation without possibility of contractual waiver; (d) distribute, rent, lease, sublicense or provide the On Premise Subscription to any third party; (e) use the On Premise Subscriptions in an outsourcing or service bureau environment on behalf of non-Affiliate third parties, or allow the On Premise Subscriptions to be used by an outsourcing or service bureau provider on Customer’s behalf; (f) provide a third party with the results of any functional evaluation, or performance tests, without BMC's prior written approval; or (g) attempt to disable or circumvent any of the licensing mechanisms within the On Premise Subscription.
4. ON PREMISE SUBSCRIPTION PERFORMANCE WARRANTY. BMC warrants that (a) the On Premise Subscription will perform in substantial accordance with its Documentation for a period of one year from the date of the first Order, (b) BMC has used commercially reasonable efforts consistent with industry standards to scan for and remove software viruses, and (c) other than passwords that may be required for the operation of the On Premise Subscription, BMC has not inserted any code that is not addressed in the Documentation and that is designed to delete, interfere with or disable the normal operation of the On Premise Subscription in accordance with the License. This warranty will not apply to any problems caused by hardware, Computers, or software other than the On Premise Subscription, or misuse of the On Premise Subscription, use of the On Premise Subscription other than as provided by the applicable License, modification of the On Premise Subscription, or claims made either outside the warranty period or not in compliance with the notice and access requirements set forth below. No warranty is provided for additional Licensed Capacity, On Premise Subscription provided pursuant to Support. BMC’s entire liability, and Customer’s exclusive remedy, for breach of the above warranty is limited to: BMC’s use of commercially reasonable efforts to have the On Premise Subscription perform in substantial accordance with its Documentation, or replacement of the non-conforming On Premise Subscription within a reasonable period of time, or if BMC cannot have the On Premise Subscription perform in substantial accordance with its Documentation replace the On Premise Subscription within such time period, then BMC will refund the amount paid by Customer for the License for that On Premise Subscription. Customer’s rights and BMC's obligations in this Section are conditioned upon Customer’s providing BMC during the warranty period (i) full cooperation and access to the On Premise Subscription in resolving any claim; and (ii) written notice addressed to the BMC Legal Department that includes notice of the claim, a complete description of the alleged defects sufficient to permit their reproduction in BMC’s development or support environment, and a specific reference to the Documentation to which such alleged defects are contrary.
EXCEPT FOR THE EXPRESS WARRANTIES IN THIS ATTACHMENT, THE ON PREMISE SUBSCRIPTION IS PROVIDED WITH NO OTHER WARRANTIES WHATSOEVER, AND BMC, ITS AFFILIATES AND LICENSORS DISCLAIM ALL OTHER WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. BMC DOES NOT WARRANT THAT THE OPERATION OF THE ON PREMISE SUBSCRIPTION WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT ALL DEFECTS CAN BE CORRECTED.
5. DELIVERY. For On Premise Subscriptions that are delivered electronically, upon request from BMC, Customer agrees to provide BMC with documentation supporting that the designated On Premise Subscription was received electronically. If Customer accepts any On Premise Subscription in a non-electronic format, there may be an additional charge and it is the sole responsibility of Customer to bear any sales/use tax obligation, penalties, and interest. All On Premise Subscriptions are licensed FCA (“Free Carrier” as per Incoterms 2000) shipping point. The On Premise Subscriptions are accepted on the date BMC delivers the On Premise Subscription to the Customer either physically or by providing access codes for electronic download, whichever occurs first, however, such acceptance will not affect the On Premise Subscription Performance Warranty provided in this Agreement.
6. AUDIT. If requested by BMC, and not more than once a year, Customer agrees to deliver to BMC, within 30 days of such request, as specified by BMC either (a) periodic product usage reports generated from specific products or (b) written periodic product usage reports, to be provided solely when the product does not generate reports (“Report”). Additionally, if requested by BMC not more than once a year, Customer agrees to allow BMC to perform an audit (“Audit”) at the locations where the On Premise Subscriptions are installed, during normal business hours to ensure compliance with the terms of this Agreement. Customer agrees to cooperate during any such Audit and to provide reasonable access to its information and systems. If an Audit or Report reveals that Customer has exceeded the Licensed Capacity for a On Premise Subscription, Customer agrees to pay the applicable fees for additional capacity upon receipt of invoice. If the understated capacity exceeds 5% of the Licensed Capacity of the applicable On Premise Subscription, then Customer agrees to also pay BMC’s reasonable costs of conducting the audit.
Effective August 6th 2019 to October 11th 2019
DownloadTable of Contents
BMC CLOUD SERVICES MASTER AGREEMENT
THIS CLOUD SERVICES MASTER AGREEMENT (“AGREEMENT”) GOVERNS YOUR FREE TRIAL, IF ANY, OF THE SUBSCRIPTION SERVICES.
IF YOU PURCHASE THE SUBSCRIPTION SERVICES, THIS AGREEMENT WILL ALSO GOVERN YOUR PURCHASE AND ONGOING USE OF THE SUBSCRIPTION SERVICES.
BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SUBSCRIPTION SERVICES.
You may not access the Subscription Services if you are BMC’s direct competitor, except with BMC’s prior written consent. In addition, you may not access the Subscription Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.
This Agreement was last updated on July 25, 2019. This Agreement is between the entity or individual entering into this Agreement (“Customer”) and the BMC Contracting Entity for the applicable region as described in Section 12 (“BMC”). It is effective between Customer and BMC as of the date of your acceptance of this Agreement. If Customer has a fully executed BMC Cloud Services Master Agreement then such fully executed BMC Cloud Services Master Agreement supersedes and replaces any clickwrap or click-through agreements (or other similar agreements) that Customer may be required to accept as a part of accessing or using the Subscription Services. For Customer’s convenience, prior versions of this Agreement are available at https://www.bmc.com/legal/csma.html.
FREE TRIAL.
BMC may make the Subscription Services available to Customer on a trial basis free of charge. If BMC offers Customer a free trial, it will run until the earlier of (a) the end of the trial period stated on the trial registration web page or (b) the start date of any Order for purchase of the Subscription Services. Additional trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.
ANY DATA CUSTOMER ENTERS INTO THE SUBSCRIPTION SERVICES, AND ANY CUSTOMIZATIONS MADE TO THE SUBSCRIPTION SERVICES BY OR FOR CUSTOMER, DURING A FREE TRIAL WILL BE PERMANENTLY LOST UNLESS CUSTOMER PURCHASES A SUBSCRIPTION TO THE SAME SUBSCRIPTION SERVICES AS THOSE COVERED BY THE TRIAL, OR EXPORTS SUCH DATA BEFORE THE END OF THE TRIAL PERIOD.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THE AGREEMENT, DURING ANY FREE TRIAL PERIOD THE SUBSCRIPTION SERVICES ARE PROVIDED “AS IS” WITH NO WARRANTY.
1.	DEFINITIONS.
1.1 “Affiliate” is an entity that controls, is controlled by or shares common control with BMC or Customer, where such control arises from either (a) a direct or indirect ownership interest of more than 50% or (b) the power to direct or cause the direction of the management and policies, whether through the ownership of voting stock by contract, or otherwise, equal to that provided by a direct or indirect ownership of more than 50%.
1.2 “Subscription Services” means the generally available hosted service which packages web-based access and the right-to-use the supported applications, installed agents and associated reference, user and technical guides.
1.3 “Capacity” means the amount of access to the Services purchased as specified in an Order, which is counted in accordance with the Unit of Measure described in the Order.
1.4 “Customer Content” means all electronic data or information (a) submitted to the Subscription Services by Customer, a third party on behalf of Customer, or as directed by Customer or (b) collected, processed or returned by the Subscription Services.
1.5 “Order” means (i) the agreed ordering document for the purchase of the Subscription Services, (ii) that is subject to this Agreement, and (iii) that identifies the terms of the purchase and fees to be paid. The term “Order” includes Customer’s online registration for and purchase of the Subscription Services, If any.
1.6 “User Guide” means the online help, functional guide and technical specifications for the Subscription Services, as updated by BMC from time to time.
2.	 SCOPE. Subject to the terms of this Agreement, Customer may purchase and BMC will provide Customer with access to the Subscription Services as set forth in this Agreement and the applicable Order. Subject to the Attachments to this Agreement, Customer may also purchase BMC Platform Services, BMC Consulting Services and BMC On Premise Subscription Services. In the event of a direct conflict between any Order and the terms of this Agreement, the terms of the Order will control only if the Order is executed by an authorized representative of each party. Each Order is deemed to be a discrete contract, separate from each other Order, unless expressly stated otherwise therein. Orders may be entered under this Agreement by and between (a) BMC or an Affiliate of BMC; and (b) Customer or an Affiliate of Customer. With respect to an Order, the terms “BMC” and “Customer” as used in this Agreement will be deemed to refer to the entities that execute that Order, the Order will be considered a two party agreement between such entities, and BMC will separately invoice the Customer named in the Order for the associated fees. Orders may also be placed via a BMC authorized reseller. Neither execution of this Agreement, nor anything contained herein, shall obligate either party to enter into any Orders.
3. ACCESS TO SUBSCRIPTION SERVICES.
3.1 Access Rights. Subject to Customer’s payment of applicable fees and to the terms of this Agreement, BMC will provide Customer with worldwide access to the Subscription Services in accordance with the Order (i) up to the Capacity, (ii) for Customer’s and its Affiliates’ internal business operations, (iii) in accordance with the User Guide and the applicable Order. Customer may exercise its rights under this Section 3.1 through its service providers, outsourcers, employees, consultants, contractors, agents, and Affiliates (all, “Users”).
3.2 BMC Subscription Services Support. BMC will provide the support described at http://www.bmc.com/support/review-policies (“Support”) to Customer for the Subscription Services, which may be changed by BMC upon prior notice to Customer, provided that such changes do not materially degrade Support during the term of an Order.
3.3 Use of Subcontractors. Customer acknowledges and agrees that BMC uses subcontractors to provide portions of the Subscription Services. BMC will provide a list of its current subcontractors upon Customer’s written request. BMC is responsible for the performance of all subcontractors providing any of the Subscription Services.
3.4 Customer Responsibilities and Restrictions.
(a) 	 Customer will (i) maintain the confidentiality of all authentications and passwords for the Subscription Services and immediately notify BMC if it becomes aware that an unauthorized party has gained access such authentications and passwords, (ii) be responsible for use of the Subscription Services by its Users in compliance with this Agreement, (iii) prevent unauthorized access to, or use of, the Subscription Services, and notify BMC promptly of any such unauthorized access or use, (iv) comply with all applicable laws in using the Subscription Services, and (v) be responsible for obtaining its own Apple Push Notification certificate, if the Subscription Services are used to manage devices running iOS. Customer is responsible for the creation and implementation of a privacy policy and end user agreement, if applicable, which will set forth the guidelines of how Customer uses and protects the data and personal information of its Users, and how said Users may utilize the Subscription Services.
(b) 	 Customer will not (i) modify, copy or create derivative works based on the Subscription Services; (ii) create Internet “links” to or reproduce any content forming part of the Subscription Services, other than for its own internal business purposes; (iii) disassemble, reverse engineer, or decompile the Subscription Services or part thereof; (iv) interfere with or disrupt the integrity or performance of the Subscription Services; (vi) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortuous material, or send or store material in violation of any third party’s privacy rights via the Subscription Services; (vii) send or store viruses or malicious code via the Subscription Services; (viii) attempt to gain unauthorized access to the Subscription Services or its related software, systems, platforms or networks, including any form of security and/or penetration testing; (ix) use any components provided with the Subscription Services separately from the Subscription Services; or (x) distribute, rent, lease or provide the Subscription Services to any third party or use it in a service bureau, outsourcing environment, or for the processing of third party data.
4.	FEES AND PAYMENT.
4.1 Fees. The fees payable for the Subscription Services and the payment period for such fees will be set forth in and paid in accordance with the Order. All invoices are due upon receipt of invoice.
4.2 Late Fees. The unpaid balance of each late payment bears interest at a rate equal to the lesser of 1% per month or the maximum amount permitted by law. All fees are nonrefundable and BMC will not provide any refunds or credits for partially used periods of the Subscription Services.
4.3 Taxes. Customer will pay or reimburse BMC or, when required by law, the appropriate governmental agency, for taxes of any kind, including sales, use, VAT, excise, customs duties, withholding, property, and other similar taxes (other than taxes based on BMC’s net income or arising from the employment relationship between BMC and its personnel) imposed in connection with the fees paid for the Subscription Services, which are exclusive of these taxes.
5. TERM, SUSPENSION AND TERMINATION.
5.1 Term. This Agreement begins on the Effective Date and will remain in effect unless terminated pursuant to Section 5.2 below, regardless of the billing frequency selected in the Order.
5.2 Termination.
(a)	Termination for Convenience. Customer may terminate this Agreement by providing BMC with at least 30 days prior written notice; provided, however, such termination will have no effect on Orders in effect at the time of such termination. Orders may not be terminated for convenience unless otherwise specified therein. Customer may notify BMC of its intent to terminate by emailing BMC at order_services@bmc.com.
(b) 	Termination for Cause. Either party may terminate this Agreement and/or an Order for cause: (i) upon 30 days’ written notice of a material breach to the other party if such breach remains uncured at the expiration of such period; or (ii) immediately if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
5.3 Suspension of Subscription Services for Cause. In addition to its other rights and remedies, BMC reserves the right, without liability to Customer, to immediately suspend any and all access to the Subscription Services if Customer commits a material breach of this Agreement or any relevant Order until such material breach is cured.
5.4 Effects of Termination. Upon termination or expiration of any Order or this Agreement, all rights and Licenses granted thereunder will terminate and Customer will make no further use of the Subscription Services. No termination will relieve the Customer of the obligation to pay any fees accrued or payable to BMC pursuant to any Order. Upon written request by Customer made within 30 days after the effective date of termination, BMC will make the Customer Content available to Customer for retrieval in an industry standard format. After such 30-day period, BMC shall have no obligation to maintain any Customer Content and will thereafter delete Customer Content.
6. LIMITED WARRANTY.
6.1 Warranties and Limited Remedies. BMC warrants to Customer that:
(a)	the online availability of the Subscription Services will be maintained in accordance with the service levels attached to the applicable Order, if any (the “Service Level Agreement” or “SLA”). Customer’s exclusive remedy and BMC’s sole obligation for breach of the warranty in this Section 6.1(a) is described in the Service Level Agreement; and
(b)	the Subscription Services (i) will perform in substantial accordance with the then-current on-line User Guide available via the Subscription Services and (ii) will be performed in a manner consistent with industry standards reasonably applicable to the provision thereof. Customer’s exclusive remedy and BMC’s sole obligation for breach of the warranty in this Section 6.1(b) will be BMC’s use of commercially reasonable efforts to have the Subscription Services perform in substantial accordance with the User Guide, or replace the non-conforming portion of the Subscription Services within a reasonable period of time, or if BMC cannot have the Subscription Services perform in substantial accordance with the User Guide or replace the Subscription Services within such time period, then BMC will refund the amount paid by Customer for the Subscription Services, pro-rated from the date of the notice of the claim. Customer’s rights and BMC’s obligations in this Section 6.1(b) are conditioned upon Customer’s providing BMC with written notice of the claim, a complete description of the alleged defects and a specific reference to the User Guide to which such alleged defects are contrary.
6.2 Disclaimer. CUSTOMER ACKNOWLEDGES THAT, EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, BMC, ITS AFFILIATES AND LICENSORS MAKE NO WARRANTY, EXPRESS, IMPLIED OR STATUTORY WITH RESPECT TO THE SUBSCRIPTION SERVICES OR USE THEREOF. BMC, ITS AFFILIATES AND LICENSORS HEREBY EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY THAT SUBSCRIPTION SERVICES WILL BE UNINTERRUPTED, ERROR FREE OR WITHOUT DELAY, AND THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INTERFERENCE, NON-INFRINGEMENT AND INFORMATION CONTENT.
7. PROPRIETARY RIGHTS AND CONFIDENTIALITY.
7.1 Proprietary Rights. BMC, its Affiliates or licensors retain all right, title and interest to the Subscription Services and all related intellectual property and proprietary rights. The Subscription Services are protected by applicable copyright, trade secret, industrial and other intellectual property laws. BMC owns all right, title and interest in all software, programming, documentation, templates, questionnaires, methodologies, models, charts, reports, ideas, features, content, functions, graphics and any other items provided as part of the Subscription Services (“Service Items”) and access to and use of the relevant Service Items will be governed by the terms of this Agreement. Subject to (i) BMC’s or its licensor’s ownership of any Service Items and (ii) section 3.4 (b) (i) of the Agreement, Customer owns all rights, title, and interest in Customer Applications, including all proprietary and intellectual property rights. BMC reserves any rights not expressly granted to Customer. Customer shall not access the Subscription Services in order to build a competitive product or service or copy any ideas, features, functions or graphics of the Subscription Services. “Confidential Information” means all proprietary or confidential information that is disclosed to the recipient (“Recipient”) by the discloser (“Discloser”), and includes, among other things (i) any and all information relating to products or services provided by a Discloser, its customer-related and financial information, software code, flow charts, techniques, specifications, development and marketing plans, strategies, and forecasts; (ii) as to BMC, and its licensors, the Subscription Services and Service Items; and (iii) the terms of this Agreement, including without limitation, pricing information. Confidential Information does not include information that Recipient can show: (a) was rightfully in Recipient’s possession without any obligation of confidentiality before receipt from the Discloser; (b) is or becomes a matter of public knowledge through no fault of Recipient; (c) is rightfully received by Recipient from a third party without violation of a duty of confidentiality; or (d) is or was independently developed by or for Recipient. Recipient may not disclose Confidential Information of Discloser to any third party or use the Confidential Information in violation of this Agreement. The Recipient (i) will exercise the same degree of care and protection with respect to the Confidential Information of the Discloser that it exercises with respect to its own Confidential Information and (ii) will not, either directly or indirectly, disclose, copy, distribute, republish, or allow any third party to have access to any Confidential Information of the Discloser. Notwithstanding the foregoing, Recipient may disclose Discloser’s Confidential Information to Recipient’s employees and agents who have need to know provided that such employees and agents have legal obligations of confidentiality substantially the same (and in no case less protective) as the provisions of this Agreement.
7.2 Notification Obligation. If the Recipient becomes aware of any unauthorized use or disclosure of Discloser’s Confidential Information, then Recipient will promptly and fully notify the Discloser of all facts known to it concerning such unauthorized use or disclosure. In addition, if the Recipient or any of its employees or agents are required (by oral questions, interrogatories, requests for information, or documents in legal proceedings, subpoena, civil investigative demand, or other similar process) to disclose any of Discloser’s Confidential Information, the Recipient will not disclose the Discloser’s Confidential Information without providing the Discloser with commercially reasonable advance prior written notice to allow Discloser to seek a protective order or other appropriate remedy or to waive compliance with this provision. In any event, the Recipient will exercise its commercially reasonable efforts to preserve the confidentiality of the Discloser’s Confidential Information, including, without limitation, cooperating with Discloser to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded to the Confidential Information.
7.3 Customer Content. As between BMC and Customer, Customer owns all rights, title and interest in and to Customer Content. Customer Content is deemed Confidential Information under this Agreement. BMC will use the Customer Content only as necessary to provide the Subscription Services in accordance with this Agreement. At any time during the term of the Subscription Services, Customer may request copies of all Customer Content from the Subscription Services. Customer is responsible for complying with all legal and contractual requirements, including its agreements with third parties. With the exception of Customer Content collected by the Subscription Services, Customer is solely responsible for the transmission of Customer Content to BMC and to the Subscription Services. Customer is solely responsible for the encryption of any Customer Content.
7.4 Suggestions. Customer agrees that BMC shall have a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into any BMC products or services any suggestions, enhancement requests, recommendations or other feedback provided by Customer relating to the Subscription Services.
8. DISCLAIMER OF DAMAGES AND LIMITS ON LIABILITY.
8.1 DISCLAIMER OF DAMAGES. EXCEPT FOR EACH PARTY’S RESPONSIBILITIES IN SECTION 9, NEITHER PARTY OR ITS AFFILIATES ARE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES RELATING TO OR ARISING OUT OF THIS AGREEMENT OR THE SUBSCRIPTION SERVICES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST COMPUTER USAGE TIME, AND DAMAGE TO, OR LOSS OF USE OF, DATA), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND IRRESPECTIVE OF ANY NEGLIGENCE OF A PARTY OR WHETHER SUCH DAMAGES RESULT FROM A CLAIM ARISING UNDER TORT OR CONTRACT LAW.
8.2 LIMITS ON LIABILITY. EXCEPT FOR EACH PARTY’S RESPONSIBILITIES IN SECTION 9, NEITHER PARTY OR ITS AFFILIATES SHALL HAVE AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SUBSCRIPTION SERVICES, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEEDING THE AMOUNTS ACTUALLY PAID BY AND DUE FROM CUSTOMER PURSUANT TO THE ORDER(S) GIVING RISE TO LIABILITY THAT ARE IN EFFECT AS OF SUCH DATE.
9. INFRINGEMENT CLAIMS.
9.1 Indemnification by BMC. If a third party asserts a claim against Customer asserting that Customer’s use of the Subscription Services, including Platform Services, Deliverables and Licenses as defined in the Attachments to this Agreement, in accordance with this Agreement violates that third-party’s patent, trade secret or copyright rights (“Infringement Claim”), then BMC will, at its own expense: (a) defend or settle the Infringement Claim; and (b) indemnify Customer for any damages finally awarded against Customer based on infringement by the Subscription Services, including court costs and reasonable attorney’s fees. If BMC believes the Subscription Services may violate a right, then BMC will, at its expense: (a) modify the Subscription Services, or (b) procure the right to continue using the Subscription Services, and if (a) or (b) are not commercially reasonable, terminate Customer's right to use the Subscription Services and issue a pro-rata refund for the unexpired pre-paid portion of such Subscription Services.
9.2 Indemnification by Customer. Subject to the terms of this Agreement, if a third party asserts a claim against BMC asserting that the (i) Customer Content, (ii) Customer Applications as defined in Attachment A, (iii) Customer Property as defined in Attachment B or (iv) Customer’s use of the Subscription Services in violation of this Agreement violates that third-party’s patent, trade secret or copyright rights (“Claim”), Customer will, at its own expense: (a) defend or settle the Claim; and (b) indemnify BMC for any damages finally awarded against BMC based on the Claim, including court costs and reasonable attorney’s fees.
9.3 Indemnity Process. Neither party’s obligations under this Section will apply if: (a) the indemnifying party’s legal department does not receive prompt, detailed written notice of the Infringement Claim/Claim from the party being indemnified, (b) the indemnifying party is not able to retain sole control of the defense of the Infringement Claim/Claim and all negotiations for its settlement or compromise, or (c) the indemnifying party does not receive all reasonable assistance from the party being indemnified. Neither party will bind the indemnified party to a monetary obligation in a settlement or compromise, or make an admission on behalf of the indemnified party, without obtaining that party’s prior consent.
9.4 THIS SECTION 9 CONTAINS EACH PARTY'S EXCLUSIVE REMEDIES AND THE INDEMNIFYING PARTY'S SOLE LIABILITY FOR INFRINGEMENT CLAIMS/CLAIMS, RESPECTIVELY.
10. EXPORT CONTROLS. Customer represents and warrants that it: a) will comply with the United States Export Administration Regulations and other U.S. or foreign export regulations; b) no individual accessing or using the Subscription Services is a citizen of or from an embargoed country (currently Iran, Syria, Sudan, Cuba and North Korea); c) is not prohibited from receiving the Subscription Services under such regulations; d) will not acquire the Subscription Services for a person who is restricted under such regulations; e) will not use the Subscription Services in contradiction to such regulations; and f) will not use the Subscription Services for prohibited uses, including but not limited to nuclear, chemical, missile or biological weapons related end uses. For Subscription Services exported from Ireland, EC No. 428/2009 sets up a Community regime for control of exports of dual-use items and technology, and it is declared that this Subscription Services is intended for civil purposes only. Therefore, Customer agrees to comply with both the U.S. regulations and those E.U. regulations and will not export in violation of the regulations and without all proper licenses. Customer’ failure to comply with these regulations will result in an automatic termination of the Agreement and all rights to the Subscription Services thereunder.
11. GOVERNING LAW AND DISPUTE RESOLUTION. Any controversy, dispute or claim arising out of or relating to this Agreement, or to the formation, interpretation, breach, termination, or validity thereof (each, a “Controversy”) will be resolved as follows:
(i)	UNITED STATES. If both parties to this Agreement are entities incorporated under the law of any state in the United States, the Controversy shall be tried in either state or federal court located in Houston, Texas and the laws of the State of Texas shall govern. Both parties hereby submit to the exclusive jurisdiction of the courts in Houston, Texas and waive all defenses based on forum non conveniens.
(ii)	EMEA. If both parties to this Agreement are entities incorporated in countries in the Europe, Middle East, or Africa regions, the Controversy shall be tried in the District Court located in Amsterdam, the Netherlands and the substantive laws of the Netherlands shall govern. Both parties hereby submit to the exclusive jurisdiction of the District Court in Amsterdam, the Netherlands and waive all defenses based on forum non conveniens.
(iii)	ASIA PACIFIC. If both parties to this Agreement are entities incorporated in countries in the Asia Pacific region, the arbitration shall be held in Singapore under the then-applicable rules of the Singapore International Arbitration Centre and the substantive laws of Singapore will govern.
(iv)	OTHER REGIONS. In all other instances, the arbitration shall be held in New York City, New York, under the then-applicable international rules of the American Arbitration Association and the substantive laws of the State of Texas will govern.
For all arbitrations conducted hereunder: (a) the arbitration shall be conducted in English; (b) the relevant arbitral institution shall determine the number of arbitrators, but any Controversy in which the amount in dispute is greater than $10 million USD shall be decided by three arbitrators, with each party having the right to select one arbitrator; (c) the costs of such arbitration shall be borne equally, pending the arbitrator’s award; (d) the arbitration award rendered shall be final and binding on the parties, shall not be subject to appeal to any court and shall be enforceable in any court having jurisdiction over the parties; (e) the arbitration proceedings, award and pleadings shall all be confidential, unless disclosure of particular information is required for purposes of enforcing/challenging the award or to meet local securities law requirements; and (f) the party prevailing in arbitration shall be entitled to recover its reasonable attorneys’ fees and the necessary costs incurred in connection with the arbitration.
The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. Nothing in this Agreement shall be deemed as preventing either party from seeking immediate injunctive relief from any court having jurisdiction over the parties and the subject matter of the dispute.
12.	The following BMC contracting entities apply to this Agreement:
Region | Contracting Entity | Address of Contracting Entity |
United States and Latin America South (not a specified Central or South America country below) | BMC Software, Inc. | 2103 CityWest Boulevard, Houston, Texas 77042 |
Canada | BMC Software Canada Inc. | 50 Minthorn Boulevard, Suite 200 Markham, Ontario L3T 7X8 Canada |
EMEA (Europe, Middle East and Africa) | BMC Software Distribution B.V. | Boeing Avenue 245, 1119 PD Schiphol Rijk, The Netherlands |
Brazil | BMC Brasil Software Ltda. | Avenida Dra. Ruth Cardoso, n° 8.501, Condomínio Eldorado Business Tower, 22° andar, Pinheiros, São Paulo – SP, CEP: 05425-070 |
Mexico | BMC Software Distribution de México, S.A. de C.V. | Volcán 150, Piso 4, Col. Lomas de Chapultepec, C.P. 11000, Deleg. Miguel Hidalgo, Ciudad de México |
Argentina | BMC Software de Argentina S.A. | Ing. Butty 220 - Piso 18, Catalinas Plaza Buenos Aires, República de Argentina, C1001A |
S.E.A (Southeast Asia), Australia, New Zealand, Hong Kong, Taiwan | BMC Software Asia Pacific Pte Ltd | 600 North Bridge Road, #20-01/10 Parkview Square, Singapore 188778 |
China | BMC Software (China) Limited | Room 502, Level 5, Tower W1, The Towers, Oriental Plaza, No. 1 East Chang An Ave., Dong Cheng Dist., Beijing 100738, China |
Japan | BMC Software K.K. | Harmony Tower 24th Floor, 1-32-2 Honcho, Nakano-ku, Tokyo, 164-8721 |
Korea | BMC Software Korea Ltd | 24th Fl., ASEM Tower, 1517, Yeongdong-daero,Gangnam-gu, Seoul 135-798, Korea South |
13. U.S. FEDERAL ACQUISITIONS. This Section applies only to acquisitions of the commercial Subscription Services and Documentation subject to this Agreement by or on behalf of the United States Government, or by any prime contractor or subcontractor (at any tier) under any contract, grant, cooperative agreement or other activity with the United States Government. In the event the Subscription Services are delivered to the United States Government, the United States Government hereby agrees that the Subscription Services qualify as “commercial items” within the meaning of the Federal acquisition regulation(s) applicable to this procurement. The terms and conditions of this Agreement shall pertain to the United States Government’s use and disclosure of the Product, and shall supersede any conflicting contractual terms and conditions. The following additional statement applies only to acquisitions governed by DFARS Subpart 227.4 (October 1988): “Restricted Rights – Use, duplication and disclosure by the Government is subject to restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 (Oct. 1988).”
14. DATA PROTECTION. The processing of Customer Content under this Agreement is governed by the BMC Data Processing Agreement set forth on the Order.
15. VERIFICATION. Customer agrees that BMC or its agent may monitor the Subscription Services to ensure Customer’s compliance with the terms of this Agreement. If such monitoring reveals that Customer has exceeded the Capacity for the Subscription Services, Customer agrees to pay the applicable fees for additional capacity upon receipt of an invoice from BMC. If Customer to fails to pay fees for such additional capacity, BMC may suspend Customer’s access to the Subscription Services until such fees are paid in full.
16. MISCELLANEOUS TERMS. BMC is not liable for its failure to perform any of its obligations under this Agreement during any period in which performance is delayed by Customer or circumstances beyond BMC's reasonable control. The parties are independent contractors and this Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties. Customer will receive system notifications from BMC and its licensors, if applicable (i.e. planned downtime notices, etc). This Agreement, including the Attachments and Orders constitutes the entire agreement between Customer and BMC and supersedes any prior or contemporaneous negotiations or agreements, whether oral or written concerning the Subscription Services. There are no representations, promises, warranties, covenants, or undertakings between the parties other than those expressly set forth in this Agreement. There are no third-party beneficiaries to this Agreement; Customer is not entering into a contractual relationship with BMC’s licensors and BMC’s licensors have no liability to Customer. Except as provided in Section 2 above, no modification or waiver of any provision hereof will be effective unless made in a writing signed by both BMC and Customer. Customer may not assign or transfer this Agreement or the Subscription Services to a third party, whether by merger, operation of law, or otherwise. Should any provision of this Agreement be invalid or unenforceable, the remainder of the provisions will remain in effect. Any additional or conflicting terms of any Customer purchase order are rejected by BMC and do not apply. The Subscription Services may contain hyperlinks to websites controlled by parties other than BMC. BMC is not responsible for and does not endorse the content or accept any responsibility for Customer’s use of these websites. Customer should refer to the policies posted by other websites regarding privacy and other topics regarding data privacy before using them.
Attachments incorporated into Agreement |
Attachment A – Platform Services Attachment |
Attachment B – Consulting Services Attachment |
Attachment C – On Premise Subscription Services Attachment |
PLATFORM SERVICES ATTACHMENT
to the
BMC CLOUD SERVICES MASTER AGREEMENT
to the
BMC CLOUD SERVICES MASTER AGREEMENT
Except as otherwise provided herein, the terms of the Cloud Services Master Agreement (the “Base Agreement”) are incorporated into this Platform Services attachment (the “Attachment”). Together, this Attachment and the Base Agreement (as incorporated into this Attachment) are referred to as the “Agreement” for purposes of Customer’s access and use of Platform Services, only if the Platform Services are set forth on an Order referencing the Base Agreement. For purposes of this Agreement, the term “Subscription Services” as defined in the Base Agreement shall be extended to include the Platform Services. In the event of a conflict between the Base Agreement and the terms of this Attachment, the terms of this Attachment will control for Customer’s access and use of the Platform Services only.
1. SCOPE. Subject to the terms of this Agreement, BMC will provide Customer with access to the Platform Service named in the applicable Order. Customer may only use the Platform Services to store, retrieve, query, serve, and process Customer Content that is owned, licensed or lawfully obtained by Customer. As part of Customer’s subscription to the Platform Services, Customer may be allowed to run certain Applications on the Platform Services that are either (i) sold by BMC, (ii) sold by a Third Party Publisher, or (iii) owned or licensed by Customer.
2. DEFINITIONS.
2.1	“Application” is the object code, its definitional structures, and data created to fulfill a particular purpose, which runs on the Platform Services. An Application may also include its documentation and User Guide.
2.2 “BMC Application Services” means a generally available Application that is provided as a subscription by BMC to customers, including all items delivered by BMC to Customer under Support related to such Application.
2.3 “Customer Applications” means Applications that are owned or licensed by Customer, not including any Third Party Applications, and which run on the Platform Services.
2.4 “Customer Content” means all information uploaded or entered by Customer to the Platform Services, excluding Customer Applications.
2.5 “Development Platform” means a BMC provided development platform which allows Customer to develop a custom application to run on the Platform Services.
2.6 “Platform Services” means the generally available BMC-provided platform specified on the Order and its capabilities to run Applications. The specific Platform Services being will be identified in the Order.
2.7 “Third Party Applications” means Applications that are owned by a Third Party Publisher with a valid independent software vendor agreement in place with BMC, and are licensed by said Third Party Publisher to customers.
2.8 “Third Party Publisher” means a party other than BMC or a BMC Affiliate that is the owner and licensor of a Third Party Application, and has a valid independent software vendor agreement in place with BMC. For the sake of clarity, Customer is informed that Third Party Publishers are not BMC Subcontractors.
3. BMC PLATFORM SERVICES.
3.1 BMC Platform Services Support. BMC will provide Support only for Platform Services and BMC Application Services. Customer is responsible for its own support for Customer Applications and Third Party Applications.
3.2 Notifications to Customer. Any general notifications from BMC Operations to Customer will be sent to the Customer contact stated in the Customer Technical Contact Information section of the Order. The Customer contact in the Order has been assigned by Customer as the Customer contact for operational issues that may arise. Customer shall notify BMC of any change to the Customer contact details in writing, which may include via e-mail.
3.3 Subcontractors. For the sake of clarity, Customer is informed that Third Party Publishers are not BMC Subcontractors.
3.4 Customer Responsibilities. In addition to the Customer Responsibilities set forth in the Base Agreement, Customer may not (i) transfer an Application outside of the Platform Services; or (ii) tamper with or circumvent any controls or make unauthorized copies of a BMC Application.
4. CUSTOMER APPLICATIONS AND THIRD PARTY APPLICATIONS.
4.1 Any Third Party Applications or Customer Applications that run on the Platform Services are hereby excluded from the defined terms “Subscription Services”, “BMC Application Services” and “Platform Services”. Such Third Party Applications are governed by the terms provided with the Third Party Applications, and are by and between Customer and the applicable Third Party Publisher. Customer and Third Party Publishers shall agree upon their respective obligations with respect to the processing of personal data by Third Party Publishers. Customer acknowledges and agrees that this Agreement does not govern Customer’s subscription, use and access of any Third Party Applications or Customer Applications, and said Third Party Applications and Customer Applications are specifically excluded from this Agreement.
4.2 Customer may utilize the Development Platform to create an Application to run on the Platform Services. Customer’s use of the Development Platform is governed by the terms of this Agreement subject to the restrictions set forth in sections 4.2.1 to 4.2.6 below. Customer’s development of an Application must meet the best practices development guidelines set forth in the User Guide. Each Customer Application shall at all times materially conform to policies and best practices set forth in the User Guide. Prior to the deployment of any Customer Applications in a production or non-production environment of the Platform Services, Customer must conduct security and functional tests of each Customer Application and submit the results of such tests to BMC for review. BMC reserves the right to reject Customer’s deployment request of a Customer Application based on the results of Customer’s security and functional tests. Additionally, BMC reserves the right, during the term of this Agreement, to request Customer conduct additional security and functional tests and provide the results of said tests to BMC for review. Notwithstanding the foregoing, Customer must ensure that at all times Customer Applications are secure.
4.2.1 Scope of use. The right to access and use the Development Platform is granted solely for the purpose of performing non-production application development work on the Development Platform.
4.2.2 Restrictions of use. Customer agrees not to:
- use the Development Platform to (1) process production data or for any other production purposes, including but not limited to publishing digital applications, or (2) distribute applications;
- use the Development Platform with data or information that has not been backed up; or
- modify, delete or remove any ownership, title, trademark, patent or copyright notices.
4.2.3 Customer Responsibilities. Customer is responsible for acquiring all necessary and required licenses for the use of any third party software, source code and/or libraries Customer may use as part of its development with the Development Platform. In addition to its other rights and remedies, BMC reserves the right, without liability to Customer, to immediately, at any time and for any reason refresh Customer’s instance of the Development Platform. Upon BMC’s refreshing of Customer’s instance of the Development Platform, Customer may lose all Customer Content submitted to or stored in said instance of the Development Platform. Upon expiration or termination of the applicable Ordert, BMC may destroy any Customer Content submitted to or stored therein. Customer is responsible for backing up any development work with Customer Content outside of the Development Platform.
4.2.4 Open Source. Customer may not use any software, library, utility, tool, or other computer or program code (“Code”) with the Subscription Services that in any way that would (i) weaken BMC’s intellectual property rights in the Services, or (ii) require the Subscription Services to become or be disclosed or distributed as Open Source Software. For purposes of this Section, “Open Source Software” means any Code that is substantially similar to, (A) the Affero General Public License, (B) the GNU General Public License (GPL) or Lesser/Library GPL (LGPL), (C) the Artistic License (e.g. PERL), (D) the Mozilla Public License, (E) the Netscape Public License, (F) the Sun Community Source License (SCSL), (G) the Sun Standards License (SISL), or (H) any “copyleft” license, or any other license that requires as a condition of use, reproduction, modification, or distribution that such Code or other software or computer code distributed with it: (1) be disclosed or distributed in source code form; (2) be licensed for the purpose of creating derivative works; (3) be licensed under terms that allow reverse engineering, reverse assembly, or disassembly of any kind; (4) be subject to a patent non-assert or royalty-free patent license; or (iv) be redistributable at no charge.
4.2.5 No Support. BMC, its affiliates, or licensors do not provide Support for the Development Platform.
4.2.6 Disclaimer of Warranty, Limitation of Liability and Exclusive Remedy. Notwithstanding anything to the contrary in the applicable Order or this Agreement:
- THE DEVELOPMENT PLATFORM IS PROVIDED “AS IS” WITHOUT ANY WARRANTY OF ANY KIND WHATSOEVER. BMC, ITS AFFILIATES AND LICENSORS DO NOT WARRANT THAT THE DEVELOPMENT PLATFORM WILL SATISFY CUSTOMER’S REQUIREMENTS, THAT THE DEVELOPMENT PLATFORM IS WITHOUT DEFECT, VIRUS OR ERROR FREE, WITHOUT DELAY, OR THAT THE OPERATION OF THE DEVELOPMENT PLATFORM WILL BE UNINTERUPTED. BMC, ITS AFFILIATES AND LICENSORS DISCLAIM ANY AND ALL REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, MADE WITH RESPECT TO THE DEVELOPMENT PLATFORM, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INTERFERENCE AND INFORMATION CONTENT; AND
- NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY, FOR ANY CLAIM, LOSS, DAMAGE OR EXPENSE FOR INDIRECT, SPECIAL, CONSEQUENTIAL, PUNITIVE OR INCIDENTAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE DEVELOPMENT PLATFORM (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST COMPUTER USAGE TIME, AND DAMAGE TO, OR LOSS OF USE OF, DATA), EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBLITY OF SUCH DAMAGES. EITHER PARTY’S ENTIRE LIABILITY AND THE OTHER PARTY’S EXCLUSIVE REMEDY FOR DIRECT DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE DEVELOPMENT PLATFORM, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, IS LIMITED TO $100.
4.3 License to Customer Applications. Subject to the terms and conditions of this Agreement, Customer hereby grants BMC a worldwide, limited, nonexclusive license during the term of the applicable Order for the Platform Services to host, copy, transmit, adapt and display Customer Applications solely for the purpose of fulfilling BMC’s obligations under this Agreement.
4.4 Functionality of Customer Applications. Customer is solely responsible for the operation of Customer Applications, including but not limited to any information stored in or transmitted by Customer Applications. Customer is responsible for monitoring the usage of each Customer Application. Customer is responsible for the configuration, functionality, performance, compliance with applicable data protection laws and security of all Customer Applications, including any interfaces used to connect to Customer Applications.
4.5 Use of Customer Applications. Customer has sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of Customer Applications and all Customer Content entered therein by Customer, its Users or on Customer’s behalf, the means by which Customer acquired such Customer Content, and the use of such Customer Content. Without limiting Customer’s obligations under the terms of this Agreement, Customer must (i) provide any necessary notice to, and obtain any necessary consent from, Users for the collection, use, transfer, and storage of Customer Content (including by BMC), and (b) collect, use, transfer, and store Customer Content in accordance with any privacy notice you provide, and all applicable laws.
4.6 Use of Third Party Applications. Customer is responsible for monitoring its usage of each Third Party Application, and such Third Party Publisher’s usage and license compliance is governed by the terms of the agreement entered into between Customer and the Third Party Publisher. Customer is responsible for all applicable fees associated with Customer’s use of Third Party Applications. Please note, Customer’s usage of such Third Party Applications may incur additional license fees between Customer and the applicable Third Party Publisher, as well as additional Platform Services fees.
4.7 Customer will provide information or other materials related to a Customer Applications as reasonably requested by BMC to verify Customer’s compliance with the Agreement and the User Guide. BMC may monitor Customer Applications and Third Party Applications running on the Platform Services to verify Customer’s compliance with the Agreement. Customer will not block or interfere with BMC’s monitoring. Customer will cooperate with BMC to identify the source of any problem with the Platform Services that BMC reasonably believes may be attributable to Customer Applications or Third Party Applications, or any Customer Content.
4.8 If BMC reasonably believes any Customer Content, Customer Applications or Third Party Applications violates the law, infringes or misappropriates the rights of any third party or otherwise violates a material term of the Agreement (including the User Guide) (“Prohibited Content”), BMC will notify Customer of the Prohibited Content and may request that such content be removed from the Platform Services or access to it be disabled. If Customer does not remove or disable access to the Prohibited Content within two (2) business days of BMC’s notice, BMC may remove or disable access to the Prohibited Content or suspend the Platform Services to the extent BMC is not able to remove or disable access to the Prohibited Content. Notwithstanding the foregoing, BMC may remove or disable access to any Prohibited Content without prior notice in connection with illegal content, where the content may disrupt or threaten the Platform Services, pursuant to the Digital Millennium Copyright Act or as required to comply with law or any judicial, regulatory or other governmental order or request. In the event that BMC removes content without prior notice, BMC will provide prompt notice to Customer unless prohibited by law.
4.9 Customer’s use of the Platform Services, BMC Application Services, Customer Applications and/or Third Party Applications may be immediately suspended and/or terminated due to (i) reasonable security threats regarding the Platform Services, Customer Applications or Third Party Applications, (ii) Customer Applications or Third Party Applications interfering with, disrupting or threatening the integrity or performance of the Subscription Services and/or the Platform Services or BMC Application Services, or (iii) a third party’s claim that Customer Applications or Third Party Applications may violate applicable law or third party rights. In the event of (i) or (ii) above apply to Customer Applications, Customer is required to remediate any such issue to BMC’s commercially reasonable satisfaction before use of Customer Applications can resume.
4.10 Customer’s access to Third Party Applications may be immediately suspended and/or terminated by BMC at the direction of the Third Party Publisher. Customer acknowledges and understands that access to Customer Applications and/or Third Party Applications used in connection with the Platform Services may be suspended due to Customer’s non-payment to BMC for use and access to the Platform Services or other breach of this Agreement. In no case will any such suspension or termination under the terms of this Agreement give rise to any BMC liability to Customer for a refund or other compensation.
4.11 Except with regard to applicable data protection laws, BMC takes no responsibility with regard to Customer Content (i) processed by Third Party Publishers and/or (ii) through the use by Customer of Third Party Applications.
4.12 BMC may conduct periodic security evaluations of all Customer Applications, which may include security review, a qualitative assessment involving review of a completed questionnaire, and an interview with appropriate Customer personnel. BMC conducts such security evaluations for its own benefit and Customer may not rely on the successful results of such evaluation. BMC may conduct such testing itself or, subject to the confidentiality obligations set forth in the Agreement, through a third party. BMC will provide reasonable notice to Customer before starting such testing. BMC will also cooperate reasonably with Customer to minimize the effects of such testing on Customer’s business and operations. Customer agrees to cooperate reasonably with such testing. Despite the foregoing, such testing may in rare cases cause downtime or other adverse effects on Customer Applications, Third Party Applications, the Platform Services or other BMC Application Services used by Customer. Any nonpublic information to which BMC obtains access in the course of such security testing will be considered Customer’s Confidential Information.
4.13 Customer Responsibilities. Customer’s obligations set forth in section 3.4 (a) of the Base Agreement shall apply in full to Platform Services, Customer Applications and Third Party Applications.
5. WARRANTIES. Customer warrants to BMC that: (a) each Customer Application will perform materially in accordance with the User Guide; (b) Customer owns all right, title, and interest in and to Customer Content, including but not limited to any Customer Content uploaded or entered into Customer Applications or Third Party Applications; (c) Customer has the necessary rights to use and access any Customer Applications and Third Party Applications deployed in a production or non-production environment of the Platform Services; (d) Customer has all rights in the Customer Content and Customer Applications necessary to grant the rights contemplated by this Agreement; (e) none of the Customer Content or Customer Applications or Users’ use of Customer Content or Customer Applications will violate the Agreement and the User Guide; (f) Customer’s security and functional tests of Customer Applications was conducted in a commercially reasonable manner and the results of said tests provided to BMC for review are correct and valid; and (g) none of the Third Party Applications or Users’ use of Third Party Applications will violate the Agreement or the User Guide.
ATTACHMENT B
CONSULTING SERVICES ATTACHMENT
to the
BMC CLOUD SERVICES MASTER AGREEMENT
to the
BMC CLOUD SERVICES MASTER AGREEMENT
Except as otherwise provided herein, the terms of the Cloud Services Master Agreement (the “Base Agreement”) are incorporated into this Consulting Services attachment (the “Attachment”). Together, this Attachment and the Base Agreement (as incorporated into this Attachment) are referred to as the “Agreement” for purposes of Customer’s purchase of Consulting Services, only if Consulting Services are set forth on an Order referencing the Base Agreement. For purposes of this Agreement, the term “Subscription Services” as defined in the Base Agreement shall be extended to include Consulting Services. In the event of a conflict between the Base Agreement and the terms of this Attachment, the terms of this Attachment will control for Customer’s purchase of Consulting Services only. The parties agree that the following Sections of the Base Agreement do not apply to the Consulting Services provided under this Attachment: Section 3.2 (Support), Section 4 (Fees and Payment), Section 6 (Limited Warranty) and Section 9 (Infringement Claims).
1. SCOPE. BMC agrees to render to Customer Consulting Services under the terms of this Agreement and as further described in an Order. BMC will render the Consulting Services in the location(s) as set forth in the Order. The performance of the Consulting Services will not relieve or alter the rights, obligations and responsibilities of Customer and of the BMC Affiliate providing Subscription Services and/or Licenses with respect to Subscription Services and/or Licenses under the applicable agreement in.
2. SERVICE FEES AND EXPENSES. The fees payable to BMC for the Consulting Services to be rendered will be detailed in the Order. BMC will submit invoices to Customer for such fees and incurred expenses either upon completion of the Consulting Services, or at stated intervals, in any case in accordance with the applicable Order. Customer shall pay amounts invoiced within 30 days following receipt of the invoice.
3. EDUCATION. Customer may acquire Learning Pass Credits and Education Services (collectively, “BMC Education”) on a Order. The BMC Education terms that govern such Orders are set forth in the Education Program Guide located at https://www.bmc.com/content/dam/bmc/education/education-program-guide.pdf, and is incorporated herein by this reference.
4. STATEMENTS OF WORK. Consulting Services may require the execution of a Statement of Work, in which case, such Statement of Work will be considered an Order for Consulting Services. In the event of any conflict between the terms of a Statement of Work and this Agreement, the Agreement shall prevail except for matters of service fees, payment and reimbursement of expense, and termination of Consulting Services if further specified in the Statement of Work. During the term of an applicable Statement of Work, and for a period of six months thereafter, neither party will solicit for employment any employees, agents, or subcontractors of the other party or its affiliates who, within six months prior to such solicitation, had contact with the soliciting party based in whole or in part upon Consulting Services provided under this Agreement. The restrictions in this section shall be deemed not to apply to general solicitations for employment posted on Internet job sites or printed in newspapers or trade or professional journals.
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5. PROPRIETARY RIGHTS AND RIGHTS IN DELIVERABLES.
5.1 Ownership of Materials Used in the Consulting Services. Unless specifically provided in an Order, Customer shall supply all of the facilities; equipment; supplies; computer programs; information about Customer’s business, systems, software and needs; and other materials necessary for completion of the Consulting Services (“Customer Property”), and BMC shall supply the people described in the Order, the know-how and the tools necessary to provide the Consulting Services, which may include, among other things, software, templates, questionnaires, graphs, methodologies, models, charts and reports (“BMC Property”). Customer Property and copies and modifications of Customer Property will remain the sole property of Customer or if applicable, Customer’s licensors, and BMC Property and copies and modifications of BMC Property will remain the sole property of BMC or if applicable, BMC’s licensors. Customer hereby grants to BMC a royalty-free, paid-up, non-exclusive, non-sublicensable and non-transferable license to use the Customer Property for the purpose of providing the Consulting Services.
5.2 Deliverables. Deliverables are those created under the Order, including, but not limited to, software, software scripts, routines, libraries or other code, or appliances, methodologies, templates, tools, policies, records, working papers, reports, methodologies, know-how, data, or other intellectual property, written or otherwise, including any derivative works or modifications to the above, whether pre-existing or created during the performance of the Consulting Services and all proprietary and intellectual property rights embedded therein delivered as a result of the Consulting Services as specified under the Order. BMC owns all right, title and interest in the Deliverables. Provided Customer has paid in full for the Consulting Services that resulted in the Deliverables, BMC will deliver the Deliverables to Customer in accordance with the applicable Order. Subject to compliance with the terms of this Agreement and the applicable Order, BMC grants Customer a non-exclusive, non-transferable, non-sublicensable, royalty-free, paid-up license to use, create derivative works of and modify all Deliverables solely for its internal business operations.
5.3 Copyright Notice. Each party agrees to reproduce the copyright notice and any other legend or ownership notice on any copies made under the licenses granted pursuant to this Section 5.
5.4 Retention. Customer acknowledges that BMC provides similar services to other customers and that nothing in this Agreement shall be construed as operating to prevent BMC from carrying on such business. Further BMC may use ideas, concepts, or know-how developed or acquired by BMC during performance of the Consulting Services to the extent acquired by BMC’s personnel as impressions and general learning.
6. LIMITED WARRANTY. BMC warrants that it will perform the Consulting Services in conformance with generally accepted practices within the software services industry and in accordance with the Order. Customer must notify BMC of any breach of this warranty no later than 90 days after completion of the Consulting Services under the Order. Customer’s exclusive remedy and BMC’s entire liability under this warranty shall be for BMC to re-perform any non-conforming portion of the Consulting Services within a reasonable period of time, or if BMC cannot remedy the breach during such time period then refund the portion of the fee attributable to such non-conforming portion of the Consulting Services under the Order. This warranty will not apply to the extent Customer, its contractors or agents have modified any Deliverable, unless otherwise authorized by BMC in writing.
THIS WARRANTY AND CONDITION IS IN LIEU OF ALL OTHER WARRANTIES AND CONDITIONS. THERE ARE NO OTHER EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS, INCLUDING THE IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
7. INSURANCE. BMC will provide and maintain the following insurance, but only for losses arising out of BMC’s provision of Consulting Services under this Attachment:
7.1 Worker’s Compensation insurance as prescribed by the law of the state applicable to the employees performing the Consulting Services;
7.2 Employer’s Liability insurance with a limit of one million US dollars ($1,000,000) for each occurrence;
7.3 Commercial General Liability insurance with one million US dollars ($1,000,000) per occurrence combined single limit and five million US dollars ($5,000,000) general aggregate, including coverage for Products Liability and Completed Operations;
7.4 Automobile Liability insurance, including coverage for Hired and Non-owned vehicles of one million US dollars ($1,000,000) for combined single limit for bodily injury and/or property damage; and
7.5 Professional Liability insurance covering Errors and Omissions in the amount of one million US dollars ($1,000,000) for each occurrence and in the aggregate associated with Consulting Services performed under this AGREEMENT.
8. MUTUAL INDEMNITY. Each party shall indemnify and hold harmless the other party from all claims, liabilities or expenses for physical damage to real property or tangible personal property and bodily injury, including death, to the extent caused by the gross negligence or willful misconduct of the indemnifying party’s employees or contractors arising out of this Agreement and while at the Customer’s premises. The foregoing indemnities are contingent upon the party seeking indemnity giving prompt written notice to the indemnifying party of any claim, demand or action, and cooperating with the indemnifying party in the defense or settlement of any such claim, demand or action.
9. LIMITATION OF LIABILITY. Section 8 of the Base Agreement shall not apply to Customer’s breach of (i) BMC’s proprietary rights in the Deliverables and/or (ii) Section 5.2 of this Attachment B.
10. INDEPENDENT CONTRACTOR. All of the services performed by BMC under this Agreement will be performed as an independent contractor.
ATTACHMENT C
ON PREMISE SUBSCRIPTIONS ATTACHMENT
to the
BMC CLOUD SERVICES MASTER AGREEMENT
to the
BMC CLOUD SERVICES MASTER AGREEMENT
Except as otherwise provided herein, the terms of the Cloud Services Master Agreement (the “Base Agreement”) are incorporated into this On Premise Subscriptions attachment (the “Attachment”). Together, this Attachment and the Base Agreement (as incorporated into this Attachment) are referred to as the “Agreement” for purposes of Customer’s purchase and ongoing use of On Premise Subscriptions, only if On Premise Subscriptions are set forth on an Order referencing the Base Agreement. For purposes of this Agreement, the term “Subscription Services” as defined in the Base Agreement shall be extended to include On Premise Subscriptions. In the event of a conflict between the Base Agreement and the terms of this Attachment, the terms of this Attachment will control for Customer’s purchase of On Premise Subscriptions only. The parties agree that the following Sections of the Base Agreement do not apply to the On Premise Subscriptions provided under this Attachment: Section 3.1 (Access Rights), Section 3.4 (Customer Responsibilities and Restrictions), Section 6 (Limited Warranty) and Section 14 (Verification).
1. DEFINITIONS.
1.1	"Documentation" means the technical publications relating to the software, such as release notes, license entitlement descriptions, reference, user, installation, systems administrator and technical guidelines, included with the On Premise Subscription.
1.2	“Licensed Capacity” is the amount of each On Premise Subscription licensed as established in the Order.
1.3	“On Premise Subscription” is the object code of the software and all accompanying Documentation delivered to Customer, including all items delivered by BMC to Customer under Support.
2. LICENSE. Subject to the terms, conditions, payment requirements and restrictions set forth in this Agreement, BMC grants Customer a non-exclusive, non-transferable, non-sub-licensable term license to install in the Territory, access and use the On Premise Subscription during the term specified on the Order (i) up to the Licensed Capacity, (ii) for Customer’s and its Affiliates internal business operations, (iii) in accordance with the Documentation and the applicable Order, and (iv) make one copy of the On Premise Subscription for archival purposes only (collectively a "License"). Affiliates may use and access the On Premise Subscriptions under the terms of this Agreement, and Customer is responsible for its Affiliates compliance with the terms of this Agreement.
3. RESTRICTIONS. Customer will not: (a) copy, operate or use any On Premise Subscription in excess of the applicable Licensed Capacity or other than as set forth in the License above; (b) modify, delete or remove any ownership, title, trademark, patent or copyright notices (“Identification”) from any On Premise Subscription, or copy or partial copy of an On Premise Subscription; (c) disassemble, reverse engineer, decompile or otherwise attempt to derive any On Premise Subscription source code from object code, except to the extent expressly permitted by applicable law despite this limitation without possibility of contractual waiver; (d) distribute, rent, lease, sublicense or provide the On Premise Subscription to any third party; (e) use the On Premise Subscriptions in an outsourcing or service bureau environment on behalf of non-Affiliate third parties, or allow the On Premise Subscriptions to be used by an outsourcing or service bureau provider on Customer’s behalf; (f) provide a third party with the results of any functional evaluation, or performance tests, without BMC's prior written approval; or (g) attempt to disable or circumvent any of the licensing mechanisms within the On Premise Subscription.
4. ON PREMISE SUBSCRIPTION PERFORMANCE WARRANTY. BMC warrants that (a) the On Premise Subscription will perform in substantial accordance with its Documentation for a period of one year from the date of the first Order, (b) BMC has used commercially reasonable efforts consistent with industry standards to scan for and remove software viruses, and (c) other than passwords that may be required for the operation of the On Premise Subscription, BMC has not inserted any code that is not addressed in the Documentation and that is designed to delete, interfere with or disable the normal operation of the On Premise Subscription in accordance with the License. This warranty will not apply to any problems caused by hardware, Computers, or software other than the On Premise Subscription, or misuse of the On Premise Subscription, use of the On Premise Subscription other than as provided by the applicable License, modification of the On Premise Subscription, or claims made either outside the warranty period or not in compliance with the notice and access requirements set forth below. No warranty is provided for additional Licensed Capacity, On Premise Subscription provided pursuant to Support. BMC’s entire liability, and Customer’s exclusive remedy, for breach of the above warranty is limited to: BMC’s use of commercially reasonable efforts to have the On Premise Subscription perform in substantial accordance with its Documentation, or replacement of the non-conforming On Premise Subscription within a reasonable period of time, or if BMC cannot have the On Premise Subscription perform in substantial accordance with its Documentation replace the On Premise Subscription within such time period, then BMC will refund the amount paid by Customer for the License for that On Premise Subscription. Customer’s rights and BMC's obligations in this Section are conditioned upon Customer’s providing BMC during the warranty period (i) full cooperation and access to the On Premise Subscription in resolving any claim; and (ii) written notice addressed to the BMC Legal Department that includes notice of the claim, a complete description of the alleged defects sufficient to permit their reproduction in BMC’s development or support environment, and a specific reference to the Documentation to which such alleged defects are contrary.
EXCEPT FOR THE EXPRESS WARRANTIES IN THIS ATTACHMENT, THE ON PREMISE SUBSCRIPTION IS PROVIDED WITH NO OTHER WARRANTIES WHATSOEVER, AND BMC, ITS AFFILIATES AND LICENSORS DISCLAIM ALL OTHER WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. BMC DOES NOT WARRANT THAT THE OPERATION OF THE ON PREMISE SUBSCRIPTION WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT ALL DEFECTS CAN BE CORRECTED.
5. DELIVERY. For On Premise Subscriptions that are delivered electronically, upon request from BMC, Customer agrees to provide BMC with documentation supporting that the designated On Premise Subscription was received electronically. If Customer accepts any On Premise Subscription in a non-electronic format, there may be an additional charge and it is the sole responsibility of Customer to bear any sales/use tax obligation, penalties, and interest. All On Premise Subscriptions are licensed FCA (“Free Carrier” as per Incoterms 2000) shipping point. The On Premise Subscriptions are accepted on the date BMC delivers the On Premise Subscription to the Customer either physically or by providing access codes for electronic download, whichever occurs first, however, such acceptance will not affect the On Premise Subscription Performance Warranty provided in this Agreement.
6. AUDIT. If requested by BMC, and not more than once a year, Customer agrees to deliver to BMC, within 30 days of such request, as specified by BMC either (a) periodic product usage reports generated from specific products or (b) written periodic product usage reports, to be provided solely when the product does not generate reports (“Report”). Additionally, if requested by BMC not more than once a year, Customer agrees to allow BMC to perform an audit (“Audit”) at the locations where the On Premise Subscriptions are installed, during normal business hours to ensure compliance with the terms of this Agreement. Customer agrees to cooperate during any such Audit and to provide reasonable access to its information and systems. If an Audit or Report reveals that Customer has exceeded the Licensed Capacity for a On Premise Subscription, Customer agrees to pay the applicable fees for additional capacity upon receipt of invoice. If the understated capacity exceeds 5% of the Licensed Capacity of the applicable On Premise Subscription, then Customer agrees to also pay BMC’s reasonable costs of conducting the audit.
7. LIMITATION OF LIABILITY. Section 8 of the Base Agreement shall not apply to Customer’s breach of (i) BMC’s proprietary rights in the On Premise Subscriptions and/or (ii) Sections 2 and 3 of this Attachment C.
Effective December 17th 2018 to August 6th 2019
DownloadTable of Contents
BMC CLOUD SERVICES MASTER AGREEMENT
THIS CLOUD SERVICES MASTER AGREEMENT (“AGREEMENT”) GOVERNS YOUR FREE TRIAL, IF ANY, OF THE SUBSCRIPTION SERVICES.
IF YOU PURCHASE THE SUBSCRIPTION SERVICES, THIS AGREEMENT WILL ALSO GOVERN YOUR PURCHASE AND ONGOING USE OF THE SUBSCRIPTION SERVICES.
BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SUBSCRIPTION SERVICES.
You may not access the Subscription Services if you are BMC’s direct competitor, except with BMC’s prior written consent. In addition, you may not access the Subscription Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.
This Agreement was last updated on December 17, 2018. This Agreement is between the entity or individual entering into this Agreement (“Customer”) and the BMC Contracting Entity for the applicable region as described in Section 12 (“BMC”). It is effective between Customer and BMC as of the date of your acceptance of this Agreement. If Customer has a fully executed BMC Cloud Services Master Agreement then such fully executed BMC Cloud Services Master Agreement supersedes and replaces any clickwrap or click-through agreements (or other similar agreements) that Customer may be required to accept as a part of accessing or using the Subscription Services. For Customer’s convenience, prior versions of this Agreement are available at https://www.bmc.com/legal/csma.html.
FREE TRIAL.
BMC may make the Subscription Services available to Customer on a trial basis free of charge. If BMC offers Customer a free trial, it will run until the earlier of (a) the end of the trial period stated on the trial registration web page or (b) the start date of any Order for purchase of the Subscription Services. Additional trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.
ANY DATA CUSTOMER ENTERS INTO THE SUBSCRIPTION SERVICES, AND ANY CUSTOMIZATIONS MADE TO THE SUBSCRIPTION SERVICES BY OR FOR CUSTOMER, DURING A FREE TRIAL WILL BE PERMANENTLY LOST UNLESS CUSTOMER PURCHASES A SUBSCRIPTION TO THE SAME SUBSCRIPTION SERVICES AS THOSE COVERED BY THE TRIAL, OR EXPORTS SUCH DATA BEFORE THE END OF THE TRIAL PERIOD.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THE AGREEMENT, DURING ANY FREE TRIAL PERIOD THE SUBSCRIPTION SERVICES ARE PROVIDED “AS IS” WITH NO WARRANTY.
1.	DEFINITIONS.
1.1 “Affiliate” is an entity that controls, is controlled by or shares common control with BMC or Customer, where such control arises from either (a) a direct or indirect ownership interest of more than 50% or (b) the power to direct or cause the direction of the management and policies, whether through the ownership of voting stock by contract, or otherwise, equal to that provided by a direct or indirect ownership of more than 50%.
1.2 “Subscription Services” means the generally available hosted service which packages web-based access and the right-to-use the supported applications, installed agents and associated reference, user and technical guides.
1.3 “Capacity” means the amount of access to the Services purchased as specified in an Order, which is counted in accordance with the Unit of Measure described in the Order.
1.4 “Customer Data” means all electronic data or information (a) submitted to the Subscription Services by Customer, a third party on behalf of Customer, or as directed by Customer or (b) collected, processed or returned by the Subscription Services.
1.5 “Order” means (i) the agreed ordering document for the purchase of the Subscription Services, (ii) that is subject to this Agreement, and (iii) that identifies the terms of the purchase and fees to be paid. The term “Order” includes Customer’s online registration for and purchase of the Subscription Services, If any.
1.6 “User Guide” means the online help, functional guide and technical specifications for the Subscription Services, as updated by BMC from time to time.
2.	 SCOPE. Subject to the terms of this Agreement, Customer may purchase and BMC will provide Customer with access to the Subscription Services as set forth in this Agreement and the applicable Order. Subject to the Attachments to this Agreement, Customer may also purchase BMC Platform Services, BMC Consulting Services and BMC On Premise Subscription Services. In the event of a direct conflict between any Order and the terms of this Agreement, the terms of the Order will control only if the Order is executed by an authorized representative of each party. Each Order is deemed to be a discrete contract, separate from each other Order, unless expressly stated otherwise therein. Orders may be entered under this Agreement by and between (a) BMC or an Affiliate of BMC; and (b) Customer or an Affiliate of Customer. With respect to an Order, the terms “BMC” and “Customer” as used in this Agreement will be deemed to refer to the entities that execute that Order, the Order will be considered a two party agreement between such entities, and BMC will separately invoice the Customer named in the Order for the associated fees. Orders may also be placed via a BMC authorized reseller. Neither execution of this Agreement, nor anything contained herein, shall obligate either party to enter into any Orders.
3. ACCESS TO SUBSCRIPTION SERVICES.
3.1 Access Rights. Subject to Customer’s payment of applicable fees and to the terms of this Agreement, BMC will provide Customer with worldwide access to the Subscription Services in accordance with the Order (i) up to the Capacity, (ii) for Customer’s and its Affiliates’ internal business operations, (iii) in accordance with the User Guide and the applicable Order. Customer may exercise its rights under this Section 3.1 through its service providers, outsourcers, employees, consultants, contractors, agents, and Affiliates (all, “Users”).
3.2 BMC Subscription Services Support. BMC will provide the support described at http://www.bmc.com/support/review-policies (“Support”) to Customer for the Subscription Services, which may be changed by BMC upon prior notice to customer, provided that such changes do not materially degrade Support during the term of an Order.
3.3 Use of Subcontractors. Customer acknowledges and agrees that BMC uses subcontractors to provide portions of the Subscription Services. BMC will provide a list of its current subcontractors upon Customer’s written request. BMC is responsible for the performance of all subcontractors providing any of the Subscription Services.
3.4 Customer Responsibilities and Restrictions.
(a) 	 Customer will (i) maintain the confidentiality of all authentications and passwords for the Subscription Services and immediately notify BMC if it becomes aware that an unauthorized party has gained access such authentications and passwords, (ii) be responsible for use of the Subscription Services by its Users in compliance with this Agreement, (iii) prevent unauthorized access to, or use of, the Subscription Services, and notify BMC promptly of any such unauthorized access or use, (iv) comply with all applicable laws in using the Subscription Services, and (v) be responsible for obtaining its own Apple Push Notification certificate, if the Subscription Services are used to manage devices running iOS. Customer is responsible for the creation and implementation of a privacy policy and end user agreement, if applicable, which will set forth the guidelines of how Customer uses and protects the data and personal information of its Users, and how said Users may utilize the Subscription Services.
(b) 	 Customer will not (i) modify, copy or create derivative works based on the Subscription Services; (ii) create Internet “links” to or reproduce any content forming part of the Subscription Services, other than for its own internal business purposes; (iii) disassemble, reverse engineer, or decompile the Subscription Services or part thereof; (iv) interfere with or disrupt the integrity or performance of the Subscription Services; (vi) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortuous material, or send or store material in violation of any third party’s privacy rights via the Subscription Services; (vii) send or store viruses or malicious code via the Subscription Services; (viii) attempt to gain unauthorized access to the Subscription Services or its related software, systems, platforms or networks, including any form of security and/or penetration testing; (ix) use any components provided with the Subscription Services separately from the Subscription Services; or (x) distribute, rent, lease or provide the Subscription Services to any third party or use it in a service bureau, outsourcing environment, or for the processing of third party data.
4.	FEES AND PAYMENT.
4.1 Fees. The fees payable for the Subscription Services and the payment period for such fees will be set forth in and paid in accordance with the Order. All invoices are due upon receipt of invoice.
4.2 Late Fees. The unpaid balance of each late payment bears interest at a rate equal to the lesser of 1% per month or the maximum amount permitted by law. All fees are nonrefundable and BMC will not provide any refunds or credits for partially used periods of the Subscription Services.
4.3 Taxes. Customer will pay or reimburse BMC or, when required by law, the appropriate governmental agency, for taxes of any kind, including sales, use, VAT, excise, customs duties, withholding, property, and other similar taxes (other than taxes based on BMC’s net income or arising from the employment relationship between BMC and its personnel) imposed in connection with the fees paid for the Subscription Services, which are exclusive of these taxes.
5. TERM, SUSPENSION AND TERMINATION.
5.1 Term. This Agreement begins on the Effective Date and will remain in effect unless terminated pursuant to Section 5.2 below, regardless of the billing frequency selected in the Order.
5.2 Termination.
(a)	Termination for Convenience. Customer may terminate this Agreement by providing BMC with at least 30 days prior written notice; provided, however, such termination will have no effect on Orders in effect at the time of such termination. Orders may not be terminated for convenience unless otherwise specified therein. Customer may notify BMC of its intent to terminate by emailing BMC at order_services@bmc.com.
(b) 	Termination for Cause. Either party may terminate this Agreement and/or an Order for cause: (i) upon 30 days’ written notice of a material breach to the other party if such breach remains uncured at the expiration of such period; or (ii) immediately if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
5.3 Suspension of Subscription Services for Cause. In addition to its other rights and remedies, BMC reserves the right, without liability to Customer, to immediately suspend any and all access to the Subscription Services if Customer commits a material breach of this Agreement or any relevant Order until such material breach is cured.
5.4 Effects of Termination. Upon termination or expiration of any Order or this Agreement, all rights and Licenses granted thereunder will terminate and Customer will make no further use of the Subscription Services. No termination will relieve the Customer of the obligation to pay any fees accrued or payable to BMC pursuant to any Order. Upon written request by Customer made within 30 days after the effective date of termination, BMC will make the Customer Data available to Customer for retrieval in an industry standard format. After such 30-day period, BMC shall have no obligation to maintain any Customer Data and will thereafter delete Customer Data.
6. LIMITED WARRANTY.
6.1 Warranties and Limited Remedies. BMC warrants to Customer that:
(a)	the online availability of the Subscription Services will be maintained in accordance with the service levels attached to the applicable Order, if any (the “Service Level Agreement” or “SLA”). Customer’s exclusive remedy and BMC’s sole obligation for breach of the warranty in this Section 6.1(a) is described in the Service Level Agreement; and
(b)	the Subscription Services (i) will perform in substantial accordance with the then-current on-line User Guide available via the Subscription Services and (ii) will be performed in a manner consistent with industry standards reasonably applicable to the provision thereof. Customer’s exclusive remedy and BMC’s sole obligation for breach of the warranty in this Section 6.1(b) will be BMC’s use of commercially reasonable efforts to have the Subscription Services perform in substantial accordance with the User Guide, or replace the non-conforming portion of the Subscription Services within a reasonable period of time, or if BMC cannot have the Subscription Services perform in substantial accordance with the User Guide or replace the Subscription Services within such time period, then BMC will refund the amount paid by Customer for the Subscription Services, pro-rated from the date of the notice of the claim. Customer’s rights and BMC’s obligations in this Section 6.1(b) are conditioned upon Customer’s providing BMC with written notice of the claim, a complete description of the alleged defects and a specific reference to the User Guide to which such alleged defects are contrary.
6.2 Disclaimer. CUSTOMER ACKNOWLEDGES THAT, EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, BMC, ITS AFFILIATES AND LICENSORS MAKE NO WARRANTY, EXPRESS, IMPLIED OR STATUTORY WITH RESPECT TO THE SUBSCRIPTION SERVICES OR USE THEREOF. BMC, ITS AFFILIATES AND LICENSORS HEREBY EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY THAT SUBSCRIPTION SERVICES WILL BE UNINTERRUPTED, ERROR FREE OR WITHOUT DELAY, AND THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INTERFERENCE, NON-INFRINGEMENT AND INFORMATION CONTENT.
7. PROPRIETARY RIGHTS AND CONFIDENTIALITY.
7.1 Proprietary Rights. BMC, its Affiliates or licensors retain all right, title and interest to the Subscription Services and all related intellectual property and proprietary rights. The Subscription Services are protected by applicable copyright, trade secret, industrial and other intellectual property laws. BMC owns all right, title and interest in all software, programming, documentation, templates, questionnaires, methodologies, models, charts, reports, ideas, features, content, functions, graphics and any other items provided as part of the Subscription Services (“Service Items”) and access to and use of the relevant Service Items will be governed by the terms of this Agreement. Subject to (i) BMC’s or its licensor’s ownership of any Service Items contained in Customer Applications as defined in Attachment A and (ii) section 3.4 (b) (i) of the Agreement, Customer owns all rights, title, and interest in Customer Applications, including all proprietary and intellectual property rights. BMC reserves any rights not expressly granted to Customer. Customer shall not access the Subscription Services in order to build a competitive product or service or copy any ideas, features, functions or graphics of the Subscription Services. “Confidential Information” means all proprietary or confidential information that is disclosed to the recipient (“Recipient”) by the discloser (“Discloser”), and includes, among other things (i) any and all information relating to products or services provided by a Discloser, its customer-related and financial information, software code, flow charts, techniques, specifications, development and marketing plans, strategies, and forecasts; (ii) as to BMC, and its licensors, the Subscription Services and Service Items; and (iii) the terms of this Agreement, including without limitation, pricing information. Confidential Information does not include information that Recipient can show: (a) was rightfully in Recipient’s possession without any obligation of confidentiality before receipt from the Discloser; (b) is or becomes a matter of public knowledge through no fault of Recipient; (c) is rightfully received by Recipient from a third party without violation of a duty of confidentiality; or (d) is or was independently developed by or for Recipient. Recipient may not disclose Confidential Information of Discloser to any third party or use the Confidential Information in violation of this Agreement. The Recipient (i) will exercise the same degree of care and protection with respect to the Confidential Information of the Discloser that it exercises with respect to its own Confidential Information and (ii) will not, either directly or indirectly, disclose, copy, distribute, republish, or allow any third party to have access to any Confidential Information of the Discloser. Notwithstanding the foregoing, Recipient may disclose Discloser’s Confidential Information to Recipient’s employees and agents who have need to know provided that such employees and agents have legal obligations of confidentiality substantially the same (and in no case less protective) as the provisions of this Agreement.
7.2 Notification Obligation. If the Recipient becomes aware of any unauthorized use or disclosure of Discloser’s Confidential Information, then Recipient will promptly and fully notify the Discloser of all facts known to it concerning such unauthorized use or disclosure. In addition, if the Recipient or any of its employees or agents are required (by oral questions, interrogatories, requests for information, or documents in legal proceedings, subpoena, civil investigative demand, or other similar process) to disclose any of Discloser’s Confidential Information, the Recipient will not disclose the Discloser’s Confidential Information without providing the Discloser with commercially reasonable advance prior written notice to allow Discloser to seek a protective order or other appropriate remedy or to waive compliance with this provision. In any event, the Recipient will exercise its commercially reasonable efforts to preserve the confidentiality of the Discloser’s Confidential Information, including, without limitation, cooperating with Discloser to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded to the Confidential Information.
7.3 Customer Data. As between BMC and Customer, Customer owns all rights, title and interest in and to Customer Data. Customer Data is deemed Confidential Information under this Agreement. BMC will use the Customer Data only as necessary to provide the Subscription Services in accordance with this Agreement. At any time during the term of the Subscription Services, Customer may request copies of all Customer Data from the Subscription Services. Customer is responsible for complying with all legal and contractual requirements, including its agreements with third parties. With the exception of Customer Data collected by the Subscription Services, Customer is solely responsible for the transmission of Customer Data to BMC and to the Subscription Services. Customer is solely responsible for the encryption of any Customer Data.
7.4 Suggestions. Customer agrees that BMC shall have a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into any BMC products or services any suggestions, enhancement requests, recommendations or other feedback provided by Customer relating to the Subscription Services.
8. DISCLAIMER OF DAMAGES AND LIMITS ON LIABILITY.
8.1 DISCLAIMER OF DAMAGES. EXCEPT FOR EACH PARTY’S RESPONSIBILITIES IN SECTION 9, NEITHER PARTY OR ITS AFFILIATES ARE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES RELATING TO OR ARISING OUT OF THIS AGREEMENT OR THE SUBSCRIPTION SERVICES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST COMPUTER USAGE TIME, AND DAMAGE TO, OR LOSS OF USE OF, DATA), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND IRRESPECTIVE OF ANY NEGLIGENCE OF A PARTY OR WHETHER SUCH DAMAGES RESULT FROM A CLAIM ARISING UNDER TORT OR CONTRACT LAW.
8.2 LIMITS ON LIABILITY. EXCEPT FOR EACH PARTY’S RESPONSIBILITIES IN SECTION 9, NEITHER PARTY OR ITS AFFILIATES SHALL HAVE AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SUBSCRIPTION SERVICES, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEEDING THE AMOUNTS ACTUALLY PAID BY AND DUE FROM CUSTOMER PURSUANT TO THE ORDER(S) GIVING RISE TO LIABILITY THAT ARE IN EFFECT AS OF SUCH DATE.
9. INFRINGEMENT CLAIMS.
9.1 Indemnification by BMC. If a third party asserts a claim against Customer asserting that Customer’s use of the Subscription Services, including Platform Services, Deliverables and Licenses as defined in the Attachments to this Agreement, in accordance with this Agreement violates that third-party’s patent, trade secret or copyright rights (“Infringement Claim”), then BMC will, at its own expense: (a) defend or settle the Infringement Claim; and (b) indemnify Customer for any damages finally awarded against Customer based on infringement by the Subscription Services, including court costs and reasonable attorney’s fees. If BMC believes the Subscription Services may violate a right, then BMC will, at its expense: (a) modify the Subscription Services, or (b) procure the right to continue using the Subscription Services, and if (a) or (b) are not commercially reasonable, terminate Customer's right to use the Subscription Services and issue a pro-rata refund for the unexpired pre-paid portion of such Subscription Services.
9.2 Indemnification by Customer. Subject to the terms of this Agreement, if a third party asserts a claim against BMC asserting that the (i) Customer Data, (ii) Customer Applications as defined in Attachment A, (iii) Customer Property as defined in Attachment B or (iv) Customer’s use of the Subscription Services in violation of this Agreement violates that third-party’s patent, trade secret or copyright rights (“Claim”), Customer will, at its own expense: (a) defend or settle the Claim; and (b) indemnify BMC for any damages finally awarded against BMC based on the Claim, including court costs and reasonable attorney’s fees.
9.3 Indemnity Process. Neither party’s obligations under this Section will apply if: (a) the indemnifying party’s legal department does not receive prompt, detailed written notice of the Infringement Claim/Claim from the party being indemnified, (b) the indemnifying party is not able to retain sole control of the defense of the Infringement Claim/Claim and all negotiations for its settlement or compromise, or (c) the indemnifying party does not receive all reasonable assistance from the party being indemnified. Neither party will bind the indemnified party to a monetary obligation in a settlement or compromise, or make an admission on behalf of the indemnified party, without obtaining that party’s prior consent.
9.4 THIS SECTION 9 CONTAINS EACH PARTY'S EXCLUSIVE REMEDIES AND THE INDEMNIFYING PARTY'S SOLE LIABILITY FOR INFRINGEMENT CLAIMS/CLAIMS, RESPECTIVELY.
10. EXPORT CONTROLS. Customer represents and warrants that it: a) will comply with the United States Export Administration Regulations and other U.S. or foreign export regulations; b) no individual accessing or using the Subscription Services is a citizen of or from an embargoed country (currently Iran, Syria, Sudan, Cuba and North Korea); c) is not prohibited from receiving the Subscription Services under such regulations; d) will not acquire the Subscription Services for a person who is restricted under such regulations; e) will not use the Subscription Services in contradiction to such regulations; and f) will not use the Subscription Services for prohibited uses, including but not limited to nuclear, chemical, missile or biological weapons related end uses. For Subscription Services exported from Ireland, EC No. 428/2009 sets up a Community regime for control of exports of dual-use items and technology, and it is declared that this Subscription Services is intended for civil purposes only. Therefore, Customer agrees to comply with both the U.S. regulations and those E.U. regulations and will not export in violation of the regulations and without all proper licenses. Customer’ failure to comply with these regulations will result in an automatic termination of the Agreement and all rights to the Subscription Services thereunder.
11. GOVERNING LAW AND DISPUTE RESOLUTION. Any controversy, dispute or claim arising out of or relating to this Agreement, or to the formation, interpretation, breach, termination, or validity thereof (each, a “Controversy”) will be resolved as follows:
(i)	UNITED STATES. If both parties to this Agreement are entities incorporated under the law of any state in the United States, the Controversy shall be tried in either state or federal court located in Houston, Texas and the laws of the State of Texas shall govern. Both parties hereby submit to the exclusive jurisdiction of the courts in Houston, Texas and waive all defenses based on forum non conveniens.
(ii)	EMEA. If both parties to this Agreement are entities incorporated in countries in the Europe, Middle East, or Africa regions, the Controversy shall be tried in the District Court located in Amsterdam, the Netherlands and the substantive laws of the Netherlands shall govern. Both parties hereby submit to the exclusive jurisdiction of the District Court in Amsterdam, the Netherlands and waive all defenses based on forum non conveniens.
(iii)	ASIA PACIFIC. If both parties to this Agreement are entities incorporated in countries in the Asia Pacific region, the arbitration shall be held in Singapore under the then-applicable rules of the Singapore International Arbitration Centre and the substantive laws of Singapore will govern.
(iv)	OTHER REGIONS. In all other instances, the arbitration shall be held in New York City, New York, under the then-applicable international rules of the American Arbitration Association and the substantive laws of the State of Texas will govern.
For all arbitrations conducted hereunder: (a) the arbitration shall be conducted in English; (b) the relevant arbitral institution shall determine the number of arbitrators, but any Controversy in which the amount in dispute is greater than $10 million USD shall be decided by three arbitrators, with each party having the right to select one arbitrator; (c) the costs of such arbitration shall be borne equally, pending the arbitrator’s award; (d) the arbitration award rendered shall be final and binding on the parties, shall not be subject to appeal to any court and shall be enforceable in any court having jurisdiction over the parties; (e) the arbitration proceedings, award and pleadings shall all be confidential, unless disclosure of particular information is required for purposes of enforcing/challenging the award or to meet local securities law requirements; and (f) the party prevailing in arbitration shall be entitled to recover its reasonable attorneys’ fees and the necessary costs incurred in connection with the arbitration.
The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. Nothing in this Agreement shall be deemed as preventing either party from seeking immediate injunctive relief from any court having jurisdiction over the parties and the subject matter of the dispute.
12.	The following BMC contracting entities apply to this Agreement:
Region | Contracting Entity | Address of Contracting Entity |
United States and Latin America South (not a specified Central or South America country below) | BMC Software, Inc. | 2103 CityWest Boulevard, Houston, Texas 77042 |
Canada | BMC Software Canada Inc. | 50 Minthorn Boulevard, Suite 200 Markham, Ontario L3T 7X8 Canada |
EMEA (Europe, Middle East and Africa) | BMC Software Distribution B.V. | Boeing Avenue 245, 1119 PD Schiphol Rijk, The Netherlands |
Brazil | BMC Software do Brasil Ltda. | Av. das Nações Unidas, 8.501 – 22º Andar Condomínio Eldorado Business Tower São Paulo, Brasil – 05425-070 |
Mexico | BMC Software Distribution de México, S.A. de C.V. | Volcán 150, Piso 4, Col. Lomas de Chapultepec, C.P. 11000, Deleg. Miguel Hidalgo, Ciudad de México |
Argentina | BMC Software de Argentina S.A. | Ing. Butty 220 – Piso 18, Buenos Aires, Republica Argentina, C1001AFB |
S.E.A (Southeast Asia), Australia, New Zealand, Hong Kong, Taiwan | BMC Software Asia Pacific Pte Ltd | 600 North Bridge Road, #20-01/10 Parkview Square, Singapore 188778 |
China | BMC Software (China) Limited | Room 502, Level 5, Tower W1, The Towers, Oriental Plaza, No. 1 East Chang An Ave., Dong Cheng Dist., Beijing 100738, China |
Japan | BMC Software K.K. | Harmony Tower 24th Floor, 1-32-2 Honcho, Nakano-ku, Tokyo, 164-8721 |
Korea | BMC Software Korea Ltd | 24th Fl., ASEM Tower, 1517, Yeongdong-daero,Gangnam-gu, Seoul 135-798, Korea South |
13. U.S. FEDERAL ACQUISITIONS. This Section applies only to acquisitions of the commercial Subscription Services and Documentation subject to this Agreement by or on behalf of the United States Government, or by any prime contractor or subcontractor (at any tier) under any contract, grant, cooperative agreement or other activity with the United States Government. In the event the Subscription Services are delivered to the United States Government, the United States Government hereby agrees that the Subscription Services qualify as “commercial items” within the meaning of the Federal acquisition regulation(s) applicable to this procurement. The terms and conditions of this Agreement shall pertain to the United States Government’s use and disclosure of the Product, and shall supersede any conflicting contractual terms and conditions. The following additional statement applies only to acquisitions governed by DFARS Subpart 227.4 (October 1988): “Restricted Rights – Use, duplication and disclosure by the Government is subject to restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 (Oct. 1988).”
14. DATA PROTECTION. The processing of Customer Data under this Agreement is governed by the BMC Data Processing Agreement set forth on the Order.
15. VERIFICATION. Customer agrees that BMC or its agent may monitor the Subscription Services to ensure Customer’s compliance with the terms of this Agreement. If such monitoring reveals that Customer has exceeded the Capacity for the Subscription Services, Customer agrees to pay the applicable fees for additional capacity upon receipt of an invoice from BMC. If Customer to fails to pay fees for such additional capacity, BMC may suspend Customer’s access to the Subscription Services until such fees are paid in full.
16. MISCELLANEOUS TERMS. BMC is not liable for its failure to perform any of its obligations under this Agreement during any period in which performance is delayed by Customer or circumstances beyond BMC's reasonable control. The parties are independent contractors and this Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties. Customer will receive system notifications from BMC and its licensors, if applicable (i.e. planned downtime notices, etc). This Agreement, including the Attachments and Orders constitutes the entire agreement between Customer and BMC and supersedes any prior or contemporaneous negotiations or agreements, whether oral or written concerning the Subscription Services. There are no representations, promises, warranties, covenants, or undertakings between the parties other than those expressly set forth in this Agreement. There are no third-party beneficiaries to this Agreement; Customer is not entering into a contractual relationship with BMC’s licensors and BMC’s licensors have no liability to Customer. Except as provided in Section 2 above, no modification or waiver of any provision hereof will be effective unless made in a writing signed by both BMC and Customer. Customer may not assign or transfer this Agreement or the Subscription Services to a third party, whether by merger, operation of law, or otherwise. Should any provision of this Agreement be invalid or unenforceable, the remainder of the provisions will remain in effect. Any additional or conflicting terms of any Customer purchase order are rejected by BMC and do not apply. The Subscription Services may contain hyperlinks to websites controlled by parties other than BMC. BMC is not responsible for and does not endorse the content or accept any responsibility for Customer’s use of these websites. Customer should refer to the policies posted by other websites regarding privacy and other topics regarding data privacy before using them.
Attachments incorporated into Agreement |
Attachment A – Platform Services Attachment |
Attachment B – Consulting Services Attachment |
Attachment C – On Premise Subscription Services Attachment |
PLATFORM SERVICES ATTACHMENT
to the
BMC CLOUD SERVICES MASTER AGREEMENT
to the
BMC CLOUD SERVICES MASTER AGREEMENT
Except as otherwise provided herein, the terms of the Cloud Services Master Agreement (the “Base Agreement”) are incorporated into this Platform Services attachment (the “Attachment”). Together, this Attachment and the Base Agreement (as incorporated into this Attachment) are referred to as the “Agreement” for purposes of Customer’s access and use of Platform Services, only if the Platform Services are set forth on an Order referencing the Base Agreement. For purposes of this Agreement, the term “Subscription Services” as defined in the Base Agreement shall be extended to include the Platform Services. In the event of a conflict between the Base Agreement and the terms of this Attachment, the terms of this Attachment will control for Customer’s access and use of the Platform Services only.
1. SCOPE. Subject to the terms of this Agreement, BMC will provide Customer with access to the Platform Service named in the applicable Order. Customer may only use the Platform Services to store, retrieve, query, serve, and process Customer Data that is owned, licensed or lawfully obtained by Customer. As part of Customer’s subscription to the Platform Services, Customer may be allowed to run certain Applications on the Platform Services that are either (i) sold by BMC, (ii) sold by a Third Party Publisher, or (iii) owned or licensed by Customer.
2. DEFINITIONS.
2.1	“Application” is the object code, its definitional structures, and data created to fulfill a particular purpose, which runs on the Platform Services. An Application may also include its documentation and User Guide.
2.2 “BMC Application Services” means a generally available Application that is provided as a subscription by BMC to customers, including all items delivered by BMC to Customer under Support related to such Application.
2.3 “Customer Applications” means Applications that are owned or licensed by Customer, not including any Third Party Applications, and which run on the Platform Services.
2.4 “Customer Data” means all information uploaded or entered by Customer to the Platform Services, excluding Customer Applications.
2.5 “Development Platform” means a BMC provided development platform which allows Customer to develop a custom application to run on the Platform Services.
2.6 “Platform Services” means the generally available BMC-provided platform specified on the Order and its capabilities to run Applications. The specific Platform Services being will be identified in the Order.
2.7 “Third Party Applications” means Applications that are owned by a Third Party Publisher with a valid independent software vendor agreement in place with BMC, and are licensed by said Third Party Publisher to customers.
2.8 “Third Party Publisher” means a party other than BMC or a BMC Affiliate that is the owner and licensor of a Third Party Application, and has a valid independent software vendor agreement in place with BMC. For the sake of clarity, Customer is informed that Third Party Publishers are not BMC Subcontractors.
3. BMC PLATFORM SERVICES.
3.1 BMC Platform Services Support. BMC will provide Support only for Platform Services and BMC Application Services. Customer is responsible for its own support for Customer Applications and Third Party Applications.
3.2 Notifications to Customer. Any general notifications from BMC Operations to Customer will be sent to the Customer contact stated in the Customer Technical Contact Information section of the Order. The Customer contact in the Order has been assigned by Customer as the Customer contact for operational issues that may arise. Customer shall notify BMC of any change to the Customer contact details in writing, which may include via e-mail.
3.3 Subcontractors. For the sake of clarity, Customer is informed that Third Party Publishers are not BMC Subcontractors.
3.4 Customer Responsibilities. In addition to the Customer Responsibilities set forth in the Base Agreement, Customer may not (i) transfer an Application outside of the Platform Services; or (ii) tamper with or circumvent any controls or make unauthorized copies of a BMC Application.
4. CUSTOMER APPLICATIONS AND THIRD PARTY APPLICATIONS.
4.1 Any Third Party Applications or Customer Applications that run on the Platform Services are hereby excluded from the defined terms “Subscription Services”, “BMC Application Services” and “Platform Services”. Such Third Party Applications are governed by the terms provided with the Third Party Applications, and are by and between Customer and the applicable Third Party Publisher. Customer and Third Party Publishers shall agree upon their respective obligations with respect to the processing of personal data by Third Party Publishers. Customer acknowledges and agrees that this Agreement does not govern Customer’s subscription, use and access of any Third Party Applications or Customer Applications, and said Third Party Applications and Customer Applications are specifically excluded from this Agreement.
4.2 Customer may utilize the Development Platform to create an Application to run on the Platform Services. Customer’s use of the Development Platform is governed by the terms of this Agreement subject to the restrictions set forth in sections 4.2.1 to 4.2.6 below. Customer’s development of an Application must meet the best practices development guidelines set forth in the User Guide. Each Customer Application shall at all times materially conform to policies and best practices set forth in the User Guide. Prior to the deployment of any Customer Applications in a production or non-production environment of the Platform Services, Customer must conduct security and functional tests of each Customer Application and submit the results of such tests to BMC for review. BMC reserves the right to reject Customer’s deployment request of a Customer Application based on the results of Customer’s security and functional tests. Additionally, BMC reserves the right, during the term of this Agreement, to request Customer conduct additional security and functional tests and provide the results of said tests to BMC for review. Notwithstanding the foregoing, Customer must ensure that at all times Customer Applications are secure.
4.2.1 Scope of use. The right to access and use the Development Platform is granted solely for the purpose of performing non-production application development work on the Development Platform.
4.2.2 Restrictions of use. Customer agrees not to:
- use the Development Platform to (1) process production data or for any other production purposes, including but not limited to publishing digital applications, or (2) distribute applications;
- use the Development Platform with data or information that has not been backed up; or
- modify, delete or remove any ownership, title, trademark, patent or copyright notices.
4.2.3 Customer Responsibilities. Customer is responsible for acquiring all necessary and required licenses for the use of any third party software, source code and/or libraries Customer may use as part of its development with the Development Platform. In addition to its other rights and remedies, BMC reserves the right, without liability to Customer, to immediately, at any time and for any reason refresh Customer’s instance of the Development Platform. Upon BMC’s refreshing of Customer’s instance of the Development Platform, Customer may lose all Customer Data submitted to or stored in said instance of the Development Platform. Upon expiration or termination of the applicable Ordert, BMC may destroy any Customer Data submitted to or stored therein. Customer is responsible for backing up any development work with Customer Data outside of the Development Platform.
4.2.4 Open Source. Customer may not use any software, library, utility, tool, or other computer or program code (“Code”) with the Subscription Services that in any way that would (i) weaken BMC’s intellectual property rights in the Services, or (ii) require the Subscription Services to become or be disclosed or distributed as Open Source Software. For purposes of this Section, “Open Source Software” means any Code that is substantially similar to, (A) the Affero General Public License, (B) the GNU General Public License (GPL) or Lesser/Library GPL (LGPL), (C) the Artistic License (e.g. PERL), (D) the Mozilla Public License, (E) the Netscape Public License, (F) the Sun Community Source License (SCSL), (G) the Sun Standards License (SISL), or (H) any “copyleft” license, or any other license that requires as a condition of use, reproduction, modification, or distribution that such Code or other software or computer code distributed with it: (1) be disclosed or distributed in source code form; (2) be licensed for the purpose of creating derivative works; (3) be licensed under terms that allow reverse engineering, reverse assembly, or disassembly of any kind; (4) be subject to a patent non-assert or royalty-free patent license; or (iv) be redistributable at no charge.
4.2.5 No Support. BMC, its affiliates, or licensors do not provide Support for the Development Platform.
4.2.6 Disclaimer of Warranty, Limitation of Liability and Exclusive Remedy. Notwithstanding anything to the contrary in the applicable Order or this Agreement:
- THE DEVELOPMENT PLATFORM IS PROVIDED “AS IS” WITHOUT ANY WARRANTY OF ANY KIND WHATSOEVER. BMC, ITS AFFILIATES AND LICENSORS DO NOT WARRANT THAT THE DEVELOPMENT PLATFORM WILL SATISFY CUSTOMER’S REQUIREMENTS, THAT THE DEVELOPMENT PLATFORM IS WITHOUT DEFECT, VIRUS OR ERROR FREE, WITHOUT DELAY, OR THAT THE OPERATION OF THE DEVELOPMENT PLATFORM WILL BE UNINTERUPTED. BMC, ITS AFFILIATES AND LICENSORS DISCLAIM ANY AND ALL REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, MADE WITH RESPECT TO THE DEVELOPMENT PLATFORM, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INTERFERENCE AND INFORMATION CONTENT; AND
- NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY, FOR ANY CLAIM, LOSS, DAMAGE OR EXPENSE FOR INDIRECT, SPECIAL, CONSEQUENTIAL, PUNITIVE OR INCIDENTAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE DEVELOPMENT PLATFORM (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST COMPUTER USAGE TIME, AND DAMAGE TO, OR LOSS OF USE OF, DATA), EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBLITY OF SUCH DAMAGES. EITHER PARTY’S ENTIRE LIABILITY AND THE OTHER PARTY’S EXCLUSIVE REMEDY FOR DIRECT DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE DEVELOPMENT PLATFORM, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, IS LIMITED TO $100.
4.3 License to Customer Applications. Subject to the terms and conditions of this Agreement, Customer hereby grants BMC a worldwide, limited, nonexclusive license during the term of the applicable Order for the Platform Services to host, copy, transmit, adapt and display Customer Applications solely for the purpose of fulfilling BMC’s obligations under this Agreement.
4.4 Functionality of Customer Applications. Customer is solely responsible for the operation of Customer Applications, including but not limited to any information stored in or transmitted by Customer Applications. Customer is responsible for monitoring the usage of each Customer Application. Customer is responsible for the configuration, functionality, performance, compliance with applicable data protection laws and security of all Customer Applications, including any interfaces used to connect to Customer Applications.
4.5 Use of Customer Applications. Customer has sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of Customer Applications and all Customer Data entered therein by Customer, its Users or on Customer’s behalf, the means by which Customer acquired such Customer Data, and the use of such Customer Data. Without limiting Customer’s obligations under the terms of this Agreement, Customer must (i) provide any necessary notice to, and obtain any necessary consent from, Users for the collection, use, transfer, and storage of Customer Data (including by BMC), and (b) collect, use, transfer, and store Customer Data in accordance with any privacy notice you provide, and all applicable laws.
4.6 Use of Third Party Applications. Customer is responsible for monitoring its usage of each Third Party Application, and such Third Party Publisher’s usage and license compliance is governed by the terms of the agreement entered into between Customer and the Third Party Publisher. Customer is responsible for all applicable fees associated with Customer’s use of Third Party Applications. Please note, Customer’s usage of such Third Party Applications may incur additional license fees between Customer and the applicable Third Party Publisher, as well as additional Platform Services fees.
4.7 Customer will provide information or other materials related to a Customer Applications as reasonably requested by BMC to verify Customer’s compliance with the Agreement and the User Guide. BMC may monitor Customer Applications and Third Party Applications running on the Platform Services to verify Customer’s compliance with the Agreement. Customer will not block or interfere with BMC’s monitoring. Customer will cooperate with BMC to identify the source of any problem with the Platform Services that BMC reasonably believes may be attributable to Customer Applications or Third Party Applications, or any Customer Data.
4.8 If BMC reasonably believes any Customer Data, Customer Applications or Third Party Applications violates the law, infringes or misappropriates the rights of any third party or otherwise violates a material term of the Agreement (including the User Guide) (“Prohibited Content”), BMC will notify Customer of the Prohibited Content and may request that such content be removed from the Platform Services or access to it be disabled. If Customer does not remove or disable access to the Prohibited Content within two (2) business days of BMC’s notice, BMC may remove or disable access to the Prohibited Content or suspend the Platform Services to the extent BMC is not able to remove or disable access to the Prohibited Content. Notwithstanding the foregoing, BMC may remove or disable access to any Prohibited Content without prior notice in connection with illegal content, where the content may disrupt or threaten the Platform Services, pursuant to the Digital Millennium Copyright Act or as required to comply with law or any judicial, regulatory or other governmental order or request. In the event that BMC removes content without prior notice, BMC will provide prompt notice to Customer unless prohibited by law.
4.9 Customer’s use of the Platform Services, BMC Application Services, Customer Applications and/or Third Party Applications may be immediately suspended and/or terminated due to (i) reasonable security threats regarding the Platform Services, Customer Applications or Third Party Applications, (ii) Customer Applications or Third Party Applications interfering with, disrupting or threatening the integrity or performance of the Subscription Services and/or the Platform Services or BMC Application Services, or (iii) a third party’s claim that Customer Applications or Third Party Applications may violate applicable law or third party rights. In the event of (i) or (ii) above apply to Customer Applications, Customer is required to remediate any such issue to BMC’s commercially reasonable satisfaction before use of Customer Applications can resume.
4.10 Customer’s access to Third Party Applications may be immediately suspended and/or terminated by BMC at the direction of the Third Party Publisher. Customer acknowledges and understands that access to Customer Applications and/or Third Party Applications used in connection with the Platform Services may be suspended due to Customer’s non-payment to BMC for use and access to the Platform Services or other breach of this Agreement. In no case will any such suspension or termination under the terms of this Agreement give rise to any BMC liability to Customer for a refund or other compensation.
4.11 Except with regard to applicable data protection laws, BMC takes no responsibility with regard to Customer Data (i) processed by Third Party Publishers and/or (ii) through the use by Customer of Third Party Applications.
4.12 BMC may conduct periodic security evaluations of all Customer Applications, which may include security review, a qualitative assessment involving review of a completed questionnaire, and an interview with appropriate Customer personnel. BMC conducts such security evaluations for its own benefit and Customer may not rely on the successful results of such evaluation. BMC may conduct such testing itself or, subject to the confidentiality obligations set forth in the Agreement, through a third party. BMC will provide reasonable notice to Customer before starting such testing. BMC will also cooperate reasonably with Customer to minimize the effects of such testing on Customer’s business and operations. Customer agrees to cooperate reasonably with such testing. Despite the foregoing, such testing may in rare cases cause downtime or other adverse effects on Customer Applications, Third Party Applications, the Platform Services or other BMC Application Services used by Customer. Any nonpublic information to which BMC obtains access in the course of such security testing will be considered Customer’s Confidential Information.
4.13 Customer Responsibilities. Customer’s obligations set forth in section 3.4 (a) of the Base Agreement shall apply in full to Platform Services, Customer Applications and Third Party Applications.
5. WARRANTIES. Customer warrants to BMC that: (a) each Customer Application will perform materially in accordance with the User Guide; (b) Customer owns all right, title, and interest in and to Customer Data, including but not limited to any Customer Data uploaded or entered into Customer Applications or Third Party Applications; (c) Customer has the necessary rights to use and access any Customer Applications and Third Party Applications deployed in a production or non-production environment of the Platform Services; (d) Customer has all rights in the Customer Data and Customer Applications necessary to grant the rights contemplated by this Agreement; (e) none of the Customer Data or Customer Applications or Users’ use of Customer Data or Customer Applications will violate the Agreement and the User Guide; (f) Customer’s security and functional tests of Customer Applications was conducted in a commercially reasonable manner and the results of said tests provided to BMC for review are correct and valid; and (g) none of the Third Party Applications or Users’ use of Third Party Applications will violate the Agreement or the User Guide.
ATTACHMENT B
CONSULTING SERVICES ATTACHMENT
to the
BMC CLOUD SERVICES MASTER AGREEMENT
to the
BMC CLOUD SERVICES MASTER AGREEMENT
Except as otherwise provided herein, the terms of the Cloud Services Master Agreement (the “Base Agreement”) are incorporated into this Consulting Services attachment (the “Attachment”). Together, this Attachment and the Base Agreement (as incorporated into this Attachment) are referred to as the “Agreement” for purposes of Customer’s purchase of Consulting Services, only if Consulting Services are set forth on an Order referencing the Base Agreement. For purposes of this Agreement, the term “Subscription Services” as defined in the Base Agreement shall be extended to include Consulting Services. In the event of a conflict between the Base Agreement and the terms of this Attachment, the terms of this Attachment will control for Customer’s purchase of Consulting Services only. The parties agree that the following Sections of the Base Agreement do not apply to the Consulting Services provided under this Attachment: Section 3.2 (Support), Section 4 (Fees and Payment), Section 6 (Limited Warranty) and Section 9 (Infringement Claims).
1. SCOPE. BMC agrees to render to Customer Consulting Services under the terms of this Agreement and as further described in an Order. BMC will render the Consulting Services in the location(s) as set forth in the Order. The performance of the Consulting Services will not relieve or alter the rights, obligations and responsibilities of Customer and of the BMC Affiliate providing Subscription Services and/or Licenses with respect to Subscription Services and/or Licenses under the applicable agreement in.
2. SERVICE FEES AND EXPENSES. The fees payable to BMC for the Consulting Services to be rendered will be detailed in the Order. BMC will submit invoices to Customer for such fees and incurred expenses either upon completion of the Consulting Services, or at stated intervals, in any case in accordance with the applicable Order. Customer shall pay amounts invoiced within 30 days following receipt of the invoice.
3. EDUCATION. Customer may acquire Learning Pass Credits and Education Services (collectively, “BMC Education”) on a Order. The BMC Education terms that govern such Orders are set forth in the Education Program Guide located at https://www.bmc.com/content/dam/bmc/education/education-program-guide.pdf, and is incorporated herein by this reference.
4. STATEMENTS OF WORK. Some Consulting Services may require the execution of a Statement of Work. Such requirement will be set forth in an Order. In the event of any conflict between the terms of a Statement of Work and this Agreement, the Agreement shall prevail except for matters of service fees, payment and reimbursement of expense terms if further specified in the Statement of Work. During the term of an applicable Statement of Work, and for a period of six months thereafter, neither party will solicit for employment any employees, agents, or subcontractors of the other party or its affiliates who, within six months prior to such solicitation, had contact with the soliciting party based in whole or in part upon Consulting Services provided under this Agreement. The restrictions in this section shall be deemed not to apply to general solicitations for employment posted on Internet job sites or printed in newspapers or trade or professional journals.
5. PROPRIETARY RIGHTS AND RIGHTS IN DELIVERABLES.
5.1 Ownership of Materials Used in the Consulting Services. Unless specifically provided in an Order, Customer shall supply all of the facilities; equipment; supplies; computer programs; information about Customer’s business, systems, software and needs; and other materials necessary for completion of the Consulting Services (“Customer Property”), and BMC shall supply the people described in the Order, the know-how and the tools necessary to provide the Consulting Services, which may include, among other things, software, templates, questionnaires, graphs, methodologies, models, charts and reports (“BMC Property”). Customer Property and copies and modifications of Customer Property will remain the sole property of Customer or if applicable, Customer’s licensors, and BMC Property and copies and modifications of BMC Property will remain the sole property of BMC or if applicable, BMC’s licensors. Customer hereby grants to BMC a royalty-free, paid-up, non-exclusive, non-sublicensable and non-transferable license to use the Customer Property for the purpose of providing the Consulting Services.
5.2 Deliverables. Deliverables are those created under the Order, including, but not limited to, software, software scripts, routines, libraries or other code, or appliances, methodologies, templates, tools, policies, records, working papers, reports, methodologies, know-how, data, or other intellectual property, written or otherwise, including any derivative works or modifications to the above, whether pre-existing or created during the performance of the Consulting Services and all proprietary and intellectual property rights embedded therein delivered as a result of the Consulting Services as specified under the Order. BMC owns all right, title and interest in the Deliverables. Provided Customer has paid in full for the Consulting Services that resulted in the Deliverables, BMC will deliver the Deliverables to Customer in accordance with the applicable Order. Subject to compliance with the terms of this Agreement and the applicable Order, BMC grants Customer a non-exclusive, non-transferable, non-sublicensable, royalty-free, paid-up license to use, create derivative works of and modify all Deliverables solely for its internal business operations.
5.3 Copyright Notice. Each party agrees to reproduce the copyright notice and any other legend or ownership notice on any copies made under the licenses granted pursuant to this Section 5.
5.4 Retention. Customer acknowledges that BMC provides similar services to other customers and that nothing in this Agreement shall be construed as operating to prevent BMC from carrying on such business. Further BMC may use ideas, concepts, or know-how developed or acquired by BMC during performance of the Consulting Services to the extent acquired by BMC’s personnel as impressions and general learning.
6. LIMITED WARRANTY. BMC warrants that it will perform the Consulting Services in conformance with generally accepted practices within the software services industry and in accordance with the Order. Customer must notify BMC of any breach of this warranty no later than 90 days after completion of the Consulting Services under the Order. Customer’s exclusive remedy and BMC’s entire liability under this warranty shall be for BMC to re-perform any non-conforming portion of the Consulting Services within a reasonable period of time, or if BMC cannot remedy the breach during such time period then refund the portion of the fee attributable to such non-conforming portion of the Consulting Services under the Order. This warranty will not apply to the extent Customer, its contractors or agents have modified any Deliverable, unless otherwise authorized by BMC in writing.
THIS WARRANTY AND CONDITION IS IN LIEU OF ALL OTHER WARRANTIES AND CONDITIONS. THERE ARE NO OTHER EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS, INCLUDING THE IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
7. INSURANCE. BMC will provide and maintain the following insurance, but only for losses arising out of BMC’s provision of Consulting Services under this Attachment:
7.1 Worker’s Compensation insurance as prescribed by the law of the state applicable to the employees performing the Consulting Services;
7.2 Employer’s Liability insurance with a limit of one million US dollars ($1,000,000) for each occurrence;
7.3 Commercial General Liability insurance with one million US dollars ($1,000,000) per occurrence combined single limit and five million US dollars ($5,000,000) general aggregate, including coverage for Products Liability and Completed Operations;
7.4 Automobile Liability insurance, including coverage for Hired and Non-owned vehicles of one million US dollars ($1,000,000) for combined single limit for bodily injury and/or property damage; and
7.5 Professional Liability insurance covering Errors and Omissions in the amount of one million US dollars ($1,000,000) for each occurrence and in the aggregate associated with Consulting Services performed under this AGREEMENT.
8. MUTUAL INDEMNITY. Each party shall indemnify and hold harmless the other party from all claims, liabilities or expenses for physical damage to real property or tangible personal property and bodily injury, including death, to the extent caused by the gross negligence or willful misconduct of the indemnifying party’s employees or contractors arising out of this Agreement and while at the Customer’s premises. The foregoing indemnities are contingent upon the party seeking indemnity giving prompt written notice to the indemnifying party of any claim, demand or action, and cooperating with the indemnifying party in the defense or settlement of any such claim, demand or action.
9. LIMITATION OF LIABILITY. Section 8 of the Base Agreement shall not apply to Customer’s breach of (i) BMC’s proprietary rights in the Deliverables and/or (ii) Section 5.2 of this Attachment B.
10. INDEPENDENT CONTRACTOR. All of the services performed by BMC under this Agreement will be performed as an independent contractor.
ATTACHMENT C
ON PREMISE SUBSCRIPTIONS ATTACHMENT
to the
BMC CLOUD SERVICES MASTER AGREEMENT
to the
BMC CLOUD SERVICES MASTER AGREEMENT
Except as otherwise provided herein, the terms of the Cloud Services Master Agreement (the “Base Agreement”) are incorporated into this On Premise Subscriptions attachment (the “Attachment”). Together, this Attachment and the Base Agreement (as incorporated into this Attachment) are referred to as the “Agreement” for purposes of Customer’s purchase and ongoing use of On Premise Subscriptions, only if On Premise Subscriptions are set forth on an Order referencing the Base Agreement. For purposes of this Agreement, the term “Subscription Services” as defined in the Base Agreement shall be extended to include On Premise Subscriptions. In the event of a conflict between the Base Agreement and the terms of this Attachment, the terms of this Attachment will control for Customer’s purchase of On Premise Subscriptions only. The parties agree that the following Sections of the Base Agreement do not apply to the On Premise Subscriptions provided under this Attachment: Section 3.1 (Access Rights), Section 3.4 (Customer Responsibilities and Restrictions), Section 6 (Limited Warranty) and Section 14 (Verification).
1. DEFINITIONS.
1.1	"Documentation" means the technical publications relating to the software, such as release notes, license entitlement descriptions, reference, user, installation, systems administrator and technical guidelines, included with the On Premise Subscription.
1.2	“Licensed Capacity” is the amount of each On Premise Subscription licensed as established in the Order.
1.3	“On Premise Subscription” is the object code of the software and all accompanying Documentation delivered to Customer, including all items delivered by BMC to Customer under Support.
2. LICENSE. Subject to the terms, conditions, payment requirements and restrictions set forth in this Agreement, BMC grants Customer a non-exclusive, non-transferable, non-sub-licensable term license to install in the Territory, access and use the On Premise Subscription during the term specified on the Order (i) up to the Licensed Capacity, (ii) for Customer’s and its Affiliates internal business operations, (iii) in accordance with the Documentation and the applicable Order, and (iv) make one copy of the On Premise Subscription for archival purposes only (collectively a "License"). Affiliates may use and access the On Premise Subscriptions under the terms of this Agreement, and Customer is responsible for its Affiliates compliance with the terms of this Agreement.
3. RESTRICTIONS. Customer will not: (a) copy, operate or use any On Premise Subscription in excess of the applicable Licensed Capacity or other than as set forth in the License above; (b) modify, delete or remove any ownership, title, trademark, patent or copyright notices (“Identification”) from any On Premise Subscription, or copy or partial copy of an On Premise Subscription; (c) disassemble, reverse engineer, decompile or otherwise attempt to derive any On Premise Subscription source code from object code, except to the extent expressly permitted by applicable law despite this limitation without possibility of contractual waiver; (d) distribute, rent, lease, sublicense or provide the On Premise Subscription to any third party; (e) use the On Premise Subscriptions in an outsourcing or service bureau environment on behalf of non-Affiliate third parties, or allow the On Premise Subscriptions to be used by an outsourcing or service bureau provider on Customer’s behalf; (f) provide a third party with the results of any functional evaluation, or performance tests, without BMC's prior written approval; or (g) attempt to disable or circumvent any of the licensing mechanisms within the On Premise Subscription.
4. ON PREMISE SUBSCRIPTION PERFORMANCE WARRANTY. BMC warrants that (a) the On Premise Subscription will perform in substantial accordance with its Documentation for a period of one year from the date of the first Order, (b) BMC has used commercially reasonable efforts consistent with industry standards to scan for and remove software viruses, and (c) other than passwords that may be required for the operation of the On Premise Subscription, BMC has not inserted any code that is not addressed in the Documentation and that is designed to delete, interfere with or disable the normal operation of the On Premise Subscription in accordance with the License. This warranty will not apply to any problems caused by hardware, Computers, or software other than the On Premise Subscription, or misuse of the On Premise Subscription, use of the On Premise Subscription other than as provided by the applicable License, modification of the On Premise Subscription, or claims made either outside the warranty period or not in compliance with the notice and access requirements set forth below. No warranty is provided for additional Licensed Capacity, On Premise Subscription provided pursuant to Support. BMC’s entire liability, and Customer’s exclusive remedy, for breach of the above warranty is limited to: BMC’s use of commercially reasonable efforts to have the On Premise Subscription perform in substantial accordance with its Documentation, or replacement of the non-conforming On Premise Subscription within a reasonable period of time, or if BMC cannot have the On Premise Subscription perform in substantial accordance with its Documentation replace the On Premise Subscription within such time period, then BMC will refund the amount paid by Customer for the License for that On Premise Subscription. Customer’s rights and BMC's obligations in this Section are conditioned upon Customer’s providing BMC during the warranty period (i) full cooperation and access to the On Premise Subscription in resolving any claim; and (ii) written notice addressed to the BMC Legal Department that includes notice of the claim, a complete description of the alleged defects sufficient to permit their reproduction in BMC’s development or support environment, and a specific reference to the Documentation to which such alleged defects are contrary.
EXCEPT FOR THE EXPRESS WARRANTIES IN THIS ATTACHMENT, THE ON PREMISE SUBSCRIPTION IS PROVIDED WITH NO OTHER WARRANTIES WHATSOEVER, AND BMC, ITS AFFILIATES AND LICENSORS DISCLAIM ALL OTHER WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. BMC DOES NOT WARRANT THAT THE OPERATION OF THE ON PREMISE SUBSCRIPTION WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT ALL DEFECTS CAN BE CORRECTED.
5. DELIVERY. For On Premise Subscriptions that are delivered electronically, upon request from BMC, Customer agrees to provide BMC with documentation supporting that the designated On Premise Subscription was received electronically. If Customer accepts any On Premise Subscription in a non-electronic format, there may be an additional charge and it is the sole responsibility of Customer to bear any sales/use tax obligation, penalties, and interest. All On Premise Subscriptions are licensed FCA (“Free Carrier” as per Incoterms 2000) shipping point. The On Premise Subscriptions are accepted on the date BMC delivers the On Premise Subscription to the Customer either physically or by providing access codes for electronic download, whichever occurs first, however, such acceptance will not affect the On Premise Subscription Performance Warranty provided in this Agreement.
6. AUDIT. If requested by BMC, and not more than once a year, Customer agrees to deliver to BMC, within 30 days of such request, as specified by BMC either (a) periodic product usage reports generated from specific products or (b) written periodic product usage reports, to be provided solely when the product does not generate reports (“Report”). Additionally, if requested by BMC not more than once a year, Customer agrees to allow BMC to perform an audit (“Audit”) at the locations where the On Premise Subscriptions are installed, during normal business hours to ensure compliance with the terms of this Agreement. Customer agrees to cooperate during any such Audit and to provide reasonable access to its information and systems. If an Audit or Report reveals that Customer has exceeded the Licensed Capacity for a On Premise Subscription, Customer agrees to pay the applicable fees for additional capacity upon receipt of invoice. If the understated capacity exceeds 5% of the Licensed Capacity of the applicable On Premise Subscription, then Customer agrees to also pay BMC’s reasonable costs of conducting the audit.
7. LIMITATION OF LIABILITY. Section 8 of the Base Agreement shall not apply to Customer’s breach of (i) BMC’s proprietary rights in the On Premise Subscriptions and/or (ii) Sections 2 and 3 of this Attachment C.
Effective December 17th 2018 to December 17th 2018
DownloadTable of Contents
BMC CLOUD SERVICES MASTER AGREEMENT
THIS CLOUD SERVICES MASTER AGREEMENT (“AGREEMENT”) GOVERNS YOUR FREE TRIAL, IF ANY, OF THE SUBSCRIPTION SERVICES.
IF YOU PURCHASE THE SUBSCRIPTION SERVICES, THIS AGREEMENT WILL ALSO GOVERN YOUR PURCHASE AND ONGOING USE OF THE SUBSCRIPTION SERVICES.
BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SUBSCRIPTION SERVICES.
You may not access the Subscription Services if you are BMC’s direct competitor, except with BMC’s prior written consent. In addition, you may not access the Subscription Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.
This Agreement was last updated on December 17, 2018. This Agreement is between the entity or individual entering into this Agreement (“Customer”) and the BMC Contracting Entity for the applicable region as described in Section 12 (“BMC”). It is effective between Customer and BMC as of the date of your acceptance of this Agreement. If Customer has a fully executed BMC Cloud Services Master Agreement then such fully executed BMC Cloud Services Master Agreement supersedes and replaces any clickwrap or click-through agreements (or other similar agreements) that Customer may be required to accept as a part of accessing or using the Subscription Services. For Customer’s convenience, prior versions of this Agreement are available at https://www.bmc.com/legal/csma.html.
FREE TRIAL.
BMC may make the Subscription Services available to Customer on a trial basis free of charge. If BMC offers Customer a free trial, it will run until the earlier of (a) the end of the trial period stated on the trial registration web page or (b) the start date of any Order for purchase of the Subscription Services. Additional trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.
ANY DATA CUSTOMER ENTERS INTO THE SUBSCRIPTION SERVICES, AND ANY CUSTOMIZATIONS MADE TO THE SUBSCRIPTION SERVICES BY OR FOR CUSTOMER, DURING A FREE TRIAL WILL BE PERMANENTLY LOST UNLESS CUSTOMER PURCHASES A SUBSCRIPTION TO THE SAME SUBSCRIPTION SERVICES AS THOSE COVERED BY THE TRIAL, OR EXPORTS SUCH DATA BEFORE THE END OF THE TRIAL PERIOD.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THE AGREEMENT, DURING ANY FREE TRIAL PERIOD THE SUBSCRIPTION SERVICES ARE PROVIDED “AS IS” WITH NO WARRANTY.
1.	DEFINITIONS.
1.1 “Affiliate” is an entity that controls, is controlled by or shares common control with BMC or Customer, where such control arises from either (a) a direct or indirect ownership interest of more than 50% or (b) the power to direct or cause the direction of the management and policies, whether through the ownership of voting stock by contract, or otherwise, equal to that provided by a direct or indirect ownership of more than 50%.
1.2 “Subscription Services” means the generally available hosted service which packages web-based access and the right-to-use the supported applications, installed agents and associated reference, user and technical guides.
1.3 “Capacity” means the amount of access to the Services purchased as specified in an Order, which is counted in accordance with the Unit of Measure described in the Order.
1.4 “Customer Data” means all electronic data or information (a) submitted to the Subscription Services by Customer, a third party on behalf of Customer, or as directed by Customer or (b) collected, processed or returned by the Subscription Services.
1.5 “Order” means (i) the agreed ordering document for the purchase of the Subscription Services, (ii) that is subject to this Agreement, and (iii) that identifies the terms of the purchase and fees to be paid. The term “Order” includes Customer’s online registration for and purchase of the Subscription Services, If any.
1.6 “User Guide” means the online help, functional guide and technical specifications for the Subscription Services, as updated by BMC from time to time.
2.	 SCOPE. Subject to the terms of this Agreement, Customer may purchase and BMC will provide Customer with access to the Subscription Services as set forth in this Agreement and the applicable Order. Subject to the Attachments to this Agreement, Customer may also purchase BMC Platform Services, BMC Consulting Services and BMC On Premise Subscription Services. In the event of a direct conflict between any Order and the terms of this Agreement, the terms of the Order will control only if the Order is executed by an authorized representative of each party. Each Order is deemed to be a discrete contract, separate from each other Order, unless expressly stated otherwise therein. Orders may be entered under this Agreement by and between (a) BMC or an Affiliate of BMC; and (b) Customer or an Affiliate of Customer. With respect to an Order, the terms “BMC” and “Customer” as used in this Agreement will be deemed to refer to the entities that execute that Order, the Order will be considered a two party agreement between such entities, and BMC will separately invoice the Customer named in the Order for the associated fees. Orders may also be placed via a BMC authorized reseller. Neither execution of this Agreement, nor anything contained herein, shall obligate either party to enter into any Orders.
3. ACCESS TO SUBSCRIPTION SERVICES.
3.1 Access Rights. Subject to Customer’s payment of applicable fees and to the terms of this Agreement, BMC will provide Customer with worldwide access to the Subscription Services in accordance with the Order (i) up to the Capacity, (ii) for Customer’s and its Affiliates’ internal business operations, (iii) in accordance with the User Guide and the applicable Order. Customer may exercise its rights under this Section 3.1 through its service providers, outsourcers, employees, consultants, contractors, agents, and Affiliates (all, “Users”).
3.2 BMC Subscription Services Support. BMC will provide the support described at http://www.bmc.com/support/review-policies (“Support”) to Customer for the Subscription Services, which may be changed by BMC upon prior notice to customer, provided that such changes do not materially degrade Support during the term of an Order.
3.3 Use of Subcontractors. Customer acknowledges and agrees that BMC uses subcontractors to provide portions of the Subscription Services. BMC will provide a list of its current subcontractors upon Customer’s written request. BMC is responsible for the performance of all subcontractors providing any of the Subscription Services.
3.4 Customer Responsibilities and Restrictions.
(a) 	 Customer will (i) maintain the confidentiality of all authentications and passwords for the Subscription Services and immediately notify BMC if it becomes aware that an unauthorized party has gained access such authentications and passwords, (ii) be responsible for use of the Subscription Services by its Users in compliance with this Agreement, (iii) prevent unauthorized access to, or use of, the Subscription Services, and notify BMC promptly of any such unauthorized access or use, (iv) comply with all applicable laws in using the Subscription Services, and (v) be responsible for obtaining its own Apple Push Notification certificate, if the Subscription Services are used to manage devices running iOS. Customer is responsible for the creation and implementation of a privacy policy and end user agreement, if applicable, which will set forth the guidelines of how Customer uses and protects the data and personal information of its Users, and how said Users may utilize the Subscription Services.
(b) 	 Customer will not (i) modify, copy or create derivative works based on the Subscription Services; (ii) create Internet “links” to or reproduce any content forming part of the Subscription Services, other than for its own internal business purposes; (iii) disassemble, reverse engineer, or decompile the Subscription Services or part thereof; (iv) interfere with or disrupt the integrity or performance of the Subscription Services; (vi) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortuous material, or send or store material in violation of any third party’s privacy rights via the Subscription Services; (vii) send or store viruses or malicious code via the Subscription Services; (viii) attempt to gain unauthorized access to the Subscription Services or its related software, systems, platforms or networks, including any form of security and/or penetration testing; (ix) use any components provided with the Subscription Services separately from the Subscription Services; or (x) distribute, rent, lease or provide the Subscription Services to any third party or use it in a service bureau, outsourcing environment, or for the processing of third party data.
4.	FEES AND PAYMENT.
4.1 Fees. The fees payable for the Subscription Services and the payment period for such fees will be set forth in and paid in accordance with the Order. All invoices are due upon receipt of invoice.
4.2 Late Fees. The unpaid balance of each late payment bears interest at a rate equal to the lesser of 1% per month or the maximum amount permitted by law. All fees are nonrefundable and BMC will not provide any refunds or credits for partially used periods of the Subscription Services.
4.3 Taxes. Customer will pay or reimburse BMC or, when required by law, the appropriate governmental agency, for taxes of any kind, including sales, use, VAT, excise, customs duties, withholding, property, and other similar taxes (other than taxes based on BMC’s net income or arising from the employment relationship between BMC and its personnel) imposed in connection with the fees paid for the Subscription Services, which are exclusive of these taxes.
5. TERM, SUSPENSION AND TERMINATION.
5.1 Term. This Agreement begins on the Effective Date and will remain in effect unless terminated pursuant to Section 5.2 below, regardless of the billing frequency selected in the Order.
5.2 Termination.
(a)	Termination for Convenience. Customer may terminate this Agreement by providing BMC with at least 30 days prior written notice; provided, however, such termination will have no effect on Orders in effect at the time of such termination. Orders may not be terminated for convenience unless otherwise specified therein. Customer may notify BMC of its intent to terminate by emailing BMC at order_services@bmc.com.
(b) 	Termination for Cause. Either party may terminate this Agreement and/or an Order for cause: (i) upon 30 days’ written notice of a material breach to the other party if such breach remains uncured at the expiration of such period; or (ii) immediately if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
5.3 Suspension of Subscription Services for Cause. In addition to its other rights and remedies, BMC reserves the right, without liability to Customer, to immediately suspend any and all access to the Subscription Services if Customer commits a material breach of this Agreement or any relevant Order until such material breach is cured.
5.4 Effects of Termination. Upon termination or expiration of any Order or this Agreement, all rights and Licenses granted thereunder will terminate and Customer will make no further use of the Subscription Services. No termination will relieve the Customer of the obligation to pay any fees accrued or payable to BMC pursuant to any Order. Upon written request by Customer made within 30 days after the effective date of termination, BMC will make the Customer Data available to Customer for retrieval in an industry standard format. After such 30-day period, BMC shall have no obligation to maintain any Customer Data and will thereafter delete Customer Data.
6. LIMITED WARRANTY.
6.1 Warranties and Limited Remedies. BMC warrants to Customer that:
(a)	the online availability of the Subscription Services will be maintained in accordance with the service levels attached to the applicable Order, if any (the “Service Level Agreement” or “SLA”). Customer’s exclusive remedy and BMC’s sole obligation for breach of the warranty in this Section 6.1(a) is described in the Service Level Agreement; and
(b)	the Subscription Services (i) will perform in substantial accordance with the then-current on-line User Guide available via the Subscription Services and (ii) will be performed in a manner consistent with industry standards reasonably applicable to the provision thereof. Customer’s exclusive remedy and BMC’s sole obligation for breach of the warranty in this Section 6.1(b) will be BMC’s use of commercially reasonable efforts to have the Subscription Services perform in substantial accordance with the User Guide, or replace the non-conforming portion of the Subscription Services within a reasonable period of time, or if BMC cannot have the Subscription Services perform in substantial accordance with the User Guide or replace the Subscription Services within such time period, then BMC will refund the amount paid by Customer for the Subscription Services, pro-rated from the date of the notice of the claim. Customer’s rights and BMC’s obligations in this Section 6.1(b) are conditioned upon Customer’s providing BMC with written notice of the claim, a complete description of the alleged defects and a specific reference to the User Guide to which such alleged defects are contrary.
6.2 Disclaimer. CUSTOMER ACKNOWLEDGES THAT, EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, BMC, ITS AFFILIATES AND LICENSORS MAKE NO WARRANTY, EXPRESS, IMPLIED OR STATUTORY WITH RESPECT TO THE SUBSCRIPTION SERVICES OR USE THEREOF. BMC, ITS AFFILIATES AND LICENSORS HEREBY EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY THAT SUBSCRIPTION SERVICES WILL BE UNINTERRUPTED, ERROR FREE OR WITHOUT DELAY, AND THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INTERFERENCE, NON-INFRINGEMENT AND INFORMATION CONTENT.
7. PROPRIETARY RIGHTS AND CONFIDENTIALITY.
7.1 Proprietary Rights. BMC, its Affiliates or licensors retain all right, title and interest to the Subscription Services and all related intellectual property and proprietary rights. The Subscription Services are protected by applicable copyright, trade secret, industrial and other intellectual property laws. BMC owns all right, title and interest in all software, programming, documentation, templates, questionnaires, methodologies, models, charts, reports, ideas, features, content, functions, graphics and any other items provided as part of the Subscription Services (“Service Items”) and access to and use of the relevant Service Items will be governed by the terms of this Agreement. Subject to (i) BMC’s or its licensor’s ownership of any Service Items contained in Customer Applications as defined in Attachment A and (ii) section 3.4 (b) (i) of the Agreement, Customer owns all rights, title, and interest in Customer Applications, including all proprietary and intellectual property rights. BMC reserves any rights not expressly granted to Customer. Customer shall not access the Subscription Services in order to build a competitive product or service or copy any ideas, features, functions or graphics of the Subscription Services. “Confidential Information” means all proprietary or confidential information that is disclosed to the recipient (“Recipient”) by the discloser (“Discloser”), and includes, among other things (i) any and all information relating to products or services provided by a Discloser, its customer-related and financial information, software code, flow charts, techniques, specifications, development and marketing plans, strategies, and forecasts; (ii) as to BMC, and its licensors, the Subscription Services and Service Items; and (iii) the terms of this Agreement, including without limitation, pricing information. Confidential Information does not include information that Recipient can show: (a) was rightfully in Recipient’s possession without any obligation of confidentiality before receipt from the Discloser; (b) is or becomes a matter of public knowledge through no fault of Recipient; (c) is rightfully received by Recipient from a third party without violation of a duty of confidentiality; or (d) is or was independently developed by or for Recipient. Recipient may not disclose Confidential Information of Discloser to any third party or use the Confidential Information in violation of this Agreement. The Recipient (i) will exercise the same degree of care and protection with respect to the Confidential Information of the Discloser that it exercises with respect to its own Confidential Information and (ii) will not, either directly or indirectly, disclose, copy, distribute, republish, or allow any third party to have access to any Confidential Information of the Discloser. Notwithstanding the foregoing, Recipient may disclose Discloser’s Confidential Information to Recipient’s employees and agents who have need to know provided that such employees and agents have legal obligations of confidentiality substantially the same (and in no case less protective) as the provisions of this Agreement.
7.2 Notification Obligation. If the Recipient becomes aware of any unauthorized use or disclosure of Discloser’s Confidential Information, then Recipient will promptly and fully notify the Discloser of all facts known to it concerning such unauthorized use or disclosure. In addition, if the Recipient or any of its employees or agents are required (by oral questions, interrogatories, requests for information, or documents in legal proceedings, subpoena, civil investigative demand, or other similar process) to disclose any of Discloser’s Confidential Information, the Recipient will not disclose the Discloser’s Confidential Information without providing the Discloser with commercially reasonable advance prior written notice to allow Discloser to seek a protective order or other appropriate remedy or to waive compliance with this provision. In any event, the Recipient will exercise its commercially reasonable efforts to preserve the confidentiality of the Discloser’s Confidential Information, including, without limitation, cooperating with Discloser to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded to the Confidential Information.
7.3 Customer Data. As between BMC and Customer, Customer owns all rights, title and interest in and to Customer Data. Customer Data is deemed Confidential Information under this Agreement. BMC will use the Customer Data only as necessary to provide the Subscription Services in accordance with this Agreement. At any time during the term of the Subscription Services, Customer may request copies of all Customer Data from the Subscription Services. Customer is responsible for complying with all legal and contractual requirements, including its agreements with third parties. With the exception of Customer Data collected by the Subscription Services, Customer is solely responsible for the transmission of Customer Data to BMC and to the Subscription Services. Customer is solely responsible for the encryption of any Customer Data.
7.4 Suggestions. Customer agrees that BMC shall have a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into any BMC products or services any suggestions, enhancement requests, recommendations or other feedback provided by Customer relating to the Subscription Services.
8. DISCLAIMER OF DAMAGES AND LIMITS ON LIABILITY.
8.1 DISCLAIMER OF DAMAGES. EXCEPT FOR EACH PARTY’S RESPONSIBILITIES IN SECTION 9, NEITHER PARTY OR ITS AFFILIATES ARE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES RELATING TO OR ARISING OUT OF THIS AGREEMENT OR THE SUBSCRIPTION SERVICES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST COMPUTER USAGE TIME, AND DAMAGE TO, OR LOSS OF USE OF, DATA), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND IRRESPECTIVE OF ANY NEGLIGENCE OF A PARTY OR WHETHER SUCH DAMAGES RESULT FROM A CLAIM ARISING UNDER TORT OR CONTRACT LAW.
8.2 LIMITS ON LIABILITY. EXCEPT FOR EACH PARTY’S RESPONSIBILITIES IN SECTION 9, NEITHER PARTY OR ITS AFFILIATES SHALL HAVE AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SUBSCRIPTION SERVICES, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEEDING THE AMOUNTS ACTUALLY PAID BY AND DUE FROM CUSTOMER PURSUANT TO THE ORDER(S) GIVING RISE TO LIABILITY THAT ARE IN EFFECT AS OF SUCH DATE.
9. INFRINGEMENT CLAIMS.
9.1 Indemnification by BMC. If a third party asserts a claim against Customer asserting that Customer’s use of the Subscription Services, including Platform Services, Deliverables and Licenses as defined in the Attachments to this Agreement, in accordance with this Agreement violates that third-party’s patent, trade secret or copyright rights (“Infringement Claim”), then BMC will, at its own expense: (a) defend or settle the Infringement Claim; and (b) indemnify Customer for any damages finally awarded against Customer based on infringement by the Subscription Services, including court costs and reasonable attorney’s fees. If BMC believes the Subscription Services may violate a right, then BMC will, at its expense: (a) modify the Subscription Services, or (b) procure the right to continue using the Subscription Services, and if (a) or (b) are not commercially reasonable, terminate Customer's right to use the Subscription Services and issue a pro-rata refund for the unexpired pre-paid portion of such Subscription Services.
9.2 Indemnification by Customer. Subject to the terms of this Agreement, if a third party asserts a claim against BMC asserting that the (i) Customer Data, (ii) Customer Applications as defined in Attachment A, (iii) Customer Property as defined in Attachment B or (iv) Customer’s use of the Subscription Services in violation of this Agreement violates that third-party’s patent, trade secret or copyright rights (“Claim”), Customer will, at its own expense: (a) defend or settle the Claim; and (b) indemnify BMC for any damages finally awarded against BMC based on the Claim, including court costs and reasonable attorney’s fees.
9.3 Indemnity Process. Neither party’s obligations under this Section will apply if: (a) the indemnifying party’s legal department does not receive prompt, detailed written notice of the Infringement Claim/Claim from the party being indemnified, (b) the indemnifying party is not able to retain sole control of the defense of the Infringement Claim/Claim and all negotiations for its settlement or compromise, or (c) the indemnifying party does not receive all reasonable assistance from the party being indemnified. Neither party will bind the indemnified party to a monetary obligation in a settlement or compromise, or make an admission on behalf of the indemnified party, without obtaining that party’s prior consent.
9.4 THIS SECTION 9 CONTAINS EACH PARTY'S EXCLUSIVE REMEDIES AND THE INDEMNIFYING PARTY'S SOLE LIABILITY FOR INFRINGEMENT CLAIMS/CLAIMS, RESPECTIVELY.
10. EXPORT CONTROLS. Customer represents and warrants that it: a) will comply with the United States Export Administration Regulations and other U.S. or foreign export regulations; b) no individual accessing or using the Subscription Services is a citizen of or from an embargoed country (currently Iran, Syria, Sudan, Cuba and North Korea); c) is not prohibited from receiving the Subscription Services under such regulations; d) will not acquire the Subscription Services for a person who is restricted under such regulations; e) will not use the Subscription Services in contradiction to such regulations; and f) will not use the Subscription Services for prohibited uses, including but not limited to nuclear, chemical, missile or biological weapons related end uses. For Subscription Services exported from Ireland, EC No. 428/2009 sets up a Community regime for control of exports of dual-use items and technology, and it is declared that this Subscription Services is intended for civil purposes only. Therefore, Customer agrees to comply with both the U.S. regulations and those E.U. regulations and will not export in violation of the regulations and without all proper licenses. Customer’ failure to comply with these regulations will result in an automatic termination of the Agreement and all rights to the Subscription Services thereunder.
11. GOVERNING LAW AND DISPUTE RESOLUTION. Any controversy, dispute or claim arising out of or relating to this Agreement, or to the formation, interpretation, breach, termination, or validity thereof (each, a “Controversy”) will be resolved as follows:
(i)	UNITED STATES. If both parties to this Agreement are entities incorporated under the law of any state in the United States, the Controversy shall be tried in either state or federal court located in Houston, Texas and the laws of the State of Texas shall govern. Both parties hereby submit to the exclusive jurisdiction of the courts in Houston, Texas and waive all defenses based on forum non conveniens.
(ii)	EMEA. If both parties to this Agreement are entities incorporated in countries in the Europe, Middle East, or Africa regions, the Controversy shall be tried in the District Court located in Amsterdam, the Netherlands and the substantive laws of the Netherlands shall govern. Both parties hereby submit to the exclusive jurisdiction of the District Court in Amsterdam, the Netherlands and waive all defenses based on forum non conveniens.
(iii)	ASIA PACIFIC. If both parties to this Agreement are entities incorporated in countries in the Asia Pacific region, the arbitration shall be held in Singapore under the then-applicable rules of the Singapore International Arbitration Centre and the substantive laws of Singapore will govern.
(iv)	OTHER REGIONS. In all other instances, the arbitration shall be held in New York City, New York, under the then-applicable international rules of the American Arbitration Association and the substantive laws of the State of Texas will govern.
For all arbitrations conducted hereunder: (a) the arbitration shall be conducted in English; (b) the relevant arbitral institution shall determine the number of arbitrators, but any Controversy in which the amount in dispute is greater than $10 million USD shall be decided by three arbitrators, with each party having the right to select one arbitrator; (c) the costs of such arbitration shall be borne equally, pending the arbitrator’s award; (d) the arbitration award rendered shall be final and binding on the parties, shall not be subject to appeal to any court and shall be enforceable in any court having jurisdiction over the parties; (e) the arbitration proceedings, award and pleadings shall all be confidential, unless disclosure of particular information is required for purposes of enforcing/challenging the award or to meet local securities law requirements; and (f) the party prevailing in arbitration shall be entitled to recover its reasonable attorneys’ fees and the necessary costs incurred in connection with the arbitration.
The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. Nothing in this Agreement shall be deemed as preventing either party from seeking immediate injunctive relief from any court having jurisdiction over the parties and the subject matter of the dispute.
12.	The following BMC contracting entities apply to this Agreement:
Region | Contracting Entity | Address of Contracting Entity |
United States and Latin America South (not a specified Central or South America country below) | BMC Software, Inc. | 2103 CityWest Boulevard, Houston, Texas 77042 |
Canada | BMC Software Canada Inc. | 50 Minthorn Boulevard, Suite 200 Markham, Ontario L3T 7X8 Canada |
EMEA (Europe, Middle East and Africa) | BMC Software Distribution B.V. | Boeing Avenue 245, 1119 PD Schiphol Rijk, The Netherlands |
Brazil | BMC Software do Brasil Ltda. | Av. das Nações Unidas, 8.501 – 22º Andar Condomínio Eldorado Business Tower São Paulo, Brasil – 05425-070 |
Mexico | BMC Software Distribution de México, S.A. de C.V. | Volcán 150, Piso 4, Col. Lomas de Chapultepec, C.P. 11000, Deleg. Miguel Hidalgo, Ciudad de México |
Argentina | BMC Software de Argentina S.A. | Ing. Butty 220 – Piso 18, Buenos Aires, Republica Argentina, C1001AFB |
S.E.A (Southeast Asia), Australia, New Zealand, Hong Kong, Taiwan | BMC Software Asia Pacific Pte Ltd | 600 North Bridge Road, #20-01/10 Parkview Square, Singapore 188778 |
China | BMC Software (China) Limited | Room 502, Level 5, Tower W1, The Towers, Oriental Plaza, No. 1 East Chang An Ave., Dong Cheng Dist., Beijing 100738, China |
Japan | BMC Software K.K. | Harmony Tower 24th Floor, 1-32-2 Honcho, Nakano-ku, Tokyo, 164-8721 |
Korea | BMC Software Korea Ltd | 24th Fl., ASEM Tower, 1517, Yeongdong-daero,Gangnam-gu, Seoul 135-798, Korea South |
13. U.S. FEDERAL ACQUISITIONS. This Section applies only to acquisitions of the commercial Subscription Services and Documentation subject to this Agreement by or on behalf of the United States Government, or by any prime contractor or subcontractor (at any tier) under any contract, grant, cooperative agreement or other activity with the United States Government. In the event the Subscription Services are delivered to the United States Government, the United States Government hereby agrees that the Subscription Services qualify as “commercial items” within the meaning of the Federal acquisition regulation(s) applicable to this procurement. The terms and conditions of this Agreement shall pertain to the United States Government’s use and disclosure of the Product, and shall supersede any conflicting contractual terms and conditions. The following additional statement applies only to acquisitions governed by DFARS Subpart 227.4 (October 1988): “Restricted Rights – Use, duplication and disclosure by the Government is subject to restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 (Oct. 1988).”
14. DATA PROTECTION. The processing of Customer Data under this Agreement is governed by the BMC Data Processing Agreement set forth on the Order.
15. VERIFICATION. Customer agrees that BMC or its agent may monitor the Subscription Services to ensure Customer’s compliance with the terms of this Agreement. If such monitoring reveals that Customer has exceeded the Capacity for the Subscription Services, Customer agrees to pay the applicable fees for additional capacity upon receipt of an invoice from BMC. If Customer to fails to pay fees for such additional capacity, BMC may suspend Customer’s access to the Subscription Services until such fees are paid in full.
16. MISCELLANEOUS TERMS. BMC is not liable for its failure to perform any of its obligations under this Agreement during any period in which performance is delayed by Customer or circumstances beyond BMC's reasonable control. The parties are independent contractors and this Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties. Customer will receive system notifications from BMC and its licensors, if applicable (i.e. planned downtime notices, etc). This Agreement, including the Attachments and Orders constitutes the entire agreement between Customer and BMC and supersedes any prior or contemporaneous negotiations or agreements, whether oral or written concerning the Subscription Services. There are no representations, promises, warranties, covenants, or undertakings between the parties other than those expressly set forth in this Agreement. There are no third-party beneficiaries to this Agreement; Customer is not entering into a contractual relationship with BMC’s licensors and BMC’s licensors have no liability to Customer. Except as provided in Section 2 above, no modification or waiver of any provision hereof will be effective unless made in a writing signed by both BMC and Customer. Customer may not assign or transfer this Agreement or the Subscription Services to a third party, whether by merger, operation of law, or otherwise. Should any provision of this Agreement be invalid or unenforceable, the remainder of the provisions will remain in effect. Any additional or conflicting terms of any Customer purchase order are rejected by BMC and do not apply. The Subscription Services may contain hyperlinks to websites controlled by parties other than BMC. BMC is not responsible for and does not endorse the content or accept any responsibility for Customer’s use of these websites. Customer should refer to the policies posted by other websites regarding privacy and other topics regarding data privacy before using them.
Attachments incorporated into Agreement |
Attachment A – Platform Services Attachment |
Attachment B – Consulting Services Attachment |
Attachment C – On Premise Subscription Services Attachment |
PLATFORM SERVICES ATTACHMENT
to the
BMC CLOUD SERVICES MASTER AGREEMENT
to the
BMC CLOUD SERVICES MASTER AGREEMENT
Except as otherwise provided herein, the terms of the Cloud Services Master Agreement (the “Base Agreement”) are incorporated into this Platform Services attachment (the “Attachment”). Together, this Attachment and the Base Agreement (as incorporated into this Attachment) are referred to as the “Agreement” for purposes of Customer’s access and use of Platform Services, only if the Platform Services are set forth on an Order referencing the Base Agreement. For purposes of this Agreement, the term “Subscription Services” as defined in the Base Agreement shall be extended to include the Platform Services. In the event of a conflict between the Base Agreement and the terms of this Attachment, the terms of this Attachment will control for Customer’s access and use of the Platform Services only.
1. SCOPE. Subject to the terms of this Agreement, BMC will provide Customer with access to the Platform Service named in the applicable Order. Customer may only use the Platform Services to store, retrieve, query, serve, and process Customer Data that is owned, licensed or lawfully obtained by Customer. As part of Customer’s subscription to the Platform Services, Customer may be allowed to run certain Applications on the Platform Services that are either (i) sold by BMC, (ii) sold by a Third Party Publisher, or (iii) owned or licensed by Customer.
2. DEFINITIONS.
2.1	“Application” is the object code, its definitional structures, and data created to fulfill a particular purpose, which runs on the Platform Services. An Application may also include its documentation and User Guide.
2.2 “BMC Application Services” means a generally available Application that is provided as a subscription by BMC to customers, including all items delivered by BMC to Customer under Support related to such Application.
2.3 “Customer Applications” means Applications that are owned or licensed by Customer, not including any Third Party Applications, and which run on the Platform Services.
2.4 “Customer Data” means all information uploaded or entered by Customer to the Platform Services, excluding Customer Applications.
2.5 “Development Platform” means a BMC provided development platform which allows Customer to develop a custom application to run on the Platform Services.
2.6 “Platform Services” means the generally available BMC-provided platform specified on the Order and its capabilities to run Applications. The specific Platform Services being will be identified in the Order.
2.7 “Third Party Applications” means Applications that are owned by a Third Party Publisher with a valid independent software vendor agreement in place with BMC, and are licensed by said Third Party Publisher to customers.
2.8 “Third Party Publisher” means a party other than BMC or a BMC Affiliate that is the owner and licensor of a Third Party Application, and has a valid independent software vendor agreement in place with BMC. For the sake of clarity, Customer is informed that Third Party Publishers are not BMC Subcontractors.
3. BMC PLATFORM SERVICES.
3.1 BMC Platform Services Support. BMC will provide Support only for Platform Services and BMC Application Services. Customer is responsible for its own support for Customer Applications and Third Party Applications.
3.2 Notifications to Customer. Any general notifications from BMC Operations to Customer will be sent to the Customer contact stated in the Customer Technical Contact Information section of the Order. The Customer contact in the Order has been assigned by Customer as the Customer contact for operational issues that may arise. Customer shall notify BMC of any change to the Customer contact details in writing, which may include via e-mail.
3.3 Subcontractors. For the sake of clarity, Customer is informed that Third Party Publishers are not BMC Subcontractors.
3.4 Customer Responsibilities. In addition to the Customer Responsibilities set forth in the Base Agreement, Customer may not (i) transfer an Application outside of the Platform Services; or (ii) tamper with or circumvent any controls or make unauthorized copies of a BMC Application.
4. CUSTOMER APPLICATIONS AND THIRD PARTY APPLICATIONS.
4.1 Any Third Party Applications or Customer Applications that run on the Platform Services are hereby excluded from the defined terms “Subscription Services”, “BMC Application Services” and “Platform Services”. Such Third Party Applications are governed by the terms provided with the Third Party Applications, and are by and between Customer and the applicable Third Party Publisher. Customer and Third Party Publishers shall agree upon their respective obligations with respect to the processing of personal data by Third Party Publishers. Customer acknowledges and agrees that this Agreement does not govern Customer’s subscription, use and access of any Third Party Applications or Customer Applications, and said Third Party Applications and Customer Applications are specifically excluded from this Agreement.
4.2 Customer may utilize the Development Platform to create an Application to run on the Platform Services. Customer’s use of the Development Platform is governed by the terms of this Agreement subject to the restrictions set forth in sections 4.2.1 to 4.2.6 below. Customer’s development of an Application must meet the best practices development guidelines set forth in the User Guide. Each Customer Application shall at all times materially conform to policies and best practices set forth in the User Guide. Prior to the deployment of any Customer Applications in a production or non-production environment of the Platform Services, Customer must conduct security and functional tests of each Customer Application and submit the results of such tests to BMC for review. BMC reserves the right to reject Customer’s deployment request of a Customer Application based on the results of Customer’s security and functional tests. Additionally, BMC reserves the right, during the term of this Agreement, to request Customer conduct additional security and functional tests and provide the results of said tests to BMC for review. Notwithstanding the foregoing, Customer must ensure that at all times Customer Applications are secure.
4.2.1 Scope of use. The right to access and use the Development Platform is granted solely for the purpose of performing non-production application development work on the Development Platform.
4.2.2 Restrictions of use. Customer agrees not to:
- use the Development Platform to (1) process production data or for any other production purposes, including but not limited to publishing digital applications, or (2) distribute applications;
- use the Development Platform with data or information that has not been backed up; or
- modify, delete or remove any ownership, title, trademark, patent or copyright notices.
4.2.3 Customer Responsibilities. Customer is responsible for acquiring all necessary and required licenses for the use of any third party software, source code and/or libraries Customer may use as part of its development with the Development Platform. In addition to its other rights and remedies, BMC reserves the right, without liability to Customer, to immediately, at any time and for any reason refresh Customer’s instance of the Development Platform. Upon BMC’s refreshing of Customer’s instance of the Development Platform, Customer may lose all Customer Data submitted to or stored in said instance of the Development Platform. Upon termination of the Contract, BMC may destroy any Customer Data submitted to or stored therein. Customer is responsible for backing up any development work with Customer Data outside of the Development Platform.
4.2.4 Open Source. Customer may not use any software, library, utility, tool, or other computer or program code (“Code”) with the Subscription Services that in any way that would (i) weaken BMC’s intellectual property rights in the Services, or (ii) require the Subscription Services to become or be disclosed or distributed as Open Source Software. For purposes of this Section, “Open Source Software” means any Code that is substantially similar to, (A) the Affero General Public License, (B) the GNU General Public License (GPL) or Lesser/Library GPL (LGPL), (C) the Artistic License (e.g. PERL), (D) the Mozilla Public License, (E) the Netscape Public License, (F) the Sun Community Source License (SCSL), (G) the Sun Standards License (SISL), or (H) any “copyleft” license, or any other license that requires as a condition of use, reproduction, modification, or distribution that such Code or other software or computer code distributed with it: (1) be disclosed or distributed in source code form; (2) be licensed for the purpose of creating derivative works; (3) be licensed under terms that allow reverse engineering, reverse assembly, or disassembly of any kind; (4) be subject to a patent non-assert or royalty-free patent license; or (iv) be redistributable at no charge.
4.2.5 No Support. BMC, its affiliates, or licensors do not provide Support for the Development Platform.
4.2.6 Disclaimer of Warranty, Limitation of Liability and Exclusive Remedy. Notwithstanding anything to the contrary in this Contract or the Agreement:
- THE DEVELOPMENT PLATFORM IS PROVIDED “AS IS” WITHOUT ANY WARRANTY OF ANY KIND WHATSOEVER. BMC, ITS AFFILIATES AND LICENSORS DO NOT WARRANT THAT THE DEVELOPMENT PLATFORM WILL SATISFY CUSTOMER’S REQUIREMENTS, THAT THE DEVELOPMENT PLATFORM IS WITHOUT DEFECT, VIRUS OR ERROR FREE, WITHOUT DELAY, OR THAT THE OPERATION OF THE DEVELOPMENT PLATFORM WILL BE UNINTERUPTED. BMC, ITS AFFILIATES AND LICENSORS DISCLAIM ANY AND ALL REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, MADE WITH RESPECT TO THE DEVELOPMENT PLATFORM, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INTERFERENCE AND INFORMATION CONTENT; AND
- NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY, FOR ANY CLAIM, LOSS, DAMAGE OR EXPENSE FOR INDIRECT, SPECIAL, CONSEQUENTIAL, PUNITIVE OR INCIDENTAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE DEVELOPMENT PLATFORM (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST COMPUTER USAGE TIME, AND DAMAGE TO, OR LOSS OF USE OF, DATA), EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBLITY OF SUCH DAMAGES. EITHER PARTY’S ENTIRE LIABILITY AND THE OTHER PARTY’S EXCLUSIVE REMEDY FOR DIRECT DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE DEVELOPMENT PLATFORM, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, IS LIMITED TO $100.
4.3 License to Customer Applications. Subject to the terms and conditions of this Agreement, Customer hereby grants BMC a worldwide, limited, nonexclusive license during the term of the applicable Order for the Platform Services to host, copy, transmit, adapt and display Customer Applications solely for the purpose of fulfilling BMC’s obligations under this Agreement.
4.4 Functionality of Customer Applications. Customer is solely responsible for the operation of Customer Applications, including but not limited to any information stored in or transmitted by Customer Applications. Customer is responsible for monitoring the usage of each Customer Application. Customer is responsible for the configuration, functionality, performance, compliance with applicable data protection laws and security of all Customer Applications, including any interfaces used to connect to Customer Applications.
4.5 Use of Customer Applications. Customer has sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of Customer Applications and all Customer Data entered therein by Customer, its Users or on Customer’s behalf, the means by which Customer acquired such Customer Data, and the use of such Customer Data. Without limiting Customer’s obligations under the terms of this Agreement, Customer must (i) provide any necessary notice to, and obtain any necessary consent from, Users for the collection, use, transfer, and storage of Customer Data (including by BMC), and (b) collect, use, transfer, and store Customer Data in accordance with any privacy notice you provide, and all applicable laws.
4.6 Use of Third Party Applications. Customer is responsible for monitoring its usage of each Third Party Application, and such Third Party Publisher’s usage and license compliance is governed by the terms of the agreement entered into between Customer and the Third Party Publisher. Customer is responsible for all applicable fees associated with Customer’s use of Third Party Applications. Please note, Customer’s usage of such Third Party Applications may incur additional license fees between Customer and the applicable Third Party Publisher, as well as additional Platform Services fees.
4.7 Customer will provide information or other materials related to a Customer Applications as reasonably requested by BMC to verify Customer’s compliance with the Agreement and the User Guide. BMC may monitor Customer Applications and Third Party Applications running on the Platform Services to verify Customer’s compliance with the Agreement. Customer will not block or interfere with BMC’s monitoring. Customer will cooperate with BMC to identify the source of any problem with the Platform Services that BMC reasonably believes may be attributable to Customer Applications or Third Party Applications, or any Customer Data.
4.8 If BMC reasonably believes any Customer Data, Customer Applications or Third Party Applications violates the law, infringes or misappropriates the rights of any third party or otherwise violates a material term of the Agreement (including the User Guide) (“Prohibited Content”), BMC will notify Customer of the Prohibited Content and may request that such content be removed from the Platform Services or access to it be disabled. If Customer does not remove or disable access to the Prohibited Content within two (2) business days of BMC’s notice, BMC may remove or disable access to the Prohibited Content or suspend the Platform Services to the extent BMC is not able to remove or disable access to the Prohibited Content. Notwithstanding the foregoing, BMC may remove or disable access to any Prohibited Content without prior notice in connection with illegal content, where the content may disrupt or threaten the Platform Services, pursuant to the Digital Millennium Copyright Act or as required to comply with law or any judicial, regulatory or other governmental order or request. In the event that BMC removes content without prior notice, BMC will provide prompt notice to Customer unless prohibited by law.
4.9 Customer’s use of the Platform Services, BMC Application Services, Customer Applications and/or Third Party Applications may be immediately suspended and/or terminated due to (i) reasonable security threats regarding the Platform Services, Customer Applications or Third Party Applications, (ii) Customer Applications or Third Party Applications interfering with, disrupting or threatening the integrity or performance of the Subscription Services and/or the Platform Services or BMC Application Services, or (iii) a third party’s claim that Customer Applications or Third Party Applications may violate applicable law or third party rights. In the event of (i) or (ii) above apply to Customer Applications, Customer is required to remediate any such issue to BMC’s commercially reasonable satisfaction before use of Customer Applications can resume.
4.10 Customer’s access to Third Party Applications may be immediately suspended and/or terminated by BMC at the direction of the Third Party Publisher. Customer acknowledges and understands that access to Customer Applications and/or Third Party Applications used in connection with the Platform Services may be suspended due to Customer’s non-payment to BMC for use and access to the Platform Services or other breach of this Agreement. In no case will any such suspension or termination under the terms of this Agreement give rise to any BMC liability to Customer for a refund or other compensation.
4.11 Except with regard to applicable data protection laws, BMC takes no responsibility with regard to Customer Data (i) processed by Third Party Publishers and/or (ii) through the use by Customer of Third Party Applications.
4.12 BMC may conduct periodic security evaluations of all Customer Applications, which may include security review, a qualitative assessment involving review of a completed questionnaire, and an interview with appropriate Customer personnel. BMC conducts such security evaluations for its own benefit and Customer may not rely on the successful results of such evaluation. BMC may conduct such testing itself or, subject to the confidentiality obligations set forth in the Agreement, through a third party. BMC will provide reasonable notice to Customer before starting such testing. BMC will also cooperate reasonably with Customer to minimize the effects of such testing on Customer’s business and operations. Customer agrees to cooperate reasonably with such testing. Despite the foregoing, such testing may in rare cases cause downtime or other adverse effects on Customer Applications, Third Party Applications, the Platform Services or other BMC Application Services used by Customer. Any nonpublic information to which BMC obtains access in the course of such security testing will be considered Customer’s Confidential Information.
4.13 Customer Responsibilities. Customer’s obligations set forth in section 3.4 (a) of the Base Agreement shall apply in full to Platform Services, Customer Applications and Third Party Applications.
5. WARRANTIES. Customer warrants to BMC that: (a) each Customer Application will perform materially in accordance with the User Guide; (b) Customer owns all right, title, and interest in and to Customer Data, including but not limited to any Customer Data uploaded or entered into Customer Applications or Third Party Applications; (c) Customer has the necessary rights to use and access any Customer Applications and Third Party Applications deployed in a production or non-production environment of the Platform Services; (d) Customer has all rights in the Customer Data and Customer Applications necessary to grant the rights contemplated by this Agreement; (e) none of the Customer Data or Customer Applications or Users’ use of Customer Data or Customer Applications will violate the Agreement and the User Guide; (f) Customer’s security and functional tests of Customer Applications was conducted in a commercially reasonable manner and the results of said tests provided to BMC for review are correct and valid; and (g) none of the Third Party Applications or Users’ use of Third Party Applications will violate the Agreement or the User Guide.
ATTACHMENT B
CONSULTING SERVICES ATTACHMENT
to the
BMC CLOUD SERVICES MASTER AGREEMENT
to the
BMC CLOUD SERVICES MASTER AGREEMENT
Except as otherwise provided herein, the terms of the Cloud Services Master Agreement (the “Base Agreement”) are incorporated into this Consulting Services attachment (the “Attachment”). Together, this Attachment and the Base Agreement (as incorporated into this Attachment) are referred to as the “Agreement” for purposes of Customer’s purchase of Consulting Services, only if Consulting Services are set forth on an Order referencing the Base Agreement. For purposes of this Agreement, the term “Subscription Services” as defined in the Base Agreement shall be extended to include Consulting Services. In the event of a conflict between the Base Agreement and the terms of this Attachment, the terms of this Attachment will control for Customer’s purchase of Consulting Services only. The parties agree that the following Sections of the Base Agreement do not apply to the Consulting Services provided under this Attachment: Section 3.2 (Support), Section 4 (Fees and Payment), Section 6 (Limited Warranty) and Section 9 (Infringement Claims).
1. SCOPE. BMC agrees to render to Customer Consulting Services under the terms of this Agreement and as further described in an Order. BMC will render the Consulting Services in the location(s) as set forth in the Order. The performance of the Consulting Services will not relieve or alter the rights, obligations and responsibilities of Customer and of the BMC Affiliate providing Subscription Services and/or Licenses with respect to Subscription Services and/or Licenses under the applicable agreement in.
2. SERVICE FEES AND EXPENSES. The fees payable to BMC for the Consulting Services to be rendered will be detailed in the Order. BMC will submit invoices to Customer for such fees and incurred expenses either upon completion of the Consulting Services, or at stated intervals, in any case in accordance with the applicable Order. Customer shall pay amounts invoiced within 30 days following receipt of the invoice.
3. EDUCATION. Customer may acquire Learning Pass Credits and Education Services (collectively, “BMC Education”) on a Order. The BMC Education terms that govern such Orders are set forth in the Education Program Guide located at https://www.bmc.com/content/dam/bmc/education/education-program-guide.pdf, and is incorporated herein by this reference.
4. STATEMENTS OF WORK. Some Consulting Services may require the execution of a Statement of Work. Such requirement will be set forth in an Order. In the event of any conflict between the terms of a Statement of Work and this Agreement, the Agreement shall prevail except for matters of service fees, payment and reimbursement of expense terms if further specified in the Statement of Work. During the term of an applicable Statement of Work, and for a period of six months thereafter, neither party will solicit for employment any employees, agents, or subcontractors of the other party or its affiliates who, within six months prior to such solicitation, had contact with the soliciting party based in whole or in part upon Consulting Services provided under this Agreement. The restrictions in this section shall be deemed not to apply to general solicitations for employment posted on Internet job sites or printed in newspapers or trade or professional journals.
5. PROPRIETARY RIGHTS AND RIGHTS IN DELIVERABLES.
5.1 Ownership of Materials Used in the Consulting Services. Unless specifically provided in an Order, Customer shall supply all of the facilities; equipment; supplies; computer programs; information about Customer’s business, systems, software and needs; and other materials necessary for completion of the Consulting Services (“Customer Property”), and BMC shall supply the people described in the Order, the know-how and the tools necessary to provide the Consulting Services, which may include, among other things, software, templates, questionnaires, graphs, methodologies, models, charts and reports (“BMC Property”). Customer Property and copies and modifications of Customer Property will remain the sole property of Customer or if applicable, Customer’s licensors, and BMC Property and copies and modifications of BMC Property will remain the sole property of BMC or if applicable, BMC’s licensors. Customer hereby grants to BMC a royalty-free, paid-up, non-exclusive, non-sublicensable and non-transferable license to use the Customer Property for the purpose of providing the Consulting Services.
5.2 Deliverables. Deliverables are those created under the Order, including, but not limited to, software, software scripts, routines, libraries or other code, or appliances, methodologies, templates, tools, policies, records, working papers, reports, methodologies, know-how, data, or other intellectual property, written or otherwise, including any derivative works or modifications to the above, whether pre-existing or created during the performance of the Consulting Services and all proprietary and intellectual property rights embedded therein delivered as a result of the Consulting Services as specified under the Order. BMC owns all right, title and interest in the Deliverables. Provided Customer has paid in full for the Consulting Services that resulted in the Deliverables, BMC will deliver the Deliverables to Customer in accordance with the applicable Order. Subject to compliance with the terms of this Agreement and the applicable Order, BMC grants Customer a non-exclusive, non-transferable, non-sublicensable, royalty-free, paid-up license to use, create derivative works of and modify all Deliverables solely for its internal business operations.
5.3 Copyright Notice. Each party agrees to reproduce the copyright notice and any other legend or ownership notice on any copies made under the licenses granted pursuant to this Section 5.
5.4 Retention. Customer acknowledges that BMC provides similar services to other customers and that nothing in this Agreement shall be construed as operating to prevent BMC from carrying on such business. Further BMC may use ideas, concepts, or know-how developed or acquired by BMC during performance of the Consulting Services to the extent acquired by BMC’s personnel as impressions and general learning.
6. LIMITED WARRANTY. BMC warrants that it will perform the Consulting Services in conformance with generally accepted practices within the software services industry and in accordance with the Order. Customer must notify BMC of any breach of this warranty no later than 90 days after completion of the Consulting Services under the Order. Customer’s exclusive remedy and BMC’s entire liability under this warranty shall be for BMC to re-perform any non-conforming portion of the Consulting Services within a reasonable period of time, or if BMC cannot remedy the breach during such time period then refund the portion of the fee attributable to such non-conforming portion of the Consulting Services under the Order. This warranty will not apply to the extent Customer, its contractors or agents have modified any Deliverable, unless otherwise authorized by BMC in writing.
THIS WARRANTY AND CONDITION IS IN LIEU OF ALL OTHER WARRANTIES AND CONDITIONS. THERE ARE NO OTHER EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS, INCLUDING THE IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
7. INSURANCE. BMC will provide and maintain the following insurance, but only for losses arising out of BMC’s provision of Consulting Services under this Attachment:
7.1 Worker’s Compensation insurance as prescribed by the law of the state applicable to the employees performing the Consulting Services;
7.2 Employer’s Liability insurance with a limit of one million US dollars ($1,000,000) for each occurrence;
7.3 Commercial General Liability insurance with one million US dollars ($1,000,000) per occurrence combined single limit and five million US dollars ($5,000,000) general aggregate, including coverage for Products Liability and Completed Operations;
7.4 Automobile Liability insurance, including coverage for Hired and Non-owned vehicles of one million US dollars ($1,000,000) for combined single limit for bodily injury and/or property damage; and
7.5 Professional Liability insurance covering Errors and Omissions in the amount of one million US dollars ($1,000,000) for each occurrence and in the aggregate associated with Consulting Services performed under this AGREEMENT.
8. MUTUAL INDEMNITY. Each party shall indemnify and hold harmless the other party from all claims, liabilities or expenses for physical damage to real property or tangible personal property and bodily injury, including death, to the extent caused by the gross negligence or willful misconduct of the indemnifying party’s employees or contractors arising out of this Agreement and while at the Customer’s premises. The foregoing indemnities are contingent upon the party seeking indemnity giving prompt written notice to the indemnifying party of any claim, demand or action, and cooperating with the indemnifying party in the defense or settlement of any such claim, demand or action.
9. LIMITATION OF LIABILITY. Section 8 of the Base Agreement shall not apply to Customer’s breach of (i) BMC’s proprietary rights in the Deliverables and/or (ii) Section 5.2 of this Attachment B.
10. INDEPENDENT CONTRACTOR. All of the services performed by BMC under this Agreement will be performed as an independent contractor.
ATTACHMENT C
ON PREMISE SUBSCRIPTIONS ATTACHMENT
to the
BMC CLOUD SERVICES MASTER AGREEMENT
to the
BMC CLOUD SERVICES MASTER AGREEMENT
Except as otherwise provided herein, the terms of the Cloud Services Master Agreement (the “Base Agreement”) are incorporated into this On Premise Subscriptions attachment (the “Attachment”). Together, this Attachment and the Base Agreement (as incorporated into this Attachment) are referred to as the “Agreement” for purposes of Customer’s purchase and ongoing use of On Premise Subscriptions, only if On Premise Subscriptions are set forth on an Order referencing the Base Agreement. For purposes of this Agreement, the term “Subscription Services” as defined in the Base Agreement shall be extended to include On Premise Subscriptions. In the event of a conflict between the Base Agreement and the terms of this Attachment, the terms of this Attachment will control for Customer’s purchase of On Premise Subscriptions only. The parties agree that the following Sections of the Base Agreement do not apply to the On Premise Subscriptions provided under this Attachment: Section 3.1 (Access Rights), Section 3.4 (Customer Responsibilities and Restrictions), Section 6 (Limited Warranty) and Section 14 (Verification).
1. DEFINITIONS.
1.1	"Documentation" means the technical publications relating to the software, such as release notes, license entitlement descriptions, reference, user, installation, systems administrator and technical guidelines, included with the On Premise Subscription.
1.2	“Licensed Capacity” is the amount of each On Premise Subscription licensed as established in the Order.
1.3	“On Premise Subscription” is the object code of the software and all accompanying Documentation delivered to Customer, including all items delivered by BMC to Customer under Support.
2. LICENSE. Subject to the terms, conditions, payment requirements and restrictions set forth in this Agreement, BMC grants Customer a non-exclusive, non-transferable, non-sub-licensable term license to install in the Territory, access and use the On Premise Subscription during the term specified on the Order (i) up to the Licensed Capacity, (ii) for Customer’s and its Affiliates internal business operations, (iii) in accordance with the Documentation and the applicable Order, and (iv) make one copy of the On Premise Subscription for archival purposes only (collectively a "License"). Affiliates may use and access the On Premise Subscriptions under the terms of this Agreement, and Customer is responsible for its Affiliates compliance with the terms of this Agreement.
3. RESTRICTIONS. Customer will not: (a) copy, operate or use any On Premise Subscription in excess of the applicable Licensed Capacity or other than as set forth in the License above; (b) modify, delete or remove any ownership, title, trademark, patent or copyright notices (“Identification”) from any On Premise Subscription, or copy or partial copy of an On Premise Subscription; (c) disassemble, reverse engineer, decompile or otherwise attempt to derive any On Premise Subscription source code from object code, except to the extent expressly permitted by applicable law despite this limitation without possibility of contractual waiver; (d) distribute, rent, lease, sublicense or provide the On Premise Subscription to any third party; (e) use the On Premise Subscriptions in an outsourcing or service bureau environment on behalf of non-Affiliate third parties, or allow the On Premise Subscriptions to be used by an outsourcing or service bureau provider on Customer’s behalf; (f) provide a third party with the results of any functional evaluation, or performance tests, without BMC's prior written approval; or (g) attempt to disable or circumvent any of the licensing mechanisms within the On Premise Subscription.
4. ON PREMISE SUBSCRIPTION PERFORMANCE WARRANTY. BMC warrants that (a) the On Premise Subscription will perform in substantial accordance with its Documentation for a period of one year from the date of the first Order, (b) BMC has used commercially reasonable efforts consistent with industry standards to scan for and remove software viruses, and (c) other than passwords that may be required for the operation of the On Premise Subscription, BMC has not inserted any code that is not addressed in the Documentation and that is designed to delete, interfere with or disable the normal operation of the On Premise Subscription in accordance with the License. This warranty will not apply to any problems caused by hardware, Computers, or software other than the On Premise Subscription, or misuse of the On Premise Subscription, use of the On Premise Subscription other than as provided by the applicable License, modification of the On Premise Subscription, or claims made either outside the warranty period or not in compliance with the notice and access requirements set forth below. No warranty is provided for additional Licensed Capacity, On Premise Subscription provided pursuant to Support. BMC’s entire liability, and Customer’s exclusive remedy, for breach of the above warranty is limited to: BMC’s use of commercially reasonable efforts to have the On Premise Subscription perform in substantial accordance with its Documentation, or replacement of the non-conforming On Premise Subscription within a reasonable period of time, or if BMC cannot have the On Premise Subscription perform in substantial accordance with its Documentation replace the On Premise Subscription within such time period, then BMC will refund the amount paid by Customer for the License for that On Premise Subscription. Customer’s rights and BMC's obligations in this Section are conditioned upon Customer’s providing BMC during the warranty period (i) full cooperation and access to the On Premise Subscription in resolving any claim; and (ii) written notice addressed to the BMC Legal Department that includes notice of the claim, a complete description of the alleged defects sufficient to permit their reproduction in BMC’s development or support environment, and a specific reference to the Documentation to which such alleged defects are contrary.
EXCEPT FOR THE EXPRESS WARRANTIES IN THIS ATTACHMENT, THE ON PREMISE SUBSCRIPTION IS PROVIDED WITH NO OTHER WARRANTIES WHATSOEVER, AND BMC, ITS AFFILIATES AND LICENSORS DISCLAIM ALL OTHER WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. BMC DOES NOT WARRANT THAT THE OPERATION OF THE ON PREMISE SUBSCRIPTION WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT ALL DEFECTS CAN BE CORRECTED.
5. DELIVERY. For On Premise Subscriptions that are delivered electronically, upon request from BMC, Customer agrees to provide BMC with documentation supporting that the designated On Premise Subscription was received electronically. If Customer accepts any On Premise Subscription in a non-electronic format, there may be an additional charge and it is the sole responsibility of Customer to bear any sales/use tax obligation, penalties, and interest. All On Premise Subscriptions are licensed FCA (“Free Carrier” as per Incoterms 2000) shipping point. The On Premise Subscriptions are accepted on the date BMC delivers the On Premise Subscription to the Customer either physically or by providing access codes for electronic download, whichever occurs first, however, such acceptance will not affect the On Premise Subscription Performance Warranty provided in this Agreement.
6. AUDIT. If requested by BMC, and not more than once a year, Customer agrees to deliver to BMC, within 30 days of such request, as specified by BMC either (a) periodic product usage reports generated from specific products or (b) written periodic product usage reports, to be provided solely when the product does not generate reports (“Report”). Additionally, if requested by BMC not more than once a year, Customer agrees to allow BMC to perform an audit (“Audit”) at the locations where the On Premise Subscriptions are installed, during normal business hours to ensure compliance with the terms of this Agreement. Customer agrees to cooperate during any such Audit and to provide reasonable access to its information and systems. If an Audit or Report reveals that Customer has exceeded the Licensed Capacity for a On Premise Subscription, Customer agrees to pay the applicable fees for additional capacity upon receipt of invoice. If the understated capacity exceeds 5% of the Licensed Capacity of the applicable On Premise Subscription, then Customer agrees to also pay BMC’s reasonable costs of conducting the audit.
7. LIMITATION OF LIABILITY. Section 8 of the Base Agreement shall not apply to Customer’s breach of (i) BMC’s proprietary rights in the On Premise Subscriptions and/or (ii) Sections 2 and 3 of this Attachment C.
Effective November 2nd 2018 to December 17th 2018
DownloadTable of Contents
BMC CLOUD SERVICES MASTER AGREEMENT
THIS CLOUD SERVICES MASTER AGREEMENT (“AGREEMENT”) GOVERNS YOUR FREE TRIAL, IF ANY, OF THE SUBSCRIPTION SERVICES.
IF YOU PURCHASE THE SUBSCRIPTION SERVICES, THIS AGREEMENT WILL ALSO GOVERN YOUR PURCHASE AND ONGOING USE OF THE SUBSCRIPTION SERVICES.
BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SUBSCRIPTION SERVICES.
You may not access the Subscription Services if you are BMC’s direct competitor, except with BMC’s prior written consent. In addition, you may not access the Subscription Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.
This Agreement was last updated on October 26, 2018. This Agreement is between the entity or individual entering into this Agreement (“Customer”) and the BMC Contracting Entity for the applicable region as described in Section 12 (“BMC”). It is effective between Customer and BMC as of the date of your acceptance of this Agreement. For Customer’s convenience, prior versions of this Agreement are available at https://www.bmc.com/legal/csma.html.
FREE TRIAL.
BMC may make the Subscription Services available to Customer on a trial basis free of charge. If BMC offers Customer a free trial, it will run until the earlier of (a) the end of the trial period stated on the trial registration web page or (b) the start date of any Order for purchase of the Subscription Services. Additional trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.
ANY DATA CUSTOMER ENTERS INTO THE SUBSCRIPTION SERVICES, AND ANY CUSTOMIZATIONS MADE TO THE SUBSCRIPTION SERVICES BY OR FOR CUSTOMER, DURING A FREE TRIAL WILL BE PERMANENTLY LOST UNLESS CUSTOMER PURCHASES A SUBSCRIPTION TO THE SAME SUBSCRIPTION SERVICES AS THOSE COVERED BY THE TRIAL, OR EXPORTS SUCH DATA BEFORE THE END OF THE TRIAL PERIOD.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THE AGREEMENT, DURING ANY FREE TRIAL PERIOD THE SUBSCRIPTION SERVICES ARE PROVIDED “AS IS” WITH NO WARRANTY.
1.	DEFINITIONS.
1.1 “Affiliate” is an entity that controls, is controlled by or shares common control with BMC or Customer, where such control arises from either (a) a direct or indirect ownership interest of more than 50% or (b) the power to direct or cause the direction of the management and policies, whether through the ownership of voting stock by contract, or otherwise, equal to that provided by a direct or indirect ownership of more than 50%.
1.2 “Subscription Services” means the generally available hosted service which packages web-based access and the right-to-use the supported applications, installed agents and associated reference, user and technical guides.
1.3 “Capacity” means the amount of access to the Services purchased as specified in an Order, which is counted in accordance with the Unit of Measure described in the Order.
1.4 “Customer Data” means all electronic data or information (a) submitted to the Subscription Services by Customer, a third party on behalf of Customer, or as directed by Customer or (b) collected, processed or returned by the Subscription Services.
1.5 “Order” means (i) the agreed ordering document for the purchase of the Subscription Services, (ii) that is subject to this Agreement, and (iii) that identifies the terms of the purchase and fees to be paid. The term “Order” includes Customer’s online registration for and purchase of the Subscription Services, If any.
1.6 “User Guide” means the online help, functional guide and technical specifications for the Subscription Services, as updated by BMC from time to time.
2.	 SCOPE. Subject to the terms of this Agreement, Customer may purchase and BMC will provide Customer with access to the Subscription Services as set forth in this Agreement and the applicable Order. Subject to the Attachments to this Agreement, Customer may also purchase BMC Platform Services, BMC Consulting Services and BMC On Premise Subscription Services. In the event of a direct conflict between any Order and the terms of this Agreement, the terms of the Order will control only if the Order is executed by an authorized representative of each party. Each Order is deemed to be a discrete contract, separate from each other Order, unless expressly stated otherwise therein. Orders may be entered under this Agreement by and between (a) BMC or an Affiliate of BMC; and (b) Customer or an Affiliate of Customer. With respect to an Order, the terms “BMC” and “Customer” as used in this Agreement will be deemed to refer to the entities that execute that Order, the Order will be considered a two party agreement between such entities, and BMC will separately invoice the Customer named in the Order for the associated fees. Orders may also be placed via a BMC authorized reseller. Neither execution of this Agreement, nor anything contained herein, shall obligate either party to enter into any Orders.
3. ACCESS TO SUBSCRIPTION SERVICES.
3.1 Access Rights. Subject to Customer’s payment of applicable fees and to the terms of this Agreement, BMC will provide Customer with worldwide access to the Subscription Services in accordance with the Order (i) up to the Capacity, (ii) for Customer’s and its Affiliates’ internal business operations, (iii) in accordance with the User Guide and the applicable Order. Customer may exercise its rights under this Section 3.1 through its service providers, outsourcers, employees, consultants, contractors, agents, and Affiliates (all, “Users”).
3.2 BMC Subscription Services Support. BMC will provide the support described at http://www.bmc.com/support/review-policies (“Support”) to Customer for the Subscription Services, which may be changed by BMC upon prior notice to customer, provided that such changes do not materially degrade Support during the term of an Order.
3.3 Use of Subcontractors. Customer acknowledges and agrees that BMC uses subcontractors to provide portions of the Subscription Services. BMC will provide a list of its current subcontractors upon Customer’s written request. BMC is responsible for the performance of all subcontractors providing any of the Subscription Services.
3.4 Customer Responsibilities and Restrictions.
(a) 	 Customer will (i) maintain the confidentiality of all authentications and passwords for the Subscription Services and immediately notify BMC if it becomes aware that an unauthorized party has gained access such authentications and passwords, (ii) be responsible for use of the Subscription Services by its Users in compliance with this Agreement, (iii) prevent unauthorized access to, or use of, the Subscription Services, and notify BMC promptly of any such unauthorized access or use, (iv) comply with all applicable laws in using the Subscription Services, and (v) be responsible for obtaining its own Apple Push Notification certificate, if the Subscription Services are used to manage devices running iOS. Customer is responsible for the creation and implementation of a privacy policy and end user agreement, if applicable, which will set forth the guidelines of how Customer uses and protects the data and personal information of its Users, and how said Users may utilize the Subscription Services.
(b) 	 Customer will not (i) modify, copy or create derivative works based on the Subscription Services; (ii) create Internet “links” to or reproduce any content forming part of the Subscription Services, other than for its own internal business purposes; (iii) disassemble, reverse engineer, or decompile the Subscription Services or part thereof; (iv) interfere with or disrupt the integrity or performance of the Subscription Services; (vi) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortuous material, or send or store material in violation of any third party’s privacy rights via the Subscription Services; (vii) send or store viruses or malicious code via the Subscription Services; (viii) attempt to gain unauthorized access to the Subscription Services or its related software, systems, platforms or networks, including any form of security and/or penetration testing; (ix) use any components provided with the Subscription Services separately from the Subscription Services; or (x) distribute, rent, lease or provide the Subscription Services to any third party or use it in a service bureau, outsourcing environment, or for the processing of third party data.
4.	FEES AND PAYMENT.
4.1 Fees. The fees payable for the Subscription Services and the payment period for such fees will be set forth in and paid in accordance with the Order. All invoices are due upon receipt of invoice.
4.2 Late Fees. The unpaid balance of each late payment bears interest at a rate equal to the lesser of 1% per month or the maximum amount permitted by law. All fees are nonrefundable and BMC will not provide any refunds or credits for partially used periods of the Subscription Services.
4.3 Taxes. Customer will pay or reimburse BMC or, when required by law, the appropriate governmental agency, for taxes of any kind, including sales, use, VAT, excise, customs duties, withholding, property, and other similar taxes (other than taxes based on BMC’s net income or arising from the employment relationship between BMC and its personnel) imposed in connection with the fees paid for the Subscription Services, which are exclusive of these taxes.
5. TERM, SUSPENSION AND TERMINATION.
5.1 Term. This Agreement begins on the Effective Date and will remain in effect unless terminated pursuant to Section 5.2 below, regardless of the billing frequency selected in the Order.
5.2 Termination.
(a)	Termination for Convenience. Customer may terminate this Agreement by providing BMC with at least 30 days prior written notice; provided, however, such termination will have no effect on Orders in effect at the time of such termination. Orders may not be terminated for convenience unless otherwise specified therein. Customer may notify BMC of its intent to terminate by emailing BMC at order_services@bmc.com.
(b) 	Termination for Cause. Either party may terminate this Agreement and/or an Order for cause: (i) upon 30 days’ written notice of a material breach to the other party if such breach remains uncured at the expiration of such period; or (ii) immediately if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
5.3 Suspension of Subscription Services for Cause. In addition to its other rights and remedies, BMC reserves the right, without liability to Customer, to immediately suspend any and all access to the Subscription Services if Customer commits a material breach of this Agreement or any relevant Order until such material breach is cured.
5.4 Effects of Termination. Upon termination or expiration of any Order or this Agreement, all rights and Licenses granted thereunder will terminate and Customer will make no further use of the Subscription Services. No termination will relieve the Customer of the obligation to pay any fees accrued or payable to BMC pursuant to any Order. Upon written request by Customer made within 30 days after the effective date of termination, BMC will make the Customer Data available to Customer for retrieval in an industry standard format. After such 30-day period, BMC shall have no obligation to maintain any Customer Data and will thereafter delete Customer Data.
6. LIMITED WARRANTY.
6.1 Warranties and Limited Remedies. BMC warrants to Customer that:
(a)	the online availability of the Subscription Services will be maintained in accordance with the service levels attached to the applicable Order, if any (the “Service Level Agreement” or “SLA”). Customer’s exclusive remedy and BMC’s sole obligation for breach of the warranty in this Section 6.1(a) is described in the Service Level Agreement; and
(b)	the Subscription Services (i) will perform in substantial accordance with the then-current on-line User Guide available via the Subscription Services and (ii) will be performed in a manner consistent with industry standards reasonably applicable to the provision thereof. Customer’s exclusive remedy and BMC’s sole obligation for breach of the warranty in this Section 6.1(b) will be BMC’s use of commercially reasonable efforts to have the Subscription Services perform in substantial accordance with the User Guide, or replace the non-conforming portion of the Subscription Services within a reasonable period of time, or if BMC cannot have the Subscription Services perform in substantial accordance with the User Guide or replace the Subscription Services within such time period, then BMC will refund the amount paid by Customer for the Subscription Services, pro-rated from the date of the notice of the claim. Customer’s rights and BMC’s obligations in this Section 6.1(b) are conditioned upon Customer’s providing BMC with written notice of the claim, a complete description of the alleged defects and a specific reference to the User Guide to which such alleged defects are contrary.
6.2 Disclaimer. CUSTOMER ACKNOWLEDGES THAT, EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, BMC, ITS AFFILIATES AND LICENSORS MAKE NO WARRANTY, EXPRESS, IMPLIED OR STATUTORY WITH RESPECT TO THE SUBSCRIPTION SERVICES OR USE THEREOF. BMC, ITS AFFILIATES AND LICENSORS HEREBY EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY THAT SUBSCRIPTION SERVICES WILL BE UNINTERRUPTED, ERROR FREE OR WITHOUT DELAY, AND THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INTERFERENCE, NON-INFRINGEMENT AND INFORMATION CONTENT.
7. PROPRIETARY RIGHTS AND CONFIDENTIALITY.
7.1 Proprietary Rights. BMC, its Affiliates or licensors retain all right, title and interest to the Subscription Services and all related intellectual property and proprietary rights. The Subscription Services are protected by applicable copyright, trade secret, industrial and other intellectual property laws. BMC owns all right, title and interest in all software, programming, documentation, templates, questionnaires, methodologies, models, charts, reports, ideas, features, content, functions, graphics and any other items provided as part of the Subscription Services (“Service Items”) and access to and use of the relevant Service Items will be governed by the terms of this Agreement. Subject to (i) BMC’s or its licensor’s ownership of any Service Items contained in Customer Applications as defined in Attachment A and (ii) section 3.4 (b) (i) of the Agreement, Customer owns all rights, title, and interest in Customer Applications, including all proprietary and intellectual property rights. BMC reserves any rights not expressly granted to Customer. Customer shall not access the Subscription Services in order to build a competitive product or service or copy any ideas, features, functions or graphics of the Subscription Services. “Confidential Information” means all proprietary or confidential information that is disclosed to the recipient (“Recipient”) by the discloser (“Discloser”), and includes, among other things (i) any and all information relating to products or services provided by a Discloser, its customer-related and financial information, software code, flow charts, techniques, specifications, development and marketing plans, strategies, and forecasts; (ii) as to BMC, and its licensors, the Subscription Services and Service Items; and (iii) the terms of this Agreement, including without limitation, pricing information. Confidential Information does not include information that Recipient can show: (a) was rightfully in Recipient’s possession without any obligation of confidentiality before receipt from the Discloser; (b) is or becomes a matter of public knowledge through no fault of Recipient; (c) is rightfully received by Recipient from a third party without violation of a duty of confidentiality; or (d) is or was independently developed by or for Recipient. Recipient may not disclose Confidential Information of Discloser to any third party or use the Confidential Information in violation of this Agreement. The Recipient (i) will exercise the same degree of care and protection with respect to the Confidential Information of the Discloser that it exercises with respect to its own Confidential Information and (ii) will not, either directly or indirectly, disclose, copy, distribute, republish, or allow any third party to have access to any Confidential Information of the Discloser. Notwithstanding the foregoing, Recipient may disclose Discloser’s Confidential Information to Recipient’s employees and agents who have need to know provided that such employees and agents have legal obligations of confidentiality substantially the same (and in no case less protective) as the provisions of this Agreement.
7.2 Notification Obligation. If the Recipient becomes aware of any unauthorized use or disclosure of Discloser’s Confidential Information, then Recipient will promptly and fully notify the Discloser of all facts known to it concerning such unauthorized use or disclosure. In addition, if the Recipient or any of its employees or agents are required (by oral questions, interrogatories, requests for information, or documents in legal proceedings, subpoena, civil investigative demand, or other similar process) to disclose any of Discloser’s Confidential Information, the Recipient will not disclose the Discloser’s Confidential Information without providing the Discloser with commercially reasonable advance prior written notice to allow Discloser to seek a protective order or other appropriate remedy or to waive compliance with this provision. In any event, the Recipient will exercise its commercially reasonable efforts to preserve the confidentiality of the Discloser’s Confidential Information, including, without limitation, cooperating with Discloser to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded to the Confidential Information.
7.3 Customer Data. As between BMC and Customer, Customer owns all rights, title and interest in and to Customer Data. Customer Data is deemed Confidential Information under this Agreement. BMC will use the Customer Data only as necessary to provide the Subscription Services in accordance with this Agreement. At any time during the term of the Subscription Services, Customer may request copies of all Customer Data from the Subscription Services. Customer is responsible for complying with all legal and contractual requirements, including its agreements with third parties. With the exception of Customer Data collected by the Subscription Services, Customer is solely responsible for the transmission of Customer Data to BMC and to the Subscription Services. Customer is solely responsible for the encryption of any Customer Data.
7.4 Suggestions. Customer agrees that BMC shall have a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into any BMC products or services any suggestions, enhancement requests, recommendations or other feedback provided by Customer relating to the Subscription Services.
8. DISCLAIMER OF DAMAGES AND LIMITS ON LIABILITY.
8.1 DISCLAIMER OF DAMAGES. EXCEPT FOR EACH PARTY’S RESPONSIBILITIES IN SECTION 9, NEITHER PARTY OR ITS AFFILIATES ARE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES RELATING TO OR ARISING OUT OF THIS AGREEMENT OR THE SUBSCRIPTION SERVICES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST COMPUTER USAGE TIME, AND DAMAGE TO, OR LOSS OF USE OF, DATA), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND IRRESPECTIVE OF ANY NEGLIGENCE OF A PARTY OR WHETHER SUCH DAMAGES RESULT FROM A CLAIM ARISING UNDER TORT OR CONTRACT LAW.
8.2 LIMITS ON LIABILITY. EXCEPT FOR EACH PARTY’S RESPONSIBILITIES IN SECTION 9, NEITHER PARTY OR ITS AFFILIATES SHALL HAVE AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SUBSCRIPTION SERVICES, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEEDING THE AMOUNTS ACTUALLY PAID BY AND DUE FROM CUSTOMER PURSUANT TO THE ORDER(S) GIVING RISE TO LIABILITY THAT ARE IN EFFECT AS OF SUCH DATE.
9. INFRINGEMENT CLAIMS.
9.1 Indemnification by BMC. If a third party asserts a claim against Customer asserting that Customer’s use of the Subscription Services, including Platform Services, Deliverables and Licenses as defined in the Attachments to this Agreement, in accordance with this Agreement violates that third-party’s patent, trade secret or copyright rights (“Infringement Claim”), then BMC will, at its own expense: (a) defend or settle the Infringement Claim; and (b) indemnify Customer for any damages finally awarded against Customer based on infringement by the Subscription Services, including court costs and reasonable attorney’s fees. If BMC believes the Subscription Services may violate a right, then BMC will, at its expense: (a) modify the Subscription Services, or (b) procure the right to continue using the Subscription Services, and if (a) or (b) are not commercially reasonable, terminate Customer's right to use the Subscription Services and issue a pro-rata refund for the unexpired pre-paid portion of such Subscription Services.
9.2 Indemnification by Customer. Subject to the terms of this Agreement, if a third party asserts a claim against BMC asserting that the (i) Customer Data, (ii) Customer Applications as defined in Attachment A, (iii) Customer Property as defined in Attachment B or (iv) Customer’s use of the Subscription Services in violation of this Agreement violates that third-party’s patent, trade secret or copyright rights (“Claim”), Customer will, at its own expense: (a) defend or settle the Claim; and (b) indemnify BMC for any damages finally awarded against BMC based on the Claim, including court costs and reasonable attorney’s fees.
9.3 Indemnity Process. Neither party’s obligations under this Section will apply if: (a) the indemnifying party’s legal department does not receive prompt, detailed written notice of the Infringement Claim/Claim from the party being indemnified, (b) the indemnifying party is not able to retain sole control of the defense of the Infringement Claim/Claim and all negotiations for its settlement or compromise, or (c) the indemnifying party does not receive all reasonable assistance from the party being indemnified. Neither party will bind the indemnified party to a monetary obligation in a settlement or compromise, or make an admission on behalf of the indemnified party, without obtaining that party’s prior consent.
9.4 THIS SECTION 9 CONTAINS EACH PARTY'S EXCLUSIVE REMEDIES AND THE INDEMNIFYING PARTY'S SOLE LIABILITY FOR INFRINGEMENT CLAIMS/CLAIMS, RESPECTIVELY.
10. EXPORT CONTROLS. Customer represents and warrants that it: a) will comply with the United States Export Administration Regulations and other U.S. or foreign export regulations; b) no individual accessing or using the Subscription Services is a citizen of or from an embargoed country (currently Iran, Syria, Sudan, Cuba and North Korea); c) is not prohibited from receiving the Subscription Services under such regulations; d) will not acquire the Subscription Services for a person who is restricted under such regulations; e) will not use the Subscription Services in contradiction to such regulations; and f) will not use the Subscription Services for prohibited uses, including but not limited to nuclear, chemical, missile or biological weapons related end uses. For Subscription Services exported from Ireland, EC No. 428/2009 sets up a Community regime for control of exports of dual-use items and technology, and it is declared that this Subscription Services is intended for civil purposes only. Therefore, Customer agrees to comply with both the U.S. regulations and those E.U. regulations and will not export in violation of the regulations and without all proper licenses. Customer’ failure to comply with these regulations will result in an automatic termination of the Agreement and all rights to the Subscription Services thereunder.
11. GOVERNING LAW AND DISPUTE RESOLUTION. Any controversy, dispute or claim arising out of or relating to this Agreement, or to the formation, interpretation, breach, termination, or validity thereof (each, a “Controversy”) will be resolved as follows:
(i)	UNITED STATES. If both parties to this Agreement are entities incorporated under the law of any state in the United States, the Controversy shall be tried in either state or federal court located in Houston, Texas and the laws of the State of Texas shall govern. Both parties hereby submit to the exclusive jurisdiction of the courts in Houston, Texas and waive all defenses based on forum non conveniens.
(ii)	EMEA. If both parties to this Agreement are entities incorporated in countries in the Europe, Middle East, or Africa regions, the Controversy shall be tried in the District Court located in Amsterdam, the Netherlands and the substantive laws of the Netherlands shall govern. Both parties hereby submit to the exclusive jurisdiction of the District Court in Amsterdam, the Netherlands and waive all defenses based on forum non conveniens.
(iii)	ASIA PACIFIC. If both parties to this Agreement are entities incorporated in countries in the Asia Pacific region, the arbitration shall be held in Singapore under the then-applicable rules of the Singapore International Arbitration Centre and the substantive laws of Singapore will govern.
(iv)	OTHER REGIONS. In all other instances, the arbitration shall be held in New York City, New York, under the then-applicable international rules of the American Arbitration Association and the substantive laws of the State of Texas will govern.
For all arbitrations conducted hereunder: (a) the arbitration shall be conducted in English; (b) the relevant arbitral institution shall determine the number of arbitrators, but any Controversy in which the amount in dispute is greater than $10 million USD shall be decided by three arbitrators, with each party having the right to select one arbitrator; (c) the costs of such arbitration shall be borne equally, pending the arbitrator’s award; (d) the arbitration award rendered shall be final and binding on the parties, shall not be subject to appeal to any court and shall be enforceable in any court having jurisdiction over the parties; (e) the arbitration proceedings, award and pleadings shall all be confidential, unless disclosure of particular information is required for purposes of enforcing/challenging the award or to meet local securities law requirements; and (f) the party prevailing in arbitration shall be entitled to recover its reasonable attorneys’ fees and the necessary costs incurred in connection with the arbitration.
The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. Nothing in this Agreement shall be deemed as preventing either party from seeking immediate injunctive relief from any court having jurisdiction over the parties and the subject matter of the dispute.
12.	The following BMC contracting entities apply to this Agreement:
Region | Contracting Entity | Address of Contracting Entity |
United States and Latin America South (not a specified Central or South America country below) | BMC Software, Inc. | 2103 CityWest Boulevard, Houston, Texas 77042 |
Canada | BMC Software Canada Inc. | 50 Minthorn Boulevard, Suite 200 Markham, Ontario L3T 7X8 Canada |
EMEA (Europe, Middle East and Africa) | BMC Software Distribution B.V. | Boeing Avenue 245, 1119 PD Schiphol Rijk, The Netherlands |
Brazil | BMC Software do Brasil Ltda. | Av. das Nações Unidas, 8.501 – 22º Andar Condomínio Eldorado Business Tower São Paulo, Brasil – 05425-070 |
Mexico | BMC Software Distribution de México, S.A. de C.V. | Volcán 150, Piso 4, Col. Lomas de Chapultepec, C.P. 11000, Deleg. Miguel Hidalgo, Ciudad de México |
Argentina | BMC Software de Argentina S.A. | Ing. Butty 220 – Piso 18, Buenos Aires, Republica Argentina, C1001AFB |
S.E.A (Southeast Asia), Australia, New Zealand, Hong Kong, Taiwan | BMC Software Asia Pacific Pte Ltd | 600 North Bridge Road, #20-01/10 Parkview Square, Singapore 188778 |
China | BMC Software (China) Limited | Room 502, Level 5, Tower W1, The Towers, Oriental Plaza, No. 1 East Chang An Ave., Dong Cheng Dist., Beijing 100738, China |
Japan | BMC Software K.K. | Harmony Tower 24th Floor, 1-32-2 Honcho, Nakano-ku, Tokyo, 164-8721 |
Korea | BMC Software Korea Ltd | 24th Fl., ASEM Tower, 1517, Yeongdong-daero,Gangnam-gu, Seoul 135-798, Korea South |
13. U.S. FEDERAL ACQUISITIONS. This Section applies only to acquisitions of the commercial Subscription Services and Documentation subject to this Agreement by or on behalf of the United States Government, or by any prime contractor or subcontractor (at any tier) under any contract, grant, cooperative agreement or other activity with the United States Government. In the event the Subscription Services are delivered to the United States Government, the United States Government hereby agrees that the Subscription Services qualify as “commercial items” within the meaning of the Federal acquisition regulation(s) applicable to this procurement. The terms and conditions of this Agreement shall pertain to the United States Government’s use and disclosure of the Product, and shall supersede any conflicting contractual terms and conditions. The following additional statement applies only to acquisitions governed by DFARS Subpart 227.4 (October 1988): “Restricted Rights – Use, duplication and disclosure by the Government is subject to restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 (Oct. 1988).”
14. DATA PROTECTION. The processing of Customer Data under this Agreement is governed by the BMC Data Processing Agreement set forth on the Order.
15. VERIFICATION. Customer agrees that BMC or its agent may monitor the Subscription Services to ensure Customer’s compliance with the terms of this Agreement. If such monitoring reveals that Customer has exceeded the Capacity for the Subscription Services, Customer agrees to pay the applicable fees for additional capacity upon receipt of an invoice from BMC. If Customer to fails to pay fees for such additional capacity, BMC may suspend Customer’s access to the Subscription Services until such fees are paid in full.
16. MISCELLANEOUS TERMS. BMC is not liable for its failure to perform any of its obligations under this Agreement during any period in which performance is delayed by Customer or circumstances beyond BMC's reasonable control. The parties are independent contractors and this Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties. Customer will receive system notifications from BMC and its licensors, if applicable (i.e. planned downtime notices, etc). This Agreement, including the Attachments and Orders constitutes the entire agreement between Customer and BMC and supersedes any prior or contemporaneous negotiations or agreements, whether oral or written concerning the Subscription Services. There are no representations, promises, warranties, covenants, or undertakings between the parties other than those expressly set forth in this Agreement. There are no third-party beneficiaries to this Agreement; Customer is not entering into a contractual relationship with BMC’s licensors and BMC’s licensors have no liability to Customer. Except as provided in Section 2 above, no modification or waiver of any provision hereof will be effective unless made in a writing signed by both BMC and Customer. Customer may not assign or transfer this Agreement or the Subscription Services to a third party, whether by merger, operation of law, or otherwise. Should any provision of this Agreement be invalid or unenforceable, the remainder of the provisions will remain in effect. Any additional or conflicting terms of any Customer purchase order are rejected by BMC and do not apply. The Subscription Services may contain hyperlinks to websites controlled by parties other than BMC. BMC is not responsible for and does not endorse the content or accept any responsibility for Customer’s use of these websites. Customer should refer to the policies posted by other websites regarding privacy and other topics regarding data privacy before using them.
Attachments incorporated into Agreement |
Attachment A – Platform Services Attachment |
Attachment B – Consulting Services Attachment |
Attachment C – On Premise Subscription Services Attachment |
PLATFORM SERVICES ATTACHMENT
to the
BMC CLOUD SERVICES MASTER AGREEMENT
to the
BMC CLOUD SERVICES MASTER AGREEMENT
Except as otherwise provided herein, the terms of the Cloud Services Master Agreement (the “Base Agreement”) are incorporated into this Platform Services attachment (the “Attachment”). Together, this Attachment and the Base Agreement (as incorporated into this Attachment) are referred to as the “Agreement” for purposes of Customer’s access and use of Platform Services, only if the Platform Services are set forth on an Order referencing the Base Agreement. For purposes of this Agreement, the term “Subscription Services” as defined in the Base Agreement shall be extended to include the Platform Services. In the event of a conflict between the Base Agreement and the terms of this Attachment, the terms of this Attachment will control for Customer’s access and use of the Platform Services only.
1. SCOPE. Subject to the terms of this Agreement, BMC will provide Customer with access to the Platform Service named in the applicable Order. Customer may only use the Platform Services to store, retrieve, query, serve, and process Customer Data that is owned, licensed or lawfully obtained by Customer. As part of Customer’s subscription to the Platform Services, Customer may be allowed to run certain Applications on the Platform Services that are either (i) sold by BMC, (ii) sold by a Third Party Publisher, or (iii) owned or licensed by Customer.
2. DEFINITIONS.
2.1	“Application” is the object code, its definitional structures, and data created to fulfill a particular purpose, which runs on the Platform Services. An Application may also include its documentation and User Guide.
2.2 “BMC Application Services” means a generally available Application that is provided as a subscription by BMC to customers, including all items delivered by BMC to Customer under Support related to such Application.
2.3 “Customer Applications” means Applications that are owned or licensed by Customer, not including any Third Party Applications, and which run on the Platform Services.
2.4 “Customer Data” means all information uploaded or entered by Customer to the Platform Services, excluding Customer Applications.
2.5 “Development Platform” means a BMC provided development platform which allows Customer to develop a custom application to run on the Platform Services.
2.6 “Platform Services” means the generally available BMC-provided platform specified on the Order and its capabilities to run Applications. The specific Platform Services being will be identified in the Order.
2.7 “Third Party Applications” means Applications that are owned by a Third Party Publisher with a valid independent software vendor agreement in place with BMC, and are licensed by said Third Party Publisher to customers.
2.8 “Third Party Publisher” means a party other than BMC or a BMC Affiliate that is the owner and licensor of a Third Party Application, and has a valid independent software vendor agreement in place with BMC. For the sake of clarity, Customer is informed that Third Party Publishers are not BMC Subcontractors.
3. BMC PLATFORM SERVICES.
3.1 BMC Platform Services Support. BMC will provide Support only for Platform Services and BMC Application Services. Customer is responsible for its own support for Customer Applications and Third Party Applications.
3.2 Notifications to Customer. Any general notifications from BMC Operations to Customer will be sent to the Customer contact stated in the Customer Technical Contact Information section of the Order. The Customer contact in the Order has been assigned by Customer as the Customer contact for operational issues that may arise. Customer shall notify BMC of any change to the Customer contact details in writing, which may include via e-mail.
3.3 Subcontractors. For the sake of clarity, Customer is informed that Third Party Publishers are not BMC Subcontractors.
3.4 Customer Responsibilities. In addition to the Customer Responsibilities set forth in the Base Agreement, Customer may not (i) transfer an Application outside of the Platform Services; or (ii) tamper with or circumvent any controls or make unauthorized copies of a BMC Application.
4. CUSTOMER APPLICATIONS AND THIRD PARTY APPLICATIONS.
4.1 Any Third Party Applications or Customer Applications that run on the Platform Services are hereby excluded from the defined terms “Subscription Services”, “BMC Application Services” and “Platform Services”. Such Third Party Applications are governed by the terms provided with the Third Party Applications, and are by and between Customer and the applicable Third Party Publisher. Customer and Third Party Publishers shall agree upon their respective obligations with respect to the processing of personal data by Third Party Publishers. Customer acknowledges and agrees that this Agreement does not govern Customer’s subscription, use and access of any Third Party Applications or Customer Applications, and said Third Party Applications and Customer Applications are specifically excluded from this Agreement.
4.2 Customer may utilize the Development Platform to create an Application to run on the Platform Services. Customer’s use of the Development Platform is governed by the terms of this Agreement subject to the restrictions set forth in sections 4.2.1 to 4.2.6 below. Customer’s development of an Application must meet the best practices development guidelines set forth in the User Guide. Each Customer Application shall at all times materially conform to policies and best practices set forth in the User Guide. Prior to the deployment of any Customer Applications in a production or non-production environment of the Platform Services, Customer must conduct security and functional tests of each Customer Application and submit the results of such tests to BMC for review. BMC reserves the right to reject Customer’s deployment request of a Customer Application based on the results of Customer’s security and functional tests. Additionally, BMC reserves the right, during the term of this Agreement, to request Customer conduct additional security and functional tests and provide the results of said tests to BMC for review. Notwithstanding the foregoing, Customer must ensure that at all times Customer Applications are secure.
4.2.1 Scope of use. The right to access and use the Development Platform is granted solely for the purpose of performing non-production application development work on the Development Platform.
4.2.2 Restrictions of use. Customer agrees not to:
- use the Development Platform to (1) process production data or for any other production purposes, including but not limited to publishing digital applications, or (2) distribute applications;
- use the Development Platform with data or information that has not been backed up; or
- modify, delete or remove any ownership, title, trademark, patent or copyright notices.
4.2.3 Customer Responsibilities. Customer is responsible for acquiring all necessary and required licenses for the use of any third party software, source code and/or libraries Customer may use as part of its development with the Development Platform. In addition to its other rights and remedies, BMC reserves the right, without liability to Customer, to immediately, at any time and for any reason refresh Customer’s instance of the Development Platform. Upon BMC’s refreshing of Customer’s instance of the Development Platform, Customer may lose all Customer Data submitted to or stored in said instance of the Development Platform. Upon termination of the Contract, BMC may destroy any Customer Data submitted to or stored therein. Customer is responsible for backing up any development work with Customer Data outside of the Development Platform.
4.2.4 Open Source. Customer may not use any software, library, utility, tool, or other computer or program code (“Code”) with the Subscription Services that in any way that would (i) weaken BMC’s intellectual property rights in the Services, or (ii) require the Subscription Services to become or be disclosed or distributed as Open Source Software. For purposes of this Section, “Open Source Software” means any Code that is substantially similar to, (A) the Affero General Public License, (B) the GNU General Public License (GPL) or Lesser/Library GPL (LGPL), (C) the Artistic License (e.g. PERL), (D) the Mozilla Public License, (E) the Netscape Public License, (F) the Sun Community Source License (SCSL), (G) the Sun Standards License (SISL), or (H) any “copyleft” license, or any other license that requires as a condition of use, reproduction, modification, or distribution that such Code or other software or computer code distributed with it: (1) be disclosed or distributed in source code form; (2) be licensed for the purpose of creating derivative works; (3) be licensed under terms that allow reverse engineering, reverse assembly, or disassembly of any kind; (4) be subject to a patent non-assert or royalty-free patent license; or (iv) be redistributable at no charge.
4.2.5 No Support. BMC, its affiliates, or licensors do not provide Support for the Development Platform.
4.2.6 Disclaimer of Warranty, Limitation of Liability and Exclusive Remedy. Notwithstanding anything to the contrary in this Contract or the Agreement:
- THE DEVELOPMENT PLATFORM IS PROVIDED “AS IS” WITHOUT ANY WARRANTY OF ANY KIND WHATSOEVER. BMC, ITS AFFILIATES AND LICENSORS DO NOT WARRANT THAT THE DEVELOPMENT PLATFORM WILL SATISFY CUSTOMER’S REQUIREMENTS, THAT THE DEVELOPMENT PLATFORM IS WITHOUT DEFECT, VIRUS OR ERROR FREE, WITHOUT DELAY, OR THAT THE OPERATION OF THE DEVELOPMENT PLATFORM WILL BE UNINTERUPTED. BMC, ITS AFFILIATES AND LICENSORS DISCLAIM ANY AND ALL REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, MADE WITH RESPECT TO THE DEVELOPMENT PLATFORM, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INTERFERENCE AND INFORMATION CONTENT; AND
- NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY, FOR ANY CLAIM, LOSS, DAMAGE OR EXPENSE FOR INDIRECT, SPECIAL, CONSEQUENTIAL, PUNITIVE OR INCIDENTAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE DEVELOPMENT PLATFORM (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST COMPUTER USAGE TIME, AND DAMAGE TO, OR LOSS OF USE OF, DATA), EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBLITY OF SUCH DAMAGES. EITHER PARTY’S ENTIRE LIABILITY AND THE OTHER PARTY’S EXCLUSIVE REMEDY FOR DIRECT DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE DEVELOPMENT PLATFORM, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, IS LIMITED TO $100.
4.3 License to Customer Applications. Subject to the terms and conditions of this Agreement, Customer hereby grants BMC a worldwide, limited, nonexclusive license during the term of the applicable Order for the Platform Services to host, copy, transmit, adapt and display Customer Applications solely for the purpose of fulfilling BMC’s obligations under this Agreement.
4.4 Functionality of Customer Applications. Customer is solely responsible for the operation of Customer Applications, including but not limited to any information stored in or transmitted by Customer Applications. Customer is responsible for monitoring the usage of each Customer Application. Customer is responsible for the configuration, functionality, performance, compliance with applicable data protection laws and security of all Customer Applications, including any interfaces used to connect to Customer Applications.
4.5 Use of Customer Applications. Customer has sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of Customer Applications and all Customer Data entered therein by Customer, its Users or on Customer’s behalf, the means by which Customer acquired such Customer Data, and the use of such Customer Data. Without limiting Customer’s obligations under the terms of this Agreement, Customer must (i) provide any necessary notice to, and obtain any necessary consent from, Users for the collection, use, transfer, and storage of Customer Data (including by BMC), and (b) collect, use, transfer, and store Customer Data in accordance with any privacy notice you provide, and all applicable laws.
4.6 Use of Third Party Applications. Customer is responsible for monitoring its usage of each Third Party Application, and such Third Party Publisher’s usage and license compliance is governed by the terms of the agreement entered into between Customer and the Third Party Publisher. Customer is responsible for all applicable fees associated with Customer’s use of Third Party Applications. Please note, Customer’s usage of such Third Party Applications may incur additional license fees between Customer and the applicable Third Party Publisher, as well as additional Platform Services fees.
4.7 Customer will provide information or other materials related to a Customer Applications as reasonably requested by BMC to verify Customer’s compliance with the Agreement and the User Guide. BMC may monitor Customer Applications and Third Party Applications running on the Platform Services to verify Customer’s compliance with the Agreement. Customer will not block or interfere with BMC’s monitoring. Customer will cooperate with BMC to identify the source of any problem with the Platform Services that BMC reasonably believes may be attributable to Customer Applications or Third Party Applications, or any Customer Data.
4.8 If BMC reasonably believes any Customer Data, Customer Applications or Third Party Applications violates the law, infringes or misappropriates the rights of any third party or otherwise violates a material term of the Agreement (including the User Guide) (“Prohibited Content”), BMC will notify Customer of the Prohibited Content and may request that such content be removed from the Platform Services or access to it be disabled. If Customer does not remove or disable access to the Prohibited Content within two (2) business days of BMC’s notice, BMC may remove or disable access to the Prohibited Content or suspend the Platform Services to the extent BMC is not able to remove or disable access to the Prohibited Content. Notwithstanding the foregoing, BMC may remove or disable access to any Prohibited Content without prior notice in connection with illegal content, where the content may disrupt or threaten the Platform Services, pursuant to the Digital Millennium Copyright Act or as required to comply with law or any judicial, regulatory or other governmental order or request. In the event that BMC removes content without prior notice, BMC will provide prompt notice to Customer unless prohibited by law.
4.9 Customer’s use of the Platform Services, BMC Application Services, Customer Applications and/or Third Party Applications may be immediately suspended and/or terminated due to (i) reasonable security threats regarding the Platform Services, Customer Applications or Third Party Applications, (ii) Customer Applications or Third Party Applications interfering with, disrupting or threatening the integrity or performance of the Subscription Services and/or the Platform Services or BMC Application Services, or (iii) a third party’s claim that Customer Applications or Third Party Applications may violate applicable law or third party rights. In the event of (i) or (ii) above apply to Customer Applications, Customer is required to remediate any such issue to BMC’s commercially reasonable satisfaction before use of Customer Applications can resume.
4.10 Customer’s access to Third Party Applications may be immediately suspended and/or terminated by BMC at the direction of the Third Party Publisher. Customer acknowledges and understands that access to Customer Applications and/or Third Party Applications used in connection with the Platform Services may be suspended due to Customer’s non-payment to BMC for use and access to the Platform Services or other breach of this Agreement. In no case will any such suspension or termination under the terms of this Agreement give rise to any BMC liability to Customer for a refund or other compensation.
4.11 Except with regard to applicable data protection laws, BMC takes no responsibility with regard to Customer Data (i) processed by Third Party Publishers and/or (ii) through the use by Customer of Third Party Applications.
4.12 BMC may conduct periodic security evaluations of all Customer Applications, which may include security review, a qualitative assessment involving review of a completed questionnaire, and an interview with appropriate Customer personnel. BMC conducts such security evaluations for its own benefit and Customer may not rely on the successful results of such evaluation. BMC may conduct such testing itself or, subject to the confidentiality obligations set forth in the Agreement, through a third party. BMC will provide reasonable notice to Customer before starting such testing. BMC will also cooperate reasonably with Customer to minimize the effects of such testing on Customer’s business and operations. Customer agrees to cooperate reasonably with such testing. Despite the foregoing, such testing may in rare cases cause downtime or other adverse effects on Customer Applications, Third Party Applications, the Platform Services or other BMC Application Services used by Customer. Any nonpublic information to which BMC obtains access in the course of such security testing will be considered Customer’s Confidential Information.
4.13 Customer Responsibilities. Customer’s obligations set forth in section 3.4 (a) of the Base Agreement shall apply in full to Platform Services, Customer Applications and Third Party Applications.
5. WARRANTIES. Customer warrants to BMC that: (a) each Customer Application will perform materially in accordance with the User Guide; (b) Customer owns all right, title, and interest in and to Customer Data, including but not limited to any Customer Data uploaded or entered into Customer Applications or Third Party Applications; (c) Customer has the necessary rights to use and access any Customer Applications and Third Party Applications deployed in a production or non-production environment of the Platform Services; (d) Customer has all rights in the Customer Data and Customer Applications necessary to grant the rights contemplated by this Agreement; (e) none of the Customer Data or Customer Applications or Users’ use of Customer Data or Customer Applications will violate the Agreement and the User Guide; (f) Customer’s security and functional tests of Customer Applications was conducted in a commercially reasonable manner and the results of said tests provided to BMC for review are correct and valid; and (g) none of the Third Party Applications or Users’ use of Third Party Applications will violate the Agreement or the User Guide.
ATTACHMENT B
CONSULTING SERVICES ATTACHMENT
to the
BMC CLOUD SERVICES MASTER AGREEMENT
to the
BMC CLOUD SERVICES MASTER AGREEMENT
Except as otherwise provided herein, the terms of the Cloud Services Master Agreement (the “Base Agreement”) are incorporated into this Consulting Services attachment (the “Attachment”). Together, this Attachment and the Base Agreement (as incorporated into this Attachment) are referred to as the “Agreement” for purposes of Customer’s purchase of Consulting Services, only if Consulting Services are set forth on an Order referencing the Base Agreement. For purposes of this Agreement, the term “Subscription Services” as defined in the Base Agreement shall be extended to include Consulting Services. In the event of a conflict between the Base Agreement and the terms of this Attachment, the terms of this Attachment will control for Customer’s purchase of Consulting Services only. The parties agree that the following Sections of the Base Agreement do not apply to the Consulting Services provided under this Attachment: Section 3.2 (Support), Section 4 (Fees and Payment), Section 6 (Limited Warranty) and Section 9 (Infringement Claims).
1. SCOPE. BMC agrees to render to Customer Consulting Services under the terms of this Agreement and as further described in an Order. BMC will render the Consulting Services in the location(s) as set forth in the Order. The performance of the Consulting Services will not relieve or alter the rights, obligations and responsibilities of Customer and of the BMC Affiliate providing Subscription Services and/or Licenses with respect to Subscription Services and/or Licenses under the applicable agreement in.
2. SERVICE FEES AND EXPENSES. The fees payable to BMC for the Consulting Services to be rendered will be detailed in the Order. BMC will submit invoices to Customer for such fees and incurred expenses either upon completion of the Consulting Services, or at stated intervals, in any case in accordance with the applicable Order. Customer shall pay amounts invoiced within 30 days following receipt of the invoice.
3. EDUCATION. Customer may acquire Learning Pass Credits and Education Services (collectively, “BMC Education”) on a Order. The BMC Education terms that govern such Orders are set forth in the Education Program Guide located at http://media.cms.bmc.com/documents/education-program-guide.pdf, and is incorporated herein by this reference.
4. STATEMENTS OF WORK. Some Consulting Services may require the execution of a Statement of Work. Such requirement will be set forth in an Order. In the event of any conflict between the terms of a Statement of Work and this Agreement, the Agreement shall prevail except for matters of service fees, payment and reimbursement of expense terms if further specified in the Statement of Work. During the term of an applicable Statement of Work, and for a period of six months thereafter, neither party will solicit for employment any employees, agents, or subcontractors of the other party or its affiliates who, within six months prior to such solicitation, had contact with the soliciting party based in whole or in part upon Consulting Services provided under this Agreement. The restrictions in this section shall be deemed not to apply to general solicitations for employment posted on Internet job sites or printed in newspapers or trade or professional journals.
5. PROPRIETARY RIGHTS AND RIGHTS IN DELIVERABLES.
5.1 Ownership of Materials Used in the Consulting Services. Unless specifically provided in an Order, Customer shall supply all of the facilities; equipment; supplies; computer programs; information about Customer’s business, systems, software and needs; and other materials necessary for completion of the Consulting Services (“Customer Property”), and BMC shall supply the people described in the Order, the know-how and the tools necessary to provide the Consulting Services, which may include, among other things, software, templates, questionnaires, graphs, methodologies, models, charts and reports (“BMC Property”). Customer Property and copies and modifications of Customer Property will remain the sole property of Customer or if applicable, Customer’s licensors, and BMC Property and copies and modifications of BMC Property will remain the sole property of BMC or if applicable, BMC’s licensors. Customer hereby grants to BMC a royalty-free, paid-up, non-exclusive, non-sublicensable and non-transferable license to use the Customer Property for the purpose of providing the Consulting Services.
5.2 Deliverables. Deliverables are those created under the Order, including, but not limited to, software, software scripts, routines, libraries or other code, or appliances, methodologies, templates, tools, policies, records, working papers, reports, methodologies, know-how, data, or other intellectual property, written or otherwise, including any derivative works or modifications to the above, whether pre-existing or created during the performance of the Consulting Services and all proprietary and intellectual property rights embedded therein delivered as a result of the Consulting Services as specified under the Order. BMC owns all right, title and interest in the Deliverables. Provided Customer has paid in full for the Consulting Services that resulted in the Deliverables, BMC will deliver the Deliverables to Customer in accordance with the applicable Order. Subject to compliance with the terms of this Agreement and the applicable Order, BMC grants Customer a non-exclusive, non-transferable, non-sublicensable, royalty-free, paid-up license to use, create derivative works of and modify all Deliverables solely for its internal business operations.
5.3 Copyright Notice. Each party agrees to reproduce the copyright notice and any other legend or ownership notice on any copies made under the licenses granted pursuant to this Section 5.
5.4 Retention. Customer acknowledges that BMC provides similar services to other customers and that nothing in this Agreement shall be construed as operating to prevent BMC from carrying on such business. Further BMC may use ideas, concepts, or know-how developed or acquired by BMC during performance of the Consulting Services to the extent acquired by BMC’s personnel as impressions and general learning.
6. LIMITED WARRANTY. BMC warrants that it will perform the Consulting Services in conformance with generally accepted practices within the software services industry and in accordance with the Order. Customer must notify BMC of any breach of this warranty no later than 90 days after completion of the Consulting Services under the Order. Customer’s exclusive remedy and BMC’s entire liability under this warranty shall be for BMC to re-perform any non-conforming portion of the Consulting Services within a reasonable period of time, or if BMC cannot remedy the breach during such time period then refund the portion of the fee attributable to such non-conforming portion of the Consulting Services under the Order. This warranty will not apply to the extent Customer, its contractors or agents have modified any Deliverable, unless otherwise authorized by BMC in writing.
THIS WARRANTY AND CONDITION IS IN LIEU OF ALL OTHER WARRANTIES AND CONDITIONS. THERE ARE NO OTHER EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS, INCLUDING THE IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
7. INSURANCE. BMC will provide and maintain the following insurance, but only for losses arising out of BMC’s provision of Consulting Services under this Attachment:
7.1 Worker’s Compensation insurance as prescribed by the law of the state applicable to the employees performing the Consulting Services;
7.2 Employer’s Liability insurance with a limit of one million US dollars ($1,000,000) for each occurrence;
7.3 Commercial General Liability insurance with one million US dollars ($1,000,000) per occurrence combined single limit and five million US dollars ($5,000,000) general aggregate, including coverage for Products Liability and Completed Operations;
7.4 Automobile Liability insurance, including coverage for Hired and Non-owned vehicles of one million US dollars ($1,000,000) for combined single limit for bodily injury and/or property damage; and
7.5 Professional Liability insurance covering Errors and Omissions in the amount of one million US dollars ($1,000,000) for each occurrence and in the aggregate associated with Consulting Services performed under this AGREEMENT.
8. MUTUAL INDEMNITY. Each party shall indemnify and hold harmless the other party from all claims, liabilities or expenses for physical damage to real property or tangible personal property and bodily injury, including death, to the extent caused by the gross negligence or willful misconduct of the indemnifying party’s employees or contractors arising out of this Agreement and while at the Customer’s premises. The foregoing indemnities are contingent upon the party seeking indemnity giving prompt written notice to the indemnifying party of any claim, demand or action, and cooperating with the indemnifying party in the defense or settlement of any such claim, demand or action.
9. LIMITATION OF LIABILITY. Section 8 of the Base Agreement shall not apply to Customer’s breach of (i) BMC’s proprietary rights in the Deliverables and/or (ii) Section 5.2 of this Attachment B.
10. INDEPENDENT CONTRACTOR. All of the services performed by BMC under this Agreement will be performed as an independent contractor.
ATTACHMENT C
ON PREMISE SUBSCRIPTIONS ATTACHMENT
to the
BMC CLOUD SERVICES MASTER AGREEMENT
to the
BMC CLOUD SERVICES MASTER AGREEMENT
Except as otherwise provided herein, the terms of the Cloud Services Master Agreement (the “Base Agreement”) are incorporated into this On Premise Subscriptions attachment (the “Attachment”). Together, this Attachment and the Base Agreement (as incorporated into this Attachment) are referred to as the “Agreement” for purposes of Customer’s purchase and ongoing use of On Premise Subscriptions, only if On Premise Subscriptions are set forth on an Order referencing the Base Agreement. For purposes of this Agreement, the term “Subscription Services” as defined in the Base Agreement shall be extended to include On Premise Subscriptions. In the event of a conflict between the Base Agreement and the terms of this Attachment, the terms of this Attachment will control for Customer’s purchase of On Premise Subscriptions only. The parties agree that the following Sections of the Base Agreement do not apply to the On Premise Subscriptions provided under this Attachment: Section 3.1 (Access Rights), Section 3.4 (Customer Responsibilities and Restrictions), Section 6 (Limited Warranty) and Section 14 (Verification).
1. DEFINITIONS.
1.1	"Documentation" means the technical publications relating to the software, such as release notes, license entitlement descriptions, reference, user, installation, systems administrator and technical guidelines, included with the On Premise Subscription.
1.2	“Licensed Capacity” is the amount of each On Premise Subscription licensed as established in the Order.
1.3	“On Premise Subscription” is the object code of the software and all accompanying Documentation delivered to Customer, including all items delivered by BMC to Customer under Support.
2. LICENSE. Subject to the terms, conditions, payment requirements and restrictions set forth in this Agreement, BMC grants Customer a non-exclusive, non-transferable, non-sub-licensable term license to install in the Territory, access and use the On Premise Subscription during the term specified on the Order (i) up to the Licensed Capacity, (ii) for Customer’s and its Affiliates internal business operations, (iii) in accordance with the Documentation and the applicable Order, and (iv) make one copy of the On Premise Subscription for archival purposes only (collectively a "License"). Affiliates may use and access the On Premise Subscriptions under the terms of this Agreement, and Customer is responsible for its Affiliates compliance with the terms of this Agreement.
3. RESTRICTIONS. Customer will not: (a) copy, operate or use any On Premise Subscription in excess of the applicable Licensed Capacity or other than as set forth in the License above; (b) modify, delete or remove any ownership, title, trademark, patent or copyright notices (“Identification”) from any On Premise Subscription, or copy or partial copy of an On Premise Subscription; (c) disassemble, reverse engineer, decompile or otherwise attempt to derive any On Premise Subscription source code from object code, except to the extent expressly permitted by applicable law despite this limitation without possibility of contractual waiver; (d) distribute, rent, lease, sublicense or provide the On Premise Subscription to any third party; (e) use the On Premise Subscriptions in an outsourcing or service bureau environment on behalf of non-Affiliate third parties, or allow the On Premise Subscriptions to be used by an outsourcing or service bureau provider on Customer’s behalf; (f) provide a third party with the results of any functional evaluation, or performance tests, without BMC's prior written approval; or (g) attempt to disable or circumvent any of the licensing mechanisms within the On Premise Subscription.
4. ON PREMISE SUBSCRIPTION PERFORMANCE WARRANTY. BMC warrants that (a) the On Premise Subscription will perform in substantial accordance with its Documentation for a period of one year from the date of the first Order, (b) BMC has used commercially reasonable efforts consistent with industry standards to scan for and remove software viruses, and (c) other than passwords that may be required for the operation of the On Premise Subscription, BMC has not inserted any code that is not addressed in the Documentation and that is designed to delete, interfere with or disable the normal operation of the On Premise Subscription in accordance with the License. This warranty will not apply to any problems caused by hardware, Computers, or software other than the On Premise Subscription, or misuse of the On Premise Subscription, use of the On Premise Subscription other than as provided by the applicable License, modification of the On Premise Subscription, or claims made either outside the warranty period or not in compliance with the notice and access requirements set forth below. No warranty is provided for additional Licensed Capacity, On Premise Subscription provided pursuant to Support. BMC’s entire liability, and Customer’s exclusive remedy, for breach of the above warranty is limited to: BMC’s use of commercially reasonable efforts to have the On Premise Subscription perform in substantial accordance with its Documentation, or replacement of the non-conforming On Premise Subscription within a reasonable period of time, or if BMC cannot have the On Premise Subscription perform in substantial accordance with its Documentation replace the On Premise Subscription within such time period, then BMC will refund the amount paid by Customer for the License for that On Premise Subscription. Customer’s rights and BMC's obligations in this Section are conditioned upon Customer’s providing BMC during the warranty period (i) full cooperation and access to the On Premise Subscription in resolving any claim; and (ii) written notice addressed to the BMC Legal Department that includes notice of the claim, a complete description of the alleged defects sufficient to permit their reproduction in BMC’s development or support environment, and a specific reference to the Documentation to which such alleged defects are contrary.
EXCEPT FOR THE EXPRESS WARRANTIES IN THIS ATTACHMENT, THE ON PREMISE SUBSCRIPTION IS PROVIDED WITH NO OTHER WARRANTIES WHATSOEVER, AND BMC, ITS AFFILIATES AND LICENSORS DISCLAIM ALL OTHER WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. BMC DOES NOT WARRANT THAT THE OPERATION OF THE ON PREMISE SUBSCRIPTION WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT ALL DEFECTS CAN BE CORRECTED.
5. DELIVERY. For On Premise Subscriptions that are delivered electronically, upon request from BMC, Customer agrees to provide BMC with documentation supporting that the designated On Premise Subscription was received electronically. If Customer accepts any On Premise Subscription in a non-electronic format, there may be an additional charge and it is the sole responsibility of Customer to bear any sales/use tax obligation, penalties, and interest. All On Premise Subscriptions are licensed FCA (“Free Carrier” as per Incoterms 2000) shipping point. The On Premise Subscriptions are accepted on the date BMC delivers the On Premise Subscription to the Customer either physically or by providing access codes for electronic download, whichever occurs first, however, such acceptance will not affect the On Premise Subscription Performance Warranty provided in this Agreement.
6. AUDIT. If requested by BMC, and not more than once a year, Customer agrees to deliver to BMC, within 30 days of such request, as specified by BMC either (a) periodic product usage reports generated from specific products or (b) written periodic product usage reports, to be provided solely when the product does not generate reports (“Report”). Additionally, if requested by BMC not more than once a year, Customer agrees to allow BMC to perform an audit (“Audit”) at the locations where the On Premise Subscriptions are installed, during normal business hours to ensure compliance with the terms of this Agreement. Customer agrees to cooperate during any such Audit and to provide reasonable access to its information and systems. If an Audit or Report reveals that Customer has exceeded the Licensed Capacity for a On Premise Subscription, Customer agrees to pay the applicable fees for additional capacity upon receipt of invoice. If the understated capacity exceeds 5% of the Licensed Capacity of the applicable On Premise Subscription, then Customer agrees to also pay BMC’s reasonable costs of conducting the audit.
7. LIMITATION OF LIABILITY. Section 8 of the Base Agreement shall not apply to Customer’s breach of (i) BMC’s proprietary rights in the On Premise Subscriptions and/or (ii) Sections 2 and 3 of this Attachment C.
Effective October 26th 2018 to November 2nd 2018
DownloadTable of Contents
BMC CLOUD SERVICES MASTER AGREEMENT
THIS CLOUD SERVICES MASTER AGREEMENT (“AGREEMENT”) GOVERNS YOUR FREE TRIAL, IF ANY, OF THE SUBSCRIPTION SERVICES.
IF YOU PURCHASE THE SUBSCRIPTION SERVICES, THIS AGREEMENT WILL ALSO GOVERN YOUR PURCHASE AND ONGOING USE OF THE SUBSCRIPTION SERVICES.
BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SUBSCRIPTION SERVICES.
You may not access the Subscription Services if you are BMC’s direct competitor, except with BMC’s prior written consent. In addition, you may not access the Subscription Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.
This Agreement was last updated on June 21, 2018. This Agreement is between the entity or individual entering into this Agreement (“Customer”) and the BMC Contracting Entity for the applicable region as described in Section 12 (“BMC”). It is effective between Customer and BMC as of the date of your acceptance of this Agreement. For Customer’s convenience, prior versions of this Agreement are available at https://www.bmc.com/legal/csma.html.
FREE TRIAL.
BMC may make the Subscription Services available to Customer on a trial basis free of charge. If BMC offers Customer a free trial, it will run until the earlier of (a) the end of the trial period stated on the trial registration web page or (b) the start date of any Order for purchase of the Subscription Services. Additional trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.
ANY DATA CUSTOMER ENTERS INTO THE SUBSCRIPTION SERVICES, AND ANY CUSTOMIZATIONS MADE TO THE SUBSCRIPTION SERVICES BY OR FOR CUSTOMER, DURING A FREE TRIAL WILL BE PERMANENTLY LOST UNLESS CUSTOMER PURCHASES A SUBSCRIPTION TO THE SAME SUBSCRIPTION SERVICES AS THOSE COVERED BY THE TRIAL, OR EXPORTS SUCH DATA BEFORE THE END OF THE TRIAL PERIOD.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THE AGREEMENT, DURING ANY FREE TRIAL PERIOD THE SUBSCRIPTION SERVICES ARE PROVIDED “AS IS” WITH NO WARRANTY.
1.	DEFINITIONS.
1.1 “Affiliate” is an entity that controls, is controlled by or shares common control with BMC or Customer, where such control arises from either (a) a direct or indirect ownership interest of more than 50% or (b) the power to direct or cause the direction of the management and policies, whether through the ownership of voting stock by contract, or otherwise, equal to that provided by a direct or indirect ownership of more than 50%.
1.2 “Subscription Services” means the generally available hosted service which packages web-based access and the right-to-use the supported applications, installed agents and associated reference, user and technical guides.
1.3 “Capacity” means the amount of access to the Services purchased as specified in an Order, which is counted in accordance with the Unit of Measure described in the Order.
1.4 “Customer Data” means all electronic data or information (a) submitted to the Subscription Services by Customer, a third party on behalf of Customer, or as directed by Customer or (b) collected, processed or returned by the Subscription Services.
1.5 “Order” means (i) the agreed ordering document for the purchase of the Subscription Services, (ii) that is subject to this Agreement, and (iii) that identifies the terms of the purchase and fees to be paid. The term “Order” includes Customer’s online registration for and purchase of the Subscription Services, If any.
1.6 “User Guide” means the online help, functional guide and technical specifications for the Subscription Services, as updated by BMC from time to time.
2.	 SCOPE. Subject to the terms of this Agreement, Customer may purchase and BMC will provide Customer with access to the Subscription Services as set forth in this Agreement and the applicable Order. Subject to the Attachments to this Agreement, Customer may also purchase BMC Platform Services, BMC Consulting Services and BMC On Premise Subscription Services. In the event of a direct conflict between any Order and the terms of this Agreement, the terms of the Order will control only if the Order is executed by an authorized representative of each party. Each Order is deemed to be a discrete contract, separate from each other Order, unless expressly stated otherwise therein. Orders may be entered under this Agreement by and between (a) BMC or an Affiliate of BMC; and (b) Customer or an Affiliate of Customer. With respect to an Order, the terms “BMC” and “Customer” as used in this Agreement will be deemed to refer to the entities that execute that Order, the Order will be considered a two party agreement between such entities, and BMC will separately invoice the Customer named in the Order for the associated fees. Orders may also be placed via a BMC authorized reseller. Neither execution of this Agreement, nor anything contained herein, shall obligate either party to enter into any Orders.
3. ACCESS TO SUBSCRIPTION SERVICES.
3.1 Access Rights. Subject to Customer’s payment of applicable fees and to the terms of this Agreement, BMC will provide Customer with worldwide access to the Subscription Services in accordance with the Order (i) up to the Capacity, (ii) for Customer’s and its Affiliates’ internal business operations, (iii) in accordance with the User Guide and the applicable Order. Customer may exercise its rights under this Section 3.1 through its service providers, outsourcers, employees, consultants, contractors, agents, and Affiliates (all, “Users”).
3.2 BMC Subscription Services Support. BMC will provide the support described at http://www.bmc.com/support/review-policies (“Support”) to Customer for the Subscription Services, which may be changed by BMC upon prior notice to customer, provided that such changes do not materially degrade Support during the term of an Order.
3.3 Use of Subcontractors. Customer acknowledges and agrees that BMC uses subcontractors to provide portions of the Subscription Services. BMC will provide a list of its current subcontractors upon Customer’s written request. BMC is responsible for the performance of all subcontractors providing any of the Subscription Services.
3.4 Customer Responsibilities and Restrictions.
(a) 	 Customer will (i) maintain the confidentiality of all authentications and passwords for the Subscription Services and immediately notify BMC if it becomes aware that an unauthorized party has gained access such authentications and passwords, (ii) be responsible for use of the Subscription Services by its Users in compliance with this Agreement, (iii) prevent unauthorized access to, or use of, the Subscription Services, and notify BMC promptly of any such unauthorized access or use, (iv) comply with all applicable laws in using the Subscription Services, and (v) be responsible for obtaining its own Apple Push Notification certificate, if the Subscription Services are used to manage devices running iOS. Customer is responsible for the creation and implementation of a privacy policy and end user agreement, if applicable, which will set forth the guidelines of how Customer uses and protects the data and personal information of its Users, and how said Users may utilize the Subscription Services.
(b) 	 Customer will not (i) modify, copy or create derivative works based on the Subscription Services; (ii) create Internet “links” to or reproduce any content forming part of the Subscription Services, other than for its own internal business purposes; (iii) disassemble, reverse engineer, or decompile the Subscription Services or part thereof; (iv) interfere with or disrupt the integrity or performance of the Subscription Services; (vi) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortuous material, or send or store material in violation of any third party’s privacy rights via the Subscription Services; (vii) send or store viruses or malicious code via the Subscription Services; (viii) attempt to gain unauthorized access to the Subscription Services or its related software, systems, platforms or networks, including any form of security and/or penetration testing; (ix) use any components provided with the Subscription Services separately from the Subscription Services; or (x) distribute, rent, lease or provide the Subscription Services to any third party or use it in a service bureau, outsourcing environment, or for the processing of third party data.
4.	FEES AND PAYMENT.
4.1 Fees. The fees payable for the Subscription Services and the payment period for such fees will be set forth in and paid in accordance with the Order. All invoices are due upon receipt of invoice.
4.2 Late Fees. The unpaid balance of each late payment bears interest at a rate equal to the lesser of 1% per month or the maximum amount permitted by law. All fees are nonrefundable and BMC will not provide any refunds or credits for partially used periods of the Subscription Services.
4.3 Taxes. Customer will pay or reimburse BMC or, when required by law, the appropriate governmental agency, for taxes of any kind, including sales, use, VAT, excise, customs duties, withholding, property, and other similar taxes (other than taxes based on BMC’s net income or arising from the employment relationship between BMC and its personnel) imposed in connection with the fees paid for the Subscription Services, which are exclusive of these taxes.
5. TERM, SUSPENSION AND TERMINATION.
5.1 Term. This Agreement begins on the Effective Date and will remain in effect unless terminated pursuant to Section 5.2 below, regardless of the billing frequency selected in the Order.
5.2 Termination.
(a)	Termination for Convenience. Customer may terminate this Agreement by providing BMC with at least 30 days prior written notice; provided, however, such termination will have no effect on Orders in effect at the time of such termination. Orders may not be terminated for convenience unless otherwise specified therein. Customer may notify BMC of its intent to terminate by emailing BMC at order_services@bmc.com.
(b) 	Termination for Cause. Either party may terminate this Agreement and/or an Order for cause: (i) upon 30 days’ written notice of a material breach to the other party if such breach remains uncured at the expiration of such period; or (ii) immediately if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
5.3 Suspension of Subscription Services for Cause. In addition to its other rights and remedies, BMC reserves the right, without liability to Customer, to immediately suspend any and all access to the Subscription Services if Customer commits a material breach of this Agreement or any relevant Order until such material breach is cured.
5.4 Effects of Termination. Upon termination or expiration of any Order or this Agreement, all rights and Licenses granted thereunder will terminate and Customer will make no further use of the Subscription Services. No termination will relieve the Customer of the obligation to pay any fees accrued or payable to BMC pursuant to any Order. Upon written request by Customer made within 30 days after the effective date of termination, BMC will make the Customer Data available to Customer for retrieval in an industry standard format. After such 30-day period, BMC shall have no obligation to maintain any Customer Data and will thereafter delete Customer Data.
6. LIMITED WARRANTY.
6.1 Warranties and Limited Remedies. BMC warrants to Customer that:
(a)	the online availability of the Subscription Services will be maintained in accordance with the service levels attached to the applicable Order, if any (the “Service Level Agreement” or “SLA”). Customer’s exclusive remedy and BMC’s sole obligation for breach of the warranty in this Section 6.1(a) is described in the Service Level Agreement; and
(b)	the Subscription Services (i) will perform in substantial accordance with the then-current on-line User Guide available via the Subscription Services and (ii) will be performed in a manner consistent with industry standards reasonably applicable to the provision thereof. Customer’s exclusive remedy and BMC’s sole obligation for breach of the warranty in this Section 6.1(b) will be BMC’s use of commercially reasonable efforts to have the Subscription Services perform in substantial accordance with the User Guide, or replace the non-conforming portion of the Subscription Services within a reasonable period of time, or if BMC cannot have the Subscription Services perform in substantial accordance with the User Guide or replace the Subscription Services within such time period, then BMC will refund the amount paid by Customer for the Subscription Services, pro-rated from the date of the notice of the claim. Customer’s rights and BMC’s obligations in this Section 6.1(b) are conditioned upon Customer’s providing BMC with written notice of the claim, a complete description of the alleged defects and a specific reference to the User Guide to which such alleged defects are contrary.
6.2 Disclaimer. CUSTOMER ACKNOWLEDGES THAT, EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, BMC, ITS AFFILIATES AND LICENSORS MAKE NO WARRANTY, EXPRESS, IMPLIED OR STATUTORY WITH RESPECT TO THE SUBSCRIPTION SERVICES OR USE THEREOF. BMC, ITS AFFILIATES AND LICENSORS HEREBY EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY THAT SUBSCRIPTION SERVICES WILL BE UNINTERRUPTED, ERROR FREE OR WITHOUT DELAY, AND THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INTERFERENCE, NON-INFRINGEMENT AND INFORMATION CONTENT.
7. PROPRIETARY RIGHTS AND CONFIDENTIALITY.
7.1 Proprietary Rights. BMC, its Affiliates or licensors retain all right, title and interest to the Subscription Services and all related intellectual property and proprietary rights. The Subscription Services are protected by applicable copyright, trade secret, industrial and other intellectual property laws. BMC owns all right, title and interest in all software, programming, documentation, templates, questionnaires, methodologies, models, charts, reports, ideas, features, content, functions, graphics and any other items provided as part of the Subscription Services (“Service Items”) and access to and use of the relevant Service Items will be governed by the terms of this Agreement. Subject to (i) BMC’s or its licensor’s ownership of any Service Items contained in Customer Applications as defined in Attachment A and (ii) section 3.4 (b) (i) of the Agreement, Customer owns all rights, title, and interest in Customer Applications, including all proprietary and intellectual property rights. BMC reserves any rights not expressly granted to Customer. Customer shall not access the Subscription Services in order to build a competitive product or service or copy any ideas, features, functions or graphics of the Subscription Services. “Confidential Information” means all proprietary or confidential information that is disclosed to the recipient (“Recipient”) by the discloser (“Discloser”), and includes, among other things (i) any and all information relating to products or services provided by a Discloser, its customer-related and financial information, software code, flow charts, techniques, specifications, development and marketing plans, strategies, and forecasts; (ii) as to BMC, and its licensors, the Subscription Services and Service Items; and (iii) the terms of this Agreement, including without limitation, pricing information. Confidential Information does not include information that Recipient can show: (a) was rightfully in Recipient’s possession without any obligation of confidentiality before receipt from the Discloser; (b) is or becomes a matter of public knowledge through no fault of Recipient; (c) is rightfully received by Recipient from a third party without violation of a duty of confidentiality; or (d) is or was independently developed by or for Recipient. Recipient may not disclose Confidential Information of Discloser to any third party or use the Confidential Information in violation of this Agreement. The Recipient (i) will exercise the same degree of care and protection with respect to the Confidential Information of the Discloser that it exercises with respect to its own Confidential Information and (ii) will not, either directly or indirectly, disclose, copy, distribute, republish, or allow any third party to have access to any Confidential Information of the Discloser. Notwithstanding the foregoing, Recipient may disclose Discloser’s Confidential Information to Recipient’s employees and agents who have need to know provided that such employees and agents have legal obligations of confidentiality substantially the same (and in no case less protective) as the provisions of this Agreement.
7.2 Notification Obligation. If the Recipient becomes aware of any unauthorized use or disclosure of Discloser’s Confidential Information, then Recipient will promptly and fully notify the Discloser of all facts known to it concerning such unauthorized use or disclosure. In addition, if the Recipient or any of its employees or agents are required (by oral questions, interrogatories, requests for information, or documents in legal proceedings, subpoena, civil investigative demand, or other similar process) to disclose any of Discloser’s Confidential Information, the Recipient will not disclose the Discloser’s Confidential Information without providing the Discloser with commercially reasonable advance prior written notice to allow Discloser to seek a protective order or other appropriate remedy or to waive compliance with this provision. In any event, the Recipient will exercise its commercially reasonable efforts to preserve the confidentiality of the Discloser’s Confidential Information, including, without limitation, cooperating with Discloser to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded to the Confidential Information.
7.3 Customer Data. As between BMC and Customer, Customer owns all rights, title and interest in and to Customer Data. Customer Data is deemed Confidential Information under this Agreement. BMC will use the Customer Data only as necessary to provide the Subscription Services in accordance with this Agreement. At any time during the term of the Subscription Services, Customer may request copies of all Customer Data from the Subscription Services. Customer is responsible for complying with all legal and contractual requirements, including its agreements with third parties. With the exception of Customer Data collected by the Subscription Services, Customer is solely responsible for the transmission of Customer Data to BMC and to the Subscription Services. Customer is solely responsible for the encryption of any Customer Data.
7.4 Suggestions. Customer agrees that BMC shall have a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into any BMC products or services any suggestions, enhancement requests, recommendations or other feedback provided by Customer relating to the Subscription Services.
8. DISCLAIMER OF DAMAGES AND LIMITS ON LIABILITY.
8.1 DISCLAIMER OF DAMAGES. EXCEPT FOR EACH PARTY’S RESPONSIBILITIES IN SECTION 9, NEITHER PARTY OR ITS AFFILIATES ARE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES RELATING TO OR ARISING OUT OF THIS AGREEMENT OR THE SUBSCRIPTION SERVICES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST COMPUTER USAGE TIME, AND DAMAGE TO, OR LOSS OF USE OF, DATA), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND IRRESPECTIVE OF ANY NEGLIGENCE OF A PARTY OR WHETHER SUCH DAMAGES RESULT FROM A CLAIM ARISING UNDER TORT OR CONTRACT LAW.
8.2 LIMITS ON LIABILITY. EXCEPT FOR EACH PARTY’S RESPONSIBILITIES IN SECTION 9, NEITHER PARTY OR ITS AFFILIATES SHALL HAVE AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SUBSCRIPTION SERVICES, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEEDING THE AMOUNTS ACTUALLY PAID BY AND DUE FROM CUSTOMER PURSUANT TO THE ORDER(S) GIVING RISE TO LIABILITY THAT ARE IN EFFECT AS OF SUCH DATE.
9. INFRINGEMENT CLAIMS.
9.1 Indemnification by BMC. If a third party asserts a claim against Customer asserting that Customer’s use of the Subscription Services, including Platform Services, Deliverables and Licenses as defined in the Attachments to this Agreement, in accordance with this Agreement violates that third-party’s patent, trade secret or copyright rights (“Infringement Claim”), then BMC will, at its own expense: (a) defend or settle the Infringement Claim; and (b) indemnify Customer for any damages finally awarded against Customer based on infringement by the Subscription Services, including court costs and reasonable attorney’s fees. If BMC believes the Subscription Services may violate a right, then BMC will, at its expense: (a) modify the Subscription Services, or (b) procure the right to continue using the Subscription Services, and if (a) or (b) are not commercially reasonable, terminate Customer's right to use the Subscription Services and issue a pro-rata refund for the unexpired pre-paid portion of such Subscription Services.
9.2 Indemnification by Customer. Subject to the terms of this Agreement, if a third party asserts a claim against BMC asserting that the (i) Customer Data, (ii) Customer Applications as defined in Attachment A, (iii) Customer Property as defined in Attachment B or (iv) Customer’s use of the Subscription Services in violation of this Agreement violates that third-party’s patent, trade secret or copyright rights (“Claim”), Customer will, at its own expense: (a) defend or settle the Claim; and (b) indemnify BMC for any damages finally awarded against BMC based on the Claim, including court costs and reasonable attorney’s fees.
9.3 Indemnity Process. Neither party’s obligations under this Section will apply if: (a) the indemnifying party’s legal department does not receive prompt, detailed written notice of the Infringement Claim/Claim from the party being indemnified, (b) the indemnifying party is not able to retain sole control of the defense of the Infringement Claim/Claim and all negotiations for its settlement or compromise, or (c) the indemnifying party does not receive all reasonable assistance from the party being indemnified. Neither party will bind the indemnified party to a monetary obligation in a settlement or compromise, or make an admission on behalf of the indemnified party, without obtaining that party’s prior consent.
9.4 THIS SECTION 9 CONTAINS EACH PARTY'S EXCLUSIVE REMEDIES AND THE INDEMNIFYING PARTY'S SOLE LIABILITY FOR INFRINGEMENT CLAIMS/CLAIMS, RESPECTIVELY.
10. EXPORT CONTROLS. Customer represents and warrants that it: a) will comply with the United States Export Administration Regulations and other U.S. or foreign export regulations; b) no individual accessing or using the Subscription Services is a citizen of or from an embargoed country (currently Iran, Syria, Sudan, Cuba and North Korea); c) is not prohibited from receiving the Subscription Services under such regulations; d) will not acquire the Subscription Services for a person who is restricted under such regulations; e) will not use the Subscription Services in contradiction to such regulations; and f) will not use the Subscription Services for prohibited uses, including but not limited to nuclear, chemical, missile or biological weapons related end uses. For Subscription Services exported from Ireland, EC No. 428/2009 sets up a Community regime for control of exports of dual-use items and technology, and it is declared that this Subscription Services is intended for civil purposes only. Therefore, Customer agrees to comply with both the U.S. regulations and those E.U. regulations and will not export in violation of the regulations and without all proper licenses. Customer’ failure to comply with these regulations will result in an automatic termination of the Agreement and all rights to the Subscription Services thereunder.
11. GOVERNING LAW AND DISPUTE RESOLUTION. Any controversy, dispute or claim arising out of or relating to this Agreement, or to the formation, interpretation, breach, termination, or validity thereof (each, a “Controversy”) will be resolved as follows:
(i)	UNITED STATES. If both parties to this Agreement are entities incorporated under the law of any state in the United States, the Controversy shall be tried in either state or federal court located in Houston, Texas and the laws of the State of Texas shall govern. Both parties hereby submit to the exclusive jurisdiction of the courts in Houston, Texas and waive all defenses based on forum non conveniens.
(ii)	EMEA. If both parties to this Agreement are entities incorporated in countries in the Europe, Middle East, or Africa regions, the Controversy shall be tried in the District Court located in Amsterdam, the Netherlands and the substantive laws of the Netherlands shall govern. Both parties hereby submit to the exclusive jurisdiction of the District Court in Amsterdam, the Netherlands and waive all defenses based on forum non conveniens.
(iii)	ASIA PACIFIC. If both parties to this Agreement are entities incorporated in countries in the Asia Pacific region, the arbitration shall be held in Singapore under the then-applicable rules of the Singapore International Arbitration Centre and the substantive laws of Singapore will govern.
(iv)	OTHER REGIONS. In all other instances, the arbitration shall be held in New York City, New York, under the then-applicable international rules of the American Arbitration Association and the substantive laws of the State of Texas will govern.
For all arbitrations conducted hereunder: (a) the arbitration shall be conducted in English; (b) the relevant arbitral institution shall determine the number of arbitrators, but any Controversy in which the amount in dispute is greater than $10 million USD shall be decided by three arbitrators, with each party having the right to select one arbitrator; (c) the costs of such arbitration shall be borne equally, pending the arbitrator’s award; (d) the arbitration award rendered shall be final and binding on the parties, shall not be subject to appeal to any court and shall be enforceable in any court having jurisdiction over the parties; (e) the arbitration proceedings, award and pleadings shall all be confidential, unless disclosure of particular information is required for purposes of enforcing/challenging the award or to meet local securities law requirements; and (f) the party prevailing in arbitration shall be entitled to recover its reasonable attorneys’ fees and the necessary costs incurred in connection with the arbitration.
The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. Nothing in this Agreement shall be deemed as preventing either party from seeking immediate injunctive relief from any court having jurisdiction over the parties and the subject matter of the dispute.
12.	The following BMC contracting entities apply to this Agreement:
Region | Contracting Entity | Address of Contracting Entity |
---|---|---|
United States and Latin America South (not a specified Central or South America country below) | BMC Software, Inc. | 2103 CityWest Boulevard, Houston, Texas 77042 |
Canada | BMC Software Canada Inc. | 50 Minthorn Boulevard, Suite 200 Markham, Ontario L3T 7X8 Canada |
EMEA (Europe, Middle East and Africa) | BMC Software Distribution B.V. | Boeing Avenue 245, 1119 PD Schiphol Rijk, The Netherlands |
Brazil | BMC Software do Brasil Ltda. | Av. das Nações Unidas, 8.501 – 22º Andar Condomínio Eldorado Business Tower São Paulo, Brasil – 05425-070 |
Mexico | BMC Software Distribution de México, S.A. de C.V. | Volcán 150, Piso 4, Col. Lomas de Chapultepec, C.P. 11000, Deleg. Miguel Hidalgo, Ciudad de México |
Argentina | BMC Software de Argentina S.A. | Ing. Butty 220 – Piso 18, Buenos Aires, Republica Argentina, C1001AFB |
S.E.A (Southeast Asia), Australia, New Zealand, Hong Kong, Taiwan | BMC Software Asia Pacific Pte Ltd | 600 North Bridge Road, #20-01/10 Parkview Square, Singapore 188778 |
China | BMC Software (China) Limited | Room 502, Level 5, Tower W1, The Towers, Oriental Plaza, No. 1 East Chang An Ave., Dong Cheng Dist., Beijing 100738, China |
Japan | BMC Software K.K. | Harmony Tower 24th Floor, 1-32-2 Honcho, Nakano-ku, Tokyo, 164-8721 |
Korea | BMC Software Korea Ltd | 24th Fl., ASEM Tower, 1517, Yeongdong-daero,Gangnam-gu, Seoul 135-798, Korea South |
13. U.S. FEDERAL ACQUISITIONS. This Section applies only to acquisitions of the commercial Subscription Services and Documentation subject to this Agreement by or on behalf of the United States Government, or by any prime contractor or subcontractor (at any tier) under any contract, grant, cooperative agreement or other activity with the United States Government. In the event the Subscription Services are delivered to the United States Government, the United States Government hereby agrees that the Subscription Services qualify as “commercial items” within the meaning of the Federal acquisition regulation(s) applicable to this procurement. The terms and conditions of this Agreement shall pertain to the United States Government’s use and disclosure of the Product, and shall supersede any conflicting contractual terms and conditions. The following additional statement applies only to acquisitions governed by DFARS Subpart 227.4 (October 1988): “Restricted Rights – Use, duplication and disclosure by the Government is subject to restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 (Oct. 1988).”
14. DATA PROTECTION. The processing of Customer Data under this Agreement is governed by the BMC Data Processing Agreement set forth on the Order.
15. VERIFICATION. Customer agrees that BMC or its agent may monitor the Subscription Services to ensure Customer’s compliance with the terms of this Agreement. If such monitoring reveals that Customer has exceeded the Capacity for the Subscription Services, Customer agrees to pay the applicable fees for additional capacity upon receipt of an invoice from BMC. If Customer to fails to pay fees for such additional capacity, BMC may suspend Customer’s access to the Subscription Services until such fees are paid in full.
16. MISCELLANEOUS TERMS. BMC is not liable for its failure to perform any of its obligations under this Agreement during any period in which performance is delayed by Customer or circumstances beyond BMC's reasonable control. The parties are independent contractors and this Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties. Customer will receive system notifications from BMC and its licensors, if applicable (i.e. planned downtime notices, etc). This Agreement, including the Attachments and Orders constitutes the entire agreement between Customer and BMC and supersedes any prior or contemporaneous negotiations or agreements, whether oral or written concerning the Subscription Services. There are no representations, promises, warranties, covenants, or undertakings between the parties other than those expressly set forth in this Agreement. There are no third-party beneficiaries to this Agreement; Customer is not entering into a contractual relationship with BMC’s licensors and BMC’s licensors have no liability to Customer. Except as provided in Section 2 above, no modification or waiver of any provision hereof will be effective unless made in a writing signed by both BMC and Customer. Customer may not assign or transfer this Agreement or the Subscription Services to a third party, whether by merger, operation of law, or otherwise. Should any provision of this Agreement be invalid or unenforceable, the remainder of the provisions will remain in effect. Any additional or conflicting terms of any Customer purchase order are rejected by BMC and do not apply. The Subscription Services may contain hyperlinks to websites controlled by parties other than BMC. BMC is not responsible for and does not endorse the content or accept any responsibility for Customer’s use of these websites. Customer should refer to the policies posted by other websites regarding privacy and other topics regarding data privacy before using them.
Attachments incorporated into Agreement |
Attachment A – Platform Services Attachment |
Attachment B – Consulting Services Attachment |
Attachment C – On Premise Subscription Services Attachment |
PLATFORM SERVICES ATTACHMENT
to the
BMC CLOUD SERVICES MASTER AGREEMENT
Except as otherwise provided herein, the terms of the Cloud Services Master Agreement (the “Base Agreement”) are incorporated into this Platform Services attachment (the “Attachment”). Together, this Attachment and the Base Agreement (as incorporated into this Attachment) are referred to as the “Agreement” for purposes of Customer’s access and use of Platform Services, only if the Platform Services are set forth on an Order referencing the Base Agreement. For purposes of this Agreement, the term “Subscription Services” as defined in the Base Agreement shall be extended to include the Platform Services. In the event of a conflict between the Base Agreement and the terms of this Attachment, the terms of this Attachment will control for Customer’s access and use of the Platform Services only.
1. SCOPE. Subject to the terms of this Agreement, BMC will provide Customer with access to the Platform Service named in the applicable Order. Customer may only use the Platform Services to store, retrieve, query, serve, and process Customer Data that is owned, licensed or lawfully obtained by Customer. As part of Customer’s subscription to the Platform Services, Customer may be allowed to run certain Applications on the Platform Services that are either (i) sold by BMC, (ii) sold by a Third Party Publisher, or (iii) owned or licensed by Customer.
2. DEFINITIONS.
2.1	“Application” is the object code, its definitional structures, and data created to fulfill a particular purpose, which runs on the Platform Services. An Application may also include its documentation and User Guide.
2.2 “BMC Application Services” means a generally available Application that is provided as a subscription by BMC to customers, including all items delivered by BMC to Customer under Support related to such Application.
2.3 “Customer Applications” means Applications that are owned or licensed by Customer, not including any Third Party Applications, and which run on the Platform Services.
2.4 “Customer Data” means all information uploaded or entered by Customer to the Platform Services, excluding Customer Applications.
2.5 “Development Platform” means a BMC provided development platform which allows Customer to develop a custom application to run on the Platform Services.
2.6 “Platform Services” means the generally available BMC-provided platform specified on the Order and its capabilities to run Applications. The specific Platform Services being will be identified in the Order.
2.7 “Third Party Applications” means Applications that are owned by a Third Party Publisher with a valid independent software vendor agreement in place with BMC, and are licensed by said Third Party Publisher to customers.
2.8 “Third Party Publisher” means a party other than BMC or a BMC Affiliate that is the owner and licensor of a Third Party Application, and has a valid independent software vendor agreement in place with BMC. For the sake of clarity, Customer is informed that Third Party Publishers are not BMC Subcontractors.
3. BMC PLATFORM SERVICES.
3.1 BMC Platform Services Support. BMC will provide Support only for Platform Services and BMC Application Services. Customer is responsible for its own support for Customer Applications and Third Party Applications.
3.2 Notifications to Customer. Any general notifications from BMC Operations to Customer will be sent to the Customer contact stated in the Customer Technical Contact Information section of the Order. The Customer contact in the Order has been assigned by Customer as the Customer contact for operational issues that may arise. Customer shall notify BMC of any change to the Customer contact details in writing, which may include via e-mail.
3.3 Subcontractors. For the sake of clarity, Customer is informed that Third Party Publishers are not BMC Subcontractors.
3.4 Customer Responsibilities. In addition to the Customer Responsibilities set forth in the Base Agreement, Customer may not (i) transfer an Application outside of the Platform Services; or (ii) tamper with or circumvent any controls or make unauthorized copies of a BMC Application.
4. CUSTOMER APPLICATIONS AND THIRD PARTY APPLICATIONS.
4.1 Any Third Party Applications or Customer Applications that run on the Platform Services are hereby excluded from the defined terms “Subscription Services”, “BMC Application Services” and “Platform Services”. Such Third Party Applications are governed by the terms provided with the Third Party Applications, and are by and between Customer and the applicable Third Party Publisher. Customer and Third Party Publishers shall agree upon their respective obligations with respect to the processing of personal data by Third Party Publishers. Customer acknowledges and agrees that this Agreement does not govern Customer’s subscription, use and access of any Third Party Applications or Customer Applications, and said Third Party Applications and Customer Applications are specifically excluded from this Agreement.
4.2 Customer may utilize the Development Platform to create an Application to run on the Platform Services. Customer’s use of the Development Platform is governed by the terms of this Agreement subject to the restrictions set forth in sections 4.2.1 to 4.2.6 below. Customer’s development of an Application must meet the best practices development guidelines set forth in the User Guide. Each Customer Application shall at all times materially conform to policies and best practices set forth in the User Guide. Prior to the deployment of any Customer Applications in a production or non-production environment of the Platform Services, Customer must conduct security and functional tests of each Customer Application and submit the results of such tests to BMC for review. BMC reserves the right to reject Customer’s deployment request of a Customer Application based on the results of Customer’s security and functional tests. Additionally, BMC reserves the right, during the term of this Agreement, to request Customer conduct additional security and functional tests and provide the results of said tests to BMC for review. Notwithstanding the foregoing, Customer must ensure that at all times Customer Applications are secure.
4.2.1 Scope of use. The right to access and use the Development Platform is granted solely for the purpose of performing non-production application development work on the Development Platform.
4.2.2 Restrictions of use. Customer agrees not to:
- use the Development Platform to (1) process production data or for any other production purposes, including but not limited to publishing digital applications, or (2) distribute applications;
- use the Development Platform with data or information that has not been backed up; or
- modify, delete or remove any ownership, title, trademark, patent or copyright notices.
4.2.3 Customer Responsibilities. Customer is responsible for acquiring all necessary and required licenses for the use of any third party software, source code and/or libraries Customer may use as part of its development with the Development Platform. In addition to its other rights and remedies, BMC reserves the right, without liability to Customer, to immediately, at any time and for any reason refresh Customer’s instance of the Development Platform. Upon BMC’s refreshing of Customer’s instance of the Development Platform, Customer may lose all Customer Data submitted to or stored in said instance of the Development Platform. Upon termination of the Contract, BMC may destroy any Customer Data submitted to or stored therein. Customer is responsible for backing up any development work with Customer Data outside of the Development Platform.
4.2.4 Open Source. Customer may not use any software, library, utility, tool, or other computer or program code (“Code”) with the Subscription Services that in any way that would (i) weaken BMC’s intellectual property rights in the Services, or (ii) require the Subscription Services to become or be disclosed or distributed as Open Source Software. For purposes of this Section, “Open Source Software” means any Code that is substantially similar to, (A) the Affero General Public License, (B) the GNU General Public License (GPL) or Lesser/Library GPL (LGPL), (C) the Artistic License (e.g. PERL), (D) the Mozilla Public License, (E) the Netscape Public License, (F) the Sun Community Source License (SCSL), (G) the Sun Standards License (SISL), or (H) any “copyleft” license, or any other license that requires as a condition of use, reproduction, modification, or distribution that such Code or other software or computer code distributed with it: (1) be disclosed or distributed in source code form; (2) be licensed for the purpose of creating derivative works; (3) be licensed under terms that allow reverse engineering, reverse assembly, or disassembly of any kind; (4) be subject to a patent non-assert or royalty-free patent license; or (iv) be redistributable at no charge.
4.2.5 No Support. BMC, its affiliates, or licensors do not provide Support for the Development Platform.
4.2.6 Disclaimer of Warranty, Limitation of Liability and Exclusive Remedy. Notwithstanding anything to the contrary in this Contract or the Agreement:
- THE DEVELOPMENT PLATFORM IS PROVIDED “AS IS” WITHOUT ANY WARRANTY OF ANY KIND WHATSOEVER. BMC, ITS AFFILIATES AND LICENSORS DO NOT WARRANT THAT THE DEVELOPMENT PLATFORM WILL SATISFY CUSTOMER’S REQUIREMENTS, THAT THE DEVELOPMENT PLATFORM IS WITHOUT DEFECT, VIRUS OR ERROR FREE, WITHOUT DELAY, OR THAT THE OPERATION OF THE DEVELOPMENT PLATFORM WILL BE UNINTERUPTED. BMC, ITS AFFILIATES AND LICENSORS DISCLAIM ANY AND ALL REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, MADE WITH RESPECT TO THE DEVELOPMENT PLATFORM, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INTERFERENCE AND INFORMATION CONTENT; AND
- NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY, FOR ANY CLAIM, LOSS, DAMAGE OR EXPENSE FOR INDIRECT, SPECIAL, CONSEQUENTIAL, PUNITIVE OR INCIDENTAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE DEVELOPMENT PLATFORM (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST COMPUTER USAGE TIME, AND DAMAGE TO, OR LOSS OF USE OF, DATA), EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBLITY OF SUCH DAMAGES. EITHER PARTY’S ENTIRE LIABILITY AND THE OTHER PARTY’S EXCLUSIVE REMEDY FOR DIRECT DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE DEVELOPMENT PLATFORM, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, IS LIMITED TO $100.
4.3 License to Customer Applications. Subject to the terms and conditions of this Agreement, Customer hereby grants BMC a worldwide, limited, nonexclusive license during the term of the applicable Order for the Platform Services to host, copy, transmit, adapt and display Customer Applications solely for the purpose of fulfilling BMC’s obligations under this Agreement.
4.4 Functionality of Customer Applications. Customer is solely responsible for the operation of Customer Applications, including but not limited to any information stored in or transmitted by Customer Applications. Customer is responsible for monitoring the usage of each Customer Application. Customer is responsible for the configuration, functionality, performance, compliance with applicable data protection laws and security of all Customer Applications, including any interfaces used to connect to Customer Applications.
4.5 Use of Customer Applications. Customer has sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of Customer Applications and all Customer Data entered therein by Customer, its Users or on Customer’s behalf, the means by which Customer acquired such Customer Data, and the use of such Customer Data. Without limiting Customer’s obligations under the terms of this Agreement, Customer must (i) provide any necessary notice to, and obtain any necessary consent from, Users for the collection, use, transfer, and storage of Customer Data (including by BMC), and (b) collect, use, transfer, and store Customer Data in accordance with any privacy notice you provide, and all applicable laws.
4.6 Use of Third Party Applications. Customer is responsible for monitoring its usage of each Third Party Application, and such Third Party Publisher’s usage and license compliance is governed by the terms of the agreement entered into between Customer and the Third Party Publisher. Customer is responsible for all applicable fees associated with Customer’s use of Third Party Applications. Please note, Customer’s usage of such Third Party Applications may incur additional license fees between Customer and the applicable Third Party Publisher, as well as additional Platform Services fees.
4.7 Customer will provide information or other materials related to a Customer Applications as reasonably requested by BMC to verify Customer’s compliance with the Agreement and the User Guide. BMC may monitor Customer Applications and Third Party Applications running on the Platform Services to verify Customer’s compliance with the Agreement. Customer will not block or interfere with BMC’s monitoring. Customer will cooperate with BMC to identify the source of any problem with the Platform Services that BMC reasonably believes may be attributable to Customer Applications or Third Party Applications, or any Customer Data.
4.8 If BMC reasonably believes any Customer Data, Customer Applications or Third Party Applications violates the law, infringes or misappropriates the rights of any third party or otherwise violates a material term of the Agreement (including the User Guide) (“Prohibited Content”), BMC will notify Customer of the Prohibited Content and may request that such content be removed from the Platform Services or access to it be disabled. If Customer does not remove or disable access to the Prohibited Content within two (2) business days of BMC’s notice, BMC may remove or disable access to the Prohibited Content or suspend the Platform Services to the extent BMC is not able to remove or disable access to the Prohibited Content. Notwithstanding the foregoing, BMC may remove or disable access to any Prohibited Content without prior notice in connection with illegal content, where the content may disrupt or threaten the Platform Services, pursuant to the Digital Millennium Copyright Act or as required to comply with law or any judicial, regulatory or other governmental order or request. In the event that BMC removes content without prior notice, BMC will provide prompt notice to Customer unless prohibited by law.
4.9 Customer’s use of the Platform Services, BMC Application Services, Customer Applications and/or Third Party Applications may be immediately suspended and/or terminated due to (i) reasonable security threats regarding the Platform Services, Customer Applications or Third Party Applications, (ii) Customer Applications or Third Party Applications interfering with, disrupting or threatening the integrity or performance of the Subscription Services and/or the Platform Services or BMC Application Services, or (iii) a third party’s claim that Customer Applications or Third Party Applications may violate applicable law or third party rights. In the event of (i) or (ii) above apply to Customer Applications, Customer is required to remediate any such issue to BMC’s commercially reasonable satisfaction before use of Customer Applications can resume.
4.10 Customer’s access to Third Party Applications may be immediately suspended and/or terminated by BMC at the direction of the Third Party Publisher. Customer acknowledges and understands that access to Customer Applications and/or Third Party Applications used in connection with the Platform Services may be suspended due to Customer’s non-payment to BMC for use and access to the Platform Services or other breach of this Agreement. In no case will any such suspension or termination under the terms of this Agreement give rise to any BMC liability to Customer for a refund or other compensation.
4.11 Except with regard to applicable data protection laws, BMC takes no responsibility with regard to Customer Data (i) processed by Third Party Publishers and/or (ii) through the use by Customer of Third Party Applications.
4.12 BMC may conduct periodic security evaluations of all Customer Applications, which may include security review, a qualitative assessment involving review of a completed questionnaire, and an interview with appropriate Customer personnel. BMC conducts such security evaluations for its own benefit and Customer may not rely on the successful results of such evaluation. BMC may conduct such testing itself or, subject to the confidentiality obligations set forth in the Agreement, through a third party. BMC will provide reasonable notice to Customer before starting such testing. BMC will also cooperate reasonably with Customer to minimize the effects of such testing on Customer’s business and operations. Customer agrees to cooperate reasonably with such testing. Despite the foregoing, such testing may in rare cases cause downtime or other adverse effects on Customer Applications, Third Party Applications, the Platform Services or other BMC Application Services used by Customer. Any nonpublic information to which BMC obtains access in the course of such security testing will be considered Customer’s Confidential Information.
4.13 Customer Responsibilities. Customer’s obligations set forth in section 3.4 (a) of the Base Agreement shall apply in full to Platform Services, Customer Applications and Third Party Applications.
5. WARRANTIES. Customer warrants to BMC that: (a) each Customer Application will perform materially in accordance with the User Guide; (b) Customer owns all right, title, and interest in and to Customer Data, including but not limited to any Customer Data uploaded or entered into Customer Applications or Third Party Applications; (c) Customer has the necessary rights to use and access any Customer Applications and Third Party Applications deployed in a production or non-production environment of the Platform Services; (d) Customer has all rights in the Customer Data and Customer Applications necessary to grant the rights contemplated by this Agreement; (e) none of the Customer Data or Customer Applications or Users’ use of Customer Data or Customer Applications will violate the Agreement and the User Guide; (f) Customer’s security and functional tests of Customer Applications was conducted in a commercially reasonable manner and the results of said tests provided to BMC for review are correct and valid; and (g) none of the Third Party Applications or Users’ use of Third Party Applications will violate the Agreement or the User Guide.
ATTACHMENT B
CONSULTING SERVICES ATTACHMENT
to the
BMC CLOUD SERVICES MASTER AGREEMENT
Except as otherwise provided herein, the terms of the Cloud Services Master Agreement (the “Base Agreement”) are incorporated into this Consulting Services attachment (the “Attachment”). Together, this Attachment and the Base Agreement (as incorporated into this Attachment) are referred to as the “Agreement” for purposes of Customer’s purchase of Consulting Services, only if Consulting Services are set forth on an Order referencing the Base Agreement. For purposes of this Agreement, the term “Subscription Services” as defined in the Base Agreement shall be extended to include Consulting Services. In the event of a conflict between the Base Agreement and the terms of this Attachment, the terms of this Attachment will control for Customer’s purchase of Consulting Services only. The parties agree that the following Sections of the Base Agreement do not apply to the Consulting Services provided under this Attachment: Section 3.2 (Support), Section 4 (Fees and Payment), Section 6 (Limited Warranty) and Section 9 (Infringement Claims).
1. SCOPE. BMC agrees to render to Customer Consulting Services under the terms of this Agreement and as further described in an Order. BMC will render the Consulting Services in the location(s) as set forth in the Order. The performance of the Consulting Services will not relieve or alter the rights, obligations and responsibilities of Customer and of the BMC Affiliate providing Subscription Services and/or Licenses with respect to Subscription Services and/or Licenses under the applicable agreement in.
2. SERVICE FEES AND EXPENSES. The fees payable to BMC for the Consulting Services to be rendered will be detailed in the Order. BMC will submit invoices to Customer for such fees and incurred expenses either upon completion of the Consulting Services, or at stated intervals, in any case in accordance with the applicable Order. Customer shall pay amounts invoiced within 30 days following receipt of the invoice.
3. EDUCATION. Customer may acquire Learning Pass Credits and Education Services (collectively, “BMC Education”) on a Order. The BMC Education terms that govern such Orders are set forth in the Education Program Guide located at http://media.cms.bmc.com/documents/education-program-guide.pdf, and is incorporated herein by this reference.
4. STATEMENTS OF WORK. Some Consulting Services may require the execution of a Statement of Work. Such requirement will be set forth in an Order. In the event of any conflict between the terms of a Statement of Work and this Agreement, the Agreement shall prevail except for matters of service fees, payment and reimbursement of expense terms if further specified in the Statement of Work. During the term of an applicable Statement of Work, and for a period of six months thereafter, neither party will solicit for employment any employees, agents, or subcontractors of the other party or its affiliates who, within six months prior to such solicitation, had contact with the soliciting party based in whole or in part upon Consulting Services provided under this Agreement. The restrictions in this section shall be deemed not to apply to general solicitations for employment posted on Internet job sites or printed in newspapers or trade or professional journals.
5. PROPRIETARY RIGHTS AND RIGHTS IN DELIVERABLES.
5.1 Ownership of Materials Used in the Consulting Services. Unless specifically provided in an Order, Customer shall supply all of the facilities; equipment; supplies; computer programs; information about Customer’s business, systems, software and needs; and other materials necessary for completion of the Consulting Services (“Customer Property”), and BMC shall supply the people described in the Order, the know-how and the tools necessary to provide the Consulting Services, which may include, among other things, software, templates, questionnaires, graphs, methodologies, models, charts and reports (“BMC Property”). Customer Property and copies and modifications of Customer Property will remain the sole property of Customer or if applicable, Customer’s licensors, and BMC Property and copies and modifications of BMC Property will remain the sole property of BMC or if applicable, BMC’s licensors. Customer hereby grants to BMC a royalty-free, paid-up, non-exclusive, non-sublicensable and non-transferable license to use the Customer Property for the purpose of providing the Consulting Services.
5.2 Deliverables. Deliverables are those created under the Order, including, but not limited to, software, software scripts, routines, libraries or other code, or appliances, methodologies, templates, tools, policies, records, working papers, reports, methodologies, know-how, data, or other intellectual property, written or otherwise, including any derivative works or modifications to the above, whether pre-existing or created during the performance of the Consulting Services and all proprietary and intellectual property rights embedded therein delivered as a result of the Consulting Services as specified under the Order. BMC owns all right, title and interest in the Deliverables. Provided Customer has paid in full for the Consulting Services that resulted in the Deliverables, BMC will deliver the Deliverables to Customer in accordance with the applicable Order. Subject to compliance with the terms of this Agreement and the applicable Order, BMC grants Customer a non-exclusive, non-transferable, non-sublicensable, royalty-free, paid-up license to use, create derivative works of and modify all Deliverables solely for its internal business operations.
5.3 Copyright Notice. Each party agrees to reproduce the copyright notice and any other legend or ownership notice on any copies made under the licenses granted pursuant to this Section 5.
5.4 Retention. Customer acknowledges that BMC provides similar services to other customers and that nothing in this Agreement shall be construed as operating to prevent BMC from carrying on such business. Further BMC may use ideas, concepts, or know-how developed or acquired by BMC during performance of the Consulting Services to the extent acquired by BMC’s personnel as impressions and general learning.
6. LIMITED WARRANTY. BMC warrants that it will perform the Consulting Services in conformance with generally accepted practices within the software services industry and in accordance with the Order. Customer must notify BMC of any breach of this warranty no later than 90 days after completion of the Consulting Services under the Order. Customer’s exclusive remedy and BMC’s entire liability under this warranty shall be for BMC to re-perform any non-conforming portion of the Consulting Services within a reasonable period of time, or if BMC cannot remedy the breach during such time period then refund the portion of the fee attributable to such non-conforming portion of the Consulting Services under the Order. This warranty will not apply to the extent Customer, its contractors or agents have modified any Deliverable, unless otherwise authorized by BMC in writing.
THIS WARRANTY AND CONDITION IS IN LIEU OF ALL OTHER WARRANTIES AND CONDITIONS. THERE ARE NO OTHER EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS, INCLUDING THE IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
7. INSURANCE. BMC will provide and maintain the following insurance, but only for losses arising out of BMC’s provision of Consulting Services under this Attachment:
7.1 Worker’s Compensation insurance as prescribed by the law of the state applicable to the employees performing the Consulting Services;
7.2 Employer’s Liability insurance with a limit of one million US dollars ($1,000,000) for each occurrence;
7.3 Commercial General Liability insurance with one million US dollars ($1,000,000) per occurrence combined single limit and five million US dollars ($5,000,000) general aggregate, including coverage for Products Liability and Completed Operations;
7.4 Automobile Liability insurance, including coverage for Hired and Non-owned vehicles of one million US dollars ($1,000,000) for combined single limit for bodily injury and/or property damage; and
7.5 Professional Liability insurance covering Errors and Omissions in the amount of one million US dollars ($1,000,000) for each occurrence and in the aggregate associated with Consulting Services performed under this AGREEMENT.
8. MUTUAL INDEMNITY. Each party shall indemnify and hold harmless the other party from all claims, liabilities or expenses for physical damage to real property or tangible personal property and bodily injury, including death, to the extent caused by the gross negligence or willful misconduct of the indemnifying party’s employees or contractors arising out of this Agreement and while at the Customer’s premises. The foregoing indemnities are contingent upon the party seeking indemnity giving prompt written notice to the indemnifying party of any claim, demand or action, and cooperating with the indemnifying party in the defense or settlement of any such claim, demand or action.
9. LIMITATION OF LIABILITY. Section 8 of the Base Agreement shall not apply to Customer’s breach of (i) BMC’s proprietary rights in the Deliverables and/or (ii) Section 5.2 of this Attachment B.
10. INDEPENDENT CONTRACTOR. All of the services performed by BMC under this Agreement will be performed as an independent contractor.
ATTACHMENT C
ON PREMISE SUBSCRIPTIONS ATTACHMENT
to the
BMC CLOUD SERVICES MASTER AGREEMENT
Except as otherwise provided herein, the terms of the Cloud Services Master Agreement (the “Base Agreement”) are incorporated into this On Premise Subscriptions attachment (the “Attachment”). Together, this Attachment and the Base Agreement (as incorporated into this Attachment) are referred to as the “Agreement” for purposes of Customer’s purchase and ongoing use of On Premise Subscriptions, only if On Premise Subscriptions are set forth on an Order referencing the Base Agreement. For purposes of this Agreement, the term “Subscription Services” as defined in the Base Agreement shall be extended to include On Premise Subscriptions. In the event of a conflict between the Base Agreement and the terms of this Attachment, the terms of this Attachment will control for Customer’s purchase of On Premise Subscriptions only. The parties agree that the following Sections of the Base Agreement do not apply to the On Premise Subscriptions provided under this Attachment: Section 3.1 (Access Rights), Section 3.4 (Customer Responsibilities and Restrictions), Section 6 (Limited Warranty) and Section 14 (Verification).
1. DEFINITIONS.
1.1	"Documentation" means the technical publications relating to the software, such as release notes, license entitlement descriptions, reference, user, installation, systems administrator and technical guidelines, included with the On Premise Subscription.
1.2	“Licensed Capacity” is the amount of each On Premise Subscription licensed as established in the Order.
1.3	“On Premise Subscription” is the object code of the software and all accompanying Documentation delivered to Customer, including all items delivered by BMC to Customer under Support.
2. LICENSE. Subject to the terms, conditions, payment requirements and restrictions set forth in this Agreement, BMC grants Customer a non-exclusive, non-transferable, non-sub-licensable term license to install in the Territory, access and use the On Premise Subscription during the term specified on the Order (i) up to the Licensed Capacity, (ii) for Customer’s and its Affiliates internal business operations, (iii) in accordance with the Documentation and the applicable Order, and (iv) make one copy of the On Premise Subscription for archival purposes only (collectively a "License"). Affiliates may use and access the On Premise Subscriptions under the terms of this Agreement, and Customer is responsible for its Affiliates compliance with the terms of this Agreement.
3. RESTRICTIONS. Customer will not: (a) copy, operate or use any On Premise Subscription in excess of the applicable Licensed Capacity or other than as set forth in the License above; (b) modify, delete or remove any ownership, title, trademark, patent or copyright notices (“Identification”) from any On Premise Subscription, or copy or partial copy of an On Premise Subscription; (c) disassemble, reverse engineer, decompile or otherwise attempt to derive any On Premise Subscription source code from object code, except to the extent expressly permitted by applicable law despite this limitation without possibility of contractual waiver; (d) distribute, rent, lease, sublicense or provide the On Premise Subscription to any third party; (e) use the On Premise Subscriptions in an outsourcing or service bureau environment on behalf of non-Affiliate third parties, or allow the On Premise Subscriptions to be used by an outsourcing or service bureau provider on Customer’s behalf; (f) provide a third party with the results of any functional evaluation, or performance tests, without BMC's prior written approval; or (g) attempt to disable or circumvent any of the licensing mechanisms within the On Premise Subscription.
4. ON PREMISE SUBSCRIPTION PERFORMANCE WARRANTY. BMC warrants that (a) the On Premise Subscription will perform in substantial accordance with its Documentation for a period of one year from the date of the first Order, (b) BMC has used commercially reasonable efforts consistent with industry standards to scan for and remove software viruses, and (c) other than passwords that may be required for the operation of the On Premise Subscription, BMC has not inserted any code that is not addressed in the Documentation and that is designed to delete, interfere with or disable the normal operation of the On Premise Subscription in accordance with the License. This warranty will not apply to any problems caused by hardware, Computers, or software other than the On Premise Subscription, or misuse of the On Premise Subscription, use of the On Premise Subscription other than as provided by the applicable License, modification of the On Premise Subscription, or claims made either outside the warranty period or not in compliance with the notice and access requirements set forth below. No warranty is provided for additional Licensed Capacity, On Premise Subscription provided pursuant to Support. BMC’s entire liability, and Customer’s exclusive remedy, for breach of the above warranty is limited to: BMC’s use of commercially reasonable efforts to have the On Premise Subscription perform in substantial accordance with its Documentation, or replacement of the non-conforming On Premise Subscription within a reasonable period of time, or if BMC cannot have the On Premise Subscription perform in substantial accordance with its Documentation replace the On Premise Subscription within such time period, then BMC will refund the amount paid by Customer for the License for that On Premise Subscription. Customer’s rights and BMC's obligations in this Section are conditioned upon Customer’s providing BMC during the warranty period (i) full cooperation and access to the On Premise Subscription in resolving any claim; and (ii) written notice addressed to the BMC Legal Department that includes notice of the claim, a complete description of the alleged defects sufficient to permit their reproduction in BMC’s development or support environment, and a specific reference to the Documentation to which such alleged defects are contrary.
EXCEPT FOR THE EXPRESS WARRANTIES IN THIS ATTACHMENT, THE ON PREMISE SUBSCRIPTION IS PROVIDED WITH NO OTHER WARRANTIES WHATSOEVER, AND BMC, ITS AFFILIATES AND LICENSORS DISCLAIM ALL OTHER WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. BMC DOES NOT WARRANT THAT THE OPERATION OF THE ON PREMISE SUBSCRIPTION WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT ALL DEFECTS CAN BE CORRECTED.
5. DELIVERY. For On Premise Subscriptions that are delivered electronically, upon request from BMC, Customer agrees to provide BMC with documentation supporting that the designated On Premise Subscription was received electronically. If Customer accepts any On Premise Subscription in a non-electronic format, there may be an additional charge and it is the sole responsibility of Customer to bear any sales/use tax obligation, penalties, and interest. All On Premise Subscriptions are licensed FCA (“Free Carrier” as per Incoterms 2000) shipping point. The On Premise Subscriptions are accepted on the date BMC delivers the On Premise Subscription to the Customer either physically or by providing access codes for electronic download, whichever occurs first, however, such acceptance will not affect the On Premise Subscription Performance Warranty provided in this Agreement.
6. AUDIT. If requested by BMC, and not more than once a year, Customer agrees to deliver to BMC, within 30 days of such request, as specified by BMC either (a) periodic product usage reports generated from specific products or (b) written periodic product usage reports, to be provided solely when the product does not generate reports (“Report”). Additionally, if requested by BMC not more than once a year, Customer agrees to allow BMC to perform an audit (“Audit”) at the locations where the On Premise Subscriptions are installed, during normal business hours to ensure compliance with the terms of this Agreement. Customer agrees to cooperate during any such Audit and to provide reasonable access to its information and systems. If an Audit or Report reveals that Customer has exceeded the Licensed Capacity for a On Premise Subscription, Customer agrees to pay the applicable fees for additional capacity upon receipt of invoice. If the understated capacity exceeds 5% of the Licensed Capacity of the applicable On Premise Subscription, then Customer agrees to also pay BMC’s reasonable costs of conducting the audit.
7. LIMITATION OF LIABILITY. Section 8 of the Base Agreement shall not apply to Customer’s breach of (i) BMC’s proprietary rights in the On Premise Subscriptions and/or (ii) Sections 2 and 3 of this Attachment C.
Effective June 21st 2018 to October 26th 2018
DownloadTable of Contents
BMC CLOUD SERVICES MASTER AGREEMENT
THIS CLOUD SERVICES MASTER AGREEMENT (“AGREEMENT”) GOVERNS YOUR FREE TRIAL, IF ANY, OF THE SUBSCRIPTION SERVICES.
IF YOU PURCHASE THE SUBSCRIPTION SERVICES, THIS AGREEMENT WILL ALSO GOVERN YOUR PURCHASE AND ONGOING USE OF THE SUBSCRIPTION SERVICES.
BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SUBSCRIPTION SERVICES.
You may not access the Subscription Services if you are BMC’s direct competitor, except with BMC’s prior written consent. In addition, you may not access the Subscription Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.
This Agreement was last updated on June 21, 2018. This Agreement is between the entity or individual entering into this Agreement (“Customer”) and the BMC Contracting Entity for the applicable region as described in Section 12 (“BMC”). It is effective between Customer and BMC as of the date of your acceptance of this Agreement. For Customer’s convenience, prior versions of this Agreement are available at https://www.bmc.com/legal/csma.html.
FREE TRIAL.
BMC may make the Subscription Services available to Customer on a trial basis free of charge. If BMC offers Customer a free trial, it will run until the earlier of (a) the end of the trial period stated on the trial registration web page or (b) the start date of any Order for purchase of the Subscription Services. Additional trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.
ANY DATA CUSTOMER ENTERS INTO THE SUBSCRIPTION SERVICES, AND ANY CUSTOMIZATIONS MADE TO THE SUBSCRIPTION SERVICES BY OR FOR CUSTOMER, DURING A FREE TRIAL WILL BE PERMANENTLY LOST UNLESS CUSTOMER PURCHASES A SUBSCRIPTION TO THE SAME SUBSCRIPTION SERVICES AS THOSE COVERED BY THE TRIAL, OR EXPORTS SUCH DATA BEFORE THE END OF THE TRIAL PERIOD.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THE AGREEMENT, DURING ANY FREE TRIAL PERIOD THE SUBSCRIPTION SERVICES ARE PROVIDED “AS IS” WITH NO WARRANTY.
1.	DEFINITIONS.
1.1	“Affiliate” is an entity that controls, is controlled by or shares common control with BMC or Customer, where such control arises from either (a) a direct or indirect ownership interest of more than 50% or (b) the power to direct or cause the direction of the management and policies, whether through the ownership of voting stock by contract, or otherwise, equal to that provided by a direct or indirect ownership of more than 50%.
1.2	“Subscription Services” means the hosted service which packages web-based access and the right-to-use the supported applications, installed agents and associated reference, user and technical guides.
1.3	“Capacity” means the amount of access to the Services purchased as specified in an Order, which is counted in accordance with the Unit of Measure described in the Order.
1.4	“Customer Data” means all electronic data or information (a) submitted to the Subscription Services by Customer, a third party on behalf of Customer, or as directed by Customer or (b) collected by the Subscription Services.
1.5	“Order” means (i) the agreed ordering document for the purchase of the Subscription Services, (ii) that is subject to this Agreement, and (iii) that identifies the terms of the purchase and fees to be paid. The term “Order” includes Customer’s online registration for and purchase of the Subscription Services, If any.
1.6	“User Guide” means the online help, functional guide and technical specifications for the Subscription Services, as updated by BMC from time to time.
2.	 SCOPE. Subject to the terms of this Agreement, Customer may purchase and BMC will provide Customer with access to the Subscription Services as set forth in this Agreement and the applicable Order. Subject to the Attachments to this Agreement, Customer may also purchase BMC Platform Services, BMC Consulting Services and BMC On Premise Subscription Services. In the event of a direct conflict between any Order and the terms of this Agreement, the terms of the Order will control only if the Order is executed by an authorized representative of each party. Each Order is deemed to be a discrete contract, separate from each other Order, unless expressly stated otherwise therein. Orders may be entered under this Agreement by and between (a) BMC or an Affiliate of BMC; and (b) Customer or an Affiliate of Customer. With respect to an Order, the terms “BMC” and “Customer” as used in this Agreement will be deemed to refer to the entities that execute that Order, the Order will be considered a two party agreement between such entities, and BMC will separately invoice the Customer named in the Order for the associated fees. Orders may also be placed via a BMC authorized reseller. Neither execution of this Agreement, nor anything contained herein, shall obligate either party to enter into any Orders.
3.	ACCESS TO SUBSCRIPTION SERVICES.
3.1	Access Rights. Subject to Customer’s payment of applicable fees and to the terms of this Agreement, BMC hereby grants to Customer a worldwide, non-exclusive, non-transferable, non-sublicensable, limited license to access and use the Subscription Services in accordance with the Order (i) up to the Capacity, (ii) for Customer’s and its Affiliates’ internal business operations, (iii) in accordance with the User Guide and the applicable Order. Customer may exercise its rights under this Section 3.1 through its service providers, outsourcers, employees, consultants, contractors, agents, and Affiliates (all, “Users”).
3.2	BMC Subscription Services Support. BMC will provide the support described at http://www.bmc.com/support/review-policies (“Support”) to Customer for the Subscription Services, which may be changed by BMC upon prior notice to customer, provided that such changes do not materially degrade Support during the term of an Order.
3.3	Use of Subcontractors. Customer acknowledges and agrees that BMC uses subcontractors to provide portions of the Subscription Services. BMC will provide a list of its current subcontractors upon Customer’s written request. BMC is responsible for the performance of all subcontractors providing any of the Subscription Services.
3.4	Customer Responsibilities and Restrictions.
(a) 	Customer will (i) maintain the confidentiality of all authentications and passwords for the Subscription Services and immediately notify BMC if it becomes aware that an unauthorized party has gained access such authentications and passwords, (ii) be responsible for use of the Subscription Services by its Users, (iii) prevent unauthorized access to, or use of, the Subscription Services, and notify BMC promptly of any such unauthorized access or use, (iv) comply with all applicable laws in using the Subscription Services, and (v) be responsible for obtaining its own Apple Push Notification certificate, if the Subscription Services are used to manage devices running iOS. Customer is responsible for the creation and implementation of a privacy policy and end user license agreement, if applicable, which will set forth the guidelines of how Customer uses and protects the data and personal information of its Users, and how said Users may utilize the Subscription Services.
(b) 	Customer will not (i) modify, copy or create derivative works based on the Subscription Services; (ii) create Internet “links” to or reproduce any content forming part of the Subscription Services, other than for its own internal business purposes; (iii) disassemble, reverse engineer, or decompile the Subscription Services or part thereof, or access it in order to copy any ideas, features, content, functions or graphics of the Subscription Services; (iv) interfere with or disrupt the integrity or performance of the Subscription Services; (vi) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortuous material, or send or store material in violation of any third party’s privacy rights via the Subscription Services; (vii) send or store viruses or malicious code via the Subscription Services; (viii) attempt to gain unauthorized access to the Subscription Services or its related software, systems, platforms or networks, including any form of security and/or penetration testing; (ix) use any components provided with the Subscription Services separately from the Subscription Services; or (x) distribute, rent, lease, sublicense or provide the Subscription Services to any third party or use it in a service bureau, outsourcing environment, or for the processing of third party data.
4.	FEES AND PAYMENT.
4.1	Fees. The fees payable for the Subscription Services and the payment period for such fees will be set forth in and paid in accordance with the Order. All invoices are due upon receipt of invoice.
4.2	Late Fees. The unpaid balance of each late payment bears interest at a rate equal to the lesser of 1% per month or the maximum amount permitted by law. All fees are nonrefundable and BMC will not provide any refunds or credits for partially used periods of the Subscription Services.
4.3	Taxes. Customer will pay or reimburse BMC or, when required by law, the appropriate governmental agency, for taxes of any kind, including sales, use, VAT, excise, customs duties, withholding, property, and other similar taxes (other than taxes based on BMC’s net income or arising from the employment relationship between BMC and its personnel) imposed in connection with the fees paid for the Subscription Services, which are exclusive of these taxes.
5.	TERM, SUSPENSION AND TERMINATION.
5.1	Term. This Agreement begins on the Effective Date and will remain in effect unless terminated pursuant to Section 5.2 below, regardless of the billing frequency selected in the Order.
5.2	Termination.
(a)	Termination for Convenience. Customer may terminate this Agreement by providing BMC with at least 30 days prior written notice; provided, however, such termination will have no effect on Orders in effect at the time of such termination. Orders may not be terminated for convenience unless otherwise specified therein. Customer may notify BMC of its intent to terminate by emailing BMC at order_services@bmc.com.
(b) 	Termination for Cause. Either party may terminate this Agreement and/or an Order for cause: (i) upon 30 days’ written notice of a material breach to the other party if such breach remains uncured at the expiration of such period; or (ii) immediately if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
5.3	Suspension of Subscription Services for Cause. In addition to its other rights and remedies, BMC reserves the right, without liability to Customer, to immediately suspend any and all access to the Subscription Services if Customer commits a material breach of this Agreement or any relevant Order until such material breach is cured.
5.4	Effects of Termination. Upon termination pursuant to Section 5.2(b) above, all rights and licenses granted herein will terminate and Customer will make no further use of the Subscription Services. No termination will relieve the Customer of the obligation to pay any fees accrued or payable to BMC pursuant to any Order. Upon written request by Customer made within 30 days after the effective date of termination, BMC will make available to Customer a file containing the Customer Data. After such 30 day period, BMC shall have no obligation to maintain or provide any Customer Data and will thereafter delete Customer Data.
6.	LIMITED WARRANTY.
6.1	Warranties and Limited Remedies. BMC warrants to Customer that:
(a)	the online availability of the Subscription Services will be maintained in accordance with the service levels attached to the applicable Order, if any (the “Service Level Agreement” or “SLA”). Customer’s exclusive remedy and BMC’s sole obligation for breach of the warranty in this Section 6.1(a) is described in the Service Level Agreement; and
(b)	the Subscription Services (i) will perform in substantial accordance with the then-current on-line User Guide available via the Subscription Services and (ii) will be performed in a manner consistent with industry standards reasonably applicable to the provision thereof. Customer’s exclusive remedy and BMC’s sole obligation for breach of the warranty in this Section 6.1(b) will be BMC’s use of commercially reasonable efforts to have the Subscription Services perform in substantial accordance with the User Guide, or replace the non-conforming portion of the Subscription Services within a reasonable period of time, or if BMC cannot have the Subscription Services perform in substantial accordance with the User Guide or replace the Subscription Services within such time period, then BMC will refund the amount paid by Customer for the Subscription Services, pro-rated from the date of the notice of the claim. Customer’s rights and BMC’s obligations in this Section 6.1(b) are conditioned upon Customer’s providing BMC with written notice of the claim, a complete description of the alleged defects and a specific reference to the User Guide to which such alleged defects are contrary.
6.2	Disclaimer. CUSTOMER ACKNOWLEDGES THAT, EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, BMC, ITS AFFILIATES AND LICENSORS MAKE NO WARRANTY, EXPRESS, IMPLIED OR STATUTORY WITH RESPECT TO THE SUBSCRIPTION SERVICES OR USE THEREOF. BMC, ITS AFFILIATES AND LICENSORS HEREBY EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY THAT SUBSCRIPTION SERVICES WILL BE UNINTERRUPTED, ERROR FREE OR WITHOUT DELAY, AND THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INTERFERENCE, NON-INFRINGEMENT AND INFORMATION CONTENT.
7.	PROPRIETARY RIGHTS AND CONFIDENTIALITY.
7.1 Proprietary Rights. BMC, its Affiliates or licensors retain all right, title and interest to the Subscription Services and all related intellectual property and proprietary rights. The Subscription Services are protected by applicable copyright, trade secret, industrial and other intellectual property laws. BMC owns all right, title and interest in all software, programming, documentation, templates, questionnaires, methodologies, models, charts, reports and any other items used to deliver the Subscription Services or made available to Customer as a result of the Subscription Services (“Service Items”) and access to and use of the relevant Service Items will be governed by the terms of this Agreement. BMC reserves any rights not expressly granted to Customer. Customer shall not access the Subscription Services in order to build a competitive product or service or copy any ideas, features, functions or graphics of the Subscription Services. “Confidential Information” means all proprietary or confidential information that is disclosed to the recipient (“Recipient”) by the discloser (“Discloser”), and includes, among other things (i) any and all information relating to products or services provided by a Discloser, its customer-related and financial information, software code, flow charts, techniques, specifications, development and marketing plans, strategies, and forecasts; (ii) as to BMC, and its licensors, the Subscription Services and Service Items; and (iii) the terms of this Agreement, including without limitation, pricing information. Confidential Information does not include information that Recipient can show: (a) was rightfully in Recipient’s possession without any obligation of confidentiality before receipt from the Discloser; (b) is or becomes a matter of public knowledge through no fault of Recipient; (c) is rightfully received by Recipient from a third party without violation of a duty of confidentiality; or (d) is or was independently developed by or for Recipient. Recipient may not disclose Confidential Information of Discloser to any third party or use the Confidential Information in violation of this Agreement. The Recipient (i) will exercise the same degree of care and protection with respect to the Confidential Information of the Discloser that it exercises with respect to its own Confidential Information and (ii) will not, either directly or indirectly, disclose, copy, distribute, republish, or allow any third party to have access to any Confidential Information of the Discloser. Notwithstanding the foregoing, Recipient may disclose Discloser’s Confidential Information to Recipient’s employees and agents who have need to know provided that such employees and agents have legal obligations of confidentiality substantially the same (and in no case less protective) as the provisions of this Agreement.
7.2 Notification Obligation. If the Recipient becomes aware of any unauthorized use or disclosure of Discloser’s Confidential Information, then Recipient will promptly and fully notify the Discloser of all facts known to it concerning such unauthorized use or disclosure. In addition, if the Recipient or any of its employees or agents are required (by oral questions, interrogatories, requests for information, or documents in legal proceedings, subpoena, civil investigative demand, or other similar process) to disclose any of Discloser’s Confidential Information, the Recipient will not disclose the Discloser’s Confidential Information without providing the Discloser with commercially reasonable advance prior written notice to allow Discloser to seek a protective order or other appropriate remedy or to waive compliance with this provision. In any event, the Recipient will exercise its commercially reasonable efforts to preserve the confidentiality of the Discloser’s Confidential Information, including, without limitation, cooperating with Discloser to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded to the Confidential Information.
7.3 Customer Data. As between BMC and Customer, Customer owns all rights, title and interest in and to Customer Data. Customer Data is deemed Confidential Information under this Agreement. BMC will use the Customer Data only as necessary to provide the Subscription Services in accordance with this Agreement. At any time during the term of the Subscription Services, Customer may request copies of all Customer Data from the Subscription Services. Customer is responsible for complying with all legal and contractual requirements, including its agreements with third parties. With the exception of Customer Data collected by the Subscription Services, Customer is solely responsible for the transmission of Customer Data to BMC and to the Subscription Services. Customer is solely responsible for the encryption of any Customer Data.
7.4	Suggestions. Customer agrees that BMC shall have a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into any BMC products or services any suggestions, enhancement requests, recommendations or other feedback provided by Customer relating to the Subscription Services.
8.	DISCLAIMER OF DAMAGES AND LIMITS ON LIABILITY.
8.1	DISCLAIMER OF DAMAGES. EXCEPT FOR EACH PARTY’S RESPONSIBILITIES IN SECTION 9, NEITHER PARTY OR ITS AFFILIATES ARE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES RELATING TO OR ARISING OUT OF THIS AGREEMENT OR THE SUBSCRIPTION SERVICES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST COMPUTER USAGE TIME, AND DAMAGE TO, OR LOSS OF USE OF, DATA), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND IRRESPECTIVE OF ANY NEGLIGENCE OF A PARTY OR WHETHER SUCH DAMAGES RESULT FROM A CLAIM ARISING UNDER TORT OR CONTRACT LAW.
8.2	LIMITS ON LIABILITY. EXCEPT FOR EACH PARTY’S RESPONSIBILITIES IN SECTION 9, NEITHER PARTY OR ITS AFFILIATES SHALL HAVE AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SUBSCRIPTION SERVICES, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEEDING THE AMOUNTS ACTUALLY PAID BY AND DUE FROM CUSTOMER PURSUANT TO THE ORDER(S) GIVING RISE TO LIABILITY THAT ARE IN EFFECT AS OF SUCH DATE.
9.	INFRINGEMENT CLAIMS.
9.1	Indemnification by BMC. If a third party asserts a claim against Customer asserting that Customer’s use of the Subscription Services in accordance with this Agreement violates that third-party’s patent, trade secret or copyright rights (“Infringement Claim”), then BMC will, at its own expense: (a) defend or settle the Infringement Claim; and (b) indemnify Customer for any damages finally awarded against Customer based on infringement by the Subscription Services. If BMC believes the Subscription Services may violate a right, then BMC will, at its expense: (a) modify the Subscription Services, or (b) procure the right to continue using the Subscription Services, and if (a) or (b) are not commercially reasonable, terminate Customer's right to use the Subscription Services and issue a pro-rata refund for the unexpired pre-paid portion of such Subscription Services.
9.2	Indemnification by Customer. Subject to the terms of this Agreement, if a third party asserts a claim against BMC asserting that the Customer Data or Customer’s use of the Subscription Services in violation of this Agreement violates that third-party’s patent, trade secret or copyright rights, or violates applicable law (“Claim”), Customer will, at its own expense: (a) defend or settle the Claim; and (b) indemnify BMC for any damages finally awarded against BMC based on the Claim.
9.3	Indemnity Process. Neither party’s obligations under this Section will apply if: (a) the indemnifying party’s legal department does not receive prompt, detailed written notice of the Infringement Claim/Claim from the party being indemnified, (b) the indemnifying party is not able to retain sole control of the defense of the Infringement Claim/Claim and all negotiations for its settlement or compromise, or (c) the indemnifying party does not receive all reasonable assistance from the party being indemnified. Neither party will bind the indemnified party to a monetary obligation in a settlement or compromise, or make an admission on behalf of the indemnified party, without obtaining that party’s prior consent.
9.4	THIS SECTION 9 CONTAINS EACH PARTY'S EXCLUSIVE REMEDIES AND THE INDEMNIFYING PARTY'S SOLE LIABILITY FOR INFRINGEMENT CLAIMS/CLAIMS, RESPECTIVELY.
10.	EXPORT CONTROLS. Customer represents and warrants that it: a) will comply with the United States Export Administration Regulations and other U.S. or foreign export regulations; b) no individual accessing or using the Subscription Services is a citizen of or from an embargoed country (currently Iran, Syria, Sudan, Cuba and North Korea); c) is not prohibited from receiving the Subscription Services under such regulations; d) will not acquire the Subscription Services for a person who is restricted under such regulations; e) will not use the Subscription Services in contradiction to such regulations; and f) will not use the Subscription Services for prohibited uses, including but not limited to nuclear, chemical, missile or biological weapons related end uses. For Subscription Services exported from Ireland, EC No. 428/2009 sets up a Community regime for control of exports of dual-use items and technology, and it is declared that this Subscription Services is intended for civil purposes only. Therefore, Customer agrees to comply with both the U.S. regulations and those E.U. regulations and will not export in violation of the regulations and without all proper licenses. Customer’ failure to comply with these regulations will result in an automatic termination of the Agreement and all rights to the Subscription Services thereunder.
11.	GOVERNING LAW AND DISPUTE RESOLUTION. Any controversy, dispute or claim arising out of or relating to this Agreement, or to the formation, interpretation, breach, termination, or validity thereof (each, a “Controversy”) will be resolved as follows:
(i)	UNITED STATES. If both parties to this Agreement are entities incorporated under the law of any state in the United States, the Controversy shall be tried in either state or federal court located in Houston, Texas and the laws of the State of Texas shall govern. Both parties hereby submit to the exclusive jurisdiction of the courts in Houston, Texas and waive all defenses based on forum non conveniens.
(ii)	EMEA. If both parties to this Agreement are entities incorporated in countries in the Europe, Middle East, or Africa regions, the Controversy shall be tried in the District Court located in Amsterdam, the Netherlands and the substantive laws of the Netherlands shall govern. Both parties hereby submit to the exclusive jurisdiction of the District Court in Amsterdam, the Netherlands and waive all defenses based on forum non conveniens.
(iii)	ASIA PACIFIC. If both parties to this Agreement are entities incorporated in countries in the Asia Pacific region, the arbitration shall be held in Singapore under the then-applicable rules of the Singapore International Arbitration Centre and the substantive laws of Singapore will govern.
(iv)	OTHER REGIONS. In all other instances, the arbitration shall be held in New York City, New York, under the then-applicable international rules of the American Arbitration Association and the substantive laws of the State of Texas will govern.
For all arbitrations conducted hereunder: (a) the arbitration shall be conducted in English; (b) the relevant arbitral institution shall determine the number of arbitrators, but any Controversy in which the amount in dispute is greater than $10 million USD shall be decided by three arbitrators, with each party having the right to select one arbitrator; (c) the costs of such arbitration shall be borne equally, pending the arbitrator’s award; (d) the arbitration award rendered shall be final and binding on the parties, shall not be subject to appeal to any court and shall be enforceable in any court having jurisdiction over the parties; (e) the arbitration proceedings, award and pleadings shall all be confidential, unless disclosure of particular information is required for purposes of enforcing/challenging the award or to meet local securities law requirements; and (f) the party prevailing in arbitration shall be entitled to recover its reasonable attorneys’ fees and the necessary costs incurred in connection with the arbitration.
The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. Nothing in this Agreement shall be deemed as preventing either party from seeking immediate injunctive relief from any court having jurisdiction over the parties and the subject matter of the dispute
12.	The following BMC contracting entities apply to this Agreement:
Region | Contracting Entity | Address of Contracting Entity |
---|---|---|
United States and Latin America South (not a specified Central or South America country below) | BMC Software, Inc. | 2103 CityWest Boulevard, Houston, Texas 77042 |
Canada | BMC Software Canada Inc. | 50 Minthorn Boulevard, Suite 200 Markham, Ontario L3T 7X8 Canada |
EMEA (Europe, Middle East and Africa) | BMC Software Distribution B.V. | Boeing Avenue 245, 1119 PD Schiphol Rijk, The Netherlands |
Brazil | BMC Software do Brasil Ltda. | Av. das Nações Unidas, 8.501 – 22º Andar Condomínio Eldorado Business Tower São Paulo, Brasil – 05425-070 |
Mexico | BMC Software Distribution de México, S.A. de C.V. | Torre Esmeralda II Blvd. Manuel Avila, Camacho #36, Piso 23 Lomas de Chapultepec, CP11000, Mexico D.F. |
Argentina | BMC Software de Argentina S.A. | Ing. Butty 220 – Piso 18, Buenos Aires, Republica Argentina, C1001AFB |
S.E.A (Southeast Asia), Australia, New Zealand, Hong Kong, Taiwan | BMC Software Asia Pacific Pte Ltd | 600 North Bridge Road, #20-01/10 Parkview Square, Singapore 188778 |
China | BMC Software (China) Limited | Room 502, Level 5, Tower W1, The Towers, Oriental Plaza, No. 1 East Chang An Ave., Dong Cheng Dist., Beijing 100738, China |
Japan | BMC Software K.K. | Harmony Tower 24th Floor, 1-32-2 Honcho, Nakano-ku, Tokyo, 164-8721 |
Korea | BMC Software Korea Ltd | 24th Fl., ASEM Tower, 1517, Yeongdong-daero,Gangnam-gu, Seoul 135-798, Korea South |
13.	U.S. FEDERAL ACQUISITIONS. This Section applies only to acquisitions of the commercial Subscription Services and Documentation subject to this Agreement by or on behalf of the United States Government, or by any prime contractor or subcontractor (at any tier) under any contract, grant, cooperative agreement or other activity with the United States Government. In the event the Subscription Services are delivered to the United States Government, the United States Government hereby agrees that the Subscription Services qualify as “commercial items” within the meaning of the Federal acquisition regulation(s) applicable to this procurement. The terms and conditions of this Agreement shall pertain to the United States Government’s use and disclosure of the Product, and shall supersede any conflicting contractual terms and conditions. The following additional statement applies only to acquisitions governed by DFARS Subpart 227.4 (October 1988): “Restricted Rights – Use, duplication and disclosure by the Government is subject to restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 (Oct. 1988).”
14.	DATA PROTECTION. The processing of Customer Data under this Agreement is governed by the BMC Data Processing Agreement set forth on the Order.
15.	VERIFICATION. Customer agrees that BMC or its agent may monitor the Subscription Services to ensure Customer’s compliance with the terms of this Agreement. If such monitoring reveals that Customer has exceeded the Capacity for the Subscription Services, Customer agrees to pay the applicable fees for additional capacity upon receipt of an invoice from BMC. If Customer to fails to pay fees for such additional capacity, BMC may suspend Customer’s access to the Subscription Services until such fees are paid in full.
16.	MISCELLANEOUS TERMS. BMC is not liable for its failure to perform any of its obligations under this Agreement during any period in which performance is delayed by Customer or circumstances beyond BMC's reasonable control. The parties are independent contractors and this Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties. Customer will receive system notifications from BMC and its licensors, if applicable (i.e. planned downtime notices, etc). This Agreement, including the Attachments and Orders constitutes the entire agreement between Customer and BMC and supersedes any prior or contemporaneous negotiations or agreements, whether oral or written concerning the Subscription Services. There are no representations, promises, warranties, covenants, or undertakings between the parties other than those expressly set forth in this Agreement. There are no third-party beneficiaries to this Agreement; Customer is not entering into a contractual relationship with BMC’s licensors and BMC’s licensors have no liability to Customer. Except as provided in Section 2 above, no modification or waiver of any provision hereof will be effective unless made in a writing signed by both BMC and Customer. Customer may not assign or transfer this Agreement or the Subscription Services to a third party, whether by merger, operation of law, or otherwise. Should any provision of this Agreement be invalid or unenforceable, the remainder of the provisions will remain in effect. Any additional or conflicting terms of any Customer purchase order are rejected by BMC and do not apply. The Subscription Services may contain hyperlinks to websites controlled by parties other than BMC. BMC is not responsible for and does not endorse the content or accept any responsibility for Customer’s use of these websites. Customer should refer to the policies posted by other websites regarding privacy and other topics regarding data privacy before using them.
Attachments incorporated into Agreement |
Attachment A – Platform Services Attachment |
Attachment B – Consulting Services Attachment |
Attachment C – On Premise Subscription Services Attachment |
PLATFORM SERVICES ATTACHMENT
to the
BMC CLOUD SERVICES MASTER AGREEMENT
Except as otherwise provided herein, the terms of the Cloud Services Master Agreement (the “Base Agreement”) are incorporated into this Platform Services attachment (the “Attachment”). Together, this Attachment and the Base Agreement (as incorporated into this Attachment) are referred to as the “Agreement” for purposes of Customer’s purchase of Platform Services, only if the Platform Services are set forth on an Order referencing the Base Agreement. For purposes of this Agreement, the term “Subscription Services” as defined in the Base Agreement shall be extended to include the Platform Services. In the event of a conflict between the Base Agreement and the terms of this Attachment, the terms of this Attachment will control for Customer’s purchase of the Platform Services only.
1.	SCOPE. Subject to the terms of this Agreement, BMC will provide Customer with access to the Platform Service named in the applicable Order. Customer may only use the Platform Services to store, retrieve, query, serve, and process Customer Data that is owned, licensed or lawfully obtained by Customer. As part of Customer’s subscription to the Platform Services, Customer may be allowed to run certain Applications on the Platform Services that are either (i) sold by BMC, (ii) sold by a Third Party Publisher, or (iii) owned or licensed by Customer.
2.	DEFINITIONS.
2.1	“Application” is the object code, its definitional structures, and data created to fulfill a particular purpose, which runs on the Platform Services. An Application may also include its documentation and User Guide.
2.2	“BMC Application Services” means an Application that is licensed by BMC to customers, including all items delivered by BMC to Customer under Support related to such Application.
2.3	“Customer Applications” means Applications that are owned or licensed by Customer, not including any Third Party Applications, and which run on the Platform Services.
2.4	“Customer Data” means all information uploaded or entered by Customer to the Platform Services, excluding Customer Applications.
2.5	“Data Processing Agreement” means the applicable Data Processing Agreement attached to each Order.
2.6	“Platform Services” means the BMC Innovation Suite and its capabilities to run Applications. The specific Platform Services being purchased by Customer will be identified in the Order.
2.7	“Third Party Applications” means Applications that are owned by a Third Party Publisher with a valid independent software vendor agreement in place with BMC, and are licensed by said Third Party Publisher to customers.
2.8	“Third Party Publisher” means a party other than BMC or a BMC Affiliate that is the owner and licensor of a Third Party Application, and has a valid independent software vendor agreement in place with BMC. For the sake of clarity, Customer is informed that Third Party Publishers are not BMC Subcontractors.
3.	BMC PLATFORM SERVICES.
3.1	BMC Platform Services Support. BMC will provide Support only for Platform Services and BMC Application Services. Customer is responsible for its own support for Customer Applications and Third Party Applications.
3.2	Notifications to Customer. Any general notifications from BMC Operations to Customer will be sent to the Customer contact stated in the Customer Technical Contact Information section of the Order. The Customer contact in the Order has been assigned by Customer as the Customer contact for operational issues that may arise. Customer shall notify BMC of any change to the Customer contact details in writing, which may include via e-mail.
3.3	Customer Data Back-up and Recovery. BMC provides daily incremental and weekly full system backups of the production environment in a secure off-site facility within the same country as the primary facility, using a 90 day retention window for data recovery purposes.
3.4	Subcontractors. For the sake of clarity, Customer is informed that Third Party Publishers are not BMC Subcontractors.
3.5	Customer Responsibilities. In Addition to the Customer Responsibilities set forth in the Base Agreement, Customer may not (i) transfer an Application outside of the Platform Services; or (ii) tamper with or circumvent any controls or make unauthorized copies of an Application.
4.	CUSTOMER APPLICATIONS AND THIRD PARTY APPLICATIONS.
4.1	Any Third Party Applications or Customer Applications that run on the Platform Services are hereby excluded from the defined terms “Subscription Services”, “BMC Application Services” and “Platform Services”. Such Third Party Applications are governed by the terms provided with the Third Party Applications, and are by and between Customer and the applicable Third Party Publisher. Customer acknowledges and agrees that this Agreement does not govern Customer’s subscription, use and access of any Third Party Applications or Customer Applications, and said Third Party Applications and Customer Applications are specifically excluded from this Agreement.
4.2	Customer may utilize the BMC Innovation Suite for Developers to create an Application to run on the Platform Services. Customer’s use of the BMC Innovation Suite for Developers is exclusively governed by the BMC Developer Program Agreement, a copy of which may be viewed at https://www.bmc.com/content/dam/bmc/corporate/DVA.pdf, and such use is not governed by the terms of this Agreement. Customer’s development of an Application must meet the best practices development guidelines set forth in the User Guide. Each Customer Application shall at all times materially conform to policies and best practices set forth in the User Guide. Prior to the deployment of any Customer Applications in a production or non-production environment of the Platform Services, Customer must conduct security and functional tests of each Customer Application and submit the results of such tests to BMC for review. BMC reserves the right to reject Customer’s deployment request of a Customer Application based on the results of Customer’s security and functional tests. Additionally, BMC reserves the right, during the term of this Agreement, to request Customer conduct additional security and functional tests and provide the results of said tests to BMC for review. Notwithstanding the foregoing, Customer must ensure that at all times Customer Applications are secure.
4.3	License to Customer Applications. Subject to the terms and conditions of this Agreement, Customer hereby grants BMC a worldwide, limited, nonexclusive license during the term of the applicable Order for the Platform Services to host, copy, transmit, adapt and display Customer Applications solely for the purpose of fulfilling BMC’s obligations under this Agreement.
4.4	Functionality of Customer Applications. Customer is solely responsible for the operation of Customer Applications, including but not limited to any information stored in or transmitted by Customer Applications. Customer is responsible for monitoring the usage of each Customer Application. Customer is responsible for the configuration, functionality, performance, compliance with applicable data protection laws and security of all Customer Applications, including any interfaces used to connect to Customer Applications.
4.5	Use of Customer Applications. Customer has sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of Customer Applications and all Customer Data entered therein by Customer, its Users or on Customer’s behalf, the means by which Customer acquired such Customer Data, and the use of such Customer Data. Without limiting Customer’s obligations under the terms of this Agreement, Customer must (i) provide any necessary notice to, and obtain any necessary consent from, Users for the collection, use, transfer, and storage of Customer Data (including by BMC), and (b) collect, use, transfer, and store Customer Data in accordance with any privacy notice you provide, and all applicable laws.
4.6	Use of Third Party Applications. Customer is responsible for monitoring its usage of each Third Party Application, and such Third Party Publisher’s usage and license compliance is governed by the terms of the agreement entered into between Customer and the Third Party Publisher. Customer is responsible for all applicable fees associated with Customer’s use of Third Party Applications. Please note, Customer’s usage of such Third Party Applications may incur additional license fees between Customer and the applicable Third Party Publisher, as well as additional Platform Services fees.
4.7	Customer will provide information or other materials related to a Customer Applications as reasonably requested by BMC to verify Customer’s compliance with the Agreement and the User Guide. BMC may monitor Customer Applications and Third Party Applications running on the Platform Services to verify Customer’s compliance with the Agreement. Customer will not block or interfere with BMC’s monitoring. Customer will cooperate with BMC to identify the source of any problem with the Platform Services that BMC reasonably believes may be attributable to Customer Applications or Third Party Applications, or any Customer Data.
4.8	If BMC reasonably believes any Customer Data, Customer Applications or Third Party Applications violates the law, infringes or misappropriates the rights of any third party or otherwise violates a material term of the Agreement (including the User Guide) (“Prohibited Content”), BMC will notify Customer of the Prohibited Content and may request that such content be removed from the Platform Services or access to it be disabled. If Customer does not remove or disable access to the Prohibited Content within two (2) business days of BMC’s notice, BMC may remove or disable access to the Prohibited Content or suspend the Platform Services to the extent BMC is not able to remove or disable access to the Prohibited Content. Notwithstanding the foregoing, BMC may remove or disable access to any Prohibited Content without prior notice in connection with illegal content, where the content may disrupt or threaten the Platform Services, pursuant to the Digital Millennium Copyright Act or as required to comply with law or any judicial, regulatory or other governmental order or request. In the event that BMC removes content without prior notice, BMC will provide prompt notice to Customer unless prohibited by law.
4.9	Customer’s use of the Platform Services, BMC Application Services, Customer Applications and/or Third Party Applications may be immediately suspended and/or terminated due to (i) reasonable security threats regarding the Platform Services, Customer Applications or Third Party Applications, (ii) Customer Applications or Third Party Applications interfering with, disrupting or threatening the integrity or performance of the Platform Services or BMC Application Services, or (iii) a third party’s claim that Customer Applications or Third Party Applications may violate applicable law or third party rights. In the event of (i) or (ii) above apply to Customer Applications, Customer is required to remediate any such issue to BMC’s commercially reasonable satisfaction before use of Customer Applications can resume.
4.10	Customer’s access to Third Party Applications may be immediately suspended and/or terminated by BMC at the direction of the Third Party Publisher. Customer acknowledges and understands that access to Customer Applications and/or Third Party Applications used in connection with the Platform Services may be suspended due to Customer’s non-payment to BMC for use and access to the Platform Services or other breach of this Agreement. In no case will any such suspension or termination under the terms of this Agreement give rise to any BMC liability to Customer for a refund or other compensation.
4.11	BMC may conduct periodic security evaluations of all Customer Applications, which may include security review, a qualitative assessment involving review of a completed questionnaire, and an interview with appropriate Customer personnel. BMC conducts such security evaluations for its own benefit and Customer may not rely on the successful results of such evaluation. BMC may conduct such testing itself or, subject to the confidentiality obligations set forth in the Agreement, through a third party. BMC will provide reasonable notice to Customer before starting such testing. BMC will also cooperate reasonably with Customer to minimize the effects of such testing on Customer’s business and operations. Customer agrees to cooperate reasonably with such testing. Despite the foregoing, such testing may in rare cases cause downtime or other adverse effects on Customer Applications, Third Party Applications, the Platform Services or other BMC Application Services used by Customer. Any nonpublic information to which BMC obtains access in the course of such security testing will be considered Customer’s Confidential Information.
4.12	Customer Responsibilities. Customer will maintain the confidentiality of all authentications and passwords for the Platform Services, Customer Applications and Third Party Applications, and immediately notify BMC if it becomes aware that an unauthorized party has gained access to such Platform Services, Customer Applications or Third Party Applications. Customer will (i) use reasonable efforts to prevent unauthorized access to, or use of, Customer Applications and Third Party Applications, and notify BMC promptly of any such unauthorized access or use, and (ii) comply with all applicable laws in using the Customer Applications and Third Party Applications. Customer is responsible for the creation and implementation of a privacy policy and end user license agreement, if applicable, which will set forth the guidelines of how said Users may utilize the Customer Applications.
5.	WARRANTIES. Customer warrants to BMC that: (a) each Customer Application will perform materially in accordance with the User Guide; (b) Customer owns all right, title, and interest in and to Customer Data, including but not limited to any Customer Data uploaded or entered into Customer Applications or Third Party Applications; (c) Customer has the necessary rights to use and access any Customer Applications and Third Party Applications deployed in a production or non-production environment of the Platform Services; (d) Customer has all rights in the Customer Data and Customer Applications necessary to grant the rights contemplated by this Agreement; (e) none of the Customer Data or Customer Applications or Users’ use of Customer Data or Customer Applications will violate the Agreement and the User Guide; (f) Customer’s security and functional tests of Customer Applications was conducted in a commercially reasonable manner and the results of said tests provided to BMC for review are correct and valid; and (g) none of the Third Party Applications or Users’ use of Third Party Applications will violate the Agreement or the User Guide.
6.	SECURITY AND DATA PROTECTION.
6.1	Customer and Third Party Publishers shall agree upon their respective obligations with respect to the processing of personal data by Third Party Publishers as per Section 4.1 of this Attachment.
6.2	BMC takes no responsibility with regard to Customer Data content (i) processed on behalf of Customer and/or handling as per Customer’s instructions and/or (ii) processed by Third Party Publishers and/or (iii) through the use by Customer of Third Party Applications. Customer shall indemnify and hold harmless BMC from any failure to comply with its obligations set forth in this Attachment according to the terms of Section 9.2 (Indemnification by Customer) in the Base Agreement.
7.	INDEMNIFICATION. For purposes of this Agreement, the term “Claim” as defined in Section 9.2 (Indemnification by Customer) of the Base Agreement shall be extended to include if a third party asserts a claim against BMC asserting that a Customer Application violates that third-party’s patent, trade secret or copyright rights, or otherwise harms the third party.
8.	LIMITATION OF LIABILITY. Section 8 of the Base Agreement shall not apply to Customer’s breach of Section 4.12 of this Attachment.
9.	INSURANCE. Customer will provide and maintain cyber liability insurance in the amount of one million dollars ($1,000,000.00) for losses arising out of Customer’s provision of a Customer Application on the Platform Services under this Agreement.
ATTACHMENT B
CONSULTING SERVICES ATTACHMENT
to the
BMC CLOUD SERVICES MASTER AGREEMENT
Except as otherwise provided herein, the terms of the Cloud Services Master Agreement (the “Base Agreement”) are incorporated into this Consulting Services attachment (the “Attachment”). Together, this Attachment and the Base Agreement (as incorporated into this Attachment) are referred to as the “Agreement” for purposes of Customer’s purchase of Consulting Services, only if Consulting Services are set forth on an Order referencing the Base Agreement. For purposes of this Agreement, the term “Subscription Services” as defined in the Base Agreement shall be extended to include Consulting Services. In the event of a conflict between the Base Agreement and the terms of this Attachment, the terms of this Attachment will control for Customer’s purchase of Consulting Services only. The parties agree that the following Sections of the Base Agreement do not apply to the Consulting Services provided under this Attachment: Section 3.2 (Support), Section 4 (Fees and Payment), Section 6 (Limited Warranty) and Section 9 (Infringement Claims).
1.	SCOPE. BMC agrees to render to Customer Consulting Services under the terms of this Agreement and as further described in an Order. BMC will render the Consulting Services in the location(s) as set forth in the Order. Neither execution of this Agreement, nor anything contained herein, shall obligate either party to enter into an Order. The performance of the Consulting Services will not relieve or alter the rights, obligations and responsibilities of Customer and of the licensing BMC affiliate with respect to BMC software products under the applicable software license Agreement.
2.	SERVICE FEES AND EXPENSES. The fees payable to BMC for the Consulting Services to be rendered will be detailed in the Order. BMC will submit invoices to Customer for such fees and incurred expenses either upon completion of the Consulting Services, or at stated intervals, in any case in accordance with the applicable Order. Customer shall pay amounts invoiced within 30 days following receipt of the invoice.
3.	EDUCATION. Customer may acquire Learning Pass Credits and Education Services (collectively, “BMC Education”) on a Order. The BMC Education terms that govern such Orders are set forth in the Education Program Guide located at http://media.cms.bmc.com/documents/education-program-guide.pdf, and is incorporated herein by this reference.
4.	STATEMENTS OF WORK. Some Consulting Services may require the execution of a Statement of Work. Such requirement will be set forth in an Order. In the event of any conflict between the terms of a Statement of Work and this Agreement, the Agreement shall prevail except for matters of service fees, payment and reimbursement of expense terms if further specified in the Statement of Work. During the term of an applicable Statement of Work, and for a period of six months thereafter, neither party will solicit for employment any employees, agents, or subcontractors of the other party or its affiliates who, within six months prior to such solicitation, had contact with the soliciting party based in whole or in part upon Consulting Services provided under this Agreement. The restrictions in this section shall be deemed not to apply to general solicitations for employment posted on Internet job sites or printed in newspapers or trade or professional journals.
5.	PROPRIETARY RIGHTS AND RIGHTS IN DELIVERABLES.
5.1	Ownership of Materials Used in the Consulting Services. Unless specifically provided in an Order, Customer shall supply all of the facilities; equipment; supplies; computer programs; information about Customer’s business, systems, software and needs; and other materials necessary for completion of the Consulting Services (“Customer Property”), and BMC shall supply the people described in the Order, the know-how and the tools necessary to provide the Consulting Services, which may include, among other things, software, templates, questionnaires, graphs, methodologies, models, charts and reports (“BMC Property”). Customer Property and copies and modifications of Customer Property will remain the sole property of Customer or if applicable, Customer’s licensors, and BMC Property and copies and modifications of BMC Property will remain the sole property of BMC or if applicable, BMC’s licensors. Customer hereby grants to BMC a royalty-free, paid-up, non-exclusive, non-sublicensable and non-transferable license to use the Customer Property for the purpose of providing the Consulting Services.
5.2	Deliverables. Deliverables are those created under the Order, including, but not limited to, software, software scripts, routines, libraries or other code, or appliances, methodologies, templates, tools, policies, records, working papers, reports, methodologies, know-how, data, or other intellectual property, written or otherwise, including any derivative works or modifications to the above, whether pre-existing or created during the performance of the Consulting Services and all proprietary and intellectual property rights embedded therein delivered as a result of the Consulting Services as specified under the Order. BMC owns all right, title and interest in the Deliverables. Provided Customer has paid in full for the Consulting Services that resulted in the Deliverables, BMC will deliver the Deliverables to Customer in accordance with the applicable Order. Subject to compliance with the terms of this Agreement and the applicable Order, BMC grants Customer a non-exclusive, non-transferable, non-sublicensable, royalty-free, paid-up license to use, create derivative works of and modify all Deliverables solely for its internal business operations.
5.3	Copyright Notice. Each party agrees to reproduce the copyright notice and any other legend or ownership notice on any copies made under the licenses granted pursuant to this Section 5.
5.4	Retention. Customer acknowledges that BMC provides similar services to other customers and that nothing in this Agreement shall be construed as operating to prevent BMC from carrying on such business. Further BMC may use ideas, concepts, or know-how developed or acquired by BMC during performance of the Consulting Services to the extent acquired by BMC’s personnel as impressions and general learning.
6.	LIMITED WARRANTY. BMC warrants that it will perform the Consulting Services in conformance with generally accepted practices within the software services industry and in accordance with the Order. Customer must notify BMC of any breach of this warranty no later than 90 days after completion of the Consulting Services under the Order. Customer’s exclusive remedy and BMC’s entire liability under this warranty shall be for BMC to re-perform any non-conforming portion of the Consulting Services within a reasonable period of time, or if BMC cannot remedy the breach during such time period then refund the portion of the fee attributable to such non-conforming portion of the Consulting Services under the Order. This warranty will not apply to the extent Customer, its contractors or agents have modified any Deliverable, unless otherwise authorized by BMC in writing.
THIS WARRANTY AND CONDITION IS IN LIEU OF ALL OTHER WARRANTIES AND CONDITIONS. THERE ARE NO OTHER EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS, INCLUDING THE IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
7.	INSURANCE. BMC will provide and maintain the following insurance, but only for losses arising out of BMC’s provision of Consulting Services under this Attachment:
7.1	Worker’s Compensation insurance as prescribed by the law of the state applicable to the employees performing the Consulting Services;
7.2	Employer’s Liability insurance with a limit of one million US dollars ($1,000,000) for each occurrence;
7.3	Commercial General Liability insurance with one million US dollars ($1,000,000) per occurrence combined single limit and five million US dollars ($5,000,000) general aggregate, including coverage for Products Liability and Completed Operations;
7.4	Automobile Liability insurance, including coverage for Hired and Non-owned vehicles of one million US dollars ($1,000,000) for combined single limit for bodily injury and/or property damage; and
7.5	Professional Liability insurance covering Errors and Omissions in the amount of one million US dollars ($1,000,000) for each occurrence and in the aggregate associated with Consulting Services performed under this AGREEMENT.
8.	INFRINGEMENT INDEMNITY.
8.1	If a third party asserts a claim against Customer asserting that Customer’s use of a Deliverable in accordance with this Agreement violates that third-party’s patent, trade secret or copyright (“Customer Infringement Claim”), then BMC will, at its own expense: (a) defend or settle the Customer Infringement Claim; and (b) indemnify Customer for any damages finally awarded against Customer, but only if: Customer promptly notifies BMC of the Customer Infringement Claim, BMC retains sole control of the defense of the Customer Infringement Claim and all negotiations for its settlement or compromise, and Customer provides all reasonable assistance requested by BMC. BMC’s obligations above will not apply if the Customer Infringement Claim is based on (i) the use of the Deliverable in combination with products not supplied or approved by BMC in writing or in the Deliverable's user manuals, (ii) modification of the Deliverable other than by BMC, or (iii) the failure of Customer to use any updates to such Deliverable within a reasonable time after such updates are made available to Customer. If BMC believes a Deliverable may violate a right, then BMC will, at its expense: (a) modify the Deliverable, or (b) procure the right to continue using the Deliverable, and if (a) or (b) are not commercially reasonable, terminate Customer's right to use the Deliverable and issue a refund prorated over five years from the completion date of the related Order.
8.2	If a third party asserts a claim against BMC asserting that BMC’s use of Customer Property in accordance with this Agreement violates that third-party’s patent, trade secret or copyright (“BMC Infringement Claim”), then Customer will, at its own expense: (a) defend or settle the BMC Infringement Claim; and (b) indemnify BMC for any damages finally awarded against BMC, but only if: BMC promptly notifies Customer of the BMC Infringement Claim, Customer retains sole control of the defense of the BMC Infringement Claim and all negotiations for its settlement or compromise, and BMC provides all reasonable assistance requested by Customer.
8.3	This Section 8 contains each party’s exclusive remedy and sole liability for Infringement Claims.
9.	MUTUAL INDEMNITY. Each party shall indemnify and hold harmless the other party from all claims, liabilities or expenses for physical damage to real property or tangible personal property and bodily injury, including death, to the extent caused by the gross negligence or willful misconduct of the indemnifying party’s employees or contractors arising out of this Agreement and while at the Customer’s premises. The foregoing indemnities are contingent upon the party seeking indemnity giving prompt written notice to the indemnifying party of any claim, demand or action, and cooperating with the indemnifying party in the defense or settlement of any such claim, demand or action.
10.	INDEPENDENT CONTRACTOR. All of the services performed by BMC under this Agreement will be performed as an independent contractor.
ATTACHMENT C
ON PREMISE SUBSCRIPTIONS ATTACHMENT
to the
BMC CLOUD SERVICES MASTER AGREEMENT
Except as otherwise provided herein, the terms of the Cloud Services Master Agreement (the “Base Agreement”) are incorporated into this On Premise Subscriptions attachment (the “Attachment”). Together, this Attachment and the Base Agreement (as incorporated into this Attachment) are referred to as the “Agreement” for purposes of Customer’s purchase and ongoing use of On Premise Subscriptions, only if On Premise Subscriptions are set forth on an Order referencing the Base Agreement. For purposes of this Agreement, the term “Subscription Services” as defined in the Base Agreement shall be extended to include On Premise Subscriptions. In the event of a conflict between the Base Agreement and the terms of this Attachment, the terms of this Attachment will control for Customer’s purchase of On Premise Subscriptions only. The parties agree that the following Sections of the Base Agreement do not apply to the On Premise Subscriptions provided under this Attachment: Section 3.1 (Access Rights), Section 3.4 (Customer Responsibilities and Restrictions), Section 6 (Limited Warranty) and Section 14 (Verification).
1.	DEFINITIONS.
1.1	"Documentation" means the technical publications relating to the software, such as release notes, license entitlement descriptions, reference, user, installation, systems administrator and technical guidelines, included with the On Premise Subscription.
1.2	“Licensed Capacity” is the amount of each On Premise Subscription licensed as established in the Order.
1.3	“On Premise Subscription” is the object code of the software and all accompanying Documentation delivered to Customer, including all items delivered by BMC to Customer under Support.
2.	LICENSE. Subject to the terms, conditions, payment requirements and restrictions set forth in this Agreement, BMC grants Customer a non-exclusive, non-transferable, non-sub-licensable term license to install in the Territory, access and use the On Premise Subscription during the term specified on the Order (i) up to the Licensed Capacity, (ii) for Customer’s and its Affiliates internal business operations, (iii) in accordance with the Documentation and the applicable Order, and (iv) make one copy of the On Premise Subscription for archival purposes only (collectively a "License"). Affiliates may use and access the On Premise Subscriptions under the terms of this Agreement, and Customer is responsible for its Affiliates compliance with the terms of this Agreement.
3.	RESTRICTIONS. Customer will not: (a) copy, operate or use any On Premise Subscription in excess of the applicable Licensed Capacity or other than as set forth in the License above; (b) modify, delete or remove any ownership, title, trademark, patent or copyright notices (“Identification”) from any On Premise Subscription, or copy or partial copy of an On Premise Subscription; (c) disassemble, reverse engineer, decompile or otherwise attempt to derive any On Premise Subscription source code from object code, except to the extent expressly permitted by applicable law despite this limitation without possibility of contractual waiver; (d) distribute, rent, lease, sublicense or provide the On Premise Subscription to any third party; (e) use the On Premise Subscriptions in an outsourcing or service bureau environment on behalf of non-Affiliate third parties, or allow the On Premise Subscriptions to be used by an outsourcing or service bureau provider on Customer’s behalf; (f) provide a third party with the results of any functional evaluation, or performance tests, without BMC's prior written approval; or (g) attempt to disable or circumvent any of the licensing mechanisms within the On Premise Subscription.
4.	ON PREMISE SUBSCRIPTION PERFORMANCE WARRANTY. BMC warrants that (a) the On Premise Subscription will perform in substantial accordance with its Documentation for a period of one year from the date of the first Order, (b) BMC has used commercially reasonable efforts consistent with industry standards to scan for and remove software viruses, and (c) other than passwords that may be required for the operation of the On Premise Subscription, BMC has not inserted any code that is not addressed in the Documentation and that is designed to delete, interfere with or disable the normal operation of the On Premise Subscription in accordance with the License. This warranty will not apply to any problems caused by hardware, Computers, or software other than the On Premise Subscription, or misuse of the On Premise Subscription, use of the On Premise Subscription other than as provided by the applicable License, modification of the On Premise Subscription, or claims made either outside the warranty period or not in compliance with the notice and access requirements set forth below. No warranty is provided for additional Licensed Capacity, On Premise Subscription provided pursuant to Support. BMC’s entire liability, and Customer’s exclusive remedy, for breach of the above warranty is limited to: BMC’s use of commercially reasonable efforts to have the On Premise Subscription perform in substantial accordance with its Documentation, or replacement of the non-conforming On Premise Subscription within a reasonable period of time, or if BMC cannot have the On Premise Subscription perform in substantial accordance with its Documentation replace the On Premise Subscription within such time period, then BMC will refund the amount paid by Customer for the License for that On Premise Subscription. Customer’s rights and BMC's obligations in this Section are conditioned upon Customer’s providing BMC during the warranty period (i) full cooperation and access to the On Premise Subscription in resolving any claim; and (ii) written notice addressed to the BMC Legal Department that includes notice of the claim, a complete description of the alleged defects sufficient to permit their reproduction in BMC’s development or support environment, and a specific reference to the Documentation to which such alleged defects are contrary.
EXCEPT FOR THE EXPRESS WARRANTIES IN THIS ATTACHMENT, THE ON PREMISE SUBSCRIPTION IS PROVIDED WITH NO OTHER WARRANTIES WHATSOEVER, AND BMC, ITS AFFILIATES AND LICENSORS DISCLAIM ALL OTHER WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. BMC DOES NOT WARRANT THAT THE OPERATION OF THE ON PREMISE SUBSCRIPTION WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT ALL DEFECTS CAN BE CORRECTED.
5.	DELIVERY. For On Premise Subscriptions that are delivered electronically, upon request from BMC, Customer agrees to provide BMC with documentation supporting that the designated On Premise Subscription was received electronically. If Customer accepts any On Premise Subscription in a non-electronic format, there may be an additional charge and it is the sole responsibility of Customer to bear any sales/use tax obligation, penalties, and interest. All On Premise Subscriptions are licensed FCA (“Free Carrier” as per Incoterms 2000) shipping point. The On Premise Subscriptions are accepted on the date BMC delivers the On Premise Subscription to the Customer either physically or by providing access codes for electronic download, whichever occurs first, however, such acceptance will not affect the On Premise Subscription Performance Warranty provided in this Agreement.
6.	AUDIT. If requested by BMC, and not more than once a year, Customer agrees to deliver to BMC, within 30 days of such request, as specified by BMC either (a) periodic product usage reports generated from specific products or (b) written periodic product usage reports, to be provided solely when the product does not generate reports (“Report”). Additionally, if requested by BMC not more than once a year, Customer agrees to allow BMC to perform an audit (“Audit”) at the locations where the On Premise Subscriptions are installed, during normal business hours to ensure compliance with the terms of this Agreement. Customer agrees to cooperate during any such Audit and to provide reasonable access to its information and systems. If an Audit or Report reveals that Customer has exceeded the Licensed Capacity for a On Premise Subscription, Customer agrees to pay the applicable fees for additional capacity upon receipt of invoice. If the understated capacity exceeds 5% of the Licensed Capacity of the applicable On Premise Subscription, then Customer agrees to also pay BMC’s reasonable costs of conducting the audit.
Effective June 20th 2018 to June 21st 2018
DownloadTable of Contents
BMC CLOUD SERVICES MASTER AGREEMENT
THIS CLOUD SERVICES MASTER AGREEMENT (“AGREEMENT”) GOVERNS YOUR FREE TRIAL, IF ANY, OF THE SUBSCRIPTION SERVICES.
IF YOU PURCHASE THE SUBSCRIPTION SERVICES, THIS AGREEMENT WILL ALSO GOVERN YOUR PURCHASE AND ONGOING USE OF THE SUBSCRIPTION SERVICES.
BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SUBSCRIPTION SERVICES.
You may not access the Subscription Services if you are BMC’s direct competitor, except with BMC’s prior written consent. In addition, you may not access the Subscription Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.
This Agreement was last updated on June 21, 2018. This Agreement is between the entity or individual entering into this Agreement (“Customer”) and the BMC Contracting Entity for the applicable region as described in Section 12 (“BMC”). It is effective between Customer and BMC as of the date of your acceptance of this Agreement. For Customer’s convenience, prior versions of this Agreement are available at https://www.bmc.com/legal/csma.html.
FREE TRIAL.
BMC may make the Subscription Services available to Customer on a trial basis free of charge. If BMC offers Customer a free trial, it will run until the earlier of (a) the end of the trial period stated on the trial registration web page or (b) the start date of any Order for purchase of the Subscription Services. Additional trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.
ANY DATA CUSTOMER ENTERS INTO THE SUBSCRIPTION SERVICES, AND ANY CUSTOMIZATIONS MADE TO THE SUBSCRIPTION SERVICES BY OR FOR CUSTOMER, DURING A FREE TRIAL WILL BE PERMANENTLY LOST UNLESS CUSTOMER PURCHASES A SUBSCRIPTION TO THE SAME SUBSCRIPTION SERVICES AS THOSE COVERED BY THE TRIAL, OR EXPORTS SUCH DATA BEFORE THE END OF THE TRIAL PERIOD.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THE AGREEMENT, DURING ANY FREE TRIAL PERIOD THE SUBSCRIPTION SERVICES ARE PROVIDED “AS IS” WITH NO WARRANTY.
1.	DEFINITIONS.
1.1	“Affiliate” is an entity that controls, is controlled by or shares common control with BMC or Customer, where such control arises from either (a) a direct or indirect ownership interest of more than 50% or (b) the power to direct or cause the direction of the management and policies, whether through the ownership of voting stock by contract, or otherwise, equal to that provided by a direct or indirect ownership of more than 50%.
1.2	“Subscription Services” means the hosted service which packages web-based access and the right-to-use the supported applications, installed agents and associated reference, user and technical guides.
1.3	“Capacity” means the amount of access to the Services purchased as specified in an Order, which is counted in accordance with the Unit of Measure described in the Order.
1.4	“Customer Data” means all electronic data or information (a) submitted to the Subscription Services by Customer, a third party on behalf of Customer, or as directed by Customer or (b) collected by the Subscription Services.
1.5	“Order” means (i) the agreed ordering document for the purchase of the Subscription Services, (ii) that is subject to this Agreement, and (iii) that identifies the terms of the purchase and fees to be paid. The term “Order” includes Customer’s online registration for and purchase of the Subscription Services, If any.
1.6	“User Guide” means the online help, functional guide and technical specifications for the Subscription Services, as updated by BMC from time to time.
2.	 SCOPE. Subject to the terms of this Agreement, Customer may purchase and BMC will provide Customer with access to the Subscription Services as set forth in this Agreement and the applicable Order. Subject to the Attachments to this Agreement, Customer may also purchase BMC Platform Services, BMC Consulting Services and BMC On Premise Subscription Services. In the event of a direct conflict between any Order and the terms of this Agreement, the terms of the Order will control only if the Order is executed by an authorized representative of each party. Each Order is deemed to be a discrete contract, separate from each other Order, unless expressly stated otherwise therein. Orders may be entered under this Agreement by and between (a) BMC or an Affiliate of BMC; and (b) Customer or an Affiliate of Customer. With respect to an Order, the terms “BMC” and “Customer” as used in this Agreement will be deemed to refer to the entities that execute that Order, the Order will be considered a two party agreement between such entities, and BMC will separately invoice the Customer named in the Order for the associated fees. Orders may also be placed via a BMC authorized reseller. Neither execution of this Agreement, nor anything contained herein, shall obligate either party to enter into any Orders.
3.	ACCESS TO SUBSCRIPTION SERVICES.
3.1	Access Rights. Subject to Customer’s payment of applicable fees and to the terms of this Agreement, BMC hereby grants to Customer a worldwide, non-exclusive, non-transferable, non-sublicensable, limited license to access and use the Subscription Services in accordance with the Order (i) up to the Capacity, (ii) for Customer’s and its Affiliates’ internal business operations, (iii) in accordance with the User Guide and the applicable Order. Customer may exercise its rights under this Section 3.1 through its service providers, outsourcers, employees, consultants, contractors, agents, and Affiliates (all, “Users”).
3.2	BMC Subscription Services Support. BMC will provide the support described at http://www.bmc.com/support/review-policies (“Support”) to Customer for the Subscription Services, which may be changed by BMC upon prior notice to customer, provided that such changes do not materially degrade Support during the term of an Order.
3.3	Use of Subcontractors. Customer acknowledges and agrees that BMC uses subcontractors to provide portions of the Subscription Services. BMC will provide a list of its current subcontractors upon Customer’s written request. BMC is responsible for the performance of all subcontractors providing any of the Subscription Services.
3.4	Customer Responsibilities and Restrictions.
(a) 	Customer will (i) maintain the confidentiality of all authentications and passwords for the Subscription Services and immediately notify BMC if it becomes aware that an unauthorized party has gained access such authentications and passwords, (ii) be responsible for use of the Subscription Services by its Users, (iii) prevent unauthorized access to, or use of, the Subscription Services, and notify BMC promptly of any such unauthorized access or use, (iv) comply with all applicable laws in using the Subscription Services, and (v) be responsible for obtaining its own Apple Push Notification certificate, if the Subscription Services are used to manage devices running iOS. Customer is responsible for the creation and implementation of a privacy policy and end user license agreement, if applicable, which will set forth the guidelines of how Customer uses and protects the data and personal information of its Users, and how said Users may utilize the Subscription Services.
(b) 	Customer will not (i) modify, copy or create derivative works based on the Subscription Services; (ii) create Internet “links” to or reproduce any content forming part of the Subscription Services, other than for its own internal business purposes; (iii) disassemble, reverse engineer, or decompile the Subscription Services or part thereof, or access it in order to copy any ideas, features, content, functions or graphics of the Subscription Services; (iv) interfere with or disrupt the integrity or performance of the Subscription Services; (vi) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortuous material, or send or store material in violation of any third party’s privacy rights via the Subscription Services; (vii) send or store viruses or malicious code via the Subscription Services; (viii) attempt to gain unauthorized access to the Subscription Services or its related software, systems, platforms or networks, including any form of security and/or penetration testing; (ix) use any components provided with the Subscription Services separately from the Subscription Services; or (x) distribute, rent, lease, sublicense or provide the Subscription Services to any third party or use it in a service bureau, outsourcing environment, or for the processing of third party data.
4.	FEES AND PAYMENT.
4.1	Fees. The fees payable for the Subscription Services and the payment period for such fees will be set forth in and paid in accordance with the Order. All invoices are due upon receipt of invoice.
4.2	Late Fees. The unpaid balance of each late payment bears interest at a rate equal to the lesser of 1% per month or the maximum amount permitted by law. All fees are nonrefundable and BMC will not provide any refunds or credits for partially used periods of the Subscription Services.
4.3	Taxes. Customer will pay or reimburse BMC or, when required by law, the appropriate governmental agency, for taxes of any kind, including sales, use, VAT, excise, customs duties, withholding, property, and other similar taxes (other than taxes based on BMC’s net income or arising from the employment relationship between BMC and its personnel) imposed in connection with the fees paid for the Subscription Services, which are exclusive of these taxes.
5.	TERM, SUSPENSION AND TERMINATION.
5.1	Term. This Agreement begins on the Effective Date and will remain in effect unless terminated pursuant to Section 5.2 below, regardless of the billing frequency selected in the Order.
5.2	Termination.
(a)	Termination for Convenience. Customer may terminate this Agreement by providing BMC with at least 30 days prior written notice; provided, however, such termination will have no effect on Orders in effect at the time of such termination. Orders may not be terminated for convenience unless otherwise specified therein. Customer may notify BMC of its intent to terminate by emailing BMC at order_services@bmc.com.
(b) 	Termination for Cause. Either party may terminate this Agreement and/or an Order for cause: (i) upon 30 days’ written notice of a material breach to the other party if such breach remains uncured at the expiration of such period; or (ii) immediately if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
5.3	Suspension of Subscription Services for Cause. In addition to its other rights and remedies, BMC reserves the right, without liability to Customer, to immediately suspend any and all access to the Subscription Services if Customer commits a material breach of this Agreement or any relevant Order until such material breach is cured.
5.4	Effects of Termination. Upon termination pursuant to Section 5.2(b) above, all rights and licenses granted herein will terminate and Customer will make no further use of the Subscription Services. No termination will relieve the Customer of the obligation to pay any fees accrued or payable to BMC pursuant to any Order. Upon written request by Customer made within 30 days after the effective date of termination, BMC will make available to Customer a file containing the Customer Data. After such 30 day period, BMC shall have no obligation to maintain or provide any Customer Data and will thereafter delete Customer Data.
6.	LIMITED WARRANTY.
6.1	Warranties and Limited Remedies. BMC warrants to Customer that:
(a)	the online availability of the Subscription Services will be maintained in accordance with the service levels attached to the applicable Order, if any (the “Service Level Agreement” or “SLA”). Customer’s exclusive remedy and BMC’s sole obligation for breach of the warranty in this Section 6.1(a) is described in the Service Level Agreement; and
(b)	the Subscription Services (i) will perform in substantial accordance with the then-current on-line User Guide available via the Subscription Services and (ii) will be performed in a manner consistent with industry standards reasonably applicable to the provision thereof. Customer’s exclusive remedy and BMC’s sole obligation for breach of the warranty in this Section 6.1(b) will be BMC’s use of commercially reasonable efforts to have the Subscription Services perform in substantial accordance with the User Guide, or replace the non-conforming portion of the Subscription Services within a reasonable period of time, or if BMC cannot have the Subscription Services perform in substantial accordance with the User Guide or replace the Subscription Services within such time period, then BMC will refund the amount paid by Customer for the Subscription Services, pro-rated from the date of the notice of the claim. Customer’s rights and BMC’s obligations in this Section 6.1(b) are conditioned upon Customer’s providing BMC with written notice of the claim, a complete description of the alleged defects and a specific reference to the User Guide to which such alleged defects are contrary.
6.2	Disclaimer. CUSTOMER ACKNOWLEDGES THAT, EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, BMC, ITS AFFILIATES AND LICENSORS MAKE NO WARRANTY, EXPRESS, IMPLIED OR STATUTORY WITH RESPECT TO THE SUBSCRIPTION SERVICES OR USE THEREOF. BMC, ITS AFFILIATES AND LICENSORS HEREBY EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY THAT SUBSCRIPTION SERVICES WILL BE UNINTERRUPTED, ERROR FREE OR WITHOUT DELAY, AND THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INTERFERENCE, NON-INFRINGEMENT AND INFORMATION CONTENT.
7.	PROPRIETARY RIGHTS AND CONFIDENTIALITY.
7.1 Proprietary Rights. BMC, its Affiliates or licensors retain all right, title and interest to the Subscription Services and all related intellectual property and proprietary rights. The Subscription Services are protected by applicable copyright, trade secret, industrial and other intellectual property laws. BMC owns all right, title and interest in all software, programming, documentation, templates, questionnaires, methodologies, models, charts, reports and any other items used to deliver the Subscription Services or made available to Customer as a result of the Subscription Services (“Service Items”) and access to and use of the relevant Service Items will be governed by the terms of this Agreement. BMC reserves any rights not expressly granted to Customer. Customer shall not access the Subscription Services in order to build a competitive product or service or copy any ideas, features, functions or graphics of the Subscription Services. “Confidential Information” means all proprietary or confidential information that is disclosed to the recipient (“Recipient”) by the discloser (“Discloser”), and includes, among other things (i) any and all information relating to products or services provided by a Discloser, its customer-related and financial information, software code, flow charts, techniques, specifications, development and marketing plans, strategies, and forecasts; (ii) as to BMC, and its licensors, the Subscription Services and Service Items; and (iii) the terms of this Agreement, including without limitation, pricing information. Confidential Information does not include information that Recipient can show: (a) was rightfully in Recipient’s possession without any obligation of confidentiality before receipt from the Discloser; (b) is or becomes a matter of public knowledge through no fault of Recipient; (c) is rightfully received by Recipient from a third party without violation of a duty of confidentiality; or (d) is or was independently developed by or for Recipient. Recipient may not disclose Confidential Information of Discloser to any third party or use the Confidential Information in violation of this Agreement. The Recipient (i) will exercise the same degree of care and protection with respect to the Confidential Information of the Discloser that it exercises with respect to its own Confidential Information and (ii) will not, either directly or indirectly, disclose, copy, distribute, republish, or allow any third party to have access to any Confidential Information of the Discloser. Notwithstanding the foregoing, Recipient may disclose Discloser’s Confidential Information to Recipient’s employees and agents who have need to know provided that such employees and agents have legal obligations of confidentiality substantially the same (and in no case less protective) as the provisions of this Agreement.
7.2 Notification Obligation. If the Recipient becomes aware of any unauthorized use or disclosure of Discloser’s Confidential Information, then Recipient will promptly and fully notify the Discloser of all facts known to it concerning such unauthorized use or disclosure. In addition, if the Recipient or any of its employees or agents are required (by oral questions, interrogatories, requests for information, or documents in legal proceedings, subpoena, civil investigative demand, or other similar process) to disclose any of Discloser’s Confidential Information, the Recipient will not disclose the Discloser’s Confidential Information without providing the Discloser with commercially reasonable advance prior written notice to allow Discloser to seek a protective order or other appropriate remedy or to waive compliance with this provision. In any event, the Recipient will exercise its commercially reasonable efforts to preserve the confidentiality of the Discloser’s Confidential Information, including, without limitation, cooperating with Discloser to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded to the Confidential Information.
7.3 Customer Data. As between BMC and Customer, Customer owns all rights, title and interest in and to Customer Data. Customer Data is deemed Confidential Information under this Agreement. BMC will use the Customer Data only as necessary to provide the Subscription Services in accordance with this Agreement. At any time during the term of the Subscription Services, Customer may request copies of all Customer Data from the Subscription Services. Customer is responsible for complying with all legal and contractual requirements, including its agreements with third parties. With the exception of Customer Data collected by the Subscription Services, Customer is solely responsible for the transmission of Customer Data to BMC and to the Subscription Services. Customer is solely responsible for the encryption of any Customer Data.
7.4	Suggestions. Customer agrees that BMC shall have a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into any BMC products or services any suggestions, enhancement requests, recommendations or other feedback provided by Customer relating to the Subscription Services.
8.	DISCLAIMER OF DAMAGES AND LIMITS ON LIABILITY.
8.1	DISCLAIMER OF DAMAGES. EXCEPT FOR EACH PARTY’S RESPONSIBILITIES IN SECTION 9, NEITHER PARTY OR ITS AFFILIATES ARE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES RELATING TO OR ARISING OUT OF THIS AGREEMENT OR THE SUBSCRIPTION SERVICES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST COMPUTER USAGE TIME, AND DAMAGE TO, OR LOSS OF USE OF, DATA), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND IRRESPECTIVE OF ANY NEGLIGENCE OF A PARTY OR WHETHER SUCH DAMAGES RESULT FROM A CLAIM ARISING UNDER TORT OR CONTRACT LAW.
8.2	LIMITS ON LIABILITY. EXCEPT FOR EACH PARTY’S RESPONSIBILITIES IN SECTION 9, NEITHER PARTY OR ITS AFFILIATES SHALL HAVE AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SUBSCRIPTION SERVICES, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEEDING THE AMOUNTS ACTUALLY PAID BY AND DUE FROM CUSTOMER PURSUANT TO THE ORDER(S) GIVING RISE TO LIABILITY THAT ARE IN EFFECT AS OF SUCH DATE.
9.	INFRINGEMENT CLAIMS.
9.1	Indemnification by BMC. If a third party asserts a claim against Customer asserting that Customer’s use of the Subscription Services in accordance with this Agreement violates that third-party’s patent, trade secret or copyright rights (“Infringement Claim”), then BMC will, at its own expense: (a) defend or settle the Infringement Claim; and (b) indemnify Customer for any damages finally awarded against Customer based on infringement by the Subscription Services. If BMC believes the Subscription Services may violate a right, then BMC will, at its expense: (a) modify the Subscription Services, or (b) procure the right to continue using the Subscription Services, and if (a) or (b) are not commercially reasonable, terminate Customer's right to use the Subscription Services and issue a pro-rata refund for the unexpired pre-paid portion of such Subscription Services.
9.2	Indemnification by Customer. Subject to the terms of this Agreement, if a third party asserts a claim against BMC asserting that the Customer Data or Customer’s use of the Subscription Services in violation of this Agreement violates that third-party’s patent, trade secret or copyright rights, or violates applicable law (“Claim”), Customer will, at its own expense: (a) defend or settle the Claim; and (b) indemnify BMC for any damages finally awarded against BMC based on the Claim.
9.3	Indemnity Process. Neither party’s obligations under this Section will apply if: (a) the indemnifying party’s legal department does not receive prompt, detailed written notice of the Infringement Claim/Claim from the party being indemnified, (b) the indemnifying party is not able to retain sole control of the defense of the Infringement Claim/Claim and all negotiations for its settlement or compromise, or (c) the indemnifying party does not receive all reasonable assistance from the party being indemnified. Neither party will bind the indemnified party to a monetary obligation in a settlement or compromise, or make an admission on behalf of the indemnified party, without obtaining that party’s prior consent.
9.4	THIS SECTION 9 CONTAINS EACH PARTY'S EXCLUSIVE REMEDIES AND THE INDEMNIFYING PARTY'S SOLE LIABILITY FOR INFRINGEMENT CLAIMS/CLAIMS, RESPECTIVELY.
10.	EXPORT CONTROLS. Customer represents and warrants that it: a) will comply with the United States Export Administration Regulations and other U.S. or foreign export regulations; b) no individual accessing or using the Subscription Services is a citizen of or from an embargoed country (currently Iran, Syria, Sudan, Cuba and North Korea); c) is not prohibited from receiving the Subscription Services under such regulations; d) will not acquire the Subscription Services for a person who is restricted under such regulations; e) will not use the Subscription Services in contradiction to such regulations; and f) will not use the Subscription Services for prohibited uses, including but not limited to nuclear, chemical, missile or biological weapons related end uses. For Subscription Services exported from Ireland, EC No. 428/2009 sets up a Community regime for control of exports of dual-use items and technology, and it is declared that this Subscription Services is intended for civil purposes only. Therefore, Customer agrees to comply with both the U.S. regulations and those E.U. regulations and will not export in violation of the regulations and without all proper licenses. Customer’ failure to comply with these regulations will result in an automatic termination of the Agreement and all rights to the Subscription Services thereunder.
11.	GOVERNING LAW AND DISPUTE RESOLUTION. A party will provide written notice to the other party of any controversy, dispute or claim arising out of or relating to this Agreement, or to the formation, interpretation, breach, termination, or validity thereof (“Controversy”). The parties shall engage in good faith negotiations to resolve the Controversy. Only if the Controversy is not resolved through good faith negotiations within 15 days of the sending of the written notice of Controversy, the Controversy may be submitted to litigation or binding arbitration, based on the place of incorporation of the parties, as follows:
(i)	If both parties to this Agreement are entities incorporated under the law of any state in the United States, the Controversy shall be tried in either state or federal court located in Houston, Texas and the laws of the State of Texas shall govern. Both sides hereby submit to the exclusive jurisdiction of the courts in Houston, Texas and waive all defenses based on forum non conveniens.
(ii)	If both parties to this Agreement are entities incorporated in countries in the Europe, Middle East, or Africa regions, the arbitration shall be held in Amsterdam, Netherlands under the then-applicable rules of the International Chamber of Commerce and the substantive laws of the Netherlands will govern.
(iii)	If both parties to this Agreement are entities incorporated in countries in the Asia Pacific region, the arbitration shall be held in Singapore under the then-applicable rules of the Singapore International Arbitration Centre and the substantive laws of Singapore will govern.
(iv)	In all other instances, the arbitration shall be held in New York City, New York, under the then-applicable international rules of the American Arbitration Association and the substantive laws of the State of Texas will govern.
For all arbitrations conducted hereunder: (a) the arbitration shall be conducted in English; (b) the relevant arbitral institution shall determine the number of arbitrators, but any Controversy in which the amount in dispute is greater than $10 million USD shall be decided by three arbitrators, with each party having the right to select one arbitrator; (c) the costs of such arbitration shall be borne equally, pending the arbitrator’s award; (d) the arbitration award rendered shall be final and binding on the parties, shall not be subject to appeal to any court and shall be enforceable in any court having jurisdiction over the Parties; (e) the arbitration proceedings, award and pleadings shall all be confidential, unless disclosure of particular information is required for purposes of enforcing/challenging the award or to meet local securities law requirements; and (f) the party prevailing in arbitration shall be entitled to recover its reasonable attorneys’ fees and the necessary costs incurred in connection with the arbitration.
The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. Nothing in this Agreement shall be deemed as preventing either party from seeking immediate injunctive relief from any court having jurisdiction over the parties and the subject matter of the dispute.
12.	The following BMC contracting entities apply to this Agreement:
Region | Contracting Entity | Address of Contracting Entity |
---|---|---|
United States and Latin America South (not a specified Central or South America country below) | BMC Software, Inc. | 2103 CityWest Boulevard, Houston, Texas 77042 |
Canada | BMC Software Canada Inc. | 50 Minthorn Boulevard, Suite 200 Markham, Ontario L3T 7X8 Canada |
EMEA (Europe, Middle East and Africa) | BMC Software Distribution B.V. | Boeing Avenue 245, 1119 PD Schiphol Rijk, The Netherlands |
Brazil | BMC Software do Brasil Ltda. | Av. das Nações Unidas, 8.501 – 22º Andar Condomínio Eldorado Business Tower São Paulo, Brasil – 05425-070 |
Mexico | BMC Software Distribution de México, S.A. de C.V. | Torre Esmeralda II Blvd. Manuel Avila, Camacho #36, Piso 23 Lomas de Chapultepec, CP11000, Mexico D.F. |
Argentina | BMC Software de Argentina S.A. | Ing. Butty 220 – Piso 18, Buenos Aires, Republica Argentina, C1001AFB |
S.E.A (Southeast Asia), Australia, New Zealand, Hong Kong, Taiwan | BMC Software Asia Pacific Pte Ltd | 600 North Bridge Road, #20-01/10 Parkview Square, Singapore 188778 |
China | BMC Software (China) Limited | Room 502, Level 5, Tower W1, The Towers, Oriental Plaza, No. 1 East Chang An Ave., Dong Cheng Dist., Beijing 100738, China |
Japan | BMC Software K.K. | Harmony Tower 24th Floor, 1-32-2 Honcho, Nakano-ku, Tokyo, 164-8721 |
Korea | BMC Software Korea Ltd | 24th Fl., ASEM Tower, 1517, Yeongdong-daero,Gangnam-gu, Seoul 135-798, Korea South |
13.	U.S. FEDERAL ACQUISITIONS. This Section applies only to acquisitions of the commercial Subscription Services and Documentation subject to this Agreement by or on behalf of the United States Government, or by any prime contractor or subcontractor (at any tier) under any contract, grant, cooperative agreement or other activity with the United States Government. In the event the Subscription Services are delivered to the United States Government, the United States Government hereby agrees that the Subscription Services qualify as “commercial items” within the meaning of the Federal acquisition regulation(s) applicable to this procurement. The terms and conditions of this Agreement shall pertain to the United States Government’s use and disclosure of the Product, and shall supersede any conflicting contractual terms and conditions. The following additional statement applies only to acquisitions governed by DFARS Subpart 227.4 (October 1988): “Restricted Rights – Use, duplication and disclosure by the Government is subject to restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 (Oct. 1988).”
14.	DATA PROTECTION. The processing of Customer Data under this Agreement is governed by the BMC Data Processing Agreement set forth on the Order.
15.	VERIFICATION. Customer agrees that BMC or its agent may monitor the Subscription Services to ensure Customer’s compliance with the terms of this Agreement. If such monitoring reveals that Customer has exceeded the Capacity for the Subscription Services, Customer agrees to pay the applicable fees for additional capacity upon receipt of an invoice from BMC. If Customer to fails to pay fees for such additional capacity, BMC may suspend Customer’s access to the Subscription Services until such fees are paid in full.
16.	MISCELLANEOUS TERMS. BMC is not liable for its failure to perform any of its obligations under this Agreement during any period in which performance is delayed by Customer or circumstances beyond BMC's reasonable control. The parties are independent contractors and this Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties. Customer will receive system notifications from BMC and its licensors, if applicable (i.e. planned downtime notices, etc). This Agreement, including the Attachments and Orders constitutes the entire agreement between Customer and BMC and supersedes any prior or contemporaneous negotiations or agreements, whether oral or written concerning the Subscription Services. There are no representations, promises, warranties, covenants, or undertakings between the parties other than those expressly set forth in this Agreement. There are no third-party beneficiaries to this Agreement; Customer is not entering into a contractual relationship with BMC’s licensors and BMC’s licensors have no liability to Customer. Except as provided in Section 2 above, no modification or waiver of any provision hereof will be effective unless made in a writing signed by both BMC and Customer. Customer may not assign or transfer this Agreement or the Subscription Services to a third party, whether by merger, operation of law, or otherwise. Should any provision of this Agreement be invalid or unenforceable, the remainder of the provisions will remain in effect. Any additional or conflicting terms of any Customer purchase order are rejected by BMC and do not apply. The Subscription Services may contain hyperlinks to websites controlled by parties other than BMC. BMC is not responsible for and does not endorse the content or accept any responsibility for Customer’s use of these websites. Customer should refer to the policies posted by other websites regarding privacy and other topics regarding data privacy before using them.
Attachments incorporated into Agreement |
Attachment A – Platform Services Attachment |
Attachment B – Consulting Services Attachment |
Attachment C – On Premise Subscription Services Attachment |
PLATFORM SERVICES ATTACHMENT
to the
BMC CLOUD SERVICES MASTER AGREEMENT
Except as otherwise provided herein, the terms of the Cloud Services Master Agreement (the “Base Agreement”) are incorporated into this Platform Services attachment (the “Attachment”). Together, this Attachment and the Base Agreement (as incorporated into this Attachment) are referred to as the “Agreement” for purposes of Customer’s purchase of Platform Services, only if the Platform Services are set forth on an Order referencing the Base Agreement. For purposes of this Agreement, the term “Subscription Services” as defined in the Base Agreement shall be extended to include the Platform Services. In the event of a conflict between the Base Agreement and the terms of this Attachment, the terms of this Attachment will control for Customer’s purchase of the Platform Services only.
1.	SCOPE. Subject to the terms of this Agreement, BMC will provide Customer with access to the Platform Service named in the applicable Order. Customer may only use the Platform Services to store, retrieve, query, serve, and process Customer Data that is owned, licensed or lawfully obtained by Customer. As part of Customer’s subscription to the Platform Services, Customer may be allowed to run certain Applications on the Platform Services that are either (i) sold by BMC, (ii) sold by a Third Party Publisher, or (iii) owned or licensed by Customer.
2.	DEFINITIONS.
2.1	“Application” is the object code, its definitional structures, and data created to fulfill a particular purpose, which runs on the Platform Services. An Application may also include its documentation and User Guide.
2.2	“BMC Application Services” means an Application that is licensed by BMC to customers, including all items delivered by BMC to Customer under Support related to such Application.
2.3	“Customer Applications” means Applications that are owned or licensed by Customer, not including any Third Party Applications, and which run on the Platform Services.
2.4	“Customer Data” means all information uploaded or entered by Customer to the Platform Services, excluding Customer Applications.
2.5	“Data Processing Agreement” means the applicable Data Processing Agreement attached to each Order.
2.6	“Platform Services” means the BMC Innovation Suite and its capabilities to run Applications. The specific Platform Services being purchased by Customer will be identified in the Order.
2.7	“Third Party Applications” means Applications that are owned by a Third Party Publisher with a valid independent software vendor agreement in place with BMC, and are licensed by said Third Party Publisher to customers.
2.8	“Third Party Publisher” means a party other than BMC or a BMC Affiliate that is the owner and licensor of a Third Party Application, and has a valid independent software vendor agreement in place with BMC. For the sake of clarity, Customer is informed that Third Party Publishers are not BMC Subcontractors.
3.	BMC PLATFORM SERVICES.
3.1	BMC Platform Services Support. BMC will provide Support only for Platform Services and BMC Application Services. Customer is responsible for its own support for Customer Applications and Third Party Applications.
3.2	Notifications to Customer. Any general notifications from BMC Operations to Customer will be sent to the Customer contact stated in the Customer Technical Contact Information section of the Order. The Customer contact in the Order has been assigned by Customer as the Customer contact for operational issues that may arise. Customer shall notify BMC of any change to the Customer contact details in writing, which may include via e-mail.
3.3	Customer Data Back-up and Recovery. BMC provides daily incremental and weekly full system backups of the production environment in a secure off-site facility within the same country as the primary facility, using a 90 day retention window for data recovery purposes.
3.4	Subcontractors. For the sake of clarity, Customer is informed that Third Party Publishers are not BMC Subcontractors.
3.5	Customer Responsibilities. In Addition to the Customer Responsibilities set forth in the Base Agreement, Customer may not (i) transfer an Application outside of the Platform Services; or (ii) tamper with or circumvent any controls or make unauthorized copies of an Application.
4.	CUSTOMER APPLICATIONS AND THIRD PARTY APPLICATIONS.
4.1	Any Third Party Applications or Customer Applications that run on the Platform Services are hereby excluded from the defined terms “Subscription Services”, “BMC Application Services” and “Platform Services”. Such Third Party Applications are governed by the terms provided with the Third Party Applications, and are by and between Customer and the applicable Third Party Publisher. Customer acknowledges and agrees that this Agreement does not govern Customer’s subscription, use and access of any Third Party Applications or Customer Applications, and said Third Party Applications and Customer Applications are specifically excluded from this Agreement.
4.2	Customer may utilize the BMC Innovation Suite for Developers to create an Application to run on the Platform Services. Customer’s use of the BMC Innovation Suite for Developers is exclusively governed by the BMC Developer Program Agreement, a copy of which may be viewed at https://www.bmc.com/content/dam/bmc/corporate/DVA.pdf, and such use is not governed by the terms of this Agreement. Customer’s development of an Application must meet the best practices development guidelines set forth in the User Guide. Each Customer Application shall at all times materially conform to policies and best practices set forth in the User Guide. Prior to the deployment of any Customer Applications in a production or non-production environment of the Platform Services, Customer must conduct security and functional tests of each Customer Application and submit the results of such tests to BMC for review. BMC reserves the right to reject Customer’s deployment request of a Customer Application based on the results of Customer’s security and functional tests. Additionally, BMC reserves the right, during the term of this Agreement, to request Customer conduct additional security and functional tests and provide the results of said tests to BMC for review. Notwithstanding the foregoing, Customer must ensure that at all times Customer Applications are secure.
4.3	License to Customer Applications. Subject to the terms and conditions of this Agreement, Customer hereby grants BMC a worldwide, limited, nonexclusive license during the term of the applicable Order for the Platform Services to host, copy, transmit, adapt and display Customer Applications solely for the purpose of fulfilling BMC’s obligations under this Agreement.
4.4	Functionality of Customer Applications. Customer is solely responsible for the operation of Customer Applications, including but not limited to any information stored in or transmitted by Customer Applications. Customer is responsible for monitoring the usage of each Customer Application. Customer is responsible for the configuration, functionality, performance, compliance with applicable data protection laws and security of all Customer Applications, including any interfaces used to connect to Customer Applications.
4.5	Use of Customer Applications. Customer has sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of Customer Applications and all Customer Data entered therein by Customer, its Users or on Customer’s behalf, the means by which Customer acquired such Customer Data, and the use of such Customer Data. Without limiting Customer’s obligations under the terms of this Agreement, Customer must (i) provide any necessary notice to, and obtain any necessary consent from, Users for the collection, use, transfer, and storage of Customer Data (including by BMC), and (b) collect, use, transfer, and store Customer Data in accordance with any privacy notice you provide, and all applicable laws.
4.6	Use of Third Party Applications. Customer is responsible for monitoring its usage of each Third Party Application, and such Third Party Publisher’s usage and license compliance is governed by the terms of the agreement entered into between Customer and the Third Party Publisher. Customer is responsible for all applicable fees associated with Customer’s use of Third Party Applications. Please note, Customer’s usage of such Third Party Applications may incur additional license fees between Customer and the applicable Third Party Publisher, as well as additional Platform Services fees.
4.7	Customer will provide information or other materials related to a Customer Applications as reasonably requested by BMC to verify Customer’s compliance with the Agreement and the User Guide. BMC may monitor Customer Applications and Third Party Applications running on the Platform Services to verify Customer’s compliance with the Agreement. Customer will not block or interfere with BMC’s monitoring. Customer will cooperate with BMC to identify the source of any problem with the Platform Services that BMC reasonably believes may be attributable to Customer Applications or Third Party Applications, or any Customer Data.
4.8	If BMC reasonably believes any Customer Data, Customer Applications or Third Party Applications violates the law, infringes or misappropriates the rights of any third party or otherwise violates a material term of the Agreement (including the User Guide) (“Prohibited Content”), BMC will notify Customer of the Prohibited Content and may request that such content be removed from the Platform Services or access to it be disabled. If Customer does not remove or disable access to the Prohibited Content within two (2) business days of BMC’s notice, BMC may remove or disable access to the Prohibited Content or suspend the Platform Services to the extent BMC is not able to remove or disable access to the Prohibited Content. Notwithstanding the foregoing, BMC may remove or disable access to any Prohibited Content without prior notice in connection with illegal content, where the content may disrupt or threaten the Platform Services, pursuant to the Digital Millennium Copyright Act or as required to comply with law or any judicial, regulatory or other governmental order or request. In the event that BMC removes content without prior notice, BMC will provide prompt notice to Customer unless prohibited by law.
4.9	Customer’s use of the Platform Services, BMC Application Services, Customer Applications and/or Third Party Applications may be immediately suspended and/or terminated due to (i) reasonable security threats regarding the Platform Services, Customer Applications or Third Party Applications, (ii) Customer Applications or Third Party Applications interfering with, disrupting or threatening the integrity or performance of the Platform Services or BMC Application Services, or (iii) a third party’s claim that Customer Applications or Third Party Applications may violate applicable law or third party rights. In the event of (i) or (ii) above apply to Customer Applications, Customer is required to remediate any such issue to BMC’s commercially reasonable satisfaction before use of Customer Applications can resume.
4.10	Customer’s access to Third Party Applications may be immediately suspended and/or terminated by BMC at the direction of the Third Party Publisher. Customer acknowledges and understands that access to Customer Applications and/or Third Party Applications used in connection with the Platform Services may be suspended due to Customer’s non-payment to BMC for use and access to the Platform Services or other breach of this Agreement. In no case will any such suspension or termination under the terms of this Agreement give rise to any BMC liability to Customer for a refund or other compensation.
4.11	BMC may conduct periodic security evaluations of all Customer Applications, which may include security review, a qualitative assessment involving review of a completed questionnaire, and an interview with appropriate Customer personnel. BMC conducts such security evaluations for its own benefit and Customer may not rely on the successful results of such evaluation. BMC may conduct such testing itself or, subject to the confidentiality obligations set forth in the Agreement, through a third party. BMC will provide reasonable notice to Customer before starting such testing. BMC will also cooperate reasonably with Customer to minimize the effects of such testing on Customer’s business and operations. Customer agrees to cooperate reasonably with such testing. Despite the foregoing, such testing may in rare cases cause downtime or other adverse effects on Customer Applications, Third Party Applications, the Platform Services or other BMC Application Services used by Customer. Any nonpublic information to which BMC obtains access in the course of such security testing will be considered Customer’s Confidential Information.
4.12	Customer Responsibilities. Customer will maintain the confidentiality of all authentications and passwords for the Platform Services, Customer Applications and Third Party Applications, and immediately notify BMC if it becomes aware that an unauthorized party has gained access to such Platform Services, Customer Applications or Third Party Applications. Customer will (i) use reasonable efforts to prevent unauthorized access to, or use of, Customer Applications and Third Party Applications, and notify BMC promptly of any such unauthorized access or use, and (ii) comply with all applicable laws in using the Customer Applications and Third Party Applications. Customer is responsible for the creation and implementation of a privacy policy and end user license agreement, if applicable, which will set forth the guidelines of how said Users may utilize the Customer Applications.
5.	WARRANTIES. Customer warrants to BMC that: (a) each Customer Application will perform materially in accordance with the User Guide; (b) Customer owns all right, title, and interest in and to Customer Data, including but not limited to any Customer Data uploaded or entered into Customer Applications or Third Party Applications; (c) Customer has the necessary rights to use and access any Customer Applications and Third Party Applications deployed in a production or non-production environment of the Platform Services; (d) Customer has all rights in the Customer Data and Customer Applications necessary to grant the rights contemplated by this Agreement; (e) none of the Customer Data or Customer Applications or Users’ use of Customer Data or Customer Applications will violate the Agreement and the User Guide; (f) Customer’s security and functional tests of Customer Applications was conducted in a commercially reasonable manner and the results of said tests provided to BMC for review are correct and valid; and (g) none of the Third Party Applications or Users’ use of Third Party Applications will violate the Agreement or the User Guide.
6.	SECURITY AND DATA PROTECTION.
6.1	Customer and Third Party Publishers shall agree upon their respective obligations with respect to the processing of personal data by Third Party Publishers as per Section 4.1 of this Attachment.
6.2	BMC takes no responsibility with regard to Customer Data content (i) processed on behalf of Customer and/or handling as per Customer’s instructions and/or (ii) processed by Third Party Publishers and/or (iii) through the use by Customer of Third Party Applications. Customer shall indemnify and hold harmless BMC from any failure to comply with its obligations set forth in this Attachment according to the terms of Section 9.2 (Indemnification by Customer) in the Base Agreement.
7.	INDEMNIFICATION. For purposes of this Agreement, the term “Claim” as defined in Section 9.2 (Indemnification by Customer) of the Base Agreement shall be extended to include if a third party asserts a claim against BMC asserting that a Customer Application violates that third-party’s patent, trade secret or copyright rights, or otherwise harms the third party.
8.	LIMITATION OF LIABILITY. Section 8 of the Base Agreement shall not apply to Customer’s breach of Section 4.12 of this Attachment.
9.	INSURANCE. Customer will provide and maintain cyber liability insurance in the amount of one million dollars ($1,000,000.00) for losses arising out of Customer’s provision of a Customer Application on the Platform Services under this Agreement.
ATTACHMENT B
CONSULTING SERVICES ATTACHMENT
to the
BMC CLOUD SERVICES MASTER AGREEMENT
Except as otherwise provided herein, the terms of the Cloud Services Master Agreement (the “Base Agreement”) are incorporated into this Consulting Services attachment (the “Attachment”). Together, this Attachment and the Base Agreement (as incorporated into this Attachment) are referred to as the “Agreement” for purposes of Customer’s purchase of Consulting Services, only if Consulting Services are set forth on an Order referencing the Base Agreement. For purposes of this Agreement, the term “Subscription Services” as defined in the Base Agreement shall be extended to include Consulting Services. In the event of a conflict between the Base Agreement and the terms of this Attachment, the terms of this Attachment will control for Customer’s purchase of Consulting Services only. The parties agree that the following Sections of the Base Agreement do not apply to the Consulting Services provided under this Attachment: Section 3.2 (Support), Section 4 (Fees and Payment), Section 6 (Limited Warranty) and Section 9 (Infringement Claims).
1.	SCOPE. BMC agrees to render to Customer Consulting Services under the terms of this Agreement and as further described in an Order. BMC will render the Consulting Services in the location(s) as set forth in the Order. Neither execution of this Agreement, nor anything contained herein, shall obligate either party to enter into an Order. The performance of the Consulting Services will not relieve or alter the rights, obligations and responsibilities of Customer and of the licensing BMC affiliate with respect to BMC software products under the applicable software license Agreement.
2.	SERVICE FEES AND EXPENSES. The fees payable to BMC for the Consulting Services to be rendered will be detailed in the Order. BMC will submit invoices to Customer for such fees and incurred expenses either upon completion of the Consulting Services, or at stated intervals, in any case in accordance with the applicable Order. Customer shall pay amounts invoiced within 30 days following receipt of the invoice.
3.	EDUCATION. Customer may acquire Learning Pass Credits and Education Services (collectively, “BMC Education”) on a Order. The BMC Education terms that govern such Orders are set forth in the Education Program Guide located at http://media.cms.bmc.com/documents/education-program-guide.pdf, and is incorporated herein by this reference.
4.	STATEMENTS OF WORK. Some Consulting Services may require the execution of a Statement of Work. Such requirement will be set forth in an Order. In the event of any conflict between the terms of a Statement of Work and this Agreement, the Agreement shall prevail except for matters of service fees, payment and reimbursement of expense terms if further specified in the Statement of Work. During the term of an applicable Statement of Work, and for a period of six months thereafter, neither party will solicit for employment any employees, agents, or subcontractors of the other party or its affiliates who, within six months prior to such solicitation, had contact with the soliciting party based in whole or in part upon Consulting Services provided under this Agreement. The restrictions in this section shall be deemed not to apply to general solicitations for employment posted on Internet job sites or printed in newspapers or trade or professional journals.
5.	PROPRIETARY RIGHTS AND RIGHTS IN DELIVERABLES.
5.1	Ownership of Materials Used in the Consulting Services. Unless specifically provided in an Order, Customer shall supply all of the facilities; equipment; supplies; computer programs; information about Customer’s business, systems, software and needs; and other materials necessary for completion of the Consulting Services (“Customer Property”), and BMC shall supply the people described in the Order, the know-how and the tools necessary to provide the Consulting Services, which may include, among other things, software, templates, questionnaires, graphs, methodologies, models, charts and reports (“BMC Property”). Customer Property and copies and modifications of Customer Property will remain the sole property of Customer or if applicable, Customer’s licensors, and BMC Property and copies and modifications of BMC Property will remain the sole property of BMC or if applicable, BMC’s licensors. Customer hereby grants to BMC a royalty-free, paid-up, non-exclusive, non-sublicensable and non-transferable license to use the Customer Property for the purpose of providing the Consulting Services.
5.2	Deliverables. Deliverables are those created under the Order, including, but not limited to, software, software scripts, routines, libraries or other code, or appliances, methodologies, templates, tools, policies, records, working papers, reports, methodologies, know-how, data, or other intellectual property, written or otherwise, including any derivative works or modifications to the above, whether pre-existing or created during the performance of the Consulting Services and all proprietary and intellectual property rights embedded therein delivered as a result of the Consulting Services as specified under the Order. BMC owns all right, title and interest in the Deliverables. Provided Customer has paid in full for the Consulting Services that resulted in the Deliverables, BMC will deliver the Deliverables to Customer in accordance with the applicable Order. Subject to compliance with the terms of this Agreement and the applicable Order, BMC grants Customer a non-exclusive, non-transferable, non-sublicensable, royalty-free, paid-up license to use, create derivative works of and modify all Deliverables solely for its internal business operations.
5.3	Copyright Notice. Each party agrees to reproduce the copyright notice and any other legend or ownership notice on any copies made under the licenses granted pursuant to this Section 5.
5.4	Retention. Customer acknowledges that BMC provides similar services to other customers and that nothing in this Agreement shall be construed as operating to prevent BMC from carrying on such business. Further BMC may use ideas, concepts, or know-how developed or acquired by BMC during performance of the Consulting Services to the extent acquired by BMC’s personnel as impressions and general learning.
6.	LIMITED WARRANTY. BMC warrants that it will perform the Consulting Services in conformance with generally accepted practices within the software services industry and in accordance with the Order. Customer must notify BMC of any breach of this warranty no later than 90 days after completion of the Consulting Services under the Order. Customer’s exclusive remedy and BMC’s entire liability under this warranty shall be for BMC to re-perform any non-conforming portion of the Consulting Services within a reasonable period of time, or if BMC cannot remedy the breach during such time period then refund the portion of the fee attributable to such non-conforming portion of the Consulting Services under the Order. This warranty will not apply to the extent Customer, its contractors or agents have modified any Deliverable, unless otherwise authorized by BMC in writing.
THIS WARRANTY AND CONDITION IS IN LIEU OF ALL OTHER WARRANTIES AND CONDITIONS. THERE ARE NO OTHER EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS, INCLUDING THE IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
7.	INSURANCE. BMC will provide and maintain the following insurance, but only for losses arising out of BMC’s provision of Consulting Services under this Attachment:
7.1	Worker’s Compensation insurance as prescribed by the law of the state applicable to the employees performing the Consulting Services;
7.2	Employer’s Liability insurance with a limit of one million US dollars ($1,000,000) for each occurrence;
7.3	Commercial General Liability insurance with one million US dollars ($1,000,000) per occurrence combined single limit and five million US dollars ($5,000,000) general aggregate, including coverage for Products Liability and Completed Operations;
7.4	Automobile Liability insurance, including coverage for Hired and Non-owned vehicles of one million US dollars ($1,000,000) for combined single limit for bodily injury and/or property damage; and
7.5	Professional Liability insurance covering Errors and Omissions in the amount of one million US dollars ($1,000,000) for each occurrence and in the aggregate associated with Consulting Services performed under this AGREEMENT.
8.	INFRINGEMENT INDEMNITY.
8.1	If a third party asserts a claim against Customer asserting that Customer’s use of a Deliverable in accordance with this Agreement violates that third-party’s patent, trade secret or copyright (“Customer Infringement Claim”), then BMC will, at its own expense: (a) defend or settle the Customer Infringement Claim; and (b) indemnify Customer for any damages finally awarded against Customer, but only if: Customer promptly notifies BMC of the Customer Infringement Claim, BMC retains sole control of the defense of the Customer Infringement Claim and all negotiations for its settlement or compromise, and Customer provides all reasonable assistance requested by BMC. BMC’s obligations above will not apply if the Customer Infringement Claim is based on (i) the use of the Deliverable in combination with products not supplied or approved by BMC in writing or in the Deliverable's user manuals, (ii) modification of the Deliverable other than by BMC, or (iii) the failure of Customer to use any updates to such Deliverable within a reasonable time after such updates are made available to Customer. If BMC believes a Deliverable may violate a right, then BMC will, at its expense: (a) modify the Deliverable, or (b) procure the right to continue using the Deliverable, and if (a) or (b) are not commercially reasonable, terminate Customer's right to use the Deliverable and issue a refund prorated over five years from the completion date of the related Order.
8.2	If a third party asserts a claim against BMC asserting that BMC’s use of Customer Property in accordance with this Agreement violates that third-party’s patent, trade secret or copyright (“BMC Infringement Claim”), then Customer will, at its own expense: (a) defend or settle the BMC Infringement Claim; and (b) indemnify BMC for any damages finally awarded against BMC, but only if: BMC promptly notifies Customer of the BMC Infringement Claim, Customer retains sole control of the defense of the BMC Infringement Claim and all negotiations for its settlement or compromise, and BMC provides all reasonable assistance requested by Customer.
8.3	This Section 8 contains each party’s exclusive remedy and sole liability for Infringement Claims.
9.	MUTUAL INDEMNITY. Each party shall indemnify and hold harmless the other party from all claims, liabilities or expenses for physical damage to real property or tangible personal property and bodily injury, including death, to the extent caused by the gross negligence or willful misconduct of the indemnifying party’s employees or contractors arising out of this Agreement and while at the Customer’s premises. The foregoing indemnities are contingent upon the party seeking indemnity giving prompt written notice to the indemnifying party of any claim, demand or action, and cooperating with the indemnifying party in the defense or settlement of any such claim, demand or action.
10.	INDEPENDENT CONTRACTOR. All of the services performed by BMC under this Agreement will be performed as an independent contractor.
ATTACHMENT C
ON PREMISE SUBSCRIPTIONS ATTACHMENT
to the
BMC CLOUD SERVICES MASTER AGREEMENT
Except as otherwise provided herein, the terms of the Cloud Services Master Agreement (the “Base Agreement”) are incorporated into this On Premise Subscriptions attachment (the “Attachment”). Together, this Attachment and the Base Agreement (as incorporated into this Attachment) are referred to as the “Agreement” for purposes of Customer’s purchase and ongoing use of On Premise Subscriptions, only if On Premise Subscriptions are set forth on an Order referencing the Base Agreement. For purposes of this Agreement, the term “Subscription Services” as defined in the Base Agreement shall be extended to include On Premise Subscriptions. In the event of a conflict between the Base Agreement and the terms of this Attachment, the terms of this Attachment will control for Customer’s purchase of On Premise Subscriptions only. The parties agree that the following Sections of the Base Agreement do not apply to the On Premise Subscriptions provided under this Attachment: Section 3.1 (Access Rights), Section 3.4 (Customer Responsibilities and Restrictions), Section 6 (Limited Warranty) and Section 14 (Verification).
1.	DEFINITIONS.
1.1	"Documentation" means the technical publications relating to the software, such as release notes, license entitlement descriptions, reference, user, installation, systems administrator and technical guidelines, included with the On Premise Subscription.
1.2	“Licensed Capacity” is the amount of each On Premise Subscription licensed as established in the Order.
1.3	“On Premise Subscription” is the object code of the software and all accompanying Documentation delivered to Customer, including all items delivered by BMC to Customer under Support.
2.	LICENSE. Subject to the terms, conditions, payment requirements and restrictions set forth in this Agreement, BMC grants Customer a non-exclusive, non-transferable, non-sub-licensable term license to install in the Territory, access and use the On Premise Subscription during the term specified on the Order (i) up to the Licensed Capacity, (ii) for Customer’s and its Affiliates internal business operations, (iii) in accordance with the Documentation and the applicable Order, and (iv) make one copy of the On Premise Subscription for archival purposes only (collectively a "License"). Affiliates may use and access the On Premise Subscriptions under the terms of this Agreement, and Customer is responsible for its Affiliates compliance with the terms of this Agreement.
3.	RESTRICTIONS. Customer will not: (a) copy, operate or use any On Premise Subscription in excess of the applicable Licensed Capacity or other than as set forth in the License above; (b) modify, delete or remove any ownership, title, trademark, patent or copyright notices (“Identification”) from any On Premise Subscription, or copy or partial copy of an On Premise Subscription; (c) disassemble, reverse engineer, decompile or otherwise attempt to derive any On Premise Subscription source code from object code, except to the extent expressly permitted by applicable law despite this limitation without possibility of contractual waiver; (d) distribute, rent, lease, sublicense or provide the On Premise Subscription to any third party; (e) use the On Premise Subscriptions in an outsourcing or service bureau environment on behalf of non-Affiliate third parties, or allow the On Premise Subscriptions to be used by an outsourcing or service bureau provider on Customer’s behalf; (f) provide a third party with the results of any functional evaluation, or performance tests, without BMC's prior written approval; or (g) attempt to disable or circumvent any of the licensing mechanisms within the On Premise Subscription.
4.	ON PREMISE SUBSCRIPTION PERFORMANCE WARRANTY. BMC warrants that (a) the On Premise Subscription will perform in substantial accordance with its Documentation for a period of one year from the date of the first Order, (b) BMC has used commercially reasonable efforts consistent with industry standards to scan for and remove software viruses, and (c) other than passwords that may be required for the operation of the On Premise Subscription, BMC has not inserted any code that is not addressed in the Documentation and that is designed to delete, interfere with or disable the normal operation of the On Premise Subscription in accordance with the License. This warranty will not apply to any problems caused by hardware, Computers, or software other than the On Premise Subscription, or misuse of the On Premise Subscription, use of the On Premise Subscription other than as provided by the applicable License, modification of the On Premise Subscription, or claims made either outside the warranty period or not in compliance with the notice and access requirements set forth below. No warranty is provided for additional Licensed Capacity, On Premise Subscription provided pursuant to Support. BMC’s entire liability, and Customer’s exclusive remedy, for breach of the above warranty is limited to: BMC’s use of commercially reasonable efforts to have the On Premise Subscription perform in substantial accordance with its Documentation, or replacement of the non-conforming On Premise Subscription within a reasonable period of time, or if BMC cannot have the On Premise Subscription perform in substantial accordance with its Documentation replace the On Premise Subscription within such time period, then BMC will refund the amount paid by Customer for the License for that On Premise Subscription. Customer’s rights and BMC's obligations in this Section are conditioned upon Customer’s providing BMC during the warranty period (i) full cooperation and access to the On Premise Subscription in resolving any claim; and (ii) written notice addressed to the BMC Legal Department that includes notice of the claim, a complete description of the alleged defects sufficient to permit their reproduction in BMC’s development or support environment, and a specific reference to the Documentation to which such alleged defects are contrary.
EXCEPT FOR THE EXPRESS WARRANTIES IN THIS ATTACHMENT, THE ON PREMISE SUBSCRIPTION IS PROVIDED WITH NO OTHER WARRANTIES WHATSOEVER, AND BMC, ITS AFFILIATES AND LICENSORS DISCLAIM ALL OTHER WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. BMC DOES NOT WARRANT THAT THE OPERATION OF THE ON PREMISE SUBSCRIPTION WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT ALL DEFECTS CAN BE CORRECTED.
5.	DELIVERY. For On Premise Subscriptions that are delivered electronically, upon request from BMC, Customer agrees to provide BMC with documentation supporting that the designated On Premise Subscription was received electronically. If Customer accepts any On Premise Subscription in a non-electronic format, there may be an additional charge and it is the sole responsibility of Customer to bear any sales/use tax obligation, penalties, and interest. All On Premise Subscriptions are licensed FCA (“Free Carrier” as per Incoterms 2000) shipping point. The On Premise Subscriptions are accepted on the date BMC delivers the On Premise Subscription to the Customer either physically or by providing access codes for electronic download, whichever occurs first, however, such acceptance will not affect the On Premise Subscription Performance Warranty provided in this Agreement.
6.	AUDIT. If requested by BMC, and not more than once a year, Customer agrees to deliver to BMC, within 30 days of such request, as specified by BMC either (a) periodic product usage reports generated from specific products or (b) written periodic product usage reports, to be provided solely when the product does not generate reports (“Report”). Additionally, if requested by BMC not more than once a year, Customer agrees to allow BMC to perform an audit (“Audit”) at the locations where the On Premise Subscriptions are installed, during normal business hours to ensure compliance with the terms of this Agreement. Customer agrees to cooperate during any such Audit and to provide reasonable access to its information and systems. If an Audit or Report reveals that Customer has exceeded the Licensed Capacity for a On Premise Subscription, Customer agrees to pay the applicable fees for additional capacity upon receipt of invoice. If the understated capacity exceeds 5% of the Licensed Capacity of the applicable On Premise Subscription, then Customer agrees to also pay BMC’s reasonable costs of conducting the audit.
Effective March 14th 2018 to June 20th 2018
DownloadTable of Contents
BMC CLOUD SERVICES MASTER AGREEMENT
THIS CLOUD SERVICES MASTER AGREEMENT (“AGREEMENT”) GOVERNS YOUR FREE TRIAL, IF ANY, OF THE SUBSCRIPTION SERVICES.
IF YOU PURCHASE THE SUBSCRIPTION SERVICES, THIS AGREEMENT WILL ALSO GOVERN YOUR PURCHASE AND ONGOING USE OF THE SUBSCRIPTION SERVICES.
BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SUBSCRIPTION SERVICES.
You may not access the Subscription Services if you are BMC’s direct competitor, except with BMC’s prior written consent. In addition, you may not access the Subscription Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.
This Agreement was last updated on March 12, 2018. This Agreement is between the entity or individual entering into this Agreement (“Customer”) and the BMC Contracting Entity for the applicable region as described in Section 12 (“BMC”). It is effective between Customer and BMC as of the date of your acceptance of this Agreement. For Customer’s convenience, prior versions of this Agreement are available at https://www.bmc.com/legal/csma.html.
FREE TRIAL.
BMC may make the Subscription Services available to Customer on a trial basis free of charge. If BMC offers Customer a free trial, it will run until the earlier of (a) the end of the trial period stated on the trial registration web page or (b) the start date of any Order for purchase of the Subscription Services. Additional trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.
ANY DATA CUSTOMER ENTERS INTO THE SUBSCRIPTION SERVICES, AND ANY CUSTOMIZATIONS MADE TO THE SUBSCRIPTION SERVICES BY OR FOR CUSTOMER, DURING A FREE TRIAL WILL BE PERMANENTLY LOST UNLESS CUSTOMER PURCHASES A SUBSCRIPTION TO THE SAME SUBSCRIPTION SERVICES AS THOSE COVERED BY THE TRIAL, OR EXPORTS SUCH DATA BEFORE THE END OF THE TRIAL PERIOD.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THE AGREEMENT, DURING ANY FREE TRIAL PERIOD THE SUBSCRIPTION SERVICES ARE PROVIDED “AS IS” WITH NO WARRANTY.
1.	DEFINITIONS.
1.1	“Affiliate” is an entity that controls, is controlled by or shares common control with BMC or Customer, where such control arises from either (a) a direct or indirect ownership interest of more than 50% or (b) the power to direct or cause the direction of the management and policies, whether through the ownership of voting stock by contract, or otherwise, equal to that provided by a direct or indirect ownership of more than 50%.
1.2	“Subscription Services” means the hosted service which packages web-based access and the right-to-use the supported applications, installed agents and associated reference, user and technical guides.
1.3	“Capacity” means the amount of access to the Services purchased as specified in an Order, which is counted in accordance with the Unit of Measure described in the Order.
1.4	“Customer Data” means all electronic data or information (a) submitted to the Subscription Services by Customer, a third party on behalf of Customer, or as directed by Customer or (b) collected by the Subscription Services.
1.5	“Order” means (i) the agreed ordering document for the purchase of the Subscription Services, (ii) that is subject to this Agreement, and (iii) that identifies the terms of the purchase and fees to be paid. The term “Order” includes Customer’s online registration for and purchase of the Subscription Services, If any.
1.6	“User Guide” means the online help, functional guide and technical specifications for the Subscription Services, as updated by BMC from time to time.
2.	 SCOPE. Subject to the terms of this Agreement, Customer may purchase and BMC will provide Customer with access to the Subscription Services as set forth in this Agreement and the applicable Order. Subject to the Attachments to this Agreement, Customer may also purchase BMC Platform Services, BMC Consulting Services and BMC On Premise Subscription Services. In the event of a direct conflict between any Order and the terms of this Agreement, the terms of the Order will control only if the Order is executed by an authorized representative of each party. Each Order is deemed to be a discrete contract, separate from each other Order, unless expressly stated otherwise therein. Orders may be entered under this Agreement by and between (a) BMC or an Affiliate of BMC; and (b) Customer or an Affiliate of Customer. With respect to an Order, the terms “BMC” and “Customer” as used in this Agreement will be deemed to refer to the entities that execute that Order, the Order will be considered a two party agreement between such entities, and BMC will separately invoice the Customer named in the Order for the associated fees. Orders may also be placed via a BMC authorized reseller. Neither execution of this Agreement, nor anything contained herein, shall obligate either party to enter into any Orders.
3.	ACCESS TO SUBSCRIPTION SERVICES.
3.1	Access Rights. Subject to Customer’s payment of applicable fees and to the terms of this Agreement, BMC hereby grants to Customer a worldwide, non-exclusive, non-transferable, non-sublicensable, limited license to access and use the Subscription Services in accordance with the Order (i) up to the Capacity, (ii) for Customer’s and its Affiliates’ internal business operations, (iii) in accordance with the User Guide and the applicable Order.
3.2	BMC Subscription Services Support. BMC will provide the support described at http://www.bmc.com/support/review-policies (“Support”) to Customer for the Subscription Services, which may be changed by BMC upon prior notice to customer, provided that such changes do not materially degrade Support during the term of an Order.
3.3	Use of Subcontractors. Customer acknowledges and agrees that BMC uses subcontractors to provide portions of the Subscription Services. BMC will provide a list of its current subcontractors upon Customer’s written request. BMC is responsible for the performance of all subcontractors providing any of the Subscription Services.
3.4	Customer Responsibilities and Restrictions.
(a) 	Customer will (i) maintain the confidentiality of all authentications and passwords for the Subscription Services and immediately notify BMC if it becomes aware that an unauthorized party has gained access such authentications and passwords, (ii) be responsible for use of the Subscription Services by its employees, consultants, contractors, agents, and Affiliates (all, “Users”) in compliance with this Agreement, (iii) prevent unauthorized access to, or use of, the Subscription Services, and notify BMC promptly of any such unauthorized access or use, (iv) comply with all applicable laws in using the Subscription Services, and (v) be responsible for obtaining its own Apple Push Notification certificate, if the Subscription Services are used to manage devices running iOS. Customer is responsible for the creation and implementation of a privacy policy and end user license agreement, if applicable, which will set forth the guidelines of how Customer uses and protects the data and personal information of its Users, and how said Users may utilize the Subscription Services.
(b) 	Customer will not (i) modify, copy or create derivative works based on the Subscription Services; (ii) create Internet “links” to or reproduce any content forming part of the Subscription Services, other than for its own internal business purposes; (iii) disassemble, reverse engineer, or decompile the Subscription Services or part thereof, or access it in order to copy any ideas, features, content, functions or graphics of the Subscription Services; (iv) interfere with or disrupt the integrity or performance of the Subscription Services; (vi) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortuous material, or send or store material in violation of any third party’s privacy rights via the Subscription Services; (vii) send or store viruses or malicious code via the Subscription Services; (viii) attempt to gain unauthorized access to the Subscription Services or its related software, systems, platforms or networks, including any form of security and/or penetration testing; (ix) use any components provided with the Subscription Services separately from the Subscription Services; or (x) distribute, rent, lease, sublicense or provide the Subscription Services to any third party or use it in a service bureau, outsourcing environment, or for the processing of third party data.
4.	FEES AND PAYMENT.
4.1	Fees. The fees payable for the Subscription Services and the payment period for such fees will be set forth in and paid in accordance with the Order. All invoices are due upon receipt of invoice.
4.2	Late Fees. The unpaid balance of each late payment bears interest at a rate equal to the lesser of 1% per month or the maximum amount permitted by law. All fees are nonrefundable and BMC will not provide any refunds or credits for partially used periods of the Subscription Services.
4.3	Taxes. Customer will pay or reimburse BMC or, when required by law, the appropriate governmental agency, for taxes of any kind, including sales, use, VAT, excise, customs duties, withholding, property, and other similar taxes (other than taxes based on BMC’s net income or arising from the employment relationship between BMC and its personnel) imposed in connection with the fees paid for the Subscription Services, which are exclusive of these taxes.
5.	TERM, SUSPENSION AND TERMINATION.
5.1	Term. This Agreement begins on the Effective Date and will remain in effect unless terminated pursuant to Section 5.2 below, regardless of the billing frequency selected in the Order.
5.2	Termination.
(a)	Termination for Convenience. Customer may terminate this Agreement by providing BMC with at least 30 days prior written notice; provided, however, such termination will have no effect on Orders in effect at the time of such termination. Orders may not be terminated for convenience unless otherwise specified therein. Customer may notify BMC of its intent to terminate by emailing BMC at order_services@bmc.com.
(b) 	Termination for Cause. Either party may terminate this Agreement and/or an Order for cause: (i) upon 30 days’ written notice of a material breach to the other party if such breach remains uncured at the expiration of such period; or (ii) immediately if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
5.3	Suspension of Subscription Services for Cause. In addition to its other rights and remedies, BMC reserves the right, without liability to Customer, to immediately suspend any and all access to the Subscription Services if Customer commits a material breach of this Agreement or any relevant Order until such material breach is cured.
5.4	Effects of Termination. Upon termination pursuant to Section 5.2(b) above, all rights and licenses granted herein will terminate and Customer will make no further use of the Subscription Services. No termination will relieve the Customer of the obligation to pay any fees accrued or payable to BMC pursuant to any Order. Upon written request by Customer made within 30 days after the effective date of termination, BMC will make available to Customer a file containing the Customer Data. After such 30 day period, BMC shall have no obligation to maintain or provide any Customer Data and will thereafter delete Customer Data.
6.	LIMITED WARRANTY.
6.1	Warranties and Limited Remedies. BMC warrants to Customer that:
(a)	the online availability of the Subscription Services will be maintained in accordance with the service levels attached to the applicable Order, if any (the “Service Level Agreement” or “SLA”). Customer’s exclusive remedy and BMC’s sole obligation for breach of the warranty in this Section 6.1(a) is described in the Service Level Agreement; and
(b)	the Subscription Services (i) will perform in substantial accordance with the then-current on-line User Guide available via the Subscription Services and (ii) will be performed in a manner consistent with industry standards reasonably applicable to the provision thereof. Customer’s exclusive remedy and BMC’s sole obligation for breach of the warranty in this Section 6.1(b) will be BMC’s use of commercially reasonable efforts to have the Subscription Services perform in substantial accordance with the User Guide, or replace the non-conforming portion of the Subscription Services within a reasonable period of time, or if BMC cannot have the Subscription Services perform in substantial accordance with the User Guide or replace the Subscription Services within such time period, then BMC will refund the amount paid by Customer for the Subscription Services, pro-rated from the date of the notice of the claim. Customer’s rights and BMC’s obligations in this Section 6.1(b) are conditioned upon Customer’s providing BMC with written notice of the claim, a complete description of the alleged defects and a specific reference to the User Guide to which such alleged defects are contrary.
6.2	Disclaimer. CUSTOMER ACKNOWLEDGES THAT, EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, BMC, ITS AFFILIATES AND LICENSORS MAKE NO WARRANTY, EXPRESS, IMPLIED OR STATUTORY WITH RESPECT TO THE SUBSCRIPTION SERVICES OR USE THEREOF. BMC, ITS AFFILIATES AND LICENSORS HEREBY EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY THAT SUBSCRIPTION SERVICES WILL BE UNINTERRUPTED, ERROR FREE OR WITHOUT DELAY, AND THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INTERFERENCE, NON-INFRINGEMENT AND INFORMATION CONTENT.
7.	PROPRIETARY RIGHTS AND CONFIDENTIALITY.
7.1 Proprietary Rights. BMC, its Affiliates or licensors retain all right, title and interest to the Subscription Services and all related intellectual property and proprietary rights. The Subscription Services are protected by applicable copyright, trade secret, industrial and other intellectual property laws. BMC owns all right, title and interest in all software, programming, documentation, templates, questionnaires, methodologies, models, charts, reports and any other items used to deliver the Subscription Services or made available to Customer as a result of the Subscription Services (“Service Items”) and access to and use of the relevant Service Items will be governed by the terms of this Agreement. BMC reserves any rights not expressly granted to Customer. Customer shall not access the Subscription Services in order to build a competitive product or service or copy any ideas, features, functions or graphics of the Subscription Services. “Confidential Information” means all proprietary or confidential information that is disclosed to the recipient (“Recipient”) by the discloser (“Discloser”), and includes, among other things (i) any and all information relating to products or services provided by a Discloser, its customer-related and financial information, software code, flow charts, techniques, specifications, development and marketing plans, strategies, and forecasts; (ii) as to BMC, and its licensors, the Subscription Services and Service Items; and (iii) the terms of this Agreement, including without limitation, pricing information. Confidential Information does not include information that Recipient can show: (a) was rightfully in Recipient’s possession without any obligation of confidentiality before receipt from the Discloser; (b) is or becomes a matter of public knowledge through no fault of Recipient; (c) is rightfully received by Recipient from a third party without violation of a duty of confidentiality; or (d) is or was independently developed by or for Recipient. Recipient may not disclose Confidential Information of Discloser to any third party or use the Confidential Information in violation of this Agreement. The Recipient (i) will exercise the same degree of care and protection with respect to the Confidential Information of the Discloser that it exercises with respect to its own Confidential Information and (ii) will not, either directly or indirectly, disclose, copy, distribute, republish, or allow any third party to have access to any Confidential Information of the Discloser. Notwithstanding the foregoing, Recipient may disclose Discloser’s Confidential Information to Recipient’s employees and agents who have need to know provided that such employees and agents have legal obligations of confidentiality substantially the same (and in no case less protective) as the provisions of this Agreement.
7.2 Notification Obligation. If the Recipient becomes aware of any unauthorized use or disclosure of Discloser’s Confidential Information, then Recipient will promptly and fully notify the Discloser of all facts known to it concerning such unauthorized use or disclosure. In addition, if the Recipient or any of its employees or agents are required (by oral questions, interrogatories, requests for information, or documents in legal proceedings, subpoena, civil investigative demand, or other similar process) to disclose any of Discloser’s Confidential Information, the Recipient will not disclose the Discloser’s Confidential Information without providing the Discloser with commercially reasonable advance prior written notice to allow Discloser to seek a protective order or other appropriate remedy or to waive compliance with this provision. In any event, the Recipient will exercise its commercially reasonable efforts to preserve the confidentiality of the Discloser’s Confidential Information, including, without limitation, cooperating with Discloser to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded to the Confidential Information.
7.3 Customer Data. As between BMC and Customer, Customer owns all rights, title and interest in and to Customer Data. Customer Data is deemed Confidential Information under this Agreement. BMC will use the Customer Data only as necessary to provide the Subscription Services in accordance with this Agreement. At any time during the term of the Subscription Services, Customer may request copies of all Customer Data from the Subscription Services. Customer is responsible for complying with all legal and contractual requirements, including its agreements with third parties. With the exception of Customer Data collected by the Subscription Services, Customer is solely responsible for the transmission of Customer Data to BMC and to the Subscription Services. Customer is solely responsible for the encryption of any Customer Data.
7.4	Suggestions. Customer agrees that BMC shall have a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into any BMC products or services any suggestions, enhancement requests, recommendations or other feedback provided by Customer relating to the Subscription Services.
8.	DISCLAIMER OF DAMAGES AND LIMITS ON LIABILITY.
8.1	DISCLAIMER OF DAMAGES. EXCEPT FOR EACH PARTY’S RESPONSIBILITIES IN SECTION 9, NEITHER PARTY OR ITS AFFILIATES ARE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES RELATING TO OR ARISING OUT OF THIS AGREEMENT OR THE SUBSCRIPTION SERVICES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST COMPUTER USAGE TIME, AND DAMAGE TO, OR LOSS OF USE OF, DATA), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND IRRESPECTIVE OF ANY NEGLIGENCE OF A PARTY OR WHETHER SUCH DAMAGES RESULT FROM A CLAIM ARISING UNDER TORT OR CONTRACT LAW.
8.2	LIMITS ON LIABILITY. EXCEPT FOR EACH PARTY’S RESPONSIBILITIES IN SECTION 9, NEITHER PARTY OR ITS AFFILIATES SHALL HAVE AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SUBSCRIPTION SERVICES, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEEDING THE AMOUNTS ACTUALLY PAID BY AND DUE FROM CUSTOMER PURSUANT TO THE ORDER(S) GIVING RISE TO LIABILITY THAT ARE IN EFFECT AS OF SUCH DATE.
9.	INFRINGEMENT CLAIMS.
9.1	Indemnification by BMC. If a third party asserts a claim against Customer asserting that Customer’s use of the Subscription Services in accordance with this Agreement violates that third-party’s patent, trade secret or copyright rights (“Infringement Claim”), then BMC will, at its own expense: (a) defend or settle the Infringement Claim; and (b) indemnify Customer for any damages finally awarded against Customer based on infringement by the Subscription Services. If BMC believes the Subscription Services may violate a right, then BMC will, at its expense: (a) modify the Subscription Services, or (b) procure the right to continue using the Subscription Services, and if (a) or (b) are not commercially reasonable, terminate Customer's right to use the Subscription Services and issue a pro-rata refund for the unexpired pre-paid portion of such Subscription Services.
9.2	Indemnification by Customer. Subject to the terms of this Agreement, if a third party asserts a claim against BMC asserting that the Customer Data or Customer’s use of the Subscription Services in violation of this Agreement violates that third-party’s patent, trade secret or copyright rights, or violates applicable law (“Claim”), Customer will, at its own expense: (a) defend or settle the Claim; and (b) indemnify BMC for any damages finally awarded against BMC based on the Claim.
9.3	Indemnity Process. Neither party’s obligations under this Section will apply if: (a) the indemnifying party’s legal department does not receive prompt, detailed written notice of the Infringement Claim/Claim from the party being indemnified, (b) the indemnifying party is not able to retain sole control of the defense of the Infringement Claim/Claim and all negotiations for its settlement or compromise, or (c) the indemnifying party does not receive all reasonable assistance from the party being indemnified. Neither party will bind the indemnified party to a monetary obligation in a settlement or compromise, or make an admission on behalf of the indemnified party, without obtaining that party’s prior consent.
9.4	THIS SECTION 9 CONTAINS EACH PARTY'S EXCLUSIVE REMEDIES AND THE INDEMNIFYING PARTY'S SOLE LIABILITY FOR INFRINGEMENT CLAIMS/CLAIMS, RESPECTIVELY.
10.	EXPORT CONTROLS. Customer represents and warrants that it: a) will comply with the United States Export Administration Regulations and other U.S. or foreign export regulations; b) no individual accessing or using the Subscription Services is a citizen of or from an embargoed country (currently Iran, Syria, Sudan, Cuba and North Korea); c) is not prohibited from receiving the Subscription Services under such regulations; d) will not acquire the Subscription Services for a person who is restricted under such regulations; e) will not use the Subscription Services in contradiction to such regulations; and f) will not use the Subscription Services for prohibited uses, including but not limited to nuclear, chemical, missile or biological weapons related end uses. For Subscription Services exported from Ireland, EC No. 428/2009 sets up a Community regime for control of exports of dual-use items and technology, and it is declared that this Subscription Services is intended for civil purposes only. Therefore, Customer agrees to comply with both the U.S. regulations and those E.U. regulations and will not export in violation of the regulations and without all proper licenses. Customer’ failure to comply with these regulations will result in an automatic termination of the Agreement and all rights to the Subscription Services thereunder.
11.	GOVERNING LAW AND DISPUTE RESOLUTION. A party will provide written notice to the other party of any controversy, dispute or claim arising out of or relating to this Agreement, or to the formation, interpretation, breach, termination, or validity thereof (“Controversy”). The parties shall engage in good faith negotiations to resolve the Controversy. Only if the Controversy is not resolved through good faith negotiations within 15 days of the sending of the written notice of Controversy, the Controversy may be submitted to litigation or binding arbitration, based on the place of incorporation of the parties, as follows:
(i)	If both parties to this Agreement are entities incorporated under the law of any state in the United States, the Controversy shall be tried in either state or federal court located in Houston, Texas and the laws of the State of Texas shall govern. Both sides hereby submit to the exclusive jurisdiction of the courts in Houston, Texas and waive all defenses based on forum non conveniens.
(ii)	If both parties to this Agreement are entities incorporated in countries in the Europe, Middle East, or Africa regions, the arbitration shall be held in Amsterdam, Netherlands under the then-applicable rules of the International Chamber of Commerce and the substantive laws of the Netherlands will govern.
(iii)	If both parties to this Agreement are entities incorporated in countries in the Asia Pacific region, the arbitration shall be held in Singapore under the then-applicable rules of the Singapore International Arbitration Centre and the substantive laws of Singapore will govern.
(iv)	In all other instances, the arbitration shall be held in New York City, New York, under the then-applicable international rules of the American Arbitration Association and the substantive laws of the State of Texas will govern.
For all arbitrations conducted hereunder: (a) the arbitration shall be conducted in English; (b) the relevant arbitral institution shall determine the number of arbitrators, but any Controversy in which the amount in dispute is greater than $10 million USD shall be decided by three arbitrators, with each party having the right to select one arbitrator; (c) the costs of such arbitration shall be borne equally, pending the arbitrator’s award; (d) the arbitration award rendered shall be final and binding on the parties, shall not be subject to appeal to any court and shall be enforceable in any court having jurisdiction over the Parties; (e) the arbitration proceedings, award and pleadings shall all be confidential, unless disclosure of particular information is required for purposes of enforcing/challenging the award or to meet local securities law requirements; and (f) the party prevailing in arbitration shall be entitled to recover its reasonable attorneys’ fees and the necessary costs incurred in connection with the arbitration.
The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. Nothing in this Agreement shall be deemed as preventing either party from seeking immediate injunctive relief from any court having jurisdiction over the parties and the subject matter of the dispute.
12.	The following BMC contracting entities apply to this Agreement:
Region | Contracting Entity | Address of Contracting Entity |
---|---|---|
United States and Latin America South (not a specified Central or South America country below) | BMC Software, Inc. | 2103 CityWest Boulevard, Houston, Texas 77042 |
Canada | BMC Software Canada Inc. | 50 Minthorn Boulevard, Suite 200 Markham, Ontario L3T 7X8 Canada |
EMEA (Europe, Middle East and Africa) | BMC Software Distribution B.V. | Boeing Avenue 245, 1119 PD Schiphol Rijk, The Netherlands |
Brazil | BMC Software do Brasil Ltda. | Av. das Nações Unidas, 8.501 – 22º Andar Condomínio Eldorado Business Tower São Paulo, Brasil – 05425-070 |
Mexico | BMC Software Distribution de México, S.A. de C.V. | Torre Esmeralda II Blvd. Manuel Avila, Camacho #36, Piso 23 Lomas de Chapultepec, CP11000, Mexico D.F. |
Argentina | BMC Software de Argentina S.A. | Ing. Butty 220 – Piso 18, Buenos Aires, Republica Argentina, C1001AFB |
S.E.A (Southeast Asia), Australia, New Zealand, Hong Kong, Taiwan | BMC Software Asia Pacific Pte Ltd | 600 North Bridge Road, #20-01/10 Parkview Square, Singapore 188778 |
China | BMC Software (China) Limited | Room 502, Level 5, Tower W1, The Towers, Oriental Plaza, No. 1 East Chang An Ave., Dong Cheng Dist., Beijing 100738, China |
Japan | BMC Software K.K. | Harmony Tower 24th Floor, 1-32-2 Honcho, Nakano-ku, Tokyo, 164-8721 |
Korea | BMC Software Korea Ltd | 24th Fl., ASEM Tower, 1517, Yeongdong-daero,Gangnam-gu, Seoul 135-798, Korea South |
13.	U.S. FEDERAL ACQUISITIONS. This Section applies only to acquisitions of the commercial Subscription Services and Documentation subject to this Agreement by or on behalf of the United States Government, or by any prime contractor or subcontractor (at any tier) under any contract, grant, cooperative agreement or other activity with the United States Government. In the event the Subscription Services are delivered to the United States Government, the United States Government hereby agrees that the Subscription Services qualify as “commercial items” within the meaning of the Federal acquisition regulation(s) applicable to this procurement. The terms and conditions of this Agreement shall pertain to the United States Government’s use and disclosure of the Product, and shall supersede any conflicting contractual terms and conditions. The following additional statement applies only to acquisitions governed by DFARS Subpart 227.4 (October 1988): “Restricted Rights – Use, duplication and disclosure by the Government is subject to restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 (Oct. 1988).”
14.	DATA PROTECTION. The processing of Customer Data under this Agreement is governed by the BMC Data Processing Agreement set forth on the Order.
15.	VERIFICATION. Customer agrees that BMC or its agent may monitor the Subscription Services to ensure Customer’s compliance with the terms of this Agreement. If such monitoring reveals that Customer has exceeded the Capacity for the Subscription Services, Customer agrees to pay the applicable fees for additional capacity upon receipt of an invoice from BMC. If Customer to fails to pay fees for such additional capacity, BMC may suspend Customer’s access to the Subscription Services until such fees are paid in full.
16.	MISCELLANEOUS TERMS. BMC is not liable for its failure to perform any of its obligations under this Agreement during any period in which performance is delayed by Customer or circumstances beyond BMC's reasonable control. The parties are independent contractors and this Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties. Customer will receive system notifications from BMC and its licensors, if applicable (i.e. planned downtime notices, etc). This Agreement, including the Attachments and Orders constitutes the entire agreement between Customer and BMC and supersedes any prior or contemporaneous negotiations or agreements, whether oral or written concerning the Subscription Services. There are no representations, promises, warranties, covenants, or undertakings between the parties other than those expressly set forth in this Agreement. There are no third-party beneficiaries to this Agreement; Customer is not entering into a contractual relationship with BMC’s licensors and BMC’s licensors have no liability to Customer. Except as provided in Section 2 above, no modification or waiver of any provision hereof will be effective unless made in a writing signed by both BMC and Customer. Customer may not assign or transfer this Agreement or the Subscription Services to a third party, whether by merger, operation of law, or otherwise. Should any provision of this Agreement be invalid or unenforceable, the remainder of the provisions will remain in effect. Any additional or conflicting terms of any Customer purchase order are rejected by BMC and do not apply. The Subscription Services may contain hyperlinks to websites controlled by parties other than BMC. BMC is not responsible for and does not endorse the content or accept any responsibility for Customer’s use of these websites. Customer should refer to the policies posted by other websites regarding privacy and other topics regarding data privacy before using them.
Attachments incorporated into Agreement |
Attachment A – Platform Services Attachment |
Attachment B – Consulting Services Attachment |
Attachment C – On Premise Subscription Services Attachment |
PLATFORM SERVICES ATTACHMENT
to the
BMC CLOUD SERVICES MASTER AGREEMENT
Except as otherwise provided herein, the terms of the Cloud Services Master Agreement (the “Base Agreement”) are incorporated into this Platform Services attachment (the “Attachment”). Together, this Attachment and the Base Agreement (as incorporated into this Attachment) are referred to as the “Agreement” for purposes of Customer’s purchase of Platform Services, only if the Platform Services are set forth on an Order referencing the Base Agreement. For purposes of this Agreement, the term “Subscription Services” as defined in the Base Agreement shall be extended to include the Platform Services. In the event of a conflict between the Base Agreement and the terms of this Attachment, the terms of this Attachment will control for Customer’s purchase of the Platform Services only.
1.	SCOPE. Subject to the terms of this Agreement, BMC will provide Customer with access to the Platform Service named in the applicable Order. Customer may only use the Platform Services to store, retrieve, query, serve, and process Customer Data that is owned, licensed or lawfully obtained by Customer. As part of Customer’s subscription to the Platform Services, Customer may be allowed to run certain Applications on the Platform Services that are either (i) sold by BMC, (ii) sold by a Third Party Publisher, or (iii) owned or licensed by Customer.
2.	DEFINITIONS.
2.1	“Application” is the object code, its definitional structures, and data created to fulfill a particular purpose, which runs on the Platform Services. An Application may also include its documentation and User Guide.
2.2	“BMC Application Services” means an Application that is licensed by BMC to customers, including all items delivered by BMC to Customer under Support related to such Application.
2.3	“Customer Applications” means Applications that are owned or licensed by Customer, not including any Third Party Applications, and which run on the Platform Services.
2.4	“Customer Data” means all information uploaded or entered by Customer to the Platform Services, excluding Customer Applications.
2.5	“Data Processing Agreement” means the applicable Data Processing Agreement attached to each Order.
2.6	“Platform Services” means the BMC Innovation Suite and its capabilities to run Applications. The specific Platform Services being purchased by Customer will be identified in the Order.
2.7	“Third Party Applications” means Applications that are owned by a Third Party Publisher with a valid independent software vendor agreement in place with BMC, and are licensed by said Third Party Publisher to customers.
2.8	“Third Party Publisher” means a party other than BMC or a BMC Affiliate that is the owner and licensor of a Third Party Application, and has a valid independent software vendor agreement in place with BMC. For the sake of clarity, Customer is informed that Third Party Publishers are not BMC Subcontractors.
3.	BMC PLATFORM SERVICES.
3.1	BMC Platform Services Support. BMC will provide Support only for Platform Services and BMC Application Services. Customer is responsible for its own support for Customer Applications and Third Party Applications.
3.2	Notifications to Customer. Any general notifications from BMC Operations to Customer will be sent to the Customer contact stated in the Customer Technical Contact Information section of the Order. The Customer contact in the Order has been assigned by Customer as the Customer contact for operational issues that may arise. Customer shall notify BMC of any change to the Customer contact details in writing, which may include via e-mail.
3.3	Customer Data Back-up and Recovery. BMC provides daily incremental and weekly full system backups of the production environment in a secure off-site facility within the same country as the primary facility, using a 90 day retention window for data recovery purposes.
3.4	Subcontractors. For the sake of clarity, Customer is informed that Third Party Publishers are not BMC Subcontractors.
3.5	Customer Responsibilities. In Addition to the Customer Responsibilities set forth in the Base Agreement, Customer may not (i) transfer an Application outside of the Platform Services; or (ii) tamper with or circumvent any controls or make unauthorized copies of an Application.
4.	CUSTOMER APPLICATIONS AND THIRD PARTY APPLICATIONS.
4.1	Any Third Party Applications or Customer Applications that run on the Platform Services are hereby excluded from the defined terms “Subscription Services”, “BMC Application Services” and “Platform Services”. Such Third Party Applications are governed by the terms provided with the Third Party Applications, and are by and between Customer and the applicable Third Party Publisher. Customer acknowledges and agrees that this Agreement does not govern Customer’s subscription, use and access of any Third Party Applications or Customer Applications, and said Third Party Applications and Customer Applications are specifically excluded from this Agreement.
4.2	Customer may utilize the BMC Innovation Suite for Developers to create an Application to run on the Platform Services. Customer’s use of the BMC Innovation Suite for Developers is exclusively governed by the BMC Developer Program Agreement, a copy of which may be viewed at https://www.bmc.com/content/dam/bmc/corporate/DVA.pdf, and such use is not governed by the terms of this Agreement. Customer’s development of an Application must meet the best practices development guidelines set forth in the User Guide. Each Customer Application shall at all times materially conform to policies and best practices set forth in the User Guide. Prior to the deployment of any Customer Applications in a production or non-production environment of the Platform Services, Customer must conduct security and functional tests of each Customer Application and submit the results of such tests to BMC for review. BMC reserves the right to reject Customer’s deployment request of a Customer Application based on the results of Customer’s security and functional tests. Additionally, BMC reserves the right, during the term of this Agreement, to request Customer conduct additional security and functional tests and provide the results of said tests to BMC for review. Notwithstanding the foregoing, Customer must ensure that at all times Customer Applications are secure.
4.3	License to Customer Applications. Subject to the terms and conditions of this Agreement, Customer hereby grants BMC a worldwide, limited, nonexclusive license during the term of the applicable Order for the Platform Services to host, copy, transmit, adapt and display Customer Applications solely for the purpose of fulfilling BMC’s obligations under this Agreement.
4.4	Functionality of Customer Applications. Customer is solely responsible for the operation of Customer Applications, including but not limited to any information stored in or transmitted by Customer Applications. Customer is responsible for monitoring the usage of each Customer Application. Customer is responsible for the configuration, functionality, performance, compliance with applicable data protection laws and security of all Customer Applications, including any interfaces used to connect to Customer Applications.
4.5	Use of Customer Applications. Customer has sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of Customer Applications and all Customer Data entered therein by Customer, its Users or on Customer’s behalf, the means by which Customer acquired such Customer Data, and the use of such Customer Data. Without limiting Customer’s obligations under the terms of this Agreement, Customer must (i) provide any necessary notice to, and obtain any necessary consent from, Users for the collection, use, transfer, and storage of Customer Data (including by BMC), and (b) collect, use, transfer, and store Customer Data in accordance with any privacy notice you provide, and all applicable laws.
4.6	Use of Third Party Applications. Customer is responsible for monitoring its usage of each Third Party Application, and such Third Party Publisher’s usage and license compliance is governed by the terms of the agreement entered into between Customer and the Third Party Publisher. Customer is responsible for all applicable fees associated with Customer’s use of Third Party Applications. Please note, Customer’s usage of such Third Party Applications may incur additional license fees between Customer and the applicable Third Party Publisher, as well as additional Platform Services fees.
4.7	Customer will provide information or other materials related to a Customer Applications as reasonably requested by BMC to verify Customer’s compliance with the Agreement and the User Guide. BMC may monitor Customer Applications and Third Party Applications running on the Platform Services to verify Customer’s compliance with the Agreement. Customer will not block or interfere with BMC’s monitoring. Customer will cooperate with BMC to identify the source of any problem with the Platform Services that BMC reasonably believes may be attributable to Customer Applications or Third Party Applications, or any Customer Data.
4.8	If BMC reasonably believes any Customer Data, Customer Applications or Third Party Applications violates the law, infringes or misappropriates the rights of any third party or otherwise violates a material term of the Agreement (including the User Guide) (“Prohibited Content”), BMC will notify Customer of the Prohibited Content and may request that such content be removed from the Platform Services or access to it be disabled. If Customer does not remove or disable access to the Prohibited Content within two (2) business days of BMC’s notice, BMC may remove or disable access to the Prohibited Content or suspend the Platform Services to the extent BMC is not able to remove or disable access to the Prohibited Content. Notwithstanding the foregoing, BMC may remove or disable access to any Prohibited Content without prior notice in connection with illegal content, where the content may disrupt or threaten the Platform Services, pursuant to the Digital Millennium Copyright Act or as required to comply with law or any judicial, regulatory or other governmental order or request. In the event that BMC removes content without prior notice, BMC will provide prompt notice to Customer unless prohibited by law.
4.9	Customer’s use of the Platform Services, BMC Application Services, Customer Applications and/or Third Party Applications may be immediately suspended and/or terminated due to (i) reasonable security threats regarding the Platform Services, Customer Applications or Third Party Applications, (ii) Customer Applications or Third Party Applications interfering with, disrupting or threatening the integrity or performance of the Platform Services or BMC Application Services, or (iii) a third party’s claim that Customer Applications or Third Party Applications may violate applicable law or third party rights. In the event of (i) or (ii) above apply to Customer Applications, Customer is required to remediate any such issue to BMC’s commercially reasonable satisfaction before use of Customer Applications can resume.
4.10	Customer’s access to Third Party Applications may be immediately suspended and/or terminated by BMC at the direction of the Third Party Publisher. Customer acknowledges and understands that access to Customer Applications and/or Third Party Applications used in connection with the Platform Services may be suspended due to Customer’s non-payment to BMC for use and access to the Platform Services or other breach of this Agreement. In no case will any such suspension or termination under the terms of this Agreement give rise to any BMC liability to Customer for a refund or other compensation.
4.11	BMC may conduct periodic security evaluations of all Customer Applications, which may include security review, a qualitative assessment involving review of a completed questionnaire, and an interview with appropriate Customer personnel. BMC conducts such security evaluations for its own benefit and Customer may not rely on the successful results of such evaluation. BMC may conduct such testing itself or, subject to the confidentiality obligations set forth in the Agreement, through a third party. BMC will provide reasonable notice to Customer before starting such testing. BMC will also cooperate reasonably with Customer to minimize the effects of such testing on Customer’s business and operations. Customer agrees to cooperate reasonably with such testing. Despite the foregoing, such testing may in rare cases cause downtime or other adverse effects on Customer Applications, Third Party Applications, the Platform Services or other BMC Application Services used by Customer. Any nonpublic information to which BMC obtains access in the course of such security testing will be considered Customer’s Confidential Information.
4.12	Customer Responsibilities. Customer will maintain the confidentiality of all authentications and passwords for the Platform Services, Customer Applications and Third Party Applications, and immediately notify BMC if it becomes aware that an unauthorized party has gained access to such Platform Services, Customer Applications or Third Party Applications. Customer will (i) use reasonable efforts to prevent unauthorized access to, or use of, Customer Applications and Third Party Applications, and notify BMC promptly of any such unauthorized access or use, and (ii) comply with all applicable laws in using the Customer Applications and Third Party Applications. Customer is responsible for the creation and implementation of a privacy policy and end user license agreement, if applicable, which will set forth the guidelines of how said Users may utilize the Customer Applications.
5.	WARRANTIES. Customer warrants to BMC that: (a) each Customer Application will perform materially in accordance with the User Guide; (b) Customer owns all right, title, and interest in and to Customer Data, including but not limited to any Customer Data uploaded or entered into Customer Applications or Third Party Applications; (c) Customer has the necessary rights to use and access any Customer Applications and Third Party Applications deployed in a production or non-production environment of the Platform Services; (d) Customer has all rights in the Customer Data and Customer Applications necessary to grant the rights contemplated by this Agreement; (e) none of the Customer Data or Customer Applications or Users’ use of Customer Data or Customer Applications will violate the Agreement and the User Guide; (f) Customer’s security and functional tests of Customer Applications was conducted in a commercially reasonable manner and the results of said tests provided to BMC for review are correct and valid; and (g) none of the Third Party Applications or Users’ use of Third Party Applications will violate the Agreement or the User Guide.
6.	SECURITY AND DATA PROTECTION.
6.1	Customer and Third Party Publishers shall agree upon their respective obligations with respect to the processing of personal data by Third Party Publishers as per Section 4.1 of this Attachment.
6.2	BMC takes no responsibility with regard to Customer Data content (i) processed on behalf of Customer and/or handling as per Customer’s instructions and/or (ii) processed by Third Party Publishers and/or (iii) through the use by Customer of Third Party Applications. Customer shall indemnify and hold harmless BMC from any failure to comply with its obligations set forth in this Attachment according to the terms of Section 9.2 (Indemnification by Customer) in the Base Agreement.
7.	INDEMNIFICATION. For purposes of this Agreement, the term “Claim” as defined in Section 9.2 (Indemnification by Customer) of the Base Agreement shall be extended to include if a third party asserts a claim against BMC asserting that a Customer Application violates that third-party’s patent, trade secret or copyright rights, or otherwise harms the third party.
8.	LIMITATION OF LIABILITY. Section 8 of the Base Agreement shall not apply to Customer’s breach of Section 4.12 of this Attachment.
9.	INSURANCE. Customer will provide and maintain cyber liability insurance in the amount of one million dollars ($1,000,000.00) for losses arising out of Customer’s provision of a Customer Application on the Platform Services under this Agreement.
ATTACHMENT B
CONSULTING SERVICES ATTACHMENT
to the
BMC CLOUD SERVICES MASTER AGREEMENT
Except as otherwise provided herein, the terms of the Cloud Services Master Agreement (the “Base Agreement”) are incorporated into this Consulting Services attachment (the “Attachment”). Together, this Attachment and the Base Agreement (as incorporated into this Attachment) are referred to as the “Agreement” for purposes of Customer’s purchase of Consulting Services, only if Consulting Services are set forth on an Order referencing the Base Agreement. For purposes of this Agreement, the term “Subscription Services” as defined in the Base Agreement shall be extended to include Consulting Services. In the event of a conflict between the Base Agreement and the terms of this Attachment, the terms of this Attachment will control for Customer’s purchase of Consulting Services only. The parties agree that the following Sections of the Base Agreement do not apply to the Consulting Services provided under this Attachment: Section 3.2 (Support), Section 4 (Fees and Payment), Section 6 (Limited Warranty) and Section 9 (Infringement Claims).
1.	SCOPE. BMC agrees to render to Customer Consulting Services under the terms of this Agreement and as further described in an Order. BMC will render the Consulting Services in the location(s) as set forth in the Order. Neither execution of this Agreement, nor anything contained herein, shall obligate either party to enter into an Order. The performance of the Consulting Services will not relieve or alter the rights, obligations and responsibilities of Customer and of the licensing BMC affiliate with respect to BMC software products under the applicable software license Agreement.
2.	SERVICE FEES AND EXPENSES. The fees payable to BMC for the Consulting Services to be rendered will be detailed in the Order. BMC will submit invoices to Customer for such fees and incurred expenses either upon completion of the Consulting Services, or at stated intervals, in any case in accordance with the applicable Order. Customer shall pay amounts invoiced within 30 days following receipt of the invoice.
3.	EDUCATION. Customer may acquire Learning Pass Credits and Education Services (collectively, “BMC Education”) on a Order. The BMC Education terms that govern such Orders are set forth in the Education Program Guide located at http://media.cms.bmc.com/documents/education-program-guide.pdf, and is incorporated herein by this reference.
4.	STATEMENTS OF WORK. Some Consulting Services may require the execution of a Statement of Work. Such requirement will be set forth in an Order. In the event of any conflict between the terms of a Statement of Work and this Agreement, the Agreement shall prevail except for matters of service fees, payment and reimbursement of expense terms if further specified in the Statement of Work. During the term of an applicable Statement of Work, and for a period of six months thereafter, neither party will solicit for employment any employees, agents, or subcontractors of the other party or its affiliates who, within six months prior to such solicitation, had contact with the soliciting party based in whole or in part upon Consulting Services provided under this Agreement. The restrictions in this section shall be deemed not to apply to general solicitations for employment posted on Internet job sites or printed in newspapers or trade or professional journals.
5.	PROPRIETARY RIGHTS AND RIGHTS IN DELIVERABLES.
5.1	Ownership of Materials Used in the Consulting Services. Unless specifically provided in an Order, Customer shall supply all of the facilities; equipment; supplies; computer programs; information about Customer’s business, systems, software and needs; and other materials necessary for completion of the Consulting Services (“Customer Property”), and BMC shall supply the people described in the Order, the know-how and the tools necessary to provide the Consulting Services, which may include, among other things, software, templates, questionnaires, graphs, methodologies, models, charts and reports (“BMC Property”). Customer Property and copies and modifications of Customer Property will remain the sole property of Customer or if applicable, Customer’s licensors, and BMC Property and copies and modifications of BMC Property will remain the sole property of BMC or if applicable, BMC’s licensors. Customer hereby grants to BMC a royalty-free, paid-up, non-exclusive, non-sublicensable and non-transferable license to use the Customer Property for the purpose of providing the Consulting Services.
5.2	Deliverables. Deliverables are those created under the Order, including, but not limited to, software, software scripts, routines, libraries or other code, or appliances, methodologies, templates, tools, policies, records, working papers, reports, methodologies, know-how, data, or other intellectual property, written or otherwise, including any derivative works or modifications to the above, whether pre-existing or created during the performance of the Consulting Services and all proprietary and intellectual property rights embedded therein delivered as a result of the Consulting Services as specified under the Order. BMC owns all right, title and interest in the Deliverables. Provided Customer has paid in full for the Consulting Services that resulted in the Deliverables, BMC will deliver the Deliverables to Customer in accordance with the applicable Order. Subject to compliance with the terms of this Agreement and the applicable Order, BMC grants Customer a non-exclusive, non-transferable, non-sublicensable, royalty-free, paid-up license to use, create derivative works of and modify all Deliverables solely for its internal business operations.
5.3	Copyright Notice. Each party agrees to reproduce the copyright notice and any other legend or ownership notice on any copies made under the licenses granted pursuant to this Section 5.
5.4	Retention. Customer acknowledges that BMC provides similar services to other customers and that nothing in this Agreement shall be construed as operating to prevent BMC from carrying on such business. Further BMC may use ideas, concepts, or know-how developed or acquired by BMC during performance of the Consulting Services to the extent acquired by BMC’s personnel as impressions and general learning.
6.	LIMITED WARRANTY. BMC warrants that it will perform the Consulting Services in conformance with generally accepted practices within the software services industry and in accordance with the Order. Customer must notify BMC of any breach of this warranty no later than 90 days after completion of the Consulting Services under the Order. Customer’s exclusive remedy and BMC’s entire liability under this warranty shall be for BMC to re-perform any non-conforming portion of the Consulting Services within a reasonable period of time, or if BMC cannot remedy the breach during such time period then refund the portion of the fee attributable to such non-conforming portion of the Consulting Services under the Order. This warranty will not apply to the extent Customer, its contractors or agents have modified any Deliverable, unless otherwise authorized by BMC in writing.
THIS WARRANTY AND CONDITION IS IN LIEU OF ALL OTHER WARRANTIES AND CONDITIONS. THERE ARE NO OTHER EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS, INCLUDING THE IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
7.	INSURANCE. BMC will provide and maintain the following insurance, but only for losses arising out of BMC’s provision of Consulting Services under this Attachment:
7.1	Worker’s Compensation insurance as prescribed by the law of the state applicable to the employees performing the Consulting Services;
7.2	Employer’s Liability insurance with a limit of one million US dollars ($1,000,000) for each occurrence;
7.3	Commercial General Liability insurance with one million US dollars ($1,000,000) per occurrence combined single limit and five million US dollars ($5,000,000) general aggregate, including coverage for Products Liability and Completed Operations;
7.4	Automobile Liability insurance, including coverage for Hired and Non-owned vehicles of one million US dollars ($1,000,000) for combined single limit for bodily injury and/or property damage; and
7.5	Professional Liability insurance covering Errors and Omissions in the amount of one million US dollars ($1,000,000) for each occurrence and in the aggregate associated with Consulting Services performed under this AGREEMENT.
8.	INFRINGEMENT INDEMNITY.
8.1	If a third party asserts a claim against Customer asserting that Customer’s use of a Deliverable in accordance with this Agreement violates that third-party’s patent, trade secret or copyright (“Customer Infringement Claim”), then BMC will, at its own expense: (a) defend or settle the Customer Infringement Claim; and (b) indemnify Customer for any damages finally awarded against Customer, but only if: Customer promptly notifies BMC of the Customer Infringement Claim, BMC retains sole control of the defense of the Customer Infringement Claim and all negotiations for its settlement or compromise, and Customer provides all reasonable assistance requested by BMC. BMC’s obligations above will not apply if the Customer Infringement Claim is based on (i) the use of the Deliverable in combination with products not supplied or approved by BMC in writing or in the Deliverable's user manuals, (ii) modification of the Deliverable other than by BMC, or (iii) the failure of Customer to use any updates to such Deliverable within a reasonable time after such updates are made available to Customer. If BMC believes a Deliverable may violate a right, then BMC will, at its expense: (a) modify the Deliverable, or (b) procure the right to continue using the Deliverable, and if (a) or (b) are not commercially reasonable, terminate Customer's right to use the Deliverable and issue a refund prorated over five years from the completion date of the related Order.
8.2	If a third party asserts a claim against BMC asserting that BMC’s use of Customer Property in accordance with this Agreement violates that third-party’s patent, trade secret or copyright (“BMC Infringement Claim”), then Customer will, at its own expense: (a) defend or settle the BMC Infringement Claim; and (b) indemnify BMC for any damages finally awarded against BMC, but only if: BMC promptly notifies Customer of the BMC Infringement Claim, Customer retains sole control of the defense of the BMC Infringement Claim and all negotiations for its settlement or compromise, and BMC provides all reasonable assistance requested by Customer.
8.3	This Section 8 contains each party’s exclusive remedy and sole liability for Infringement Claims.
9.	MUTUAL INDEMNITY. Each party shall indemnify and hold harmless the other party from all claims, liabilities or expenses for physical damage to real property or tangible personal property and bodily injury, including death, to the extent caused by the gross negligence or willful misconduct of the indemnifying party’s employees or contractors arising out of this Agreement and while at the Customer’s premises. The foregoing indemnities are contingent upon the party seeking indemnity giving prompt written notice to the indemnifying party of any claim, demand or action, and cooperating with the indemnifying party in the defense or settlement of any such claim, demand or action.
10.	INDEPENDENT CONTRACTOR. All of the services performed by BMC under this Agreement will be performed as an independent contractor.
ATTACHMENT C
ON PREMISE SUBSCRIPTIONS ATTACHMENT
to the
BMC CLOUD SERVICES MASTER AGREEMENT
Except as otherwise provided herein, the terms of the Cloud Services Master Agreement (the “Base Agreement”) are incorporated into this On Premise Subscriptions attachment (the “Attachment”). Together, this Attachment and the Base Agreement (as incorporated into this Attachment) are referred to as the “Agreement” for purposes of Customer’s purchase and ongoing use of On Premise Subscriptions, only if On Premise Subscriptions are set forth on an Order referencing the Base Agreement. For purposes of this Agreement, the term “Subscription Services” as defined in the Base Agreement shall be extended to include On Premise Subscriptions. In the event of a conflict between the Base Agreement and the terms of this Attachment, the terms of this Attachment will control for Customer’s purchase of On Premise Subscriptions only. The parties agree that the following Sections of the Base Agreement do not apply to the On Premise Subscriptions provided under this Attachment: Section 3.4 (Customer Responsibilities and Restrictions), Section 6 (Limited Warranty) and Section 14 (Verification).
1.	DEFINITIONS.
1.1	"Documentation" means the technical publications relating to the software, such as release notes, license entitlement descriptions, reference, user, installation, systems administrator and technical guidelines, included with the On Premise Subscription.
1.2	“Licensed Capacity” is the amount of each On Premise Subscription licensed as established in the Order.
1.3	“On Premise Subscription” is the object code of the software and all accompanying Documentation delivered to Customer, including all items delivered by BMC to Customer under Support.
2.	LICENSE. Subject to the terms, conditions, payment requirements and restrictions set forth in this Agreement, BMC grants Customer a non-exclusive, non-transferable, non-sub-licensable term license to install in the Territory, access and use the On Premise Subscription during the term specified on the Order (i) up to the Licensed Capacity, (ii) for Customer’s and its Affiliates internal business operations, (iii) in accordance with the Documentation and the applicable Order, and (iv) make one copy of the On Premise Subscription for archival purposes only (collectively a "License"). Affiliates may use and access the On Premise Subscriptions under the terms of this Agreement, and Customer is responsible for its Affiliates compliance with the terms of this Agreement.
3.	RESTRICTIONS. Customer will not: (a) copy, operate or use any On Premise Subscription in excess of the applicable Licensed Capacity or other than as set forth in the License above; (b) modify, delete or remove any ownership, title, trademark, patent or copyright notices (“Identification”) from any On Premise Subscription, or copy or partial copy of an On Premise Subscription; (c) disassemble, reverse engineer, decompile or otherwise attempt to derive any On Premise Subscription source code from object code, except to the extent expressly permitted by applicable law despite this limitation without possibility of contractual waiver; (d) distribute, rent, lease, sublicense or provide the On Premise Subscription to any third party; (e) use the On Premise Subscriptions in an outsourcing or service bureau environment on behalf of non-Affiliate third parties, or allow the On Premise Subscriptions to be used by an outsourcing or service bureau provider on Customer’s behalf; (f) provide a third party with the results of any functional evaluation, or performance tests, without BMC's prior written approval; or (g) attempt to disable or circumvent any of the licensing mechanisms within the On Premise Subscription.
4.	ON PREMISE SUBSCRIPTION PERFORMANCE WARRANTY. BMC warrants that (a) the On Premise Subscription will perform in substantial accordance with its Documentation for a period of one year from the date of the first Order, (b) BMC has used commercially reasonable efforts consistent with industry standards to scan for and remove software viruses, and (c) other than passwords that may be required for the operation of the On Premise Subscription, BMC has not inserted any code that is not addressed in the Documentation and that is designed to delete, interfere with or disable the normal operation of the On Premise Subscription in accordance with the License. This warranty will not apply to any problems caused by hardware, Computers, or software other than the On Premise Subscription, or misuse of the On Premise Subscription, use of the On Premise Subscription other than as provided by the applicable License, modification of the On Premise Subscription, or claims made either outside the warranty period or not in compliance with the notice and access requirements set forth below. No warranty is provided for additional Licensed Capacity, On Premise Subscription provided pursuant to Support. BMC’s entire liability, and Customer’s exclusive remedy, for breach of the above warranty is limited to: BMC’s use of commercially reasonable efforts to have the On Premise Subscription perform in substantial accordance with its Documentation, or replacement of the non-conforming On Premise Subscription within a reasonable period of time, or if BMC cannot have the On Premise Subscription perform in substantial accordance with its Documentation replace the On Premise Subscription within such time period, then BMC will refund the amount paid by Customer for the License for that On Premise Subscription. Customer’s rights and BMC's obligations in this Section are conditioned upon Customer’s providing BMC during the warranty period (i) full cooperation and access to the On Premise Subscription in resolving any claim; and (ii) written notice addressed to the BMC Legal Department that includes notice of the claim, a complete description of the alleged defects sufficient to permit their reproduction in BMC’s development or support environment, and a specific reference to the Documentation to which such alleged defects are contrary.
EXCEPT FOR THE EXPRESS WARRANTIES IN THIS ATTACHMENT, THE ON PREMISE SUBSCRIPTION IS PROVIDED WITH NO OTHER WARRANTIES WHATSOEVER, AND BMC, ITS AFFILIATES AND LICENSORS DISCLAIM ALL OTHER WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. BMC DOES NOT WARRANT THAT THE OPERATION OF THE ON PREMISE SUBSCRIPTION WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT ALL DEFECTS CAN BE CORRECTED.
5.	DELIVERY. For On Premise Subscriptions that are delivered electronically, upon request from BMC, Customer agrees to provide BMC with documentation supporting that the designated On Premise Subscription was received electronically. If Customer accepts any On Premise Subscription in a non-electronic format, there may be an additional charge and it is the sole responsibility of Customer to bear any sales/use tax obligation, penalties, and interest. All On Premise Subscriptions are licensed FCA (“Free Carrier” as per Incoterms 2000) shipping point. The On Premise Subscriptions are accepted on the date BMC delivers the On Premise Subscription to the Customer either physically or by providing access codes for electronic download, whichever occurs first, however, such acceptance will not affect the On Premise Subscription Performance Warranty provided in this Agreement.
6.	AUDIT. If requested by BMC, and not more than once a year, Customer agrees to deliver to BMC, within 30 days of such request, as specified by BMC either (a) periodic product usage reports generated from specific products or (b) written periodic product usage reports, to be provided solely when the product does not generate reports (“Report”). Additionally, if requested by BMC not more than once a year, Customer agrees to allow BMC to perform an audit (“Audit”) at the locations where the On Premise Subscriptions are installed, during normal business hours to ensure compliance with the terms of this Agreement. Customer agrees to cooperate during any such Audit and to provide reasonable access to its information and systems. If an Audit or Report reveals that Customer has exceeded the Licensed Capacity for a On Premise Subscription, Customer agrees to pay the applicable fees for additional capacity upon receipt of invoice. If the understated capacity exceeds 5% of the Licensed Capacity of the applicable On Premise Subscription, then Customer agrees to also pay BMC’s reasonable costs of conducting the audit.
Effective February 26th 2018 to March 14th 2018
DownloadTable of Contents
BMC CLOUD SERVICES MASTER AGREEMENT
THIS CLOUD SERVICES MASTER AGREEMENT (“AGREEMENT”) GOVERNS YOUR FREE TRIAL, IF ANY, OF THE SUBSCRIPTION SERVICES.
IF YOU PURCHASE THE SUBSCRIPTION SERVICES, THIS AGREEMENT WILL ALSO GOVERN YOUR PURCHASE AND ONGOING USE OF THE SUBSCRIPTION SERVICES.
BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SUBSCRIPTION SERVICES.
You may not access the Subscription Services if you are BMC’s direct competitor, except with BMC’s prior written consent. In addition, you may not access the Subscription Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.
This Agreement was last updated on February 23, 2018. This Agreement is between the entity or individual entering into this Agreement (“Customer”) and the BMC Contracting Entity for the applicable region as described in Section 12 (“BMC”). It is effective between Customer and BMC as of the date of your acceptance of this Agreement. For Customer’s convenience, prior versions of this Agreement are available at https://www.bmc.com/legal/csma.html.
FREE TRIAL.
BMC may make the Subscription Services available to Customer on a trial basis free of charge. If BMC offers Customer a free trial, it will run until the earlier of (a) the end of the trial period stated on the trial registration web page or (b) the start date of any Order for purchase of the Subscription Services. Additional trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.
ANY DATA CUSTOMER ENTERS INTO THE SUBSCRIPTION SERVICES, AND ANY CUSTOMIZATIONS MADE TO THE SUBSCRIPTION SERVICES BY OR FOR CUSTOMER, DURING A FREE TRIAL WILL BE PERMANENTLY LOST UNLESS CUSTOMER PURCHASES A SUBSCRIPTION TO THE SAME SUBSCRIPTION SERVICES AS THOSE COVERED BY THE TRIAL, OR EXPORTS SUCH DATA BEFORE THE END OF THE TRIAL PERIOD.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THE AGREEMENT, DURING ANY FREE TRIAL PERIOD THE SUBSCRIPTION SERVICES ARE PROVIDED “AS IS” WITH NO WARRANTY.
- DEFINITIONS.
- “Affiliate” is an entity that controls, is controlled by or shares common control with BMC or Customer, where such control arises from either (a) a direct or indirect ownership interest of more than 50% or (b) the power to direct or cause the direction of the management and policies, whether through the ownership of voting stock by contract, or otherwise, equal to that provided by a direct or indirect ownership of more than 50%.
- “Subscription Services” means the hosted service which packages web-based access and the right-to-use the supported applications, installed agents and associated reference, user and technical guides.
- “Capacity” means the amount of access to the Services purchased as specified in an Order, which is counted in accordance with the Unit of Measure described in the Order.
- “Customer Data” means all electronic data or information (a) submitted to the Subscription Services by Customer, a third party on behalf of Customer, or as directed by Customer or (b) collected by the Subscription Services.
- “Effective Date” means the date of Customer’s Order for the Subscription Services.
- “Order” means (i) the agreed ordering document for the purchase of the Subscription Services, (ii) that is subject to this Agreement, and (iii) that identifies the terms of the purchase and fees to be paid. The term “Order” includes Customer’s online registration for and purchase of the Subscription Services, If any.
- “User Guide” means the online help, functional guide and technical specifications for the Subscription Services, as updated by BMC from time to time.
- SCOPE. Subject to the terms of this Agreement, Customer may purchase and BMC will provide Customer with access to the Subscription Services as set forth in this Agreement and the applicable Order. Subject to the Attachments to this Agreement, Customer may also purchase BMC Platform Services, BMC Consulting Services and BMC On Premise Subscription Services. In the event of a direct conflict between any Order and the terms of this Agreement, the terms of the Order will control only if the Order is executed by an authorized representative of each party. Each Order is deemed to be a discrete contract, separate from each other Order, unless expressly stated otherwise therein. Orders may be entered under this Agreement by and between (a) BMC or an Affiliate of BMC; and (b) Customer or an Affiliate of Customer. With respect to an Order, the terms “BMC” and “Customer” as used in this Agreement will be deemed to refer to the entities that execute that Order, the Order will be considered a two party agreement between such entities, and BMC will separately invoice the Customer named in the Order for the associated fees. Orders may also be placed via a BMC authorized reseller. Neither execution of this Agreement, nor anything contained herein, shall obligate either party to enter into any Orders.
3. ACCESS TO SUBSCRIPTION SERVICES.
- Access Rights. Subject to Customer’s payment of applicable fees and to the terms of this Agreement, BMC hereby grants to Customer a worldwide, non-exclusive, non-transferable, non-sublicensable, limited license to access and use the Subscription Services in accordance with the Order (i) up to the Capacity, (ii) for Customer’s and its Affiliates’ internal business operations, (iii) in accordance with the User Guide and the applicable Order.
- BMC Subscription Services Support. BMC will provide the support described at http://www.bmc.com/support/review-policies (“Support”) to Customer for the Subscription Services, which may be changed by BMC upon prior notice to customer, provided that such changes do not materially degrade Support during the term of an Order.
- Use of Subcontractors. Customer acknowledges and agrees that BMC uses subcontractors to provide portions of the Subscription Services. BMC will provide a list of its current subcontractors upon Customer’s written request. BMC is responsible for the performance of all subcontractors providing any of the Subscription Services.
- Customer Responsibilities and Restrictions.
(a) 	Customer will (i) maintain the confidentiality of all authentications and passwords for the Subscription Services and immediately notify BMC if it becomes aware that an unauthorized party has gained access such authentications and passwords, (ii) be responsible for use of the Subscription Services by its employees, consultants, contractors, agents, and Affiliates (all, “Users”) in compliance with this Agreement, (iii) prevent unauthorized access to, or use of, the Subscription Services, and notify BMC promptly of any such unauthorized access or use, (iv) comply with all applicable laws in using the Subscription Services, and (v) be responsible for obtaining its own Apple Push Notification certificate, if the Subscription Services are used to manage devices running iOS. Customer is responsible for the creation and implementation of a privacy policy and end user license agreement, if applicable, which will set forth the guidelines of how Customer uses and protects the data and personal information of its Users, and how said Users may utilize the Subscription Services.
(b) 	Customer will not (i) modify, copy or create derivative works based on the Subscription Services; (ii) create Internet “links” to or reproduce any content forming part of the Subscription Services, other than for its own internal business purposes; (iii) disassemble, reverse engineer, or decompile the Subscription Services or part thereof, or access it in order to copy any ideas, features, content, functions or graphics of the Subscription Services; (iv) interfere with or disrupt the integrity or performance of the Subscription Services; (vi) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortuous material, or send or store material in violation of any third party’s privacy rights via the Subscription Services; (vii) send or store viruses or malicious code via the Subscription Services; (viii) attempt to gain unauthorized access to the Subscription Services or its related software, systems, platforms or networks, including any form of security and/or penetration testing; (ix) use any components provided with the Subscription Services separately from the Subscription Services; or (x) distribute, rent, lease, sublicense or provide the Subscription Services to any third party or use it in a service bureau, outsourcing environment, or for the processing of third party data.
4. FEES AND PAYMENT.
- Fees. The fees payable for the Subscription Services and the payment period for such fees will be set forth in and paid in accordance with the Order. All invoices are due upon receipt of invoice.
- Late Fees. The unpaid balance of each late payment bears interest at a rate equal to the lesser of 1% per month or the maximum amount permitted by law. All fees are nonrefundable and BMC will not provide any refunds or credits for partially used periods of the Subscription Services.
- Taxes. Customer will pay or reimburse BMC or, when required by law, the appropriate governmental agency, for taxes of any kind, including sales, use, VAT, excise, customs duties, withholding, property, and other similar taxes (other than taxes based on BMC’s net income or arising from the employment relationship between BMC and its personnel) imposed in connection with the fees paid for the Subscription Services, which are exclusive of these taxes.
5. TERM, SUSPENSION AND TERMINATION.
- Term. This Agreement begins on the Effective Date and will remain in effect unless terminated pursuant to Section 5.2 below, regardless of the billing frequency selected in the Order.
- Termination.
(a)	Termination for Convenience. Customer may terminate this Agreement by providing BMC with at least 30 days prior written notice; provided, however, such termination will have no effect on Orders in effect at the time of such termination. Orders may not be terminated for convenience unless otherwise specified therein. Customer may notify BMC of its intent to terminate by emailing BMC at order_services@bmc.com.
(b) 	Termination for Cause. Either party may terminate this Agreement and/or an Order for cause: (i) upon 30 days’ written notice of a material breach to the other party if such breach remains uncured at the expiration of such period; or (ii) immediately if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
3. Suspension of Subscription Services for Cause. In addition to its other rights and remedies, BMC reserves the right, without liability to Customer, to immediately suspend any and all access to the Subscription Services if Customer commits a material breach of this Agreement or any relevant Order until such material breach is cured.
4. Effects of Termination. Upon termination pursuant to Section 5.2(b) above, all rights and licenses granted herein will terminate and Customer will make no further use of the Subscription Services. No termination will relieve the Customer of the obligation to pay any fees accrued or payable to BMC pursuant to any Order. Upon written request by Customer made within 30 days after the effective date of termination, BMC will make available to Customer a file containing the Customer Data. After such 30 day period, BMC shall have no obligation to maintain or provide any Customer Data and will thereafter delete Customer Data.
6. LIMITED WARRANTY.
6.1	Warranties and Limited Remedies. BMC warrants to Customer that:
- the online availability of the Subscription Services will be maintained in accordance with the service levels attached to the applicable Order, if any (the “Service Level Agreement” or “SLA”). Customer’s exclusive remedy and BMC’s sole obligation for breach of the warranty in this Section 6.1(a) is described in the Service Level Agreement; and
- the Subscription Services (i) will perform in substantial accordance with the then-current on-line User Guide available via the Subscription Services and (ii) will be performed in a manner consistent with industry standards reasonably applicable to the provision thereof. Customer’s exclusive remedy and BMC’s sole obligation for breach of the warranty in this Section 6.1(b) will be BMC’s use of commercially reasonable efforts to have the Subscription Services perform in substantial accordance with the User Guide, or replace the non-conforming portion of the Subscription Services within a reasonable period of time, or if BMC cannot have the Subscription Services perform in substantial accordance with the User Guide or replace the Subscription Services within such time period, then BMC will refund the amount paid by Customer for the Subscription Services, pro-rated from the date of the notice of the claim. Customer’s rights and BMC’s obligations in this Section 6.1(b) are conditioned upon Customer’s providing BMC with written notice of the claim, a complete description of the alleged defects and a specific reference to the User Guide to which such alleged defects are contrary.
6.2	Disclaimer. CUSTOMER ACKNOWLEDGES THAT, EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, BMC, ITS AFFILIATES AND LICENSORS MAKE NO WARRANTY, EXPRESS, IMPLIED OR STATUTORY WITH RESPECT TO THE SUBSCRIPTION SERVICES OR USE THEREOF. BMC, ITS AFFILIATES AND LICENSORS HEREBY EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY THAT SUBSCRIPTION SERVICES WILL BE UNINTERRUPTED, ERROR FREE OR WITHOUT DELAY, AND THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INTERFERENCE, NON-INFRINGEMENT AND INFORMATION CONTENT.
7. PROPRIETARY RIGHTS AND CONFIDENTIALITY.
- Proprietary Rights. BMC, its Affiliates or licensors retain all right, title and interest to the Subscription Services and all related intellectual property and proprietary rights. The Subscription Services are protected by applicable copyright, trade secret, industrial and other intellectual property laws. BMC owns all right, title and interest in all software, programming, documentation, templates, questionnaires, methodologies, models, charts, reports and any other items used to deliver the Subscription Services or made available to Customer as a result of the Subscription Services (“Service Items”) and access to and use of the relevant Service Items will be governed by the terms of this Agreement. BMC reserves any rights not expressly granted to Customer. Customer shall not access the Subscription Services in order to build a competitive product or service or copy any ideas, features, functions or graphics of the Subscription Services. “Confidential Information” means all proprietary or confidential information that is disclosed to the recipient (“Recipient”) by the discloser (“Discloser”), and includes, among other things (i) any and all information relating to products or services provided by a Discloser, its customer-related and financial information, software code, flow charts, techniques, specifications, development and marketing plans, strategies, and forecasts; (ii) as to BMC, and its licensors, the Subscription Services and Service Items; and (iii) the terms of this Agreement, including without limitation, pricing information. Confidential Information does not include information that Recipient can show: (a) was rightfully in Recipient’s possession without any obligation of confidentiality before receipt from the Discloser; (b) is or becomes a matter of public knowledge through no fault of Recipient; (c) is rightfully received by Recipient from a third party without violation of a duty of confidentiality; or (d) is or was independently developed by or for Recipient. Recipient may not disclose Confidential Information of Discloser to any third party or use the Confidential Information in violation of this Agreement. The Recipient (i) will exercise the same degree of care and protection with respect to the Confidential Information of the Discloser that it exercises with respect to its own Confidential Information and (ii) will not, either directly or indirectly, disclose, copy, distribute, republish, or allow any third party to have access to any Confidential Information of the Discloser. Notwithstanding the foregoing, Recipient may disclose Discloser’s Confidential Information to Recipient’s employees and agents who have need to know provided that such employees and agents have legal obligations of confidentiality substantially the same (and in no case less protective) as the provisions of this Agreement.
- Notification Obligation. If the Recipient becomes aware of any unauthorized use or disclosure of Discloser’s Confidential Information, then Recipient will promptly and fully notify the Discloser of all facts known to it concerning such unauthorized use or disclosure. In addition, if the Recipient or any of its employees or agents are required (by oral questions, interrogatories, requests for information, or documents in legal proceedings, subpoena, civil investigative demand, or other similar process) to disclose any of Discloser’s Confidential Information, the Recipient will not disclose the Discloser’s Confidential Information without providing the Discloser with commercially reasonable advance prior written notice to allow Discloser to seek a protective order or other appropriate remedy or to waive compliance with this provision. In any event, the Recipient will exercise its commercially reasonable efforts to preserve the confidentiality of the Discloser’s Confidential Information, including, without limitation, cooperating with Discloser to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded to the Confidential Information.
- Customer Data. As between BMC and Customer, Customer owns all rights, title and interest in and to Customer Data. Customer Data is deemed Confidential Information under this Agreement. BMC will use the Customer Data only as necessary to provide the Subscription Services in accordance with this Agreement. At any time during the term of the Subscription Services, Customer may request copies of all Customer Data from the Subscription Services. Customer is responsible for complying with all legal and contractual requirements, including its agreements with third parties. With the exception of Customer Data collected by the Subscription Services, Customer is solely responsible for the transmission of Customer Data to BMC and to the Subscription Services. Customer is solely responsible for the encryption of any Customer Data.
- Suggestions. Customer agrees that BMC shall have a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into any BMC products or services any suggestions, enhancement requests, recommendations or other feedback provided by Customer relating to the Subscription Services
8. DISCLAIMER OF DAMAGES AND LIMITS ON LIABILITY.
- DISCLAIMER OF DAMAGES. EXCEPT FOR EACH PARTY’S RESPONSIBILITIES IN SECTION 9, NEITHER PARTY OR ITS AFFILIATES ARE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES RELATING TO OR ARISING OUT OF THIS AGREEMENT OR THE SUBSCRIPTION SERVICES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST COMPUTER USAGE TIME, AND DAMAGE TO, OR LOSS OF USE OF, DATA), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND IRRESPECTIVE OF ANY NEGLIGENCE OF A PARTY OR WHETHER SUCH DAMAGES RESULT FROM A CLAIM ARISING UNDER TORT OR CONTRACT LAW.
- LIMITS ON LIABILITY. EXCEPT FOR EACH PARTY’S RESPONSIBILITIES IN SECTION 9, NEITHER PARTY OR ITS AFFILIATES SHALL HAVE AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SUBSCRIPTION SERVICES, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEEDING THE AMOUNTS ACTUALLY PAID BY AND DUE FROM CUSTOMER PURSUANT TO THE ORDER(S) GIVING RISE TO LIABILITY THAT ARE IN EFFECT AS OF SUCH DATE.
9. INFRINGEMENT CLAIMS.
- Indemnification by BMC. If a third party asserts a claim against Customer asserting that Customer’s use of the Subscription Services in accordance with this Agreement violates that third-party’s patent, trade secret or copyright rights (“Infringement Claim”), then BMC will, at its own expense: (a) defend or settle the Infringement Claim; and (b) indemnify Customer for any damages finally awarded against Customer based on infringement by the Subscription Services. If BMC believes the Subscription Services may violate a right, then BMC will, at its expense: (a) modify the Subscription Services, or (b) procure the right to continue using the Subscription Services, and if (a) or (b) are not commercially reasonable, terminate Customer's right to use the Subscription Services and issue a pro-rata refund for the unexpired pre-paid portion of such Subscription Services.
- Indemnification by Customer. Subject to the terms of this Agreement, if a third party asserts a claim against BMC asserting that the Customer Data or Customer’s use of the Subscription Services in violation of this Agreement violates that third-party’s patent, trade secret or copyright rights, or violates applicable law (“Claim”), Customer will, at its own expense: (a) defend or settle the Claim; and (b) indemnify BMC for any damages finally awarded against BMC based on the Claim.
- Indemnity Process. Neither party’s obligations under this Section will apply if: (a) the indemnifying party’s legal department does not receive prompt, detailed written notice of the Infringement Claim/Claim from the party being indemnified, (b) the indemnifying party is not able to retain sole control of the defense of the Infringement Claim/Claim and all negotiations for its settlement or compromise, or (c) the indemnifying party does not receive all reasonable assistance from the party being indemnified. Neither party will bind the indemnified party to a monetary obligation in a settlement or compromise, or make an admission on behalf of the indemnified party, without obtaining that party’s prior consent.
- THIS SECTION 9 CONTAINS EACH PARTY'S EXCLUSIVE REMEDIES AND THE INDEMNIFYING PARTY'S SOLE LIABILITY FOR INFRINGEMENT CLAIMS/CLAIMS, RESPECTIVELY.
10. EXPORT CONTROLS. Customer represents and warrants that it: a) will comply with the United States Export Administration Regulations and other U.S. or foreign export regulations; b) no individual accessing or using the Subscription Services is a citizen of or from an embargoed country (currently Iran, Syria, Sudan, Cuba and North Korea); c) is not prohibited from receiving the Subscription Services under such regulations; d) will not acquire the Subscription Services for a person who is restricted under such regulations; e) will not use the Subscription Services in contradiction to such regulations; and f) will not use the Subscription Services for prohibited uses, including but not limited to nuclear, chemical, missile or biological weapons related end uses. For Subscription Services exported from Ireland, EC No. 428/2009 sets up a Community regime for control of exports of dual-use items and technology, and it is declared that this Subscription Services is intended for civil purposes only. Therefore, Customer agrees to comply with both the U.S. regulations and those E.U. regulations and will not export in violation of the regulations and without all proper licenses. Customer’ failure to comply with these regulations will result in an automatic termination of the Agreement and all rights to the Subscription Services thereunder.
11. GOVERNING LAW AND DISPUTE RESOLUTION. A party will provide written notice to the other party of any controversy, dispute or claim arising out of or relating to this Agreement, or to the formation, interpretation, breach, termination, or validity thereof (“Controversy”). The parties shall engage in good faith negotiations to resolve the Controversy. Only if the Controversy is not resolved through good faith negotiations within 15 days of the sending of the written notice of Controversy, the Controversy may be submitted to litigation or binding arbitration, based on the place of incorporation of the parties, as follows:
- If both parties to this Agreement are entities incorporated under the law of any state in the United States, the Controversy shall be tried in either state or federal court located in Houston, Texas and the laws of the State of Texas shall govern. Both sides hereby submit to the exclusive jurisdiction of the courts in Houston, Texas and waive all defenses based on forum non conveniens.
- If both parties to this Agreement are entities incorporated in countries in the Europe, Middle East, or Africa regions, the arbitration shall be held in Amsterdam, Netherlands under the then-applicable rules of the International Chamber of Commerce and the substantive laws of the Netherlands will govern.
- If both parties to this Agreement are entities incorporated in countries in the Asia Pacific region, the arbitration shall be held in Singapore under the then-applicable rules of the Singapore International Arbitration Centre and the substantive laws of Singapore will govern.
- In all other instances, the arbitration shall be held in New York City, New York, under the then-applicable international rules of the American Arbitration Association and the substantive laws of the State of Texas will govern.
For all arbitrations conducted hereunder: (a) the arbitration shall be conducted in English; (b) the relevant arbitral institution shall determine the number of arbitrators, but any Controversy in which the amount in dispute is greater than $10 million USD shall be decided by three arbitrators, with each party having the right to select one arbitrator; (c) the costs of such arbitration shall be borne equally, pending the arbitrator’s award; (d) the arbitration award rendered shall be final and binding on the parties, shall not be subject to appeal to any court and shall be enforceable in any court having jurisdiction over the Parties; (e) the arbitration proceedings, award and pleadings shall all be confidential, unless disclosure of particular information is required for purposes of enforcing/challenging the award or to meet local securities law requirements; and (f) the party prevailing in arbitration shall be entitled to recover its reasonable attorneys’ fees and the necessary costs incurred in connection with the arbitration.
The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. Nothing in this Agreement shall be deemed as preventing either party from seeking immediate injunctive relief from any court having jurisdiction over the parties and the subject matter of the dispute.
12. The following BMC contracting entities apply to this Agreement:
Region | Contracting Entity | Address of Contracting Entity |
---|---|---|
United States and Latin America South (not a specified Central or South America country below) | BMC Software, Inc. | 2103 CityWest Boulevard, Houston, Texas 77042 |
Canada | BMC Software Canada Inc. | 50 Minthorn Boulevard, Suite 200 Markham, Ontario L3T 7X8 Canada |
EMEA (Europe, Middle East and Africa) | BMC Software Distribution B.V. | Boeing Avenue 245, 1119 PD Schiphol Rijk, The Netherlands |
Brazil | BMC Software do Brasil Ltda. | Av. das Nações Unidas, 8.501 – 22º Andar Condomínio Eldorado Business Tower São Paulo, Brasil – 05425-070 |
Mexico | BMC Software Distribution de México, S.A. de C.V. | Torre Esmeralda II Blvd. Manuel Avila, Camacho #36, Piso 23 Lomas de Chapultepec, CP11000, Mexico D.F. |
Argentina | BMC Software de Argentina S.A. | Ing. Butty 220 – Piso 18, Buenos Aires, Republica Argentina, C1001AFB |
S.E.A (Southeast Asia), Australia, New Zealand, Hong Kong, Taiwan | BMC Software Asia Pacific Pte Ltd | 600 North Bridge Road, #20-01/10 Parkview Square, Singapore 188778 |
China | BMC Software (China) Limited | Room 502, Level 5, Tower W1, The Towers, Oriental Plaza, No. 1 East Chang An Ave., Dong Cheng Dist., Beijing 100738, China |
Japan | BMC Software K.K. | Harmony Tower 24th Floor, 1-32-2 Honcho, Nakano-ku, Tokyo, 164-8721 |
Korea | BMC Software Korea Ltd | 24th Fl., ASEM Tower, 1517, Yeongdong-daero,Gangnam-gu, Seoul 135-798, Korea South |
13. U.S. FEDERAL ACQUISITIONS. This Section applies only to acquisitions of the commercial Subscription Services and Documentation subject to this Agreement by or on behalf of the United States Government, or by any prime contractor or subcontractor (at any tier) under any contract, grant, cooperative agreement or other activity with the United States Government. In the event the Subscription Services are delivered to the United States Government, the United States Government hereby agrees that the Subscription Services qualify as “commercial items” within the meaning of the Federal acquisition regulation(s) applicable to this procurement. The terms and conditions of this Agreement shall pertain to the United States Government’s use and disclosure of the Product, and shall supersede any conflicting contractual terms and conditions. The following additional statement applies only to acquisitions governed by DFARS Subpart 227.4 (October 1988): “Restricted Rights – Use, duplication and disclosure by the Government is subject to restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 (Oct. 1988).”
14. DATA PROTECTION. The processing of Customer Data under this Agreement is governed by the BMC Data Processing Agreement set forth on the Order.
15. VERIFICATION. Customer agrees that BMC or its agent may monitor the Subscription Services to ensure Customer’s compliance with the terms of this Agreement. If such monitoring reveals that Customer has exceeded the Capacity for the Subscription Services, Customer agrees to pay the applicable fees for additional capacity upon receipt of an invoice from BMC. If Customer to fails to pay fees for such additional capacity, BMC may suspend Customer’s access to the Subscription Services until such fees are paid in full.
16. MISCELLANEOUS TERMS. BMC is not liable for its failure to perform any of its obligations under this Agreement during any period in which performance is delayed by Customer or circumstances beyond BMC's reasonable control. The parties are independent contractors and this Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties. Customer will receive system notifications from BMC and its licensors, if applicable (i.e. planned downtime notices, etc). This Agreement, including the Attachments and Orders constitutes the entire agreement between Customer and BMC and supersedes any prior or contemporaneous negotiations or agreements, whether oral or written concerning the Subscription Services. There are no representations, promises, warranties, covenants, or undertakings between the parties other than those expressly set forth in this Agreement. There are no third-party beneficiaries to this Agreement; Customer is not entering into a contractual relationship with BMC’s licensors and BMC’s licensors have no liability to Customer. Except as provided in Section 2 above, no modification or waiver of any provision hereof will be effective unless made in a writing signed by both BMC and Customer. Customer may not assign or transfer this Agreement or the Subscription Services to a third party, whether by merger, operation of law, or otherwise. Should any provision of this Agreement be invalid or unenforceable, the remainder of the provisions will remain in effect. Any additional or conflicting terms of any Customer purchase order are rejected by BMC and do not apply. The Subscription Services may contain hyperlinks to websites controlled by parties other than BMC. BMC is not responsible for and does not endorse the content or accept any responsibility for Customer’s use of these websites. Customer should refer to the policies posted by other websites regarding privacy and other topics regarding data privacy before using them.
Attachments incorporated into Agreement |
Attachment A – Platform Services Attachment |
Attachment B – Consulting Services Attachment |
Attachment C – On Premise Subscription Services Attachment |
PLATFORM SERVICES ATTACHMENT
to the
BMC CLOUD SERVICES MASTER AGREEMENT
Except as otherwise provided herein, the terms of the Cloud Services Master Agreement (the “Base Agreement”) are incorporated into this Platform Services attachment (the “Attachment”). Together, this Attachment and the Base Agreement (as incorporated into this Attachment) are referred to as the “Agreement” for purposes of Customer’s purchase of Platform Services, only if the Platform Services are set forth on an Order referencing the Agreement. For purposes of this Agreement, the term “Subscription Services” as defined in the Base Agreement shall be extended to include the Platform Services. In the event of a conflict between the Base Agreement and the terms of this Attachment, the terms of this Attachment will control for Customer’s purchase of the Platform Services only.
- SCOPE. Subject to the terms of this Agreement, BMC will provide Customer with access to the Platform Service named in the applicable Order. Customer may only use the Platform Services to store, retrieve, query, serve, and process Customer Data that is owned, licensed or lawfully obtained by Customer. As part of Customer’s subscription to the Platform Services, Customer may be allowed to run certain Applications on the Platform Services that are either (i) sold by BMC, (ii) sold by a Third Party Publisher, or (iii) owned or licensed by Customer.
- DEFINITIONS.
- “Application” is the object code, its definitional structures, and data created to fulfill a particular purpose, which runs on the Platform Services. An Application may also include its documentation and User Guide.
- “BMC Application Services” means an Application that is licensed by BMC to customers, including all items delivered by BMC to Customer under Support related to such Application.
- “Customer Applications” means Applications that are owned or licensed by Customer, not including any Third Party Applications, and which run on the Platform Services.
- “Customer Data” means all information uploaded or entered by Customer to the Platform Services, excluding Customer Applications.
- “Data Processing Agreement” means the applicable Data Processing Agreement attached to each Order.
- “Platform Services” means the BMC Innovation Suite and its capabilities to run Applications. The specific Platform Services being purchased by Customer will be identified in the Order.
- “Third Party Applications” means Applications that are owned by a Third Party Publisher with a valid independent software vendor agreement in place with BMC, and are licensed by said Third Party Publisher to customers.
- “Third Party Publisher” means a party other than BMC or a BMC Affiliate that is the owner and licensor of a Third Party Application, and has a valid independent software vendor agreement in place with BMC. For the sake of clarity, Customer is informed that Third Party Publishers are not BMC Subcontractors.
- BMC PLATFORM SERVICES.
- BMC Platform Services Support. BMC will provide Support only for Platform Services and BMC Application Services. Customer is responsible for its own support for Customer Applications and Third Party Applications.
- Notifications to Customer. Any general notifications from BMC Operations to Customer will be sent to the Customer contact stated in the Customer Information (ship to) section of the Order. The Customer contact in the Order has been assigned by Customer as the Customer contact for operational issues that may arise. Customer shall notify BMC of any change to the Customer contact details in writing, which may include via e-mail.
- Customer Data Back-up and Recovery. BMC provides daily incremental and weekly full system backups of the production environment in a secure off-site facility within the same country as the primary facility, using a 90 day retention window for data recovery purposes.
- Subcontractors. For the sake of clarity, Customer is informed that Third Party Publishers are not BMC Subcontractors.
- Customer Responsibilities. In Addition to the Customer Responsibilities set forth in the Base Agreement, Customer may not (i) transfer an Application outside of the Platform Services; or (ii) tamper with or circumvent any controls or make unauthorized copies of an Application.
- CUSTOMER APPLICATIONS AND THIRD PARTY APPLICATIONS.
- Any Third Party Applications or Customer Applications that run on the Platform Services are hereby excluded from the defined terms “Subscription Services”, “BMC Application Services” and “Platform Services”. Such Third Party Applications are governed by the terms provided with the Third Party Applications, and are by and between Customer and the applicable Third Party Publisher. Customer acknowledges and agrees that this Agreement does not govern Customer’s subscription, use and access of any Third Party Applications or Customer Applications, and said Third Party Applications and Customer Applications are specifically excluded from this Agreement.
- Customer may utilize the BMC Innovation Suite for Developers to create an Application to run on the Platform Services. Customer’s use of the BMC Innovation Suite for Developers is exclusively governed by the BMC Developer Program Agreement, a copy of which may be viewed at https://www.bmc.com/content/dam/bmc/corporate/DVA.pdf, and such use is not governed by the terms of this Agreement. Customer’s development of an Application must meet the best practices development guidelines set forth in the User Guide. Each Customer Application shall at all times materially conform to policies and best practices set forth in the User Guide. Prior to the deployment of any Customer Applications in a production or non-production environment of the Platform Services, Customer must conduct security and functional tests of each Customer Application and submit the results of such tests to BMC for review. BMC reserves the right to reject Customer’s deployment request of a Customer Application based on the results of Customer’s security and functional tests. Additionally, BMC reserves the right, during the term of this Agreement, to request Customer conduct additional security and functional tests and provide the results of said tests to BMC for review. Notwithstanding the foregoing, Customer must ensure that at all times Customer Applications are secure.
- License to Customer Applications. Subject to the terms and conditions of this Agreement, Customer hereby grants BMC a worldwide, limited, nonexclusive license during the term of the applicable Order for the Platform Services to host, copy, transmit, adapt and display Customer Applications solely for the purpose of fulfilling BMC’s obligations under this Agreement.
- Functionality of Customer Applications. Customer is solely responsible for the operation of Customer Applications, including but not limited to any information stored in or transmitted by Customer Applications. Customer is responsible for monitoring the usage of each Customer Application. Customer is responsible for the configuration, functionality, performance, compliance with applicable data protection laws and security of all Customer Applications, including any interfaces used to connect to Customer Applications.
- Use of Customer Applications. Customer has sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of Customer Applications and all Customer Data entered therein by Customer, its Users or on Customer’s behalf, the means by which Customer acquired such Customer Data, and the use of such Customer Data. Without limiting Customer’s obligations under the terms of this Agreement, Customer must (i) provide any necessary notice to, and obtain any necessary consent from, Users for the collection, use, transfer, and storage of Customer Data (including by BMC), and (b) collect, use, transfer, and store Customer Data in accordance with any privacy notice you provide, and all applicable laws.
- Use of Third Party Applications. Customer is responsible for monitoring its usage of each Third Party Application, and such Third Party Publisher’s usage and license compliance is governed by the terms of the agreement entered into between Customer and the Third Party Publisher. Customer is responsible for all applicable fees associated with Customer’s use of Third Party Applications. Please note, Customer’s usage of such Third Party Applications may incur additional license fees between Customer and the applicable Third Party Publisher, as well as additional Platform Services fees.
- Customer will provide information or other materials related to a Customer Applications as reasonably requested by BMC to verify Customer’s compliance with the Agreement and the User Guide. BMC may monitor Customer Applications and Third Party Applications running on the Platform Services to verify Customer’s compliance with the Agreement. Customer will not block or interfere with BMC’s monitoring. Customer will cooperate with BMC to identify the source of any problem with the Platform Services that BMC reasonably believes may be attributable to Customer Applications or Third Party Applications, or any Customer Data.
- If BMC reasonably believes any Customer Data, Customer Applications or Third Party Applications violates the law, infringes or misappropriates the rights of any third party or otherwise violates a material term of the Agreement (including the User Guide) (“Prohibited Content”), BMC will notify Customer of the Prohibited Content and may request that such content be removed from the Platform Services or access to it be disabled. If Customer does not remove or disable access to the Prohibited Content within two (2) business days of BMC’s notice, BMC may remove or disable access to the Prohibited Content or suspend the Platform Services to the extent BMC is not able to remove or disable access to the Prohibited Content. Notwithstanding the foregoing, BMC may remove or disable access to any Prohibited Content without prior notice in connection with illegal content, where the content may disrupt or threaten the Platform Services, pursuant to the Digital Millennium Copyright Act or as required to comply with law or any judicial, regulatory or other governmental order or request. In the event that BMC removes content without prior notice, BMC will provide prompt notice to Customer unless prohibited by law.
- Customer’s use of the Platform Services, BMC Application Services, Customer Applications and/or Third Party Applications may be immediately suspended and/or terminated due to (i) reasonable security threats regarding the Platform Services, Customer Applications or Third Party Applications, (ii) Customer Applications or Third Party Applications interfering with, disrupting or threatening the integrity or performance of the Platform Services or BMC Application Services, or (iii) a third party’s claim that Customer Applications or Third Party Applications may violate applicable law or third party rights. In the event of (i) or (ii) above apply to Customer Applications, Customer is required to remediate any such issue to BMC’s commercially reasonable satisfaction before use of Customer Applications can resume.
- Customer’s access to Third Party Applications may be immediately suspended and/or terminated by BMC at the direction of the Third Party Publisher. Customer acknowledges and understands that access to Customer Applications and/or Third Party Applications used in connection with the Platform Services may be suspended due to Customer’s non-payment to BMC for use and access to the Platform Services or other breach of this Agreement. In no case will any such suspension or termination under the terms of this Agreement give rise to any BMC liability to Customer for a refund or other compensation.
- BMC may conduct periodic security evaluations of all Customer Applications, which may include security review, a qualitative assessment involving review of a completed questionnaire, and an interview with appropriate Customer personnel. BMC conducts such security evaluations for its own benefit and Customer may not rely on the successful results of such evaluation. BMC may conduct such testing itself or, subject to the confidentiality obligations set forth in the Agreement, through a third party. BMC will provide reasonable notice to Customer before starting such testing. BMC will also cooperate reasonably with Customer to minimize the effects of such testing on Customer’s business and operations. Customer agrees to cooperate reasonably with such testing. Despite the foregoing, such testing may in rare cases cause downtime or other adverse effects on Customer Applications, Third Party Applications, the Platform Services or other BMC Application Services used by Customer. Any nonpublic information to which BMC obtains access in the course of such security testing will be considered Customer’s Confidential Information.
- Customer Responsibilities. Customer will maintain the confidentiality of all authentications and passwords for the Platform Services, Customer Applications and Third Party Applications, and immediately notify BMC if it becomes aware that an unauthorized party has gained access to such Platform Services, Customer Applications and Third Party Applications. Customer will (i) use reasonable efforts to prevent unauthorized access to, or use of, Customer Applications and Third Party Applications, and notify BMC promptly of any such unauthorized access or use, and (ii) comply with all applicable laws in using the Customer Applications and Third Party Applications. Customer is responsible for the creation and implementation of a privacy policy and end user license agreement, if applicable, which will set forth the guidelines of how said Users may utilize the Customer Applications.
- WARRANTIES. Customer warrants to BMC that: (a) each Customer Application will perform materially in accordance with the User Guide; (b) Customer owns all right, title, and interest in and to Customer Data, including but not limited to any Customer Data uploaded or entered into Customer Applications or Third Party Applications; (c) Customer has the necessary rights to use and access any Customer Applications and Third Party Applications deployed in a production or non-production environment of the Platform Services; (d) Customer has all rights in the Customer Data and Customer Applications necessary to grant the rights contemplated by this Agreement; (e) none of the Customer Data or Customer Applications or Users’ use of Customer Data or Customer Applications will violate the Agreement and the User Guide; (f) Customer’s security and functional tests of Customer Applications was conducted in a commercially reasonable manner and the results of said tests provided to BMC for review are correct and valid; and (g) none of the Third Party Applications or Users’ use of Third Party Applications will violate the Agreement or the User Guide.
- SECURITY AND DATA PROTECTION.
- Customer and Third Party Publishers shall agree upon their respective obligations with respect to the processing of personal data by Third Party Publishers as per Section 4.1 of this Attachment.
- BMC takes no responsibility with regard to Customer Data content (i) processed on behalf of Customer and/or handling as per Customer’s instructions and/or (ii) processed by Third Party Publishers and/or through the use by Customer of Third Party Applications. Customer shall indemnify and hold harmless BMC from any failure to comply with its obligations set forth in this Agreement according to the terms of Section 9.2 (Indemnification by Customer) in the Base Agreement.
- INDEMNIFICATION. For purposes of this Agreement, the term “Claim” as defined in Section 9.2 (Indemnification by Customer) of the Base Agreement shall be extended to include if a third party asserts a claim against BMC asserting that a Customer Application violates that third-party’s patent, trade secret or copyright rights, or otherwise harms the third party.
- LIMITATION OF LIABILITY. Customer’s breach of Section 4.12 of this Attachment is hereby excluded from (i) the disclaimer of damages as set forth in Section 8.1 of the Base Agreement, and (ii) the limits on liability as set forth in Section 8.2 of the Base Agreement.
- INSURANCE. Customer will provide and maintain cyber liability insurance in the amount of one million dollars ($1,000,000.00) for losses arising out of Customer’s provision of a Customer Application on the Platform Services under this Agreement.
ATTACHMENT B
CONSULTING SERVICES ATTACHMENT
to the
BMC CLOUD SERVICES MASTER AGREEMENT
Except as otherwise provided herein, the terms of the Cloud Services Master Agreement (the “Base Agreement”) are incorporated into this Consulting Services attachment (the “Attachment”). Together, this Attachment and the Base Agreement (as incorporated into this Attachment) are referred to as the “Agreement” for purposes of Customer’s purchase of Consulting Services, only if Consulting Services are set forth on an Order referencing the Agreement. For purposes of this Agreement, the term “Subscription Services” as defined in the Base Agreement shall be extended to include Consulting Services. In the event of a conflict between the Base Agreement and the terms of this Attachment, the terms of this Attachment will control for Customer’s purchase of Consulting Services only. The parties agree that the following Sections of the Base Agreement do not apply to the Consulting Services provided under this Attachment: Section 3.2 (Support), Section 4 (Fees and Payment), Section 6 (Limited Warranty) and Section 9 (Infringement Claims).
- scope. bmc agrees to render to Customer Consulting Services under the terms of this Agreement and as further described in an Order. BMC will render the Consulting Services in the location(s) as set forth in the Order. Neither execution of this Agreement, nor anything contained herein, shall obligate either party to enter into an Order. The performance of the Consulting Services will not relieve or alter the rights, obligations and responsibilities of Customer and of the licensing BMC affiliate with respect to BMC software products under the applicable software license Agreement.
- SERVICE FEES AND EXPENSES. The fees payable to BMC for the Consulting Services to be rendered will be detailed in the Order. BMC will submit invoices to Customer for such fees and incurred expenses either upon completion of the Consulting Services, or at stated intervals, in any case in accordance with the applicable Order. Customer shall pay amounts invoiced within 30 days following receipt of the invoice.
- EDUCATION. Customer may acquire Learning Pass Credits and Education Services (collectively, “BMC Education”) on a Order. The BMC Education terms that govern such Orders are set forth in the Education Program Guide located at http://media.cms.bmc.com/documents/education-program-guide.pdf, and is incorporated herein by this reference.
- STATEMENTS OF WORK. Some Consulting Services may require the execution of a Statement of Work. Such requirement will be set forth in an Order. In the event of any conflict between the terms of a Statement of Work and this Agreement, the Agreement shall prevail except for matters of service fees, payment and reimbursement of expense terms if further specified in the Statement of Work. During the term of an applicable Statement of Work, and for a period of six months thereafter, neither party will solicit for employment any employees, agents, or subcontractors of the other party or its affiliates who, within six months prior to such solicitation, had contact with the soliciting party based in whole or in part upon Consulting Services provided under this Agreement. The restrictions in this section shall be deemed not to apply to general solicitations for employment posted on Internet job sites or printed in newspapers or trade or professional journals.
- PROPRIETARY RIGHTS AND RIGHTS IN DELIVERABLES.
- Ownership of Materials Used in the Consulting Services. Unless specifically provided in an Order, Customer shall supply all of the facilities; equipment; supplies; computer programs; information about Customer’s business, systems, software and needs; and other materials necessary for completion of the Consulting Services (“Customer Property”), and BMC shall supply the people described in the Order, the know-how and the tools necessary to provide the Consulting Services, which may include, among other things, software, templates, questionnaires, graphs, methodologies, models, charts and reports (“BMC Property”). Customer Property and copies and modifications of Customer Property will remain the sole property of Customer or if applicable, Customer’s licensors, and BMC Property and copies and modifications of BMC Property will remain the sole property of BMC or if applicable, BMC’s licensors. Customer hereby grants to BMC a royalty-free, paid-up, non-exclusive, non-sublicensable and non-transferable license to use the Customer Property for the purpose of providing the Consulting Services.
- Deliverables. Deliverables are those created under the Order, including, but not limited to, software, software scripts, routines, libraries or other code, or appliances, methodologies, templates, tools, policies, records, working papers, reports, methodologies, know-how, data, or other intellectual property, written or otherwise, including any derivative works or modifications to the above, whether pre-existing or created during the performance of the Consulting Services and all proprietary and intellectual property rights embedded therein delivered as a result of the Consulting Services as specified under the Order. BMC owns all right, title and interest in the Deliverables. Provided Customer has paid in full for the Consulting Services that resulted in the Deliverables, BMC will deliver the Deliverables to Customer in accordance with the applicable Order. Subject to compliance with the terms of this Agreement and the applicable Order, BMC grants Customer a non-exclusive, non-transferable, non-sublicensable, royalty-free, paid-up license to use, create derivative works of and modify all Deliverables solely for its internal business operations. In the event of a subcontracting arrangement, Customer may pass license rights to the Deliverables under this Agreement to a third party subject to all of the terms and conditions of this Agreement.
- Copyright Notice. Each party agrees to reproduce the copyright notice and any other legend or ownership notice on any copies made under the licenses granted pursuant to this Section 5.
- Retention. Customer acknowledges that BMC provides similar services to other customers and that nothing in this Agreement shall be construed as operating to prevent BMC from carrying on such business. Further BMC may use ideas, concepts, or know-how developed or acquired by BMC during performance of the Consulting Services to the extent by BMC’s personnel as impressions and general learning.
- LIMITED WARRANTY. BMC warrants that it will perform the Consulting Services in conformance with generally accepted practices within the software services industry and in accordance with the Order. Customer must notify BMC of any breach of this warranty no later than 90 days after completion of the Consulting Services under the Order. Customer’s exclusive remedy and BMC’s entire liability under this warranty shall be for BMC to re-perform any non-conforming portion of the Consulting Services within a reasonable period of time, or if BMC cannot remedy the breach during such time period then refund the portion of the fee attributable to such non-conforming portion of the Consulting Services under the Order. This warranty will not apply to the extent Customer, its contractors or agents have modified any Deliverable, unless otherwise authorized by BMC in writing.
THIS WARRANTY AND CONDITION IS IN LIEU OF ALL OTHER WARRANTIES AND CONDITIONS. THERE ARE NO OTHER EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS, INCLUDING THE IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
7. INSURANCE. BMC will provide and maintain the following insurance, but only for losses arising out of BMC’s provision of Consulting Services under this Attachment:
- Worker’s Compensation insurance as prescribed by the law of the state applicable to the employees performing the Consulting Services;
- Employer’s Liability insurance with a limit of one million US dollars ($1,000,000) for each occurrence;
- Commercial General Liability insurance with one million US dollars ($1,000,000) per occurrence combined single limit and five million US dollars ($5,000,000) general aggregate, including coverage for Products Liability and Completed Operations;
- Automobile Liability insurance, including coverage for Hired and Non-owned vehicles of one million US dollars ($1,000,000) for combined single limit for bodily injury and/or property damage; and
- Professional Liability insurance covering Errors and Omissions in the amount of one million US dollars ($1,000,000) for each occurrence and in the aggregate associated with Consulting Services performed under this AGREEMENT.
8. Infringement INDEMNITY.
- If a third party asserts a claim against Customer asserting that Customer’s use of a Deliverable in accordance with this Agreement violates that third-party’s patent, trade secret or copyright (“Customer Infringement Claim”), then BMC will, at its own expense: (a) defend or settle the Customer Infringement Claim; and (b) indemnify Customer for any damages finally awarded against Customer, but only if: Customer promptly notifies BMC of the Customer Infringement Claim, BMC retains sole control of the defense of the Customer Infringement Claim and all negotiations for its settlement or compromise, and Customer provides all reasonable assistance requested by BMC. BMC’s obligations above will not apply if the Customer Infringement Claim is based on (i) the use of the Deliverable in combination with products not supplied or approved by BMC in writing or in the Deliverable's user manuals, (ii) modification of the Deliverable other than by BMC, or (iii) the failure of Customer to use any updates to such Deliverable within a reasonable time after such updates are made available to Customer. If BMC believes a Deliverable may violate a right, then BMC will, at its expense: (a) modify the Deliverable, or (b) procure the right to continue using the Deliverable, and if (a) or (b) are not commercially reasonable, terminate Customer's right to use the Deliverable and issue a refund prorated over five years from the completion date of the related Order.
- If a third party asserts a claim against BMC asserting that BMC’s use of Customer Property in accordance with this Agreement violates that third-party’s patent, trade secret or copyright (“BMC Infringement Claim”), then Customer will, at its own expense: (a) defend or settle the BMC Infringement Claim; and (b) indemnify BMC for any damages finally awarded against BMC, but only if: BMC promptly notifies Customer of the BMC Infringement Claim, Customer retains sole control of the defense of the BMC Infringement Claim and all negotiations for its settlement or compromise, and BMC provides all reasonable assistance requested by Customer.
- This Section 8 contains each party’s exclusive remedy and sole liability for Infringement Claims.
9. Mutual Indemnity. Each party shall indemnify and hold harmless the other party from all claims, liabilities or expenses for physical damage to real property or tangible personal property and bodily injury, including death, to the extent caused by the gross negligence or willful misconduct of the indemnifying party’s employees or contractors arising out of this Agreement and while at the Customer’s premises. The foregoing indemnities are contingent upon the party seeking indemnity giving prompt written notice to the indemnifying party of any claim, demand or action, and cooperating with the indemnifying party in the defense or settlement of any such claim, demand or action.
10.INDEPENDENT CONTRACTOR. All of the services performed by BMC under this Agreement will be performed as an independent contractor.
ATTACHMENT C
ON PREMISE SUBSCRIPTIONS ATTACHMENT
to the
BMC CLOUD SERVICES MASTER AGREEMENT
Except as otherwise provided herein, the terms of the Cloud Services Master Agreement (the “Base Agreement”) are incorporated into this On Premise Subscriptions attachment (the “Attachment”). Together, this Attachment and the Base Agreement (as incorporated into this Attachment) are referred to as the “Agreement” for purposes of Customer’s purchase and ongoing use of On Premise Subscriptions, only if On Premise Subscriptions are set forth on an Order referencing the Agreement. For purposes of this Agreement, the term “Subscription Services” as defined in the Base Agreement shall be extended to include On Premise Subscriptions. In the event of a conflict between the Base Agreement and the terms of this Attachment, the terms of this Attachment will control for Customer’s purchase of On Premise Subscriptions only. The parties agree that the following Sections of the Base Agreement do not apply to the On Premise Subscriptions provided under this Attachment: Section 3.4 (Customer Responsibilities and Restrictions), Section 6 (Limited Warranty) and Section 14 (Verification).
- DEFINITIONS.
- "Documentation" means the technical publications relating to the software, such as release notes, license entitlement descriptions, reference, user, installation, systems administrator and technical guidelines, included with the On Premise Subscription.
- “Licensed Capacity” is the amount of each On Premise Subscription licensed as established in the Order.
- “On Premise Subscription” is the object code of the software and all accompanying Documentation delivered to Customer, including all items delivered by BMC to Customer under Support.
- LICENSE. Subject to the terms, conditions, payment requirements and restrictions set forth in this Agreement, BMC grants Customer a non-exclusive, non-transferable, non-sub-licensable term license to install in the Territory, access and use the On Premise Subscription during the term specified on the Order (i) up to the Licensed Capacity, (ii) for Customer’s and its Affiliates internal business operations, (iii) in accordance with the Documentation and the applicable Order, and (iv) make one copy of the On Premise Subscription for archival purposes only (collectively a "License"). Affiliates may use and access the On Premise Subscriptions under the terms of this Agreement, and Customer is responsible for its Affiliates compliance with the terms of this Agreement.
- RESTRICTIONS. Customer will not: (a) copy, operate or use any On Premise Subscription in excess of the applicable Licensed Capacity or other than as set forth in the License above; (b) modify, delete or remove any ownership, title, trademark, patent or copyright notices (“Identification”) from any On Premise Subscription, or copy or partial copy of an On Premise Subscription; (c) disassemble, reverse engineer, decompile or otherwise attempt to derive any On Premise Subscription source code from object code, except to the extent expressly permitted by applicable law despite this limitation without possibility of contractual waiver; (d) distribute, rent, lease, sublicense or provide the On Premise Subscription to any third party; (e) use the On Premise Subscriptions in an outsourcing or service bureau environment on behalf of non-Affiliate third parties, or allow the On Premise Subscriptions to be used by an outsourcing or service bureau provider on Customer’s behalf; (f) provide a third party with the results of any functional evaluation, or performance tests, without BMC's prior written approval; or (g) attempt to disable or circumvent any of the licensing mechanisms within the On Premise Subscription.
- ON PREMISE SUBSCRIPTION PERFORMANCE WARRANTY. BMC warrants that (a) the On Premise Subscription will perform in substantial accordance with its Documentation for a period of one year from the date of the first Order, (b) BMC has used commercially reasonable efforts consistent with industry standards to scan for and remove software viruses, and (c) other than passwords that may be required for the operation of the On Premise Subscription, BMC has not inserted any code that is not addressed in the Documentation and that is designed to delete, interfere with or disable the normal operation of the On Premise Subscription in accordance with the License. This warranty will not apply to any problems caused by hardware, Computers, or software other than the On Premise Subscription, or misuse of the On Premise Subscription, use of the On Premise Subscription other than as provided by the applicable License, modification of the On Premise Subscription, or claims made either outside the warranty period or not in compliance with the notice and access requirements set forth below. No warranty is provided for additional Licensed Capacity, On Premise Subscription provided pursuant to Support.
BMC’s entire liability, and Customer’s exclusive remedy, for breach of the above warranty is limited to: BMC’s use of commercially reasonable efforts to have the On Premise Subscription perform in substantial accordance with its Documentation, or replacement of the non-conforming On Premise Subscription within a reasonable period of time, or if BMC cannot have the On Premise Subscription perform in substantial accordance with its Documentation replace the On Premise Subscription within such time period, then BMC will refund the amount paid by Customer for the License for that On Premise Subscription. Customer’s rights and BMC's obligations in this Section are conditioned upon Customer’s providing BMC during the warranty period (i) full cooperation and access to the On Premise Subscription in resolving any claim; and (ii) written notice addressed to the BMC Legal Department that includes notice of the claim, a complete description of the alleged defects sufficient to permit their reproduction in BMC’s development or support environment, and a specific reference to the Documentation to which such alleged defects are contrary.
EXCEPT FOR THE EXPRESS WARRANTIES IN THIS ATTACHMENT, THE ON PREMISE SUBSCRIPTION IS PROVIDED WITH NO OTHER WARRANTIES WHATSOEVER, AND BMC, ITS AFFILIATES AND LICENSORS DISCLAIM ALL OTHER WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. BMC DOES NOT WARRANT THAT THE OPERATION OF THE ON PREMISE SUBSCRIPTION WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT ALL DEFECTS CAN BE CORRECTED.
5. DELIVERY. For On Premise Subscriptions that are delivered electronically, upon request from BMC, Customer agrees to provide BMC with documentation supporting that the designated On Premise Subscription was received electronically. If Customer accepts any On Premise Subscription in a non-electronic format, there may be an additional charge and it is the sole responsibility of Customer to bear any sales/use tax obligation, penalties, and interest. All On Premise Subscriptions are licensed FCA (“Free Carrier” as per Incoterms 2000) shipping point. The On Premise Subscriptions are accepted on the date BMC delivers the On Premise Subscription to the Customer either physically or by providing access codes for electronic download, whichever occurs first, however, such acceptance will not affect the On Premise Subscription Performance Warranty provided in this Agreement.
6. AUDIT. If requested by BMC, and not more than once a year, Customer agrees to deliver to BMC, within 30 days of such request, as specified by BMC either (a) periodic product usage reports generated from specific products or (b) written periodic product usage reports, to be provided solely when the product does not generate reports (“Report”). Additionally, if requested by BMC not more than once a year, Customer agrees to allow BMC to perform an audit (“Audit”) at the locations where the On Premise Subscriptions are installed, during normal business hours to ensure compliance with the terms of this Agreement. Customer agrees to cooperate during any such Audit and to provide reasonable access to its information and systems. If an Audit or Report reveals that Customer has exceeded the Licensed Capacity for a On Premise Subscription, Customer agrees to pay the applicable fees for additional capacity upon receipt of invoice. If the understated capacity exceeds 5% of the Licensed Capacity of the applicable On Premise Subscription, then Customer agrees to also pay BMC’s reasonable costs of conducting the audit.
Data Privacy Notice
Effective May 25th 2022
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How BMC will use your Personal Information:
BMC Software Inc. ("BMC") collects personal information ("Personal Information") when you ("You") register and complete this registration form ("Registration Form"). BMC adheres to its Data Privacy Binding Corporate Rules Policy ("BCR Policy") approved by the European data protection authorities with respect to compliance with data protection laws and specifically to transfers of Personal Information of employees, customers, resellers, suppliers, service providers and other third parties wherever it is collected and used in conjunction with BMC business activities.
When You complete this Registration Form, You understand and agree that BMC may process and share your Personal Information that you provide for the following purposes in accordance with its BCR Policy and Privacy Policy:
- To grant You access to services and solutions offered by BMC and provide You access to the domain name BMC.com hosted on behalf of BMC and its affiliates by Adobe Systems, Inc.;
- To authorize the transfer of your Personal Information to BMC authorized third parties for the purpose of delivering BMCs services and solutions to You as described below:
When You complete this Registration Form, You understand and agree that BMC may process and share your Personal Information that you provide to grant You access to services and solutions offered by BMC and provide You access to the domain name BMC.com hosted on behalf of BMC and its affiliates by Adobe Systems Incorporated, a US company with international operations and headquartered at 345 Park Avenue, San Jose, CA 95110, USA, and Adobe Systems Software Ireland Limited, 4-6 Riverwalk, City West Business Campus, Saggart, Dublin 24, IRELAND (“Adobe”). Adobe will handle Your Personal Information as per its privacy policy which You can find at https://www.adobe.com/privacy/policy.html. Adobe will collect, process and store Your Personal Information on behalf of BMC and its affiliates on servers located in the United States.
Access to BMC Support: When You complete this Registration Form to Access to BMC Support services, You understand and agree that BMC may process and share your Personal Information that you provide to grant You access to the BMC Support website hosted on behalf of BMC and its affiliates by Salesforce.com, Inc. ("Salesforce"), a US company with international operations and headquartered at The Landmark @ One Market, Suite 300, San Francisco, California 94105 USA. Salesforce will handle Your Personal Information as per its privacy policy which You can find at http://www.salesforce.com/company/privacy/. Salesforce will collect, process and store Your Personal Information on behalf of BMC and its affiliates on servers located in the United States.
Access to BMC Academy: When You complete this Registration Form to Access to BMC Academy services, You understand and agree that BMC may process and share your Personal Information that you provide to grant You access to the BMC Academy website hosted on behalf of BMC and its affiliates by Cornerstone OnDemand, Inc. ("Cornerstone"), a US company with international operations and headquartered at 1601 Cloverfield Blvd., Suite 620 South, Santa Monica, California 90404, USA. Cornerstone will handle Your Personal Information as per its privacy policy which You can find at http://www.cornerstoneondemand.com. Cornerstone will collect, process and store Your Personal Information on behalf of BMC and its affiliates on servers located in the United States and/or the United Kingdom.
Access to BMC Community: When You complete this Registration Form to Access to BMC Community services, You understand and agree that BMC may process and share your Personal Information that you provide to grant You access to the BMC Community website hosted on behalf of BMC and its affiliates by Salesforce.com, Inc. ("Salesforce"), a US company with international operations and headquartered at The Landmark @ One Market, Suite 300, San Francisco, California 94105 USA.
Access to Sales Edge: When You complete this Registration Form to Access to Sales Edge, You understand and agree that BMC may process and share your Personal Information that you provide to grant You access to the Sales Edge website hosted on behalf of BMC and its affiliates by Seismic Software, Inc. ("Seismic"), a US company with international operations and headquartered at 12770 El Camino Real, Suite 300, San Diego, CA 92139, USA. Seismic will handle Your Personal Information as per its privacy policy which You can find at http://seismic.com/privacy-policy/. Seismic will collect, process and store Your Personal Information on behalf of BMC and its affiliates on servers located in the United States.
Business Facilitation: When you complete this Registration Form to access services at BMC, You understand and agree that BMC may process and share your Personal Information that you provide for business facilitation hosted on behalf of BMC and its affiliates by Salesforce.com, Inc. ("Salesforce"), a US company with international operations and headquartered at The Landmark @ One Market, Suite 300, San Francisco, California 94105 USA. Salesforce will handle Your Personal Information as per its privacy policy which You can find at http://www.salesforce.com/company/privacy/. Salesforce will collect, process and store Your Personal Information on behalf of BMC and its affiliates on servers located in the United States.
Managing your Personal Data
For more information explaining how we use Your Personal Information please see our Privacy Policy and our BCR Policy. For any questions or requests to access, update or delete to Your Personal Information, you can contact BMC at Privacy@BMC.com.
Effective November 22nd 2020 to May 25th 2022
DownloadTable of Contents
How BMC will use your Personal Information:
BMC Software Inc. ("BMC") collects personal information ("Personal Information") when you ("You") register and complete this registration form ("Registration Form"). BMC adheres to its Data Privacy Binding Corporate Rules Policy ("BCR Policy") approved by the European data protection authorities with respect to compliance with data protection laws and specifically to transfers of Personal Information of employees, customers, resellers, suppliers, service providers and other third parties wherever it is collected and used in conjunction with BMC business activities.
When You complete this Registration Form, You understand and agree that BMC may process and share your Personal Information that you provide for the following purposes in accordance with its BCR Policy and Privacy Policy:
- To grant You access to services and solutions offered by BMC and provide You access to the domain name BMC.com hosted on behalf of BMC and its affiliates by Adobe Systems, Inc.;
- To authorize the transfer of your Personal Information to BMC authorized third parties for the purpose of delivering BMCs services and solutions to You as described below:
When You complete this Registration Form, You understand and agree that BMC may process and share your Personal Information that you provide to grant You access to services and solutions offered by BMC and provide You access to the domain name BMC.com hosted on behalf of BMC and its affiliates by Adobe Systems Incorporated, a US company with international operations and headquartered at 345 Park Avenue, San Jose, CA 95110, USA, and Adobe Systems Software Ireland Limited, 4-6 Riverwalk, City West Business Campus, Saggart, Dublin 24, IRELAND (“Adobe”). Adobe will handle Your Personal Information as per its privacy policy which You can find at https://www.adobe.com/privacy/policy.html. Adobe will collect, process and store Your Personal Information on behalf of BMC and its affiliates on servers located in the United States.
Access to BMC Support: When You complete this Registration Form to Access to BMC Support services, You understand and agree that BMC may process and share your Personal Information that you provide to grant You access to the BMC Support website hosted on behalf of BMC and its affiliates by Salesforce.com, Inc. ("Salesforce"), a US company with international operations and headquartered at The Landmark @ One Market, Suite 300, San Francisco, California 94105 USA. Salesforce will handle Your Personal Information as per its privacy policy which You can find at http://www.salesforce.com/company/privacy/. Salesforce will collect, process and store Your Personal Information on behalf of BMC and its affiliates on servers located in the United States.
Access to BMC Academy: When You complete this Registration Form to Access to BMC Academy services, You understand and agree that BMC may process and share your Personal Information that you provide to grant You access to the BMC Academy website hosted on behalf of BMC and its affiliates by Cornerstone OnDemand, Inc. ("Cornerstone"), a US company with international operations and headquartered at 1601 Cloverfield Blvd., Suite 620 South, Santa Monica, California 90404, USA. Cornerstone will handle Your Personal Information as per its privacy policy which You can find at http://www.cornerstoneondemand.com. Cornerstone will collect, process and store Your Personal Information on behalf of BMC and its affiliates on servers located in the United States and/or the United Kingdom.
Access to BMC Community: When You complete this Registration Form to Access to BMC Community services, You understand and agree that BMC may process and share your Personal Information that you provide to grant You access to the BMC Community website hosted on behalf of BMC and its affiliates by Salesforce.com, Inc. ("Salesforce"), a US company with international operations and headquartered at The Landmark @ One Market, Suite 300, San Francisco, California 94105 USA.
Access to Sales Edge: When You complete this Registration Form to Access to Sales Edge, You understand and agree that BMC may process and share your Personal Information that you provide to grant You access to the Sales Edge website hosted on behalf of BMC and its affiliates by Seismic Software, Inc. ("Seismic"), a US company with international operations and headquartered at 12770 El Camino Real, Suite 300, San Diego, CA 92139, USA. Seismic will handle Your Personal Information as per its privacy policy which You can find at http://seismic.com/privacy-policy/. Seismic will collect, process and store Your Personal Information on behalf of BMC and its affiliates on servers located in the United States.
Managing your Personal Data
For more information explaining how we use Your Personal Information please see our Privacy Policy and our BCR Policy. For any questions or requests to access, update or delete to Your Personal Information, you can contact BMC at Privacy@BMC.com.
Effective October 4th 2019 to November 22nd 2020
DownloadTable of Contents
How BMC will use your Personal Information:
BMC Software Inc. ("BMC") collects personal information ("Personal Information") when you ("You") register and complete this registration form ("Registration Form"). BMC adheres to its Data Privacy Binding Corporate Rules Policy ("BCR Policy") approved by the European data protection authorities with respect to compliance with data protection laws and specifically to transfers of Personal Information of employees, customers, resellers, suppliers, service providers and other third parties wherever it is collected and used in conjunction with BMC business activities.
When You complete this Registration Form, You understand and agree that BMC may process and share your Personal Information that you provide for the following purposes in accordance with its BCR Policy and Privacy Policy:
- To grant You access to services and solutions offered by BMC and provide You access to the domain name BMC.com hosted on behalf of BMC and its affiliates by Adobe Systems, Inc.;
- To authorize the transfer of your Personal Information to BMC authorized third parties for the purpose of delivering BMCs services and solutions to You as described below:
When You complete this Registration Form, You understand and agree that BMC may process and share your Personal Information that you provide to grant You access to services and solutions offered by BMC and provide You access to the domain name BMC.com hosted on behalf of BMC and its affiliates by Adobe Systems Incorporated, a US company with international operations and headquartered at 345 Park Avenue, San Jose, CA 95110, USA, and Adobe Systems Software Ireland Limited, 4-6 Riverwalk, City West Business Campus, Saggart, Dublin 24, IRELAND (“Adobe”). Adobe will handle Your Personal Information as per its privacy policy which You can find at https://www.adobe.com/privacy/policy.html. Adobe will collect, process and store Your Personal Information on behalf of BMC and its affiliates on servers located in the United States.
Access to BMC Support: When You complete this Registration Form to Access to BMC Support services, You understand and agree that BMC may process and share your Personal Information that you provide to grant You access to the BMC Support website hosted on behalf of BMC and its affiliates by Salesforce.com, Inc. ("Salesforce"), a US company with international operations and headquartered at The Landmark @ One Market, Suite 300, San Francisco, California 94105 USA. Salesforce will handle Your Personal Information as per its privacy policy which You can find at http://www.salesforce.com/company/privacy/. Salesforce will collect, process and store Your Personal Information on behalf of BMC and its affiliates on servers located in the United States.
Access to BMC Academy: When You complete this Registration Form to Access to BMC Academy services, You understand and agree that BMC may process and share your Personal Information that you provide to grant You access to the BMC Academy website hosted on behalf of BMC and its affiliates by Cornerstone OnDemand, Inc. ("Cornerstone"), a US company with international operations and headquartered at 1601 Cloverfield Blvd., Suite 620 South, Santa Monica, California 90404, USA. Cornerstone will handle Your Personal Information as per its privacy policy which You can find at http://www.cornerstoneondemand.com. Cornerstone will collect, process and store Your Personal Information on behalf of BMC and its affiliates on servers located in the United States and/or the United Kingdom.
Access to BMC Communities: When You complete this Registration Form to Access to BMC Communities services, You understand and agree that BMC may process and share your Personal Information that you provide to grant You access to the BMC Communities website hosted on behalf of BMC and its affiliates by Jive Software, Inc. ("Jive"), a US company with international operations and headquartered at 915 SW Stark St Suite 200, Portland, OR 97205, USA. Jive will handle Your Personal Information as per its privacy policy which You can find at https://www.jivesoftware.com/legal/privacy-policy/. Jive will collect, process and store Your Personal Information on behalf of BMC and its affiliates on servers located in the United States.
Access to Sales Edge: When You complete this Registration Form to Access to Sales Edge, You understand and agree that BMC may process and share your Personal Information that you provide to grant You access to the Sales Edge website hosted on behalf of BMC and its affiliates by Seismic Software, Inc. ("Seismic"), a US company with international operations and headquartered at 12770 El Camino Real, Suite 300, San Diego, CA 92139, USA. Seismic will handle Your Personal Information as per its privacy policy which You can find at http://seismic.com/privacy-policy/. Seismic will collect, process and store Your Personal Information on behalf of BMC and its affiliates on servers located in the United States.
Managing your Personal Data
For more information explaining how we use Your Personal Information please see our Privacy Policy and our BCR Policy. For any questions or requests to access, update or delete to Your Personal Information, you can contact BMC at Privacy@BMC.com.
Effective June 6th 2018 to October 4th 2019
DownloadTable of Contents
How BMC will use your Personal Information:
BMC Software Inc. ("BMC") collects personal information ("Personal Information") when you ("You") register and complete this registration form ("Registration Form"). BMC adheres to its Data Privacy Binding Corporate Rules Policy ("BCR Policy") approved by the European data protection authorities with respect to compliance with data protection laws and specifically to transfers of Personal Information of employees, customers, resellers, suppliers, service providers and other third parties wherever it is collected and used in conjunction with BMC business activities.
When You complete this Registration Form, You understand and agree that BMC may process and share your Personal Information that you provide for the following purposes in accordance with its BCR Policy and Privacy Policy:
- To grant You access to services and solutions offered by BMC and provide You access to the domain name BMC.com hosted on behalf of BMC and its affiliates by Adobe Systems, Inc.;
- To authorize the transfer of your Personal Information to BMC authorized third parties for the purpose of delivering BMCs services and solutions to You as described below:
When You complete this Registration Form, You understand and agree that BMC may process and share your Personal Information that you provide to grant You access to services and solutions offered by BMC and provide You access to the domain name BMC.com hosted on behalf of BMC and its affiliates by Adobe Systems Incorporated, a US company with international operations and headquartered at 345 Park Avenue, San Jose, CA 95110, USA, and Adobe Systems Software Ireland Limited, 4-6 Riverwalk, City West Business Campus, Saggart, Dublin 24, IRELAND (“Adobe”). Adobe will handle Your Personal Information as per its privacy policy which You can find at https://www.adobe.com/privacy/policy.html. Adobe will collect, process and store Your Personal Information on behalf of BMC and its affiliates on servers located in the United States.
Access to BMC Support: When You complete this Registration Form to Access to BMC Support services, You understand and agree that BMC may process and share your Personal Information that you provide to grant You access to the BMC Support website hosted on behalf of BMC and its affiliates by Salesforce.com, Inc. ("Salesforce"), a US company with international operations and headquartered at The Landmark @ One Market, Suite 300, San Francisco, California 94105 USA. Salesforce will handle Your Personal Information as per its privacy policy which You can find at http://www.salesforce.com/company/privacy/. Salesforce will collect, process and store Your Personal Information on behalf of BMC and its affiliates on servers located in the United States.
Access to BMC Academy: When You complete this Registration Form to Access to BMC Academy services, You understand and agree that BMC may process and share your Personal Information that you provide to grant You access to the BMC Academy website hosted on behalf of BMC and its affiliates by Cornerstone OnDemand, Inc. ("Cornerstone"), a US company with international operations and headquartered at 1601 Cloverfield Blvd., Suite 620 South, Santa Monica, California 90404, USA. Cornerstone will handle Your Personal Information as per its privacy policy which You can find at http://www.cornerstoneondemand.com. Cornerstone will collect, process and store Your Personal Information on behalf of BMC and its affiliates on servers located in the United States and/or the United Kingdom.
Access to BMC Communities: When You complete this Registration Form to Access to BMC Communities services, You understand and agree that BMC may process and share your Personal Information that you provide to grant You access to the BMC Communities website hosted on behalf of BMC and its affiliates by Jive Software, Inc. ("Jive"), a US company with international operations and headquartered at 915 SW Stark St Suite 200, Portland, OR 97205, USA. Jive will handle Your Personal Information as per its privacy policy which You can find at https://www.jivesoftware.com/legal/privacy-policy/. Jive will collect, process and store Your Personal Information on behalf of BMC and its affiliates on servers located in the United States.
Access to Partner Sales Edge: When You complete this Registration Form to Access to Partner Sales Edge, You understand and agree that BMC may process and share your Personal Information that you provide to grant You access to the Partner Sales Edge website hosted on behalf of BMC and its affiliates by SAVO Group ("SAVO"), a US company with international operations and headquartered at 155 N. Wacker Dr., Suite 1000, Chicago, IL 60606, USA. SAVO will handle Your Personal Information as per its privacy policy which You can find at http://savogroup.com/privacy-policy/. SAVO will collect, process and store Your Personal Information on behalf of BMC and its affiliates on servers located in the United States.
Managing your Personal Data
For more information explaining how we use Your Personal Information please see our Privacy Policy and our BCR Policy. For any questions or requests to access, update or delete to Your Personal Information, you can contact BMC at Privacy@BMC.com.
Terms of Use
Effective May 15th 2019
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BMC Web Site Terms of Use
ATTENTION: PLEASE READ THIS STATEMENT CAREFULLY BEFORE USING WWW.BMC.COM (THIS "WEB SITE"). YOUR USE OF THIS WEB SITE CONSTITUTES YOUR ACCEPTANCE OF THESE BMC WEB SITE TERMS OF USE ("TERMS OF USE"). IF YOU DO NOT ACCEPT THESE TERMS OF USE, DO NOT USE THIS WEB SITE.
BMC Software, Inc. ("BMC") reserves the right to modify these Terms of Use without notice, and any modifications are effective when they are posted here. BMC may, at any time, in its discretion terminate Your access to this Web Site. Access to the Web Site may be monitored by BMC. If You are accessing this Web Site as a representative of an organization, these Terms of Use bind both You individually and the organization and references to "You" and "Your" shall be construed to apply to You individually and the organization.
BMC maintains copyright protection in all materials, information, data, text, software, music, sound, photographs, graphics, video, messages, publications or other materials (collectively, "Web Site Content") it posts on this Web Site. BMC grants You permission and consents to the downloading, copying and distribution of the Web Site Content for non-commercial purposes by You or within your organization only. In consideration of this consent, You agree that (i) copies of the Web Site Content will retain all copyright and other proprietary notices and (ii) You will not modify the Web Site Content in any way. Unless You are expressly permitted to do so by another agreement with BMC, such as BMC's Customer Support Agreement, and only to the extent that your use constitutes "fair use" under copyright law as determined by your legal counsel, You may not use, download, upload, copy, print, display, perform, reproduce, publish, or distribute any Web Site Content, in whole or in part, without the prior written consent of BMC.
As a condition of your use of this Web Site, You will not use the Web Site or the Web Site Content for any purpose that is unlawful or prohibited by these Terms of Use. You will not use this Web Site in any manner that could damage, disable, overload or impair the operation of this Web Site or use by third parties.
Certain restricted product information is available on this Web Site only to licensed customers of BMC who are registered to receive information via passwords issued by BMC. This restricted information is considered confidential and proprietary information of BMC. If You are a registered customer or a representative of a registered customer, You may be authorized by another agreement, such as BMC's Customer Support Agreement, to download, copy, re-distribute, and use the restricted information as authorized by BMC. Issuance of a registration password is conditioned on the customer's use of such restricted information only in accordance with the terms of their license, product or service agreement with BMC. You shall not transfer your password to unauthorized parties. You shall immediately notify BMC of any unauthorized use of your password. You are responsible for use of your password. You will not attempt to gain access to any Web Site Content or area within this Web Site that You are not authorized to access.
You agree to the following with regard to Your use of the Web Site: (a) You will not access the Web Site under an anonymous or false name, and You will not permit any other person to access the Web Site under your name or using an anonymous or false name to impersonate any person or entity or otherwise misrepresent your affiliation with a person or entity; (b) You will not transmit to the Web Site any content that (i) is libelous, defamatory, obscene, pornographic, threatening, or abusive or harassing to another individual, (ii) violates any law, including without limitation, laws governing copyright infringement and data privacy, (iii) violates or infringes upon the rights of or otherwise harms any third party, (iv) is otherwise offensive or objectionable to BMC, Web Site participants, or other parties, or (v) the export or re-export of which requires a license or license exception from the United States government or other foreign governments having jurisdiction; (c) You will not post or transmit to the Web Site any content containing any malware or harmful or corrupt code, programming code, or data (including but not limited to "viruses", "worms" and "cancelbots"), or other code that otherwise adversely affects the functioning of the Web Site or interferes with or disrupts the Web Site or any other BMC websites, servers, or networks connected to BMC's websites; (d) You will not use the Web Site for purposes of promotion, solicitation, or advertising; and (e) BMC will not have and expressly disclaims any liability related to the misuse, loss, modification, or unavailability of any content.
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If any provision of these Terms of Use is found to be unlawful or unenforceable in any respect, You agree that the court may reform such provision so as to render it enforceable (or, if it is not possible to reform such provision so as to make it enforceable, then delete such provision). As so reformed or deleted, the court shall fully enforce the resulting Terms of Use.
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BMC is an Equal Opportunity Employer.
EULA
Effective July 25th 2024
DownloadTable of Contents
END USER LICENSE AGREEMENT
BY OPENING THE PACKAGE, DOWNLOADING OR INSTALLING, PRESSING “AGREE” OR “YES” OR USING THE PRODUCT, THE ENTITY OR INDIVIDUAL ENTERING INTO THIS AGREEMENT AGREES TO BE BOUND BY THE FOLLOWING TERMS. IF YOU DO NOT AGREE WITH ANY OF THESE TERMS, DO NOT INSTALL OR USE THE PRODUCT, PROMPTLY RETURN THE PRODUCT TO BMC OR YOUR BMC RESELLER. IF YOU REJECT THIS AGREEMENT, YOU WILL NOT ACQUIRE ANY LICENSE TO USE THE PRODUCT.
This Agreement ("Agreement") is between the entity or individual entering into this Agreement (“Customer”) and the BMC Entity for the applicable Region where Customer acquired the License as described in Section 18 (“BMC”). This Agreement was last updated on July 26, 2024. For Customer’s convenience, prior versions of this Agreement are available at https://www.bmc.com/legal/end-user-license-agreements.html.
1. GENERAL DEFINITIONS.
1.1 “Affiliate” is an entity that controls, is controlled by or shares common control with BMC or Customer, where such control arises from the legal power to direct or cause the direction of the general management and policies of the company, partnership or legal entity.
1.2 “Authorized User” means Customer, Customer Affiliate(s), and their employees, consultants, contractors and agents that are acting under the instructions and control of Customer or Customer Affiliate(s) and are bound by the terms and conditions no less restrictive than those contained herein and for whom Customer takes full responsibility. Notwithstanding the foregoing, Authorized Users do not include service providers or outsourcers.
1.3 "Documentation" means the technical publications relating to the software, such as release notes, license entitlement descriptions, reference, user, installation, systems administrator and technical guidelines, included with the Product.
1.4 “IP Rights” means all intellectual property or other proprietary rights worldwide, including patents, trade secrets, copyrights, trademarks, moral rights, and any other intellectual or industrial property including registrations, applications, renewals, and extensions of such rights.
1.5 “Licensed Capacity” is the amount of each Product licensed as established in the Order. Any Units of Measure and License Restrictions related to the Licensed Capacity will be set forth in the Order.
1.6 “Order” is an agreed written or electronic document, subject to the terms of this Agreement that identifies the Products to be licensed and the Licensed Capacity and/or the Support to be purchased and the fees to be paid.
1.7 “Product” is the object code of all generally available software and accompanying Documentation delivered to Customer, including all items delivered by BMC to Customer under Support.
1.8 “Support” is the support services program as further specified in this Agreement.
1.9 “Territory” means the country(ies) where Customer is licensed to install the Product as specified in the Order.
2. SCOPE. Licenses are granted, and Support is obtained, solely by execution of Orders. Each Order is deemed to be a discrete contract, separate from each other Order, unless expressly stated otherwise therein, and in the event of a direct conflict between any Order and the terms of this Agreement, the terms of the Order will control only if the Order is agreed to by each party. Neither execution of this Agreement, nor anything contained herein, shall obligate either party to enter into any Orders. In the event an Order is proposed by BMC and is deemed to constitute an offer, then acceptance of such offer is limited to its terms. In the event Customer proposes an Order by submitting a purchase order, then regardless of whether BMC acknowledges, accepts or fully or partially performs under such purchase order, BMC OBJECTS to any additional or different terms in the purchase order.
3. LICENSE. Subject to the terms, conditions, payment requirements and restrictions set forth in this Agreement, BMC grants Customer a non-exclusive, non-transferable, non-sub-licensable non-perpetual (unless a perpetual license is provided on an Order) license to install in the Territory, access and use the Product (i) by Authorized User(s), (ii) up to the Licensed Capacity, (iii) for Customer’s and its Affiliates internal business operations, (iv) in accordance with the Documentation and the applicable Order, and (v) make a reasonable number of copies of the Product and the Documentation for archival purposes only (collectively a "License"). Affiliates may use and access the Products and Support under the terms of this Agreement, and Customer is responsible for its Affiliates compliance with the terms of this Agreement.
4. RESTRICTIONS. Customer will not: (a) copy, operate or use any Product in excess of the applicable Licensed Capacity or other than as set forth in the License above; (b) modify, delete or remove any ownership, title, trademark, patent or copyright notices from any Product, or copy or partial copy of a Product; (c) disassemble, reverse engineer, decompile or otherwise attempt to derive any Product source code from object code, except to the extent expressly permitted by applicable law despite this limitation without possibility of contractual waiver; (d) distribute, rent, lease, sublicense or provide the Product to any third party; (e) use the Products in an outsourcing or service bureau environment on behalf of non-Affiliate third parties, or allow the products to be used by an outsourcing or service bureau provider on Customer’s behalf; (f) conduct penetration test or security vulnerability tests of any type on the Products without BMC’s prior written consent; (g) publish or make public any benchmark, security, or performance data or information about the Products without BMC’s prior written consent; or (h) attempt to disable or circumvent any of the licensing mechanisms within the Product.
5. PRODUCT PERFORMANCE WARRANTY. BMC warrants that (a) the Product will perform in substantial accordance with its Documentation for a period of one year from the date of the first Order, (b) BMC has used commercially reasonable efforts consistent with industry standards to scan for and remove software viruses, and (c) other than passwords that may be required for the operation of the Product, BMC has not inserted any code that is not addressed in the Documentation and that is designed to delete, interfere with or disable the normal operation of the Product in accordance with the License. This warranty will not apply to any problems caused by hardware, Computers, or software other than the Product, or misuse of the Product, use of the Product other than as provided by the applicable License, modification of the Product, or claims made either outside the warranty period or not in compliance with the notice and access requirements set forth below. No warranty is provided for additional Licensed Capacity, Product provided pursuant to Support or Product provided pursuant to Section 12.
6. LIMITED REMEDIES. BMC’s entire liability, and Customer’s exclusive remedy, for breach of the above warranty is limited to: BMC’s use of commercially reasonable efforts to have the Product perform in substantial accordance with its Documentation, or replacement of the non-conforming Product within a reasonable period of time, or if BMC cannot have the Product perform in substantial accordance with its Documentation replace the Product within such time period, then BMC will refund the amount paid by Customer for the License for that Product. Customer agrees to provide BMC during the warranty period (a) full cooperation and access to the Product in resolving any claim; and (b) written notice that includes notice of the claim, a complete description of the alleged defects sufficient to permit their reproduction in BMC’s development or support environment, and a reference to the Documentation to which such alleged defects are contrary.
7. DISCLAIMER OF WARRANTIES. EXCEPT FOR THE EXPRESS WARRANTIES IN THIS AGREEMENT, THE PRODUCT IS PROVIDED WITH NO OTHER WARRANTIES WHATSOEVER, AND BMC, ITS AFFILIATES AND LICENSORS DISCLAIM ALL OTHER WARRANTIES, INCLUDING, FITNESS FOR A PARTICULAR PURPOSE AND IN THE UNITED STATES AND CANADA, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, AND NON-INFRINGEMENT. BMC DOES NOT WARRANT THAT THE OPERATION OF THE PRODUCT WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT ALL DEFECTS CAN BE CORRECTED.
8. SUPPORT. The Order will include BMC support services (“Support”) for the total Licensed Capacity of the Products. A description of Support is located at www.bmc.com/support/review-policies, and is incorporated herein by this reference. BMC will notify Customer that it is time to renew at least 60 days prior to the end of the applicable prepaid Support period and Customer will provide notice to BMC if it does not intend to renew. BMC may change its Support terms to be effective at the end of any prepaid Support period. BMC reserves the right to discontinue Support for a Product where BMC generally discontinues such services to all licensees of that Product. For perpetual Licenses only, if Customer stops being enrolled in Support and then re-enrolls in Support, BMC may charge Customer a reinstatement fee.
9. PAYMENT, DELIVERY AND TAXES. The fees payable for Licenses and Support and the payment period for such fees will be set forth in and paid in accordance with the Order. All payments are due within 30 days of the date of the invoice. Customer will pay taxes imposed in connection with the fees paid for the License and/or Support, which are exclusive of these taxes. If Customer disputes an invoice in good faith, it will notify BMC within 30 days of receiving the invoice. The parties will seek to resolve such dispute over a 15-day discussion period. Customer is not required to pay disputed amounts during the discussion period, but will timely pay all undisputed amounts. After the discussion period, either party may pursue all available remedies. For Products that are delivered electronically, upon request from BMC, Customer agrees to provide BMC with documentation supporting that the designated Product was received electronically. If Customer accepts any Product in a non-electronic format, it is the sole responsibility of Customer to bear any sales/use tax obligation, penalties, and interest. Late balances may, at BMC’s sole election, bear interest at a rate equal to the lesser of 1% per month or the maximum amount permitted by law. All Products are licensed FCA (“Free Carrier” as per Incoterms 2000) shipping point. The Products are accepted on the date BMC delivers the Product to the Customer either physically or by providing access codes for electronic download, whichever occurs first, however, such acceptance will not affect the Product Performance Warranty provided in this Agreement. With regard to Products acquired by Customer through an authorized reseller ("Solution Provider") of BMC, notwithstanding anything to the contrary herein, Customer will have no direct payment obligations to BMC for such fees.
10. PROPRIETARY RIGHTS AND CONFIDENTIALITY.
10.1 Proprietary Rights. BMC, its Affiliates or licensors retain all right, title and interest to the Product, Support and all related intellectual property and proprietary rights. The Product and all third party software provided with the Product are protected by applicable copyright, trade secret, industrial and other intellectual property laws. BMC reserves any rights not expressly granted to Customer in this Agreement.
10.2 Confidentiality. “Confidential Information” means all proprietary or confidential information that is disclosed to the recipient (“Recipient”) by the discloser (“Discloser”), and includes, among other things (i) any and all information relating Discloser financial information, customers, employees, products or services, including, without limitation, software code, BMC product vulnerabilites, flow charts, techniques, specifications, development and marketing plans, strategies, forecasts, and proposal related documents and responses; (ii) as to BMC, and its licensors, the Product (excluding portions of the Documentation that BMC makes publicly available) and any third party software provided with the Product; and (iii) the terms of any Orders, including without limitation, Product pricing information. Confidential Information does not include information that Recipient can show: (a) was rightfully in Recipient’s possession without any obligation of confidentiality before receipt from the Discloser; (b) is or becomes a matter of public knowledge through no fault of Recipient; (c) is rightfully received by Recipient from a third party without violation of a duty of confidentiality; or (d) is independently developed by or for Recipient. Recipient may not disclose Confidential Information of Discloser to any third party or use the Confidential Information in violation of this Agreement. The Recipient (i) will exercise the same degree of care and protection with respect to the Confidential Information of the Discloser that it exercises with respect to its own Confidential Information and (ii) will not, either directly or indirectly, disclose, copy, distribute, republish, or allow any third party to have access to any Confidential Information of the Discloser. Notwithstanding the foregoing, Recipient may disclose Discloser’s Confidential Information to Recipient’s employees and agents (if Recipient is BMC) and to Authorized User(s) (if Recipient is the Customer)who have the need to know provided that such employees, agents and Authorized User(s) have legal obligations of confidentiality substantially the same (and in no case less protective) as the provisions of this Agreement.
10.3 Notification Obligation. If the Recipient becomes aware of any unauthorized use or disclosure of Discloser’s Confidential Information, then Recipient will promptly and fully notify the Discloser of all facts known to it concerning such unauthorized use or disclosure. In addition, if the Recipient or any of its employees or agents are required (by oral questions, interrogatories, requests for information, or documents in legal proceedings, subpoena, civil investigative demand, or other similar process) to disclose any of Discloser’s Confidential Information, the Recipient will not disclose the Discloser’s Confidential Information without providing the Discloser with commercially reasonable advance prior written notice to allow Discloser to seek a protective order or other appropriate remedy or to waive compliance with this provision. In any event, the Recipient will exercise its commercially reasonable efforts to preserve the confidentiality of the portion of the Discloser’s Confidential Information that Recipient is bound to furnish, including, without limitation, cooperating with Discloser to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded to the portion of the Discloser’s Confidential Information that is furnished.
11. DISCLAIMER OF DAMAGES; LIMITS ON LIABILITY. EXCEPT FOR INFRINGEMENT CLAIMS (SECTION 13) AND INFRINGEMENT BY A PARTY OF THE OTHER PARTY'S IP RIGHTS, GROSS NEGLIGENCE, WILlFUL MISCONDUCT, DEATH OR BODILY INJURY, ACTS OF FRAUD AND ANY LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED BY LAW. NEITHER PARTY, ITS AFFILIATES OR BMC’s LICENSORS (a) ARE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES RELATING TO OR ARISING OUT OF THIS AGREEMENT , SUPPORT, THE PRODUCT OR ANY THIRD PARTY CODE OR SOFTWARE PROVIDED WITH THE PRODUCT (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST COMPUTER USAGE TIME, AND DAMAGE TO, OR LOSS OF USE OF DATA), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND IRRESPECTIVE OF NEGLIGENCE OF A PARTY OR WHETHER SUCH DAMAGES RESULT FROM A CLAIM ARISING UNDER TORT OR CONTRACT LAW AND (b) LIABILITY IN ANY EVENT SHALL NOT EXCEED THE AMOUNT PAID AND PAYABLE BY CUSTOMER FOR THE LICENSE TO THE APPLICABLE PRODUCT GIVING RISE TO SUCH DAMAGES.
12. TRIAL LICENSE. BMC may determine, in its sole discretion, to make products available to Customer without an Order and without charge. Such products are deemed to be “Products” pursuant to this Agreement except that (a) they are provided to Customer solely so that Customer may evaluate internally whether to acquire a license to the products for a fee, (b) the license term for such products is 30 days; (c) the Products are provided “AS IS” and without any warranty or support, and (d) the products cannot be put into productive use or included as part of Customer’s business processes in any manner, unless or until they are expressly licensed and paid for under an Order. BMC may terminate all of Customer’s rights and licenses to these Products for BMC’s convenience upon notice to Customer.
13. INFRINGEMENT CLAIMS. If a third party asserts a claim against Customer asserting that Customer’s use of a Product in accordance with this Agreement violates that third-party’s IP Rights (“Infringement Claim”), then BMC will, at its own expense: (a) defend or settle the Infringement Claim; and (b) indemnify Customer for any damages finally awarded or settled upon against Customer based on infringement by the Product. BMC’s obligations under this Section will not apply if: (a) BMC’s legal department does not receive prompt, detailed written notice of the Infringement Claim from Customer, (b) BMC is not able to retain sole control of the defense of the Infringement Claim and all negotiations for its settlement or compromise, or (c) BMC does not receive all reasonable assistance. BMC will not bind Customer to a monetary obligation in a settlement or compromise, or make an admission on behalf of Customer, without obtaining Customer’s prior consent. Customer must promptly install all Product updates BMC provides to mitigate any Infringement Claim. If BMC believes that use of the Product should be stopped because of an Infringement Claim or potential Infringement Claim, if a court of competent jurisdiction enjoins Customer from using a Product as a result of an Infringement Claim and BMC is unable to have such injunction stayed or overturned, or if BMC settles an Infringement Claim on terms that would require Customer to stop using the Product, then BMC will, at its expense and election: (a) modify or replace the Product, (b) procure the right to continue using the Product, or (c) if in BMC’s reasonable judgment, neither (a) or (b) is commercially reasonable, terminate Customer's License to the Product and (i) for any perpetual licenses, issue a refund based upon the applicable license fees paid, prorated over 48 months from the date of the Order under which the Products were initially licensed; and (ii) for any non-perpetual licenses, release Customer from its obligation to make future payments for the Product or issue a pro rata refund for any fees paid in advance. This Section contains Customer's exclusive remedies and BMC's sole liability for Infringement Claims.
14. TERMINATION. Upon thirty days advance written notice, either party may terminate this Agreement for its convenience on a prospective basis; however, such termination will have no effect on Orders placed prior to its effective date and such Orders will remain in full force and effect under the terms of this Agreement. Either party may terminate this Agreement and/or an Order for cause on 30 days’ written notice for material breach if the other party fails to cure the breach within 30-day-notice period. Upon any termination of a License, Customer will immediately uninstall and stop using the relevant Product, and upon BMC's request, Customer will immediately return such Product to BMC, together with all related Documentation and copies, or certify its destruction in writing. Any terms in this Agreement which by their nature extend beyond termination of this Agreement will remain in effect until fulfilled.
15. AUDIT. If requested by BMC, and not more than once a year, Customer agrees to deliver to BMC, within 30 days of such request, as specified by BMC (a) periodic product usage reports generated from specific products, (b) third party usage reports related to the Products (e.g., SCRT reports) and (c) written periodic product usage reports, to be provided solely when the product does not generate reports (together, “Reports”). Additionally, if requested by BMC not more than once a year and upon at least 10 (ten) days prior written notice to Customer, Customer agrees to allow BMC to perform an audit (“Audit”) to ensure compliance with the terms of this Agreement at the locations where the Products are installed, during normal business hours. Customer agrees to cooperate during any such Audit and to provide reasonable access to its information and systems. If Customer is found to have exceeded its Licensed Capacity for a Product based on such Reports or Audit, then Customer agrees to pay the applicable fees for the additional capacity through the end of the applicable Order term upon receipt of an invoice from BMC.
16. EXPORT CONTROLS. Both parties agree to comply with applicable export regulations, including but not limited to U.S. Export Administration Regulations and the OFAC embargoes and sanctions lists. More information on BMC’s export compliance program may be found here: https://www.bmc.com/legal/export-compliance.html.
17. GOVERNING LAW AND DISPUTE RESOLUTION. Any controversy, dispute or claim arising out of or relating to this Agreement, or to the formation, interpretation, breach, termination, or validity thereof (each, a “Controversy”) will be resolved as follows:
(i) UNITED STATES. If both parties to this Agreement are entities incorporated under the law of any state in the United States, the Controversy shall be tried in either state or federal court located in Houston, Texas and the laws of the State of Texas shall govern. Both parties hereby submit to the exclusive jurisdiction of the courts in Houston, Texas and waive all defenses based on forum non conveniens. Notwithstanding the foregoing, if Customer is a state or local governmental entity or higher education institution and legally required to apply state law, then Customer’s state law will apply to the Controversy, without reference to conflict of law principles.
(ii) CANADA. If Customer is located in Canada (outside Quebec), then the law of the Province of Ontario law apply, without reference to conflict of law principles. If Customer is located in Quebec, then the laws of the Province Quebec will apply, without reference to conflict of law principles.
(iii) EMEA. If both parties to this Agreement are entities incorporated in countries in the Europe, Middle East, or Africa regions, the Controversy shall be tried in the District Court located in Amsterdam, the Netherlands and the substantive laws of the Netherlands shall govern. Both parties hereby submit to the exclusive jurisdiction of the District Court in Amsterdam, the Netherlands and waive all defenses based on forum non conveniens.
(iv) ASIA PACIFIC. If both parties to this Agreement are entities incorporated in countries in the Asia Pacific region, the arbitration shall be held in Singapore under the then-applicable rules of the Singapore International Arbitration Centre and the substantive laws of Singapore will govern.
(v) OTHER REGIONS. In all other instances, the arbitration shall be held in New York City, New York, under the then-applicable international rules of the American Arbitration Association and the substantive laws of the State of Texas will govern.
For all arbitrations conducted hereunder: (a) the arbitration shall be conducted in English; (b) the relevant arbitral institution shall determine the number of arbitrators, but any Controversy in which the amount in dispute is greater than $10 million USD shall be decided by three arbitrators, with each party having the right to select one arbitrator; (c) the costs of such arbitration shall be borne equally, pending the arbitrator’s award; (d) the arbitration award rendered shall be final and binding on the parties, shall not be subject to appeal to any court and shall be enforceable in any court having jurisdiction over the parties; (e) the arbitration proceedings, award and pleadings shall all be confidential, unless disclosure of particular information is required for purposes of enforcing/challenging the award or to meet local securities law requirements; and (f) the party prevailing in arbitration shall be entitled to recover its reasonable attorneys’ fees and the necessary costs incurred in connection with the arbitration.
The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. Nothing in this Agreement shall be deemed as preventing either party from seeking immediate injunctive relief from any court having jurisdiction over the parties and the subject matter of the dispute.
18. BMC ENTITIES. The following licensing entities apply to this Agreement:
Region | Licensing Entity | Address of Licensing Entity |
---|---|---|
United States and Latin America South (not a specified Central or South America country below) | BMC Software, Inc. | 2103 CityWest Boulevard, Houston, Texas 77042 |
Canada | BMC Software Canada Inc. | 50 Minthorn Boulevard, Suite 200, Markham, Ontario L3T 7X8 Canada |
EMEA (Europe, Middle East and Africa) | BMC Software Distribution B.V. | Vision Plaza West, 2nd floor, Boeingavenue 220, 1119PN Schiphol-Rijk, The Netherlands |
Brazil | BMC Software do Brasil Ltda. | Avenida Rebouças n° 3.970 e Avenida Dra. Ruth Cardoso, n° 8.501 Condomínio Eldorado Business Tower, 22° andar, Pinheiros, São Paulo – SP, CEP: 05425-070 |
Mexico | BMC Software Distribution de México, S.A. de C.V. | Calle Volcán, No.150, Piso 2, Oficina 202, Col. Lomas de Chapultepec V Sección, C.P. 11000, Alcaldía Miguel Hidalgo, Ciudad de México |
Argentina | BMC Software de Argentina S.A. | Ing. Butty 220 - Piso 18, Catalinas Plaza Buenos Aires, República de Argentina, C1001A |
S.E.A (Southeast Asia), Australia, New Zealand, Hong Kong, Taiwan | BMC Software Ireland Unlimited Company | Building 3, Cherrywood Business Park, Bray Road, Loughlinstown, CO. Dublin, D18 TF72 |
China | BMC Software (China) Limited | Room 502, Level 5, Tower W1, The Towers, Oriental Plaza, No. 1 East Chang An Ave., Dong Cheng Dist., Beijing 100738, China |
Japan | BMC Software K.K. | Harmony Tower 24th Floor, 1-32-2 Honcho, Nakano-ku, Tokyo, 164-8721 |
Korea | BMC Software Korea Ltd | 9 FL Two IFC, 10 Gukjekeumyung-ro, Youngdeungpogu, Seoul 07326, South Korea |
19. ASSIGNMENT AND TRANSFERS. Customer has the right to assign this Agreement or a License in whole to an Affiliate, or to a successor in connection with (i) the sale of all or substantially all of the assets of that party or (ii) a merger by operation of law by providing written notice to BMC. The assignee may not be a known direct competitor of BMC. The successor or Affiliate must agree in writing with BMC (in advance of the assignment) to be bound by the terms of this Agreement. Any Customer transfer or assignment except as expressly authorized above will be null and void.
20. DATA PROTECTION. The processing of personal data under this Agreement is governed by the Data Processing Agreement set forth on the Order, unless BMC already has a signed Data Processing Agreement with Customer for such BMC offerings; in which case, the signed version governs the processing of personal data. In the event there is no signed Data Processing Agreement or no reference to the applicable Data Processing Agreement in the Order, BMC and Customer agree that the Data Processing Agreement applicable on the date of the Order, a copy of which may be viewed at https://www.bmc.com/content/dam/bmc/corporate/bmcdpa.pdf, applies to the BMC offerings under this Agreement.
21. NOTICES. Any demand, notice, consent, or other communication required by this Agreement must be given in writing and shall be deemed delivered upon receipt when delivered personally or upon confirmation of receipt following delivery by internationally recognized overnight courier service to the addresses specified on the applicable Order.
22. CONDUCTING BUSINESS WITH HONEST AND INTEGRITY. BMC is committed to conducting business with honesty and integrity. BMC’s Code of Conduct set forth in https://www.bmc.com/legal/code-of-conduct.html governs the conduct of all officers, directors, and employees of BMC, and contingent workers and business partners acting on BMC’s behalf. BMC demonstrates its commitment to environmental stewardship by its global accreditation for ISO 14001:2015.
23. MISCELLANEOUS TERMS. A waiver by a party of any breach of any term of this Agreement will not be construed as a waiver of any continuing or succeeding breach. Should any term of this Agreement be invalid or unenforceable, the remaining terms will remain in effect. The parties acknowledge they have read this Agreement and agree that it is the complete and exclusive statement of the agreement and supersedes and replaces (i) any prior or contemporaneous negotiations or agreements between the parties relating to the subject matter of this Agreement and (ii) terms contained on or accessed through any customer portal or vendor onboarding website BMC is required to agree to. There are no representations, promises, warranties, covenants, or undertakings between the parties other than those expressly set forth in this Agreement. This Agreement may not be modified or rescinded except in writing signed by both parties. There are no third-party beneficiaries to this Agreement; Customer is not entering into a contractual relationship with BMC’s licensors and BMC’s licensors have no liability to Customer. Any delay or failure of any party to perform any obligation under this Agreement caused by governmental restrictions, labor disputes, storms or natural disasters, emergency, or other causes beyond the reasonable control of the party, will not be deemed a breach of this Agreement; provided, however, this provision does not apply to failure to pay fees or any breach of Section 10. The BMC Products may contain third party software which is delivered to Customer as part of the Product and may not be taken out of the Product or used separately from the Product and for which additional terms may be included in the Documentation. The Product may contain hyperlinks to websites controlled by parties other than BMC. BMC is not responsible for and does not endorse the content or accept any responsibility for Customer’s use of these websites. Customer should refer to the policies posted by other websites regarding data privacy and other topics before using them. Any additional documents presented to a BMC representative by Customer for signature as a condition for going on a Customer’s site will be governed by this Agreement and to the extent that such document presents additional terms or conflicts with this Agreement, it shall be considered null and void. BMC may compile and use de-identified, aggregate or statistical information related to Customer’s use of the Products for the purposes of enhancing and improving the Products, developing new products and services, and for other development, diagnostic, statistical and corrective purposes, provided that such information (a) does not incorporate Customer’s personally identifiable information or personal data and (b) does not identify or describe the Customer. Les parties exigent que la présente convention ainsi que les documents qui s’y rattachent soient rédigés en anglais.
24. U.S. GOVERNMENT END USER RIGHTS. This Section applies only to acquisitions of the commercial Product and Documentation subject to this Agreement by or on behalf of the United States Government, or by any prime contractor or subcontractor (at any tier) under any contract, grant, agreement or other activity with the United States Government. When Products are delivered or provided to the United States Government, the United States Government agrees that this commercial license Agreement and the Products governed by this Agreement are defined in accordance with and qualify as “commercial items” consisting of “commercial computer software” and “commercial computer software documentation” as outlined in FAR 12.211, FAR 12.212 and DFARS 227.7202-3, as applicable. The terms and conditions of this Agreement shall pertain to the United States Government’s use (including documentation or technical data), duplication, and disclosure of the Product, and shall supersede any conflicting contractual terms and conditions.
YOU AGREE THAT YOU HAVE READ THIS AGREEMENT AND INTEND TO BE BOUND, AS IF YOU HAD SIGNED THIS AGREEMENT IN WRITING. IF YOU ARE ACTING ON BEHALF OF AN ENTITY, YOU WARRANT THAT YOU HAVE THE AUTHORITY TO ACCEPT THE TERMS OF THIS AGREEMENT FOR SUCH ENTITY.
Effective May 10th 2024 to July 25th 2024
DownloadTable of Contents
END USER LICENSE AGREEMENT
BY OPENING THE PACKAGE, DOWNLOADING OR INSTALLING, PRESSING “AGREE” OR “YES” OR USING THE PRODUCT, THE ENTITY OR INDIVIDUAL ENTERING INTO THIS AGREEMENT AGREES TO BE BOUND BY THE FOLLOWING TERMS. IF YOU DO NOT AGREE WITH ANY OF THESE TERMS, DO NOT INSTALL OR USE THE PRODUCT, PROMPTLY RETURN THE PRODUCT TO BMC OR YOUR BMC RESELLER. IF YOU REJECT THIS AGREEMENT, YOU WILL NOT ACQUIRE ANY LICENSE TO USE THE PRODUCT.
This Agreement ("Agreement") is between the entity or individual entering into this Agreement (“Customer”) and the BMC Entity for the applicable Region where Customer acquired the License as described in Section 18 (“BMC”). This Agreement was last updated on May 10, 2024. For Customer’s convenience, prior versions of this Agreement are available at https://www.bmc.com/legal/end-user-license-agreements.html.
1. GENERAL DEFINITIONS.
1.1 “Affiliate” is an entity that controls, is controlled by or shares common control with BMC or Customer, where such control arises from the legal power to direct or cause the direction of the general management and policies of the company, partnership or legal entity.
1.2 “Authorized User” means Customer, Customer Affiliate(s), and their employees, consultants, contractors and agents that are acting under the instructions and control of Customer or Customer Affiliate(s) and are bound by the terms and conditions no less restrictive than those contained herein and for whom Customer takes full responsibility. Notwithstanding the foregoing, Authorized Users do not include service providers or outsourcers.
1.3 "Documentation" means the technical publications relating to the software, such as release notes, license entitlement descriptions, reference, user, installation, systems administrator and technical guidelines, included with the Product.
1.4 “IP Rights” means all intellectual property or other proprietary rights worldwide, including patents, trade secrets, copyrights, trademarks, moral rights, and any other intellectual or industrial property including registrations, applications, renewals, and extensions of such rights.
1.5 “Licensed Capacity” is the amount of each Product licensed as established in the Order. Any Units of Measure and License Restrictions related to the Licensed Capacity will be set forth in the Order.
1.6 “Order” is an agreed written or electronic document, subject to the terms of this Agreement that identifies the Products to be licensed and the Licensed Capacity and/or the Support to be purchased and the fees to be paid.
1.7 “Product” is the object code of all generally available software and accompanying Documentation delivered to Customer, including all items delivered by BMC to Customer under Support.
1.8 “Support” is the support services program as further specified in this Agreement.
1.9 “Territory” means the country(ies) where Customer is licensed to install the Product as specified in the Order.
2. SCOPE. Licenses are granted, and Support is obtained, solely by execution of Orders. Each Order is deemed to be a discrete contract, separate from each other Order, unless expressly stated otherwise therein, and in the event of a direct conflict between any Order and the terms of this Agreement, the terms of the Order will control only if the Order is agreed to by each party. Neither execution of this Agreement, nor anything contained herein, shall obligate either party to enter into any Orders. In the event an Order is proposed by BMC and is deemed to constitute an offer, then acceptance of such offer is limited to its terms. In the event Customer proposes an Order by submitting a purchase order, then regardless of whether BMC acknowledges, accepts or fully or partially performs under such purchase order, BMC OBJECTS to any additional or different terms in the purchase order.
3. LICENSE. Subject to the terms, conditions, payment requirements and restrictions set forth in this Agreement, BMC grants Customer a non-exclusive, non-transferable, non-sub-licensable non-perpetual (unless a perpetual license is provided on an Order) license to install in the Territory, access and use the Product (i) by Authorized User(s), (ii) up to the Licensed Capacity, (iii) for Customer’s and its Affiliates internal business operations, (iv) in accordance with the Documentation and the applicable Order, and (v) make a reasonable number of copies of the Product and the Documentation for archival purposes only (collectively a "License"). Affiliates may use and access the Products and Support under the terms of this Agreement, and Customer is responsible for its Affiliates compliance with the terms of this Agreement.
4. RESTRICTIONS. Customer will not: (a) copy, operate or use any Product in excess of the applicable Licensed Capacity or other than as set forth in the License above; (b) modify, delete or remove any ownership, title, trademark, patent or copyright notices from any Product, or copy or partial copy of a Product; (c) disassemble, reverse engineer, decompile or otherwise attempt to derive any Product source code from object code, except to the extent expressly permitted by applicable law despite this limitation without possibility of contractual waiver; (d) distribute, rent, lease, sublicense or provide the Product to any third party; (e) use the Products in an outsourcing or service bureau environment on behalf of non-Affiliate third parties, or allow the products to be used by an outsourcing or service bureau provider on Customer’s behalf; (f) conduct penetration test or security vulnerability tests of any type on the Products without BMC’s prior written consent; (g) publish or make public any benchmark, security, or performance data or information about the Products without BMC’s prior written consent; or (h) attempt to disable or circumvent any of the licensing mechanisms within the Product.
5. PRODUCT PERFORMANCE WARRANTY. BMC warrants that (a) the Product will perform in substantial accordance with its Documentation for a period of one year from the date of the first Order, (b) BMC has used commercially reasonable efforts consistent with industry standards to scan for and remove software viruses, and (c) other than passwords that may be required for the operation of the Product, BMC has not inserted any code that is not addressed in the Documentation and that is designed to delete, interfere with or disable the normal operation of the Product in accordance with the License. This warranty will not apply to any problems caused by hardware, Computers, or software other than the Product, or misuse of the Product, use of the Product other than as provided by the applicable License, modification of the Product, or claims made either outside the warranty period or not in compliance with the notice and access requirements set forth below. No warranty is provided for additional Licensed Capacity, Product provided pursuant to Support or Product provided pursuant to Section 12.
6. LIMITED REMEDIES. BMC’s entire liability, and Customer’s exclusive remedy, for breach of the above warranty is limited to: BMC’s use of commercially reasonable efforts to have the Product perform in substantial accordance with its Documentation, or replacement of the non-conforming Product within a reasonable period of time, or if BMC cannot have the Product perform in substantial accordance with its Documentation replace the Product within such time period, then BMC will refund the amount paid by Customer for the License for that Product. Customer agrees to provide BMC during the warranty period (a) full cooperation and access to the Product in resolving any claim; and (b) written notice that includes notice of the claim, a complete description of the alleged defects sufficient to permit their reproduction in BMC’s development or support environment, and a reference to the Documentation to which such alleged defects are contrary.
7. DISCLAIMER OF WARRANTIES. EXCEPT FOR THE EXPRESS WARRANTIES IN THIS AGREEMENT, THE PRODUCT IS PROVIDED WITH NO OTHER WARRANTIES WHATSOEVER, AND BMC, ITS AFFILIATES AND LICENSORS DISCLAIM ALL OTHER WARRANTIES, INCLUDING, FITNESS FOR A PARTICULAR PURPOSE AND IN THE UNITED STATES AND CANADA, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, AND NON-INFRINGEMENT. BMC DOES NOT WARRANT THAT THE OPERATION OF THE PRODUCT WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT ALL DEFECTS CAN BE CORRECTED.
8. SUPPORT. The Order will include BMC support services (“Support”) for the total Licensed Capacity of the Products. A description of Support is located at www.bmc.com/support/review-policies, and is incorporated herein by this reference. BMC will notify Customer that it is time to renew at least 60 days prior to the end of the applicable prepaid Support period and Customer will provide notice to BMC if it does not intend to renew. BMC may change its Support terms to be effective at the end of any prepaid Support period. BMC reserves the right to discontinue Support for a Product where BMC generally discontinues such services to all licensees of that Product. For perpetual Licenses only, if Customer stops being enrolled in Support and then re-enrolls in Support, BMC may charge Customer a reinstatement fee.
9. PAYMENT, DELIVERY AND TAXES. The fees payable for Licenses and Support and the payment period for such fees will be set forth in and paid in accordance with the Order. All payments are due within 30 days of the date of the invoice. Customer will pay taxes imposed in connection with the fees paid for the License and/or Support, which are exclusive of these taxes. If Customer disputes an invoice in good faith, it will notify BMC within 30 days of receiving the invoice. The parties will seek to resolve such dispute over a 15-day discussion period. Customer is not required to pay disputed amounts during the discussion period, but will timely pay all undisputed amounts. After the discussion period, either party may pursue all available remedies. For Products that are delivered electronically, upon request from BMC, Customer agrees to provide BMC with documentation supporting that the designated Product was received electronically. If Customer accepts any Product in a non-electronic format, it is the sole responsibility of Customer to bear any sales/use tax obligation, penalties, and interest. Late balances may, at BMC’s sole election, bear interest at a rate equal to the lesser of 1% per month or the maximum amount permitted by law. All Products are licensed FCA (“Free Carrier” as per Incoterms 2000) shipping point. The Products are accepted on the date BMC delivers the Product to the Customer either physically or by providing access codes for electronic download, whichever occurs first, however, such acceptance will not affect the Product Performance Warranty provided in this Agreement. With regard to Products acquired by Customer through an authorized reseller ("Solution Provider") of BMC, notwithstanding anything to the contrary herein, Customer will have no direct payment obligations to BMC for such fees.
10. PROPRIETARY RIGHTS AND CONFIDENTIALITY.
10.1 Proprietary Rights. BMC, its Affiliates or licensors retain all right, title and interest to the Product, Support and all related intellectual property and proprietary rights. The Product and all third party software provided with the Product are protected by applicable copyright, trade secret, industrial and other intellectual property laws. BMC reserves any rights not expressly granted to Customer in this Agreement.
10.2 Confidentiality. “Confidential Information” means all proprietary or confidential information that is disclosed to the recipient (“Recipient”) by the discloser (“Discloser”), and includes, among other things (i) any and all information relating Discloser financial information, customers, employees, products or services, including, without limitation, software code, BMC product vulnerabilites, flow charts, techniques, specifications, development and marketing plans, strategies, forecasts, and proposal related documents and responses; (ii) as to BMC, and its licensors, the Product (excluding portions of the Documentation that BMC makes publicly available) and any third party software provided with the Product; and (iii) the terms of this Agreement, including without limitation, Product pricing information. Confidential Information does not include information that Recipient can show: (a) was rightfully in Recipient’s possession without any obligation of confidentiality before receipt from the Discloser; (b) is or becomes a matter of public knowledge through no fault of Recipient; (c) is rightfully received by Recipient from a third party without violation of a duty of confidentiality; or (d) is independently developed by or for Recipient. Recipient may not disclose Confidential Information of Discloser to any third party or use the Confidential Information in violation of this Agreement. The Recipient (i) will exercise the same degree of care and protection with respect to the Confidential Information of the Discloser that it exercises with respect to its own Confidential Information and (ii) will not, either directly or indirectly, disclose, copy, distribute, republish, or allow any third party to have access to any Confidential Information of the Discloser. Notwithstanding the foregoing, Recipient may disclose Discloser’s Confidential Information to Recipient’s employees and agents (if Recipient is BMC) and to Authorized User(s) (if Recipient is the Customer)who have the need to know provided that such employees, agents and Authorized User(s) have legal obligations of confidentiality substantially the same (and in no case less protective) as the provisions of this Agreement.
10.3 Notification Obligation. If the Recipient becomes aware of any unauthorized use or disclosure of Discloser’s Confidential Information, then Recipient will promptly and fully notify the Discloser of all facts known to it concerning such unauthorized use or disclosure. In addition, if the Recipient or any of its employees or agents are required (by oral questions, interrogatories, requests for information, or documents in legal proceedings, subpoena, civil investigative demand, or other similar process) to disclose any of Discloser’s Confidential Information, the Recipient will not disclose the Discloser’s Confidential Information without providing the Discloser with commercially reasonable advance prior written notice to allow Discloser to seek a protective order or other appropriate remedy or to waive compliance with this provision. In any event, the Recipient will exercise its commercially reasonable efforts to preserve the confidentiality of the portion of the Discloser’s Confidential Information that Recipient is bound to furnish, including, without limitation, cooperating with Discloser to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded to the portion of the Discloser’s Confidential Information that is furnished.
11. DISCLAIMER OF DAMAGES; LIMITS ON LIABILITY. EXCEPT FOR INFRINGEMENT CLAIMS (SECTION 13) AND INFRINGEMENT BY A PARTY OF THE OTHER PARTY'S IP RIGHTS, GROSS NEGLIGENCE, WILlFUL MISCONDUCT, DEATH OR BODILY INJURY, ACTS OF FRAUD AND ANY LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED BY LAW. NEITHER PARTY, ITS AFFILIATES OR BMC’s LICENSORS (a) ARE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES RELATING TO OR ARISING OUT OF THIS AGREEMENT , SUPPORT, THE PRODUCT OR ANY THIRD PARTY CODE OR SOFTWARE PROVIDED WITH THE PRODUCT (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST COMPUTER USAGE TIME, AND DAMAGE TO, OR LOSS OF USE OF DATA), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND IRRESPECTIVE OF NEGLIGENCE OF A PARTY OR WHETHER SUCH DAMAGES RESULT FROM A CLAIM ARISING UNDER TORT OR CONTRACT LAW AND (b) LIABILITY IN ANY EVENT SHALL NOT EXCEED THE AMOUNT PAID AND PAYABLE BY CUSTOMER FOR THE LICENSE TO THE APPLICABLE PRODUCT GIVING RISE TO SUCH DAMAGES.
12. TRIAL LICENSE. BMC may determine, in its sole discretion, to make products available to Customer without an Order and without charge. Such products are deemed to be “Products” pursuant to this Agreement except that (a) they are provided to Customer solely so that Customer may evaluate internally whether to acquire a license to the products for a fee, (b) the license term for such products is 30 days; (c) the Products are provided “AS IS” and without any warranty or support, and (d) the products cannot be put into productive use or included as part of Customer’s business processes in any manner, unless or until they are expressly licensed and paid for under an Order. BMC may terminate all of Customer’s rights and licenses to these Products for BMC’s convenience upon notice to Customer.
13. INFRINGEMENT CLAIMS. If a third party asserts a claim against Customer asserting that Customer’s use of a Product in accordance with this Agreement violates that third-party’s IP Rights (“Infringement Claim”), then BMC will, at its own expense: (a) defend or settle the Infringement Claim; and (b) indemnify Customer for any damages finally awarded or settled upon against Customer based on infringement by the Product. BMC’s obligations under this Section will not apply if: (a) BMC’s legal department does not receive prompt, detailed written notice of the Infringement Claim from Customer, (b) BMC is not able to retain sole control of the defense of the Infringement Claim and all negotiations for its settlement or compromise, or (c) BMC does not receive all reasonable assistance. BMC will not bind Customer to a monetary obligation in a settlement or compromise, or make an admission on behalf of Customer, without obtaining Customer’s prior consent. Customer must promptly install all Product updates BMC provides to mitigate any Infringement Claim. If BMC believes that use of the Product should be stopped because of an Infringement Claim or potential Infringement Claim, if a court of competent jurisdiction enjoins Customer from using a Product as a result of an Infringement Claim and BMC is unable to have such injunction stayed or overturned, or if BMC settles an Infringement Claim on terms that would require Customer to stop using the Product, then BMC will, at its expense and election: (a) modify or replace the Product, (b) procure the right to continue using the Product, or (c) if in BMC’s reasonable judgment, neither (a) or (b) is commercially reasonable, terminate Customer's License to the Product and (i) for any perpetual licenses, issue a refund based upon the applicable license fees paid, prorated over 48 months from the date of the Order under which the Products were initially licensed; and (ii) for any non-perpetual licenses, release Customer from its obligation to make future payments for the Product or issue a pro rata refund for any fees paid in advance. This Section contains Customer's exclusive remedies and BMC's sole liability for Infringement Claims.
14. TERMINATION. Upon thirty days advance written notice, either party may terminate this Agreement for its convenience on a prospective basis; however, such termination will have no effect on Orders placed prior to its effective date and such Orders will remain in full force and effect under the terms of this Agreement. Either party may terminate this Agreement and/or an Order for cause on 30 days’ written notice for material breach if the other party fails to cure the breach within 30-day-notice period. Upon any termination of a License, Customer will immediately uninstall and stop using the relevant Product, and upon BMC's request, Customer will immediately return such Product to BMC, together with all related Documentation and copies, or certify its destruction in writing. Any terms in this Agreement which by their nature extend beyond termination of this Agreement will remain in effect until fulfilled.
15. AUDIT. If requested by BMC, and not more than once a year, Customer agrees to deliver to BMC, within 30 days of such request, as specified by BMC (a) periodic product usage reports generated from specific products, (b) third party usage reports related to the Products (e.g., SCRT reports) and (c) written periodic product usage reports, to be provided solely when the product does not generate reports (together, “Reports”). Additionally, if requested by BMC not more than once a year and upon at least 10 (ten) days prior written notice to Customer, Customer agrees to allow BMC to perform an audit (“Audit”) to ensure compliance with the terms of this Agreement at the locations where the Products are installed, during normal business hours. Customer agrees to cooperate during any such Audit and to provide reasonable access to its information and systems. If Customer is found to have exceeded its Licensed Capacity for a Product based on such Reports or Audit, then Customer agrees to pay the applicable fees for the additional capacity through the end of the applicable Order term upon receipt of an invoice from BMC.
16. EXPORT CONTROLS. Both parties agree to comply with applicable export regulations, including but not limited to U.S. Export Administration Regulations and the OFAC embargoes and sanctions lists. More information on BMC’s export compliance program may be found here: https://www.bmc.com/legal/export-compliance.html.
17. GOVERNING LAW AND DISPUTE RESOLUTION. Any controversy, dispute or claim arising out of or relating to this Agreement, or to the formation, interpretation, breach, termination, or validity thereof (each, a “Controversy”) will be resolved as follows:
(i) UNITED STATES. If both parties to this Agreement are entities incorporated under the law of any state in the United States, the Controversy shall be tried in either state or federal court located in Houston, Texas and the laws of the State of Texas shall govern. Both parties hereby submit to the exclusive jurisdiction of the courts in Houston, Texas and waive all defenses based on forum non conveniens. Notwithstanding the foregoing, if Customer is a state or local governmental entity or higher education institution and legally required to apply state law, then Customer’s state law will apply to the Controversy, without reference to conflict of law principles.
(ii) CANADA. If Customer is located in Canada (outside Quebec), then the law of the Province of Ontario law apply, without reference to conflict of law principles. If Customer is located in Quebec, then the laws of the Province Quebec will apply, without reference to conflict of law principles.
(iii) EMEA. If both parties to this Agreement are entities incorporated in countries in the Europe, Middle East, or Africa regions, the Controversy shall be tried in the District Court located in Amsterdam, the Netherlands and the substantive laws of the Netherlands shall govern. Both parties hereby submit to the exclusive jurisdiction of the District Court in Amsterdam, the Netherlands and waive all defenses based on forum non conveniens.
(iv) ASIA PACIFIC. If both parties to this Agreement are entities incorporated in countries in the Asia Pacific region, the arbitration shall be held in Singapore under the then-applicable rules of the Singapore International Arbitration Centre and the substantive laws of Singapore will govern.
(v) OTHER REGIONS. In all other instances, the arbitration shall be held in New York City, New York, under the then-applicable international rules of the American Arbitration Association and the substantive laws of the State of Texas will govern.
For all arbitrations conducted hereunder: (a) the arbitration shall be conducted in English; (b) the relevant arbitral institution shall determine the number of arbitrators, but any Controversy in which the amount in dispute is greater than $10 million USD shall be decided by three arbitrators, with each party having the right to select one arbitrator; (c) the costs of such arbitration shall be borne equally, pending the arbitrator’s award; (d) the arbitration award rendered shall be final and binding on the parties, shall not be subject to appeal to any court and shall be enforceable in any court having jurisdiction over the parties; (e) the arbitration proceedings, award and pleadings shall all be confidential, unless disclosure of particular information is required for purposes of enforcing/challenging the award or to meet local securities law requirements; and (f) the party prevailing in arbitration shall be entitled to recover its reasonable attorneys’ fees and the necessary costs incurred in connection with the arbitration.
The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. Nothing in this Agreement shall be deemed as preventing either party from seeking immediate injunctive relief from any court having jurisdiction over the parties and the subject matter of the dispute.
18. BMC ENTITIES. The following licensing entities apply to this Agreement:
Region | Licensing Entity | Address of Licensing Entity |
---|---|---|
United States and Latin America South (not a specified Central or South America country below) | BMC Software, Inc. | 2103 CityWest Boulevard, Houston, Texas 77042 |
Canada | BMC Software Canada Inc. | 50 Minthorn Boulevard, Suite 200, Markham, Ontario L3T 7X8 Canada |
EMEA (Europe, Middle East and Africa) | BMC Software Distribution B.V. | Vision Plaza West, 2nd floor, Boeingavenue 220, 1119PN Schiphol-Rijk, The Netherlands |
Brazil | BMC Software do Brasil Ltda. | Avenida Rebouças n° 3.970 e Avenida Dra. Ruth Cardoso, n° 8.501 Condomínio Eldorado Business Tower, 22° andar, Pinheiros, São Paulo – SP, CEP: 05425-070 |
Mexico | BMC Software Distribution de México, S.A. de C.V. | Calle Volcán, No.150, Piso 2, Oficina 202, Col. Lomas de Chapultepec V Sección, C.P. 11000, Alcaldía Miguel Hidalgo, Ciudad de México |
Argentina | BMC Software de Argentina S.A. | Ing. Butty 220 - Piso 18, Catalinas Plaza Buenos Aires, República de Argentina, C1001A |
S.E.A (Southeast Asia), Australia, New Zealand, Hong Kong, Taiwan | BMC Software Ireland Unlimited Company | Building 3, Cherrywood Business Park, Bray Road, Loughlinstown, CO. Dublin, D18 TF72 |
China | BMC Software (China) Limited | Room 502, Level 5, Tower W1, The Towers, Oriental Plaza, No. 1 East Chang An Ave., Dong Cheng Dist., Beijing 100738, China |
Japan | BMC Software K.K. | Harmony Tower 24th Floor, 1-32-2 Honcho, Nakano-ku, Tokyo, 164-8721 |
Korea | BMC Software Korea Ltd | 9 FL Two IFC, 10 Gukjekeumyung-ro, Youngdeungpogu, Seoul 07326, South Korea |
19. ASSIGNMENT AND TRANSFERS. Customer has the right to assign this Agreement or a License in whole to an Affiliate, or to a successor in connection with (i) the sale of all or substantially all of the assets of that party or (ii) a merger by operation of law by providing written notice to BMC. The assignee may not be a known direct competitor of BMC. The successor or Affiliate must agree in writing with BMC (in advance of the assignment) to be bound by the terms of this Agreement. Any Customer transfer or assignment except as expressly authorized above will be null and void.
20. DATA PROTECTION. The processing of personal data under this Agreement is governed by the Data Processing Agreement set forth on the Order, unless BMC already has a signed Data Processing Agreement with Customer for such BMC offerings; in which case, the signed version governs the processing of personal data. In the event there is no signed Data Processing Agreement or no reference to the applicable Data Processing Agreement in the Order, BMC and Customer agree that the Data Processing Agreement applicable on the date of the Order, a copy of which may be viewed at https://www.bmc.com/content/dam/bmc/corporate/bmcdpa.pdf, applies to the BMC offerings under this Agreement.
21. NOTICES. Any demand, notice, consent, or other communication required by this Agreement must be given in writing and shall be deemed delivered upon receipt when delivered personally or upon confirmation of receipt following delivery by internationally recognized overnight courier service to the addresses specified on the applicable Order.
22. CONDUCTING BUSINESS WITH HONEST AND INTEGRITY. BMC is committed to conducting business with honesty and integrity. BMC’s Code of Conduct set forth in https://www.bmc.com/legal/code-of-conduct.html governs the conduct of all officers, directors, and employees of BMC, and contingent workers and business partners acting on BMC’s behalf. BMC demonstrates its commitment to environmental stewardship by its global accreditation for ISO 14001:2015.
23. MISCELLANEOUS TERMS. A waiver by a party of any breach of any term of this Agreement will not be construed as a waiver of any continuing or succeeding breach. Should any term of this Agreement be invalid or unenforceable, the remaining terms will remain in effect. The parties acknowledge they have read this Agreement and agree that it is the complete and exclusive statement of the agreement and supersedes and replaces (i) any prior or contemporaneous negotiations or agreements between the parties relating to the subject matter of this Agreement and (ii) terms contained on or accessed through any customer portal or vendor onboarding website BMC is required to agree to. There are no representations, promises, warranties, covenants, or undertakings between the parties other than those expressly set forth in this Agreement. This Agreement may not be modified or rescinded except in writing signed by both parties. There are no third-party beneficiaries to this Agreement; Customer is not entering into a contractual relationship with BMC’s licensors and BMC’s licensors have no liability to Customer. Any delay or failure of any party to perform any obligation under this Agreement caused by governmental restrictions, labor disputes, storms or natural disasters, emergency, or other causes beyond the reasonable control of the party, will not be deemed a breach of this Agreement; provided, however, this provision does not apply to failure to pay fees or any breach of Section 10. The BMC Products may contain third party software which is delivered to Customer as part of the Product and may not be taken out of the Product or used separately from the Product and for which additional terms may be included in the Documentation. The Product may contain hyperlinks to websites controlled by parties other than BMC. BMC is not responsible for and does not endorse the content or accept any responsibility for Customer’s use of these websites. Customer should refer to the policies posted by other websites regarding data privacy and other topics before using them. Any additional documents presented to a BMC representative by Customer for signature as a condition for going on a Customer’s site will be governed by this Agreement and to the extent that such document presents additional terms or conflicts with this Agreement, it shall be considered null and void. BMC may compile and use de-identified, aggregate or statistical information related to Customer’s use of the Products for the purposes of enhancing and improving the Products, developing new products and services, and for other development, diagnostic, statistical and corrective purposes, provided that such information (a) does not incorporate Customer’s personally identifiable information or personal data and (b) does not identify or describe the Customer. Les parties exigent que la présente convention ainsi que les documents qui s’y rattachent soient rédigés en anglais.
24. U.S. GOVERNMENT END USER RIGHTS. This Section applies only to acquisitions of the commercial Product and Documentation subject to this Agreement by or on behalf of the United States Government, or by any prime contractor or subcontractor (at any tier) under any contract, grant, agreement or other activity with the United States Government. When Products are delivered or provided to the United States Government, the United States Government agrees that this commercial license Agreement and the Products governed by this Agreement are defined in accordance with and qualify as “commercial items” consisting of “commercial computer software” and “commercial computer software documentation” as outlined in FAR 12.211, FAR 12.212 and DFARS 227.7202-3, as applicable. The terms and conditions of this Agreement shall pertain to the United States Government’s use (including documentation or technical data), duplication, and disclosure of the Product, and shall supersede any conflicting contractual terms and conditions.
YOU AGREE THAT YOU HAVE READ THIS AGREEMENT AND INTEND TO BE BOUND, AS IF YOU HAD SIGNED THIS AGREEMENT IN WRITING. IF YOU ARE ACTING ON BEHALF OF AN ENTITY, YOU WARRANT THAT YOU HAVE THE AUTHORITY TO ACCEPT THE TERMS OF THIS AGREEMENT FOR SUCH ENTITY.
Effective January 30th 2024 to May 10th 2024
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END USER LICENSE AGREEMENT
BY OPENING THE PACKAGE, DOWNLOADING OR INSTALLING, PRESSING “AGREE” OR “YES” OR USING THE PRODUCT, THE ENTITY OR INDIVIDUAL ENTERING INTO THIS AGREEMENT AGREES TO BE BOUND BY THE FOLLOWING TERMS. IF YOU DO NOT AGREE WITH ANY OF THESE TERMS, DO NOT INSTALL OR USE THE PRODUCT, PROMPTLY RETURN THE PRODUCT TO BMC OR YOUR BMC RESELLER. IF YOU REJECT THIS AGREEMENT, YOU WILL NOT ACQUIRE ANY LICENSE TO USE THE PRODUCT.
This Agreement ("Agreement") is between the entity or individual entering into this Agreement (“Customer”) and the BMC Entity for the applicable Region where Customer acquired the License as described in Section 18 (“BMC”). This Agreement was last updated on January 30, 2024. For Customer’s convenience, prior versions of this Agreement are available at https://www.bmc.com/legal/end-user-license-agreements.html.
1. GENERAL DEFINITIONS.
1.1 “Affiliate” is an entity that controls, is controlled by or shares common control with BMC or Customer, where such control arises from the legal power to direct or cause the direction of the general management and policies of the company, partnership or legal entity.
1.2 “Authorized User” means Customer, Customer Affiliate(s), and their employees, consultants, contractors and agents that are bound by the terms and conditions no less restrictive than those contained herein and for whom Customer takes full responsibility. Authorized Users do not include service providers or outsourcers.
1.3 "Documentation" means the technical publications relating to the software, such as release notes, license entitlement descriptions, reference, user, installation, systems administrator and technical guidelines, included with the Product.
1.4 “IP Rights” means all intellectual property or other proprietary rights worldwide, including patents, trade secrets, copyrights, trademarks, moral rights, and any other intellectual or industrial property including registrations, applications, renewals, and extensions of such rights.
1.5 “Licensed Capacity” is the amount of each Product licensed as established in the Order. Any Units of Measure and License Restrictions related to the Licensed Capacity will be set forth in the Order.
1.6 “Order” is an agreed written or electronic document, subject to the terms of this Agreement that identifies the Products to be licensed and the Licensed Capacity and/or the Support to be purchased and the fees to be paid.
1.7 “Product” is the object code of all generally available software and accompanying Documentation delivered to Customer, including all items delivered by BMC to Customer under Support.
1.8 “Support” is the support services program as further specified in this Agreement.
1.9 “Territory” means the country(ies) where Customer is licensed to install the Product as specified in the Order.
2. SCOPE. Licenses are granted, and Support is obtained, solely by execution of Orders. Each Order is deemed to be a discrete contract, separate from each other Order, unless expressly stated otherwise therein, and in the event of a direct conflict between any Order and the terms of this Agreement, the terms of the Order will control only if the Order is agreed to by each party. Neither execution of this Agreement, nor anything contained herein, shall obligate either party to enter into any Orders. In the event an Order is proposed by BMC and is deemed to constitute an offer, then acceptance of such offer is limited to its terms. In the event Customer proposes an Order by submitting a purchase order, then regardless of whether BMC acknowledges, accepts or fully or partially performs under such purchase order, BMC OBJECTS to any additional or different terms in the purchase order.
3. LICENSE. Subject to the terms, conditions, payment requirements and restrictions set forth in this Agreement, BMC grants Customer a non-exclusive, non-transferable, non-sub-licensable non-perpetual (unless a perpetual license is provided on an Order) license to install in the Territory, access and use the Product (i) by Authorized User(s), (ii) up to the Licensed Capacity, (iii) for Customer’s and its Affiliates internal business operations, (iv) in accordance with the Documentation and the applicable Order, and (v) make a reasonable number of copies of the Product and the Documentation for archival purposes only (collectively a "License"). Affiliates may use and access the Products and Support under the terms of this Agreement, and Customer is responsible for its Affiliates compliance with the terms of this Agreement.
4. RESTRICTIONS. Customer will not: (a) copy, operate or use any Product in excess of the applicable Licensed Capacity or other than as set forth in the License above; (b) modify, delete or remove any ownership, title, trademark, patent or copyright notices from any Product, or copy or partial copy of a Product; (c) disassemble, reverse engineer, decompile or otherwise attempt to derive any Product source code from object code, except to the extent expressly permitted by applicable law despite this limitation without possibility of contractual waiver; (d) distribute, rent, lease, sublicense or provide the Product to any third party; (e) use the Products in an outsourcing or service bureau environment on behalf of non-Affiliate third parties, or allow the products to be used by an outsourcing or service bureau provider on Customer’s behalf; (f) conduct penetration test or security vulnerability tests of any type on the Products without BMC’s prior written consent; (g) publish or make public any benchmark, security, or performance data or information about the Products without BMC’s prior written consent; or (h) attempt to disable or circumvent any of the licensing mechanisms within the Product.
5. PRODUCT PERFORMANCE WARRANTY. BMC warrants that (a) the Product will perform in substantial accordance with its Documentation for a period of one year from the date of the first Order, (b) BMC has used commercially reasonable efforts consistent with industry standards to scan for and remove software viruses, and (c) other than passwords that may be required for the operation of the Product, BMC has not inserted any code that is not addressed in the Documentation and that is designed to delete, interfere with or disable the normal operation of the Product in accordance with the License. This warranty will not apply to any problems caused by hardware, Computers, or software other than the Product, or misuse of the Product, use of the Product other than as provided by the applicable License, modification of the Product, or claims made either outside the warranty period or not in compliance with the notice and access requirements set forth below. No warranty is provided for additional Licensed Capacity, Product provided pursuant to Support or Product provided pursuant to Section 12.
6. LIMITED REMEDIES. BMC’s entire liability, and Customer’s exclusive remedy, for breach of the above warranty is limited to: BMC’s use of commercially reasonable efforts to have the Product perform in substantial accordance with its Documentation, or replacement of the non-conforming Product within a reasonable period of time, or if BMC cannot have the Product perform in substantial accordance with its Documentation replace the Product within such time period, then BMC will refund the amount paid by Customer for the License for that Product. Customer agrees to provide BMC during the warranty period (a) full cooperation and access to the Product in resolving any claim; and (b) written notice that includes notice of the claim, a complete description of the alleged defects sufficient to permit their reproduction in BMC’s development or support environment, and a reference to the Documentation to which such alleged defects are contrary.
7. DISCLAIMER OF WARRANTIES. EXCEPT FOR THE EXPRESS WARRANTIES IN THIS AGREEMENT, THE PRODUCT IS PROVIDED WITH NO OTHER WARRANTIES WHATSOEVER, AND BMC, ITS AFFILIATES AND LICENSORS DISCLAIM ALL OTHER WARRANTIES, INCLUDING, FITNESS FOR A PARTICULAR PURPOSE AND IN THE UNITED STATES AND CANADA, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, AND NON-INFRINGEMENT. BMC DOES NOT WARRANT THAT THE OPERATION OF THE PRODUCT WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT ALL DEFECTS CAN BE CORRECTED.
8. SUPPORT. The Order will include BMC support services (“Support”) for the total Licensed Capacity of the Products. A description of Support is located at www.bmc.com/support/review-policies, and is incorporated herein by this reference. BMC will notify Customer that it is time to renew at least 60 days prior to the end of the applicable prepaid Support period and Customer will provide notice to BMC if it does not intend to renew. BMC may change its Support terms to be effective at the end of any prepaid Support period. BMC reserves the right to discontinue Support for a Product where BMC generally discontinues such services to all licensees of that Product. For perpetual Licenses only, if Customer stops being enrolled in Support and then re-enrolls in Support, BMC may charge Customer a reinstatement fee.
9. PAYMENT, DELIVERY AND TAXES. Customer will pay each License fee and/or Support fee within 30 days of the date of the invoice. Customer will pay taxes imposed in connection with the fees paid for the License and/or Support, which are exclusive of these taxes. If Customer disputes an invoice in good faith, it will notify BMC within 30 days of receiving the invoice. The parties will seek to resolve such dispute over a 15-day discussion period. Customer is not required to pay disputed amounts during the discussion period, but will timely pay all undisputed amounts. After the discussion period, either party may pursue all available remedies. For Products that are delivered electronically, upon request from BMC, Customer agrees to provide BMC with documentation supporting that the designated Product was received electronically. If Customer accepts any Product in a non-electronic format, it is the sole responsibility of Customer to bear any sales/use tax obligation, penalties, and interest. Late balances may, at BMC’s sole election, bear interest at a rate equal to the lesser of 1% per month or the maximum amount permitted by law. All Products are licensed FCA (“Free Carrier” as per Incoterms 2000) shipping point. The Products are accepted on the date BMC delivers the Product to the Customer either physically or by providing access codes for electronic download, whichever occurs first, however, such acceptance will not affect the Product Performance Warranty provided in this Agreement. With regard to Products acquired by Customer through an authorized reseller ("Solution Provider") of BMC, notwithstanding anything to the contrary herein, Customer will have no direct payment obligations to BMC for such fees.
10. PROPRIETARY RIGHTS AND CONFIDENTIALITY. (a) BMC, its Affiliates or licensors retain all right, title and interest to the Product, Support and all related intellectual property and proprietary rights. The Product and all third party software provided with the Product are protected by applicable copyright, trade secret, industrial and other intellectual property laws. BMC reserves any rights not expressly granted to Customer in this Agreement. (b) “Confidential Information” means all proprietary or confidential information that is disclosed to the recipient (“Recipient”) by the discloser (“Discloser”), and includes, among other things (i) any and all information relating Discloser financial information, customers, employees, products or services, including, without limitation, software code, BMC product vulnerabilites, flow charts, techniques, specifications, development and marketing plans, strategies, forecasts, and proposal related documents and responses; (ii) as to BMC, and its licensors, the Product (excluding portions of the Documentation that BMC makes publicly available) and any third party software provided with the Product; and (iii) the terms of this Agreement, including without limitation, Product pricing information. Confidential Information does not include information that Recipient can show: (a) was rightfully in Recipient’s possession without any obligation of confidentiality before receipt from the Discloser; (b) is or becomes a matter of public knowledge through no fault of Recipient; (c) is rightfully received by Recipient from a third party without violation of a duty of confidentiality; or (d) is independently developed by or for Recipient. Recipient may not disclose Confidential Information of Discloser to any third party or use the Confidential Information in violation of this Agreement. The Recipient (i) will exercise the same degree of care and protection with respect to the Confidential Information of the Discloser that it exercises with respect to its own Confidential Information and (ii) will not, either directly or indirectly, disclose, copy, distribute, republish, or allow any third party to have access to any Confidential Information of the Discloser. Notwithstanding the foregoing, Recipient may disclose Discloser’s Confidential Information to Recipient’s employees and agents (if Recipient is BMC) and to Authorized User(s) (if Recipient is the Customer)who have the need to know provided that such employees, agents and Authorized User(s) have legal obligations of confidentiality substantially the same (and in no case less protective) as the provisions of this Agreement. (c) Notification Obligation. If the Recipient becomes aware of any unauthorized use or disclosure of Discloser’s Confidential Information, then Recipient will promptly and fully notify the Discloser of all facts known to it concerning such unauthorized use or disclosure. In addition, if the Recipient or any of its employees or agents are required (by oral questions, interrogatories, requests for information, or documents in legal proceedings, subpoena, civil investigative demand, or other similar process) to disclose any of Discloser’s Confidential Information, the Recipient will not disclose the Discloser’s Confidential Information without providing the Discloser with commercially reasonable advance prior written notice to allow Discloser to seek a protective order or other appropriate remedy or to waive compliance with this provision. In any event, the Recipient will exercise its commercially reasonable efforts to preserve the confidentiality of the portion of the Discloser’s Confidential Information that Recipient is bound to furnish, including, without limitation, cooperating with Discloser to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded to the portion of the Discloser’s Confidential Information that is furnished.
11. DISCLAIMER OF DAMAGES; LIMITS ON LIABILITY. EXCEPT FOR INFRINGEMENT CLAIMS (SECTION 13) AND INFRINGEMENT BY A PARTY OF THE OTHER PARTY'S IP RIGHTS, GROSS NEGLIGENCE, WILlFUL MISCONDUCT, DEATH OR BODILY INJURY, ACTS OF FRAUD AND ANY LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED BY LAW. NEITHER PARTY, ITS AFFILIATES OR BMC’s LICENSORS (a) ARE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES RELATING TO OR ARISING OUT OF THIS AGREEMENT , SUPPORT, THE PRODUCT OR ANY THIRD PARTY CODE OR SOFTWARE PROVIDED WITH THE PRODUCT (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST COMPUTER USAGE TIME, AND DAMAGE TO, OR LOSS OF USE OF DATA), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND IRRESPECTIVE OF NEGLIGENCE OF A PARTY OR WHETHER SUCH DAMAGES RESULT FROM A CLAIM ARISING UNDER TORT OR CONTRACT LAW AND (b) LIABILITY IN ANY EVENT SHALL NOT EXCEED THE AMOUNT PAID AND PAYABLE BY CUSTOMER FOR THE LICENSE TO THE APPLICABLE PRODUCT GIVING RISE TO SUCH DAMAGES.
12. TRIAL LICENSE. BMC may determine, in its sole discretion, to make products available to Customer without an Order and without charge. Such products are deemed to be “Products” pursuant to this Agreement except that (a) they are provided to Customer solely so that Customer may evaluate internally whether to acquire a license to the products for a fee, (b) the license term for such products is 30 days; (c) the Products are provided “AS IS” and without any warranty or support, and (d) the products cannot be put into productive use or included as part of Customer’s business processes in any manner, unless or until they are expressly licensed and paid for under an Order. BMC may terminate all of Customer’s rights and licenses to these Products for BMC’s convenience upon notice to Customer.
13. INFRINGEMENT CLAIMS. If a third party asserts a claim against Customer asserting that Customer’s use of a Product in accordance with this Agreement violates that third-party’s IP Rights (“Infringement Claim”), then BMC will, at its own expense: (a) defend or settle the Infringement Claim; and (b) indemnify Customer for any damages finally awarded or settled upon against Customer based on infringement by the Product. BMC’s obligations under this Section will not apply if: (a) BMC’s legal department does not receive prompt, detailed written notice of the Infringement Claim from Customer, (b) BMC is not able to retain sole control of the defense of the Infringement Claim and all negotiations for its settlement or compromise, or (c) BMC does not receive all reasonable assistance. BMC will not bind Customer to a monetary obligation in a settlement or compromise, or make an admission on behalf of Customer, without obtaining Customer’s prior consent. Customer must promptly install all Product updates BMC provides to mitigate any Infringement Claim. If BMC believes that use of the Product should be stopped because of an Infringement Claim or potential Infringement Claim, if a court of competent jurisdiction enjoins Customer from using a Product as a result of an Infringement Claim and BMC is unable to have such injunction stayed or overturned, or if BMC settles an Infringement Claim on terms that would require Customer to stop using the Product, then BMC will, at its expense and election: (a) modify or replace the Product, (b) procure the right to continue using the Product, or (c) if in BMC’s reasonable judgment, neither (a) or (b) is commercially reasonable, terminate Customer's License to the Product and (i) for any perpetual licenses, issue a refund based upon the applicable license fees paid, prorated over 48 months from the date of the Order under which the Products were initially licensed; and (ii) for any non-perpetual licenses, release Customer from its obligation to make future payments for the Product or issue a pro rata refund for any fees paid in advance. This Section contains Customer's exclusive remedies and BMC's sole liability for Infringement Claims.
14. TERMINATION. Upon thirty days advance written notice, either party may terminate this Agreement for its convenience on a prospective basis; however, such termination will have no effect on Orders placed prior to its effective date and such Orders will remain in full force and effect under the terms of this Agreement. Either party may terminate this Agreement and/or an Order for cause on 30 days’ written notice for material breach if the other party fails to cure the breach within 30-day-notice period. Upon any termination of a License, Customer will immediately uninstall and stop using the relevant Product, and upon BMC's request, Customer will immediately return such Product to BMC, together with all related Documentation and copies, or certify its destruction in writing. Any terms in this Agreement which by their nature extend beyond termination of this Agreement will remain in effect until fulfilled.
15. AUDIT. If requested by BMC, and not more than once a year, Customer agrees to deliver to BMC, within 30 days of such request, as specified by BMC (a) periodic product usage reports generated from specific products, (b) third party usage reports related to the Products (e.g., SCRT reports) and (c) written periodic product usage reports, to be provided solely when the product does not generate reports (together, “Reports”). Additionally, if requested by BMC not more than once a year and upon at least 10 (ten) days prior written notice to Customer, Customer agrees to allow BMC to perform an audit (“Audit”) to ensure compliance with the terms of this Agreement at the locations where the Products are installed, during normal business hours. Customer agrees to cooperate during any such Audit and to provide reasonable access to its information and systems. If Customer is found to have exceeded its Licensed Capacity for a Product based on such Reports or Audit, then Customer agrees to pay the applicable fees for the additional capacity through the end of the applicable Order term upon receipt of an invoice from BMC.
16. EXPORT CONTROLS. Both parties agree to comply with applicable export regulations, including but not limited to U.S. Export Administration Regulations and the OFAC embargoes and sanctions lists. More information on BMC’s export compliance program may be found here: https://www.bmc.com/legal/export-compliance.html.
17. GOVERNING LAW AND DISPUTE RESOLUTION. Any controversy, dispute or claim arising out of or relating to this Agreement, or to the formation, interpretation, breach, termination, or validity thereof (each, a “Controversy”) will be resolved as follows:
(i) UNITED STATES. If both parties to this Agreement are entities incorporated under the law of any state in the United States, the Controversy shall be tried in either state or federal court located in Houston, Texas and the laws of the State of Texas shall govern. Both parties hereby submit to the exclusive jurisdiction of the courts in Houston, Texas and waive all defenses based on forum non conveniens. Notwithstanding the foregoing, if Customer is a state or local governmental entity or higher education institution and legally required to apply state law, then Customer’s state law will apply to the Controversy, without reference to conflict of law principles.
(ii) CANADA. If Customer is located in Canada (outside Quebec), then the law of the Province of Ontario law apply, without reference to conflict of law principles. If Customer is located in Quebec, then the laws of the Province Quebec will apply, without reference to conflict of law principles.
(iii) EMEA. If both parties to this Agreement are entities incorporated in countries in the Europe, Middle East, or Africa regions, the Controversy shall be tried in the District Court located in Amsterdam, the Netherlands and the substantive laws of the Netherlands shall govern. Both parties hereby submit to the exclusive jurisdiction of the District Court in Amsterdam, the Netherlands and waive all defenses based on forum non conveniens.
(iv) ASIA PACIFIC. If both parties to this Agreement are entities incorporated in countries in the Asia Pacific region, the arbitration shall be held in Singapore under the then-applicable rules of the Singapore International Arbitration Centre and the substantive laws of Singapore will govern.
(v) OTHER REGIONS. In all other instances, the arbitration shall be held in New York City, New York, under the then-applicable international rules of the American Arbitration Association and the substantive laws of the State of Texas will govern.
For all arbitrations conducted hereunder: (a) the arbitration shall be conducted in English; (b) the relevant arbitral institution shall determine the number of arbitrators, but any Controversy in which the amount in dispute is greater than $10 million USD shall be decided by three arbitrators, with each party having the right to select one arbitrator; (c) the costs of such arbitration shall be borne equally, pending the arbitrator’s award; (d) the arbitration award rendered shall be final and binding on the parties, shall not be subject to appeal to any court and shall be enforceable in any court having jurisdiction over the parties; (e) the arbitration proceedings, award and pleadings shall all be confidential, unless disclosure of particular information is required for purposes of enforcing/challenging the award or to meet local securities law requirements; and (f) the party prevailing in arbitration shall be entitled to recover its reasonable attorneys’ fees and the necessary costs incurred in connection with the arbitration.
The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. Nothing in this Agreement shall be deemed as preventing either party from seeking immediate injunctive relief from any court having jurisdiction over the parties and the subject matter of the dispute.
18. BMC ENTITIES. The following licensing entities apply to this Agreement:
Region | Licensing Entity | Address of Licensing Entity |
---|---|---|
United States and Latin America South (not a specified Central or South America country below) | BMC Software, Inc. | 2103 CityWest Boulevard, Houston, Texas 77042 |
Canada | BMC Software Canada Inc. | 50 Minthorn Boulevard, Suite 200, Markham, Ontario L3T 7X8 Canada |
EMEA (Europe, Middle East and Africa) | BMC Software Distribution B.V. | Vision Plaza West, 2nd floor, Boeingavenue 220, 1119PN Schiphol-Rijk, The Netherlands |
Brazil | BMC Software do Brasil Ltda. | Avenida Rebouças n° 3.970 e Avenida Dra. Ruth Cardoso, n° 8.501 Condomínio Eldorado Business Tower, 22° andar, Pinheiros, São Paulo – SP, CEP: 05425-070 |
Mexico | BMC Software Distribution de México, S.A. de C.V. | Calle Volcán, No.150, Piso 2, Oficina 202, Col. Lomas de Chapultepec V Sección, C.P. 11000, Alcaldía Miguel Hidalgo, Ciudad de México |
Argentina | BMC Software de Argentina S.A. | Ing. Butty 220 - Piso 18, Catalinas Plaza Buenos Aires, República de Argentina, C1001A |
S.E.A (Southeast Asia), Australia, New Zealand, Hong Kong, Taiwan | BMC Software Ireland Unlimited Company | Building 3, Cherrywood Business Park, Bray Road, Loughlinstown, CO. Dublin, D18 TF72 |
China | BMC Software (China) Limited | Room 502, Level 5, Tower W1, The Towers, Oriental Plaza, No. 1 East Chang An Ave., Dong Cheng Dist., Beijing 100738, China |
Japan | BMC Software K.K. | Harmony Tower 24th Floor, 1-32-2 Honcho, Nakano-ku, Tokyo, 164-8721 |
Korea | BMC Software Korea Ltd | 9 FL Two IFC, 10 Gukjekeumyung-ro, Youngdeungpogu, Seoul 07326, South Korea |
19. ASSIGNMENT AND TRANSFERS. Customer has the right to assign this Agreement or a License in whole to an Affiliate, or to a successor in connection with (i) the sale of all or substantially all of the assets of that party or (ii) a merger by operation of law by providing written notice to BMC. The assignee may not be a known direct competitor of BMC. The successor or Affiliate must agree in writing with BMC (in advance of the assignment) to be bound by the terms of this Agreement. Any Customer transfer or assignment except as expressly authorized above will be null and void.
20. DATA PROTECTION. The processing of personal data under this Agreement is governed by the Data Processing Agreement set forth on the Order, unless BMC already has a signed Data Processing Agreement with Customer for such BMC offerings; in which case, the signed version governs the processing of personal data. In the event there is no signed Data Processing Agreement or no reference to the applicable Data Processing Agreement in the Order, BMC and Customer agree that the Data Processing Agreement applicable on the date of the Order, a copy of which may be viewed at https://www.bmc.com/content/dam/bmc/corporate/bmcdpa.pdf, applies to the BMC offerings under this Agreement.
21. NOTICES. Any demand, notice, consent, or other communication required by this Agreement must be given in writing and shall be deemed delivered upon receipt when delivered personally or upon confirmation of receipt following delivery by internationally recognized overnight courier service to the addresses specified on the applicable Order.
22. CONDUCTING BUSINESS WITH HONEST AND INTEGRITY. BMC is committed to conducting business with honesty and integrity. BMC’s Code of Conduct set forth in https://www.bmc.com/legal/code-of-conduct.html governs the conduct of all officers, directors, and employees of BMC, and contingent workers and business partners acting on BMC’s behalf. BMC demonstrates its commitment to environmental stewardship by its global accreditation for ISO 14001:2015.
23. MISCELLANEOUS TERMS. A waiver by a party of any breach of any term of this Agreement will not be construed as a waiver of any continuing or succeeding breach. Should any term of this Agreement be invalid or unenforceable, the remaining terms will remain in effect. The parties acknowledge they have read this Agreement and agree that it is the complete and exclusive statement of the agreement and supersedes any prior or contemporaneous negotiations or agreements between the parties relating to the subject matter of this Agreement. There are no representations, promises, warranties, covenants, or undertakings between the parties other than those expressly set forth in this Agreement. This Agreement may not be modified or rescinded except in writing signed by both parties. Any delay or failure of any party to perform any obligation under this Agreement caused by governmental restrictions, labor disputes, storms or natural disasters, emergency, or other causes beyond the reasonable control of the party, will not be deemed a breach of this Agreement; provided, however, this provision does not apply to failure to pay fees or any breach of Section 10. The BMC Products may contain third party software which is delivered to Customer as part of the Product and may not be taken out of the Product or used separately from the Product and for which additional terms may be included in the Documentation. The Product may contain hyperlinks to websites controlled by parties other than BMC. BMC is not responsible for and does not endorse the content or accept any responsibility for Customer’s use of these websites. Customer should refer to the policies posted by other websites regarding data privacy and other topics before using them. Any additional documents presented to a BMC representative by Customer for signature as a condition for going on a Customer’s site will be governed by this Agreement and to the extent that such document presents additional terms or conflicts with this Agreement, it shall be considered null and void. BMC may compile and use de-identified, aggregate or statistical information related to Customer’s use of the Products for the purposes of enhancing and improving the Products, developing new products and services, and for other development, diagnostic, statistical and corrective purposes, provided that such information (a) does not incorporate Customer’s personally identifiable information or personal data and (b) does not identify or describe the Customer. Les parties exigent que la présente convention ainsi que les documents qui s’y rattachent soient rédigés en anglais.
24. U.S. GOVERNMENT END USER RIGHTS. This Section applies only to acquisitions of the commercial Product and Documentation subject to this Agreement by or on behalf of the United States Government, or by any prime contractor or subcontractor (at any tier) under any contract, grant, agreement or other activity with the United States Government. When Products are delivered or provided to the United States Government, the United States Government agrees that this commercial license Agreement and the Products governed by this Agreement are defined in accordance with and qualify as “commercial items” consisting of “commercial computer software” and “commercial computer software documentation” as outlined in FAR 12.211, FAR 12.212 and DFARS 227.7202-3, as applicable. The terms and conditions of this Agreement shall pertain to the United States Government’s use (including documentation or technical data), duplication, and disclosure of the Product, and shall supersede any conflicting contractual terms and conditions.
YOU AGREE THAT YOU HAVE READ THIS AGREEMENT AND INTEND TO BE BOUND, AS IF YOU HAD SIGNED THIS AGREEMENT IN WRITING. IF YOU ARE ACTING ON BEHALF OF AN ENTITY, YOU WARRANT THAT YOU HAVE THE AUTHORITY TO ACCEPT THE TERMS OF THIS AGREEMENT FOR SUCH ENTITY.
Effective August 11th 2023 to January 30th 2024
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END USER LICENSE AGREEMENT
BY OPENING THE PACKAGE, DOWNLOADING OR INSTALLING, PRESSING “AGREE” OR “YES” OR USING THE PRODUCT, THE ENTITY OR INDIVIDUAL ENTERING INTO THIS AGREEMENT AGREES TO BE BOUND BY THE FOLLOWING TERMS. IF YOU DO NOT AGREE WITH ANY OF THESE TERMS, DO NOT INSTALL OR USE THE PRODUCT, PROMPTLY RETURN THE PRODUCT TO BMC OR YOUR BMC RESELLER. IF YOU REJECT THIS AGREEMENT, YOU WILL NOT ACQUIRE ANY LICENSE TO USE THE PRODUCT.
This Agreement ("Agreement") is between the entity or individual entering into this Agreement (“Customer”) and the BMC Entity for the applicable Region where Customer acquired the License as described in Section 18 (“BMC”). This Agreement was last updated on August 10, 2023. For Customer’s convenience, prior versions of this Agreement are available at https://www.bmc.com/legal/end-user-license-agreements.html.
1. GENERAL DEFINITIONS.
1.1 “Affiliate” is an entity that controls, is controlled by or shares common control with BMC or Customer, where such control arises from the legal power to direct or cause the direction of the general management and policies of the company, partnership or legal entity.
1.2 “Authorized User” means Customer, Customer Affiliate(s), and their employees, consultants, contractors and agents that are bound by the terms and conditions no less restrictive than those contained herein and for whom Customer takes full responsibility. Authorized Users do not include service providers or outsourcers.
1.3 "Documentation" means the technical publications relating to the software, such as release notes, license entitlement descriptions, reference, user, installation, systems administrator and technical guidelines, included with the Product.
1.4 “IP Rights” means all intellectual property or other proprietary rights worldwide, including patents, trade secrets, copyrights, trademarks, moral rights, and any other intellectual or industrial property including registrations, applications, renewals, and extensions of such rights.
1.5 “Licensed Capacity” is the amount of each Product licensed as established in the Order. Any Units of Measure and License Restrictions related to the Licensed Capacity will be set forth in the Order.
1.6 “Order” is an agreed written or electronic document, subject to the terms of this Agreement that identifies the Products to be licensed and the Licensed Capacity and/or the Support to be purchased and the fees to be paid.
1.7 “Product” is the object code of all generally available software and accompanying Documentation delivered to Customer, including all items delivered by BMC to Customer under Support.
1.8 “Support” is the support services program as further specified in this Agreement.
1.9 “Territory” means the country(ies) where Customer is licensed to install the Product as specified in the Order.
2. SCOPE. Licenses are granted, and Support is obtained, solely by execution of Orders. Each Order is deemed to be a discrete contract, separate from each other Order, unless expressly stated otherwise therein, and in the event of a direct conflict between any Order and the terms of this Agreement, the terms of the Order will control only if the Order is agreed to by each party. Neither execution of this Agreement, nor anything contained herein, shall obligate either party to enter into any Orders. In the event an Order is proposed by BMC and is deemed to constitute an offer, then acceptance of such offer is limited to its terms. In the event Customer proposes an Order by submitting a purchase order, then regardless of whether BMC acknowledges, accepts or fully or partially performs under such purchase order, BMC OBJECTS to any additional or different terms in the purchase order.
3. LICENSE. Subject to the terms, conditions, payment requirements and restrictions set forth in this Agreement, BMC grants Customer a non-exclusive, non-transferable, non-sub-licensable non-perpetual (unless a perpetual license is provided on an Order) license to install in the Territory, access and use the Product (i) by Authorized User(s), (ii) up to the Licensed Capacity, (iii) for Customer’s and its Affiliates internal business operations, (iv) in accordance with the Documentation and the applicable Order, and (v) make a reasonable number of copies of the Product and the Documentation for archival purposes only (collectively a "License"). Affiliates may use and access the Products and Support under the terms of this Agreement, and Customer is responsible for its Affiliates compliance with the terms of this Agreement.
4. RESTRICTIONS. Customer will not: (a) copy, operate or use any Product in excess of the applicable Licensed Capacity or other than as set forth in the License above; (b) modify, delete or remove any ownership, title, trademark, patent or copyright notices from any Product, or copy or partial copy of a Product; (c) disassemble, reverse engineer, decompile or otherwise attempt to derive any Product source code from object code, except to the extent expressly permitted by applicable law despite this limitation without possibility of contractual waiver; (d) distribute, rent, lease, sublicense or provide the Product to any third party; (e) use the Products in an outsourcing or service bureau environment on behalf of non-Affiliate third parties, or allow the products to be used by an outsourcing or service bureau provider on Customer’s behalf; (f) provide a third party with the results of any functional evaluation, product vulnerability or performance tests, without BMC's prior written approval; or (g) attempt to disable or circumvent any of the licensing mechanisms within the Product.
5. PRODUCT PERFORMANCE WARRANTY. BMC warrants that (a) the Product will perform in substantial accordance with its Documentation for a period of one year from the date of the first Order, (b) BMC has used commercially reasonable efforts consistent with industry standards to scan for and remove software viruses, and (c) other than passwords that may be required for the operation of the Product, BMC has not inserted any code that is not addressed in the Documentation and that is designed to delete, interfere with or disable the normal operation of the Product in accordance with the License. This warranty will not apply to any problems caused by hardware, Computers, or software other than the Product, or misuse of the Product, use of the Product other than as provided by the applicable License, modification of the Product, or claims made either outside the warranty period or not in compliance with the notice and access requirements set forth below. No warranty is provided for additional Licensed Capacity, Product provided pursuant to Support or Product provided pursuant to Section 12.
6. LIMITED REMEDIES. BMC’s entire liability, and Customer’s exclusive remedy, for breach of the above warranty is limited to: BMC’s use of commercially reasonable efforts to have the Product perform in substantial accordance with its Documentation, or replacement of the non-conforming Product within a reasonable period of time, or if BMC cannot have the Product perform in substantial accordance with its Documentation replace the Product within such time period, then BMC will refund the amount paid by Customer for the License for that Product. Customer agrees to provide BMC during the warranty period (a) full cooperation and access to the Product in resolving any claim; and (b) written notice that includes notice of the claim, a complete description of the alleged defects sufficient to permit their reproduction in BMC’s development or support environment, and a reference to the Documentation to which such alleged defects are contrary.
7. DISCLAIMER OF WARRANTIES. EXCEPT FOR THE EXPRESS WARRANTIES IN THIS AGREEMENT, THE PRODUCT IS PROVIDED WITH NO OTHER WARRANTIES WHATSOEVER, AND BMC, ITS AFFILIATES AND LICENSORS DISCLAIM ALL OTHER WARRANTIES, INCLUDING, FITNESS FOR A PARTICULAR PURPOSE AND IN THE UNITED STATES AND CANADA, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, AND NON-INFRINGEMENT. BMC DOES NOT WARRANT THAT THE OPERATION OF THE PRODUCT WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT ALL DEFECTS CAN BE CORRECTED.
8. SUPPORT. The Order will include BMC support services (“Support”) for the total Licensed Capacity of the Products. A description of Support is located at www.bmc.com/support/review-policies, and is incorporated herein by this reference. BMC will notify Customer that it is time to renew at least 60 days prior to the end of the applicable prepaid Support period and Customer will provide notice to BMC if it does not intend to renew. BMC may change its Support terms to be effective at the end of any prepaid Support period. BMC reserves the right to discontinue Support for a Product where BMC generally discontinues such services to all licensees of that Product. For perpetual Licenses only, if Customer stops being enrolled in Support and then re-enrolls in Support, BMC may charge Customer a reinstatement fee.
9. PAYMENT, DELIVERY AND TAXES. Customer will pay each License fee and/or Support fee within 30 days of the date of the invoice. Customer will pay taxes imposed in connection with the fees paid for the License and/or Support, which are exclusive of these taxes. If Customer disputes an invoice in good faith, it will notify BMC within 30 days of receiving the invoice. The parties will seek to resolve such dispute over a 15-day discussion period. Customer is not required to pay disputed amounts during the discussion period, but will timely pay all undisputed amounts. After the discussion period, either party may pursue all available remedies. For Products that are delivered electronically, upon request from BMC, Customer agrees to provide BMC with documentation supporting that the designated Product was received electronically. If Customer accepts any Product in a non-electronic format, it is the sole responsibility of Customer to bear any sales/use tax obligation, penalties, and interest. Late balances may, at BMC’s sole election, bear interest at a rate equal to the lesser of 1% per month or the maximum amount permitted by law. All Products are licensed FCA (“Free Carrier” as per Incoterms 2000) shipping point. The Products are accepted on the date BMC delivers the Product to the Customer either physically or by providing access codes for electronic download, whichever occurs first, however, such acceptance will not affect the Product Performance Warranty provided in this Agreement. With regard to Products acquired by Customer through an authorized reseller ("Solution Provider") of BMC, notwithstanding anything to the contrary herein, Customer will have no direct payment obligations to BMC for such fees.
10. PROPRIETARY RIGHTS AND CONFIDENTIALITY. (a) BMC, its Affiliates or licensors retain all right, title and interest to the Product, Support and all related intellectual property and proprietary rights. The Product and all third party software provided with the Product are protected by applicable copyright, trade secret, industrial and other intellectual property laws. BMC reserves any rights not expressly granted to Customer in this Agreement. (b) “Confidential Information” means all proprietary or confidential information that is disclosed to the recipient (“Recipient”) by the discloser (“Discloser”), and includes, among other things (i) any and all information relating Discloser financial information, customers, employees, products or services, including, without limitation, software code, BMC product vulnerabilites, flow charts, techniques, specifications, development and marketing plans, strategies, forecasts, and proposal related documents and responses; (ii) as to BMC, and its licensors, the Product (excluding portions of the Documentation that BMC makes publicly available) and any third party software provided with the Product; and (iii) the terms of this Agreement, including without limitation, Product pricing information. Confidential Information does not include information that Recipient can show: (a) was rightfully in Recipient’s possession without any obligation of confidentiality before receipt from the Discloser; (b) is or becomes a matter of public knowledge through no fault of Recipient; (c) is rightfully received by Recipient from a third party without violation of a duty of confidentiality; or (d) is independently developed by or for Recipient. Recipient may not disclose Confidential Information of Discloser to any third party or use the Confidential Information in violation of this Agreement. The Recipient (i) will exercise the same degree of care and protection with respect to the Confidential Information of the Discloser that it exercises with respect to its own Confidential Information and (ii) will not, either directly or indirectly, disclose, copy, distribute, republish, or allow any third party to have access to any Confidential Information of the Discloser. Notwithstanding the foregoing, Recipient may disclose Discloser’s Confidential Information to Recipient’s employees and agents (if Recipient is BMC) and to Authorized User(s) (if Recipient is the Customer)who have the need to know provided that such employees, agents and Authorized User(s) have legal obligations of confidentiality substantially the same (and in no case less protective) as the provisions of this Agreement. (c) Notification Obligation. If the Recipient becomes aware of any unauthorized use or disclosure of Discloser’s Confidential Information, then Recipient will promptly and fully notify the Discloser of all facts known to it concerning such unauthorized use or disclosure. In addition, if the Recipient or any of its employees or agents are required (by oral questions, interrogatories, requests for information, or documents in legal proceedings, subpoena, civil investigative demand, or other similar process) to disclose any of Discloser’s Confidential Information, the Recipient will not disclose the Discloser’s Confidential Information without providing the Discloser with commercially reasonable advance prior written notice to allow Discloser to seek a protective order or other appropriate remedy or to waive compliance with this provision. In any event, the Recipient will exercise its commercially reasonable efforts to preserve the confidentiality of the portion of the Discloser’s Confidential Information that Recipient is bound to furnish, including, without limitation, cooperating with Discloser to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded to the portion of the Discloser’s Confidential Information that is furnished.
11. DISCLAIMER OF DAMAGES; LIMITS ON LIABILITY. EXCEPT FOR INFRINGEMENT CLAIMS (SECTION 13) AND INFRINGEMENT BY A PARTY OF THE OTHER PARTY'S IP RIGHTS, GROSS NEGLIGENCE, WILlFUL MISCONDUCT, DEATH OR BODILY INJURY, ACTS OF FRAUD AND ANY LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED BY LAW. NEITHER PARTY, ITS AFFILIATES OR BMC’s LICENSORS (a) ARE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES RELATING TO OR ARISING OUT OF THIS AGREEMENT , SUPPORT, THE PRODUCT OR ANY THIRD PARTY CODE OR SOFTWARE PROVIDED WITH THE PRODUCT (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST COMPUTER USAGE TIME, AND DAMAGE TO, OR LOSS OF USE OF DATA), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND IRRESPECTIVE OF NEGLIGENCE OF A PARTY OR WHETHER SUCH DAMAGES RESULT FROM A CLAIM ARISING UNDER TORT OR CONTRACT LAW AND (b) LIABILITY IN ANY EVENT SHALL NOT EXCEED THE AMOUNT PAID AND PAYABLE BY CUSTOMER FOR THE LICENSE TO THE APPLICABLE PRODUCT GIVING RISE TO SUCH DAMAGES.
12. TRIAL LICENSE. BMC may determine, in its sole discretion, to make products available to Customer without an Order and without charge. Such products are deemed to be “Products” pursuant to this Agreement except that (a) they are provided to Customer solely so that Customer may evaluate internally whether to acquire a license to the products for a fee, (b) the license term for such products is 30 days; (c) the Products are provided “AS IS” and without any warranty or support, and (d) the products cannot be put into productive use or included as part of Customer’s business processes in any manner, unless or until they are expressly licensed and paid for under an Order. BMC may terminate all of Customer’s rights and licenses to these Products for BMC’s convenience upon notice to Customer.
13. INFRINGEMENT CLAIMS. If a third party asserts a claim against Customer asserting that Customer’s use of a Product in accordance with this Agreement violates that third-party’s IP Rights (“Infringement Claim”), then BMC will, at its own expense: (a) defend or settle the Infringement Claim; and (b) indemnify Customer for any damages finally awarded or settled upon against Customer based on infringement by the Product. BMC’s obligations under this Section will not apply if: (a) BMC’s legal department does not receive prompt, detailed written notice of the Infringement Claim from Customer, (b) BMC is not able to retain sole control of the defense of the Infringement Claim and all negotiations for its settlement or compromise, or (c) BMC does not receive all reasonable assistance. BMC will not bind Customer to a monetary obligation in a settlement or compromise, or make an admission on behalf of Customer, without obtaining Customer’s prior consent. Customer must promptly install all Product updates BMC provides to mitigate any Infringement Claim. If BMC believes that use of the Product should be stopped because of an Infringement Claim or potential Infringement Claim, if a court of competent jurisdiction enjoins Customer from using a Product as a result of an Infringement Claim and BMC is unable to have such injunction stayed or overturned, or if BMC settles an Infringement Claim on terms that would require Customer to stop using the Product, then BMC will, at its expense and election: (a) modify or replace the Product, (b) procure the right to continue using the Product, or (c) if in BMC’s reasonable judgment, neither (a) or (b) is commercially reasonable, terminate Customer's License to the Product and (i) for any perpetual licenses, issue a refund based upon the applicable license fees paid, prorated over 48 months from the date of the Order under which the Products were initially licensed; and (ii) for any non-perpetual licenses, release Customer from its obligation to make future payments for the Product or issue a pro rata refund for any fees paid in advance. This Section contains Customer's exclusive remedies and BMC's sole liability for Infringement Claims.
14. TERMINATION. Upon thirty days advance written notice, either party may terminate this Agreement for its convenience on a prospective basis; however, such termination will have no effect on Orders placed prior to its effective date and such Orders will remain in full force and effect under the terms of this Agreement. Either party may terminate this Agreement and/or an Order for cause on 30 days’ written notice for material breach if the other party fails to cure the breach within 30-day-notice period. Upon any termination of a License, Customer will immediately uninstall and stop using the relevant Product, and upon BMC's request, Customer will immediately return such Product to BMC, together with all related Documentation and copies, or certify its destruction in writing. Any terms in this Agreement which by their nature extend beyond termination of this Agreement will remain in effect until fulfilled.
15. AUDIT. If requested by BMC, and not more than once a year, Customer agrees to deliver to BMC, within 30 days of such request, as specified by BMC (a) periodic product usage reports generated from specific products, (b) third party usage reports related to the Products (e.g., SCRT reports) and (c) written periodic product usage reports, to be provided solely when the product does not generate reports (together, “Reports”). Additionally, if requested by BMC not more than once a year and upon at least 10 (ten) days prior written notice to Customer, Customer agrees to allow BMC to perform an audit (“Audit”) to ensure compliance with the terms of this Agreement at the locations where the Products are installed, during normal business hours. Customer agrees to cooperate during any such Audit and to provide reasonable access to its information and systems. If Customer is found to have exceeded its Licensed Capacity for a Product based on such Reports or Audit, then Customer agrees to pay the applicable fees for the additional capacity through the end of the applicable Order term upon receipt of an invoice from BMC.
16. EXPORT CONTROLS. Both parties agree to comply with applicable export regulations, including but not limited to U.S. Export Administration Regulations and the OFAC embargoes and sanctions lists. More information on BMC’s export compliance program may be found here: https://www.bmc.com/legal/export-compliance.html.
17. GOVERNING LAW AND DISPUTE RESOLUTION. Any controversy, dispute or claim arising out of or relating to this Agreement, or to the formation, interpretation, breach, termination, or validity thereof (each, a “Controversy”) will be resolved as follows:
(i) UNITED STATES. If both parties to this Agreement are entities incorporated under the law of any state in the United States, the Controversy shall be tried in either state or federal court located in Houston, Texas and the laws of the State of Texas shall govern. Both parties hereby submit to the exclusive jurisdiction of the courts in Houston, Texas and waive all defenses based on forum non conveniens. Notwithstanding the foregoing, if Customer is a state or local governmental entity or higher education institution and legally required to apply state law, then Customer’s state law will apply to the Controversy, without reference to conflict of law principles.
(ii) CANADA. If Customer is located in Canada (outside Quebec), then the law of the Province of Ontario law apply, without reference to conflict of law principles. If Customer is located in Quebec, then the laws of the Province Quebec will apply, without reference to conflict of law principles.
(iii) EMEA. If both parties to this Agreement are entities incorporated in countries in the Europe, Middle East, or Africa regions, the Controversy shall be tried in the District Court located in Amsterdam, the Netherlands and the substantive laws of the Netherlands shall govern. Both parties hereby submit to the exclusive jurisdiction of the District Court in Amsterdam, the Netherlands and waive all defenses based on forum non conveniens.
(iv) ASIA PACIFIC. If both parties to this Agreement are entities incorporated in countries in the Asia Pacific region, the arbitration shall be held in Singapore under the then-applicable rules of the Singapore International Arbitration Centre and the substantive laws of Singapore will govern.
(v) OTHER REGIONS. In all other instances, the arbitration shall be held in New York City, New York, under the then-applicable international rules of the American Arbitration Association and the substantive laws of the State of Texas will govern.
For all arbitrations conducted hereunder: (a) the arbitration shall be conducted in English; (b) the relevant arbitral institution shall determine the number of arbitrators, but any Controversy in which the amount in dispute is greater than $10 million USD shall be decided by three arbitrators, with each party having the right to select one arbitrator; (c) the costs of such arbitration shall be borne equally, pending the arbitrator’s award; (d) the arbitration award rendered shall be final and binding on the parties, shall not be subject to appeal to any court and shall be enforceable in any court having jurisdiction over the parties; (e) the arbitration proceedings, award and pleadings shall all be confidential, unless disclosure of particular information is required for purposes of enforcing/challenging the award or to meet local securities law requirements; and (f) the party prevailing in arbitration shall be entitled to recover its reasonable attorneys’ fees and the necessary costs incurred in connection with the arbitration.
The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. Nothing in this Agreement shall be deemed as preventing either party from seeking immediate injunctive relief from any court having jurisdiction over the parties and the subject matter of the dispute.
18. BMC ENTITIES. The following licensing entities apply to this Agreement:
Region | Licensing Entity | Address of Licensing Entity |
---|---|---|
United States and Latin America South (not a specified Central or South America country below) | BMC Software, Inc. | 2103 CityWest Boulevard, Houston, Texas 77042 |
Canada | BMC Software Canada Inc. | 50 Minthorn Boulevard, Suite 200, Markham, Ontario L3T 7X8 Canada |
EMEA (Europe, Middle East and Africa) | BMC Software Distribution B.V. | Vision Plaza West, 2nd floor, Boeingavenue 220, 1119PN Schiphol-Rijk, The Netherlands |
Brazil | BMC Software do Brasil Ltda. | Avenida Rebouças n° 3.970 e Avenida Dra. Ruth Cardoso, n° 8.501 Condomínio Eldorado Business Tower, 22° andar, Pinheiros, São Paulo – SP, CEP: 05425-070 |
Mexico | BMC Software Distribution de México, S.A. de C.V. | Calle Volcán, No.150, Piso 2, Oficina 202, Col. Lomas de Chapultepec V Sección, C.P. 11000, Alcaldía Miguel Hidalgo, Ciudad de México |
Argentina | BMC Software de Argentina S.A. | Ing. Butty 220 - Piso 18, Catalinas Plaza Buenos Aires, República de Argentina, C1001A |
S.E.A (Southeast Asia), Australia, New Zealand, Hong Kong, Taiwan | BMC Software Ireland Unlimited Company | Building 3, Cherrywood Business Park, Bray Road, Loughlinstown, CO. Dublin, D18 TF72 |
China | BMC Software (China) Limited | Room 502, Level 5, Tower W1, The Towers, Oriental Plaza, No. 1 East Chang An Ave., Dong Cheng Dist., Beijing 100738, China |
Japan | BMC Software K.K. | Harmony Tower 24th Floor, 1-32-2 Honcho, Nakano-ku, Tokyo, 164-8721 |
Korea | BMC Software Korea Ltd | 9 FL Two IFC, 10 Gukjekeumyung-ro, Youngdeungpogu, Seoul 07326, South Korea |
19. ASSIGNMENT AND TRANSFERS. Customer has the right to assign this Agreement or a License in whole to an Affiliate, or to a successor in connection with (i) the sale of all or substantially all of the assets of that party or (ii) a merger by operation of law by providing written notice to BMC. The assignee may not be a known direct competitor of BMC. The successor or Affiliate must agree in writing with BMC (in advance of the assignment) to be bound by the terms of this Agreement. Any Customer transfer or assignment except as expressly authorized above will be null and void.
20. DATA PROTECTION. The processing of personal data under this Agreement is governed by the Data Processing Agreement set forth on the Order, unless BMC already has a signed Data Processing Agreement with Customer for such BMC offerings; in which case, the signed version governs the processing of personal data. In the event there is no signed Data Processing Agreement or no reference to the applicable Data Processing Agreement in the Order, BMC and Customer agree that the Data Processing Agreement applicable on the date of the Order, a copy of which may be viewed at https://www.bmc.com/content/dam/bmc/corporate/bmcdpa.pdf, applies to the BMC offerings under this Agreement.
21. NOTICES. Any demand, notice, consent, or other communication required by this Agreement must be given in writing and shall be deemed delivered upon receipt when delivered personally or upon confirmation of receipt following delivery by internationally recognized overnight courier service to the addresses specified on the applicable Order.
22. CONDUCTING BUSINESS WITH HONEST AND INTEGRITY. BMC is committed to conducting business with honesty and integrity. BMC’s Code of Conduct set forth in https://www.bmc.com/legal/code-of-conduct.html governs the conduct of all officers, directors, and employees of BMC, and contingent workers and business partners acting on BMC’s behalf. BMC demonstrates its commitment to environmental stewardship by its global accreditation for ISO 14001:2015.
23. MISCELLANEOUS TERMS. A waiver by a party of any breach of any term of this Agreement will not be construed as a waiver of any continuing or succeeding breach. Should any term of this Agreement be invalid or unenforceable, the remaining terms will remain in effect. The parties acknowledge they have read this Agreement and agree that it is the complete and exclusive statement of the agreement and supersedes any prior or contemporaneous negotiations or agreements between the parties relating to the subject matter of this Agreement. There are no representations, promises, warranties, covenants, or undertakings between the parties other than those expressly set forth in this Agreement. This Agreement may not be modified or rescinded except in writing signed by both parties. Any delay or failure of any party to perform any obligation under this Agreement caused by governmental restrictions, labor disputes, storms or natural disasters, emergency, or other causes beyond the reasonable control of the party, will not be deemed a breach of this Agreement; provided, however, this provision does not apply to failure to pay fees or any breach of Section 10. The BMC Products may contain third party software which is delivered to Customer as part of the Product and may not be taken out of the Product or used separately from the Product and for which additional terms may be included in the Documentation. The Product may contain hyperlinks to websites controlled by parties other than BMC. BMC is not responsible for and does not endorse the content or accept any responsibility for Customer’s use of these websites. Customer should refer to the policies posted by other websites regarding data privacy and other topics before using them. Any additional documents presented to a BMC representative by Customer for signature as a condition for going on a Customer’s site will be governed by this Agreement and to the extent that such document presents additional terms or conflicts with this Agreement, it shall be considered null and void. BMC may compile and use de-identified, aggregate or statistical information related to Customer’s use of the Products for the purposes of enhancing and improving the Products, developing new products and services, and for other development, diagnostic, statistical and corrective purposes, provided that such information (a) does not incorporate Customer’s personally identifiable information or personal data and (b) does not identify or describe the Customer. Les parties exigent que la présente convention ainsi que les documents qui s’y rattachent soient rédigés en anglais.
24. U.S. GOVERNMENT END USER RIGHTS. This Section applies only to acquisitions of the commercial Product and Documentation subject to this Agreement by or on behalf of the United States Government, or by any prime contractor or subcontractor (at any tier) under any contract, grant, agreement or other activity with the United States Government. When Products are delivered or provided to the United States Government, the United States Government agrees that this commercial license Agreement and the Products governed by this Agreement are defined in accordance with and qualify as “commercial items” consisting of “commercial computer software” and “commercial computer software documentation” as outlined in FAR 12.211, FAR 12.212 and DFARS 227.202-3, as applicable. The terms and conditions of this Agreement shall pertain to the United States Government’s use (including documentation or technical data), duplication, and disclosure of the Product, and shall supersede any conflicting contractual terms and conditions.
YOU AGREE THAT YOU HAVE READ THIS AGREEMENT AND INTEND TO BE BOUND, AS IF YOU HAD SIGNED THIS AGREEMENT IN WRITING. IF YOU ARE ACTING ON BEHALF OF AN ENTITY, YOU WARRANT THAT YOU HAVE THE AUTHORITY TO ACCEPT THE TERMS OF THIS AGREEMENT FOR SUCH ENTITY.
Effective May 12th 2023 to August 11th 2023
DownloadTable of Contents
END USER LICENSE AGREEMENT
BY OPENING THE PACKAGE, DOWNLOADING OR INSTALLING, PRESSING “AGREE” OR “YES” OR USING THE PRODUCT, THE ENTITY OR INDIVIDUAL ENTERING INTO THIS AGREEMENT AGREES TO BE BOUND BY THE FOLLOWING TERMS. IF YOU DO NOT AGREE WITH ANY OF THESE TERMS, DO NOT INSTALL OR USE THE PRODUCT, PROMPTLY RETURN THE PRODUCT TO BMC OR YOUR BMC RESELLER. IF YOU REJECT THIS AGREEMENT, YOU WILL NOT ACQUIRE ANY LICENSE TO USE THE PRODUCT.
This Agreement ("Agreement") is between the entity or individual entering into this Agreement (“Customer”) and the BMC Entity for the applicable Region where Customer acquired the License as described in Section 18 (“BMC”). This Agreement was last updated on May 12, 2023. For Customer’s convenience, prior versions of this Agreement are available at https://www.bmc.com/legal/end-user-license-agreements.html.
1. GENERAL DEFINITIONS.
“Affiliate” is an entity that controls, is controlled by or shares common control with BMC or Customer, where such control arises from the legal power to direct or cause the direction of the general management and policies of the company, partnership or legal entity.
“Authorized User” means Customer, Customer Affiliate(s), and their employees, consultants, contractors and agents that are bound by the terms and conditions no less restrictive than those contained herein and for whom Customer takes full responsibility. Authorized Users do not include service providers or outsourcers.
"Documentation" means the technical publications relating to the software, such as release notes, license entitlement descriptions, reference, user, installation, systems administrator and technical guidelines, included with the Product.
“Licensed Capacity” is the amount of each Product licensed as established in the Order. Any Units of Measure and License Restrictions related to the Licensed Capacity will be set forth in the Order.
“Order” is an agreed written or electronic document, subject to the terms of this Agreement that identifies the Products to be licensed and the Licensed Capacity and/or the Support to be purchased and the fees to be paid.
“Product” is the object code of all generally available software and accompanying Documentation delivered to Customer, including all items delivered by BMC to Customer under Support.
“Support” is the support services program as further specified in this Agreement.
“Territory” means the country(ies) where Customer is licensed to install the Product as specified in the Order.
2. SCOPE. Licenses are granted, and Support is obtained, solely by execution of Orders. Each Order is deemed to be a discrete contract, separate from each other Order, unless expressly stated otherwise therein, and in the event of a direct conflict between any Order and the terms of this Agreement, the terms of the Order will control only if the Order is agreed to by each party. Neither execution of this Agreement, nor anything contained herein, shall obligate either party to enter into any Orders. In the event an Order is proposed by BMC and is deemed to constitute an offer, then acceptance of such offer is limited to its terms. In the event Customer proposes an Order by submitting a purchase order, then regardless of whether BMC acknowledges, accepts or fully or partially performs under such purchase order, BMC OBJECTS to any additional or different terms in the purchase order.
3. LICENSE. Subject to the terms, conditions, payment requirements and restrictions set forth in this Agreement, BMC grants Customer a non-exclusive, non-transferable, non-sub-licensable non-perpetual (unless a perpetual license is provided on an Order) license to install in the Territory, access and use the Product (i) by Authorized User(s), (ii) up to the Licensed Capacity, (iii) for Customer’s and its Affiliates internal business operations, (iv) in accordance with the Documentation and the applicable Order, and (v) make a reasonable number of copies of the Product and the Documentation for archival purposes only (collectively a "License"). Affiliates may use and access the Products and Support under the terms of this Agreement, and Customer is responsible for its Affiliates compliance with the terms of this Agreement.
4. RESTRICTIONS. Customer will not: (a) copy, operate or use any Product in excess of the applicable Licensed Capacity or other than as set forth in the License above; (b) modify, delete or remove any ownership, title, trademark, patent or copyright notices from any Product, or copy or partial copy of a Product; (c) disassemble, reverse engineer, decompile or otherwise attempt to derive any Product source code from object code, except to the extent expressly permitted by applicable law despite this limitation without possibility of contractual waiver; (d) distribute, rent, lease, sublicense or provide the Product to any third party; (e) use the Products in an outsourcing or service bureau environment on behalf of non-Affiliate third parties, or allow the products to be used by an outsourcing or service bureau provider on Customer’s behalf; (f) provide a third party with the results of any functional evaluation, product vulnerability or performance tests, without BMC's prior written approval; or (g) attempt to disable or circumvent any of the licensing mechanisms within the Product.
5. PRODUCT PERFORMANCE WARRANTY. BMC warrants that (a) the Product will perform in substantial accordance with its Documentation for a period of one year from the date of the first Order, (b) BMC has used commercially reasonable efforts consistent with industry standards to scan for and remove software viruses, and (c) other than passwords that may be required for the operation of the Product, BMC has not inserted any code that is not addressed in the Documentation and that is designed to delete, interfere with or disable the normal operation of the Product in accordance with the License. This warranty will not apply to any problems caused by hardware, Computers, or software other than the Product, or misuse of the Product, use of the Product other than as provided by the applicable License, modification of the Product, or claims made either outside the warranty period or not in compliance with the notice and access requirements set forth below. No warranty is provided for additional Licensed Capacity, Product provided pursuant to Support or Product provided pursuant to Section 12.
6. LIMITED REMEDIES. BMC’s entire liability, and Customer’s exclusive remedy, for breach of the above warranty is limited to: BMC’s use of commercially reasonable efforts to have the Product perform in substantial accordance with its Documentation, or replacement of the non-conforming Product within a reasonable period of time, or if BMC cannot have the Product perform in substantial accordance with its Documentation replace the Product within such time period, then BMC will refund the amount paid by Customer for the License for that Product. Customer’s rights and BMC's obligations in this Section are conditioned upon Customer’s providing BMC during the warranty period (a) full cooperation and access to the Product in resolving any claim; and (b) written notice addressed to the BMC Legal Department that includes notice of the claim, a complete description of the alleged defects sufficient to permit their reproduction in BMC’s development or support environment, and a specific reference to the Documentation to which such alleged defects are contrary.
7. DISCLAIMER OF WARRANTIES. EXCEPT FOR THE EXPRESS WARRANTIES IN THIS AGREEMENT, THE PRODUCT IS PROVIDED WITH NO OTHER WARRANTIES WHATSOEVER, AND BMC, ITS AFFILIATES AND LICENSORS DISCLAIM ALL OTHER WARRANTIES, INCLUDING, FITNESS FOR A PARTICULAR PURPOSE AND IN THE UNITED STATES AND CANADA, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, AND NON-INFRINGEMENT. BMC DOES NOT WARRANT THAT THE OPERATION OF THE PRODUCT WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT ALL DEFECTS CAN BE CORRECTED.
8. SUPPORT. The Order will include BMC support services (“Support”) for the total Licensed Capacity of the Products. A description of Support is located at www.bmc.com/support/review-policies, and is incorporated herein by this reference. BMC will notify Customer that it is time to renew at least 60 days prior to the end of the applicable prepaid Support period and Customer will provide notice to BMC if it does not intend to renew. BMC may change its Support terms to be effective at the end of any prepaid Support period. BMC reserves the right to discontinue Support for a Product where BMC generally discontinues such services to all licensees of that Product. For perpetual Licenses only, if Customer stops being enrolled in Support and then re-enrolls in Support, BMC may charge Customer a reinstatement fee.
9. PAYMENT, DELIVERY AND TAXES. Customer will pay each License fee and/or Support fee within 30 days of the date of the invoice. Customer will pay taxes imposed in connection with the fees paid for the License and/or Support, which are exclusive of these taxes. If Customer disputes an invoice in good faith, it will notify BMC within 30 days of receiving the invoice. The parties will seek to resolve such dispute over a 15-day discussion period. Customer is not required to pay disputed amounts during the discussion period, but will timely pay all undisputed amounts. After the discussion period, either party may pursue all available remedies. For Products that are delivered electronically, upon request from BMC, Customer agrees to provide BMC with documentation supporting that the designated Product was received electronically. If Customer accepts any Product in a non-electronic format, it is the sole responsibility of Customer to bear any sales/use tax obligation, penalties, and interest. Late balances may, at BMC’s sole election, bear interest at a rate equal to the lesser of 1% per month or the maximum amount permitted by law. All Products are licensed FCA (“Free Carrier” as per Incoterms 2000) shipping point. The Products are accepted on the date BMC delivers the Product to the Customer either physically or by providing access codes for electronic download, whichever occurs first, however, such acceptance will not affect the Product Performance Warranty provided in this Agreement. With regard to Products acquired by Customer through an authorized reseller ("Solution Provider") of BMC, notwithstanding anything to the contrary herein, Customer will have no direct payment obligations to BMC for such fees.
10. PROPRIETARY RIGHTS AND CONFIDENTIALITY. (a) BMC, its Affiliates or licensors retain all right, title and interest to the Product, Support and all related intellectual property and proprietary rights. The Product and all third party software provided with the Product are protected by applicable copyright, trade secret, industrial and other intellectual property laws. BMC reserves any rights not expressly granted to Customer in this Agreement. (b) “Confidential Information” means all proprietary or confidential information that is disclosed to the recipient (“Recipient”) by the discloser (“Discloser”), and includes, among other things (i) any and all information relating Discloser financial information, customers, employees, products or services, including, without limitation, software code, BMC product vulnerabilites, flow charts, techniques, specifications, development and marketing plans, strategies, forecasts, and proposal related documents and responses; (ii) as to BMC, and its licensors, the Product (excluding portions of the Documentation that BMC makes publicly available) and any third party software provided with the Product; and (iii) the terms of this Agreement, including without limitation, Product pricing information. Confidential Information does not include information that Recipient can show: (a) was rightfully in Recipient’s possession without any obligation of confidentiality before receipt from the Discloser; (b) is or becomes a matter of public knowledge through no fault of Recipient; (c) is rightfully received by Recipient from a third party without violation of a duty of confidentiality; or (d) is independently developed by or for Recipient. Recipient may not disclose Confidential Information of Discloser to any third party or use the Confidential Information in violation of this Agreement. The Recipient (i) will exercise the same degree of care and protection with respect to the Confidential Information of the Discloser that it exercises with respect to its own Confidential Information and (ii) will not, either directly or indirectly, disclose, copy, distribute, republish, or allow any third party to have access to any Confidential Information of the Discloser. Notwithstanding the foregoing, Recipient may disclose Discloser’s Confidential Information to Recipient’s employees and agents (if Recipient is BMC) and to Authorized User(s) (if Recipient is the Customer)who have the need to know provided that such employees, agents and Authorized User(s) have legal obligations of confidentiality substantially the same (and in no case less protective) as the provisions of this Agreement. (c) Notification Obligation. If the Recipient becomes aware of any unauthorized use or disclosure of Discloser’s Confidential Information, then Recipient will promptly and fully notify the Discloser of all facts known to it concerning such unauthorized use or disclosure. In addition, if the Recipient or any of its employees or agents are required (by oral questions, interrogatories, requests for information, or documents in legal proceedings, subpoena, civil investigative demand, or other similar process) to disclose any of Discloser’s Confidential Information, the Recipient will not disclose the Discloser’s Confidential Information without providing the Discloser with commercially reasonable advance prior written notice to allow Discloser to seek a protective order or other appropriate remedy or to waive compliance with this provision. In any event, the Recipient will exercise its commercially reasonable efforts to preserve the confidentiality of the Discloser’s Confidential Information, including, without limitation, cooperating with Discloser to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded to the Confidential Information.
11. DISCLAIMER OF DAMAGES; LIMITS ON LIABILITY. EXCEPT FOR INFRINGEMENT CLAIMS (SECTION 13) AND INFRINGEMENT BY A PARTY OF THE OTHER PARTY'S INTELLECTUAL PROPERTY RIGHTS, GROSS NEGLIGENCE, WILlFUL MISCONDUCT, DEATH OR BODILY INJURY, ACTS OF FRAUD AND ANY LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED BY LAW. NEITHER PARTY, ITS AFFILIATES OR BMC’s LICENSORS (a) ARE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES RELATING TO OR ARISING OUT OF THIS AGREEMENT , SUPPORT, THE PRODUCT OR ANY THIRD PARTY CODE OR SOFTWARE PROVIDED WITH THE PRODUCT (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST COMPUTER USAGE TIME, AND DAMAGE TO, OR LOSS OF USE OF DATA), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND IRRESPECTIVE OF NEGLIGENCE OF A PARTY OR WHETHER SUCH DAMAGES RESULT FROM A CLAIM ARISING UNDER TORT OR CONTRACT LAW AND (b) LIABILITY IN ANY EVENT SHALL NOT EXCEED THE AMOUNT PAID AND PAYABLE BY CUSTOMER FOR THE LICENSE TO THE APPLICABLE PRODUCT GIVING RISE TO SUCH DAMAGES.
12. TRIAL LICENSE. BMC may determine, in its sole discretion, to make products available to Customer without an Order and without charge. Such products are deemed to be “Products” pursuant to this Agreement except that (a) they are provided to Customer solely so that Customer may evaluate internally whether to acquire a license to the products for a fee, (b) the license term for such products is 30 days; (c) the Products are provided “AS IS” and without any warranty or support, and (d) the products cannot be put into productive use or included as part of Customer’s business processes in any manner, unless or until they are expressly licensed and paid for under an Order. BMC may terminate all of Customer’s rights and licenses to these Products for BMC’s convenience upon notice to Customer.
13. INFRINGEMENT CLAIMS. If a third party asserts a claim against Customer asserting that Customer’s use of a Product in accordance with this Agreement violates that third-party’s patent, trade secret or copyright rights (“Infringement Claim”), then BMC will, at its own expense: (a) defend or settle the Infringement Claim; and (b) indemnify Customer for any damages finally awarded or settled upon against Customer based on infringement by the Product. BMC’s obligations under this Section will not apply if: (a) BMC’s legal department does not receive prompt, detailed written notice of the Infringement Claim from Customer, (b) BMC is not able to retain sole control of the defense of the Infringement Claim and all negotiations for its settlement or compromise, (c) BMC does not receive all reasonable assistance, or (d) the Infringement Claim is based on (i) the use of Product in combination with products not approved by BMC in the Product's Documentation, (ii) the failure of Customer to use any updates to such Product within a reasonable time after such updates are made available to Customer, or (iii) the failure of Customer to use the Product as permitted by the Order and in accordance with the Documentation. BMC will not bind Customer to a monetary obligation in a settlement or compromise, or make an admission on behalf of Customer, without obtaining Customer’s prior consent. If BMC determines in BMC’s reasonable discretion that use of the Product should be stopped because of an Infringement Claim or potential Infringement Claim, if a court of competent jurisdiction enjoins Customer from using a Product as a result of an Infringement Claim and BMC is unable to have such injunction stayed or overturned, or if BMC settles an Infringement Claim on terms that would require Customer to stop using the Product, then BMC will, at its expense and election: (a) modify or replace the Product, (b) procure the right to continue using the Product, or (c) if in BMC’s reasonable judgment, neither (a) or (b) is commercially reasonable, terminate Customer's License to the Product and (i) for any perpetual licenses, issue a refund based upon the applicable license fees paid, prorated over 48 months from the date of the Order under which the Products were initially licensed; and (ii) for any non-perpetual licenses, release Customer from its obligation to make future payments for the Product or issue a pro rata refund for any fees paid in advance. This Section contains Customer's exclusive remedies and BMC's sole liability for Infringement Claims.
14. TERMINATION. Upon thirty days advance written notice, either party may terminate this Agreement for its convenience on a prospective basis; however, such termination will have no effect on Orders placed prior to its effective date and such Orders will remain in full force and effect under the terms of this Agreement. Either party may terminate this Agreement and/or an Order for cause on 30 days’ written notice for material breach if the other party fails to cure the breach within 30-day-notice period. Upon any termination of a License, Customer will immediately uninstall and stop using the relevant Product, and upon BMC's request, Customer will immediately return such Product to BMC, together with all related Documentation and copies, or certify its destruction in writing. Any terms in this Agreement which by their nature extend beyond termination of this Agreement will remain in effect until fulfilled.
15. AUDIT. If requested by BMC, and not more than once a year, Customer agrees to deliver to BMC, within 30 days of such request, as specified by BMC (a) periodic product usage reports generated from specific products, (b) third party usage reports related to the Products (e.g., SCRT reports) and (c) written periodic product usage reports, to be provided solely when the product does not generate reports (together, “Reports”). Additionally, if requested by BMC not more than once a year and upon at least 10 (ten) days prior written notice to Customer, Customer agrees to allow BMC to perform an audit (“Audit”) to ensure compliance with the terms of this Agreement at the locations where the Products are installed, during normal business hours. Customer agrees to cooperate during any such Audit and to provide reasonable access to its information and systems. If Customer is found to have exceeded its Licensed Capacity for a Product based on such Reports or Audit, then Customer agrees to pay the applicable fees for the additional capacity through the end of the applicable Order term upon receipt of an invoice from BMC.
16. EXPORT CONTROLS. Both parties agree to comply with applicable export regulations, including but not limited to U.S. Export Administration Regulations and the OFAC embargoes and sanctions lists. More information on BMC’s export compliance program may be found here: https://www.bmc.com/legal/export-compliance.html.
17. GOVERNING LAW AND DISPUTE RESOLUTION. Any controversy, dispute or claim arising out of or relating to this Agreement, or to the formation, interpretation, breach, termination, or validity thereof (each, a “Controversy”) will be resolved as follows:
(i) UNITED STATES. If both parties to this Agreement are entities incorporated under the law of any state in the United States, the Controversy shall be tried in either state or federal court located in Houston, Texas and the laws of the State of Texas shall govern. Both parties hereby submit to the exclusive jurisdiction of the courts in Houston, Texas and waive all defenses based on forum non conveniens. Notwithstanding the foregoing, if Customer is a state or local governmental entity or higher education institution and legally required to apply state law, then Customer’s state law will apply to the Controversy, without reference to conflict of law principles.
(ii) CANADA. If Customer is located in Canada (outside Quebec), then the law of the Province of Ontario law apply, without reference to conflict of law principles. If Customer is located in Quebec, then the laws of the Province Quebec will apply, without reference to conflict of law principles.
(iii) EMEA. If both parties to this Agreement are entities incorporated in countries in the Europe, Middle East, or Africa regions, the Controversy shall be tried in the District Court located in Amsterdam, the Netherlands and the substantive laws of the Netherlands shall govern. Both parties hereby submit to the exclusive jurisdiction of the District Court in Amsterdam, the Netherlands and waive all defenses based on forum non conveniens.
(iv) ASIA PACIFIC. If both parties to this Agreement are entities incorporated in countries in the Asia Pacific region, the arbitration shall be held in Singapore under the then-applicable rules of the Singapore International Arbitration Centre and the substantive laws of Singapore will govern.
(v) OTHER REGIONS. In all other instances, the arbitration shall be held in New York City, New York, under the then-applicable international rules of the American Arbitration Association and the substantive laws of the State of Texas will govern.
For all arbitrations conducted hereunder: (a) the arbitration shall be conducted in English; (b) the relevant arbitral institution shall determine the number of arbitrators, but any Controversy in which the amount in dispute is greater than $10 million USD shall be decided by three arbitrators, with each party having the right to select one arbitrator; (c) the costs of such arbitration shall be borne equally, pending the arbitrator’s award; (d) the arbitration award rendered shall be final and binding on the parties, shall not be subject to appeal to any court and shall be enforceable in any court having jurisdiction over the parties; (e) the arbitration proceedings, award and pleadings shall all be confidential, unless disclosure of particular information is required for purposes of enforcing/challenging the award or to meet local securities law requirements; and (f) the party prevailing in arbitration shall be entitled to recover its reasonable attorneys’ fees and the necessary costs incurred in connection with the arbitration.
The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. Nothing in this Agreement shall be deemed as preventing either party from seeking immediate injunctive relief from any court having jurisdiction over the parties and the subject matter of the dispute.
18. BMC ENTITIES. The following licensing entities apply to this Agreement:
Region | Licensing Entity | Address of Licensing Entity |
---|---|---|
United States and Latin America South (not a specified Central or South America country below) | BMC Software, Inc. | 2103 CityWest Boulevard, Houston, Texas 77042 |
Canada | BMC Software Canada Inc. | 50 Minthorn Boulevard, Suite 200, Markham, Ontario L3T 7X8 Canada |
EMEA (Europe, Middle East and Africa) | BMC Software Distribution B.V. | Vision Plaza West, 2nd floor, Boeingavenue 220, 1119PN Schiphol-Rijk, The Netherlands |
Brazil | BMC Software do Brasil Ltda. | Avenida Rebouças n° 3.970 e Avenida Dra. Ruth Cardoso, n° 8.501 Condomínio Eldorado Business Tower, 22° andar, Pinheiros, São Paulo – SP, CEP: 05425-070 |
Mexico | BMC Software Distribution de México, S.A. de C.V. | Calle Volcán, No.150, Piso 2, Oficina 202, Col. Lomas de Chapultepec V Sección, C.P. 11000, Alcaldía Miguel Hidalgo, Ciudad de México |
Argentina | BMC Software de Argentina S.A. | Ing. Butty 220 - Piso 18, Catalinas Plaza Buenos Aires, República de Argentina, C1001A |
S.E.A (Southeast Asia), Australia, New Zealand, Hong Kong, Taiwan | BMC Software Ireland Unlimited Company | Building 3, Cherrywood Business Park, Bray Road, Loughlinstown, CO. Dublin, D18 TF72 |
China | BMC Software (China) Limited | Room 502, Level 5, Tower W1, The Towers, Oriental Plaza, No. 1 East Chang An Ave., Dong Cheng Dist., Beijing 100738, China |
Japan | BMC Software K.K. | Harmony Tower 24th Floor, 1-32-2 Honcho, Nakano-ku, Tokyo, 164-8721 |
Korea | BMC Software Korea Ltd | 24th Fl., ASEM Tower, 1517, Yeongdong-daero,Gangnam-gu, Seoul 135-798, Korea South |
19. ASSIGNMENT AND TRANSFERS. Customer has the right to assign this Agreement or a License in whole to an Affiliate, or to a successor in connection with (i) the sale of all or substantially all of the assets of that party or (ii) a merger by operation of law by providing written notice to BMC. The assignee may not be a known direct competitor of BMC. The successor or Affiliate must agree in writing with BMC (in advance of the assignment) to be bound by the terms of this Agreement. Any Customer transfer or assignment except as expressly authorized above will be null and void.
20. DATA PROTECTION. The processing of personal data under this Agreement is governed by the Data Processing Agreement set forth on the Order, unless BMC already has a signed Data Processing Agreement with Customer for such BMC offerings; in which case, the signed version governs the processing of personal data. In the event there is no signed Data Processing Agreement or no reference to the applicable Data Processing Agreement in the Order, BMC and Customer agree that the Data Processing Agreement applicable on the date of the Order, a copy of which may be viewed at https://www.bmc.com/content/dam/bmc/corporate/bmcdpa.pdf, applies to the BMC offerings under this Agreement.
21. NOTICES. Any demand, notice, consent, or other communication required by this Agreement must be given in writing and shall be deemed delivered upon receipt when delivered personally or upon confirmation of receipt following delivery by internationally recognized overnight courier service to the addresses specified on the applicable Order.
22. CONDUCTING BUSINESS WITH HONEST AND INTEGRITY. BMC is committed to conducting business with honesty and integrity. BMC’s Code of Conduct set forth in https://www.bmc.com/legal/code-of-conduct.html governs the conduct of all officers, directors, and employees of BMC, and contingent workers and business partners acting on BMC’s behalf. BMC demonstrates its commitment to environmental stewardship by its global accreditation for ISO 14001:2015.
23. MISCELLANEOUS TERMS. A waiver by a party of any breach of any term of this Agreement will not be construed as a waiver of any continuing or succeeding breach. Should any term of this Agreement be invalid or unenforceable, the remaining terms will remain in effect. The parties acknowledge they have read this Agreement and agree that it is the complete and exclusive statement of the agreement and supersedes any prior or contemporaneous negotiations or agreements between the parties relating to the subject matter of this Agreement. There are no representations, promises, warranties, covenants, or undertakings between the parties other than those expressly set forth in this Agreement. This Agreement may not be modified or rescinded except in writing signed by both parties. Any delay or failure of any party to perform any obligation under this Agreement caused by governmental restrictions, labor disputes, storms or natural disasters, emergency, or other causes beyond the reasonable control of the party, will not be deemed a breach of this Agreement; provided, however, this provision does not apply to failure to pay fees or any breach of Section 10. The BMC Products may contain third party software which is delivered to Customer as part of the Product and may not be taken out of the Product or used separately from the Product and for which additional terms may be included in the Documentation. The Product may contain hyperlinks to websites controlled by parties other than BMC. BMC is not responsible for and does not endorse the content or accept any responsibility for Customer’s use of these websites. Customer should refer to the policies posted by other websites regarding data privacy and other topics before using them. Any additional documents presented to a BMC representative by Customer for signature as a condition for going on a Customer’s site will be governed by this Agreement and to the extent that such document presents additional terms or conflicts with this Agreement, it shall be considered null and void. BMC may compile and use de-identified, aggregate or statistical information related to Customer’s use of the Products for the purposes of enhancing and improving the Products, developing new products and services, and for other development, diagnostic, statistical and corrective purposes, provided that such information (a) does not incorporate Customer’s personally identifiable information or personal data and (b) does not identify or describe the Customer. Les parties exigent que la présente convention ainsi que les documents qui s’y rattachent soient rédigés en anglais.
24. U.S. GOVERNMENT END USER RIGHTS. This Section applies only to acquisitions of the commercial Product and Documentation subject to this Agreement by or on behalf of the United States Government, or by any prime contractor or subcontractor (at any tier) under any contract, grant, agreement or other activity with the United States Government. When Products are delivered or provided to the United States Government, the United States Government agrees that this commercial license Agreement and the Products governed by this Agreement are defined in accordance with and qualify as “commercial items” consisting of “commercial computer software” and “commercial computer software documentation” as outlined in FAR 12.211, FAR 12.212 and DFARS 227.202-3, as applicable. The terms and conditions of this Agreement shall pertain to the United States Government’s use (including documentation or technical data), duplication, and disclosure of the Product, and shall supersede any conflicting contractual terms and conditions.
YOU AGREE THAT YOU HAVE READ THIS AGREEMENT AND INTEND TO BE BOUND, AS IF YOU HAD SIGNED THIS AGREEMENT IN WRITING. IF YOU ARE ACTING ON BEHALF OF AN ENTITY, YOU WARRANT THAT YOU HAVE THE AUTHORITY TO ACCEPT THE TERMS OF THIS AGREEMENT FOR SUCH ENTITY.
Effective November 29th 2022 to May 12th 2023
DownloadTable of Contents
END USER LICENSE AGREEMENT
BY OPENING THE PACKAGE, DOWNLOADING OR INSTALLING, PRESSING “AGREE” OR “YES” OR USING THE PRODUCT, THE ENTITY OR INDIVIDUAL ENTERING INTO THIS AGREEMENT AGREES TO BE BOUND BY THE FOLLOWING TERMS. IF YOU DO NOT AGREE WITH ANY OF THESE TERMS, DO NOT INSTALL OR USE THE PRODUCT, PROMPTLY RETURN THE PRODUCT TO BMC OR YOUR BMC RESELLER. IF YOU REJECT THIS AGREEMENT, YOU WILL NOT ACQUIRE ANY LICENSE TO USE THE PRODUCT.
This Agreement ("Agreement") is between the entity or individual entering into this Agreement (“Customer”) and the BMC Entity for the applicable Region where Customer acquired the License as described in Section 18 (“BMC”). This Agreement was last updated on November 29, 2022. For Customer’s convenience, prior versions of this Agreement are available at https://www.bmc.com/legal/end-user-license-agreements.html.
1. GENERAL DEFINITIONS.
“Affiliate” is an entity that controls, is controlled by or shares common control with BMC or Customer, where such control arises from the legal power to direct or cause the direction of the general management and policies of the company, partnership or legal entity.
“Authorized User” means Customer, Customer Affiliate(s), and their employees, consultants, contractors and agents that are bound by the terms and conditions no less restrictive than those contained herein and for whom Customer takes full responsibility. Authorized Users do not include service providers or outsourcers.
"Documentation" means the technical publications relating to the software, such as release notes, license entitlement descriptions, reference, user, installation, systems administrator and technical guidelines, included with the Product.
“Licensed Capacity” is the amount of each Product licensed as established in the Order. Any Units of Measure and License Restrictions related to the Licensed Capacity will be set forth in the Order.
“Order” is an agreed written or electronic document, subject to the terms of this Agreement that identifies the Products to be licensed and the Licensed Capacity and/or the Support to be purchased and the fees to be paid.
“Product” is the object code of all generally available software and accompanying Documentation delivered to Customer, including all items delivered by BMC to Customer under Support.
“Support” is the support services program as further specified in this Agreement.
“Territory” means the country(ies) where Customer is licensed to install the Product as specified in the Order.
2. SCOPE. Licenses are granted, and Support is obtained, solely by execution of Orders. Each Order is deemed to be a discrete contract, separate from each other Order, unless expressly stated otherwise therein, and in the event of a direct conflict between any Order and the terms of this Agreement, the terms of the Order will control only if the Order is agreed to by each party. Neither execution of this Agreement, nor anything contained herein, shall obligate either party to enter into any Orders. In the event an Order is proposed by BMC and is deemed to constitute an offer, then acceptance of such offer is limited to its terms. In the event Customer proposes an Order by submitting a purchase order, then regardless of whether BMC acknowledges, accepts or fully or partially performs under such purchase order, BMC OBJECTS to any additional or different terms in the purchase order.
3. LICENSE. Subject to the terms, conditions, payment requirements and restrictions set forth in this Agreement, BMC grants Customer a non-exclusive, non-transferable, non-sub-licensable non-perpetual (unless a perpetual license is provided on an Order) license to install in the Territory, access and use the Product (i) by Authorized User(s), (ii) up to the Licensed Capacity, (iii) for Customer’s and its Affiliates internal business operations, (iv) in accordance with the Documentation and the applicable Order, and (v) make a reasonable number of copies of the Product and the Documentation for archival purposes only (collectively a "License"). Affiliates may use and access the Products and Support under the terms of this Agreement, and Customer is responsible for its Affiliates compliance with the terms of this Agreement.
4. RESTRICTIONS. Customer will not: (a) copy, operate or use any Product in excess of the applicable Licensed Capacity or other than as set forth in the License above; (b) modify, delete or remove any ownership, title, trademark, patent or copyright notices from any Product, or copy or partial copy of a Product; (c) disassemble, reverse engineer, decompile or otherwise attempt to derive any Product source code from object code, except to the extent expressly permitted by applicable law despite this limitation without possibility of contractual waiver; (d) distribute, rent, lease, sublicense or provide the Product to any third party; (e) use the Products in an outsourcing or service bureau environment on behalf of non-Affiliate third parties, or allow the products to be used by an outsourcing or service bureau provider on Customer’s behalf; (f) provide a third party with the results of any functional evaluation, product vulnerability or performance tests, without BMC's prior written approval; or (g) attempt to disable or circumvent any of the licensing mechanisms within the Product.
5. PRODUCT PERFORMANCE WARRANTY. BMC warrants that (a) the Product will perform in substantial accordance with its Documentation for a period of one year from the date of the first Order, (b) BMC has used commercially reasonable efforts consistent with industry standards to scan for and remove software viruses, and (c) other than passwords that may be required for the operation of the Product, BMC has not inserted any code that is not addressed in the Documentation and that is designed to delete, interfere with or disable the normal operation of the Product in accordance with the License. This warranty will not apply to any problems caused by hardware, Computers, or software other than the Product, or misuse of the Product, use of the Product other than as provided by the applicable License, modification of the Product, or claims made either outside the warranty period or not in compliance with the notice and access requirements set forth below. No warranty is provided for additional Licensed Capacity, Product provided pursuant to Support or Product provided pursuant to Section 12.
6. LIMITED REMEDIES. BMC’s entire liability, and Customer’s exclusive remedy, for breach of the above warranty is limited to: BMC’s use of commercially reasonable efforts to have the Product perform in substantial accordance with its Documentation, or replacement of the non-conforming Product within a reasonable period of time, or if BMC cannot have the Product perform in substantial accordance with its Documentation replace the Product within such time period, then BMC will refund the amount paid by Customer for the License for that Product. Customer’s rights and BMC's obligations in this Section are conditioned upon Customer’s providing BMC during the warranty period (a) full cooperation and access to the Product in resolving any claim; and (b) written notice addressed to the BMC Legal Department that includes notice of the claim, a complete description of the alleged defects sufficient to permit their reproduction in BMC’s development or support environment, and a specific reference to the Documentation to which such alleged defects are contrary.
7. DISCLAIMER OF WARRANTIES. EXCEPT FOR THE EXPRESS WARRANTIES IN THIS AGREEMENT, THE PRODUCT IS PROVIDED WITH NO OTHER WARRANTIES WHATSOEVER, AND BMC, ITS AFFILIATES AND LICENSORS DISCLAIM ALL OTHER WARRANTIES, INCLUDING, FITNESS FOR A PARTICULAR PURPOSE AND IN THE UNITED STATES AND CANADA, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, AND NON-INFRINGEMENT. BMC DOES NOT WARRANT THAT THE OPERATION OF THE PRODUCT WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT ALL DEFECTS CAN BE CORRECTED.
8. SUPPORT. The Order will include BMC support services (“Support”) for the total Licensed Capacity of the Products. A description of Support is located at www.bmc.com/support/review-policies, and is incorporated herein by this reference. BMC will notify Customer that it is time to renew at least 60 days prior to the end of the applicable prepaid Support period and Customer will provide notice to BMC if it does not intend to renew. BMC may change its Support terms to be effective at the end of any prepaid Support period. BMC reserves the right to discontinue Support for a Product where BMC generally discontinues such services to all licensees of that Product. For perpetual Licenses only, if Customer stops being enrolled in Support and then re-enrolls in Support, BMC may charge Customer a reinstatement fee.
9. PAYMENT, DELIVERY AND TAXES. Customer will pay each License fee and/or Support fee within 30 days of the date of the invoice. Customer will pay taxes imposed in connection with the fees paid for the License and/or Support, which are exclusive of these taxes. For Products that are delivered electronically, upon request from BMC, Customer agrees to provide BMC with documentation supporting that the designated Product was received electronically. If Customer accepts any Product in a non-electronic format, there may be an additional charge and it is the sole responsibility of Customer to bear any sales/use tax obligation, penalties, and interest. Late balances may, at BMC’s sole election, bear interest at a rate equal to the lesser of 1% per month or the maximum amount permitted by law. All Products are licensed FCA (“Free Carrier” as per Incoterms 2000) shipping point. The Products are accepted on the date BMC delivers the Product to the Customer either physically or by providing access codes for electronic download, whichever occurs first, however, such acceptance will not affect the Product Performance Warranty provided in this Agreement. With regard to Products acquired by Customer through an authorized reseller ("Solution Provider") of BMC, notwithstanding anything to the contrary herein, Customer will have no direct payment obligations to BMC for such fees.
10. PROPRIETARY RIGHTS AND CONFIDENTIALITY. (a) BMC, its Affiliates or licensors retain all right, title and interest to the Product, Support and all related intellectual property and proprietary rights. The Product and all third party software provided with the Product are protected by applicable copyright, trade secret, industrial and other intellectual property laws. BMC reserves any rights not expressly granted to Customer in this Agreement. (b) “Confidential Information” means all proprietary or confidential information that is disclosed to the recipient (“Recipient”) by the discloser (“Discloser”), and includes, among other things (i) any and all information relating Discloser financial information, customers, employees, products or services, including, without limitation, software code, BMC product vulnerabilites, flow charts, techniques, specifications, development and marketing plans, strategies, forecasts, and proposal related documents and responses; (ii) as to BMC, and its licensors, the Product (excluding portions of the Documentation that BMC makes publicly available) and any third party software provided with the Product; and (iii) the terms of this Agreement, including without limitation, Product pricing information. Confidential Information does not include information that Recipient can show: (a) was rightfully in Recipient’s possession without any obligation of confidentiality before receipt from the Discloser; (b) is or becomes a matter of public knowledge through no fault of Recipient; (c) is rightfully received by Recipient from a third party without violation of a duty of confidentiality; or (d) is independently developed by or for Recipient. Recipient may not disclose Confidential Information of Discloser to any third party or use the Confidential Information in violation of this Agreement. The Recipient (i) will exercise the same degree of care and protection with respect to the Confidential Information of the Discloser that it exercises with respect to its own Confidential Information and (ii) will not, either directly or indirectly, disclose, copy, distribute, republish, or allow any third party to have access to any Confidential Information of the Discloser. Notwithstanding the foregoing, Recipient may disclose Discloser’s Confidential Information to Recipient’s employees and agents (if Recipient is BMC) and to Authorized User(s) (if Recipient is the Customer)who have the need to know provided that such employees, agents and Authorized User(s) have legal obligations of confidentiality substantially the same (and in no case less protective) as the provisions of this Agreement. (c) Notification Obligation. If the Recipient becomes aware of any unauthorized use or disclosure of Discloser’s Confidential Information, then Recipient will promptly and fully notify the Discloser of all facts known to it concerning such unauthorized use or disclosure. In addition, if the Recipient or any of its employees or agents are required (by oral questions, interrogatories, requests for information, or documents in legal proceedings, subpoena, civil investigative demand, or other similar process) to disclose any of Discloser’s Confidential Information, the Recipient will not disclose the Discloser’s Confidential Information without providing the Discloser with commercially reasonable advance prior written notice to allow Discloser to seek a protective order or other appropriate remedy or to waive compliance with this provision. In any event, the Recipient will exercise its commercially reasonable efforts to preserve the confidentiality of the Discloser’s Confidential Information, including, without limitation, cooperating with Discloser to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded to the Confidential Information.
11. DISCLAIMER OF DAMAGES; LIMITS ON LIABILITY. EXCEPT FOR INFRINGEMENT CLAIMS (SECTION 13) AND INFRINGEMENT BY A PARTY OF THE OTHER PARTY'S INTELLECTUAL PROPERTY RIGHTS, GROSS NEGLIGENCE, WILlFUL MISCONDUCT, DEATH OR BODILY INJURY, ACTS OF FRAUD AND ANY LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED BY LAW. NEITHER PARTY, ITS AFFILIATES OR BMC’s LICENSORS (a) ARE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES RELATING TO OR ARISING OUT OF THIS AGREEMENT , SUPPORT, THE PRODUCT OR ANY THIRD PARTY CODE OR SOFTWARE PROVIDED WITH THE PRODUCT (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST COMPUTER USAGE TIME, AND DAMAGE TO, OR LOSS OF USE OF DATA), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND IRRESPECTIVE OF NEGLIGENCE OF A PARTY OR WHETHER SUCH DAMAGES RESULT FROM A CLAIM ARISING UNDER TORT OR CONTRACT LAW AND (b) LIABILITY IN ANY EVENT SHALL NOT EXCEED THE AMOUNT PAID AND PAYABLE BY CUSTOMER FOR THE LICENSE TO THE APPLICABLE PRODUCT GIVING RISE TO SUCH DAMAGES.
12. TRIAL LICENSE. BMC may determine, in its sole discretion, to make products available to Customer without an Order and without charge. Such products are deemed to be “Products” pursuant to this Agreement except that (a) they are provided to Customer solely so that Customer may evaluate internally whether to acquire a license to the products for a fee, (b) the license term for such products is 30 days; (c) the Products are provided “AS IS” and without any warranty or support, and (d) the products cannot be put into productive use or included as part of Customer’s business processes in any manner, unless or until they are expressly licensed and paid for under an Order. BMC may terminate all of Customer’s rights and licenses to these Products for BMC’s convenience upon notice to Customer.
13. INFRINGEMENT CLAIMS. If a third party asserts a claim against Customer asserting that Customer’s use of a Product in accordance with this Agreement violates that third-party’s patent, trade secret or copyright rights (“Infringement Claim”), then BMC will, at its own expense: (a) defend or settle the Infringement Claim; and (b) indemnify Customer for any damages finally awarded against Customer based on infringement by the Product. BMC’s obligations under this Section will not apply if: (a) BMC’s legal department does not receive prompt, detailed written notice of the Infringement Claim from Customer, (b) BMC is not able to retain sole control of the defense of the Infringement Claim and all negotiations for its settlement or compromise, (c) BMC does not receive all reasonable assistance, or (d) the Infringement Claim is based on (i) the use of Product in combination with products not approved by BMC in the Product's Documentation, (ii) the failure of Customer to use any updates to such Product within a reasonable time after such updates are made available to Customer, or (iii) the failure of Customer to use the Product as permitted by the Order and in accordance with the Documentation. BMC will not bind Customer to a monetary obligation in a settlement or compromise, or make an admission on behalf of Customer, without obtaining Customer’s prior consent. If BMC determines in BMC’s reasonable discretion that use of the Product should be stopped because of an Infringement Claim or potential Infringement Claim, if a court of competent jurisdiction enjoins Customer from using a Product as a result of an Infringement Claim and BMC is unable to have such injunction stayed or overturned, or if BMC settles an Infringement Claim on terms that would require Customer to stop using the Product, then BMC will, at its expense and election: (a) modify or replace the Product, (b) procure the right to continue using the Product, or (c) if in BMC’s reasonable judgment, neither (a) or (b) is commercially reasonable, terminate Customer's License to the Product and (i) for any perpetual licenses, issue a refund based upon the applicable license fees paid, prorated over 48 months from the date of the Order under which the Products were initially licensed; and (ii) for any non-perpetual licenses, release Customer from its obligation to make future payments for the Product or issue a pro rata refund for any fees paid in advance. This Section contains Customer's exclusive remedies and BMC's sole liability for Infringement Claims.
14. TERMINATION. Upon thirty days advance written notice, either party may terminate this Agreement for its convenience on a prospective basis; however, such termination will have no effect on Orders placed prior to its effective date and such Orders will remain in full force and effect under the terms of this Agreement. Either party may terminate this Agreement and/or an Order for cause on 30 days’ written notice for material breach if the other party fails to cure the breach within 30-day-notice period. Upon any termination of a License, Customer will immediately uninstall and stop using the relevant Product, and upon BMC's request, Customer will immediately return such Product to BMC, together with all related Documentation and copies, or certify its destruction in writing. Any terms in this Agreement which by their nature extend beyond termination of this Agreement will remain in effect until fulfilled.
15. AUDIT. If requested by BMC, and not more than once a year, Customer agrees to deliver to BMC, within 30 days of such request, as specified by BMC either (a) periodic product usage reports generated from specific products or (b) written periodic product usage reports, to be provided solely when the product does not generate reports (“Report”). Additionally, if requested by BMC not more than once a year and upon at least 10 (ten) days prior written notice to Customer, Customer agrees to allow BMC to perform an audit (“Audit”) to ensure compliance with the terms of this Agreement at the locations where the Products are installed, during normal business hours.. Customer agrees to cooperate during any such Audit and to provide reasonable access to its information and systems.
16. EXPORT CONTROLS. Both parties agree to comply with applicable export regulations, including but not limited to U.S. Export Administration Regulations and the OFAC embargoes and sanctions lists. More information on BMC’s export compliance program may be found here: https://www.bmc.com/legal/export-compliance.html.
17. GOVERNING LAW AND DISPUTE RESOLUTION. Any controversy, dispute or claim arising out of or relating to this Agreement, or to the formation, interpretation, breach, termination, or validity thereof (each, a “Controversy”) will be resolved as follows:
(i) UNITED STATES. If both parties to this Agreement are entities incorporated under the law of any state in the United States, the Controversy shall be tried in either state or federal court located in Houston, Texas and the laws of the State of Texas shall govern. Both parties hereby submit to the exclusive jurisdiction of the courts in Houston, Texas and waive all defenses based on forum non conveniens. Notwithstanding the foregoing, if Customer is a state or local governmental entity or higher education institution and legally required to apply state law, then Customer’s state law will apply to the Controversy, without reference to conflict of law principles.
(ii) CANADA. If Customer is located in Canada (outside Quebec), then the law of the Province of Ontario law apply, without reference to conflict of law principles. If Customer is located in Quebec, then the laws of the Province Quebec will apply, without reference to conflict of law principles.
(iii) EMEA. If both parties to this Agreement are entities incorporated in countries in the Europe, Middle East, or Africa regions, the Controversy shall be tried in the District Court located in Amsterdam, the Netherlands and the substantive laws of the Netherlands shall govern. Both parties hereby submit to the exclusive jurisdiction of the District Court in Amsterdam, the Netherlands and waive all defenses based on forum non conveniens.
(iv) ASIA PACIFIC. If both parties to this Agreement are entities incorporated in countries in the Asia Pacific region, the arbitration shall be held in Singapore under the then-applicable rules of the Singapore International Arbitration Centre and the substantive laws of Singapore will govern.
(v) OTHER REGIONS. In all other instances, the arbitration shall be held in New York City, New York, under the then-applicable international rules of the American Arbitration Association and the substantive laws of the State of Texas will govern.
For all arbitrations conducted hereunder: (a) the arbitration shall be conducted in English; (b) the relevant arbitral institution shall determine the number of arbitrators, but any Controversy in which the amount in dispute is greater than $10 million USD shall be decided by three arbitrators, with each party having the right to select one arbitrator; (c) the costs of such arbitration shall be borne equally, pending the arbitrator’s award; (d) the arbitration award rendered shall be final and binding on the parties, shall not be subject to appeal to any court and shall be enforceable in any court having jurisdiction over the parties; (e) the arbitration proceedings, award and pleadings shall all be confidential, unless disclosure of particular information is required for purposes of enforcing/challenging the award or to meet local securities law requirements; and (f) the party prevailing in arbitration shall be entitled to recover its reasonable attorneys’ fees and the necessary costs incurred in connection with the arbitration.
The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. Nothing in this Agreement shall be deemed as preventing either party from seeking immediate injunctive relief from any court having jurisdiction over the parties and the subject matter of the dispute.
18. BMC ENTITIES. The following licensing entities apply to this Agreement:
Region | Licensing Entity | Address of Licensing Entity |
---|---|---|
United States and Latin America South (not a specified Central or South America country below) | BMC Software, Inc. | 2103 CityWest Boulevard, Houston, Texas 77042 |
Canada | BMC Software Canada Inc. | 50 Minthorn Boulevard, Suite 200, Markham, Ontario L3T 7X8 Canada |
EMEA (Europe, Middle East and Africa) | BMC Software Distribution B.V. | Vision Plaza West, 2nd floor, Boeingavenue 220, 1119PN Schiphol-Rijk, The Netherlands |
Brazil | BMC Software do Brasil Ltda. | Avenida Rebouças n° 3.970 e Avenida Dra. Ruth Cardoso, n° 8.501 Condomínio Eldorado Business Tower, 22° andar, Pinheiros, São Paulo – SP, CEP: 05425-070 |
Mexico | BMC Software Distribution de México, S.A. de C.V. | Calle Volcán, No.150, Piso 2, Oficina 202, Col. Lomas de Chapultepec V Sección, C.P. 11000, Alcaldía Miguel Hidalgo, Ciudad de México |
Argentina | BMC Software de Argentina S.A. | Ing. Butty 220 - Piso 18, Catalinas Plaza Buenos Aires, República de Argentina, C1001A |
S.E.A (Southeast Asia), Australia, New Zealand, Hong Kong, Taiwan | BMC Software Ireland Unlimited Company | Building 3, Cherrywood Business Park, Bray Road, Loughlinstown, CO. Dublin, D18 TF72 |
China | BMC Software (China) Limited | Room 502, Level 5, Tower W1, The Towers, Oriental Plaza, No. 1 East Chang An Ave., Dong Cheng Dist., Beijing 100738, China |
Japan | BMC Software K.K. | Harmony Tower 24th Floor, 1-32-2 Honcho, Nakano-ku, Tokyo, 164-8721 |
Korea | BMC Software Korea Ltd | 24th Fl., ASEM Tower, 1517, Yeongdong-daero,Gangnam-gu, Seoul 135-798, Korea South |
19. ASSIGNMENT AND TRANSFERS. Customer has the right to assign this Agreement or a License in whole to an Affiliate, or to a successor in connection with (i) the sale of all or substantially all of the assets of that party or (ii) a merger by operation of law by providing written notice to BMC. The assignee may not be a known direct competitor of BMC. The successor or Affiliate must agree in writing with BMC (in advance of the assignment) to be bound by the terms of this Agreement. Any Customer transfer or assignment except as expressly authorized above will be null and void.
20. DATA PROTECTION. The processing of personal data under this Agreement is governed by the Data Processing Agreement set forth on the Order, unless BMC already has a signed Data Processing Agreement with Customer for such BMC offerings; in which case, the signed version governs the processing of personal data. In the event there is no signed Data Processing Agreement or no reference to the applicable Data Processing Agreement in the Order, BMC and Customer agree that the Data Processing Agreement applicable on the date of the Order, a copy of which may be viewed at https://www.bmc.com/content/dam/bmc/corporate/bmcdpa.pdf, applies to the BMC offerings under this Agreement.
21. NOTICES. Any demand, notice, consent, or other communication required by this Agreement must be given in writing and shall be deemed delivered upon receipt when delivered personally or upon confirmation of receipt following delivery by internationally recognized overnight courier service to the addresses specified on the applicable Order.
22. CONDUCTING BUSINESS WITH HONEST AND INTEGRITY. BMC is committed to conducting business with honesty and integrity. BMC’s Code of Conduct set forth in https://www.bmc.com/legal/code-of-conduct.html governs the conduct of all officers, directors, and employees of BMC, and contingent workers and business partners acting on BMC’s behalf. BMC demonstrates its commitment to environmental stewardship by its global accreditation for ISO 14001:2015.
23. MISCELLANEOUS TERMS. A waiver by a party of any breach of any term of this Agreement will not be construed as a waiver of any continuing or succeeding breach. Should any term of this Agreement be invalid or unenforceable, the remaining terms will remain in effect. The parties acknowledge they have read this Agreement and agree that it is the complete and exclusive statement of the agreement and supersedes any prior or contemporaneous negotiations or agreements between the parties relating to the subject matter of this Agreement. There are no representations, promises, warranties, covenants, or undertakings between the parties other than those expressly set forth in this Agreement. This Agreement may not be modified or rescinded except in writing signed by both parties. Any delay or failure of any party to perform any obligation under this Agreement caused by governmental restrictions, labor disputes, storms or natural disasters, emergency, or other causes beyond the reasonable control of the party, will not be deemed a breach of this Agreement; provided, however, this provision does not apply to the payment of monies or any breach of Section 10. The BMC Products may contain third party software which is delivered to Customer as part of the Product and may not be taken out of the Product or used separately from the Product and for which additional terms may be included in the Documentation. The Product may contain hyperlinks to websites controlled by parties other than BMC. BMC is not responsible for and does not endorse the content or accept any responsibility for Customer’s use of these websites. Customer should refer to the policies posted by other websites regarding data privacy and other topics before using them. Any additional documents presented to a BMC representative by Customer for signature as a condition for going on a Customer’s site will be governed by this Agreement and to the extent that such document presents additional terms or conflicts with this Agreement, it shall be considered null and void. Les parties exigent que la présente convention ainsi que les documents qui s’y rattachent soient rédigés en anglais.
24. U.S. GOVERNMENT END USER RIGHTS. This Section applies only to acquisitions of the commercial Product and Documentation subject to this Agreement by or on behalf of the United States Government, or by any prime contractor or subcontractor (at any tier) under any contract, grant, agreement or other activity with the United States Government. When Products are delivered or provided to the United States Government, the United States Government agrees that this commercial license Agreement and the Products governed by this Agreement are defined in accordance with and qualify as “commercial items” consisting of “commercial computer software” and “commercial computer software documentation” as outlined in FAR 12.211, FAR 12.212 and DFARS 227.202-3, as applicable. The terms and conditions of this Agreement shall pertain to the United States Government’s use (including documentation or technical data), duplication, and disclosure of the Product, and shall supersede any conflicting contractual terms and conditions.
YOU AGREE THAT YOU HAVE READ THIS AGREEMENT AND INTEND TO BE BOUND, AS IF YOU HAD SIGNED THIS AGREEMENT IN WRITING. IF YOU ARE ACTING ON BEHALF OF AN ENTITY, YOU WARRANT THAT YOU HAVE THE AUTHORITY TO ACCEPT THE TERMS OF THIS AGREEMENT FOR SUCH ENTITY.
Effective August 16th 2022 to November 29th 2022
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END USER LICENSE AGREEMENT
BY OPENING THE PACKAGE, DOWNLOADING OR INSTALLING, PRESSING “AGREE” OR “YES” OR USING THE PRODUCT, THE ENTITY OR INDIVIDUAL ENTERING INTO THIS AGREEMENT AGREES TO BE BOUND BY THE FOLLOWING TERMS. IF YOU DO NOT AGREE WITH ANY OF THESE TERMS, DO NOT INSTALL OR USE THE PRODUCT, PROMPTLY RETURN THE PRODUCT TO BMC OR YOUR BMC RESELLER. IF YOU REJECT THIS AGREEMENT, YOU WILL NOT ACQUIRE ANY LICENSE TO USE THE PRODUCT.
This Agreement ("Agreement") is between the entity or individual entering into this Agreement (“Customer”) and the BMC Entity for the applicable Region where Customer acquired the License as described in Section 18 (“BMC”). This Agreement was last updated on August 16, 2022. For Customer’s convenience, prior versions of this Agreement are available at https://www.bmc.com/legal/end-user-license-agreements.html.
1. GENERAL DEFINITIONS.
“Affiliate” is an entity that controls, is controlled by or shares common control with BMC or Customer, where such control arises from the legal power to direct or cause the direction of the general management and policies of the company, partnership or legal entity.
“Authorized User” means Customer, Customer Affiliate(s), and their employees, consultants, contractors and agents that are bound by the terms and conditions no less restrictive than those contained herein and for whom Customer takes full responsibility. Authorized Users do not include service providers or outsourcers.
"Documentation" means the technical publications relating to the software, such as release notes, license entitlement descriptions, reference, user, installation, systems administrator and technical guidelines, included with the Product.
“Licensed Capacity” is the amount of each Product licensed as established in the Order. Any Units of Measure and License Restrictions related to the Licensed Capacity will be set forth in the Order.
“Order” is an agreed written or electronic document, subject to the terms of this Agreement that identifies the Products to be licensed and the Licensed Capacity and/or the Support to be purchased and the fees to be paid.
“Product” is the object code of all generally available software and accompanying Documentation delivered to Customer, including all items delivered by BMC to Customer under Support.
“Support” is the support services program as further specified in this Agreement.
“Territory” means the country(ies) where Customer is licensed to install the Product as specified in the Order.
2. SCOPE. Licenses are granted, and Support is obtained, solely by execution of Orders. Each Order is deemed to be a discrete contract, separate from each other Order, unless expressly stated otherwise therein, and in the event of a direct conflict between any Order and the terms of this Agreement, the terms of the Order will control only if the Order is agreed to by each party. Neither execution of this Agreement, nor anything contained herein, shall obligate either party to enter into any Orders. In the event an Order is proposed by BMC and is deemed to constitute an offer, then acceptance of such offer is limited to its terms. In the event Customer proposes an Order by submitting a purchase order, then regardless of whether BMC acknowledges, accepts or fully or partially performs under such purchase order, BMC OBJECTS to any additional or different terms in the purchase order.
3. LICENSE. Subject to the terms, conditions, payment requirements and restrictions set forth in this Agreement, BMC grants Customer a non-exclusive, non-transferable, non-sub-licensable non-perpetual (unless a perpetual license is provided on an Order) license to install in the Territory, access and use the Product (i) by Authorized User(s), (ii) up to the Licensed Capacity, (iii) for Customer’s and its Affiliates internal business operations, (iv) in accordance with the Documentation and the applicable Order, and (v) make a reasonable number of copies of the Product and the Documentation for archival purposes only (collectively a "License"). Affiliates may use and access the Products and Support under the terms of this Agreement, and Customer is responsible for its Affiliates compliance with the terms of this Agreement.
4. RESTRICTIONS. Customer will not: (a) copy, operate or use any Product in excess of the applicable Licensed Capacity or other than as set forth in the License above; (b) modify, delete or remove any ownership, title, trademark, patent or copyright notices from any Product, or copy or partial copy of a Product; (c) disassemble, reverse engineer, decompile or otherwise attempt to derive any Product source code from object code, except to the extent expressly permitted by applicable law despite this limitation without possibility of contractual waiver; (d) distribute, rent, lease, sublicense or provide the Product to any third party; (e) use the Products in an outsourcing or service bureau environment on behalf of non-Affiliate third parties, or allow the products to be used by an outsourcing or service bureau provider on Customer’s behalf (without obtaining prior written approval from BMC); (f) provide a third party with the results of any functional evaluation, product vulnerability or performance tests, without BMC's prior written approval; or (g) attempt to disable or circumvent any of the licensing mechanisms within the Product.
5. PRODUCT PERFORMANCE WARRANTY. BMC warrants that (a) the Product will perform in substantial accordance with its Documentation for a period of one year from the date of the first Order, (b) BMC has used commercially reasonable efforts consistent with industry standards to scan for and remove software viruses, and (c) other than passwords that may be required for the operation of the Product, BMC has not inserted any code that is not addressed in the Documentation and that is designed to delete, interfere with or disable the normal operation of the Product in accordance with the License. This warranty will not apply to any problems caused by hardware, Computers, or software other than the Product, or misuse of the Product, use of the Product other than as provided by the applicable License, modification of the Product, or claims made either outside the warranty period or not in compliance with the notice and access requirements set forth below. No warranty is provided for additional Licensed Capacity, Product provided pursuant to Support or Product provided pursuant to Section 12.
6. LIMITED REMEDIES. BMC’s entire liability, and Customer’s exclusive remedy, for breach of the above warranty is limited to: BMC’s use of commercially reasonable efforts to have the Product perform in substantial accordance with its Documentation, or replacement of the non-conforming Product within a reasonable period of time, or if BMC cannot have the Product perform in substantial accordance with its Documentation replace the Product within such time period, then BMC will refund the amount paid by Customer for the License for that Product. Customer’s rights and BMC's obligations in this Section are conditioned upon Customer’s providing BMC during the warranty period (a) full cooperation and access to the Product in resolving any claim; and (b) written notice addressed to the BMC Legal Department that includes notice of the claim, a complete description of the alleged defects sufficient to permit their reproduction in BMC’s development or support environment, and a specific reference to the Documentation to which such alleged defects are contrary.
7. DISCLAIMER OF WARRANTIES. EXCEPT FOR THE EXPRESS WARRANTIES IN THIS AGREEMENT, THE PRODUCT IS PROVIDED WITH NO OTHER WARRANTIES WHATSOEVER, AND BMC, ITS AFFILIATES AND LICENSORS DISCLAIM ALL OTHER WARRANTIES, INCLUDING, FITNESS FOR A PARTICULAR PURPOSE AND IN THE UNITED STATES AND CANADA, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, AND NON-INFRINGEMENT. BMC DOES NOT WARRANT THAT THE OPERATION OF THE PRODUCT WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT ALL DEFECTS CAN BE CORRECTED.
8. SUPPORT. The Order will include BMC support services (“Support”) for the total Licensed Capacity of the Products. A description of Support is located at www.bmc.com/support/review-policies, and is incorporated herein by this reference. BMC will notify Customer that it is time to renew at least 60 days prior to the end of the applicable prepaid Support period and Customer will provide notice to BMC if it does not intend to renew. BMC may change its Support terms to be effective at the end of any prepaid Support period. BMC reserves the right to discontinue Support for a Product where BMC generally discontinues such services to all licensees of that Product. For perpetual Licenses only, if Customer stops being enrolled in Support and then re-enrolls in Support, BMC may charge Customer a reinstatement fee.
9. PAYMENT, DELIVERY AND TAXES. Customer will pay each License fee and/or Support fee within 30 days of the date of the invoice. Customer will pay taxes imposed in connection with the fees paid for the License and/or Support, which are exclusive of these taxes. For Products that are delivered electronically, upon request from BMC, Customer agrees to provide BMC with documentation supporting that the designated Product was received electronically. If Customer accepts any Product in a non-electronic format, there may be an additional charge and it is the sole responsibility of Customer to bear any sales/use tax obligation, penalties, and interest. Late balances may, at BMC’s sole election, bear interest at a rate equal to the lesser of 1% per month or the maximum amount permitted by law. All Products are licensed FCA (“Free Carrier” as per Incoterms 2000) shipping point. The Products are accepted on the date BMC delivers the Product to the Customer either physically or by providing access codes for electronic download, whichever occurs first, however, such acceptance will not affect the Product Performance Warranty provided in this Agreement. With regard to Products acquired by Customer through an authorized reseller ("Solution Provider") of BMC, notwithstanding anything to the contrary herein, Customer will have no direct payment obligations to BMC for such fees.
10. PROPRIETARY RIGHTS AND CONFIDENTIALITY. (a) BMC, its Affiliates or licensors retain all right, title and interest to the Product, Support and all related intellectual property and proprietary rights. The Product and all third party software provided with the Product are protected by applicable copyright, trade secret, industrial and other intellectual property laws. BMC reserves any rights not expressly granted to Customer in this Agreement. (b) “Confidential Information” means all proprietary or confidential information that is disclosed to the recipient (“Recipient”) by the discloser (“Discloser”), and includes, among other things (i) any and all information relating Discloser financial information, customers, employees, products or services, including, without limitation, software code, BMC product vulnerabilites, flow charts, techniques, specifications, development and marketing plans, strategies, forecasts, and proposal related documents and responses; (ii) as to BMC, and its licensors, the Product (excluding portions of the Documentation that BMC makes publicly available) and any third party software provided with the Product; and (iii) the terms of this Agreement, including without limitation, Product pricing information. Confidential Information does not include information that Recipient can show: (a) was rightfully in Recipient’s possession without any obligation of confidentiality before receipt from the Discloser; (b) is or becomes a matter of public knowledge through no fault of Recipient; (c) is rightfully received by Recipient from a third party without violation of a duty of confidentiality; or (d) is independently developed by or for Recipient. Recipient may not disclose Confidential Information of Discloser to any third party or use the Confidential Information in violation of this Agreement. The Recipient (i) will exercise the same degree of care and protection with respect to the Confidential Information of the Discloser that it exercises with respect to its own Confidential Information and (ii) will not, either directly or indirectly, disclose, copy, distribute, republish, or allow any third party to have access to any Confidential Information of the Discloser. Notwithstanding the foregoing, Recipient may disclose Discloser’s Confidential Information to Recipient’s employees and agents (if Recipient is BMC) and to Authorized User(s) (if Recipient is the Customer)who have the need to know provided that such employees, agents and Authorized User(s) have legal obligations of confidentiality substantially the same (and in no case less protective) as the provisions of this Agreement. (c) Notification Obligation. If the Recipient becomes aware of any unauthorized use or disclosure of Discloser’s Confidential Information, then Recipient will promptly and fully notify the Discloser of all facts known to it concerning such unauthorized use or disclosure. In addition, if the Recipient or any of its employees or agents are required (by oral questions, interrogatories, requests for information, or documents in legal proceedings, subpoena, civil investigative demand, or other similar process) to disclose any of Discloser’s Confidential Information, the Recipient will not disclose the Discloser’s Confidential Information without providing the Discloser with commercially reasonable advance prior written notice to allow Discloser to seek a protective order or other appropriate remedy or to waive compliance with this provision. In any event, the Recipient will exercise its commercially reasonable efforts to preserve the confidentiality of the Discloser’s Confidential Information, including, without limitation, cooperating with Discloser to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded to the Confidential Information.
11. DISCLAIMER OF DAMAGES; LIMITS ON LIABILITY. EXCEPT FOR INFRINGEMENT CLAIMS (SECTION 13) AND INFRINGEMENT BY A PARTY OF THE OTHER PARTY'S INTELLECTUAL PROPERTY RIGHTS, GROSS NEGLIGENCE, WILlFUL MISCONDUCT, DEATH OR BODILY INJURY, ACTS OF FRAUD AND ANY LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED BY LAW. NEITHER PARTY, ITS AFFILIATES OR BMC’s LICENSORS (a) ARE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES RELATING TO OR ARISING OUT OF THIS AGREEMENT , SUPPORT, THE PRODUCT OR ANY THIRD PARTY CODE OR SOFTWARE PROVIDED WITH THE PRODUCT (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST COMPUTER USAGE TIME, AND DAMAGE TO, OR LOSS OF USE OF DATA), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND IRRESPECTIVE OF NEGLIGENCE OF A PARTY OR WHETHER SUCH DAMAGES RESULT FROM A CLAIM ARISING UNDER TORT OR CONTRACT LAW AND (b) LIABILITY IN ANY EVENT SHALL NOT EXCEED THE AMOUNT PAID AND PAYABLE BY CUSTOMER FOR THE LICENSE TO THE APPLICABLE PRODUCT GIVING RISE TO SUCH DAMAGES.
12. TRIAL LICENSE. BMC may determine, in its sole discretion, to make products available to Customer without an Order and without charge. Such products are deemed to be “Products” pursuant to this Agreement except that (a) they are provided to Customer solely so that Customer may evaluate internally whether to acquire a license to the products for a fee, (b) the license term for such products is 30 days; (c) the Products are provided “AS IS” and without any warranty or support, and (d) the products cannot be put into productive use or included as part of Customer’s business processes in any manner, unless or until they are expressly licensed and paid for under an Order. BMC may terminate all of Customer’s rights and licenses to these Products for BMC’s convenience upon notice to Customer.
13. INFRINGEMENT CLAIMS. If a third party asserts a claim against Customer asserting that Customer’s use of a Product in accordance with this Agreement violates that third-party’s patent, trade secret or copyright rights (“Infringement Claim”), then BMC will, at its own expense: (a) defend or settle the Infringement Claim; and (b) indemnify Customer for any damages finally awarded against Customer based on infringement by the Product. BMC’s obligations under this Section will not apply if: (a) BMC’s legal department does not receive prompt, detailed written notice of the Infringement Claim from Customer, (b) BMC is not able to retain sole control of the defense of the Infringement Claim and all negotiations for its settlement or compromise, (c) BMC does not receive all reasonable assistance, or (d) the Infringement Claim is based on (i) the use of Product in combination with products not approved by BMC in the Product's Documentation, (ii) the failure of Customer to use any updates to such Product within a reasonable time after such updates are made available to Customer, or (iii) the failure of Customer to use the Product as permitted by the Order and in accordance with the Documentation. BMC will not bind Customer to a monetary obligation in a settlement or compromise, or make an admission on behalf of Customer, without obtaining Customer’s prior consent. If BMC determines in BMC’s reasonable discretion that use of the Product should be stopped because of an Infringement Claim or potential Infringement Claim, if a court of competent jurisdiction enjoins Customer from using a Product as a result of an Infringement Claim and BMC is unable to have such injunction stayed or overturned, or if BMC settles an Infringement Claim on terms that would require Customer to stop using the Product, then BMC will, at its expense and election: (a) modify or replace the Product, (b) procure the right to continue using the Product, or (c) if in BMC’s reasonable judgment, neither (a) or (b) is commercially reasonable, terminate Customer's License to the Product and (i) for any perpetual licenses, issue a refund based upon the applicable license fees paid, prorated over 48 months from the date of the Order under which the Products were initially licensed; and (ii) for any non-perpetual licenses, release Customer from its obligation to make future payments for the Product or issue a pro rata refund for any fees paid in advance. This Section contains Customer's exclusive remedies and BMC's sole liability for Infringement Claims.
14. TERMINATION. Upon thirty days advance written notice, either party may terminate this Agreement for its convenience on a prospective basis; however, such termination will have no effect on Orders placed prior to its effective date and such Orders will remain in full force and effect under the terms of this Agreement. Either party may terminate this Agreement and/or an Order for cause on 30 days’ written notice for material breach if the other party fails to cure the breach within 30-day-notice period. Upon any termination of a License, Customer will immediately uninstall and stop using the relevant Product, and upon BMC's request, Customer will immediately return such Product to BMC, together with all related Documentation and copies, or certify its destruction in writing. Any terms in this Agreement which by their nature extend beyond termination of this Agreement will remain in effect until fulfilled.
15. AUDIT. If requested by BMC, and not more than once a year, Customer agrees to deliver to BMC, within 30 days of such request, as specified by BMC either (a) periodic product usage reports generated from specific products or (b) written periodic product usage reports, to be provided solely when the product does not generate reports (“Report”). Additionally, if requested by BMC not more than once a year and upon at least 10 (ten) days prior written notice to Customer, Customer agrees to allow BMC to perform an audit (“Audit”) to ensure compliance with the terms of this Agreement at the locations where the Products are installed, during normal business hours.. Customer agrees to cooperate during any such Audit and to provide reasonable access to its information and systems.
16. EXPORT CONTROLS. Both parties agree to comply with applicable export regulations, including but not limited to U.S. Export Administration Regulations and the OFAC embargoes and sanctions lists. More information on BMC’s export compliance program may be found here: https://www.bmc.com/legal/export-compliance.html.
17. GOVERNING LAW AND DISPUTE RESOLUTION. Any controversy, dispute or claim arising out of or relating to this Agreement, or to the formation, interpretation, breach, termination, or validity thereof (each, a “Controversy”) will be resolved as follows:
(i) UNITED STATES. If both parties to this Agreement are entities incorporated under the law of any state in the United States, the Controversy shall be tried in either state or federal court located in Houston, Texas and the laws of the State of Texas shall govern. Both parties hereby submit to the exclusive jurisdiction of the courts in Houston, Texas and waive all defenses based on forum non conveniens. Notwithstanding the foregoing, if Customer is a state or local governmental entity or higher education institution and legally required to apply state law, then Customer’s state law will apply to the Controversy, without reference to conflict of law principles.
(ii) CANADA. If Customer is located in Canada (outside Quebec), then the law of the Province of Ontario law apply, without reference to conflict of law principles. If Customer is located in Quebec, then the laws of the Province Quebec will apply, without reference to conflict of law principles.
(iii) EMEA. If both parties to this Agreement are entities incorporated in countries in the Europe, Middle East, or Africa regions, the Controversy shall be tried in the District Court located in Amsterdam, the Netherlands and the substantive laws of the Netherlands shall govern. Both parties hereby submit to the exclusive jurisdiction of the District Court in Amsterdam, the Netherlands and waive all defenses based on forum non conveniens.
(iv) ASIA PACIFIC. If both parties to this Agreement are entities incorporated in countries in the Asia Pacific region, the arbitration shall be held in Singapore under the then-applicable rules of the Singapore International Arbitration Centre and the substantive laws of Singapore will govern.
(v) OTHER REGIONS. In all other instances, the arbitration shall be held in New York City, New York, under the then-applicable international rules of the American Arbitration Association and the substantive laws of the State of Texas will govern.
For all arbitrations conducted hereunder: (a) the arbitration shall be conducted in English; (b) the relevant arbitral institution shall determine the number of arbitrators, but any Controversy in which the amount in dispute is greater than $10 million USD shall be decided by three arbitrators, with each party having the right to select one arbitrator; (c) the costs of such arbitration shall be borne equally, pending the arbitrator’s award; (d) the arbitration award rendered shall be final and binding on the parties, shall not be subject to appeal to any court and shall be enforceable in any court having jurisdiction over the parties; (e) the arbitration proceedings, award and pleadings shall all be confidential, unless disclosure of particular information is required for purposes of enforcing/challenging the award or to meet local securities law requirements; and (f) the party prevailing in arbitration shall be entitled to recover its reasonable attorneys’ fees and the necessary costs incurred in connection with the arbitration.
The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. Nothing in this Agreement shall be deemed as preventing either party from seeking immediate injunctive relief from any court having jurisdiction over the parties and the subject matter of the dispute.
18. BMC ENTITIES. The following licensing entities apply to this Agreement:
Region | Licensing Entity | Address of Licensing Entity |
---|---|---|
United States and Latin America South (not a specified Central or South America country below) | BMC Software, Inc. | 2103 CityWest Boulevard, Houston, Texas 77042 |
Canada | BMC Software Canada Inc. | 50 Minthorn Boulevard, Suite 200, Markham, Ontario L3T 7X8 Canada |
EMEA (Europe, Middle East and Africa) | BMC Software Distribution B.V. | Vision Plaza West, 2nd floor, Boeingavenue 220, 1119PN Schiphol-Rijk, The Netherlands |
Brazil | BMC Software do Brasil Ltda. | Avenida Rebouças n° 3.970 e Avenida Dra. Ruth Cardoso, n° 8.501 Condomínio Eldorado Business Tower, 22° andar, Pinheiros, São Paulo – SP, CEP: 05425-070 |
Mexico | BMC Software Distribution de México, S.A. de C.V. | Torre Esmeralda II Blvd. Manuel Avila, Camacho #36, Piso 23 Col. Lomas de Chapultepec, CP11000, Mexico City, México D.F. |
Argentina | BMC Software de Argentina S.A. | Ing. Butty 220 - Piso 18, Catalinas Plaza Buenos Aires, República de Argentina, C1001A |
S.E.A (Southeast Asia), Australia, New Zealand, Hong Kong, Taiwan | BMC Software Ireland Unlimited Company | Building 3, Cherrywood Business Park, Bray Road, Loughlinstown, CO. Dublin, D18 TF72 |
China | BMC Software (China) Limited | Room 502, Level 5, Tower W1, The Towers, Oriental Plaza, No. 1 East Chang An Ave., Dong Cheng Dist., Beijing 100738, China |
Japan | BMC Software K.K. | Harmony Tower 24th Floor, 1-32-2 Honcho, Nakano-ku, Tokyo, 164-8721 |
Korea | BMC Software Korea Ltd | 24th Fl., ASEM Tower, 1517, Yeongdong-daero,Gangnam-gu, Seoul 135-798, Korea South |
19. ASSIGNMENT AND TRANSFERS. Customer has the right to assign this Agreement or a License in whole to an Affiliate, or to a successor in connection with (i) the sale of all or substantially all of the assets of that party or (ii) a merger by operation of law by providing written notice to BMC. The assignee may not be a known direct competitor of BMC. The successor or Affiliate must agree in writing with BMC (in advance of the assignment) to be bound by the terms of this Agreement. Any Customer transfer or assignment except as expressly authorized above will be null and void.
20. DATA PROTECTION. The processing of personal data under this Agreement is governed by the Data Processing Agreement set forth on the Order, unless BMC already has a signed Data Processing Agreement with Customer for such BMC offerings; in which case, the signed version governs the processing of personal data. In the event there is no signed Data Processing Agreement or no reference to the applicable Data Processing Agreement in the Order, BMC and Customer agree that the Data Processing Agreement applicable on the date of the Order, a copy of which may be viewed at https://www.bmc.com/content/dam/bmc/corporate/bmcdpa.pdf, applies to the BMC offerings under this Agreement.
21. NOTICES. Any demand, notice, consent, or other communication required by this Agreement must be given in writing and shall be deemed delivered upon receipt when delivered personally or upon confirmation of receipt following delivery by internationally recognized overnight courier service to the addresses specified on the applicable Order.
22. CONDUCTING BUSINESS WITH HONEST AND INTEGRITY. BMC is committed to conducting business with honesty and integrity. BMC’s Code of Conduct set forth in https://www.bmc.com/legal/code-of-conduct.html governs the conduct of all officers, directors, and employees of BMC, and contingent workers and business partners acting on BMC’s behalf. BMC demonstrates its commitment to environmental stewardship by its global accreditation for ISO 14001:2015.
23. MISCELLANEOUS TERMS. A waiver by a party of any breach of any term of this Agreement will not be construed as a waiver of any continuing or succeeding breach. Should any term of this Agreement be invalid or unenforceable, the remaining terms will remain in effect. The parties acknowledge they have read this Agreement and agree that it is the complete and exclusive statement of the agreement and supersedes any prior or contemporaneous negotiations or agreements between the parties relating to the subject matter of this Agreement. There are no representations, promises, warranties, covenants, or undertakings between the parties other than those expressly set forth in this Agreement. This Agreement may not be modified or rescinded except in writing signed by both parties. Any delay or failure of any party to perform any obligation under this Agreement caused by governmental restrictions, labor disputes, storms or natural disasters, emergency, or other causes beyond the reasonable control of the party, will not be deemed a breach of this Agreement; provided, however, this provision does not apply to the payment of monies or any breach of Section 10. The BMC Products may contain third party software which is delivered to Customer as part of the Product and may not be taken out of the Product or used separately from the Product and for which additional terms may be included in the Documentation. The Product may contain hyperlinks to websites controlled by parties other than BMC. BMC is not responsible for and does not endorse the content or accept any responsibility for Customer’s use of these websites. Customer should refer to the policies posted by other websites regarding data privacy and other topics before using them. Any additional documents presented to a BMC representative by Customer for signature as a condition for going on a Customer’s site will be governed by this Agreement and to the extent that such document presents additional terms or conflicts with this Agreement, it shall be considered null and void. Les parties exigent que la présente convention ainsi que les documents qui s’y rattachent soient rédigés en anglais.
24. U.S. GOVERNMENT END USER RIGHTS. This Section applies only to acquisitions of the commercial Product and Documentation subject to this Agreement by or on behalf of the United States Government, or by any prime contractor or subcontractor (at any tier) under any contract, grant, agreement or other activity with the United States Government. When Products are delivered or provided to the United States Government, the United States Government agrees that this commercial license Agreement and the Products governed by this Agreement are defined in accordance with and qualify as “commercial items” consisting of “commercial computer software” and “commercial computer software documentation” as outlined in FAR 12.211, FAR 12.212 and DFARS 227.202-3, as applicable. The terms and conditions of this Agreement shall pertain to the United States Government’s use (including documentation or technical data), duplication, and disclosure of the Product, and shall supersede any conflicting contractual terms and conditions.
YOU AGREE THAT YOU HAVE READ THIS AGREEMENT AND INTEND TO BE BOUND, AS IF YOU HAD SIGNED THIS AGREEMENT IN WRITING. IF YOU ARE ACTING ON BEHALF OF AN ENTITY, YOU WARRANT THAT YOU HAVE THE AUTHORITY TO ACCEPT THE TERMS OF THIS AGREEMENT FOR SUCH ENTITY.
Effective June 1st 2022 to August 16th 2022
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END USER LICENSE AGREEMENT
BY OPENING THE PACKAGE, DOWNLOADING OR INSTALLING, PRESSING “AGREE” OR “YES” OR USING THE PRODUCT, THE ENTITY OR INDIVIDUAL ENTERING INTO THIS AGREEMENT AGREES TO BE BOUND BY THE FOLLOWING TERMS. IF YOU DO NOT AGREE WITH ANY OF THESE TERMS, DO NOT INSTALL OR USE THE PRODUCT, PROMPTLY RETURN THE PRODUCT TO BMC OR YOUR BMC RESELLER. IF YOU REJECT THIS AGREEMENT, YOU WILL NOT ACQUIRE ANY LICENSE TO USE THE PRODUCT.
This Agreement ("Agreement") is between the entity or individual entering into this Agreement (“Customer”) and the BMC Entity for the applicable Region where Customer acquired the License as described in Section 18 (“BMC”). This Agreement was last updated on June 1, 2022. For Customer’s convenience, prior versions of this Agreement are available at https://www.bmc.com/legal/end-user-license-agreements.html.
1. GENERAL DEFINITIONS.
“Affiliate” is an entity that controls, is controlled by or shares common control with BMC or Customer, where such control arises from the legal power to direct or cause the direction of the general management and policies of the company, partnership or legal entity.
“Authorized User” means Customer, Customer Affiliate(s), and their employees, consultants, contractors and agents that are bound by the terms and conditions no less restrictive than those contained herein and for whom Customer takes full responsibility. Authorized Users do not include service providers or outsourcers.
"Documentation" means the technical publications relating to the software, such as release notes, license entitlement descriptions, reference, user, installation, systems administrator and technical guidelines, included with the Product.
“Licensed Capacity” is the amount of each Product licensed as established in the Order. Any Units of Measure and License Restrictions related to the Licensed Capacity will be set forth in the Order.
“Order” is an agreed written or electronic document, subject to the terms of this Agreement that identifies the Products to be licensed and the Licensed Capacity and/or the Support to be purchased and the fees to be paid.
“Product” is the object code of the software and all accompanying Documentation delivered to Customer, including all items delivered by BMC to Customer under Support.
“Support” is the support services program as further specified in this Agreement.
“Territory” means the country(ies) where Customer is licensed to install the Product as specified in the Order.
2. SCOPE. Licenses are granted, and Support is obtained, solely by execution of Orders. Each Order is deemed to be a discrete contract, separate from each other Order, unless expressly stated otherwise therein, and in the event of a direct conflict between any Order and the terms of this Agreement, the terms of the Order will control only if the Order is agreed to by each party. Neither execution of this Agreement, nor anything contained herein, shall obligate either party to enter into any Orders. In the event an Order is proposed by BMC and is deemed to constitute an offer, then acceptance of such offer is limited to its terms. In the event Customer proposes an Order by submitting a purchase order, then regardless of whether BMC acknowledges, accepts or fully or partially performs under such purchase order, BMC OBJECTS to any additional or different terms in the purchase order.
3. LICENSE. Subject to the terms, conditions, payment requirements and restrictions set forth in this Agreement, BMC grants Customer a non-exclusive, non-transferable, non-sub-licensable non-perpetual (unless a perpetual license is provided on an Order) license to install in the Territory, access and use the Product (i) by Authorized User(s), (ii) up to the Licensed Capacity, (iii) for Customer’s and its Affiliates internal business operations, (iv) in accordance with the Documentation and the applicable Order, and (v) make a reasonable number of copies of the Product and the Documentation for archival purposes only (collectively a "License"). Affiliates may use and access the Products and Support under the terms of this Agreement, and Customer is responsible for its Affiliates compliance with the terms of this Agreement.
4. RESTRICTIONS. Customer will not: (a) copy, operate or use any Product in excess of the applicable Licensed Capacity or other than as set forth in the License above; (b) modify, delete or remove any ownership, title, trademark, patent or copyright notices from any Product, or copy or partial copy of a Product; (c) disassemble, reverse engineer, decompile or otherwise attempt to derive any Product source code from object code, except to the extent expressly permitted by applicable law despite this limitation without possibility of contractual waiver; (d) distribute, rent, lease, sublicense or provide the Product to any third party; (e) use the Products in an outsourcing or service bureau environment on behalf of non-Affiliate third parties, or allow the products to be used by an outsourcing or service bureau provider on Customer’s behalf (without obtaining prior written approval from BMC); (f) provide a third party with the results of any functional evaluation, product vulnerability or performance tests, without BMC's prior written approval; or (g) attempt to disable or circumvent any of the licensing mechanisms within the Product.
5. PRODUCT PERFORMANCE WARRANTY. BMC warrants that (a) the Product will perform in substantial accordance with its Documentation for a period of one year from the date of the first Order, (b) BMC has used commercially reasonable efforts consistent with industry standards to scan for and remove software viruses, and (c) other than passwords that may be required for the operation of the Product, BMC has not inserted any code that is not addressed in the Documentation and that is designed to delete, interfere with or disable the normal operation of the Product in accordance with the License. This warranty will not apply to any problems caused by hardware, Computers, or software other than the Product, or misuse of the Product, use of the Product other than as provided by the applicable License, modification of the Product, or claims made either outside the warranty period or not in compliance with the notice and access requirements set forth below. No warranty is provided for additional Licensed Capacity, Product provided pursuant to Support or Product provided pursuant to Section 12.
6. LIMITED REMEDIES. BMC’s entire liability, and Customer’s exclusive remedy, for breach of the above warranty is limited to: BMC’s use of commercially reasonable efforts to have the Product perform in substantial accordance with its Documentation, or replacement of the non-conforming Product within a reasonable period of time, or if BMC cannot have the Product perform in substantial accordance with its Documentation replace the Product within such time period, then BMC will refund the amount paid by Customer for the License for that Product. Customer’s rights and BMC's obligations in this Section are conditioned upon Customer’s providing BMC during the warranty period (a) full cooperation and access to the Product in resolving any claim; and (b) written notice addressed to the BMC Legal Department that includes notice of the claim, a complete description of the alleged defects sufficient to permit their reproduction in BMC’s development or support environment, and a specific reference to the Documentation to which such alleged defects are contrary.
7. DISCLAIMER OF WARRANTIES. EXCEPT FOR THE EXPRESS WARRANTIES IN THIS AGREEMENT, THE PRODUCT IS PROVIDED WITH NO OTHER WARRANTIES WHATSOEVER, AND BMC, ITS AFFILIATES AND LICENSORS DISCLAIM ALL OTHER WARRANTIES, INCLUDING, FITNESS FOR A PARTICULAR PURPOSE AND IN THE UNITED STATES AND CANADA, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, AND NON-INFRINGEMENT. BMC DOES NOT WARRANT THAT THE OPERATION OF THE PRODUCT WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT ALL DEFECTS CAN BE CORRECTED.
8. SUPPORT. The Order will include BMC support services (“Support”) for the total Licensed Capacity of the Products. A description of Support is located at www.bmc.com/support/review-policies, and is incorporated herein by this reference. BMC will notify Customer that it is time to renew at least 60 days prior to the end of the applicable prepaid Support period and Customer will provide notice to BMC if it does not intend to renew. BMC may change its Support terms to be effective at the end of any prepaid Support period. BMC reserves the right to discontinue Support for a Product where BMC generally discontinues such services to all licensees of that Product. For perpetual Licenses only, if Customer stops being enrolled in Support and then re-enrolls in Support, BMC may charge Customer a reinstatement fee.
9. PAYMENT, DELIVERY AND TAXES. Customer will pay each License fee and/or Support fee within 30 days of the date of the invoice. Customer will pay taxes imposed in connection with the fees paid for the License and/or Support, which are exclusive of these taxes. For Products that are delivered electronically, upon request from BMC, Customer agrees to provide BMC with documentation supporting that the designated Product was received electronically. If Customer accepts any Product in a non-electronic format, there may be an additional charge and it is the sole responsibility of Customer to bear any sales/use tax obligation, penalties, and interest. Late balances may, at BMC’s sole election, bear interest at a rate equal to the lesser of 1% per month or the maximum amount permitted by law. All Products are licensed FCA (“Free Carrier” as per Incoterms 2000) shipping point. The Products are accepted on the date BMC delivers the Product to the Customer either physically or by providing access codes for electronic download, whichever occurs first, however, such acceptance will not affect the Product Performance Warranty provided in this Agreement. With regard to Products acquired by Customer through an authorized reseller ("Solution Provider") of BMC, notwithstanding anything to the contrary herein, Customer will have no direct payment obligations to BMC for such fees.
10. PROPRIETARY RIGHTS AND CONFIDENTIALITY. (a) BMC, its Affiliates or licensors retain all right, title and interest to the Product, Support and all related intellectual property and proprietary rights. The Product and all third party software provided with the Product are protected by applicable copyright, trade secret, industrial and other intellectual property laws. BMC reserves any rights not expressly granted to Customer in this Agreement. (b) “Confidential Information” means all proprietary or confidential information that is disclosed to the recipient (“Recipient”) by the discloser (“Discloser”), and includes, among other things (i) any and all information relating Discloser financial information, customers, employees, products or services, including, without limitation, software code, BMC product vulnerabilites, flow charts, techniques, specifications, development and marketing plans, strategies, forecasts, and proposal related documents and responses; (ii) as to BMC, and its licensors, the Product (excluding portions of the Documentation that BMC makes publicly available) and any third party software provided with the Product; and (iii) the terms of this Agreement, including without limitation, Product pricing information. Confidential Information does not include information that Recipient can show: (a) was rightfully in Recipient’s possession without any obligation of confidentiality before receipt from the Discloser; (b) is or becomes a matter of public knowledge through no fault of Recipient; (c) is rightfully received by Recipient from a third party without violation of a duty of confidentiality; or (d) is independently developed by or for Recipient. Recipient may not disclose Confidential Information of Discloser to any third party or use the Confidential Information in violation of this Agreement. The Recipient (i) will exercise the same degree of care and protection with respect to the Confidential Information of the Discloser that it exercises with respect to its own Confidential Information and (ii) will not, either directly or indirectly, disclose, copy, distribute, republish, or allow any third party to have access to any Confidential Information of the Discloser. Notwithstanding the foregoing, Recipient may disclose Discloser’s Confidential Information to Recipient’s employees and agents (if Recipient is BMC) and to Authorized User(s) (if Recipient is the Customer)who have the need to know provided that such employees, agents and Authorized User(s) have legal obligations of confidentiality substantially the same (and in no case less protective) as the provisions of this Agreement. (c) Notification Obligation. If the Recipient becomes aware of any unauthorized use or disclosure of Discloser’s Confidential Information, then Recipient will promptly and fully notify the Discloser of all facts known to it concerning such unauthorized use or disclosure. In addition, if the Recipient or any of its employees or agents are required (by oral questions, interrogatories, requests for information, or documents in legal proceedings, subpoena, civil investigative demand, or other similar process) to disclose any of Discloser’s Confidential Information, the Recipient will not disclose the Discloser’s Confidential Information without providing the Discloser with commercially reasonable advance prior written notice to allow Discloser to seek a protective order or other appropriate remedy or to waive compliance with this provision. In any event, the Recipient will exercise its commercially reasonable efforts to preserve the confidentiality of the Discloser’s Confidential Information, including, without limitation, cooperating with Discloser to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded to the Confidential Information.
11. DISCLAIMER OF DAMAGES; LIMITS ON LIABILITY. EXCEPT FOR VIOLATIONS OF LICENSE RESTRICTIONS (Section 4), AND PROPRIETARY RIGHTS AND CONFIDENTIALITY (SECTION 10) AND FOR INFRINGEMENT CLAIMS (SECTION 13), GROSS NEGLIGENCE, WILLFUL MISCONDUCT, DEATH OR BODILY INJURY, ACTS OF FRAUD AND ANY LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED BY LAW, NEITHER PARTY, ITS AFFILIATES OR BMC’s LICENSORS (A) ARE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES RELATING TO OR ARISING OUT OF THIS AGREEMENT, SUPPORT, THE PRODUCT OR ANY THIRD PARTY CODE OR SOFTWARE PROVIDED WITH THE PRODUCT (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST COMPUTER USAGE TIME, AND DAMAGE TO, OR LOSS OF USE OF DATA), EVEN IF ADVISED OF THE OF THE POSSIBILITY OF SUCH DAMAGES, AND IRRESPECTIVE OF NEGLIGENCE OF A PARTY OR WHETHER SUCH DAMAGES RESULT FROM A CLAIM ARISING UNDER TORT OR CONTRACT LAW AND (B) LIABILITY IN ANY EVENT SHALL NOT EXCEED THE AMOUNT PAID AND PAYABLE BY CUSTOMER FOR THE LICENSE TO THE APPLICABLE PRODUCT GIVING RISE TO SUCH DAMAGES.
12. TRIAL LICENSE. BMC may determine, in its sole discretion, to make products available to Customer without an Order and without charge. Such products are deemed to be “Products” pursuant to this Agreement except that (a) they are provided to Customer solely so that Customer may evaluate internally whether to acquire a license to the products for a fee, (b) the license term for such products is 30 days; (c) the Products are provided “AS IS” and without any warranty or support, and (d) the products cannot be put into productive use or included as part of Customer’s business processes in any manner, unless or until they are expressly licensed and paid for under an Order. BMC may terminate all of Customer’s rights and licenses to these Products for BMC’s convenience upon notice to Customer.
13. INFRINGEMENT CLAIMS. If a third party asserts a claim against Customer asserting that Customer’s use of a Product in accordance with this Agreement violates that third-party’s patent, trade secret or copyright rights (“Infringement Claim”), then BMC will, at its own expense: (a) defend or settle the Infringement Claim; and (b) indemnify Customer for any damages finally awarded against Customer based on infringement by the Product. BMC’s obligations under this Section will not apply if: (a) BMC’s legal department does not receive prompt, detailed written notice of the Infringement Claim from Customer, (b) BMC is not able to retain sole control of the defense of the Infringement Claim and all negotiations for its settlement or compromise, (c) BMC does not receive all reasonable assistance, or (d) the Infringement Claim is based on (i) the use of Product in combination with products not approved by BMC in the Product's Documentation, (ii) the failure of Customer to use any updates to such Product within a reasonable time after such updates are made available to Customer, or (iii) the failure of Customer to use the Product as permitted by the Order and in accordance with the Documentation. BMC will not bind Customer to a monetary obligation in a settlement or compromise, or make an admission on behalf of Customer, without obtaining Customer’s prior consent. If BMC determines in BMC’s reasonable discretion that use of the Product should be stopped because of an Infringement Claim or potential Infringement Claim, if a court of competent jurisdiction enjoins Customer from using a Product as a result of an Infringement Claim and BMC is unable to have such injunction stayed or overturned, or if BMC settles an Infringement Claim on terms that would require Customer to stop using the Product, then BMC will, at its expense and election: (a) modify or replace the Product, (b) procure the right to continue using the Product, or (c) if in BMC’s reasonable judgment, neither (a) or (b) is commercially reasonable, terminate Customer's License to the Product and (i) for any perpetual licenses, issue a refund based upon the applicable license fees paid, prorated over 48 months from the date of the Order under which the Products were initially licensed; and (ii) for any non-perpetual licenses, release Customer from its obligation to make future payments for the Product or issue a pro rata refund for any fees paid in advance. This Section contains Customer's exclusive remedies and BMC's sole liability for Infringement Claims.
14. TERMINATION. Upon thirty days advance written notice, either party may terminate this Agreement for its convenience on a prospective basis; however, such termination will have no effect on Orders placed prior to its effective date and such Orders will remain in full force and effect under the terms of this Agreement. Either party may terminate this Agreement and/or an Order for cause on 30 days’ written notice for material breach if the other party fails to cure the breach within 30-day-notice period. Upon any termination of a License, Customer will immediately uninstall and stop using the relevant Product, and upon BMC's request, Customer will immediately return such Product to BMC, together with all related Documentation and copies, or certify its destruction in writing. Any terms in this Agreement which by their nature extend beyond termination of this Agreement will remain in effect until fulfilled.
15. AUDIT. If requested by BMC, and not more than once a year, Customer agrees to deliver to BMC, within 30 days of such request, as specified by BMC either (a) periodic product usage reports generated from specific products or (b) written periodic product usage reports, to be provided solely when the product does not generate reports (“Report”). Additionally, if requested by BMC not more than once a year and upon at least 10 (ten) days prior written notice to Customer, Customer agrees to allow BMC to perform an audit (“Audit”) to ensure compliance with the terms of this Agreement at the locations where the Products are installed, during normal business hours.. Customer agrees to cooperate during any such Audit and to provide reasonable access to its information and systems.
16. EXPORT CONTROLS. Both parties agree to comply with applicable export regulations, including but not limited to U.S. Export Administration Regulations and the OFAC embargoes and sanctions lists. More information on BMC’s export compliance program may be found here: https://www.bmc.com/legal/export-compliance.html.
17. GOVERNING LAW AND DISPUTE RESOLUTION. Any controversy, dispute or claim arising out of or relating to this Agreement, or to the formation, interpretation, breach, termination, or validity thereof (each, a “Controversy”) will be resolved as follows:
(i) UNITED STATES. If both parties to this Agreement are entities incorporated under the law of any state in the United States, the Controversy shall be tried in either state or federal court located in Houston, Texas and the laws of the State of Texas shall govern. Both parties hereby submit to the exclusive jurisdiction of the courts in Houston, Texas and waive all defenses based on forum non conveniens. Notwithstanding the foregoing, if Customer is a state or local governmental entity or higher education institution and legally required to apply state law, then Customer’s state law will apply to the Controversy, without reference to conflict of law principles.
(ii) CANADA. If Customer is located in Canada (outside Quebec), then the law of the Province of Ontario law apply, without reference to conflict of law principles. If Customer is located in Quebec, then the laws of the Province Quebec will apply, without reference to conflict of law principles.
(iii) EMEA. If both parties to this Agreement are entities incorporated in countries in the Europe, Middle East, or Africa regions, the Controversy shall be tried in the District Court located in Amsterdam, the Netherlands and the substantive laws of the Netherlands shall govern. Both parties hereby submit to the exclusive jurisdiction of the District Court in Amsterdam, the Netherlands and waive all defenses based on forum non conveniens.
(iv) ASIA PACIFIC. If both parties to this Agreement are entities incorporated in countries in the Asia Pacific region, the arbitration shall be held in Singapore under the then-applicable rules of the Singapore International Arbitration Centre and the substantive laws of Singapore will govern.
(v) OTHER REGIONS. In all other instances, the arbitration shall be held in New York City, New York, under the then-applicable international rules of the American Arbitration Association and the substantive laws of the State of Texas will govern.
For all arbitrations conducted hereunder: (a) the arbitration shall be conducted in English; (b) the relevant arbitral institution shall determine the number of arbitrators, but any Controversy in which the amount in dispute is greater than $10 million USD shall be decided by three arbitrators, with each party having the right to select one arbitrator; (c) the costs of such arbitration shall be borne equally, pending the arbitrator’s award; (d) the arbitration award rendered shall be final and binding on the parties, shall not be subject to appeal to any court and shall be enforceable in any court having jurisdiction over the parties; (e) the arbitration proceedings, award and pleadings shall all be confidential, unless disclosure of particular information is required for purposes of enforcing/challenging the award or to meet local securities law requirements; and (f) the party prevailing in arbitration shall be entitled to recover its reasonable attorneys’ fees and the necessary costs incurred in connection with the arbitration.
The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. Nothing in this Agreement shall be deemed as preventing either party from seeking immediate injunctive relief from any court having jurisdiction over the parties and the subject matter of the dispute.
18. BMC ENTITIES. The following licensing entities apply to this Agreement:
Region | Licensing Entity | Address of Licensing Entity |
---|---|---|
United States and Latin America South (not a specified Central or South America country below) | BMC Software, Inc. | 2103 CityWest Boulevard, Houston, Texas 77042 |
Canada | BMC Software Canada Inc. | 50 Minthorn Boulevard, Suite 200, Markham, Ontario L3T 7X8 Canada |
EMEA (Europe, Middle East and Africa) | BMC Software Distribution B.V. | Vision Plaza West, 2nd floor, Boeingavenue 220, 1119PN Schiphol-Rijk, The Netherlands |
Brazil | BMC Software do Brasil Ltda. | Avenida Dra. Ruth Cardoso, n° 8.501, Condomínio Eldorado Business Tower, 22° andar, Pinheiros, São Paulo – SP, CEP: 05425-070 |
Mexico | BMC Software Distribution de México, S.A. de C.V. | Torre Esmeralda II Blvd. Manuel Avila, Camacho #36, Piso 23 Col. Lomas de Chapultepec, CP11000, Mexico City, México D.F. |
Argentina | BMC Software de Argentina S.A. | Ing. Butty 220 - Piso 18, Catalinas Plaza Buenos Aires, República de Argentina, C1001A |
S.E.A (Southeast Asia), Australia, New Zealand, Hong Kong, Taiwan | BMC Software Ireland Unlimited Company | Building 3, Cherrywood Business Park, Bray Road, Loughlinstown, CO. Dublin, D18 TF72 |
China | BMC Software (China) Limited | Room 502, Level 5, Tower W1, The Towers, Oriental Plaza, No. 1 East Chang An Ave., Dong Cheng Dist., Beijing 100738, China |
Japan | BMC Software K.K. | Harmony Tower 24th Floor, 1-32-2 Honcho, Nakano-ku, Tokyo, 164-8721 |
Korea | BMC Software Korea Ltd | 24th Fl., ASEM Tower, 1517, Yeongdong-daero,Gangnam-gu, Seoul 135-798, Korea South |
19. ASSIGNMENT AND TRANSFERS. Customer has the right to assign this Agreement or a License in whole to an Affiliate, or to a successor in connection with (i) the sale of all or substantially all of the assets of that party or (ii) a merger by operation of law by providing written notice to BMC. The assignee may not be a known direct competitor of BMC. The successor or Affiliate must agree in writing with BMC (in advance of the assignment) to be bound by the terms of this Agreement. Any Customer transfer or assignment except as expressly authorized above will be null and void.
20. DATA PROTECTION. The processing of personal data under this Agreement is governed by the Data Processing Agreement set forth on the Order, unless BMC already has a signed Data Processing Agreement with Customer for such BMC offerings; in which case, the signed version governs the processing of personal data. In the event there is no signed Data Processing Agreement or no reference to the applicable Data Processing Agreement in the Order, BMC and Customer agree that the Data Processing Agreement applicable on the date of the Order, a copy of which may be viewed at https://www.bmc.com/content/dam/bmc/corporate/bmcdpa.pdf, applies to the BMC offerings under this Agreement.
21. NOTICES. Any demand, notice, consent, or other communication required by this Agreement must be given in writing and shall be deemed delivered upon receipt when delivered personally or upon confirmation of receipt following delivery by internationally recognized overnight courier service to the addresses specified on the applicable Order.
22. CONDUCTING BUSINESS WITH HONEST AND INTEGRITY. BMC is committed to conducting business with honesty and integrity. BMC’s Code of Conduct set forth in https://www.bmc.com/legal/code-of-conduct.html governs the conduct of all officers, directors, and employees of BMC, and contingent workers and business partners acting on BMC’s behalf. BMC demonstrates its commitment to environmental stewardship by its global accreditation for ISO 14001:2015.
23. MISCELLANEOUS TERMS. A waiver by a party of any breach of any term of this Agreement will not be construed as a waiver of any continuing or succeeding breach. Should any term of this Agreement be invalid or unenforceable, the remaining terms will remain in effect. The parties acknowledge they have read this Agreement and agree that it is the complete and exclusive statement of the agreement and supersedes any prior or contemporaneous negotiations or agreements between the parties relating to the subject matter of this Agreement. There are no representations, promises, warranties, covenants, or undertakings between the parties other than those expressly set forth in this Agreement. This Agreement may not be modified or rescinded except in writing signed by both parties. Any delay or failure of any party to perform any obligation under this Agreement caused by governmental restrictions, labor disputes, storms or natural disasters, emergency, or other causes beyond the reasonable control of the party, will not be deemed a breach of this Agreement; provided, however, this provision does not apply to the payment of monies or any breach of Section 10. The BMC Products may contain third party software which is delivered to Customer as part of the Product and may not be taken out of the Product or used separately from the Product and for which additional terms may be included in the Documentation. The Product may contain hyperlinks to websites controlled by parties other than BMC. BMC is not responsible for and does not endorse the content or accept any responsibility for Customer’s use of these websites. Customer should refer to the policies posted by other websites regarding data privacy and other topics before using them. Any additional documents presented to a BMC representative by Customer for signature as a condition for going on a Customer’s site will be governed by this Agreement and to the extent that such document presents additional terms or conflicts with this Agreement, it shall be considered null and void. Les parties exigent que la présente convention ainsi que les documents qui s’y rattachent soient rédigés en anglais.
24. U.S. GOVERNMENT END USER RIGHTS. This Section applies only to acquisitions of the commercial Product and Documentation subject to this Agreement by or on behalf of the United States Government, or by any prime contractor or subcontractor (at any tier) under any contract, grant, agreement or other activity with the United States Government. When Products are delivered or provided to the United States Government, the United States Government agrees that this commercial license Agreement and the Products governed by this Agreement are defined in accordance with and qualify as “commercial items” consisting of “commercial computer software” and “commercial computer software documentation” as outlined in FAR 12.211, FAR 12.212 and DFARS 227.202-3, as applicable. The terms and conditions of this Agreement shall pertain to the United States Government’s use (including documentation or technical data), duplication, and disclosure of the Product, and shall supersede any conflicting contractual terms and conditions.
YOU AGREE THAT YOU HAVE READ THIS AGREEMENT AND INTEND TO BE BOUND, AS IF YOU HAD SIGNED THIS AGREEMENT IN WRITING. IF YOU ARE ACTING ON BEHALF OF AN ENTITY, YOU WARRANT THAT YOU HAVE THE AUTHORITY TO ACCEPT THE TERMS OF THIS AGREEMENT FOR SUCH ENTITY.
Effective February 15th 2022 to June 1st 2022
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END USER LICENSE AGREEMENT
BY OPENING THE PACKAGE, DOWNLOADING OR INSTALLING, PRESSING “AGREE” OR “YES” OR USING THE PRODUCT, THE ENTITY OR INDIVIDUAL ENTERING INTO THIS AGREEMENT AGREES TO BE BOUND BY THE FOLLOWING TERMS. IF YOU DO NOT AGREE WITH ANY OF THESE TERMS, DO NOT INSTALL OR USE THE PRODUCT, PROMPTLY RETURN THE PRODUCT TO BMC OR YOUR BMC RESELLER. IF YOU REJECT THIS AGREEMENT, YOU WILL NOT ACQUIRE ANY LICENSE TO USE THE PRODUCT.
This Agreement ("Agreement") is between the entity or individual entering into this Agreement (“Customer”) and the BMC Entity for the applicable Region where Customer acquired the License as described in Section 18 (“BMC”). This Agreement was last updated on February 15, 2022. For Customer’s convenience, prior versions of this Agreement are available at https://www.bmc.com/legal/end-user-license-agreements.html.
1. GENERAL DEFINITIONS.
“Affiliate” is an entity that controls, is controlled by or shares common control with BMC or Customer, where such control arises from the legal power to direct or cause the direction of the general management and policies of the company, partnership or legal entity.
“Authorized User” means Customer, Customer Affiliate(s), and their employees, consultants, contractors and agents that are bound by the terms and conditions no less restrictive than those contained herein and for whom Customer takes full responsibility. Authorized Users do not include service providers or outsourcers.
"Documentation" means the technical publications relating to the software, such as release notes, license entitlement descriptions, reference, user, installation, systems administrator and technical guidelines, included with the Product.
“Licensed Capacity” is the amount of each Product licensed as established in the Order. Any Units of Measure and License Restrictions related to the Licensed Capacity will be set forth in the Order.
“Order” is an agreed written or electronic document, subject to the terms of this Agreement that identifies the Products to be licensed and the Licensed Capacity and/or the Support to be purchased and the fees to be paid.
“Product” is the object code of the software and all accompanying Documentation delivered to Customer, including all items delivered by BMC to Customer under Support.
“Support” is the support services program as further specified in this Agreement.
“Territory” means the country(ies) where Customer is licensed to install the Product as specified in the Order.
2. SCOPE. Licenses are granted, and Support is obtained, solely by execution of Orders. Each Order is deemed to be a discrete contract, separate from each other Order, unless expressly stated otherwise therein, and in the event of a direct conflict between any Order and the terms of this Agreement, the terms of the Order will control only if the Order is agreed to by each party. Neither execution of this Agreement, nor anything contained herein, shall obligate either party to enter into any Orders. In the event an Order is proposed by BMC and is deemed to constitute an offer, then acceptance of such offer is limited to its terms. In the event Customer proposes an Order by submitting a purchase order, then regardless of whether BMC acknowledges, accepts or fully or partially performs under such purchase order, BMC OBJECTS to any additional or different terms in the purchase order.
3. LICENSE. Subject to the terms, conditions, payment requirements and restrictions set forth in this Agreement, BMC grants Customer a non-exclusive, non-transferable, non-sub-licensable non-perpetual (unless a perpetual license is provided on an Order) license to install in the Territory, access and use the Product (i) by Authorized User(s), (ii) up to the Licensed Capacity, (iii) for Customer’s and its Affiliates internal business operations, (iv) in accordance with the Documentation and the applicable Order, and (v) make a reasonable number of copies of the Product and the Documentation for archival purposes only (collectively a "License"). Affiliates may use and access the Products and Support under the terms of this Agreement, and Customer is responsible for its Affiliates compliance with the terms of this Agreement.
4. RESTRICTIONS. Customer will not: (a) copy, operate or use any Product in excess of the applicable Licensed Capacity or other than as set forth in the License above; (b) modify, delete or remove any ownership, title, trademark, patent or copyright notices from any Product, or copy or partial copy of a Product; (c) disassemble, reverse engineer, decompile or otherwise attempt to derive any Product source code from object code, except to the extent expressly permitted by applicable law despite this limitation without possibility of contractual waiver; (d) distribute, rent, lease, sublicense or provide the Product to any third party; (e) use the Products in an outsourcing or service bureau environment on behalf of non-Affiliate third parties, or allow the products to be used by an outsourcing or service bureau provider on Customer’s behalf (without obtaining prior written approval from BMC); (f) provide a third party with the results of any functional evaluation, or performance tests, without BMC's prior written approval; or (g) attempt to disable or circumvent any of the licensing mechanisms within the Product.
5. PRODUCT PERFORMANCE WARRANTY. BMC warrants that (a) the Product will perform in substantial accordance with its Documentation for a period of one year from the date of the first Order, (b) BMC has used commercially reasonable efforts consistent with industry standards to scan for and remove software viruses, and (c) other than passwords that may be required for the operation of the Product, BMC has not inserted any code that is not addressed in the Documentation and that is designed to delete, interfere with or disable the normal operation of the Product in accordance with the License. This warranty will not apply to any problems caused by hardware, Computers, or software other than the Product, or misuse of the Product, use of the Product other than as provided by the applicable License, modification of the Product, or claims made either outside the warranty period or not in compliance with the notice and access requirements set forth below. No warranty is provided for additional Licensed Capacity, Product provided pursuant to Support or Product provided pursuant to Section 12.
6. LIMITED REMEDIES. BMC’s entire liability, and Customer’s exclusive remedy, for breach of the above warranty is limited to: BMC’s use of commercially reasonable efforts to have the Product perform in substantial accordance with its Documentation, or replacement of the non-conforming Product within a reasonable period of time, or if BMC cannot have the Product perform in substantial accordance with its Documentation replace the Product within such time period, then BMC will refund the amount paid by Customer for the License for that Product. Customer’s rights and BMC's obligations in this Section are conditioned upon Customer’s providing BMC during the warranty period (a) full cooperation and access to the Product in resolving any claim; and (b) written notice addressed to the BMC Legal Department that includes notice of the claim, a complete description of the alleged defects sufficient to permit their reproduction in BMC’s development or support environment, and a specific reference to the Documentation to which such alleged defects are contrary.
7. DISCLAIMER OF WARRANTIES. EXCEPT FOR THE EXPRESS WARRANTIES IN THIS AGREEMENT, THE PRODUCT IS PROVIDED WITH NO OTHER WARRANTIES WHATSOEVER, AND BMC, ITS AFFILIATES AND LICENSORS DISCLAIM ALL OTHER WARRANTIES, INCLUDING, FITNESS FOR A PARTICULAR PURPOSE AND IN THE UNITED STATES AND CANADA, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, AND NON-INFRINGEMENT. BMC DOES NOT WARRANT THAT THE OPERATION OF THE PRODUCT WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT ALL DEFECTS CAN BE CORRECTED.
8. SUPPORT. Customer may acquire BMC support services (“Support”) on an Order for the total Licensed Capacity of a Product. BMC will notify Customer that it is time to renew Support at least 60 days prior to the end of any prepaid Support period. Customer will provide notice to BMC if it does not intend to renew Support. The annual fee for Support will be agreed upon at the time of each Order. A further description of Support is located at www.bmc.com/support/review-policies, and is incorporated herein by this reference. BMC may change its Support terms to be effective at the end of any prepaid Support period. BMC reserves the right to discontinue Support for a Product where BMC generally discontinues such services to all licensees of that Product. If Customer stops being enrolled in Support and then re-enrolls in Support, BMC may charge Customer a reinstatement fee.
9. PAYMENT, DELIVERY AND TAXES. Customer will pay each License fee and/or Support fee within 30 days of the date of the invoice. Customer will pay taxes imposed in connection with the fees paid for the License and/or Support, which are exclusive of these taxes. For Products that are delivered electronically, upon request from BMC, Customer agrees to provide BMC with documentation supporting that the designated Product was received electronically. If Customer accepts any Product in a non-electronic format, there may be an additional charge and it is the sole responsibility of Customer to bear any sales/use tax obligation, penalties, and interest. Late balances may, at BMC’s sole election, bear interest at a rate equal to the lesser of 1% per month or the maximum amount permitted by law. All Products are licensed FCA (“Free Carrier” as per Incoterms 2000) shipping point. The Products are accepted on the date BMC delivers the Product to the Customer either physically or by providing access codes for electronic download, whichever occurs first, however, such acceptance will not affect the Product Performance Warranty provided in this Agreement. With regard to Products acquired by Customer through an authorized reseller ("Solution Provider") of BMC, notwithstanding anything to the contrary herein, Customer will have no direct payment obligations to BMC for such fees.
10. PROPRIETARY RIGHTS AND CONFIDENTIALITY. (a) BMC, its Affiliates or licensors retain all right, title and interest to the Product, Support and all related intellectual property and proprietary rights. The Product and all third party software provided with the Product are protected by applicable copyright, trade secret, industrial and other intellectual property laws. BMC reserves any rights not expressly granted to Customer in this Agreement. (b) “Confidential Information” means all proprietary or confidential information that is disclosed to the recipient (“Recipient”) by the discloser (“Discloser”), and includes, among other things (i) any and all information relating Discloser financial information, customers, employees, products or services, including, without limitation, software code, BMC product vulnerabilites, flow charts, techniques, specifications, development and marketing plans, strategies, forecasts, and proposal related documents and responses; (ii) as to BMC, and its licensors, the Product (excluding portions of the Documentation that BMC makes publicly available) and any third party software provided with the Product; and (iii) the terms of this Agreement, including without limitation, Product pricing information. Confidential Information does not include information that Recipient can show: (a) was rightfully in Recipient’s possession without any obligation of confidentiality before receipt from the Discloser; (b) is or becomes a matter of public knowledge through no fault of Recipient; (c) is rightfully received by Recipient from a third party without violation of a duty of confidentiality; or (d) is independently developed by or for Recipient. Recipient may not disclose Confidential Information of Discloser to any third party or use the Confidential Information in violation of this Agreement. The Recipient (i) will exercise the same degree of care and protection with respect to the Confidential Information of the Discloser that it exercises with respect to its own Confidential Information and (ii) will not, either directly or indirectly, disclose, copy, distribute, republish, or allow any third party to have access to any Confidential Information of the Discloser. Notwithstanding the foregoing, Recipient may disclose Discloser’s Confidential Information to Recipient’s employees and agents (if Recipient is BMC) and to Authorized User(s) (if Recipient is the Customer)who have the need to know provided that such employees, agents and Authorized User(s) have legal obligations of confidentiality substantially the same (and in no case less protective) as the provisions of this Agreement. (c) Notification Obligation. If the Recipient becomes aware of any unauthorized use or disclosure of Discloser’s Confidential Information, then Recipient will promptly and fully notify the Discloser of all facts known to it concerning such unauthorized use or disclosure. In addition, if the Recipient or any of its employees or agents are required (by oral questions, interrogatories, requests for information, or documents in legal proceedings, subpoena, civil investigative demand, or other similar process) to disclose any of Discloser’s Confidential Information, the Recipient will not disclose the Discloser’s Confidential Information without providing the Discloser with commercially reasonable advance prior written notice to allow Discloser to seek a protective order or other appropriate remedy or to waive compliance with this provision. In any event, the Recipient will exercise its commercially reasonable efforts to preserve the confidentiality of the Discloser’s Confidential Information, including, without limitation, cooperating with Discloser to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded to the Confidential Information.
11. DISCLAIMER OF DAMAGES; LIMITS ON LIABILITY. EXCEPT FOR VIOLATIONS OF LICENSE RESTRICTIONS (Section 4), AND PROPRIETARY RIGHTS AND CONFIDENTIALITY (SECTION 10) AND FOR INFRINGEMENT CLAIMS (SECTION 13), GROSS NEGLIGENCE, WILLFUL MISCONDUCT, DEATH OR BODILY INJURY, ACTS OF FRAUD AND ANY LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED BY LAW, NEITHER PARTY, ITS AFFILIATES OR BMC’s LICENSORS (A) ARE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES RELATING TO OR ARISING OUT OF THIS AGREEMENT, SUPPORT, THE PRODUCT OR ANY THIRD PARTY CODE OR SOFTWARE PROVIDED WITH THE PRODUCT (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST COMPUTER USAGE TIME, AND DAMAGE TO, OR LOSS OF USE OF DATA), EVEN IF ADVISED OF THE OF THE POSSIBILITY OF SUCH DAMAGES, AND IRRESPECTIVE OF NEGLIGENCE OF A PARTY OR WHETHER SUCH DAMAGES RESULT FROM A CLAIM ARISING UNDER TORT OR CONTRACT LAW AND (B) LIABILITY IN ANY EVENT SHALL NOT EXCEED THE AMOUNT PAID AND PAYABLE BY CUSTOMER FOR THE LICENSE TO THE APPLICABLE PRODUCT GIVING RISE TO SUCH DAMAGES.
12. TRIAL LICENSE. BMC may determine, in its sole discretion, to make products available to Customer without an Order and without charge. Such products are deemed to be “Products” pursuant to this Agreement except that (a) they are provided to Customer solely so that Customer may evaluate internally whether to acquire a license to the products for a fee, (b) the license term for such products is 30 days; (c) the Products are provided “AS IS” and without any warranty or support, and (d) the products cannot be put into productive use or included as part of Customer’s business processes in any manner, unless or until they are expressly licensed and paid for under an Order. BMC may terminate all of Customer’s rights and licenses to these Products for BMC’s convenience upon notice to Customer.
13. INFRINGEMENT CLAIMS. If a third party asserts a claim against Customer asserting that Customer’s use of a Product in accordance with this Agreement violates that third-party’s patent, trade secret or copyright rights (“Infringement Claim”), then BMC will, at its own expense: (a) defend or settle the Infringement Claim; and (b) indemnify Customer for any damages finally awarded against Customer based on infringement by the Product. BMC’s obligations under this Section will not apply if: (a) BMC’s legal department does not receive prompt, detailed written notice of the Infringement Claim from Customer, (b) BMC is not able to retain sole control of the defense of the Infringement Claim and all negotiations for its settlement or compromise, (c) BMC does not receive all reasonable assistance, or (d) the Infringement Claim is based on (i) the use of Product in combination with products not approved by BMC in the Product's Documentation, (ii) the failure of Customer to use any updates to such Product within a reasonable time after such updates are made available to Customer, or (iii) the failure of Customer to use the Product as permitted by the Order and in accordance with the Documentation. BMC will not bind Customer to a monetary obligation in a settlement or compromise, or make an admission on behalf of Customer, without obtaining Customer’s prior consent. If BMC determines in BMC’s reasonable discretion that use of the Product should be stopped because of an Infringement Claim or potential Infringement Claim, if a court of competent jurisdiction enjoins Customer from using a Product as a result of an Infringement Claim and BMC is unable to have such injunction stayed or overturned, or if BMC settles an Infringement Claim on terms that would require Customer to stop using the Product, then BMC will, at its expense and election: (a) modify or replace the Product, (b) procure the right to continue using the Product, or (c) if in BMC’s reasonable judgment, neither (a) or (b) is commercially reasonable, terminate Customer's License to the Product and (i) for any perpetual licenses, issue a refund based upon the applicable license fees paid, prorated over 48 months from the date of the Order under which the Products were initially licensed; and (ii) for any non-perpetual licenses, release Customer from its obligation to make future payments for the Product or issue a pro rata refund for any fees paid in advance. This Section contains Customer's exclusive remedies and BMC's sole liability for Infringement Claims.
14. TERMINATION. Upon thirty days advance written notice, either party may terminate this Agreement for its convenience on a prospective basis; however, such termination will have no effect on Orders placed prior to its effective date and such Orders will remain in full force and effect under the terms of this Agreement. Either party may terminate this Agreement and/or an Order for cause on 30 days’ written notice for material breach if the other party fails to cure the breach within 30-day-notice period. Upon any termination of a License, Customer will immediately uninstall and stop using the relevant Product, and upon BMC's request, Customer will immediately return such Product to BMC, together with all related Documentation and copies, or certify its destruction in writing. Any terms in this Agreement which by their nature extend beyond termination of this Agreement will remain in effect until fulfilled.
15. AUDIT. If requested by BMC, and not more than once a year, Customer agrees to deliver to BMC, within 30 days of such request, as specified by BMC either (a) periodic product usage reports generated from specific products or (b) written periodic product usage reports, to be provided solely when the product does not generate reports (“Report”). Additionally, if requested by BMC not more than once a year and upon at least 10 (ten) days prior written notice to Customer, Customer agrees to allow BMC to perform an audit (“Audit”) to ensure compliance with the terms of this Agreement at the locations where the Products are installed, during normal business hours.. Customer agrees to cooperate during any such Audit and to provide reasonable access to its information and systems.
16. EXPORT CONTROLS. Both parties agree to comply with applicable export regulations, including but not limited to U.S. Export Administration Regulations and the OFAC embargoes and sanctions lists. More information on BMC’s export compliance program may be found here: https://www.bmc.com/legal/export-compliance.html.
17. GOVERNING LAW AND DISPUTE RESOLUTION. Any controversy, dispute or claim arising out of or relating to this Agreement, or to the formation, interpretation, breach, termination, or validity thereof (each, a “Controversy”) will be resolved as follows:
(i) UNITED STATES. If both parties to this Agreement are entities incorporated under the law of any state in the United States, the Controversy shall be tried in either state or federal court located in Houston, Texas and the laws of the State of Texas shall govern. Both parties hereby submit to the exclusive jurisdiction of the courts in Houston, Texas and waive all defenses based on forum non conveniens. Notwithstanding the foregoing, if Customer is a state or local governmental entity or higher education institution and legally required to apply state law, then Customer’s state law will apply to the Controversy, without reference to conflict of law principles.
(ii) CANADA. If Customer is located in Canada (outside Quebec), then the law of the Province of Ontario law apply, without reference to conflict of law principles. If Customer is located in Quebec, then the laws of the Province Quebec will apply, without reference to conflict of law principles.
(iii) EMEA. If both parties to this Agreement are entities incorporated in countries in the Europe, Middle East, or Africa regions, the Controversy shall be tried in the District Court located in Amsterdam, the Netherlands and the substantive laws of the Netherlands shall govern. Both parties hereby submit to the exclusive jurisdiction of the District Court in Amsterdam, the Netherlands and waive all defenses based on forum non conveniens.
(iv) ASIA PACIFIC. If both parties to this Agreement are entities incorporated in countries in the Asia Pacific region, the arbitration shall be held in Singapore under the then-applicable rules of the Singapore International Arbitration Centre and the substantive laws of Singapore will govern.
(v) OTHER REGIONS. In all other instances, the arbitration shall be held in New York City, New York, under the then-applicable international rules of the American Arbitration Association and the substantive laws of the State of Texas will govern.
For all arbitrations conducted hereunder: (a) the arbitration shall be conducted in English; (b) the relevant arbitral institution shall determine the number of arbitrators, but any Controversy in which the amount in dispute is greater than $10 million USD shall be decided by three arbitrators, with each party having the right to select one arbitrator; (c) the costs of such arbitration shall be borne equally, pending the arbitrator’s award; (d) the arbitration award rendered shall be final and binding on the parties, shall not be subject to appeal to any court and shall be enforceable in any court having jurisdiction over the parties; (e) the arbitration proceedings, award and pleadings shall all be confidential, unless disclosure of particular information is required for purposes of enforcing/challenging the award or to meet local securities law requirements; and (f) the party prevailing in arbitration shall be entitled to recover its reasonable attorneys’ fees and the necessary costs incurred in connection with the arbitration.
The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. Nothing in this Agreement shall be deemed as preventing either party from seeking immediate injunctive relief from any court having jurisdiction over the parties and the subject matter of the dispute.
18. BMC ENTITIES. The following licensing entities apply to this Agreement:
Region | Licensing Entity | Address of Licensing Entity |
---|---|---|
United States and Latin America South (not a specified Central or South America country below) | BMC Software, Inc. | 2103 CityWest Boulevard, Houston, Texas 77042 |
Canada | BMC Software Canada Inc. | 50 Minthorn Boulevard, Suite 200, Markham, Ontario L3T 7X8 Canada |
EMEA (Europe, Middle East and Africa) | BMC Software Distribution B.V. | Vision Plaza West, 2nd floor, Boeingavenue 220, 1119PN Schiphol-Rijk, The Netherlands |
Brazil | BMC Software do Brasil Ltda. | Avenida Dra. Ruth Cardoso, n° 8.501, Condomínio Eldorado Business Tower, 22° andar, Pinheiros, São Paulo – SP, CEP: 05425-070 |
Mexico | BMC Software Distribution de México, S.A. de C.V. | Torre Esmeralda II Blvd. Manuel Avila, Camacho #36, Piso 23 Col. Lomas de Chapultepec, CP11000, Mexico City, México D.F. |
Argentina | BMC Software de Argentina S.A. | Ing. Butty 220 - Piso 18, Catalinas Plaza Buenos Aires, República de Argentina, C1001A |
S.E.A (Southeast Asia), Australia, New Zealand, Hong Kong, Taiwan | BMC Software Ireland Unlimited Company | Building 3, Cherrywood Business Park, Bray Road, Loughlinstown, CO. Dublin, D18 TF72 |
China | BMC Software (China) Limited | Room 502, Level 5, Tower W1, The Towers, Oriental Plaza, No. 1 East Chang An Ave., Dong Cheng Dist., Beijing 100738, China |
Japan | BMC Software K.K. | Harmony Tower 24th Floor, 1-32-2 Honcho, Nakano-ku, Tokyo, 164-8721 |
Korea | BMC Software Korea Ltd | 24th Fl., ASEM Tower, 1517, Yeongdong-daero,Gangnam-gu, Seoul 135-798, Korea South |
19. ASSIGNMENT AND TRANSFERS. Customer has the right to assign this Agreement or a License in whole to an Affiliate, or to a successor in connection with (i) the sale of all or substantially all of the assets of that party or (ii) a merger by operation of law by providing written notice to BMC. The assignee may not be a known direct competitor of BMC. The successor or Affiliate must agree in writing with BMC (in advance of the assignment) to be bound by the terms of this Agreement. Any Customer transfer or assignment except as expressly authorized above will be null and void.
20. DATA PROTECTION. The processing of personal data under this Agreement is governed by the Data Processing Agreement set forth on the Order, unless BMC already has a signed Data Processing Agreement with Customer for such BMC offerings; in which case, the signed version governs the processing of personal data. In the event there is no signed Data Processing Agreement or no reference to the applicable Data Processing Agreement in the Order, BMC and Customer agree that the Data Processing Agreement applicable on the date of the Order, a copy of which may be viewed at https://www.bmc.com/content/dam/bmc/corporate/bmcdpa.pdf, applies to the BMC offerings under this Agreement.
21. NOTICES. Any demand, notice, consent, or other communication required by this Agreement must be given in writing and shall be deemed delivered upon receipt when delivered personally or upon confirmation of receipt following delivery by internationally recognized overnight courier service to the addresses specified on the applicable Order.
22. CONDUCTING BUSINESS WITH HONEST AND INTEGRITY. BMC is committed to conducting business with honesty and integrity. BMC’s Code of Conduct set forth in https://www.bmc.com/legal/code-of-conduct.html governs the conduct of all officers, directors, and employees of BMC, and contingent workers and business partners acting on BMC’s behalf. BMC demonstrates its commitment to environmental stewardship by its global accreditation for ISO 14001:2015.
23. MISCELLANEOUS TERMS. A waiver by a party of any breach of any term of this Agreement will not be construed as a waiver of any continuing or succeeding breach. Should any term of this Agreement be invalid or unenforceable, the remaining terms will remain in effect. The parties acknowledge they have read this Agreement and agree that it is the complete and exclusive statement of the agreement and supersedes any prior or contemporaneous negotiations or agreements between the parties relating to the subject matter of this Agreement. There are no representations, promises, warranties, covenants, or undertakings between the parties other than those expressly set forth in this Agreement. This Agreement may not be modified or rescinded except in writing signed by both parties. Any delay or failure of any party to perform any obligation under this Agreement caused by governmental restrictions, labor disputes, storms or natural disasters, emergency, or other causes beyond the reasonable control of the party, will not be deemed a breach of this Agreement; provided, however, this provision does not apply to the payment of monies or any breach of Section 10. The BMC Products may contain third party software which is delivered to Customer as part of the Product and may not be taken out of the Product or used separately from the Product and for which additional terms may be included in the Documentation. The Product may contain hyperlinks to websites controlled by parties other than BMC. BMC is not responsible for and does not endorse the content or accept any responsibility for Customer’s use of these websites. Customer should refer to the policies posted by other websites regarding data privacy and other topics before using them. Any additional documents presented to a BMC representative by Customer for signature as a condition for going on a Customer’s site will be governed by this Agreement and to the extent that such document presents additional terms or conflicts with this Agreement, it shall be considered null and void. Les parties exigent que la présente convention ainsi que les documents qui s’y rattachent soient rédigés en anglais.
24. U.S. GOVERNMENT END USER RIGHTS. This Section applies only to acquisitions of the commercial Product and Documentation subject to this Agreement by or on behalf of the United States Government, or by any prime contractor or subcontractor (at any tier) under any contract, grant, agreement or other activity with the United States Government. When Products are delivered or provided to the United States Government, the United States Government agrees that this commercial license Agreement and the Products governed by this Agreement are defined in accordance with and qualify as “commercial items” consisting of “commercial computer software” and “commercial computer software documentation” as outlined in FAR 12.211, FAR 12.212 and DFARS 227.202-3, as applicable. The terms and conditions of this Agreement shall pertain to the United States Government’s use (including documentation or technical data), duplication, and disclosure of the Product, and shall supersede any conflicting contractual terms and conditions.
YOU AGREE THAT YOU HAVE READ THIS AGREEMENT AND INTEND TO BE BOUND, AS IF YOU HAD SIGNED THIS AGREEMENT IN WRITING. IF YOU ARE ACTING ON BEHALF OF AN ENTITY, YOU WARRANT THAT YOU HAVE THE AUTHORITY TO ACCEPT THE TERMS OF THIS AGREEMENT FOR SUCH ENTITY.
Effective February 15th 2022 to February 15th 2022
DownloadTable of Contents
END USER LICENSE AGREEMENT
BY OPENING THE PACKAGE, DOWNLOADING OR INSTALLING, PRESSING “AGREE” OR “YES” OR USING THE PRODUCT, THE ENTITY OR INDIVIDUAL ENTERING INTO THIS AGREEMENT AGREES TO BE BOUND BY THE FOLLOWING TERMS. IF YOU DO NOT AGREE WITH ANY OF THESE TERMS, DO NOT INSTALL OR USE THE PRODUCT, PROMPTLY RETURN THE PRODUCT TO BMC OR YOUR BMC RESELLER. IF YOU REJECT THIS AGREEMENT, YOU WILL NOT ACQUIRE ANY LICENSE TO USE THE PRODUCT.
This Agreement ("Agreement") is between the entity or individual entering into this Agreement (“Customer”) and the BMC Entity for the applicable Region where Customer acquired the License as described in Section 18 (“BMC”). This Agreement was last updated on May 21, 2021. For Customer’s convenience, prior versions of this Agreement are available at https://www.bmc.com/legal/end-user-license-agreements.html.
1. GENERAL DEFINITIONS.
“Affiliate” is an entity that controls, is controlled by or shares common control with BMC or Customer, where such control arises from the legal power to direct or cause the direction of the general management and policies of the company, partnership or legal entity.
“Authorized User” means Customer, Customer Affiliate(s), and their employees, consultants, contractors and agents that are bound by the terms and conditions no less restrictive than those contained herein and for whom Customer takes full responsibility. Authorized Users do not include service providers or outsourcers.
"Documentation" means the technical publications relating to the software, such as release notes, license entitlement descriptions, reference, user, installation, systems administrator and technical guidelines, included with the Product.
“Licensed Capacity” is the amount of each Product licensed as established in the Order. Any Units of Measure and License Restrictions related to the Licensed Capacity will be set forth in the Order.
“Order” is an agreed written or electronic document, subject to the terms of this Agreement that identifies the Products to be licensed and the Licensed Capacity and/or the Support to be purchased and the fees to be paid.
“Product” is the object code of the software and all accompanying Documentation delivered to Customer, including all items delivered by BMC to Customer under Support.
“Support” is the support services program as further specified in this Agreement.
“Territory” means the country(ies) where Customer is licensed to install the Product as specified in the Order.
2. SCOPE. Licenses are granted, and Support is obtained, solely by execution of Orders. Each Order is deemed to be a discrete contract, separate from each other Order, unless expressly stated otherwise therein, and in the event of a direct conflict between any Order and the terms of this Agreement, the terms of the Order will control only if the Order is agreed to by each party. Neither execution of this Agreement, nor anything contained herein, shall obligate either party to enter into any Orders. In the event an Order is proposed by BMC and is deemed to constitute an offer, then acceptance of such offer is limited to its terms. In the event Customer proposes an Order by submitting a purchase order, then regardless of whether BMC acknowledges, accepts or fully or partially performs under such purchase order, BMC OBJECTS to any additional or different terms in the purchase order.
3. LICENSE. Subject to the terms, conditions, payment requirements and restrictions set forth in this Agreement, BMC grants Customer a non-exclusive, non-transferable, non-sub-licensable non-perpetual (unless a perpetual license is provided on an Order) license to install in the Territory, access and use the Product (i) by Authorized User(s), (ii) up to the Licensed Capacity, (iii) for Customer’s and its Affiliates internal business operations, (iv) in accordance with the Documentation and the applicable Order, and (v) make a reasonable number of copies of the Product and the Documentation for archival purposes only (collectively a "License"). Affiliates may use and access the Products and Support under the terms of this Agreement, and Customer is responsible for its Affiliates compliance with the terms of this Agreement.
4. RESTRICTIONS. Customer will not: (a) copy, operate or use any Product in excess of the applicable Licensed Capacity or other than as set forth in the License above; (b) modify, delete or remove any ownership, title, trademark, patent or copyright notices from any Product, or copy or partial copy of a Product; (c) disassemble, reverse engineer, decompile or otherwise attempt to derive any Product source code from object code, except to the extent expressly permitted by applicable law despite this limitation without possibility of contractual waiver; (d) distribute, rent, lease, sublicense or provide the Product to any third party; (e) use the Products in an outsourcing or service bureau environment on behalf of non-Affiliate third parties, or allow the products to be used by an outsourcing or service bureau provider on Customer’s behalf (without obtaining prior written approval from BMC); (f) provide a third party with the results of any functional evaluation, or performance tests, without BMC's prior written approval; or (g) attempt to disable or circumvent any of the licensing mechanisms within the Product.
5. PRODUCT PERFORMANCE WARRANTY. BMC warrants that (a) the Product will perform in substantial accordance with its Documentation for a period of one year from the date of the first Order, (b) BMC has used commercially reasonable efforts consistent with industry standards to scan for and remove software viruses, and (c) other than passwords that may be required for the operation of the Product, BMC has not inserted any code that is not addressed in the Documentation and that is designed to delete, interfere with or disable the normal operation of the Product in accordance with the License. This warranty will not apply to any problems caused by hardware, Computers, or software other than the Product, or misuse of the Product, use of the Product other than as provided by the applicable License, modification of the Product, or claims made either outside the warranty period or not in compliance with the notice and access requirements set forth below. No warranty is provided for additional Licensed Capacity, Product provided pursuant to Support or Product provided pursuant to Section 12.
6. LIMITED REMEDIES. BMC’s entire liability, and Customer’s exclusive remedy, for breach of the above warranty is limited to: BMC’s use of commercially reasonable efforts to have the Product perform in substantial accordance with its Documentation, or replacement of the non-conforming Product within a reasonable period of time, or if BMC cannot have the Product perform in substantial accordance with its Documentation replace the Product within such time period, then BMC will refund the amount paid by Customer for the License for that Product. Customer’s rights and BMC's obligations in this Section are conditioned upon Customer’s providing BMC during the warranty period (a) full cooperation and access to the Product in resolving any claim; and (b) written notice addressed to the BMC Legal Department that includes notice of the claim, a complete description of the alleged defects sufficient to permit their reproduction in BMC’s development or support environment, and a specific reference to the Documentation to which such alleged defects are contrary.
7. DISCLAIMER OF WARRANTIES. EXCEPT FOR THE EXPRESS WARRANTIES IN THIS AGREEMENT, THE PRODUCT IS PROVIDED WITH NO OTHER WARRANTIES WHATSOEVER, AND BMC, ITS AFFILIATES AND LICENSORS DISCLAIM ALL OTHER WARRANTIES, INCLUDING, FITNESS FOR A PARTICULAR PURPOSE AND IN THE UNITED STATES AND CANADA, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, AND NON-INFRINGEMENT. BMC DOES NOT WARRANT THAT THE OPERATION OF THE PRODUCT WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT ALL DEFECTS CAN BE CORRECTED.
8. SUPPORT. Customer may acquire BMC support services (“Support”) on an Order for the total Licensed Capacity of a Product. BMC will notify Customer that it is time to renew Support at least 60 days prior to the end of any prepaid Support period. Customer will provide notice to BMC if it does not intend to renew Support. The annual fee for Support will be agreed upon at the time of each Order. A further description of Support is located at www.bmc.com/support/review-policies, and is incorporated herein by this reference. BMC may change its Support terms to be effective at the end of any prepaid Support period. BMC reserves the right to discontinue Support for a Product where BMC generally discontinues such services to all licensees of that Product. If Customer stops being enrolled in Support and then re-enrolls in Support, BMC may charge Customer a reinstatement fee.
9. PAYMENT, DELIVERY AND TAXES. Customer will pay each License fee and/or Support fee within 30 days of the date of the invoice. Customer will pay taxes imposed in connection with the fees paid for the License and/or Support, which are exclusive of these taxes. For Products that are delivered electronically, upon request from BMC, Customer agrees to provide BMC with documentation supporting that the designated Product was received electronically. If Customer accepts any Product in a non-electronic format, there may be an additional charge and it is the sole responsibility of Customer to bear any sales/use tax obligation, penalties, and interest. Late balances may, at BMC’s sole election, bear interest at a rate equal to the lesser of 1% per month or the maximum amount permitted by law. All Products are licensed FCA (“Free Carrier” as per Incoterms 2000) shipping point. The Products are accepted on the date BMC delivers the Product to the Customer either physically or by providing access codes for electronic download, whichever occurs first, however, such acceptance will not affect the Product Performance Warranty provided in this Agreement. With regard to Products acquired by Customer through an authorized reseller ("Solution Provider") of BMC, notwithstanding anything to the contrary herein, Customer will have no direct payment obligations to BMC for such fees.
10. PROPRIETARY RIGHTS AND CONFIDENTIALITY. (a) BMC, its Affiliates or licensors retain all right, title and interest to the Product, Support and all related intellectual property and proprietary rights. The Product and all third party software provided with the Product are protected by applicable copyright, trade secret, industrial and other intellectual property laws. BMC reserves any rights not expressly granted to Customer in this Agreement. (b) “Confidential Information” means all proprietary or confidential information that is disclosed to the recipient (“Recipient”) by the discloser (“Discloser”), and includes, among other things (i) any and all information relating Discloser financial information, customers, employees, products or services, including, without limitation, software code, BMC product vulnerabilites, flow charts, techniques, specifications, development and marketing plans, strategies, forecasts, and proposal related documents and responses; (ii) as to BMC, and its licensors, the Product (excluding portions of the Documentation that BMC makes publicly available) and any third party software provided with the Product; and (iii) the terms of this Agreement, including without limitation, Product pricing information. Confidential Information does not include information that Recipient can show: (a) was rightfully in Recipient’s possession without any obligation of confidentiality before receipt from the Discloser; (b) is or becomes a matter of public knowledge through no fault of Recipient; (c) is rightfully received by Recipient from a third party without violation of a duty of confidentiality; or (d) is independently developed by or for Recipient. Recipient may not disclose Confidential Information of Discloser to any third party or use the Confidential Information in violation of this Agreement. The Recipient (i) will exercise the same degree of care and protection with respect to the Confidential Information of the Discloser that it exercises with respect to its own Confidential Information and (ii) will not, either directly or indirectly, disclose, copy, distribute, republish, or allow any third party to have access to any Confidential Information of the Discloser. Notwithstanding the foregoing, Recipient may disclose Discloser’s Confidential Information to Recipient’s employees and agents (if Recipient is BMC) and to Authorized User(s) (if Recipient is the Customer)who have the need to know provided that such employees, agents and Authorized User(s) have legal obligations of confidentiality substantially the same (and in no case less protective) as the provisions of this Agreement. (c) Notification Obligation. If the Recipient becomes aware of any unauthorized use or disclosure of Discloser’s Confidential Information, then Recipient will promptly and fully notify the Discloser of all facts known to it concerning such unauthorized use or disclosure. In addition, if the Recipient or any of its employees or agents are required (by oral questions, interrogatories, requests for information, or documents in legal proceedings, subpoena, civil investigative demand, or other similar process) to disclose any of Discloser’s Confidential Information, the Recipient will not disclose the Discloser’s Confidential Information without providing the Discloser with commercially reasonable advance prior written notice to allow Discloser to seek a protective order or other appropriate remedy or to waive compliance with this provision. In any event, the Recipient will exercise its commercially reasonable efforts to preserve the confidentiality of the Discloser’s Confidential Information, including, without limitation, cooperating with Discloser to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded to the Confidential Information.
11. DISCLAIMER OF DAMAGES; LIMITS ON LIABILITY. EXCEPT FOR VIOLATIONS OF LICENSE RESTRICTIONS (Section 4), AND PROPRIETARY RIGHTS AND CONFIDENTIALITY (SECTION 10) AND FOR INFRINGEMENT CLAIMS (SECTION 13), GROSS NEGLIGENCE, WILLFUL MISCONDUCT, DEATH OR BODILY INJURY, ACTS OF FRAUD AND ANY LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED BY LAW, NEITHER PARTY, ITS AFFILIATES OR BMC’s LICENSORS (A) ARE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES RELATING TO OR ARISING OUT OF THIS AGREEMENT, SUPPORT, THE PRODUCT OR ANY THIRD PARTY CODE OR SOFTWARE PROVIDED WITH THE PRODUCT (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST COMPUTER USAGE TIME, AND DAMAGE TO, OR LOSS OF USE OF DATA), EVEN IF ADVISED OF THE OF THE POSSIBILITY OF SUCH DAMAGES, AND IRRESPECTIVE OF NEGLIGENCE OF A PARTY OR WHETHER SUCH DAMAGES RESULT FROM A CLAIM ARISING UNDER TORT OR CONTRACT LAW AND (B) LIABILITY IN ANY EVENT SHALL NOT EXCEED THE AMOUNT PAID AND PAYABLE BY CUSTOMER FOR THE LICENSE TO THE APPLICABLE PRODUCT GIVING RISE TO SUCH DAMAGES.
12. TRIAL LICENSE. BMC may determine, in its sole discretion, to make products available to Customer without an Order and without charge. Such products are deemed to be “Products” pursuant to this Agreement except that (a) they are provided to Customer solely so that Customer may evaluate internally whether to acquire a license to the products for a fee, (b) the license term for such products is 30 days; (c) the Products are provided “AS IS” and without any warranty or support, and (d) the products cannot be put into productive use or included as part of Customer’s business processes in any manner, unless or until they are expressly licensed and paid for under an Order. BMC may terminate all of Customer’s rights and licenses to these Products for BMC’s convenience upon notice to Customer.
13. INFRINGEMENT CLAIMS. If a third party asserts a claim against Customer asserting that Customer’s use of a Product in accordance with this Agreement violates that third-party’s patent, trade secret or copyright rights (“Infringement Claim”), then BMC will, at its own expense: (a) defend or settle the Infringement Claim; and (b) indemnify Customer for any damages finally awarded against Customer based on infringement by the Product. BMC’s obligations under this Section will not apply if: (a) BMC’s legal department does not receive prompt, detailed written notice of the Infringement Claim from Customer, (b) BMC is not able to retain sole control of the defense of the Infringement Claim and all negotiations for its settlement or compromise, (c) BMC does not receive all reasonable assistance, or (d) the Infringement Claim is based on (i) the use of Product in combination with products not approved by BMC in the Product's Documentation, (ii) the failure of Customer to use any updates to such Product within a reasonable time after such updates are made available to Customer, or (iii) the failure of Customer to use the Product as permitted by the Order and in accordance with the Documentation. BMC will not bind Customer to a monetary obligation in a settlement or compromise, or make an admission on behalf of Customer, without obtaining Customer’s prior consent. If BMC determines in BMC’s reasonable discretion that use of the Product should be stopped because of an Infringement Claim or potential Infringement Claim, if a court of competent jurisdiction enjoins Customer from using a Product as a result of an Infringement Claim and BMC is unable to have such injunction stayed or overturned, or if BMC settles an Infringement Claim on terms that would require Customer to stop using the Product, then BMC will, at its expense and election: (a) modify or replace the Product, (b) procure the right to continue using the Product, or (c) if in BMC’s reasonable judgment, neither (a) or (b) is commercially reasonable, terminate Customer's License to the Product and (i) for any perpetual licenses, issue a refund based upon the applicable license fees paid, prorated over 48 months from the date of the Order under which the Products were initially licensed; and (ii) for any non-perpetual licenses, release Customer from its obligation to make future payments for the Product or issue a pro rata refund for any fees paid in advance. This Section contains Customer's exclusive remedies and BMC's sole liability for Infringement Claims.
14. TERMINATION. Upon thirty days advance written notice, either party may terminate this Agreement for its convenience on a prospective basis; however, such termination will have no effect on Orders placed prior to its effective date and such Orders will remain in full force and effect under the terms of this Agreement. Either party may terminate this Agreement and/or an Order for cause on 30 days’ written notice for material breach if the other party fails to cure the breach within 30-day-notice period. Upon any termination of a License, Customer will immediately uninstall and stop using the relevant Product, and upon BMC's request, Customer will immediately return such Product to BMC, together with all related Documentation and copies, or certify its destruction in writing. Any terms in this Agreement which by their nature extend beyond termination of this Agreement will remain in effect until fulfilled.
15. AUDIT. If requested by BMC, and not more than once a year, Customer agrees to deliver to BMC, within 30 days of such request, as specified by BMC either (a) periodic product usage reports generated from specific products or (b) written periodic product usage reports, to be provided solely when the product does not generate reports (“Report”). Additionally, if requested by BMC not more than once a year and upon at least 10 (ten) days prior written notice to Customer, Customer agrees to allow BMC to perform an audit (“Audit”) to ensure compliance with the terms of this Agreement at the locations where the Products are installed, during normal business hours.. Customer agrees to cooperate during any such Audit and to provide reasonable access to its information and systems.
16. EXPORT CONTROLS. Both parties agree to comply with applicable export regulations, including but not limited to U.S. Export Administration Regulations and the OFAC embargoes and sanctions lists. More information on BMC’s export compliance program may be found here: https://www.bmc.com/legal/export-compliance.html.
17. GOVERNING LAW AND DISPUTE RESOLUTION. Any controversy, dispute or claim arising out of or relating to this Agreement, or to the formation, interpretation, breach, termination, or validity thereof (each, a “Controversy”) will be resolved as follows:
(i) UNITED STATES. If both parties to this Agreement are entities incorporated under the law of any state in the United States, the Controversy shall be tried in either state or federal court located in Houston, Texas and the laws of the State of Texas shall govern. Both parties hereby submit to the exclusive jurisdiction of the courts in Houston, Texas and waive all defenses based on forum non conveniens. Notwithstanding the foregoing, if Customer is a state or local governmental entity or higher education institution and legally required to apply state law, then Customer’s state law will apply to the Controversy, without reference to conflict of law principles.
(ii) CANADA. If Customer is located in Canada (outside Quebec), then the law of the Province of Ontario law apply, without reference to conflict of law principles. If Customer is located in Quebec, then the laws of the Province Quebec will apply, without reference to conflict of law principles.
(iii) EMEA. If both parties to this Agreement are entities incorporated in countries in the Europe, Middle East, or Africa regions, the Controversy shall be tried in the District Court located in Amsterdam, the Netherlands and the substantive laws of the Netherlands shall govern. Both parties hereby submit to the exclusive jurisdiction of the District Court in Amsterdam, the Netherlands and waive all defenses based on forum non conveniens.
(iv) ASIA PACIFIC. If both parties to this Agreement are entities incorporated in countries in the Asia Pacific region, the arbitration shall be held in Singapore under the then-applicable rules of the Singapore International Arbitration Centre and the substantive laws of Singapore will govern.
(v) OTHER REGIONS. In all other instances, the arbitration shall be held in New York City, New York, under the then-applicable international rules of the American Arbitration Association and the substantive laws of the State of Texas will govern.
For all arbitrations conducted hereunder: (a) the arbitration shall be conducted in English; (b) the relevant arbitral institution shall determine the number of arbitrators, but any Controversy in which the amount in dispute is greater than $10 million USD shall be decided by three arbitrators, with each party having the right to select one arbitrator; (c) the costs of such arbitration shall be borne equally, pending the arbitrator’s award; (d) the arbitration award rendered shall be final and binding on the parties, shall not be subject to appeal to any court and shall be enforceable in any court having jurisdiction over the parties; (e) the arbitration proceedings, award and pleadings shall all be confidential, unless disclosure of particular information is required for purposes of enforcing/challenging the award or to meet local securities law requirements; and (f) the party prevailing in arbitration shall be entitled to recover its reasonable attorneys’ fees and the necessary costs incurred in connection with the arbitration.
The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. Nothing in this Agreement shall be deemed as preventing either party from seeking immediate injunctive relief from any court having jurisdiction over the parties and the subject matter of the dispute.
18. BMC ENTITIES. The following licensing entities apply to this Agreement:
Region | Licensing Entity | Address of Licensing Entity |
---|---|---|
United States and Latin America South (not a specified Central or South America country below) | BMC Software, Inc. | 2103 CityWest Boulevard, Houston, Texas 77042 |
Canada | BMC Software Canada Inc. | 50 Minthorn Boulevard, Suite 200, Markham, Ontario L3T 7X8 Canada |
EMEA (Europe, Middle East and Africa) | BMC Software Distribution B.V. | Vision Plaza West, 2nd floor, Boeingavenue 220, 1119PN Schiphol-Rijk, The Netherlands |
Brazil | BMC Software do Brasil Ltda. | Avenida Dra. Ruth Cardoso, n° 8.501, Condomínio Eldorado Business Tower, 22° andar, Pinheiros, São Paulo – SP, CEP: 05425-070 |
Mexico | BMC Software Distribution de México, S.A. de C.V. | Torre Esmeralda II Blvd. Manuel Avila, Camacho #36, Piso 23 Col. Lomas de Chapultepec, CP11000, Mexico City, México D.F. |
Argentina | BMC Software de Argentina S.A. | Ing. Butty 220 - Piso 18, Catalinas Plaza Buenos Aires, República de Argentina, C1001A |
S.E.A (Southeast Asia), Australia, New Zealand, Hong Kong, Taiwan | BMC Software Ireland Unlimited Company | Building 3, Cherrywood Business Park, Bray Road, Loughlinstown, CO. Dublin, D18 TF72 |
China | BMC Software (China) Limited | Room 502, Level 5, Tower W1, The Towers, Oriental Plaza, No. 1 East Chang An Ave., Dong Cheng Dist., Beijing 100738, China |
Japan | BMC Software K.K. | Harmony Tower 24th Floor, 1-32-2 Honcho, Nakano-ku, Tokyo, 164-8721 |
Korea | BMC Software Korea Ltd | 24th Fl., ASEM Tower, 1517, Yeongdong-daero,Gangnam-gu, Seoul 135-798, Korea South |
19. ASSIGNMENT AND TRANSFERS. Customer has the right to assign this Agreement or a License in whole to an Affiliate, or to a successor in connection with (i) the sale of all or substantially all of the assets of that party or (ii) a merger by operation of law by providing written notice to BMC. The assignee may not be a known direct competitor of BMC. The successor or Affiliate must agree in writing with BMC (in advance of the assignment) to be bound by the terms of this Agreement. Any Customer transfer or assignment except as expressly authorized above will be null and void.
20. DATA PROTECTION. The processing of personal data under this Agreement is governed by the Data Processing Agreement set forth on the Order, unless BMC already has a signed Data Processing Agreement with Customer for such BMC offerings; in which case, the signed version governs the processing of personal data. In the event there is no signed Data Processing Agreement or no reference to the applicable Data Processing Agreement in the Order, BMC and Customer agree that the Data Processing Agreement applicable on the date of the Order, a copy of which may be viewed at https://www.bmc.com/content/dam/bmc/corporate/bmcdpa.pdf, applies to the BMC offerings under this Agreement.
21. NOTICES. Any demand, notice, consent, or other communication required by this Agreement must be given in writing and shall be deemed delivered upon receipt when delivered personally or upon confirmation of receipt following delivery by internationally recognized overnight courier service to the addresses specified on the applicable Order.
22. CONDUCTING BUSINESS WITH HONEST AND INTEGRITY. BMC is committed to conducting business with honesty and integrity. BMC’s Code of Conduct set forth in https://www.bmc.com/legal/code-of-conduct.html governs the conduct of all officers, directors, and employees of BMC, and contingent workers and business partners acting on BMC’s behalf. BMC demonstrates its commitment to environmental stewardship by its global accreditation for ISO 14001:2015.
23. MISCELLANEOUS TERMS. A waiver by a party of any breach of any term of this Agreement will not be construed as a waiver of any continuing or succeeding breach. Should any term of this Agreement be invalid or unenforceable, the remaining terms will remain in effect. The parties acknowledge they have read this Agreement and agree that it is the complete and exclusive statement of the agreement and supersedes any prior or contemporaneous negotiations or agreements between the parties relating to the subject matter of this Agreement. There are no representations, promises, warranties, covenants, or undertakings between the parties other than those expressly set forth in this Agreement. This Agreement may not be modified or rescinded except in writing signed by both parties. Any delay or failure of any party to perform any obligation under this Agreement caused by governmental restrictions, labor disputes, storms or natural disasters, emergency, or other causes beyond the reasonable control of the party, will not be deemed a breach of this Agreement; provided, however, this provision does not apply to the payment of monies or any breach of Section 10. The BMC Products may contain third party software which is delivered to Customer as part of the Product and may not be taken out of the Product or used separately from the Product and for which additional terms may be included in the Documentation. The Product may contain hyperlinks to websites controlled by parties other than BMC. BMC is not responsible for and does not endorse the content or accept any responsibility for Customer’s use of these websites. Customer should refer to the policies posted by other websites regarding data privacy and other topics before using them. Any additional documents presented to a BMC representative by Customer for signature as a condition for going on a Customer’s site will be governed by this Agreement and to the extent that such document presents additional terms or conflicts with this Agreement, it shall be considered null and void. Les parties exigent que la présente convention ainsi que les documents qui s’y rattachent soient rédigés en anglais.
24. U.S. GOVERNMENT END USER RIGHTS. This Section applies only to acquisitions of the commercial Product and Documentation subject to this Agreement by or on behalf of the United States Government, or by any prime contractor or subcontractor (at any tier) under any contract, grant, agreement or other activity with the United States Government. When Products are delivered or provided to the United States Government, the United States Government agrees that this commercial license Agreement and the Products governed by this Agreement are defined in accordance with and qualify as “commercial items” consisting of “commercial computer software” and “commercial computer software documentation” as outlined in FAR 12.211, FAR 12.212 and DFARS 227.202-3, as applicable. The terms and conditions of this Agreement shall pertain to the United States Government’s use (including documentation or technical data), duplication, and disclosure of the Product, and shall supersede any conflicting contractual terms and conditions.
YOU AGREE THAT YOU HAVE READ THIS AGREEMENT AND INTEND TO BE BOUND, AS IF YOU HAD SIGNED THIS AGREEMENT IN WRITING. IF YOU ARE ACTING ON BEHALF OF AN ENTITY, YOU WARRANT THAT YOU HAVE THE AUTHORITY TO ACCEPT THE TERMS OF THIS AGREEMENT FOR SUCH ENTITY.
Effective May 21st 2021 to February 15th 2022
DownloadTable of Contents
END USER LICENSE AGREEMENT
BY OPENING THE PACKAGE, DOWNLOADING OR INSTALLING, PRESSING “AGREE” OR “YES” OR USING THE PRODUCT, THE ENTITY OR INDIVIDUAL ENTERING INTO THIS AGREEMENT AGREES TO BE BOUND BY THE FOLLOWING TERMS. IF YOU DO NOT AGREE WITH ANY OF THESE TERMS, DO NOT INSTALL OR USE THE PRODUCT, PROMPTLY RETURN THE PRODUCT TO BMC OR YOUR BMC RESELLER. IF YOU REJECT THIS AGREEMENT, YOU WILL NOT ACQUIRE ANY LICENSE TO USE THE PRODUCT.
This Agreement ("Agreement") is between the entity or individual entering into this Agreement (“Customer”) and the BMC Entity for the applicable Region where Customer acquired the License as described in Section 18 (“BMC”). This Agreement was last updated on May 21, 2021. For Customer’s convenience, prior versions of this Agreement are available at https://www.bmc.com/legal/end-user-license-agreements.html.
1. GENERAL DEFINITIONS.
“Affiliate” is an entity that controls, is controlled by or shares common control with BMC or Customer, where such control arises from the legal power to direct or cause the direction of the general management and policies of the company, partnership or legal entity.
“Authorized User” means Customer, Customer Affiliate(s), and their employees, consultants, contractors and agents that are bound by the terms and conditions no less restrictive than those contained herein and for whom Customer takes full responsibility. Authorized Users do not include service providers or outsourcers.
"Documentation" means the technical publications relating to the software, such as release notes, license entitlement descriptions, reference, user, installation, systems administrator and technical guidelines, included with the Product.
“Licensed Capacity” is the amount of each Product licensed as established in the Order. Any Units of Measure and License Restrictions related to the Licensed Capacity will be set forth in the Order.
“Order” is an agreed written or electronic document, subject to the terms of this Agreement that identifies the Products to be licensed and the Licensed Capacity and/or the Support to be purchased and the fees to be paid.
“Product” is the object code of the software and all accompanying Documentation delivered to Customer, including all items delivered by BMC to Customer under Support.
“Support” is the support services program as further specified in this Agreement.
“Territory” means the country(ies) where Customer is licensed to install the Product as specified in the Order.
2. SCOPE. Licenses are granted, and Support is obtained, solely by execution of Orders. Each Order is deemed to be a discrete contract, separate from each other Order, unless expressly stated otherwise therein, and in the event of a direct conflict between any Order and the terms of this Agreement, the terms of the Order will control only if the Order is agreed to by each party. Neither execution of this Agreement, nor anything contained herein, shall obligate either party to enter into any Orders. In the event an Order is proposed by BMC and is deemed to constitute an offer, then acceptance of such offer is limited to its terms. In the event Customer proposes an Order by submitting a purchase order, then regardless of whether BMC acknowledges, accepts or fully or partially performs under such purchase order, BMC OBJECTS to any additional or different terms in the purchase order.
3. LICENSE. Subject to the terms, conditions, payment requirements and restrictions set forth in this Agreement, BMC grants Customer a non-exclusive, non-transferable, non-sub-licensable non-perpetual (unless a perpetual license is provided on an Order) license to install in the Territory, access and use the Product (i) by Authorized User(s), (ii) up to the Licensed Capacity, (iii) for Customer’s and its Affiliates internal business operations, (iv) in accordance with the Documentation and the applicable Order, and (v) make a reasonable number of copies of the Product and the Documentation for archival purposes only (collectively a "License"). Affiliates may use and access the Products and Support under the terms of this Agreement, and Customer is responsible for its Affiliates compliance with the terms of this Agreement.
4. RESTRICTIONS. Customer will not: (a) copy, operate or use any Product in excess of the applicable Licensed Capacity or other than as set forth in the License above; (b) modify, delete or remove any ownership, title, trademark, patent or copyright notices from any Product, or copy or partial copy of a Product; (c) disassemble, reverse engineer, decompile or otherwise attempt to derive any Product source code from object code, except to the extent expressly permitted by applicable law despite this limitation without possibility of contractual waiver; (d) distribute, rent, lease, sublicense or provide the Product to any third party; (e) use the Products in an outsourcing or service bureau environment on behalf of non-Affiliate third parties, or allow the products to be used by an outsourcing or service bureau provider on Customer’s behalf (without obtaining prior written approval from BMC); (f) provide a third party with the results of any functional evaluation, or performance tests, without BMC's prior written approval; or (g) attempt to disable or circumvent any of the licensing mechanisms within the Product.
5. PRODUCT PERFORMANCE WARRANTY. BMC warrants that (a) the Product will perform in substantial accordance with its Documentation for a period of one year from the date of the first Order, (b) BMC has used commercially reasonable efforts consistent with industry standards to scan for and remove software viruses, and (c) other than passwords that may be required for the operation of the Product, BMC has not inserted any code that is not addressed in the Documentation and that is designed to delete, interfere with or disable the normal operation of the Product in accordance with the License. This warranty will not apply to any problems caused by hardware, Computers, or software other than the Product, or misuse of the Product, use of the Product other than as provided by the applicable License, modification of the Product, or claims made either outside the warranty period or not in compliance with the notice and access requirements set forth below. No warranty is provided for additional Licensed Capacity, Product provided pursuant to Support or Product provided pursuant to Section 12.
6. LIMITED REMEDIES. BMC’s entire liability, and Customer’s exclusive remedy, for breach of the above warranty is limited to: BMC’s use of commercially reasonable efforts to have the Product perform in substantial accordance with its Documentation, or replacement of the non-conforming Product within a reasonable period of time, or if BMC cannot have the Product perform in substantial accordance with its Documentation replace the Product within such time period, then BMC will refund the amount paid by Customer for the License for that Product. Customer’s rights and BMC's obligations in this Section are conditioned upon Customer’s providing BMC during the warranty period (a) full cooperation and access to the Product in resolving any claim; and (b) written notice addressed to the BMC Legal Department that includes notice of the claim, a complete description of the alleged defects sufficient to permit their reproduction in BMC’s development or support environment, and a specific reference to the Documentation to which such alleged defects are contrary.
7. DISCLAIMER OF WARRANTIES. EXCEPT FOR THE EXPRESS WARRANTIES IN THIS AGREEMENT, THE PRODUCT IS PROVIDED WITH NO OTHER WARRANTIES WHATSOEVER, AND BMC, ITS AFFILIATES AND LICENSORS DISCLAIM ALL OTHER WARRANTIES, INCLUDING, FITNESS FOR A PARTICULAR PURPOSE AND IN THE UNITED STATES AND CANADA, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, AND NON-INFRINGEMENT. BMC DOES NOT WARRANT THAT THE OPERATION OF THE PRODUCT WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT ALL DEFECTS CAN BE CORRECTED.
8. SUPPORT. Customer may acquire BMC support services (“Support”) on an Order for the total Licensed Capacity of a Product. BMC will notify Customer that it is time to renew Support at least 60 days prior to the end of any prepaid Support period. Customer will provide notice to BMC if it does not intend to renew Support. The annual fee for Support will be agreed upon at the time of each Order. A further description of Support is located at www.bmc.com/support/review-policies, and is incorporated herein by this reference. BMC may change its Support terms to be effective at the end of any prepaid Support period. BMC reserves the right to discontinue Support for a Product where BMC generally discontinues such services to all licensees of that Product. If Customer stops being enrolled in Support and then re-enrolls in Support, BMC may charge Customer a reinstatement fee.
9. PAYMENT, DELIVERY AND TAXES. Customer will pay each License fee and/or Support fee within 30 days of the date of the invoice. Customer will pay taxes imposed in connection with the fees paid for the License and/or Support, which are exclusive of these taxes. For Products that are delivered electronically, upon request from BMC, Customer agrees to provide BMC with documentation supporting that the designated Product was received electronically. If Customer accepts any Product in a non-electronic format, there may be an additional charge and it is the sole responsibility of Customer to bear any sales/use tax obligation, penalties, and interest. Late balances may, at BMC’s sole election, bear interest at a rate equal to the lesser of 1% per month or the maximum amount permitted by law. All Products are licensed FCA (“Free Carrier” as per Incoterms 2000) shipping point. The Products are accepted on the date BMC delivers the Product to the Customer either physically or by providing access codes for electronic download, whichever occurs first, however, such acceptance will not affect the Product Performance Warranty provided in this Agreement. With regard to Products acquired by Customer through an authorized reseller ("Solution Provider") of BMC, notwithstanding anything to the contrary herein, Customer will have no direct payment obligations to BMC for such fees.
10. PROPRIETARY RIGHTS AND CONFIDENTIALITY. (a) BMC, its Affiliates or licensors retain all right, title and interest to the Product, Support and all related intellectual property and proprietary rights. The Product and all third party software provided with the Product are protected by applicable copyright, trade secret, industrial and other intellectual property laws. BMC reserves any rights not expressly granted to Customer in this Agreement. (b) “Confidential Information” means all proprietary or confidential information that is disclosed to the recipient (“Recipient”) by the discloser (“Discloser”), and includes, among other things (i) any and all information relating Discloser financial information, customers, employees, products or services, including, without limitation, software code, flow charts, techniques, specifications, development and marketing plans, strategies, forecasts, and proposal related documents and responses; (ii) as to BMC, and its licensors, the Product (excluding portions of the Documentation that BMC makes publicly available) and any third party software provided with the Product; and (iii) the terms of this Agreement, including without limitation, Product pricing information. Confidential Information does not include information that Recipient can show: (a) was rightfully in Recipient’s possession without any obligation of confidentiality before receipt from the Discloser; (b) is or becomes a matter of public knowledge through no fault of Recipient; (c) is rightfully received by Recipient from a third party without violation of a duty of confidentiality; or (d) is independently developed by or for Recipient. Recipient may not disclose Confidential Information of Discloser to any third party or use the Confidential Information in violation of this Agreement. The Recipient (i) will exercise the same degree of care and protection with respect to the Confidential Information of the Discloser that it exercises with respect to its own Confidential Information and (ii) will not, either directly or indirectly, disclose, copy, distribute, republish, or allow any third party to have access to any Confidential Information of the Discloser. Notwithstanding the foregoing, Recipient may disclose Discloser’s Confidential Information to Recipient’s employees and agents (if Recipient is BMC) and to Authorized User(s) (if Recipient is the Customer)who have the need to know provided that such employees, agents and Authorized User(s) have legal obligations of confidentiality substantially the same (and in no case less protective) as the provisions of this Agreement. (c) Notification Obligation. If the Recipient becomes aware of any unauthorized use or disclosure of Discloser’s Confidential Information, then Recipient will promptly and fully notify the Discloser of all facts known to it concerning such unauthorized use or disclosure. In addition, if the Recipient or any of its employees or agents are required (by oral questions, interrogatories, requests for information, or documents in legal proceedings, subpoena, civil investigative demand, or other similar process) to disclose any of Discloser’s Confidential Information, the Recipient will not disclose the Discloser’s Confidential Information without providing the Discloser with commercially reasonable advance prior written notice to allow Discloser to seek a protective order or other appropriate remedy or to waive compliance with this provision. In any event, the Recipient will exercise its commercially reasonable efforts to preserve the confidentiality of the Discloser’s Confidential Information, including, without limitation, cooperating with Discloser to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded to the Confidential Information.
11. DISCLAIMER OF DAMAGES; LIMITS ON LIABILITY. EXCEPT FOR VIOLATIONS OF LICENSE RESTRICTIONS (Section 4), AND PROPRIETARY RIGHTS AND CONFIDENTIALITY (SECTION 10) AND FOR INFRINGEMENT CLAIMS (SECTION 13), GROSS NEGLIGENCE, WILLFUL MISCONDUCT, DEATH OR BODILY INJURY, ACTS OF FRAUD AND ANY LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED BY LAW, NEITHER PARTY, ITS AFFILIATES OR BMC’s LICENSORS (A) ARE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES RELATING TO OR ARISING OUT OF THIS AGREEMENT, SUPPORT, THE PRODUCT OR ANY THIRD PARTY CODE OR SOFTWARE PROVIDED WITH THE PRODUCT (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST COMPUTER USAGE TIME, AND DAMAGE TO, OR LOSS OF USE OF DATA), EVEN IF ADVISED OF THE OF THE POSSIBILITY OF SUCH DAMAGES, AND IRRESPECTIVE OF NEGLIGENCE OF A PARTY OR WHETHER SUCH DAMAGES RESULT FROM A CLAIM ARISING UNDER TORT OR CONTRACT LAW AND (B) LIABILITY IN ANY EVENT SHALL NOT EXCEED THE AMOUNT PAID AND PAYABLE BY CUSTOMER FOR THE LICENSE TO THE APPLICABLE PRODUCT GIVING RISE TO SUCH DAMAGES.
12. TRIAL LICENSE. BMC may determine, in its sole discretion, to make products available to Customer without an Order and without charge. Such products are deemed to be “Products” pursuant to this Agreement except that (a) they are provided to Customer solely so that Customer may evaluate internally whether to acquire a license to the products for a fee, (b) the license term for such products is 30 days; (c) the Products are provided “AS IS” and without any warranty or support, and (d) the products cannot be put into productive use or included as part of Customer’s business processes in any manner, unless or until they are expressly licensed and paid for under an Order. BMC may terminate all of Customer’s rights and licenses to these Products for BMC’s convenience upon notice to Customer.
13. INFRINGEMENT CLAIMS. If a third party asserts a claim against Customer asserting that Customer’s use of a Product in accordance with this Agreement violates that third-party’s patent, trade secret or copyright rights (“Infringement Claim”), then BMC will, at its own expense: (a) defend or settle the Infringement Claim; and (b) indemnify Customer for any damages finally awarded against Customer based on infringement by the Product. BMC’s obligations under this Section will not apply if: (a) BMC’s legal department does not receive prompt, detailed written notice of the Infringement Claim from Customer, (b) BMC is not able to retain sole control of the defense of the Infringement Claim and all negotiations for its settlement or compromise, (c) BMC does not receive all reasonable assistance, or (d) the Infringement Claim is based on (i) the use of Product in combination with products not approved by BMC in the Product's Documentation, (ii) the failure of Customer to use any updates to such Product within a reasonable time after such updates are made available to Customer, or (iii) the failure of Customer to use the Product as permitted by the Order and in accordance with the Documentation. BMC will not bind Customer to a monetary obligation in a settlement or compromise, or make an admission on behalf of Customer, without obtaining Customer’s prior consent. If BMC determines in BMC’s reasonable discretion that use of the Product should be stopped because of an Infringement Claim or potential Infringement Claim, if a court of competent jurisdiction enjoins Customer from using a Product as a result of an Infringement Claim and BMC is unable to have such injunction stayed or overturned, or if BMC settles an Infringement Claim on terms that would require Customer to stop using the Product, then BMC will, at its expense and election: (a) modify or replace the Product, (b) procure the right to continue using the Product, or (c) if in BMC’s reasonable judgment, neither (a) or (b) is commercially reasonable, terminate Customer's License to the Product and (i) for any perpetual licenses, issue a refund based upon the applicable license fees paid, prorated over 48 months from the date of the Order under which the Products were initially licensed; and (ii) for any non-perpetual licenses, release Customer from its obligation to make future payments for the Product or issue a pro rata refund for any fees paid in advance. This Section contains Customer's exclusive remedies and BMC's sole liability for Infringement Claims.
14. TERMINATION. Upon thirty days advance written notice, either party may terminate this Agreement for its convenience on a prospective basis; however, such termination will have no effect on Orders placed prior to its effective date and such Orders will remain in full force and effect under the terms of this Agreement. Either party may terminate this Agreement and/or an Order for cause on 30 days’ written notice for material breach if the other party fails to cure the breach within 30-day-notice period. Upon any termination of a License, Customer will immediately uninstall and stop using the relevant Product, and upon BMC's request, Customer will immediately return such Product to BMC, together with all related Documentation and copies, or certify its destruction in writing. Any terms in this Agreement which by their nature extend beyond termination of this Agreement will remain in effect until fulfilled.
15. AUDIT. If requested by BMC, and not more than once a year, Customer agrees to deliver to BMC, within 30 days of such request, as specified by BMC either (a) periodic product usage reports generated from specific products or (b) written periodic product usage reports, to be provided solely when the product does not generate reports (“Report”). Additionally, if requested by BMC not more than once a year and upon at least 10 (ten) days prior written notice to Customer, Customer agrees to allow BMC to perform an audit (“Audit”) to ensure compliance with the terms of this Agreement at the locations where the Products are installed, during normal business hours.. Customer agrees to cooperate during any such Audit and to provide reasonable access to its information and systems.
16. EXPORT CONTROLS. Both parties agree to comply with applicable export regulations, including but not limited to U.S. Export Administration Regulations and the OFAC embargoes and sanctions lists. More information on BMC’s export compliance program may be found here: https://www.bmc.com/legal/export-compliance.html.
17. GOVERNING LAW AND DISPUTE RESOLUTION. Any controversy, dispute or claim arising out of or relating to this Agreement, or to the formation, interpretation, breach, termination, or validity thereof (each, a “Controversy”) will be resolved as follows:
(i) UNITED STATES. If both parties to this Agreement are entities incorporated under the law of any state in the United States, the Controversy shall be tried in either state or federal court located in Houston, Texas and the laws of the State of Texas shall govern. Both parties hereby submit to the exclusive jurisdiction of the courts in Houston, Texas and waive all defenses based on forum non conveniens. Notwithstanding the foregoing, if Customer is a state or local governmental entity or higher education institution and legally required to apply state law, then Customer’s state law will apply to the Controversy, without reference to conflict of law principles.
(ii) CANADA. If Customer is located in Canada (outside Quebec), then the law of the Province of Ontario law apply, without reference to conflict of law principles. If Customer is located in Quebec, then the laws of the Province Quebec will apply, without reference to conflict of law principles.
(iii) EMEA. If both parties to this Agreement are entities incorporated in countries in the Europe, Middle East, or Africa regions, the Controversy shall be tried in the District Court located in Amsterdam, the Netherlands and the substantive laws of the Netherlands shall govern. Both parties hereby submit to the exclusive jurisdiction of the District Court in Amsterdam, the Netherlands and waive all defenses based on forum non conveniens.
(iv) ASIA PACIFIC. If both parties to this Agreement are entities incorporated in countries in the Asia Pacific region, the arbitration shall be held in Singapore under the then-applicable rules of the Singapore International Arbitration Centre and the substantive laws of Singapore will govern.
(v) OTHER REGIONS. In all other instances, the arbitration shall be held in New York City, New York, under the then-applicable international rules of the American Arbitration Association and the substantive laws of the State of Texas will govern.
For all arbitrations conducted hereunder: (a) the arbitration shall be conducted in English; (b) the relevant arbitral institution shall determine the number of arbitrators, but any Controversy in which the amount in dispute is greater than $10 million USD shall be decided by three arbitrators, with each party having the right to select one arbitrator; (c) the costs of such arbitration shall be borne equally, pending the arbitrator’s award; (d) the arbitration award rendered shall be final and binding on the parties, shall not be subject to appeal to any court and shall be enforceable in any court having jurisdiction over the parties; (e) the arbitration proceedings, award and pleadings shall all be confidential, unless disclosure of particular information is required for purposes of enforcing/challenging the award or to meet local securities law requirements; and (f) the party prevailing in arbitration shall be entitled to recover its reasonable attorneys’ fees and the necessary costs incurred in connection with the arbitration.
The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. Nothing in this Agreement shall be deemed as preventing either party from seeking immediate injunctive relief from any court having jurisdiction over the parties and the subject matter of the dispute.
18. BMC ENTITIES. The following licensing entities apply to this Agreement:
Region | Licensing Entity | Address of Licensing Entity |
---|---|---|
United States and Latin America South (not a specified Central or South America country below) | BMC Software, Inc. | 2103 CityWest Boulevard, Houston, Texas 77042 |
Canada | BMC Software Canada Inc. | 50 Minthorn Boulevard, Suite 200, Markham, Ontario L3T 7X8 Canada |
EMEA (Europe, Middle East and Africa) | BMC Software Distribution B.V. | Vision Plaza West, 2nd floor, Boeingavenue 220, 1119PN Schiphol-Rijk, The Netherlands |
Brazil | BMC Software do Brasil Ltda. | Avenida Dra. Ruth Cardoso, n° 8.501, Condomínio Eldorado Business Tower, 22° andar, Pinheiros, São Paulo – SP, CEP: 05425-070 |
Mexico | BMC Software Distribution de México, S.A. de C.V. | Torre Esmeralda II Blvd. Manuel Avila, Camacho #36, Piso 23 Col. Lomas de Chapultepec, CP11000, Mexico City, México D.F. |
Argentina | BMC Software de Argentina S.A. | Ing. Butty 220 - Piso 18, Catalinas Plaza Buenos Aires, República de Argentina, C1001A |
S.E.A (Southeast Asia), Australia, New Zealand, Hong Kong, Taiwan | BMC Software Ireland Unlimited Company | Building 3, Cherrywood Business Park, Bray Road, Loughlinstown, CO. Dublin, D18 TF72 |
China | BMC Software (China) Limited | Room 502, Level 5, Tower W1, The Towers, Oriental Plaza, No. 1 East Chang An Ave., Dong Cheng Dist., Beijing 100738, China |
Japan | BMC Software K.K. | Harmony Tower 24th Floor, 1-32-2 Honcho, Nakano-ku, Tokyo, 164-8721 |
Korea | BMC Software Korea Ltd | 24th Fl., ASEM Tower, 1517, Yeongdong-daero,Gangnam-gu, Seoul 135-798, Korea South |
19. ASSIGNMENT AND TRANSFERS. Customer has the right to assign this Agreement or a License in whole to an Affiliate, or to a successor in connection with (i) the sale of all or substantially all of the assets of that party or (ii) a merger by operation of law by providing written notice to BMC. The assignee may not be a known direct competitor of BMC. The successor or Affiliate must agree in writing with BMC (in advance of the assignment) to be bound by the terms of this Agreement. Any Customer transfer or assignment except as expressly authorized above will be null and void.
20. DATA PROTECTION. The processing of personal data under this Agreement is governed by the Data Processing Agreement set forth on the Order, unless BMC already has a signed Data Processing Agreement with Customer for such BMC offerings; in which case, the signed version governs the processing of personal data. In the event there is no signed Data Processing Agreement or no reference to the applicable Data Processing Agreement in the Order, BMC and Customer agree that the Data Processing Agreement applicable on the date of the Order, a copy of which may be viewed at https://www.bmc.com/content/dam/bmc/corporate/bmcdpa.pdf, applies to the BMC offerings under this Agreement.
21. NOTICES. Any demand, notice, consent, or other communication required by this Agreement must be given in writing and shall be deemed delivered upon receipt when delivered personally or upon confirmation of receipt following delivery by internationally recognized overnight courier service to the addresses specified on the applicable Order.
22. CONDUCTING BUSINESS WITH HONEST AND INTEGRITY. BMC is committed to conducting business with honesty and integrity. BMC’s Code of Conduct set forth in https://www.bmc.com/legal/code-of-conduct.html governs the conduct of all officers, directors, and employees of BMC, and contingent workers and business partners acting on BMC’s behalf. BMC demonstrates its commitment to environmental stewardship by its global accreditation for ISO 14001:2015.
23. MISCELLANEOUS TERMS. A waiver by a party of any breach of any term of this Agreement will not be construed as a waiver of any continuing or succeeding breach. Should any term of this Agreement be invalid or unenforceable, the remaining terms will remain in effect. The parties acknowledge they have read this Agreement and agree that it is the complete and exclusive statement of the agreement and supersedes any prior or contemporaneous negotiations or agreements between the parties relating to the subject matter of this Agreement. There are no representations, promises, warranties, covenants, or undertakings between the parties other than those expressly set forth in this Agreement. This Agreement may not be modified or rescinded except in writing signed by both parties. Any delay or failure of any party to perform any obligation under this Agreement caused by governmental restrictions, labor disputes, storms or natural disasters, emergency, or other causes beyond the reasonable control of the party, will not be deemed a breach of this Agreement; provided, however, this provision does not apply to the payment of monies or any breach of Section 10. The BMC Products may contain third party software which is delivered to Customer as part of the Product and may not be taken out of the Product or used separately from the Product and for which additional terms may be included in the Documentation. The Product may contain hyperlinks to websites controlled by parties other than BMC. BMC is not responsible for and does not endorse the content or accept any responsibility for Customer’s use of these websites. Customer should refer to the policies posted by other websites regarding data privacy and other topics before using them. Any additional documents presented to a BMC representative by Customer for signature as a condition for going on a Customer’s site will be governed by this Agreement and to the extent that such document presents additional terms or conflicts with this Agreement, it shall be considered null and void. Les parties exigent que la présente convention ainsi que les documents qui s’y rattachent soient rédigés en anglais.
24. U.S. GOVERNMENT END USER RIGHTS. This Section applies only to acquisitions of the commercial Product and Documentation subject to this Agreement by or on behalf of the United States Government, or by any prime contractor or subcontractor (at any tier) under any contract, grant, agreement or other activity with the United States Government. When Products are delivered or provided to the United States Government, the United States Government agrees that this commercial license Agreement and the Products governed by this Agreement are defined in accordance with and qualify as “commercial items” consisting of “commercial computer software” and “commercial computer software documentation” as outlined in FAR 12.211, FAR 12.212 and DFARS 227.202-3, as applicable. The terms and conditions of this Agreement shall pertain to the United States Government’s use (including documentation or technical data), duplication, and disclosure of the Product, and shall supersede any conflicting contractual terms and conditions.
YOU AGREE THAT YOU HAVE READ THIS AGREEMENT AND INTEND TO BE BOUND, AS IF YOU HAD SIGNED THIS AGREEMENT IN WRITING. IF YOU ARE ACTING ON BEHALF OF AN ENTITY, YOU WARRANT THAT YOU HAVE THE AUTHORITY TO ACCEPT THE TERMS OF THIS AGREEMENT FOR SUCH ENTITY.
Effective March 12th 2021 to May 21st 2021
DownloadTable of Contents
END USER LICENSE AGREEMENT
BY OPENING THE PACKAGE, DOWNLOADING OR INSTALLING, PRESSING “AGREE” OR “YES” OR USING THE PRODUCT, THE ENTITY OR INDIVIDUAL ENTERING INTO THIS AGREEMENT AGREES TO BE BOUND BY THE FOLLOWING TERMS. IF YOU DO NOT AGREE WITH ANY OF THESE TERMS, DO NOT INSTALL OR USE THE PRODUCT, PROMPTLY RETURN THE PRODUCT TO BMC OR YOUR BMC RESELLER. IF YOU REJECT THIS AGREEMENT, YOU WILL NOT ACQUIRE ANY LICENSE TO USE THE PRODUCT.
This Agreement ("Agreement") is between the entity or individual entering into this Agreement (“Customer”) and the BMC Entity for the applicable Region where Customer acquired the License as described in Section 18 (“BMC”). This Agreement was last updated on March 12, 2021. For Customer’s convenience, prior versions of this Agreement are available at https://www.bmc.com/legal/end-user-license-agreements.html.
1. GENERAL DEFINITIONS.
“Affiliate” is an entity that controls, is controlled by or shares common control with BMC or Customer, where such control arises from the legal power to direct or cause the direction of the general management and policies of the company, partnership or legal entity.
“Authorized User” means Customer, Customer Affiliate(s), and their employees, consultants, contractors and agents that are bound by the terms and conditions no less restrictive than those contained herein and for whom Customer takes full responsibility. Authorized Users do not include service providers or outsourcers.
"Documentation" means the technical publications relating to the software, such as release notes, license entitlement descriptions, reference, user, installation, systems administrator and technical guidelines, included with the Product.
“Licensed Capacity” is the amount of each Product licensed as established in the Order. Any Units of Measure and License Restrictions related to the Licensed Capacity will be set forth in the Order.
“Order” is an agreed written or electronic document, subject to the terms of this Agreement that identifies the Products to be licensed and the Licensed Capacity and/or the Support to be purchased and the fees to be paid.
“Product” is the object code of the software and all accompanying Documentation delivered to Customer, including all items delivered by BMC to Customer under Support.
“Support” is the support services program as further specified in this Agreement.
“Territory” means the country(ies) where Customer is licensed to install the Product as specified in the Order.
2. SCOPE. Licenses are granted, and Support is obtained, solely by execution of Orders. Each Order is deemed to be a discrete contract, separate from each other Order, unless expressly stated otherwise therein, and in the event of a direct conflict between any Order and the terms of this Agreement, the terms of the Order will control only if the Order is agreed to by each party. Neither execution of this Agreement, nor anything contained herein, shall obligate either party to enter into any Orders. In the event an Order is proposed by BMC and is deemed to constitute an offer, then acceptance of such offer is limited to its terms. In the event Customer proposes an Order by submitting a purchase order, then regardless of whether BMC acknowledges, accepts or fully or partially performs under such purchase order, BMC OBJECTS to any additional or different terms in the purchase order.
3. LICENSE. Subject to the terms, conditions, payment requirements and restrictions set forth in this Agreement, BMC grants Customer a non-exclusive, non-transferable, non-sub-licensable perpetual (unless a non-perpetual license is provided on an Order) license to install in the Territory, access and use the Product (i) by Authorized User(s), (ii) up to the Licensed Capacity, (iii) for Customer’s and its Affiliates internal business operations, (iv) in accordance with the Documentation and the applicable Order, and (v) make a reasonable number of copies of the Product and the Documentation for archival purposes only (collectively a "License"). Affiliates may use and access the Products and Support under the terms of this Agreement, and Customer is responsible for its Affiliates compliance with the terms of this Agreement.
4. RESTRICTIONS. Customer will not: (a) copy, operate or use any Product in excess of the applicable Licensed Capacity or other than as set forth in the License above; (b) modify, delete or remove any ownership, title, trademark, patent or copyright notices from any Product, or copy or partial copy of a Product; (c) disassemble, reverse engineer, decompile or otherwise attempt to derive any Product source code from object code, except to the extent expressly permitted by applicable law despite this limitation without possibility of contractual waiver; (d) distribute, rent, lease, sublicense or provide the Product to any third party; (e) use the Products in an outsourcing or service bureau environment on behalf of non-Affiliate third parties, or allow the products to be used by an outsourcing or service bureau provider on Customer’s behalf (without obtaining prior written approval from BMC); (f) provide a third party with the results of any functional evaluation, or performance tests, without BMC's prior written approval; or (g) attempt to disable or circumvent any of the licensing mechanisms within the Product.
5. PRODUCT PERFORMANCE WARRANTY. BMC warrants that (a) the Product will perform in substantial accordance with its Documentation for a period of one year from the date of the first Order, (b) BMC has used commercially reasonable efforts consistent with industry standards to scan for and remove software viruses, and (c) other than passwords that may be required for the operation of the Product, BMC has not inserted any code that is not addressed in the Documentation and that is designed to delete, interfere with or disable the normal operation of the Product in accordance with the License. This warranty will not apply to any problems caused by hardware, Computers, or software other than the Product, or misuse of the Product, use of the Product other than as provided by the applicable License, modification of the Product, or claims made either outside the warranty period or not in compliance with the notice and access requirements set forth below. No warranty is provided for additional Licensed Capacity, Product provided pursuant to Support or Product provided pursuant to Section 12.
6. LIMITED REMEDIES. BMC’s entire liability, and Customer’s exclusive remedy, for breach of the above warranty is limited to: BMC’s use of commercially reasonable efforts to have the Product perform in substantial accordance with its Documentation, or replacement of the non-conforming Product within a reasonable period of time, or if BMC cannot have the Product perform in substantial accordance with its Documentation replace the Product within such time period, then BMC will refund the amount paid by Customer for the License for that Product. Customer’s rights and BMC's obligations in this Section are conditioned upon Customer’s providing BMC during the warranty period (a) full cooperation and access to the Product in resolving any claim; and (b) written notice addressed to the BMC Legal Department that includes notice of the claim, a complete description of the alleged defects sufficient to permit their reproduction in BMC’s development or support environment, and a specific reference to the Documentation to which such alleged defects are contrary.
7. DISCLAIMER OF WARRANTIES. EXCEPT FOR THE EXPRESS WARRANTIES IN THIS AGREEMENT, THE PRODUCT IS PROVIDED WITH NO OTHER WARRANTIES WHATSOEVER, AND BMC, ITS AFFILIATES AND LICENSORS DISCLAIM ALL OTHER WARRANTIES, INCLUDING, FITNESS FOR A PARTICULAR PURPOSE AND IN THE UNITED STATES AND CANADA, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, AND NON-INFRINGEMENT. BMC DOES NOT WARRANT THAT THE OPERATION OF THE PRODUCT WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT ALL DEFECTS CAN BE CORRECTED.
8. SUPPORT. Customer may acquire BMC support services (“Support”) on an Order for the total Licensed Capacity of a Product. BMC will notify Customer that it is time to renew Support at least 60 days prior to the end of any prepaid Support period. Customer will provide notice to BMC if it does not intend to renew Support. The annual fee for Support will be agreed upon at the time of each Order. A further description of Support is located at www.bmc.com/support/review-policies, and is incorporated herein by this reference. BMC may change its Support terms to be effective at the end of any prepaid Support period. BMC reserves the right to discontinue Support for a Product where BMC generally discontinues such services to all licensees of that Product. If Customer stops being enrolled in Support and then re-enrolls in Support, BMC may charge Customer a reinstatement fee.
9. PAYMENT, DELIVERY AND TAXES. Customer will pay each License fee and/or Support fee within 30 days of the date of the invoice. Customer will pay taxes imposed in connection with the fees paid for the License and/or Support, which are exclusive of these taxes. For Products that are delivered electronically, upon request from BMC, Customer agrees to provide BMC with documentation supporting that the designated Product was received electronically. If Customer accepts any Product in a non-electronic format, there may be an additional charge and it is the sole responsibility of Customer to bear any sales/use tax obligation, penalties, and interest. Late balances may, at BMC’s sole election, bear interest at a rate equal to the lesser of 1% per month or the maximum amount permitted by law. All Products are licensed FCA (“Free Carrier” as per Incoterms 2000) shipping point. The Products are accepted on the date BMC delivers the Product to the Customer either physically or by providing access codes for electronic download, whichever occurs first, however, such acceptance will not affect the Product Performance Warranty provided in this Agreement. With regard to Products acquired by Customer through an authorized reseller ("Solution Provider") of BMC, notwithstanding anything to the contrary herein, Customer will have no direct payment obligations to BMC for such fees.
10. PROPRIETARY RIGHTS AND CONFIDENTIALITY. (a) BMC, its Affiliates or licensors retain all right, title and interest to the Product, Support and all related intellectual property and proprietary rights. The Product and all third party software provided with the Product are protected by applicable copyright, trade secret, industrial and other intellectual property laws. BMC reserves any rights not expressly granted to Customer in this Agreement. (b) “Confidential Information” means all proprietary or confidential information that is disclosed to the recipient (“Recipient”) by the discloser (“Discloser”), and includes, among other things (i) any and all information relating Discloser financial information, customers, employees, products or services, including, without limitation, software code, flow charts, techniques, specifications, development and marketing plans, strategies, forecasts, and proposal related documents and responses; (ii) as to BMC, and its licensors, the Product (excluding portions of the Documentation that BMC makes publicly available) and any third party software provided with the Product; and (iii) the terms of this Agreement, including without limitation, Product pricing information. Confidential Information does not include information that Recipient can show: (a) was rightfully in Recipient’s possession without any obligation of confidentiality before receipt from the Discloser; (b) is or becomes a matter of public knowledge through no fault of Recipient; (c) is rightfully received by Recipient from a third party without violation of a duty of confidentiality; or (d) is independently developed by or for Recipient. Recipient may not disclose Confidential Information of Discloser to any third party or use the Confidential Information in violation of this Agreement. The Recipient (i) will exercise the same degree of care and protection with respect to the Confidential Information of the Discloser that it exercises with respect to its own Confidential Information and (ii) will not, either directly or indirectly, disclose, copy, distribute, republish, or allow any third party to have access to any Confidential Information of the Discloser. Notwithstanding the foregoing, Recipient may disclose Discloser’s Confidential Information to Recipient’s employees and agents (if Recipient is BMC) and to Authorized User(s) (if Recipient is the Customer)who have the need to know provided that such employees, agents and Authorized User(s) have legal obligations of confidentiality substantially the same (and in no case less protective) as the provisions of this Agreement. (c) Notification Obligation. If the Recipient becomes aware of any unauthorized use or disclosure of Discloser’s Confidential Information, then Recipient will promptly and fully notify the Discloser of all facts known to it concerning such unauthorized use or disclosure. In addition, if the Recipient or any of its employees or agents are required (by oral questions, interrogatories, requests for information, or documents in legal proceedings, subpoena, civil investigative demand, or other similar process) to disclose any of Discloser’s Confidential Information, the Recipient will not disclose the Discloser’s Confidential Information without providing the Discloser with commercially reasonable advance prior written notice to allow Discloser to seek a protective order or other appropriate remedy or to waive compliance with this provision. In any event, the Recipient will exercise its commercially reasonable efforts to preserve the confidentiality of the Discloser’s Confidential Information, including, without limitation, cooperating with Discloser to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded to the Confidential Information.
11. DISCLAIMER OF DAMAGES; LIMITS ON LIABILITY. EXCEPT FOR VIOLATIONS OF LICENSE RESTRICTIONS (Section 4), AND PROPRIETARY RIGHTS AND CONFIDENTIALITY (SECTION 10) AND FOR INFRINGEMENT CLAIMS (SECTION 13), GROSS NEGLIGENCE, WILLFUL MISCONDUCT, DEATH OR BODILY INJURY, ACTS OF FRAUD AND ANY LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED BY LAW, NEITHER PARTY, ITS AFFILIATES OR BMC’s LICENSORS (A) ARE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES RELATING TO OR ARISING OUT OF THIS AGREEMENT, SUPPORT, THE PRODUCT OR ANY THIRD PARTY CODE OR SOFTWARE PROVIDED WITH THE PRODUCT (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST COMPUTER USAGE TIME, AND DAMAGE TO, OR LOSS OF USE OF DATA), EVEN IF ADVISED OF THE OF THE POSSIBILITY OF SUCH DAMAGES, AND IRRESPECTIVE OF NEGLIGENCE OF A PARTY OR WHETHER SUCH DAMAGES RESULT FROM A CLAIM ARISING UNDER TORT OR CONTRACT LAW AND (B) LIABILITY IN ANY EVENT SHALL NOT EXCEED THE AMOUNT PAID AND PAYABLE BY CUSTOMER FOR THE LICENSE TO THE APPLICABLE PRODUCT GIVING RISE TO SUCH DAMAGES.
12. TRIAL LICENSE. BMC may determine, in its sole discretion, to make products available to Customer without an Order and without charge. Such products are deemed to be “Products” pursuant to this Agreement except that (a) they are provided to Customer solely so that Customer may evaluate internally whether to acquire a license to the products for a fee, (b) the license term for such products is 30 days; (c) the Products are provided “AS IS” and without any warranty or support, and (d) the products cannot be put into productive use or included as part of Customer’s business processes in any manner, unless or until they are expressly licensed and paid for under an Order. BMC may terminate all of Customer’s rights and licenses to these Products for BMC’s convenience upon notice to Customer.
13. INFRINGEMENT CLAIMS. If a third party asserts a claim against Customer asserting that Customer’s use of a Product in accordance with this Agreement violates that third-party’s patent, trade secret or copyright rights (“Infringement Claim”), then BMC will, at its own expense: (a) defend or settle the Infringement Claim; and (b) indemnify Customer for any damages finally awarded against Customer based on infringement by the Product. BMC’s obligations under this Section will not apply if: (a) BMC’s legal department does not receive prompt, detailed written notice of the Infringement Claim from Customer, (b) BMC is not able to retain sole control of the defense of the Infringement Claim and all negotiations for its settlement or compromise, (c) BMC does not receive all reasonable assistance, or (d) the Infringement Claim is based on (i) the use of Product in combination with products not approved by BMC in the Product's Documentation, (ii) the failure of Customer to use any updates to such Product within a reasonable time after such updates are made available to Customer, or (iii) the failure of Customer to use the Product as permitted by the Order and in accordance with the Documentation. BMC will not bind Customer to a monetary obligation in a settlement or compromise, or make an admission on behalf of Customer, without obtaining Customer’s prior consent. If BMC determines in BMC’s reasonable discretion that use of the Product should be stopped because of an Infringement Claim or potential Infringement Claim, if a court of competent jurisdiction enjoins Customer from using a Product as a result of an Infringement Claim and BMC is unable to have such injunction stayed or overturned, or if BMC settles an Infringement Claim on terms that would require Customer to stop using the Product, then BMC will, at its expense and election: (a) modify or replace the Product, (b) procure the right to continue using the Product, or (c) if in BMC’s reasonable judgment, neither (a) or (b) is commercially reasonable, terminate Customer's License to the Product and (i) for any perpetual licenses, issue a refund based upon the applicable license fees paid, prorated over 48 months from the date of the Order under which the Products were initially licensed; and (ii) for any non-perpetual licenses, release Customer from its obligation to make future payments for the Product or issue a pro rata refund for any fees paid in advance. This Section contains Customer's exclusive remedies and BMC's sole liability for Infringement Claims.
14. TERMINATION. Upon thirty days advance written notice, either party may terminate this Agreement for its convenience on a prospective basis; however, such termination will have no effect on Orders placed prior to its effective date and such Orders will remain in full force and effect under the terms of this Agreement. Either party may terminate this Agreement and/or an Order for cause on 30 days’ written notice for material breach if the other party fails to cure the breach within 30-day-notice period. Upon any termination of a License, Customer will immediately uninstall and stop using the relevant Product, and upon BMC's request, Customer will immediately return such Product to BMC, together with all related Documentation and copies, or certify its destruction in writing. Any terms in this Agreement which by their nature extend beyond termination of this Agreement will remain in effect until fulfilled.
15. AUDIT. If requested by BMC, and not more than once a year, Customer agrees to deliver to BMC, within 30 days of such request, as specified by BMC either (a) periodic product usage reports generated from specific products or (b) written periodic product usage reports, to be provided solely when the product does not generate reports (“Report”). Additionally, if requested by BMC not more than once a year and upon at least 10 (ten) days prior written notice to Customer, Customer agrees to allow BMC to perform an audit (“Audit”) to ensure compliance with the terms of this Agreement at the locations where the Products are installed, during normal business hours.. Customer agrees to cooperate during any such Audit and to provide reasonable access to its information and systems.
16. EXPORT CONTROLS. Both parties agree to comply with applicable export regulations, including but not limited to U.S. Export Administration Regulations and the OFAC embargoes and sanctions lists. More information on BMC’s export compliance program may be found here: https://www.bmc.com/legal/export-compliance.html.
17. GOVERNING LAW AND DISPUTE RESOLUTION. Any controversy, dispute or claim arising out of or relating to this Agreement, or to the formation, interpretation, breach, termination, or validity thereof (each, a “Controversy”) will be resolved as follows:
(i) UNITED STATES. If both parties to this Agreement are entities incorporated under the law of any state in the United States, the Controversy shall be tried in either state or federal court located in Houston, Texas and the laws of the State of Texas shall govern. Both parties hereby submit to the exclusive jurisdiction of the courts in Houston, Texas and waive all defenses based on forum non conveniens. Notwithstanding the foregoing, if Customer is a state or local governmental entity or higher education institution and legally required to apply state law, then Customer’s state law will apply to the Controversy, without reference to conflict of law principles.
(ii) CANADA. If Customer is located in Canada (outside Quebec), then the law of the Province of Ontario law apply, without reference to conflict of law principles. If Customer is located in Quebec, then the laws of the Province Quebec will apply, without reference to conflict of law principles.
(iii) EMEA. If both parties to this Agreement are entities incorporated in countries in the Europe, Middle East, or Africa regions, the Controversy shall be tried in the District Court located in Amsterdam, the Netherlands and the substantive laws of the Netherlands shall govern. Both parties hereby submit to the exclusive jurisdiction of the District Court in Amsterdam, the Netherlands and waive all defenses based on forum non conveniens.
(iv) ASIA PACIFIC. If both parties to this Agreement are entities incorporated in countries in the Asia Pacific region, the arbitration shall be held in Singapore under the then-applicable rules of the Singapore International Arbitration Centre and the substantive laws of Singapore will govern.
(v) OTHER REGIONS. In all other instances, the arbitration shall be held in New York City, New York, under the then-applicable international rules of the American Arbitration Association and the substantive laws of the State of Texas will govern.
For all arbitrations conducted hereunder: (a) the arbitration shall be conducted in English; (b) the relevant arbitral institution shall determine the number of arbitrators, but any Controversy in which the amount in dispute is greater than $10 million USD shall be decided by three arbitrators, with each party having the right to select one arbitrator; (c) the costs of such arbitration shall be borne equally, pending the arbitrator’s award; (d) the arbitration award rendered shall be final and binding on the parties, shall not be subject to appeal to any court and shall be enforceable in any court having jurisdiction over the parties; (e) the arbitration proceedings, award and pleadings shall all be confidential, unless disclosure of particular information is required for purposes of enforcing/challenging the award or to meet local securities law requirements; and (f) the party prevailing in arbitration shall be entitled to recover its reasonable attorneys’ fees and the necessary costs incurred in connection with the arbitration.
The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. Nothing in this Agreement shall be deemed as preventing either party from seeking immediate injunctive relief from any court having jurisdiction over the parties and the subject matter of the dispute.
18. BMC ENTITIES. The following licensing entities apply to this Agreement:
Region | Licensing Entity | Address of Licensing Entity |
---|---|---|
United States and Latin America South (not a specified Central or South America country below) | BMC Software, Inc. | 2103 CityWest Boulevard, Houston, Texas 77042 |
Canada | BMC Software Canada Inc. | 50 Minthorn Boulevard, Suite 200, Markham, Ontario L3T 7X8 Canada |
EMEA (Europe, Middle East and Africa) | BMC Software Distribution B.V. | Vision Plaza West, 2nd floor, Boeingavenue 220, 1119PN Schiphol-Rijk, The Netherlands |
Brazil | BMC Software do Brasil Ltda. | Avenida Dra. Ruth Cardoso, n° 8.501, Condomínio Eldorado Business Tower, 22° andar, Pinheiros, São Paulo – SP, CEP: 05425-070 |
Mexico | BMC Software Distribution de México, S.A. de C.V. | Torre Esmeralda II Blvd. Manuel Avila, Camacho #36, Piso 23 Col. Lomas de Chapultepec, CP11000, Mexico City, México D.F. |
Argentina | BMC Software de Argentina S.A. | Ing. Butty 220 - Piso 18, Catalinas Plaza Buenos Aires, República de Argentina, C1001A |
S.E.A (Southeast Asia), Australia, New Zealand, Hong Kong, Taiwan | BMC Software Ireland Unlimited Company | Building 3, Cherrywood Business Park, Bray Road, Loughlinstown, CO. Dublin, D18 TF72 |
China | BMC Software (China) Limited | Room 502, Level 5, Tower W1, The Towers, Oriental Plaza, No. 1 East Chang An Ave., Dong Cheng Dist., Beijing 100738, China |
Japan | BMC Software K.K. | Harmony Tower 24th Floor, 1-32-2 Honcho, Nakano-ku, Tokyo, 164-8721 |
Korea | BMC Software Korea Ltd | 24th Fl., ASEM Tower, 1517, Yeongdong-daero,Gangnam-gu, Seoul 135-798, Korea South |
19. ASSIGNMENT AND TRANSFERS. Customer has the right to assign this Agreement or a License in whole to an Affiliate, or to a successor in connection with (i) the sale of all or substantially all of the assets of that party or (ii) a merger by operation of law by providing written notice to BMC. The assignee may not be a known direct competitor of BMC. The successor or Affiliate must agree in writing with BMC (in advance of the assignment) to be bound by the terms of this Agreement. Any Customer transfer or assignment except as expressly authorized above will be null and void.
20. DATA PROTECTION. The processing of personal data under this Agreement is governed by the Data Processing Agreement set forth on the Order, unless BMC already has a signed Data Processing Agreement with Customer for such BMC offerings; in which case, the signed version governs the processing of personal data. In the event there is no signed Data Processing Agreement or no reference to the applicable Data Processing Agreement in the Order, BMC and Customer agree that the Data Processing Agreement applicable on the date of the Order, a copy of which may be viewed at https://www.bmc.com/content/dam/bmc/corporate/bmcdpa.pdf, applies to the BMC offerings under this Agreement.
21. NOTICES. Any demand, notice, consent, or other communication required by this Agreement must be given in writing and shall be deemed delivered upon receipt when delivered personally or upon confirmation of receipt following delivery by internationally recognized overnight courier service to the addresses specified on the applicable Order.
22. CONDUCTING BUSINESS WITH HONEST AND INTEGRITY. BMC is committed to conducting business with honesty and integrity. BMC’s Code of Conduct set forth in https://www.bmc.com/content/dam/bmc/corporate/Code%2Bof%2BConduct(English).pdf governs the conduct of all officers, directors, and employees of BMC. BMC’s Third-Party Code of Conduct set forth in https://www.bmc.com/content/dam/bmc/corporate/Third+Party+Code+of+Conduct.pdf governs the conduct of contingent workers and business partners acting on BMC’s behalf. BMC demonstrates its commitment to environmental stewardship by its global accreditation for ISO 14001:2015.
23. MISCELLANEOUS TERMS. A waiver by a party of any breach of any term of this Agreement will not be construed as a waiver of any continuing or succeeding breach. Should any term of this Agreement be invalid or unenforceable, the remaining terms will remain in effect. The parties acknowledge they have read this Agreement and agree that it is the complete and exclusive statement of the agreement and supersedes any prior or contemporaneous negotiations or agreements between the parties relating to the subject matter of this Agreement. There are no representations, promises, warranties, covenants, or undertakings between the parties other than those expressly set forth in this Agreement. This Agreement may not be modified or rescinded except in writing signed by both parties. Any delay or failure of any party to perform any obligation under this Agreement caused by governmental restrictions, labor disputes, storms or natural disasters, emergency, or other causes beyond the reasonable control of the party, will not be deemed a breach of this Agreement; provided, however, this provision does not apply to the payment of monies or any breach of Section 10. The BMC Products may contain third party software which is delivered to Customer as part of the Product and may not be taken out of the Product or used separately from the Product and for which additional terms may be included in the Documentation. The Product may contain hyperlinks to websites controlled by parties other than BMC. BMC is not responsible for and does not endorse the content or accept any responsibility for Customer’s use of these websites. Customer should refer to the policies posted by other websites regarding data privacy and other topics before using them. In compliance with all applicable laws and for internal purposes only, BMC may compile and use de-identified, aggregate or statistical information related to Customer’s use of the BMC Subscription Services or Support for the purposes of enhancing and improving the BMC offerings, developing new products and services, and for other development, diagnostic, statistical and corrective purposes, provided that such information (a) does not incorporate Customer’s personally identifiable information or Personal Data and (b) does not identify or describe the Customer. Any additional documents presented to a BMC representative by Customer for signature as a condition for going on a Customer’s site will be governed by this Agreement and to the extent that such document presents additional terms or conflicts with this Agreement, it shall be considered null and void. Les parties exigent que la présente convention ainsi que les documents qui s’y rattachent soient rédigés en anglais.
24. U.S. GOVERNMENT END USER RIGHTS. This Section applies only to acquisitions of the commercial Product and Documentation subject to this Agreement by or on behalf of the United States Government, or by any prime contractor or subcontractor (at any tier) under any contract, grant, agreement or other activity with the United States Government. When Products are delivered or provided to the United States Government, the United States Government agrees that this commercial license Agreement and the Products governed by this Agreement are defined in accordance with and qualify as “commercial items” consisting of “commercial computer software” and “commercial computer software documentation” as outlined in FAR 12.211, FAR 12.212 and DFARS 227.202-3, as applicable. The terms and conditions of this Agreement shall pertain to the United States Government’s use (including documentation or technical data), duplication, and disclosure of the Product, and shall supersede any conflicting contractual terms and conditions.
YOU AGREE THAT YOU HAVE READ THIS AGREEMENT AND INTEND TO BE BOUND, AS IF YOU HAD SIGNED THIS AGREEMENT IN WRITING. IF YOU ARE ACTING ON BEHALF OF AN ENTITY, YOU WARRANT THAT YOU HAVE THE AUTHORITY TO ACCEPT THE TERMS OF THIS AGREEMENT FOR SUCH ENTITY.
Effective December 17th 2020 to March 12th 2021
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END USER LICENSE AGREEMENT
BY OPENING THE PACKAGE, DOWNLOADING OR INSTALLING, PRESSING “AGREE” OR “YES” OR USING THE PRODUCT, THE ENTITY OR INDIVIDUAL ENTERING INTO THIS AGREEMENT AGREES TO BE BOUND BY THE FOLLOWING TERMS. IF YOU DO NOT AGREE WITH ANY OF THESE TERMS, DO NOT INSTALL OR USE THE PRODUCT, PROMPTLY RETURN THE PRODUCT TO BMC OR YOUR BMC RESELLER. IF YOU REJECT THIS AGREEMENT, YOU WILL NOT ACQUIRE ANY LICENSE TO USE THE PRODUCT.
This Agreement ("Agreement") is between the entity or individual entering into this Agreement (“Customer”) and the BMC Entity for the applicable Region where Customer acquired the License as described in Section 18 (“BMC”). This Agreement was last updated on December 17, 2020. For Customer’s convenience, prior versions of this Agreement are available at https://www.bmc.com/legal/end-user-license-agreements.html.
1. GENERAL DEFINITIONS.
“Affiliate” is an entity that controls, is controlled by or shares common control with BMC or Customer, where such control arises from the legal power to direct or cause the direction of the general management and policies of the company, partnership or legal entity.
“Authorized User” means Customer, Customer Affiliate(s), and their employees, consultants, contractors and agents that are bound by the terms and conditions no less restrictive than those contained herein and for whom Customer takes full responsibility. Authorized Users do not include service providers or outsourcers.
"Documentation" means the technical publications relating to the software, such as release notes, license entitlement descriptions, reference, user, installation, systems administrator and technical guidelines, included with the Product.
“Licensed Capacity” is the amount of each Product licensed as established in the Order. Any Units of Measure and License Restrictions related to the Licensed Capacity will be set forth in the Order.
“Order” is an agreed written or electronic document, subject to the terms of this Agreement that identifies the Products to be licensed and the Licensed Capacity and/or the Support to be purchased and the fees to be paid.
“Product” is the object code of the software and all accompanying Documentation delivered to Customer, including all items delivered by BMC to Customer under Support.
“Support” is the support services program as further specified in this Agreement.
“Territory” means the country(ies) where Customer is licensed to install the Product as specified in the Order.
2. SCOPE. Licenses are granted, and Support is obtained, solely by execution of Orders. Each Order is deemed to be a discrete contract, separate from each other Order, unless expressly stated otherwise therein, and in the event of a direct conflict between any Order and the terms of this Agreement, the terms of the Order will control only if the Order is agreed to by each party. Neither execution of this Agreement, nor anything contained herein, shall obligate either party to enter into any Orders. In the event an Order is proposed by BMC and is deemed to constitute an offer, then acceptance of such offer is limited to its terms. In the event Customer proposes an Order by submitting a purchase order, then regardless of whether BMC acknowledges, accepts or fully or partially performs under such purchase order, BMC OBJECTS to any additional or different terms in the purchase order.
3. LICENSE. Subject to the terms, conditions, payment requirements and restrictions set forth in this Agreement, BMC grants Customer a non-exclusive, non-transferable, non-sub-licensable perpetual (unless a non-perpetual license is provided on an Order) license to install in the Territory, access and use the Product (i) by Authorized User(s), (ii) up to the Licensed Capacity, (iii) for Customer’s and its Affiliates internal business operations, (iv) in accordance with the Documentation and the applicable Order, and (v) make a reasonable number of copies of the Product and the Documentation for archival purposes only (collectively a "License"). Affiliates may use and access the Products and Support under the terms of this Agreement, and Customer is responsible for its Affiliates compliance with the terms of this Agreement.
4. RESTRICTIONS. Customer will not: (a) copy, operate or use any Product in excess of the applicable Licensed Capacity or other than as set forth in the License above; (b) modify, delete or remove any ownership, title, trademark, patent or copyright notices from any Product, or copy or partial copy of a Product; (c) disassemble, reverse engineer, decompile or otherwise attempt to derive any Product source code from object code, except to the extent expressly permitted by applicable law despite this limitation without possibility of contractual waiver; (d) distribute, rent, lease, sublicense or provide the Product to any third party; (e) use the Products in an outsourcing or service bureau environment on behalf of non-Affiliate third parties, or allow the products to be used by an outsourcing or service bureau provider on Customer’s behalf (without obtaining prior written approval from BMC); (f) provide a third party with the results of any functional evaluation, or performance tests, without BMC's prior written approval; or (g) attempt to disable or circumvent any of the licensing mechanisms within the Product.
5. PRODUCT PERFORMANCE WARRANTY. BMC warrants that (a) the Product will perform in substantial accordance with its Documentation for a period of one year from the date of the first Order, (b) BMC has used commercially reasonable efforts consistent with industry standards to scan for and remove software viruses, and (c) other than passwords that may be required for the operation of the Product, BMC has not inserted any code that is not addressed in the Documentation and that is designed to delete, interfere with or disable the normal operation of the Product in accordance with the License. This warranty will not apply to any problems caused by hardware, Computers, or software other than the Product, or misuse of the Product, use of the Product other than as provided by the applicable License, modification of the Product, or claims made either outside the warranty period or not in compliance with the notice and access requirements set forth below. No warranty is provided for additional Licensed Capacity, Product provided pursuant to Support or Product provided pursuant to Section 12.
6. LIMITED REMEDIES. BMC’s entire liability, and Customer’s exclusive remedy, for breach of the above warranty is limited to: BMC’s use of commercially reasonable efforts to have the Product perform in substantial accordance with its Documentation, or replacement of the non-conforming Product within a reasonable period of time, or if BMC cannot have the Product perform in substantial accordance with its Documentation replace the Product within such time period, then BMC will refund the amount paid by Customer for the License for that Product. Customer’s rights and BMC's obligations in this Section are conditioned upon Customer’s providing BMC during the warranty period (a) full cooperation and access to the Product in resolving any claim; and (b) written notice addressed to the BMC Legal Department that includes notice of the claim, a complete description of the alleged defects sufficient to permit their reproduction in BMC’s development or support environment, and a specific reference to the Documentation to which such alleged defects are contrary.
7. DISCLAIMER OF WARRANTIES. EXCEPT FOR THE EXPRESS WARRANTIES IN THIS AGREEMENT, THE PRODUCT IS PROVIDED WITH NO OTHER WARRANTIES WHATSOEVER, AND BMC, ITS AFFILIATES AND LICENSORS DISCLAIM ALL OTHER WARRANTIES, INCLUDING, FITNESS FOR A PARTICULAR PURPOSE AND IN THE UNITED STATES AND CANADA, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, AND NON-INFRINGEMENT. BMC DOES NOT WARRANT THAT THE OPERATION OF THE PRODUCT WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT ALL DEFECTS CAN BE CORRECTED.
8. SUPPORT. Customer may acquire BMC support services (“Support”) on an Order for the total Licensed Capacity of a Product. BMC will notify Customer that it is time to renew Support at least 60 days prior to the end of any prepaid Support period. Customer will provide notice to BMC if it does not intend to renew Support. The annual fee for Support will be agreed upon at the time of each Order. A further description of Support is located at www.bmc.com/support/review-policies, and is incorporated herein by this reference. BMC may change its Support terms to be effective at the end of any prepaid Support period. BMC reserves the right to discontinue Support for a Product where BMC generally discontinues such services to all licensees of that Product. If Customer stops being enrolled in Support and then re-enrolls in Support, BMC may charge Customer a reinstatement fee.
9. PAYMENT, DELIVERY AND TAXES. Customer will pay each License fee and/or Support fee within 30 days of the date of the invoice. Customer will pay taxes imposed in connection with the fees paid for the License and/or Support, which are exclusive of these taxes. For Products that are delivered electronically, upon request from BMC, Customer agrees to provide BMC with documentation supporting that the designated Product was received electronically. If Customer accepts any Product in a non-electronic format, there may be an additional charge and it is the sole responsibility of Customer to bear any sales/use tax obligation, penalties, and interest. Late balances may, at BMC’s sole election, bear interest at a rate equal to the lesser of 1% per month or the maximum amount permitted by law. All Products are licensed FCA (“Free Carrier” as per Incoterms 2000) shipping point. The Products are accepted on the date BMC delivers the Product to the Customer either physically or by providing access codes for electronic download, whichever occurs first, however, such acceptance will not affect the Product Performance Warranty provided in this Agreement. With regard to Products acquired by Customer through an authorized reseller ("Solution Provider") of BMC, notwithstanding anything to the contrary herein, Customer will have no direct payment obligations to BMC for such fees.
10. PROPRIETARY RIGHTS AND CONFIDENTIALITY. (a) BMC, its Affiliates or licensors retain all right, title and interest to the Product, Support and all related intellectual property and proprietary rights. The Product and all third party software provided with the Product are protected by applicable copyright, trade secret, industrial and other intellectual property laws. BMC reserves any rights not expressly granted to Customer in this Agreement. (b) “Confidential Information” means all proprietary or confidential information that is disclosed to the recipient (“Recipient”) by the discloser (“Discloser”), and includes, among other things (i) any and all information relating Discloser financial information, customers, employees, products or services, including, without limitation, software code, flow charts, techniques, specifications, development and marketing plans, strategies, forecasts, and proposal related documents and responses; (ii) as to BMC, and its licensors, the Product (excluding portions of the Documentation that BMC makes publicly available) and any third party software provided with the Product; and (iii) the terms of this Agreement, including without limitation, Product pricing information. Confidential Information does not include information that Recipient can show: (a) was rightfully in Recipient’s possession without any obligation of confidentiality before receipt from the Discloser; (b) is or becomes a matter of public knowledge through no fault of Recipient; (c) is rightfully received by Recipient from a third party without violation of a duty of confidentiality; or (d) is independently developed by or for Recipient. Recipient may not disclose Confidential Information of Discloser to any third party or use the Confidential Information in violation of this Agreement. The Recipient (i) will exercise the same degree of care and protection with respect to the Confidential Information of the Discloser that it exercises with respect to its own Confidential Information and (ii) will not, either directly or indirectly, disclose, copy, distribute, republish, or allow any third party to have access to any Confidential Information of the Discloser. Notwithstanding the foregoing, Recipient may disclose Discloser’s Confidential Information to Recipient’s employees and agents (if Recipient is BMC) and to Authorized User(s) (if Recipient is the Customer)who have the need to know provided that such employees, agents and Authorized User(s) have legal obligations of confidentiality substantially the same (and in no case less protective) as the provisions of this Agreement. (c) Notification Obligation. If the Recipient becomes aware of any unauthorized use or disclosure of Discloser’s Confidential Information, then Recipient will promptly and fully notify the Discloser of all facts known to it concerning such unauthorized use or disclosure. In addition, if the Recipient or any of its employees or agents are required (by oral questions, interrogatories, requests for information, or documents in legal proceedings, subpoena, civil investigative demand, or other similar process) to disclose any of Discloser’s Confidential Information, the Recipient will not disclose the Discloser’s Confidential Information without providing the Discloser with commercially reasonable advance prior written notice to allow Discloser to seek a protective order or other appropriate remedy or to waive compliance with this provision. In any event, the Recipient will exercise its commercially reasonable efforts to preserve the confidentiality of the Discloser’s Confidential Information, including, without limitation, cooperating with Discloser to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded to the Confidential Information.
11. DISCLAIMER OF DAMAGES; LIMITS ON LIABILITY. EXCEPT FOR VIOLATIONS OF LICENSE RESTRICTIONS (Section 4), AND PROPRIETARY RIGHTS AND CONFIDENTIALITY (SECTION 10) AND FOR INFRINGEMENT CLAIMS (SECTION 13), GROSS NEGLIGENCE, WILLFUL MISCONDUCT, DEATH OR BODILY INJURY, ACTS OF FRAUD AND ANY LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED BY LAW, NEITHER PARTY, ITS AFFILIATES OR BMC’s LICENSORS (A) ARE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES RELATING TO OR ARISING OUT OF THIS AGREEMENT, SUPPORT, THE PRODUCT OR ANY THIRD PARTY CODE OR SOFTWARE PROVIDED WITH THE PRODUCT (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST COMPUTER USAGE TIME, AND DAMAGE TO, OR LOSS OF USE OF DATA), EVEN IF ADVISED OF THE OF THE POSSIBILITY OF SUCH DAMAGES, AND IRRESPECTIVE OF NEGLIGENCE OF A PARTY OR WHETHER SUCH DAMAGES RESULT FROM A CLAIM ARISING UNDER TORT OR CONTRACT LAW AND (B) LIABILITY IN ANY EVENT SHALL NOT EXCEED THE AMOUNT PAID AND PAYABLE BY CUSTOMER FOR THE LICENSE TO THE APPLICABLE PRODUCT GIVING RISE TO SUCH DAMAGES.
12. TRIAL LICENSE. BMC may determine, in its sole discretion, to make products available to Customer without an Order and without charge. Such products are deemed to be “Products” pursuant to this Agreement except that (a) they are provided to Customer solely so that Customer may evaluate internally whether to acquire a license to the products for a fee, (b) the license term for such products is 30 days; (c) the Products are provided “AS IS” and without any warranty or support, and (d) the products cannot be put into productive use or included as part of Customer’s business processes in any manner, unless or until they are expressly licensed and paid for under an Order. BMC may terminate all of Customer’s rights and licenses to these Products for BMC’s convenience upon notice to Customer.
13. INFRINGEMENT CLAIMS. If a third party asserts a claim against Customer asserting that Customer’s use of a Product in accordance with this Agreement violates that third-party’s patent, trade secret or copyright rights (“Infringement Claim”), then BMC will, at its own expense: (a) defend or settle the Infringement Claim; and (b) indemnify Customer for any damages finally awarded against Customer based on infringement by the Product. BMC’s obligations under this Section will not apply if: (a) BMC’s legal department does not receive prompt, detailed written notice of the Infringement Claim from Customer, (b) BMC is not able to retain sole control of the defense of the Infringement Claim and all negotiations for its settlement or compromise, (c) BMC does not receive all reasonable assistance, or (d) the Infringement Claim is based on (i) the use of Product in combination with products not approved by BMC in the Product's Documentation, (ii) the failure of Customer to use any updates to such Product within a reasonable time after such updates are made available to Customer, or (iii) the failure of Customer to use the Product as permitted by the Order and in accordance with the Documentation. BMC will not bind Customer to a monetary obligation in a settlement or compromise, or make an admission on behalf of Customer, without obtaining Customer’s prior consent. If BMC determines in BMC’s reasonable discretion that use of the Product should be stopped because of an Infringement Claim or potential Infringement Claim, if a court of competent jurisdiction enjoins Customer from using a Product as a result of an Infringement Claim and BMC is unable to have such injunction stayed or overturned, or if BMC settles an Infringement Claim on terms that would require Customer to stop using the Product, then BMC will, at its expense and election: (a) modify or replace the Product, (b) procure the right to continue using the Product, or (c) if in BMC’s reasonable judgment, neither (a) or (b) is commercially reasonable, terminate Customer's License to the Product and (i) for any perpetual licenses, issue a refund based upon the applicable license fees paid, prorated over 48 months from the date of the Order under which the Products were initially licensed; and (ii) for any non-perpetual licenses, release Customer from its obligation to make future payments for the Product or issue a pro rata refund for any fees paid in advance. This Section contains Customer's exclusive remedies and BMC's sole liability for Infringement Claims.
14. TERMINATION. Upon thirty days advance written notice, either party may terminate this Agreement for its convenience on a prospective basis; however, such termination will have no effect on Orders placed prior to its effective date and such Orders will remain in full force and effect under the terms of this Agreement. Either party may terminate this Agreement and/or an Order for cause on 30 days’ written notice for material breach if the other party fails to cure the breach within 30-day-notice period. Upon any termination of a License, Customer will immediately uninstall and stop using the relevant Product, and upon BMC's request, Customer will immediately return such Product to BMC, together with all related Documentation and copies, or certify its destruction in writing. Any terms in this Agreement which by their nature extend beyond termination of this Agreement will remain in effect until fulfilled.
15. AUDIT. If requested by BMC, and not more than once a year, Customer agrees to deliver to BMC, within 30 days of such request, as specified by BMC either (a) periodic product usage reports generated from specific products or (b) written periodic product usage reports, to be provided solely when the product does not generate reports (“Report”). Additionally, if requested by BMC not more than once a year and upon at least 10 (ten) days prior written notice to Customer, Customer agrees to allow BMC to perform an audit (“Audit”) to ensure compliance with the terms of this Agreement at the locations where the Products are installed, during normal business hours.. Customer agrees to cooperate during any such Audit and to provide reasonable access to its information and systems.
16. EXPORT CONTROLS. Both parties agree to comply with applicable export regulations, including but not limited to U.S. Export Administration Regulations and the OFAC embargoes and sanctions lists. More information on BMC’s export compliance program may be found here: https://www.bmc.com/legal/export-compliance.html.
17. GOVERNING LAW AND DISPUTE RESOLUTION. Any controversy, dispute or claim arising out of or relating to this Agreement, or to the formation, interpretation, breach, termination, or validity thereof (each, a “Controversy”) will be resolved as follows:
(i) UNITED STATES. If both parties to this Agreement are entities incorporated under the law of any state in the United States, the Controversy shall be tried in either state or federal court located in Houston, Texas and the laws of the State of Texas shall govern. Both parties hereby submit to the exclusive jurisdiction of the courts in Houston, Texas and waive all defenses based on forum non conveniens. Notwithstanding the foregoing, if Customer is a state or local governmental entity or higher education institution and legally required to apply state law, then Customer’s state law will apply to the Controversy, without reference to conflict of law principles.
(ii) CANADA. If Customer is located in Canada (outside Quebec), then the law of the Province of Ontario law apply, without reference to conflict of law principles. If Customer is located in Quebec, then the laws of the Province Quebec will apply, without reference to conflict of law principles.
(iii) EMEA. If both parties to this Agreement are entities incorporated in countries in the Europe, Middle East, or Africa regions, the Controversy shall be tried in the District Court located in Amsterdam, the Netherlands and the substantive laws of the Netherlands shall govern. Both parties hereby submit to the exclusive jurisdiction of the District Court in Amsterdam, the Netherlands and waive all defenses based on forum non conveniens.
(iv) ASIA PACIFIC. If both parties to this Agreement are entities incorporated in countries in the Asia Pacific region, the arbitration shall be held in Singapore under the then-applicable rules of the Singapore International Arbitration Centre and the substantive laws of Singapore will govern.
(v) OTHER REGIONS. In all other instances, the arbitration shall be held in New York City, New York, under the then-applicable international rules of the American Arbitration Association and the substantive laws of the State of Texas will govern.
For all arbitrations conducted hereunder: (a) the arbitration shall be conducted in English; (b) the relevant arbitral institution shall determine the number of arbitrators, but any Controversy in which the amount in dispute is greater than $10 million USD shall be decided by three arbitrators, with each party having the right to select one arbitrator; (c) the costs of such arbitration shall be borne equally, pending the arbitrator’s award; (d) the arbitration award rendered shall be final and binding on the parties, shall not be subject to appeal to any court and shall be enforceable in any court having jurisdiction over the parties; (e) the arbitration proceedings, award and pleadings shall all be confidential, unless disclosure of particular information is required for purposes of enforcing/challenging the award or to meet local securities law requirements; and (f) the party prevailing in arbitration shall be entitled to recover its reasonable attorneys’ fees and the necessary costs incurred in connection with the arbitration.
The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. Nothing in this Agreement shall be deemed as preventing either party from seeking immediate injunctive relief from any court having jurisdiction over the parties and the subject matter of the dispute.
18. BMC ENTITIES. The following licensing entities apply to this Agreement:
Region | Licensing Entity | Address of Licensing Entity |
---|---|---|
United States and Latin America South (not a specified Central or South America country below) | BMC Software, Inc. | 2103 CityWest Boulevard, Houston, Texas 77042 |
Canada | BMC Software Canada Inc. | 50 Minthorn Boulevard, Suite 200, Markham, Ontario L3T 7X8 Canada |
EMEA (Europe, Middle East and Africa) | BMC Software Distribution B.V. | Vision Plaza West, 2nd floor, Boeingavenue 220, 1119PN Schiphol-Rijk, The Netherlands |
Brazil | BMC Software do Brasil Ltda. | Avenida Dra. Ruth Cardoso, n° 8.501, Condomínio Eldorado Business Tower, 22° andar, Pinheiros, São Paulo – SP, CEP: 05425-070 |
Mexico | BMC Software Distribution de México, S.A. de C.V. | Torre Esmeralda II Blvd. Manuel Avila, Camacho #36, Piso 23 Col. Lomas de Chapultepec, CP11000, Mexico City, México D.F. |
Argentina | BMC Software de Argentina S.A. | Ing. Butty 220 - Piso 18, Catalinas Plaza Buenos Aires, República de Argentina, C1001A |
S.E.A (Southeast Asia), Australia, New Zealand, Hong Kong, Taiwan | BMC Software Ireland Limited | Building 3, Cherrywood Business Park, Bray Road, Loughlinstown, CO. Dublin, D18 TF72 |
China | BMC Software (China) Limited | Room 502, Level 5, Tower W1, The Towers, Oriental Plaza, No. 1 East Chang An Ave., Dong Cheng Dist., Beijing 100738, China |
Japan | BMC Software K.K. | Harmony Tower 24th Floor, 1-32-2 Honcho, Nakano-ku, Tokyo, 164-8721 |
Korea | BMC Software Korea Ltd | 24th Fl., ASEM Tower, 1517, Yeongdong-daero,Gangnam-gu, Seoul 135-798, Korea South |
19. ASSIGNMENT AND TRANSFERS. Customer has the right to assign this Agreement or a License in whole to an Affiliate, or to a successor in connection with (i) the sale of all or substantially all of the assets of that party or (ii) a merger by operation of law by providing written notice to BMC. The assignee may not be a known direct competitor of BMC. The successor or Affiliate must agree in writing with BMC (in advance of the assignment) to be bound by the terms of this Agreement. Any Customer transfer or assignment except as expressly authorized above will be null and void.
20. DATA PROTECTION. The processing of personal data under this Agreement is governed by the Data Processing Agreement set forth on the Order, unless BMC already has a signed Data Processing Agreement with Customer for such BMC offerings; in which case, the signed version governs the processing of personal data. In the event there is no signed Data Processing Agreement or no reference to the applicable Data Processing Agreement in the Order, BMC and Customer agree that the Data Processing Agreement applicable on the date of the Order, a copy of which may be viewed at https://www.bmc.com/content/dam/bmc/corporate/bmcdpa.pdf, applies to the BMC offerings under this Agreement.
21. NOTICES. Any demand, notice, consent, or other communication required by this Agreement must be given in writing and shall be deemed delivered upon receipt when delivered personally or upon confirmation of receipt following delivery by internationally recognized overnight courier service to the addresses specified on the applicable Order.
22. CONDUCTING BUSINESS WITH HONEST AND INTEGRITY. BMC is committed to conducting business with honesty and integrity. BMC’s Code of Conduct set forth in https://www.bmc.com/content/dam/bmc/corporate/Code%2Bof%2BConduct(English).pdf governs the conduct of all officers, directors, and employees of BMC. BMC’s Third-Party Code of Conduct set forth in https://www.bmc.com/content/dam/bmc/corporate/Third+Party+Code+of+Conduct.pdf governs the conduct of contingent workers and business partners acting on BMC’s behalf. BMC demonstrates its commitment to environmental stewardship by its global accreditation for ISO 14001:2015.
23. MISCELLANEOUS TERMS. A waiver by a party of any breach of any term of this Agreement will not be construed as a waiver of any continuing or succeeding breach. Should any term of this Agreement be invalid or unenforceable, the remaining terms will remain in effect. The parties acknowledge they have read this Agreement and agree that it is the complete and exclusive statement of the agreement and supersedes any prior or contemporaneous negotiations or agreements between the parties relating to the subject matter of this Agreement. There are no representations, promises, warranties, covenants, or undertakings between the parties other than those expressly set forth in this Agreement. This Agreement may not be modified or rescinded except in writing signed by both parties. Any delay or failure of any party to perform any obligation under this Agreement caused by governmental restrictions, labor disputes, storms or natural disasters, emergency, or other causes beyond the reasonable control of the party, will not be deemed a breach of this Agreement; provided, however, this provision does not apply to the payment of monies or any breach of Section 10. The BMC Products may contain third party software which is delivered to Customer as part of the Product and may not be taken out of the Product or used separately from the Product and for which additional terms may be included in the Documentation. The Product may contain hyperlinks to websites controlled by parties other than BMC. BMC is not responsible for and does not endorse the content or accept any responsibility for Customer’s use of these websites. Customer should refer to the policies posted by other websites regarding data privacy and other topics before using them. Any additional documents presented to a BMC representative by Customer for signature as a condition for going on a Customer’s site will be governed by this Agreement and to the extent that such document presents additional terms or conflicts with this Agreement, it shall be considered null and void. Les parties exigent que la présente convention ainsi que les documents qui s’y rattachent soient rédigés en anglais.
24. U.S. GOVERNMENT END USER RIGHTS. This Section applies only to acquisitions of the commercial Product and Documentation subject to this Agreement by or on behalf of the United States Government, or by any prime contractor or subcontractor (at any tier) under any contract, grant, agreement or other activity with the United States Government. When Products are delivered or provided to the United States Government, the United States Government agrees that this commercial license Agreement and the Products governed by this Agreement are defined in accordance with and qualify as “commercial items” consisting of “commercial computer software” and “commercial computer software documentation” as outlined in FAR 12.211, FAR 12.212 and DFARS 227.202-3, as applicable. The terms and conditions of this Agreement shall pertain to the United States Government’s use (including documentation or technical data), duplication, and disclosure of the Product, and shall supersede any conflicting contractual terms and conditions.
YOU AGREE THAT YOU HAVE READ THIS AGREEMENT AND INTEND TO BE BOUND, AS IF YOU HAD SIGNED THIS AGREEMENT IN WRITING. IF YOU ARE ACTING ON BEHALF OF AN ENTITY, YOU WARRANT THAT YOU HAVE THE AUTHORITY TO ACCEPT THE TERMS OF THIS AGREEMENT FOR SUCH ENTITY.
Effective September 9th 2020 to December 17th 2020
DownloadTable of Contents
END USER LICENSE AGREEMENT
BY OPENING THE PACKAGE, DOWNLOADING OR INSTALLING, PRESSING “AGREE” OR “YES” OR USING THE PRODUCT, THE ENTITY OR INDIVIDUAL ENTERING INTO THIS AGREEMENT AGREES TO BE BOUND BY THE FOLLOWING TERMS. IF YOU DO NOT AGREE WITH ANY OF THESE TERMS, DO NOT INSTALL OR USE THE PRODUCT, PROMPTLY RETURN THE PRODUCT TO BMC OR YOUR BMC RESELLER. IF YOU REJECT THIS AGREEMENT, YOU WILL NOT ACQUIRE ANY LICENSE TO USE THE PRODUCT.
This Agreement ("Agreement") is between the entity or individual entering into this Agreement (“Customer”) and the BMC Entity for the applicable Region where Customer acquired the License as described in Section 18 (“BMC”). This Agreement was last updated on September 10, 2020. For Customer’s convenience, prior versions of this Agreement are available at https://www.bmc.com/legal/end-user-license-agreements.html.
1. GENERAL DEFINITIONS.
“Affiliate” is an entity that controls, is controlled by or shares common control with BMC or Customer, where such control arises from the legal power to direct or cause the direction of the general management and policies of the company, partnership or legal entity.
“Authorized User” means Customer, Customer Affiliate(s), and their employees, consultants, contractors and agents that are bound by the terms and conditions no less restrictive than those contained herein and for whom Customer takes full responsibility. Authorized Users do not include service providers or outsourcers.
"Documentation" means the technical publications relating to the software, such as release notes, license entitlement descriptions, reference, user, installation, systems administrator and technical guidelines, included with the Product.
“Licensed Capacity” is the amount of each Product licensed as established in the Order. Any Units of Measure and License Restrictions related to the Licensed Capacity will be set forth in the Order.
“Order” is an agreed written or electronic document, subject to the terms of this Agreement that identifies the Products to be licensed and the Licensed Capacity and/or the Support to be purchased and the fees to be paid.
“Product” is the object code of the software and all accompanying Documentation delivered to Customer, including all items delivered by BMC to Customer under Support.
“Support” is the support services program as further specified in this Agreement.
“Territory” means the country(ies) where Customer is licensed to install the Product as specified in the Order.
2. SCOPE. Licenses are granted, and Support is obtained, solely by execution of Orders. Each Order is deemed to be a discrete contract, separate from each other Order, unless expressly stated otherwise therein, and in the event of a direct conflict between any Order and the terms of this Agreement, the terms of the Order will control only if the Order is agreed to by each party. Neither execution of this Agreement, nor anything contained herein, shall obligate either party to enter into any Orders. In the event an Order is proposed by BMC and is deemed to constitute an offer, then acceptance of such offer is limited to its terms. In the event Customer proposes an Order by submitting a purchase order, then regardless of whether BMC acknowledges, accepts or fully or partially performs under such purchase order, BMC OBJECTS to any additional or different terms in the purchase order.
3. LICENSE. Subject to the terms, conditions, payment requirements and restrictions set forth in this Agreement, BMC grants Customer a non-exclusive, non-transferable, non-sub-licensable perpetual (unless a non-perpetual license is provided on an Order) license to install in the Territory, access and use the Product (i) by Authorized User(s), (ii) up to the Licensed Capacity, (iii) for Customer’s and its Affiliates internal business operations, (iv) in accordance with the Documentation and the applicable Order, and (v) make a reasonable number of copies of the Product and the Documentation for archival purposes only (collectively a "License"). Affiliates may use and access the Products and Support under the terms of this Agreement, and Customer is responsible for its Affiliates compliance with the terms of this Agreement.
4. RESTRICTIONS. Customer will not: (a) copy, operate or use any Product in excess of the applicable Licensed Capacity or other than as set forth in the License above; (b) modify, delete or remove any ownership, title, trademark, patent or copyright notices from any Product, or copy or partial copy of a Product; (c) disassemble, reverse engineer, decompile or otherwise attempt to derive any Product source code from object code, except to the extent expressly permitted by applicable law despite this limitation without possibility of contractual waiver; (d) distribute, rent, lease, sublicense or provide the Product to any third party; (e) use the Products in an outsourcing or service bureau environment on behalf of non-Affiliate third parties, or allow the products to be used by an outsourcing or service bureau provider on Customer’s behalf (without obtaining prior written approval from BMC); (f) provide a third party with the results of any functional evaluation, or performance tests, without BMC's prior written approval; or (g) attempt to disable or circumvent any of the licensing mechanisms within the Product.
5. PRODUCT PERFORMANCE WARRANTY. BMC warrants that (a) the Product will perform in substantial accordance with its Documentation for a period of one year from the date of the first Order, (b) BMC has used commercially reasonable efforts consistent with industry standards to scan for and remove software viruses, and (c) other than passwords that may be required for the operation of the Product, BMC has not inserted any code that is not addressed in the Documentation and that is designed to delete, interfere with or disable the normal operation of the Product in accordance with the License. This warranty will not apply to any problems caused by hardware, Computers, or software other than the Product, or misuse of the Product, use of the Product other than as provided by the applicable License, modification of the Product, or claims made either outside the warranty period or not in compliance with the notice and access requirements set forth below. No warranty is provided for additional Licensed Capacity, Product provided pursuant to Support or Product provided pursuant to Section 12.
6. LIMITED REMEDIES. BMC’s entire liability, and Customer’s exclusive remedy, for breach of the above warranty is limited to: BMC’s use of commercially reasonable efforts to have the Product perform in substantial accordance with its Documentation, or replacement of the non-conforming Product within a reasonable period of time, or if BMC cannot have the Product perform in substantial accordance with its Documentation replace the Product within such time period, then BMC will refund the amount paid by Customer for the License for that Product. Customer’s rights and BMC's obligations in this Section are conditioned upon Customer’s providing BMC during the warranty period (a) full cooperation and access to the Product in resolving any claim; and (b) written notice addressed to the BMC Legal Department that includes notice of the claim, a complete description of the alleged defects sufficient to permit their reproduction in BMC’s development or support environment, and a specific reference to the Documentation to which such alleged defects are contrary.
7. DISCLAIMER OF WARRANTIES. EXCEPT FOR THE EXPRESS WARRANTIES IN THIS AGREEMENT, THE PRODUCT IS PROVIDED WITH NO OTHER WARRANTIES WHATSOEVER, AND BMC, ITS AFFILIATES AND LICENSORS DISCLAIM ALL OTHER WARRANTIES, INCLUDING, FITNESS FOR A PARTICULAR PURPOSE AND IN THE UNITED STATES AND CANADA, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, AND NON-INFRINGEMENT. BMC DOES NOT WARRANT THAT THE OPERATION OF THE PRODUCT WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT ALL DEFECTS CAN BE CORRECTED.
8. SUPPORT. Customer may acquire BMC support services (“Support”) on an Order for the total Licensed Capacity of a Product. BMC will notify Customer that it is time to renew Support at least 60 days prior to the end of any prepaid Support period. Customer will provide notice to BMC if it does not intend to renew Support. The annual fee for Support will be agreed upon at the time of each Order. A further description of Support is located at www.bmc.com/support/review-policies, and is incorporated herein by this reference. BMC may change its Support terms to be effective at the end of any prepaid Support period. BMC reserves the right to discontinue Support for a Product where BMC generally discontinues such services to all licensees of that Product. If Customer stops being enrolled in Support and then re-enrolls in Support, BMC may charge Customer a reinstatement fee.
9. PAYMENT, DELIVERY AND TAXES. Customer will pay each License fee and/or Support fee within 30 days of the date of the invoice. Customer will pay taxes imposed in connection with the fees paid for the License and/or Support, which are exclusive of these taxes. For Products that are delivered electronically, upon request from BMC, Customer agrees to provide BMC with documentation supporting that the designated Product was received electronically. If Customer accepts any Product in a non-electronic format, there may be an additional charge and it is the sole responsibility of Customer to bear any sales/use tax obligation, penalties, and interest. Late balances may, at BMC’s sole election, bear interest at a rate equal to the lesser of 1% per month or the maximum amount permitted by law. All Products are licensed FCA (“Free Carrier” as per Incoterms 2000) shipping point. The Products are accepted on the date BMC delivers the Product to the Customer either physically or by providing access codes for electronic download, whichever occurs first, however, such acceptance will not affect the Product Performance Warranty provided in this Agreement. With regard to Products acquired by Customer through an authorized reseller ("Solution Provider") of BMC, notwithstanding anything to the contrary herein, Customer will have no direct payment obligations to BMC for such fees.
10. PROPRIETARY RIGHTS AND CONFIDENTIALITY. (a) BMC, its Affiliates or licensors retain all right, title and interest to the Product, Support and all related intellectual property and proprietary rights. The Product and all third party software provided with the Product are protected by applicable copyright, trade secret, industrial and other intellectual property laws. BMC reserves any rights not expressly granted to Customer in this Agreement. (b) “Confidential Information” means all proprietary or confidential information that is disclosed to the recipient (“Recipient”) by the discloser (“Discloser”), and includes, among other things (i) any and all information relating Discloser financial information, customers, employees, products or services, including, without limitation, software code, flow charts, techniques, specifications, development and marketing plans, strategies, forecasts, and proposal related documents and responses; (ii) as to BMC, and its licensors, the Product (excluding portions of the Documentation that BMC makes publicly available) and any third party software provided with the Product; and (iii) the terms of this Agreement, including without limitation, Product pricing information. Confidential Information does not include information that Recipient can show: (a) was rightfully in Recipient’s possession without any obligation of confidentiality before receipt from the Discloser; (b) is or becomes a matter of public knowledge through no fault of Recipient; (c) is rightfully received by Recipient from a third party without violation of a duty of confidentiality; or (d) is independently developed by or for Recipient. Recipient may not disclose Confidential Information of Discloser to any third party or use the Confidential Information in violation of this Agreement. The Recipient (i) will exercise the same degree of care and protection with respect to the Confidential Information of the Discloser that it exercises with respect to its own Confidential Information and (ii) will not, either directly or indirectly, disclose, copy, distribute, republish, or allow any third party to have access to any Confidential Information of the Discloser. Notwithstanding the foregoing, Recipient may disclose Discloser’s Confidential Information to Recipient’s employees and agents (if Recipient is BMC) and to Authorized User(s) (if Recipient is the Customer)who have the need to know provided that such employees, agents and Authorized User(s) have legal obligations of confidentiality substantially the same (and in no case less protective) as the provisions of this Agreement. (c) Notification Obligation. If the Recipient becomes aware of any unauthorized use or disclosure of Discloser’s Confidential Information, then Recipient will promptly and fully notify the Discloser of all facts known to it concerning such unauthorized use or disclosure. In addition, if the Recipient or any of its employees or agents are required (by oral questions, interrogatories, requests for information, or documents in legal proceedings, subpoena, civil investigative demand, or other similar process) to disclose any of Discloser’s Confidential Information, the Recipient will not disclose the Discloser’s Confidential Information without providing the Discloser with commercially reasonable advance prior written notice to allow Discloser to seek a protective order or other appropriate remedy or to waive compliance with this provision. In any event, the Recipient will exercise its commercially reasonable efforts to preserve the confidentiality of the Discloser’s Confidential Information, including, without limitation, cooperating with Discloser to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded to the Confidential Information.
11. DISCLAIMER OF DAMAGES; LIMITS ON LIABILITY. EXCEPT FOR VIOLATIONS OF LICENSE RESTRICTIONS (Section 4), AND PROPRIETARY RIGHTS AND CONFIDENTIALITY (SECTION 10) AND FOR INFRINGEMENT CLAIMS (SECTION 13), GROSS NEGLIGENCE, WILLFUL MISCONDUCT, DEATH OR BODILY INJURY, ACTS OF FRAUD AND ANY LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED BY LAW, NEITHER PARTY, ITS AFFILIATES OR BMC’s LICENSORS (A) ARE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES RELATING TO OR ARISING OUT OF THIS AGREEMENT, SUPPORT, THE PRODUCT OR ANY THIRD PARTY CODE OR SOFTWARE PROVIDED WITH THE PRODUCT (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST COMPUTER USAGE TIME, AND DAMAGE TO, OR LOSS OF USE OF DATA), EVEN IF ADVISED OF THE OF THE POSSIBILITY OF SUCH DAMAGES, AND IRRESPECTIVE OF NEGLIGENCE OF A PARTY OR WHETHER SUCH DAMAGES RESULT FROM A CLAIM ARISING UNDER TORT OR CONTRACT LAW AND (B) LIABILITY IN ANY EVENT SHALL NOT EXCEED THE AMOUNT PAID AND PAYABLE BY CUSTOMER FOR THE LICENSE TO THE APPLICABLE PRODUCT GIVING RISE TO SUCH DAMAGES.
12. TRIAL LICENSE. BMC may determine, in its sole discretion, to make products available to Customer without an Order and without charge. Such products are deemed to be “Products” pursuant to this Agreement except that (a) they are provided to Customer solely so that Customer may evaluate internally whether to acquire a license to the products for a fee, (b) the license term for such products is 30 days; (c) the Products are provided “AS IS” and without any warranty or support, and (d) the products cannot be put into productive use or included as part of Customer’s business processes in any manner, unless or until they are expressly licensed and paid for under an Order. BMC may terminate all of Customer’s rights and licenses to these Products for BMC’s convenience upon notice to Customer.
13. INFRINGEMENT CLAIMS. If a third party asserts a claim against Customer asserting that Customer’s use of a Product in accordance with this Agreement violates that third-party’s patent, trade secret or copyright rights (“Infringement Claim”), then BMC will, at its own expense: (a) defend or settle the Infringement Claim; and (b) indemnify Customer for any damages finally awarded against Customer based on infringement by the Product. BMC’s obligations under this Section will not apply if: (a) BMC’s legal department does not receive prompt, detailed written notice of the Infringement Claim from Customer, (b) BMC is not able to retain sole control of the defense of the Infringement Claim and all negotiations for its settlement or compromise, (c) BMC does not receive all reasonable assistance, or (d) the Infringement Claim is based on (i) the use of Product in combination with products not approved by BMC in the Product's Documentation, (ii) the failure of Customer to use any updates to such Product within a reasonable time after such updates are made available to Customer, or (iii) the failure of Customer to use the Product as permitted by the Order and in accordance with the Documentation. BMC will not bind Customer to a monetary obligation in a settlement or compromise, or make an admission on behalf of Customer, without obtaining Customer’s prior consent. If BMC determines in BMC’s reasonable discretion that use of the Product should be stopped because of an Infringement Claim or potential Infringement Claim, if a court of competent jurisdiction enjoins Customer from using a Product as a result of an Infringement Claim and BMC is unable to have such injunction stayed or overturned, or if BMC settles an Infringement Claim on terms that would require Customer to stop using the Product, then BMC will, at its expense and election: (a) modify or replace the Product, (b) procure the right to continue using the Product, or (c) if in BMC’s reasonable judgment, neither (a) or (b) is commercially reasonable, terminate Customer's License to the Product and (i) for any perpetual licenses, issue a refund based upon the applicable license fees paid, prorated over 48 months from the date of the Order under which the Products were initially licensed; and (ii) for any non-perpetual licenses, release Customer from its obligation to make future payments for the Product or issue a pro rata refund for any fees paid in advance. This Section contains Customer's exclusive remedies and BMC's sole liability for Infringement Claims.
14. TERMINATION. Upon thirty days advance written notice, either party may terminate this Agreement for its convenience on a prospective basis; however, such termination will have no effect on Orders placed prior to its effective date and such Orders will remain in full force and effect under the terms of this Agreement. Either party may terminate this Agreement and/or an Order for cause on 30 days’ written notice for material breach if the other party fails to cure the breach within 30-day-notice period. Upon any termination of a License, Customer will immediately uninstall and stop using the relevant Product, and upon BMC's request, Customer will immediately return such Product to BMC, together with all related Documentation and copies, or certify its destruction in writing. Any terms in this Agreement which by their nature extend beyond termination of this Agreement will remain in effect until fulfilled.
15. AUDIT. If requested by BMC, and not more than once a year, Customer agrees to deliver to BMC, within 30 days of such request, as specified by BMC either (a) periodic product usage reports generated from specific products or (b) written periodic product usage reports, to be provided solely when the product does not generate reports (“Report”). Additionally, if requested by BMC not more than once a year and upon at least 10 (ten) days prior written notice to Customer, Customer agrees to allow BMC to perform an audit (“Audit”) to ensure compliance with the terms of this Agreement at the locations where the Products are installed, during normal business hours.. Customer agrees to cooperate during any such Audit and to provide reasonable access to its information and systems.
16. EXPORT CONTROLS. Both parties agree to comply with applicable export regulations, including but not limited to U.S. Export Administration Regulations and the OFAC embargoes and sanctions lists. More information on BMC’s export compliance program may be found here: https://www.bmc.com/legal/export-compliance.html.
17. GOVERNING LAW AND DISPUTE RESOLUTION. Any controversy, dispute or claim arising out of or relating to this Agreement, or to the formation, interpretation, breach, termination, or validity thereof (each, a “Controversy”) will be resolved as follows:
(i) UNITED STATES. If both parties to this Agreement are entities incorporated under the law of any state in the United States, the Controversy shall be tried in either state or federal court located in Houston, Texas and the laws of the State of Texas shall govern. Both parties hereby submit to the exclusive jurisdiction of the courts in Houston, Texas and waive all defenses based on forum non conveniens. Notwithstanding the foregoing, if Customer is a state or local governmental entity or higher education institution and legally required to apply state law, then Customer’s state law will apply to the Controversy, without reference to conflict of law principles.
(ii) CANADA. If Customer is located in Canada (outside Quebec), then the law of the Province of Ontario law apply, without reference to conflict of law principles. If Customer is located in Quebec, then the laws of the Province Quebec will apply, without reference to conflict of law principles.
(iii) EMEA. If both parties to this Agreement are entities incorporated in countries in the Europe, Middle East, or Africa regions, the Controversy shall be tried in the District Court located in Amsterdam, the Netherlands and the substantive laws of the Netherlands shall govern. Both parties hereby submit to the exclusive jurisdiction of the District Court in Amsterdam, the Netherlands and waive all defenses based on forum non conveniens.
(iv) ASIA PACIFIC. If both parties to this Agreement are entities incorporated in countries in the Asia Pacific region, the arbitration shall be held in Singapore under the then-applicable rules of the Singapore International Arbitration Centre and the substantive laws of Singapore will govern.
(v) OTHER REGIONS. In all other instances, the arbitration shall be held in New York City, New York, under the then-applicable international rules of the American Arbitration Association and the substantive laws of the State of Texas will govern.
For all arbitrations conducted hereunder: (a) the arbitration shall be conducted in English; (b) the relevant arbitral institution shall determine the number of arbitrators, but any Controversy in which the amount in dispute is greater than $10 million USD shall be decided by three arbitrators, with each party having the right to select one arbitrator; (c) the costs of such arbitration shall be borne equally, pending the arbitrator’s award; (d) the arbitration award rendered shall be final and binding on the parties, shall not be subject to appeal to any court and shall be enforceable in any court having jurisdiction over the parties; (e) the arbitration proceedings, award and pleadings shall all be confidential, unless disclosure of particular information is required for purposes of enforcing/challenging the award or to meet local securities law requirements; and (f) the party prevailing in arbitration shall be entitled to recover its reasonable attorneys’ fees and the necessary costs incurred in connection with the arbitration.
The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. Nothing in this Agreement shall be deemed as preventing either party from seeking immediate injunctive relief from any court having jurisdiction over the parties and the subject matter of the dispute.
18. BMC ENTITIES. The following licensing entities apply to this Agreement:
Region | Licensing Entity | Address of Licensing Entity |
---|---|---|
United States and Latin America South (not a specified Central or South America country below) | BMC Software, Inc. | 2103 CityWest Boulevard, Houston, Texas 77042 |
Canada | BMC Software Canada Inc. | 50 Minthorn Boulevard, Suite 200, Markham, Ontario L3T 7X8 Canada |
EMEA (Europe, Middle East and Africa) | BMC Software Distribution B.V. | Vision Plaza West, 2nd floor, Boeingavenue 220, 1119PN Schiphol-Rijk, The Netherlands |
Brazil | BMC Software do Brasil Ltda. | Avenida Dra. Ruth Cardoso, n° 8.501, Condomínio Eldorado Business Tower, 22° andar, Pinheiros, São Paulo – SP, CEP: 05425-070 |
Mexico | BMC Software Distribution de México, S.A. de C.V. | Torre Esmeralda II Blvd. Manuel Avila, Camacho #36, Piso 23 Col. Lomas de Chapultepec, CP11000, Mexico City, México D.F. |
Argentina | BMC Software de Argentina S.A. | Ing. Butty 220 - Piso 18, Catalinas Plaza Buenos Aires, República de Argentina, C1001A |
S.E.A (Southeast Asia), Australia, New Zealand, Hong Kong, Taiwan | BMC Software Ireland Limited | Building 3, Cherrywood Business Park, Bray Road, Loughlinstown, CO. Dublin, D18 TF72 |
China | BMC Software (China) Limited | Room 502, Level 5, Tower W1, The Towers, Oriental Plaza, No. 1 East Chang An Ave., Dong Cheng Dist., Beijing 100738, China |
Japan | BMC Software K.K. | Harmony Tower 24th Floor, 1-32-2 Honcho, Nakano-ku, Tokyo, 164-8721 |
Korea | BMC Software Korea Ltd | 24th Fl., ASEM Tower, 1517, Yeongdong-daero,Gangnam-gu, Seoul 135-798, Korea South |
19. ASSIGNMENT AND TRANSFERS. Customer has the right to assign this Agreement or a License in whole to an Affiliate, or to a successor in connection with (i) the sale of all or substantially all of the assets of that party or (ii) a merger by operation of law by providing written notice to BMC. The assignee may not be a known direct competitor of BMC. The successor or Affiliate must agree in writing with BMC (in advance of the assignment) to be bound by the terms of this Agreement. Any Customer transfer or assignment except as expressly authorized above will be null and void.
20. DATA PROTECTION. The processing of personal data under this Agreement is governed by the Data Processing Agreement set forth on the Order, unless BMC already has a signed Data Processing Agreement with Customer for such BMC offerings; in which case, the signed version governs the processing of personal data. In the event there is no signed Data Processing Agreement or no reference to the applicable Data Processing Agreement in the Order, BMC and Customer agree that the Data Processing Agreement applicable on the date of the Order, a copy of which may be viewed at https://www.bmc.com/content/dam/bmc/corporate/bmcdpa.pdf, applies to the BMC offerings under this Agreement.
21. NOTICES. Any demand, notice, consent, or other communication required by this Agreement must be given in writing and shall be deemed delivered upon receipt when delivered personally or upon confirmation of receipt following delivery by internationally recognized overnight courier service to the addresses specified on the applicable Order.
22. CONDUCTING BUSINESS WITH HONEST AND INTEGRITY. BMC is committed to conducting business with honesty and integrity. BMC’s Code of Conduct set forth in https://www.bmc.com/content/dam/bmc/corporate/Code%2Bof%2BConduct(English).pdf governs the conduct of all officers, directors, and employees of BMC. BMC’s Third-Party Code of Conduct set forth in https://www.bmc.com/content/dam/bmc/corporate/Third+Party+Code+of+Conduct.pdf governs the conduct of contingent workers and business partners acting on BMC’s behalf. BMC demonstrates its commitment to environmental stewardship by its global accreditation for ISO 14001:2015.
23. MISCELLANEOUS TERMS. A waiver by a party of any breach of any term of this Agreement will not be construed as a waiver of any continuing or succeeding breach. Should any term of this Agreement be invalid or unenforceable, the remaining terms will remain in effect. The parties acknowledge they have read this Agreement and agree that it is the complete and exclusive statement of the agreement and supersedes any prior or contemporaneous negotiations or agreements between the parties relating to the subject matter of this Agreement. There are no representations, promises, warranties, covenants, or undertakings between the parties other than those expressly set forth in this Agreement. This Agreement may not be modified or rescinded except in writing signed by both parties. Any delay or failure of any party to perform any obligation under this Agreement caused by governmental restrictions, labor disputes, storms or natural disasters, emergency, or other causes beyond the reasonable control of the party, will not be deemed a breach of this Agreement; provided, however, this provision does not apply to the payment of monies or any breach of Section 10. Customer agrees that BMC and its affiliates may refer to Customer as a customer of BMC, both internally and in externally published media. The BMC Products may contain third party software which is delivered to Customer as part of the Product and may not be taken out of the Product or used separately from the Product and for which additional terms may be included in the Documentation. The Product may contain hyperlinks to websites controlled by parties other than BMC. BMC is not responsible for and does not endorse the content or accept any responsibility for Customer’s use of these websites. Customer should refer to the policies posted by other websites regarding data privacy and other topics before using them. Any additional documents presented to a BMC representative by Customer for signature as a condition for going on a Customer’s site will be governed by this Agreement and to the extent that such document presents additional terms or conflicts with this Agreement, it shall be considered null and void. Les parties exigent que la présente convention ainsi que les documents qui s’y rattachent soient rédigés en anglais.
24. U.S. GOVERNMENT END USER RIGHTS. This Section applies only to acquisitions of the commercial Product and Documentation subject to this Agreement by or on behalf of the United States Government, or by any prime contractor or subcontractor (at any tier) under any contract, grant, agreement or other activity with the United States Government. When Products are delivered or provided to the United States Government, the United States Government agrees that this commercial license Agreement and the Products governed by this Agreement are defined in accordance with and qualify as “commercial items” consisting of “commercial computer software” and “commercial computer software documentation” as outlined in FAR 12.211, FAR 12.212 and DFARS 227.202-3, as applicable. The terms and conditions of this Agreement shall pertain to the United States Government’s use (including documentation or technical data), duplication, and disclosure of the Product, and shall supersede any conflicting contractual terms and conditions.
YOU AGREE THAT YOU HAVE READ THIS AGREEMENT AND INTEND TO BE BOUND, AS IF YOU HAD SIGNED THIS AGREEMENT IN WRITING. IF YOU ARE ACTING ON BEHALF OF AN ENTITY, YOU WARRANT THAT YOU HAVE THE AUTHORITY TO ACCEPT THE TERMS OF THIS AGREEMENT FOR SUCH ENTITY.
Effective September 9th 2020 to September 9th 2020
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END USER LICENSE AGREEMENT
BY OPENING THE PACKAGE, DOWNLOADING OR INSTALLING, PRESSING “AGREE” OR “YES” OR USING THE PRODUCT, THE ENTITY OR INDIVIDUAL ENTERING INTO THIS AGREEMENT AGREES TO BE BOUND BY THE FOLLOWING TERMS. IF YOU DO NOT AGREE WITH ANY OF THESE TERMS, DO NOT INSTALL OR USE THE PRODUCT, PROMPTLY RETURN THE PRODUCT TO BMC OR YOUR BMC RESELLER. IF YOU REJECT THIS AGREEMENT, YOU WILL NOT ACQUIRE ANY LICENSE TO USE THE PRODUCT.
This Agreement ("Agreement") is between the entity or individual entering into this Agreement (“Customer”) and the BMC Entity for the applicable Region where Customer acquired the License as described in Section 18 (“BMC”). This Agreement was last updated on August 27, 2020. For Customer’s convenience, prior versions of this Agreement are available at https://www.bmc.com/legal/end-user-license-agreements.html.
1. GENERAL DEFINITIONS.
“Affiliate” is an entity that controls, is controlled by or shares common control with BMC or Customer, where such control arises from the legal power to direct or cause the direction of the general management and policies of the company, partnership or legal entity.
“Authorized User” means Customer, Customer Affiliate(s), and their employees, consultants, contractors and agents that are bound by the terms and conditions no less restrictive than those contained herein and for whom Customer takes full responsibility. Authorized Users do not include service providers or outsourcers.
"Documentation" means the technical publications relating to the software, such as release notes, license entitlement descriptions, reference, user, installation, systems administrator and technical guidelines, included with the Product.
“Licensed Capacity” is the amount of each Product licensed as established in the Order. Any Units of Measure and License Restrictions related to the Licensed Capacity will be set forth in the Order.
“Order” is an agreed written or electronic document, subject to the terms of this Agreement that identifies the Products to be licensed and the Licensed Capacity and/or the Support to be purchased and the fees to be paid.
“Product” is the object code of the software and all accompanying Documentation delivered to Customer, including all items delivered by BMC to Customer under Support.
“Support” is the support services program as further specified in this Agreement.
“Territory” means the country(ies) where Customer is licensed to install the Product as specified in the Order.
2. SCOPE. Licenses are granted, and Support is obtained, solely by execution of Orders. Each Order is deemed to be a discrete contract, separate from each other Order, unless expressly stated otherwise therein, and in the event of a direct conflict between any Order and the terms of this Agreement, the terms of the Order will control only if the Order is agreed to by each party. Neither execution of this Agreement, nor anything contained herein, shall obligate either party to enter into any Orders. In the event an Order is proposed by BMC and is deemed to constitute an offer, then acceptance of such offer is limited to its terms. In the event Customer proposes an Order by submitting a purchase order, then regardless of whether BMC acknowledges, accepts or fully or partially performs under such purchase order, BMC OBJECTS to any additional or different terms in the purchase order.
3. LICENSE. Subject to the terms, conditions, payment requirements and restrictions set forth in this Agreement, BMC grants Customer a non-exclusive, non-transferable, non-sub-licensable perpetual (unless a non-perpetual license is provided on an Order) license to install in the Territory, access and use the Product (i) by Authorized User(s), (ii) up to the Licensed Capacity, (iii) for Customer’s and its Affiliates internal business operations, (iv) in accordance with the Documentation and the applicable Order, and (v) make a reasonable number of copies of the Product and the Documentation for archival purposes only (collectively a "License"). Affiliates may use and access the Products and Support under the terms of this Agreement, and Customer is responsible for its Affiliates compliance with the terms of this Agreement.
4. RESTRICTIONS. Customer will not: (a) copy, operate or use any Product in excess of the applicable Licensed Capacity or other than as set forth in the License above; (b) modify, delete or remove any ownership, title, trademark, patent or copyright notices from any Product, or copy or partial copy of a Product; (c) disassemble, reverse engineer, decompile or otherwise attempt to derive any Product source code from object code, except to the extent expressly permitted by applicable law despite this limitation without possibility of contractual waiver; (d) distribute, rent, lease, sublicense or provide the Product to any third party; (e) use the Products in an outsourcing or service bureau environment on behalf of non-Affiliate third parties, or allow the products to be used by an outsourcing or service bureau provider on Customer’s behalf (without obtaining prior written approval from BMC); (f) provide a third party with the results of any functional evaluation, or performance tests, without BMC's prior written approval; or (g) attempt to disable or circumvent any of the licensing mechanisms within the Product.
5. PRODUCT PERFORMANCE WARRANTY. BMC warrants that (a) the Product will perform in substantial accordance with its Documentation for a period of one year from the date of the first Order, (b) BMC has used commercially reasonable efforts consistent with industry standards to scan for and remove software viruses, and (c) other than passwords that may be required for the operation of the Product, BMC has not inserted any code that is not addressed in the Documentation and that is designed to delete, interfere with or disable the normal operation of the Product in accordance with the License. This warranty will not apply to any problems caused by hardware, Computers, or software other than the Product, or misuse of the Product, use of the Product other than as provided by the applicable License, modification of the Product, or claims made either outside the warranty period or not in compliance with the notice and access requirements set forth below. No warranty is provided for additional Licensed Capacity, Product provided pursuant to Support or Product provided pursuant to Section 12.
6. LIMITED REMEDIES. BMC’s entire liability, and Customer’s exclusive remedy, for breach of the above warranty is limited to: BMC’s use of commercially reasonable efforts to have the Product perform in substantial accordance with its Documentation, or replacement of the non-conforming Product within a reasonable period of time, or if BMC cannot have the Product perform in substantial accordance with its Documentation replace the Product within such time period, then BMC will refund the amount paid by Customer for the License for that Product. Customer’s rights and BMC's obligations in this Section are conditioned upon Customer’s providing BMC during the warranty period (a) full cooperation and access to the Product in resolving any claim; and (b) written notice addressed to the BMC Legal Department that includes notice of the claim, a complete description of the alleged defects sufficient to permit their reproduction in BMC’s development or support environment, and a specific reference to the Documentation to which such alleged defects are contrary.
7. DISCLAIMER OF WARRANTIES. EXCEPT FOR THE EXPRESS WARRANTIES IN THIS AGREEMENT, THE PRODUCT IS PROVIDED WITH NO OTHER WARRANTIES WHATSOEVER, AND BMC, ITS AFFILIATES AND LICENSORS DISCLAIM ALL OTHER WARRANTIES, INCLUDING, FITNESS FOR A PARTICULAR PURPOSE AND IN THE UNITED STATES AND CANADA, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, AND NON-INFRINGEMENT. BMC DOES NOT WARRANT THAT THE OPERATION OF THE PRODUCT WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT ALL DEFECTS CAN BE CORRECTED.
8. SUPPORT. Customer may acquire BMC support services (“Support”) on an Order for the total Licensed Capacity of a Product. BMC will notify Customer that it is time to renew Support at least 60 days prior to the end of any prepaid Support period. Customer will provide notice to BMC if it does not intend to renew Support. The annual fee for Support will be agreed upon at the time of each Order. A further description of Support is located at www.bmc.com/support/review-policies, and is incorporated herein by this reference. BMC may change its Support terms to be effective at the end of any prepaid Support period. BMC reserves the right to discontinue Support for a Product where BMC generally discontinues such services to all licensees of that Product. If Customer stops being enrolled in Support and then re-enrolls in Support, BMC may charge Customer a reinstatement fee.
9. PAYMENT, DELIVERY AND TAXES. Customer will pay each License fee and/or Support fee within 30 days of the date of the invoice. Customer will pay taxes imposed in connection with the fees paid for the License and/or Support, which are exclusive of these taxes. For Products that are delivered electronically, upon request from BMC, Customer agrees to provide BMC with documentation supporting that the designated Product was received electronically. If Customer accepts any Product in a non-electronic format, there may be an additional charge and it is the sole responsibility of Customer to bear any sales/use tax obligation, penalties, and interest. Late balances may, at BMC’s sole election, bear interest at a rate equal to the lesser of 1% per month or the maximum amount permitted by law. All Products are licensed FCA (“Free Carrier” as per Incoterms 2000) shipping point. The Products are accepted on the date BMC delivers the Product to the Customer either physically or by providing access codes for electronic download, whichever occurs first, however, such acceptance will not affect the Product Performance Warranty provided in this Agreement. With regard to Products acquired by Customer through an authorized reseller ("Solution Provider") of BMC, notwithstanding anything to the contrary herein, Customer will have no direct payment obligations to BMC for such fees.
10. PROPRIETARY RIGHTS AND CONFIDENTIALITY. (a) BMC, its Affiliates or licensors retain all right, title and interest to the Product, Support and all related intellectual property and proprietary rights. The Product and all third party software provided with the Product are protected by applicable copyright, trade secret, industrial and other intellectual property laws. BMC reserves any rights not expressly granted to Customer in this Agreement. (b) “Confidential Information” means all proprietary or confidential information that is disclosed to the recipient (“Recipient”) by the discloser (“Discloser”), and includes, among other things (i) any and all information relating Discloser financial information, customers, employees, products or services, including, without limitation, software code, flow charts, techniques, specifications, development and marketing plans, strategies, forecasts, and proposal related documents and responses; (ii) as to BMC, and its licensors, the Product (excluding portions of the Documentation that BMC makes publicly available) and any third party software provided with the Product; and (iii) the terms of this Agreement, including without limitation, Product pricing information. Confidential Information does not include information that Recipient can show: (a) was rightfully in Recipient’s possession without any obligation of confidentiality before receipt from the Discloser; (b) is or becomes a matter of public knowledge through no fault of Recipient; (c) is rightfully received by Recipient from a third party without violation of a duty of confidentiality; or (d) is independently developed by or for Recipient. Recipient may not disclose Confidential Information of Discloser to any third party or use the Confidential Information in violation of this Agreement. The Recipient (i) will exercise the same degree of care and protection with respect to the Confidential Information of the Discloser that it exercises with respect to its own Confidential Information and (ii) will not, either directly or indirectly, disclose, copy, distribute, republish, or allow any third party to have access to any Confidential Information of the Discloser. Notwithstanding the foregoing, Recipient may disclose Discloser’s Confidential Information to Recipient’s employees and agents (if Recipient is BMC) and to Authorized User(s) (if Recipient is the Customer)who have the need to know provided that such employees, agents and Authorized User(s) have legal obligations of confidentiality substantially the same (and in no case less protective) as the provisions of this Agreement. (c) Notification Obligation. If the Recipient becomes aware of any unauthorized use or disclosure of Discloser’s Confidential Information, then Recipient will promptly and fully notify the Discloser of all facts known to it concerning such unauthorized use or disclosure. In addition, if the Recipient or any of its employees or agents are required (by oral questions, interrogatories, requests for information, or documents in legal proceedings, subpoena, civil investigative demand, or other similar process) to disclose any of Discloser’s Confidential Information, the Recipient will not disclose the Discloser’s Confidential Information without providing the Discloser with commercially reasonable advance prior written notice to allow Discloser to seek a protective order or other appropriate remedy or to waive compliance with this provision. In any event, the Recipient will exercise its commercially reasonable efforts to preserve the confidentiality of the Discloser’s Confidential Information, including, without limitation, cooperating with Discloser to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded to the Confidential Information.
11. DISCLAIMER OF DAMAGES; LIMITS ON LIABILITY. EXCEPT FOR VIOLATIONS OF LICENSE RESTRICTIONS (Section 4), AND PROPRIETARY RIGHTS AND CONFIDENTIALITY (SECTION 10) AND FOR INFRINGEMENT CLAIMS (SECTION 13), GROSS NEGLIGENCE, WILLFUL MISCONDUCT, DEATH OR BODILY INJURY, ACTS OF FRAUD AND ANY LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED BY LAW, NEITHER PARTY, ITS AFFILIATES OR BMC’s LICENSORS (A) ARE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES RELATING TO OR ARISING OUT OF THIS AGREEMENT, SUPPORT, THE PRODUCT OR ANY THIRD PARTY CODE OR SOFTWARE PROVIDED WITH THE PRODUCT (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST COMPUTER USAGE TIME, AND DAMAGE TO, OR LOSS OF USE OF DATA), EVEN IF ADVISED OF THE OF THE POSSIBILITY OF SUCH DAMAGES, AND IRRESPECTIVE OF NEGLIGENCE OF A PARTY OR WHETHER SUCH DAMAGES RESULT FROM A CLAIM ARISING UNDER TORT OR CONTRACT LAW AND (B) LIABILITY IN ANY EVENT SHALL NOT EXCEED THE AMOUNT PAID AND PAYABLE BY CUSTOMER FOR THE LICENSE TO THE APPLICABLE PRODUCT GIVING RISE TO SUCH DAMAGES.
12. TRIAL LICENSE. BMC may determine, in its sole discretion, to make products available to Customer without an Order and without charge. Such products are deemed to be “Products” pursuant to this Agreement except that (a) they are provided to Customer solely so that Customer may evaluate internally whether to acquire a license to the products for a fee, (b) the license term for such products is 30 days; (c) the Products are provided “AS IS” and without any warranty or support, and (d) the products cannot be put into productive use or included as part of Customer’s business processes in any manner, unless or until they are expressly licensed and paid for under an Order. BMC may terminate all of Customer’s rights and licenses to these Products for BMC’s convenience upon notice to Customer.
13. INFRINGEMENT CLAIMS. If a third party asserts a claim against Customer asserting that Customer’s use of a Product in accordance with this Agreement violates that third-party’s patent, trade secret or copyright rights (“Infringement Claim”), then BMC will, at its own expense: (a) defend or settle the Infringement Claim; and (b) indemnify Customer for any damages finally awarded against Customer based on infringement by the Product. BMC’s obligations under this Section will not apply if: (a) BMC’s legal department does not receive prompt, detailed written notice of the Infringement Claim from Customer, (b) BMC is not able to retain sole control of the defense of the Infringement Claim and all negotiations for its settlement or compromise, (c) BMC does not receive all reasonable assistance, or (d) the Infringement Claim is based on (i) the use of Product in combination with products not approved by BMC in the Product's Documentation, (ii) the failure of Customer to use any updates to such Product within a reasonable time after such updates are made available to Customer, or (iii) the failure of Customer to use the Product as permitted by the Order and in accordance with the Documentation. BMC will not bind Customer to a monetary obligation in a settlement or compromise, or make an admission on behalf of Customer, without obtaining Customer’s prior consent. If BMC determines in BMC’s reasonable discretion that use of the Product should be stopped because of an Infringement Claim or potential Infringement Claim, if a court of competent jurisdiction enjoins Customer from using a Product as a result of an Infringement Claim and BMC is unable to have such injunction stayed or overturned, or if BMC settles an Infringement Claim on terms that would require Customer to stop using the Product, then BMC will, at its expense and election: (a) modify or replace the Product, (b) procure the right to continue using the Product, or (c) if in BMC’s reasonable judgment, neither (a) or (b) is commercially reasonable, terminate Customer's License to the Product and (i) for any perpetual licenses, issue a refund based upon the applicable license fees paid, prorated over 48 months from the date of the Order under which the Products were initially licensed; and (ii) for any non-perpetual licenses, release Customer from its obligation to make future payments for the Product or issue a pro rata refund for any fees paid in advance. This Section contains Customer's exclusive remedies and BMC's sole liability for Infringement Claims.
14. TERMINATION. Upon thirty days advance written notice, either party may terminate this Agreement for its convenience on a prospective basis; however, such termination will have no effect on Orders placed prior to its effective date and such Orders will remain in full force and effect under the terms of this Agreement. Either party may terminate this Agreement and/or an Order for cause on 30 days’ written notice for material breach if the other party fails to cure the breach within 30-day-notice period. Upon any termination of a License, Customer will immediately uninstall and stop using the relevant Product, and upon BMC's request, Customer will immediately return such Product to BMC, together with all related Documentation and copies, or certify its destruction in writing. Any terms in this Agreement which by their nature extend beyond termination of this Agreement will remain in effect until fulfilled.
15. AUDIT. If requested by BMC, and not more than once a year, Customer agrees to deliver to BMC, within 30 days of such request, as specified by BMC either (a) periodic product usage reports generated from specific products or (b) written periodic product usage reports, to be provided solely when the product does not generate reports (“Report”). Additionally, if requested by BMC not more than once a year and upon at least 10 (ten) days prior written notice to Customer, Customer agrees to allow BMC to perform an audit (“Audit”) to ensure compliance with the terms of this Agreement at the locations where the Products are installed, during normal business hours.. Customer agrees to cooperate during any such Audit and to provide reasonable access to its information and systems.
16. EXPORT CONTROLS. Both parties agree to comply with applicable export regulations, including but not limited to U.S. Export Administration Regulations and the OFAC embargoes and sanctions lists. More information on BMC’s export compliance program may be found here: https://www.bmc.com/legal/export-compliance.html.
17. GOVERNING LAW AND DISPUTE RESOLUTION. Any controversy, dispute or claim arising out of or relating to this Agreement, or to the formation, interpretation, breach, termination, or validity thereof (each, a “Controversy”) will be resolved as follows:
(i) UNITED STATES. If both parties to this Agreement are entities incorporated under the law of any state in the United States, the Controversy shall be tried in either state or federal court located in Houston, Texas and the laws of the State of Texas shall govern. Both parties hereby submit to the exclusive jurisdiction of the courts in Houston, Texas and waive all defenses based on forum non conveniens. Notwithstanding the foregoing, if Customer is a state or local governmental entity or higher education institution and legally required to apply state law, then Customer’s state law will apply to the Controversy, without reference to conflict of law principles.
(ii) CANADA. If Customer is located in Canada (outside Quebec), then the law of the Province of Ontario law apply, without reference to conflict of law principles. If Customer is located in Quebec, then the laws of the Province Quebec will apply, without reference to conflict of law principles.
(iii) EMEA. If both parties to this Agreement are entities incorporated in countries in the Europe, Middle East, or Africa regions, the Controversy shall be tried in the District Court located in Amsterdam, the Netherlands and the substantive laws of the Netherlands shall govern. Both parties hereby submit to the exclusive jurisdiction of the District Court in Amsterdam, the Netherlands and waive all defenses based on forum non conveniens.
(iv) ASIA PACIFIC. If both parties to this Agreement are entities incorporated in countries in the Asia Pacific region, the arbitration shall be held in Singapore under the then-applicable rules of the Singapore International Arbitration Centre and the substantive laws of Singapore will govern.
(v) OTHER REGIONS. In all other instances, the arbitration shall be held in New York City, New York, under the then-applicable international rules of the American Arbitration Association and the substantive laws of the State of Texas will govern.
For all arbitrations conducted hereunder: (a) the arbitration shall be conducted in English; (b) the relevant arbitral institution shall determine the number of arbitrators, but any Controversy in which the amount in dispute is greater than $10 million USD shall be decided by three arbitrators, with each party having the right to select one arbitrator; (c) the costs of such arbitration shall be borne equally, pending the arbitrator’s award; (d) the arbitration award rendered shall be final and binding on the parties, shall not be subject to appeal to any court and shall be enforceable in any court having jurisdiction over the parties; (e) the arbitration proceedings, award and pleadings shall all be confidential, unless disclosure of particular information is required for purposes of enforcing/challenging the award or to meet local securities law requirements; and (f) the party prevailing in arbitration shall be entitled to recover its reasonable attorneys’ fees and the necessary costs incurred in connection with the arbitration.
The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. Nothing in this Agreement shall be deemed as preventing either party from seeking immediate injunctive relief from any court having jurisdiction over the parties and the subject matter of the dispute.
18. BMC ENTITIES. The following licensing entities apply to this Agreement:
Region | Licensing Entity | Address of Licensing Entity |
---|---|---|
United States and Latin America South (not a specified Central or South America country below) | BMC Software, Inc. | 2103 CityWest Boulevard, Houston, Texas 77042 |
Canada | BMC Software Canada Inc. | 50 Minthorn Boulevard, Suite 200, Markham, Ontario L3T 7X8 Canada |
EMEA (Europe, Middle East and Africa) | BMC Software Distribution B.V. | Vision Plaza West, 2nd floor, Boeingavenue 220, 1119PN Schiphol-Rijk, The Netherlands |
Brazil | BMC Software do Brasil Ltda. | Avenida Dra. Ruth Cardoso, n° 8.501, Condomínio Eldorado Business Tower, 22° andar, Pinheiros, São Paulo – SP, CEP: 05425-070 |
Mexico | BMC Software Distribution de México, S.A. de C.V. | Torre Esmeralda II Blvd. Manuel Avila, Camacho #36, Piso 23 Col. Lomas de Chapultepec, CP11000, Mexico City, México D.F. |
Argentina | BMC Software de Argentina S.A. | Ing. Butty 220 - Piso 18, Catalinas Plaza Buenos Aires, República de Argentina, C1001A |
S.E.A (Southeast Asia), Australia, New Zealand, Hong Kong, Taiwan | BMC Software Ireland Limited | Building 3, Cherrywood Business Park, Bray Road, Loughlinstown, CO. Dublin, D18 TF72 |
China | BMC Software (China) Limited | Room 502, Level 5, Tower W1, The Towers, Oriental Plaza, No. 1 East Chang An Ave., Dong Cheng Dist., Beijing 100738, China |
Japan | BMC Software K.K. | Harmony Tower 24th Floor, 1-32-2 Honcho, Nakano-ku, Tokyo, 164-8721 |
Korea | BMC Software Korea Ltd | 24th Fl., ASEM Tower, 1517, Yeongdong-daero,Gangnam-gu, Seoul 135-798, Korea South |
19. ASSIGNMENT AND TRANSFERS. Customer has the right to assign this Agreement or a License in whole to an Affiliate, or to a successor in connection with (i) the sale of all or substantially all of the assets of that party or (ii) a merger by operation of law by providing written notice to BMC. The assignee may not be a known direct competitor of BMC. The successor or Affiliate must agree in writing with BMC (in advance of the assignment) to be bound by the terms of this Agreement. Any Customer transfer or assignment except as expressly authorized above will be null and void.
20. DATA PROTECTION. The processing of personal data under this Agreement is governed by the Data Processing Agreement set forth on the Order, unless BMC already has a signed Data Processing Agreement with Customer for such BMC offerings; in which case, the signed version governs the processing of personal data. In the event there is no signed Data Processing Agreement or no reference to the applicable Data Processing Agreement in the Order, BMC and Customer agree that the Data Processing Agreement applicable on the date of the Order, a copy of which may be viewed at https://www.bmc.com/content/dam/bmc/corporate/bmcdpa.pdf, applies to the BMC offerings under this Agreement.
21. NOTICES. Any demand, notice, consent, or other communication required by this Agreement must be given in writing and shall be deemed delivered upon receipt when delivered personally or upon confirmation of receipt following delivery by internationally recognized overnight courier service to the addresses specified on the applicable Order.
22. CONDUCTING BUSINESS WITH HONEST AND INTEGRITY. BMC is committed to conducting business with honesty and integrity. BMC’s Code of Conduct set forth in https://www.bmc.com/content/dam/bmc/corporate/Code%2Bof%2BConduct(English).pdf governs the conduct of all officers, directors, and employees of BMC. BMC’s Third-Party Code of Conduct set forth in https://www.bmc.com/content/dam/bmc/corporate/Third+Party+Code+of+Conduct.pdf governs the conduct of contingent workers and business partners acting on BMC’s behalf. BMC demonstrates its commitment to environmental stewardship by its global accreditation for ISO 14001:2015.
23. MISCELLANEOUS TERMS. A waiver by a party of any breach of any term of this Agreement will not be construed as a waiver of any continuing or succeeding breach. Should any term of this Agreement be invalid or unenforceable, the remaining terms will remain in effect. The parties acknowledge they have read this Agreement and agree that it is the complete and exclusive statement of the agreement and supersedes any prior or contemporaneous negotiations or agreements between the parties relating to the subject matter of this Agreement. There are no representations, promises, warranties, covenants, or undertakings between the parties other than those expressly set forth in this Agreement. This Agreement may not be modified or rescinded except in writing signed by both parties. Any delay or failure of any party to perform any obligation under this Agreement caused by governmental restrictions, labor disputes, storms or natural disasters, emergency, or other causes beyond the reasonable control of the party, will not be deemed a breach of this Agreement; provided, however, this provision does not apply to the payment of monies or any breach of Section 10. Customer agrees that BMC and its affiliates may refer to Customer as a customer of BMC, both internally and in externally published media. The BMC Products may contain third party software which is delivered to Customer as part of the Product and may not be taken out of the Product or used separately from the Product and for which additional terms may be included in the Documentation. The Product may contain hyperlinks to websites controlled by parties other than BMC. BMC is not responsible for and does not endorse the content or accept any responsibility for Customer’s use of these websites. Customer should refer to the policies posted by other websites regarding data privacy and other topics before using them. Any additional documents presented to a BMC representative by Customer for signature as a condition for going on a Customer’s site will be governed by this Agreement and to the extent that such document presents additional terms or conflicts with this Agreement, it shall be considered null and void. Les parties exigent que la présente convention ainsi que les documents qui s’y rattachent soient rédigés en anglais.
24. U.S. GOVERNMENT END USER RIGHTS. This Section applies only to acquisitions of the commercial Product and Documentation subject to this Agreement by or on behalf of the United States Government, or by any prime contractor or subcontractor (at any tier) under any contract, grant, agreement or other activity with the United States Government. When Products are delivered or provided to the United States Government, the United States Government agrees that this commercial license Agreement and the Products governed by this Agreement are defined in accordance with and qualify as “commercial items” consisting of “commercial computer software” and “commercial computer software documentation” as outlined in FAR 12.211, FAR 12.212 and DFARS 227.202-3, as applicable. The terms and conditions of this Agreement shall pertain to the United States Government’s use (including documentation or technical data), duplication, and disclosure of the Product, and shall supersede any conflicting contractual terms and conditions.
YOU AGREE THAT YOU HAVE READ THIS AGREEMENT AND INTEND TO BE BOUND, AS IF YOU HAD SIGNED THIS AGREEMENT IN WRITING. IF YOU ARE ACTING ON BEHALF OF AN ENTITY, YOU WARRANT THAT YOU HAVE THE AUTHORITY TO ACCEPT THE TERMS OF THIS AGREEMENT FOR SUCH ENTITY.
Effective August 27th 2020 to September 9th 2020
DownloadTable of Contents
END USER LICENSE AGREEMENT
BY OPENING THE PACKAGE, DOWNLOADING OR INSTALLING, PRESSING “AGREE” OR “YES” OR USING THE PRODUCT, THE ENTITY OR INDIVIDUAL ENTERING INTO THIS AGREEMENT AGREES TO BE BOUND BY THE FOLLOWING TERMS. IF YOU DO NOT AGREE WITH ANY OF THESE TERMS, DO NOT INSTALL OR USE THE PRODUCT, PROMPTLY RETURN THE PRODUCT TO BMC OR YOUR BMC RESELLER. IF YOU REJECT THIS AGREEMENT, YOU WILL NOT ACQUIRE ANY LICENSE TO USE THE PRODUCT.
This Agreement ("Agreement") is between the entity or individual entering into this Agreement (“Customer”) and the BMC Entity for the applicable Region where Customer acquired the License as described in Section 18 (“BMC”). This Agreement was last updated on August 27, 2020. For Customer’s convenience, prior versions of this Agreement are available at https://www.bmc.com/legal/end-user-license-agreements.html.
1. GENERAL DEFINITIONS.
“Affiliate” is an entity that controls, is controlled by or shares common control with BMC or Customer, where such control arises from the legal power to direct or cause the direction of the general management and policies of the company, partnership or legal entity.
“Authorized User” means Customer, Customer Affiliate(s), and their employees, consultants, contractors and agents that are bound by the terms and conditions no less restrictive than those contained herein and for whom Customer takes full responsibility. Authorized Users do not include service providers or outsourcers.
"Documentation" means the technical publications relating to the software, such as release notes, license entitlement descriptions, reference, user, installation, systems administrator and technical guidelines, included with the Product.
“Licensed Capacity” is the amount of each Product licensed as established in the Order. Any Units of Measure and License Restrictions related to the Licensed Capacity will be set forth in the Order.
“Order” is an agreed written or electronic document, subject to the terms of this Agreement that identifies the Products to be licensed and the Licensed Capacity and/or the Support to be purchased and the fees to be paid.
“Product” is the object code of the software and all accompanying Documentation delivered to Customer, including all items delivered by BMC to Customer under Support.
“Support” is the support services program as further specified in this Agreement.
“Territory” means the country(ies) where Customer is licensed to install the Product as specified in the Order.
2. SCOPE. Licenses are granted, and Support is obtained, solely by execution of Orders. Each Order is deemed to be a discrete contract, separate from each other Order, unless expressly stated otherwise therein, and in the event of a direct conflict between any Order and the terms of this Agreement, the terms of the Order will control only if the Order is agreed to by each party. Neither execution of this Agreement, nor anything contained herein, shall obligate either party to enter into any Orders. In the event an Order is proposed by BMC and is deemed to constitute an offer, then acceptance of such offer is limited to its terms. In the event Customer proposes an Order by submitting a purchase order, then regardless of whether BMC acknowledges, accepts or fully or partially performs under such purchase order, BMC OBJECTS to any additional or different terms in the purchase order.
3. LICENSE. Subject to the terms, conditions, payment requirements and restrictions set forth in this Agreement, BMC grants Customer a non-exclusive, non-transferable, non-sub-licensable perpetual (unless a non-perpetual license is provided on an Order) license to install in the Territory, access and use the Product (i) by Authorized User(s), (ii) up to the Licensed Capacity, (iii) for Customer’s and its Affiliates internal business operations, (iv) in accordance with the Documentation and the applicable Order, and (v) make a reasonable number of copies of the Product and the Documentation for archival purposes only (collectively a "License"). Affiliates may use and access the Products and Support under the terms of this Agreement, and Customer is responsible for its Affiliates compliance with the terms of this Agreement.
4. RESTRICTIONS. Customer will not: (a) copy, operate or use any Product in excess of the applicable Licensed Capacity or other than as set forth in the License above; (b) modify, delete or remove any ownership, title, trademark, patent or copyright notices from any Product, or copy or partial copy of a Product; (c) disassemble, reverse engineer, decompile or otherwise attempt to derive any Product source code from object code, except to the extent expressly permitted by applicable law despite this limitation without possibility of contractual waiver; (d) distribute, rent, lease, sublicense or provide the Product to any third party; (e) use the Products in an outsourcing or service bureau environment on behalf of non-Affiliate third parties, or allow the products to be used by an outsourcing or service bureau provider on Customer’s behalf (without obtaining prior written approval from BMC); (f) provide a third party with the results of any functional evaluation, or performance tests, without BMC's prior written approval; or (g) attempt to disable or circumvent any of the licensing mechanisms within the Product.
5. PRODUCT PERFORMANCE WARRANTY. BMC warrants that (a) the Product will perform in substantial accordance with its Documentation for a period of one year from the date of the first Order, (b) BMC has used commercially reasonable efforts consistent with industry standards to scan for and remove software viruses, and (c) other than passwords that may be required for the operation of the Product, BMC has not inserted any code that is not addressed in the Documentation and that is designed to delete, interfere with or disable the normal operation of the Product in accordance with the License. This warranty will not apply to any problems caused by hardware, Computers, or software other than the Product, or misuse of the Product, use of the Product other than as provided by the applicable License, modification of the Product, or claims made either outside the warranty period or not in compliance with the notice and access requirements set forth below. No warranty is provided for additional Licensed Capacity, Product provided pursuant to Support or Product provided pursuant to Section 12.
6. LIMITED REMEDIES. BMC’s entire liability, and Customer’s exclusive remedy, for breach of the above warranty is limited to: BMC’s use of commercially reasonable efforts to have the Product perform in substantial accordance with its Documentation, or replacement of the non-conforming Product within a reasonable period of time, or if BMC cannot have the Product perform in substantial accordance with its Documentation replace the Product within such time period, then BMC will refund the amount paid by Customer for the License for that Product. Customer’s rights and BMC's obligations in this Section are conditioned upon Customer’s providing BMC during the warranty period (a) full cooperation and access to the Product in resolving any claim; and (b) written notice addressed to the BMC Legal Department that includes notice of the claim, a complete description of the alleged defects sufficient to permit their reproduction in BMC’s development or support environment, and a specific reference to the Documentation to which such alleged defects are contrary.
7. DISCLAIMER OF WARRANTIES. EXCEPT FOR THE EXPRESS WARRANTIES IN THIS AGREEMENT, THE PRODUCT IS PROVIDED WITH NO OTHER WARRANTIES WHATSOEVER, AND BMC, ITS AFFILIATES AND LICENSORS DISCLAIM ALL OTHER WARRANTIES, INCLUDING, FITNESS FOR A PARTICULAR PURPOSE AND IN THE UNITED STATES AND CANADA, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, AND NON-INFRINGEMENT. BMC DOES NOT WARRANT THAT THE OPERATION OF THE PRODUCT WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT ALL DEFECTS CAN BE CORRECTED.
8. SUPPORT. Customer may acquire BMC support services (“Support”) on an Order for the total Licensed Capacity of a Product. BMC will notify Customer that it is time to renew Support at least 60 days prior to the end of any prepaid Support period. Customer will provide notice to BMC if it does not intend to renew Support. The annual fee for Support will be agreed upon at the time of each Order. A further description of Support is located at www.bmc.com/support/review-policies, and is incorporated herein by this reference. BMC may change its Support terms to be effective at the end of any prepaid Support period. BMC reserves the right to discontinue Support for a Product where BMC generally discontinues such services to all licensees of that Product. If Customer stops being enrolled in Support and then re-enrolls in Support, BMC may charge Customer a reinstatement fee.
9. PAYMENT, DELIVERY AND TAXES. Customer will pay each License fee and/or Support fee within 30 days of the date of the invoice. Customer will pay taxes imposed in connection with the fees paid for the License and/or Support, which are exclusive of these taxes. For Products that are delivered electronically, upon request from BMC, Customer agrees to provide BMC with documentation supporting that the designated Product was received electronically. If Customer accepts any Product in a non-electronic format, there may be an additional charge and it is the sole responsibility of Customer to bear any sales/use tax obligation, penalties, and interest. Late balances may, at BMC’s sole election, bear interest at a rate equal to the lesser of 1% per month or the maximum amount permitted by law. All Products are licensed FCA (“Free Carrier” as per Incoterms 2000) shipping point. The Products are accepted on the date BMC delivers the Product to the Customer either physically or by providing access codes for electronic download, whichever occurs first, however, such acceptance will not affect the Product Performance Warranty provided in this Agreement. With regard to Products acquired by Customer through an authorized reseller ("Solution Provider") of BMC, notwithstanding anything to the contrary herein, Customer will have no direct payment obligations to BMC for such fees.
10. PROPRIETARY RIGHTS AND CONFIDENTIALITY. (a) BMC, its Affiliates or licensors retain all right, title and interest to the Product, Support and all related intellectual property and proprietary rights. The Product and all third party software provided with the Product are protected by applicable copyright, trade secret, industrial and other intellectual property laws. BMC reserves any rights not expressly granted to Customer in this Agreement. (b) “Confidential Information” means all proprietary or confidential information that is disclosed to the recipient (“Recipient”) by the discloser (“Discloser”), and includes, among other things (i) any and all information relating Discloser financial information, customers, employees, products or services, including, without limitation, software code, flow charts, techniques, specifications, development and marketing plans, strategies, forecasts, and proposal related documents and responses; (ii) as to BMC, and its licensors, the Product (excluding portions of the Documentation that BMC makes publicly available) and any third party software provided with the Product; and (iii) the terms of this Agreement, including without limitation, Product pricing information. Confidential Information does not include information that Recipient can show: (a) was rightfully in Recipient’s possession without any obligation of confidentiality before receipt from the Discloser; (b) is or becomes a matter of public knowledge through no fault of Recipient; (c) is rightfully received by Recipient from a third party without violation of a duty of confidentiality; or (d) is independently developed by or for Recipient. Recipient may not disclose Confidential Information of Discloser to any third party or use the Confidential Information in violation of this Agreement. The Recipient (i) will exercise the same degree of care and protection with respect to the Confidential Information of the Discloser that it exercises with respect to its own Confidential Information and (ii) will not, either directly or indirectly, disclose, copy, distribute, republish, or allow any third party to have access to any Confidential Information of the Discloser. Notwithstanding the foregoing, Recipient may disclose Discloser’s Confidential Information to Recipient’s employees and agents (if Recipient is BMC) and to Authorized User(s) (if Recipient is the Customer)who have the need to know provided that such employees, agents and Authorized User(s) have legal obligations of confidentiality substantially the same (and in no case less protective) as the provisions of this Agreement. (c) Notification Obligation. If the Recipient becomes aware of any unauthorized use or disclosure of Discloser’s Confidential Information, then Recipient will promptly and fully notify the Discloser of all facts known to it concerning such unauthorized use or disclosure. In addition, if the Recipient or any of its employees or agents are required (by oral questions, interrogatories, requests for information, or documents in legal proceedings, subpoena, civil investigative demand, or other similar process) to disclose any of Discloser’s Confidential Information, the Recipient will not disclose the Discloser’s Confidential Information without providing the Discloser with commercially reasonable advance prior written notice to allow Discloser to seek a protective order or other appropriate remedy or to waive compliance with this provision. In any event, the Recipient will exercise its commercially reasonable efforts to preserve the confidentiality of the Discloser’s Confidential Information, including, without limitation, cooperating with Discloser to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded to the Confidential Information.
11. DISCLAIMER OF DAMAGES; LIMITS ON LIABILITY. EXCEPT FOR VIOLATIONS OF LICENSE RESTRICTIONS (Section 4), AND PROPRIETARY RIGHTS AND CONFIDENTIALITY (SECTION 10) AND FOR INFRINGEMENT CLAIMS (SECTION 13), GROSS NEGLIGENCE, WILLFUL MISCONDUCT, DEATH OR BODILY INJURY, ACTS OF FRAUD AND ANY LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED BY LAW, NEITHER PARTY, ITS AFFILIATES OR BMC’s LICENSORS (A) ARE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES RELATING TO OR ARISING OUT OF THIS AGREEMENT, SUPPORT, THE PRODUCT OR ANY THIRD PARTY CODE OR SOFTWARE PROVIDED WITH THE PRODUCT (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST COMPUTER USAGE TIME, AND DAMAGE TO, OR LOSS OF USE OF DATA), EVEN IF ADVISED OF THE OF THE POSSIBILITY OF SUCH DAMAGES, AND IRRESPECTIVE OF NEGLIGENCE OF A PARTY OR WHETHER SUCH DAMAGES RESULT FROM A CLAIM ARISING UNDER TORT OR CONTRACT LAW AND (B) LIABILITY IN ANY EVENT SHALL NOT EXCEED THE AMOUNT PAID AND PAYABLE BY CUSTOMER FOR THE LICENSE TO THE APPLICABLE PRODUCT GIVING RISE TO SUCH DAMAGES.
12. TRIAL LICENSE. BMC may determine, in its sole discretion, to make products available to Customer without an Order and without charge. Such products are deemed to be “Products” pursuant to this Agreement except that (a) they are provided to Customer solely so that Customer may evaluate internally whether to acquire a license to the products for a fee, (b) the license term for such products is 30 days; (c) the Products are provided “AS IS” and without any warranty or support, and (d) the products cannot be put into productive use or included as part of Customer’s business processes in any manner, unless or until they are expressly licensed and paid for under an Order. BMC may terminate all of Customer’s rights and licenses to these Products for BMC’s convenience upon notice to Customer.
13. INFRINGEMENT CLAIMS. If a third party asserts a claim against Customer asserting that Customer’s use of a Product in accordance with this Agreement violates that third-party’s patent, trade secret or copyright rights (“Infringement Claim”), then BMC will, at its own expense: (a) defend or settle the Infringement Claim; and (b) indemnify Customer for any damages finally awarded against Customer based on infringement by the Product. BMC’s obligations under this Section will not apply if: (a) BMC’s legal department does not receive prompt, detailed written notice of the Infringement Claim from Customer, (b) BMC is not able to retain sole control of the defense of the Infringement Claim and all negotiations for its settlement or compromise, (c) BMC does not receive all reasonable assistance, or (d) the Infringement Claim is based on (i) the use of Product in combination with products not approved by BMC in the Product's Documentation, (ii) the failure of Customer to use any updates to such Product within a reasonable time after such updates are made available to Customer, or (iii) the failure of Customer to use the Product as permitted by the Order and in accordance with the Documentation. BMC will not bind Customer to a monetary obligation in a settlement or compromise, or make an admission on behalf of Customer, without obtaining Customer’s prior consent. If BMC determines in BMC’s reasonable discretion that use of the Product should be stopped because of an Infringement Claim or potential Infringement Claim, if a court of competent jurisdiction enjoins Customer from using a Product as a result of an Infringement Claim and BMC is unable to have such injunction stayed or overturned, or if BMC settles an Infringement Claim on terms that would require Customer to stop using the Product, then BMC will, at its expense and election: (a) modify or replace the Product, (b) procure the right to continue using the Product, or (c) if in BMC’s reasonable judgment, neither (a) or (b) is commercially reasonable, terminate Customer's License to the Product and (i) for any perpetual licenses, issue a refund based upon the applicable license fees paid, prorated over 48 months from the date of the Order under which the Products were initially licensed; and (ii) for any non-perpetual licenses, release Customer from its obligation to make future payments for the Product or issue a pro rata refund for any fees paid in advance. This Section contains Customer's exclusive remedies and BMC's sole liability for Infringement Claims.
14. TERMINATION. Upon thirty days advance written notice, either party may terminate this Agreement for its convenience on a prospective basis; however, such termination will have no effect on Orders placed prior to its effective date and such Orders will remain in full force and effect under the terms of this Agreement. Either party may terminate this Agreement and/or an Order for cause on 30 days’ written notice for material breach if the other party fails to cure the breach within 30-day-notice period. Upon any termination of a License, Customer will immediately uninstall and stop using the relevant Product, and upon BMC's request, Customer will immediately return such Product to BMC, together with all related Documentation and copies, or certify its destruction in writing. Any terms in this Agreement which by their nature extend beyond termination of this Agreement will remain in effect until fulfilled.
15. AUDIT. If requested by BMC, and not more than once a year, Customer agrees to deliver to BMC, within 30 days of such request, as specified by BMC either (a) periodic product usage reports generated from specific products or (b) written periodic product usage reports, to be provided solely when the product does not generate reports (“Report”). Additionally, if requested by BMC not more than once a year and upon at least 10 (ten) days prior written notice to Customer, Customer agrees to allow BMC to perform an audit (“Audit”) to ensure compliance with the terms of this Agreement at the locations where the Products are installed, during normal business hours.. Customer agrees to cooperate during any such Audit and to provide reasonable access to its information and systems.
16. EXPORT CONTROLS. Both parties agree to comply with applicable export regulations, including but not limited to U.S. Export Administration Regulations and the OFAC embargoes and sanctions lists. More information on BMC’s export compliance program may be found here: https://www.bmc.com/legal/export-compliance.html.
17. GOVERNING LAW AND DISPUTE RESOLUTION. Any controversy, dispute or claim arising out of or relating to this Agreement, or to the formation, interpretation, breach, termination, or validity thereof (each, a “Controversy”) will be resolved as follows:
(i) UNITED STATES. If both parties to this Agreement are entities incorporated under the law of any state in the United States, the Controversy shall be tried in either state or federal court located in Houston, Texas and the laws of the State of Texas shall govern. Both parties hereby submit to the exclusive jurisdiction of the courts in Houston, Texas and waive all defenses based on forum non conveniens. Notwithstanding the foregoing, if Customer is a state or local governmental entity or higher education institution and legally required to apply state law, then Customer’s state law will apply to the Controversy, without reference to conflict of law principles.
(ii) CANADA. If Customer is located in Canada (outside Quebec), then the law of the Province of Ontario law apply, without reference to conflict of law principles. If Customer is located in Quebec, then the laws of the Province Quebec will apply, without reference to conflict of law principles.
(iii) EMEA. If both parties to this Agreement are entities incorporated in countries in the Europe, Middle East, or Africa regions, the Controversy shall be tried in the District Court located in Amsterdam, the Netherlands and the substantive laws of the Netherlands shall govern. Both parties hereby submit to the exclusive jurisdiction of the District Court in Amsterdam, the Netherlands and waive all defenses based on forum non conveniens.
(iv) ASIA PACIFIC. If both parties to this Agreement are entities incorporated in countries in the Asia Pacific region, the arbitration shall be held in Singapore under the then-applicable rules of the Singapore International Arbitration Centre and the substantive laws of Singapore will govern.
(v) OTHER REGIONS. In all other instances, the arbitration shall be held in New York City, New York, under the then-applicable international rules of the American Arbitration Association and the substantive laws of the State of Texas will govern.
For all arbitrations conducted hereunder: (a) the arbitration shall be conducted in English; (b) the relevant arbitral institution shall determine the number of arbitrators, but any Controversy in which the amount in dispute is greater than $10 million USD shall be decided by three arbitrators, with each party having the right to select one arbitrator; (c) the costs of such arbitration shall be borne equally, pending the arbitrator’s award; (d) the arbitration award rendered shall be final and binding on the parties, shall not be subject to appeal to any court and shall be enforceable in any court having jurisdiction over the parties; (e) the arbitration proceedings, award and pleadings shall all be confidential, unless disclosure of particular information is required for purposes of enforcing/challenging the award or to meet local securities law requirements; and (f) the party prevailing in arbitration shall be entitled to recover its reasonable attorneys’ fees and the necessary costs incurred in connection with the arbitration.
The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. Nothing in this Agreement shall be deemed as preventing either party from seeking immediate injunctive relief from any court having jurisdiction over the parties and the subject matter of the dispute.
18. BMC ENTITIES. The following licensing entities apply to this Agreement:
Region | Licensing Entity | Address of Licensing Entity |
---|---|---|
United States and Latin America South (not a specified Central or South America country below) | BMC Software, Inc. | 2103 CityWest Boulevard, Houston, Texas 77042 |
Canada | BMC Software Canada Inc. | 50 Minthorn Boulevard, Suite 200, Markham, Ontario L3T 7X8 Canada |
EMEA (Europe, Middle East and Africa) | BMC Software Distribution B.V. | Vision Plaza West, 2nd floor, Boeingavenue 250, 1119PZ Schiphol-Rijk, The Netherlands |
Brazil | BMC Software do Brasil Ltda. | Avenida Dra. Ruth Cardoso, n° 8.501, Condomínio Eldorado Business Tower, 22° andar, Pinheiros, São Paulo – SP, CEP: 05425-070 |
Mexico | BMC Software Distribution de México, S.A. de C.V. | Torre Esmeralda II Blvd. Manuel Avila, Camacho #36, Piso 23 Col. Lomas de Chapultepec, CP11000, Mexico City, México D.F. |
Argentina | BMC Software de Argentina S.A. | Ing. Butty 220 - Piso 18, Catalinas Plaza Buenos Aires, República de Argentina, C1001A |
S.E.A (Southeast Asia), Australia, New Zealand, Hong Kong, Taiwan | BMC Software Asia Pacific Pte Ltd | 600 North Bridge Road, #20-01/10 Parkview Square, Singapore 188778 |
China | BMC Software (China) Limited | Room 502, Level 5, Tower W1, The Towers, Oriental Plaza, No. 1 East Chang An Ave., Dong Cheng Dist., Beijing 100738, China |
Japan | BMC Software K.K. | Harmony Tower 24th Floor, 1-32-2 Honcho, Nakano-ku, Tokyo, 164-8721 |
Korea | BMC Software Korea Ltd | 24th Fl., ASEM Tower, 1517, Yeongdong-daero,Gangnam-gu, Seoul 135-798, Korea South |
19. ASSIGNMENT AND TRANSFERS. Customer has the right to assign this Agreement or a License in whole to an Affiliate, or to a successor in connection with (i) the sale of all or substantially all of the assets of that party or (ii) a merger by operation of law by providing written notice to BMC. The assignee may not be a known direct competitor of BMC. The successor or Affiliate must agree in writing with BMC (in advance of the assignment) to be bound by the terms of this Agreement. Any Customer transfer or assignment except as expressly authorized above will be null and void.
20. DATA PROTECTION. The processing of personal data under this Agreement is governed by the Data Processing Agreement set forth on the Order, unless BMC already has a signed Data Processing Agreement with Customer for such BMC offerings; in which case, the signed version governs the processing of personal data. In the event there is no signed Data Processing Agreement or no reference to the applicable Data Processing Agreement in the Order, BMC and Customer agree that the Data Processing Agreement applicable on the date of the Order, a copy of which may be viewed at https://www.bmc.com/content/dam/bmc/corporate/bmcdpa.pdf, applies to the BMC offerings under this Agreement.
21. NOTICES. Any demand, notice, consent, or other communication required by this Agreement must be given in writing and shall be deemed delivered upon receipt when delivered personally or upon confirmation of receipt following delivery by internationally recognized overnight courier service to the addresses specified on the applicable Order.
22. CONDUCTING BUSINESS WITH HONEST AND INTEGRITY. BMC is committed to conducting business with honesty and integrity. BMC’s Code of Conduct set forth in https://www.bmc.com/content/dam/bmc/corporate/Code%2Bof%2BConduct(English).pdf governs the conduct of all officers, directors, and employees of BMC. BMC’s Third-Party Code of Conduct set forth in https://www.bmc.com/content/dam/bmc/corporate/Third+Party+Code+of+Conduct.pdf governs the conduct of contingent workers and business partners acting on BMC’s behalf. BMC demonstrates its commitment to environmental stewardship by its global accreditation for ISO 14001:2015.
23. MISCELLANEOUS TERMS. A waiver by a party of any breach of any term of this Agreement will not be construed as a waiver of any continuing or succeeding breach. Should any term of this Agreement be invalid or unenforceable, the remaining terms will remain in effect. The parties acknowledge they have read this Agreement and agree that it is the complete and exclusive statement of the agreement and supersedes any prior or contemporaneous negotiations or agreements between the parties relating to the subject matter of this Agreement. There are no representations, promises, warranties, covenants, or undertakings between the parties other than those expressly set forth in this Agreement. This Agreement may not be modified or rescinded except in writing signed by both parties. Any delay or failure of any party to perform any obligation under this Agreement caused by governmental restrictions, labor disputes, storms or natural disasters, emergency, or other causes beyond the reasonable control of the party, will not be deemed a breach of this Agreement; provided, however, this provision does not apply to the payment of monies or any breach of Section 10. Customer agrees that BMC and its affiliates may refer to Customer as a customer of BMC, both internally and in externally published media. The BMC Products may contain third party software which is delivered to Customer as part of the Product and may not be taken out of the Product or used separately from the Product and for which additional terms may be included in the Documentation. The Product may contain hyperlinks to websites controlled by parties other than BMC. BMC is not responsible for and does not endorse the content or accept any responsibility for Customer’s use of these websites. Customer should refer to the policies posted by other websites regarding data privacy and other topics before using them. Any additional documents presented to a BMC representative by Customer for signature as a condition for going on a Customer’s site will be governed by this Agreement and to the extent that such document presents additional terms or conflicts with this Agreement, it shall be considered null and void. Les parties exigent que la présente convention ainsi que les documents qui s’y rattachent soient rédigés en anglais.
24. U.S. GOVERNMENT END USER RIGHTS. This Section applies only to acquisitions of the commercial Product and Documentation subject to this Agreement by or on behalf of the United States Government, or by any prime contractor or subcontractor (at any tier) under any contract, grant, agreement or other activity with the United States Government. When Products are delivered or provided to the United States Government, the United States Government agrees that this commercial license Agreement and the Products governed by this Agreement are defined in accordance with and qualify as “commercial items” consisting of “commercial computer software” and “commercial computer software documentation” as outlined in FAR 12.211, FAR 12.212 and DFARS 227.202-3, as applicable. The terms and conditions of this Agreement shall pertain to the United States Government’s use (including documentation or technical data), duplication, and disclosure of the Product, and shall supersede any conflicting contractual terms and conditions.
YOU AGREE THAT YOU HAVE READ THIS AGREEMENT AND INTEND TO BE BOUND, AS IF YOU HAD SIGNED THIS AGREEMENT IN WRITING. IF YOU ARE ACTING ON BEHALF OF AN ENTITY, YOU WARRANT THAT YOU HAVE THE AUTHORITY TO ACCEPT THE TERMS OF THIS AGREEMENT FOR SUCH ENTITY.
Effective August 27th 2020 to August 27th 2020
DownloadTable of Contents
END USER LICENSE AGREEMENT
BY OPENING THE PACKAGE, DOWNLOADING OR INSTALLING, PRESSING “AGREE” OR “YES” OR USING THE PRODUCT, THE ENTITY OR INDIVIDUAL ENTERING INTO THIS AGREEMENT AGREES TO BE BOUND BY THE FOLLOWING TERMS. IF YOU DO NOT AGREE WITH ANY OF THESE TERMS, DO NOT INSTALL OR USE THE PRODUCT, PROMPTLY RETURN THE PRODUCT TO BMC OR YOUR BMC RESELLER. IF YOU REJECT THIS AGREEMENT, YOU WILL NOT ACQUIRE ANY LICENSE TO USE THE PRODUCT.
This Agreement ("Agreement") is between the entity or individual entering into this Agreement (“Customer”) and the BMC Entity for the applicable Region where Customer acquired the License as described in Section 18 (“BMC”). This Agreement was last updated on August 27, 2020. For Customer’s convenience, prior versions of this Agreement are available at https://www.bmc.com/legal/end-user-license-agreements.html.
1. GENERAL DEFINITIONS.
“Affiliate” is an entity that controls, is controlled by or shares common control with BMC or Customer, where such control arises from the legal power to direct or cause the direction of the general management and policies of the company, partnership or legal entity.
“Authorized User” means Customer, Customer Affiliate(s), and their employees, consultants, contractors and agents that are bound by the terms and conditions no less restrictive than those contained herein and for whom Customer takes full responsibility. Authorized Users do not include service providers or outsourcers.
"Documentation" means the technical publications relating to the software, such as release notes, license entitlement descriptions, reference, user, installation, systems administrator and technical guidelines, included with the Product.
“Licensed Capacity” is the amount of each Product licensed as established in the Order. Any Units of Measure and License Restrictions related to the Licensed Capacity will be set forth in the Order.
“Order” is an agreed written or electronic document, subject to the terms of this Agreement that identifies the Products to be licensed and the Licensed Capacity and/or the Support to be purchased and the fees to be paid.
“Product” is the object code of the software and all accompanying Documentation delivered to Customer, including all items delivered by BMC to Customer under Support.
“Support” is the support services program as further specified in this Agreement.
“Territory” means the country(ies) where Customer is licensed to install the Product as specified in the Order.
2. SCOPE. Licenses are granted, and Support is obtained, solely by execution of Orders. Each Order is deemed to be a discrete contract, separate from each other Order, unless expressly stated otherwise therein, and in the event of a direct conflict between any Order and the terms of this Agreement, the terms of the Order will control only if the Order is agreed to by each party. Neither execution of this Agreement, nor anything contained herein, shall obligate either party to enter into any Orders. In the event an Order is proposed by BMC and is deemed to constitute an offer, then acceptance of such offer is limited to its terms. In the event Customer proposes an Order by submitting a purchase order, then regardless of whether BMC acknowledges, accepts or fully or partially performs under such purchase order, BMC OBJECTS to any additional or different terms in the purchase order.
3. LICENSE. Subject to the terms, conditions, payment requirements and restrictions set forth in this Agreement, BMC grants Customer a non-exclusive, non-transferable, non-sub-licensable perpetual (unless a non-perpetual license is provided on an Order) license to install in the Territory, access and use the Product (i) by Authorized User(s), (ii) up to the Licensed Capacity, (iii) for Customer’s and its Affiliates internal business operations, (iv) in accordance with the Documentation and the applicable Order, and (v) make a reasonable number of copies of the Product and the Documentation for archival purposes only (collectively a "License"). Affiliates may use and access the Products and Support under the terms of this Agreement, and Customer is responsible for its Affiliates compliance with the terms of this Agreement.
4. RESTRICTIONS. Customer will not: (a) copy, operate or use any Product in excess of the applicable Licensed Capacity or other than as set forth in the License above; (b) modify, delete or remove any ownership, title, trademark, patent or copyright notices from any Product, or copy or partial copy of a Product; (c) disassemble, reverse engineer, decompile or otherwise attempt to derive any Product source code from object code, except to the extent expressly permitted by applicable law despite this limitation without possibility of contractual waiver; (d) distribute, rent, lease, sublicense or provide the Product to any third party; (e) use the Products in an outsourcing or service bureau environment on behalf of non-Affiliate third parties, or allow the products to be used by an outsourcing or service bureau provider on Customer’s behalf (without obtaining prior written approval from BMC); (f) provide a third party with the results of any functional evaluation, or performance tests, without BMC's prior written approval; or (g) attempt to disable or circumvent any of the licensing mechanisms within the Product.
5. PRODUCT PERFORMANCE WARRANTY. BMC warrants that (a) the Product will perform in substantial accordance with its Documentation for a period of one year from the date of the first Order, (b) BMC has used commercially reasonable efforts consistent with industry standards to scan for and remove software viruses, and (c) other than passwords that may be required for the operation of the Product, BMC has not inserted any code that is not addressed in the Documentation and that is designed to delete, interfere with or disable the normal operation of the Product in accordance with the License. This warranty will not apply to any problems caused by hardware, Computers, or software other than the Product, or misuse of the Product, use of the Product other than as provided by the applicable License, modification of the Product, or claims made either outside the warranty period or not in compliance with the notice and access requirements set forth below. No warranty is provided for additional Licensed Capacity, Product provided pursuant to Support or Product provided pursuant to Section 12.
6. LIMITED REMEDIES. BMC’s entire liability, and Customer’s exclusive remedy, for breach of the above warranty is limited to: BMC’s use of commercially reasonable efforts to have the Product perform in substantial accordance with its Documentation, or replacement of the non-conforming Product within a reasonable period of time, or if BMC cannot have the Product perform in substantial accordance with its Documentation replace the Product within such time period, then BMC will refund the amount paid by Customer for the License for that Product. Customer’s rights and BMC's obligations in this Section are conditioned upon Customer’s providing BMC during the warranty period (a) full cooperation and access to the Product in resolving any claim; and (b) written notice addressed to the BMC Legal Department that includes notice of the claim, a complete description of the alleged defects sufficient to permit their reproduction in BMC’s development or support environment, and a specific reference to the Documentation to which such alleged defects are contrary.
7. DISCLAIMER OF WARRANTIES. EXCEPT FOR THE EXPRESS WARRANTIES IN THIS AGREEMENT, THE PRODUCT IS PROVIDED WITH NO OTHER WARRANTIES WHATSOEVER, AND BMC, ITS AFFILIATES AND LICENSORS DISCLAIM ALL OTHER WARRANTIES, INCLUDING, FITNESS FOR A PARTICULAR PURPOSE AND IN THE UNITED STATES AND CANADA, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, AND NON-INFRINGEMENT. BMC DOES NOT WARRANT THAT THE OPERATION OF THE PRODUCT WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT ALL DEFECTS CAN BE CORRECTED.
8. SUPPORT. Customer may acquire BMC support services (“Support”) on an Order for the total Licensed Capacity of a Product. BMC will notify Customer that it is time to renew Support at least 60 days prior to the end of any prepaid Support period. Customer will provide notice to BMC if it does not intend to renew Support. The annual fee for Support will be agreed upon at the time of each Order. A further description of Support is located at www.bmc.com/support/review-policies, and is incorporated herein by this reference. BMC may change its Support terms to be effective at the end of any prepaid Support period. BMC reserves the right to discontinue Support for a Product where BMC generally discontinues such services to all licensees of that Product. If Customer stops being enrolled in Support and then re-enrolls in Support, BMC may charge Customer a reinstatement fee.
9. PAYMENT, DELIVERY AND TAXES. Customer will pay each License fee and/or Support fee within 30 days of the date of the invoice. Customer will pay taxes imposed in connection with the fees paid for the License and/or Support, which are exclusive of these taxes. For Products that are delivered electronically, upon request from BMC, Customer agrees to provide BMC with documentation supporting that the designated Product was received electronically. If Customer accepts any Product in a non-electronic format, there may be an additional charge and it is the sole responsibility of Customer to bear any sales/use tax obligation, penalties, and interest. Late balances may, at BMC’s sole election, bear interest at a rate equal to the lesser of 1% per month or the maximum amount permitted by law. All Products are licensed FCA (“Free Carrier” as per Incoterms 2000) shipping point. The Products are accepted on the date BMC delivers the Product to the Customer either physically or by providing access codes for electronic download, whichever occurs first, however, such acceptance will not affect the Product Performance Warranty provided in this Agreement. With regard to Products acquired by Customer through an authorized reseller ("Solution Provider") of BMC, notwithstanding anything to the contrary herein, Customer will have no direct payment obligations to BMC for such fees.
10. PROPRIETARY RIGHTS AND CONFIDENTIALITY. (a) BMC, its Affiliates or licensors retain all right, title and interest to the Product, Support and all related intellectual property and proprietary rights. The Product and all third party software provided with the Product are protected by applicable copyright, trade secret, industrial and other intellectual property laws. BMC reserves any rights not expressly granted to Customer in this Agreement. (b) “Confidential Information” means all proprietary or confidential information that is disclosed to the recipient (“Recipient”) by the discloser (“Discloser”), and includes, among other things (i) any and all information relating Discloser financial information, customers, employees, products or services, including, without limitation, software code, flow charts, techniques, specifications, development and marketing plans, strategies, forecasts, and proposal related documents and responses; (ii) as to BMC, and its licensors, the Product (excluding portions of the Documentation that BMC makes publicly available) and any third party software provided with the Product; and (iii) the terms of this Agreement, including without limitation, Product pricing information. Confidential Information does not include information that Recipient can show: (a) was rightfully in Recipient’s possession without any obligation of confidentiality before receipt from the Discloser; (b) is or becomes a matter of public knowledge through no fault of Recipient; (c) is rightfully received by Recipient from a third party without violation of a duty of confidentiality; or (d) is independently developed by or for Recipient. Recipient may not disclose Confidential Information of Discloser to any third party or use the Confidential Information in violation of this Agreement. The Recipient (i) will exercise the same degree of care and protection with respect to the Confidential Information of the Discloser that it exercises with respect to its own Confidential Information and (ii) will not, either directly or indirectly, disclose, copy, distribute, republish, or allow any third party to have access to any Confidential Information of the Discloser. Notwithstanding the foregoing, Recipient may disclose Discloser’s Confidential Information to Recipient’s employees and agents (if Recipient is BMC) and to Authorized User(s) (if Recipient is the Customer)who have the need to know provided that such employees, agents and Authorized User(s) have legal obligations of confidentiality substantially the same (and in no case less protective) as the provisions of this Agreement. (c) Notification Obligation. If the Recipient becomes aware of any unauthorized use or disclosure of Discloser’s Confidential Information, then Recipient will promptly and fully notify the Discloser of all facts known to it concerning such unauthorized use or disclosure. In addition, if the Recipient or any of its employees or agents are required (by oral questions, interrogatories, requests for information, or documents in legal proceedings, subpoena, civil investigative demand, or other similar process) to disclose any of Discloser’s Confidential Information, the Recipient will not disclose the Discloser’s Confidential Information without providing the Discloser with commercially reasonable advance prior written notice to allow Discloser to seek a protective order or other appropriate remedy or to waive compliance with this provision. In any event, the Recipient will exercise its commercially reasonable efforts to preserve the confidentiality of the Discloser’s Confidential Information, including, without limitation, cooperating with Discloser to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded to the Confidential Information.
11. DISCLAIMER OF DAMAGES; LIMITS ON LIABILITY. EXCEPT FOR VIOLATIONS OF LICENSE RESTRICTIONS (Section 4), AND PROPRIETARY RIGHTS AND CONFIDENTIALITY (SECTION 10) AND FOR INFRINGEMENT CLAIMS (SECTION 13), GROSS NEGLIGENCE, WILLFUL MISCONDUCT, DEATH OR BODILY INJURY, ACTS OF FRAUD AND ANY LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED BY LAW, NEITHER PARTY, ITS AFFILIATES OR BMC’s LICENSORS (A) ARE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES RELATING TO OR ARISING OUT OF THIS AGREEMENT, SUPPORT, THE PRODUCT OR ANY THIRD PARTY CODE OR SOFTWARE PROVIDED WITH THE PRODUCT (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST COMPUTER USAGE TIME, AND DAMAGE TO, OR LOSS OF USE OF DATA), EVEN IF ADVISED OF THE OF THE POSSIBILITY OF SUCH DAMAGES, AND IRRESPECTIVE OF NEGLIGENCE OF A PARTY OR WHETHER SUCH DAMAGES RESULT FROM A CLAIM ARISING UNDER TORT OR CONTRACT LAW AND (B) LIABILITY IN ANY EVENT SHALL NOT EXCEED THE AMOUNT PAID AND PAYABLE BY CUSTOMER FOR THE LICENSE TO THE APPLICABLE PRODUCT GIVING RISE TO SUCH DAMAGES.
12. TRIAL LICENSE. BMC may determine, in its sole discretion, to make products available to Customer without an Order and without charge. Such products are deemed to be “Products” pursuant to this Agreement except that (a) they are provided to Customer solely so that Customer may evaluate internally whether to acquire a license to the products for a fee, (b) the license term for such products is 30 days; (c) the Products are provided “AS IS” and without any warranty or support, and (d) the products cannot be put into productive use or included as part of Customer’s business processes in any manner, unless or until they are expressly licensed and paid for under an Order. BMC may terminate all of Customer’s rights and licenses to these Products for BMC’s convenience upon notice to Customer.
13. INFRINGEMENT CLAIMS. If a third party asserts a claim against Customer asserting that Customer’s use of a Product in accordance with this Agreement violates that third-party’s patent, trade secret or copyright rights (“Infringement Claim”), then BMC will, at its own expense: (a) defend or settle the Infringement Claim; and (b) indemnify Customer for any damages finally awarded against Customer based on infringement by the Product. BMC’s obligations under this Section will not apply if: (a) BMC’s legal department does not receive prompt, detailed written notice of the Infringement Claim from Customer, (b) BMC is not able to retain sole control of the defense of the Infringement Claim and all negotiations for its settlement or compromise, (c) BMC does not receive all reasonable assistance, or (d) the Infringement Claim is based on (i) the use of Product in combination with products not approved by BMC in the Product's Documentation, (ii) the failure of Customer to use any updates to such Product within a reasonable time after such updates are made available to Customer, or (iii) the failure of Customer to use the Product as permitted by the Order and in accordance with the Documentation. BMC will not bind Customer to a monetary obligation in a settlement or compromise, or make an admission on behalf of Customer, without obtaining Customer’s prior consent. If BMC determines in BMC’s reasonable discretion that use of the Product should be stopped because of an Infringement Claim or potential Infringement Claim, if a court of competent jurisdiction enjoins Customer from using a Product as a result of an Infringement Claim and BMC is unable to have such injunction stayed or overturned, or if BMC settles an Infringement Claim on terms that would require Customer to stop using the Product, then BMC will, at its expense and election: (a) modify or replace the Product, (b) procure the right to continue using the Product, or (c) if in BMC’s reasonable judgment, neither (a) or (b) is commercially reasonable, terminate Customer's License to the Product and (i) for any perpetual licenses, issue a refund based upon the applicable license fees paid, prorated over 48 months from the date of the Order under which the Products were initially licensed; and (ii) for any non-perpetual licenses, release Customer from its obligation to make future payments for the Product or issue a pro rata refund for any fees paid in advance. This Section contains Customer's exclusive remedies and BMC's sole liability for Infringement Claims.
14. TERMINATION. Upon thirty days advance written notice, either party may terminate this Agreement for its convenience on a prospective basis; however, such termination will have no effect on Orders placed prior to its effective date and such Orders will remain in full force and effect under the terms of this Agreement. Either party may terminate this Agreement and/or an Order for cause on 30 days’ written notice for material breach if the other party fails to cure the breach within 30-day-notice period. Upon any termination of a License, Customer will immediately uninstall and stop using the relevant Product, and upon BMC's request, Customer will immediately return such Product to BMC, together with all related Documentation and copies, or certify its destruction in writing. Any terms in this Agreement which by their nature extend beyond termination of this Agreement will remain in effect until fulfilled.
15. AUDIT. If requested by BMC, and not more than once a year, Customer agrees to deliver to BMC, within 30 days of such request, as specified by BMC either (a) periodic product usage reports generated from specific products or (b) written periodic product usage reports, to be provided solely when the product does not generate reports (“Report”). Additionally, if requested by BMC not more than once a year and upon at least 10 (ten) days prior written notice to Customer, Customer agrees to allow BMC to perform an audit (“Audit”) to ensure compliance with the terms of this Agreement at the locations where the Products are installed, during normal business hours.. Customer agrees to cooperate during any such Audit and to provide reasonable access to its information and systems.
16. EXPORT CONTROLS. Both parties agree to comply with applicable export regulations, including but not limited to U.S. Export Administration Regulations and the OFAC embargoes and sanctions lists. More information on BMC’s export compliance program may be found here: https://www.bmc.com/legal/export-compliance.html.
17. GOVERNING LAW AND DISPUTE RESOLUTION. Any controversy, dispute or claim arising out of or relating to this Agreement, or to the formation, interpretation, breach, termination, or validity thereof (each, a “Controversy”) will be resolved as follows:
(i) UNITED STATES. If both parties to this Agreement are entities incorporated under the law of any state in the United States, the Controversy shall be tried in either state or federal court located in Houston, Texas and the laws of the State of Texas shall govern. Both parties hereby submit to the exclusive jurisdiction of the courts in Houston, Texas and waive all defenses based on forum non conveniens. Notwithstanding the foregoing, if Customer is a state or local governmental entity or higher education institution and legally required to apply state law, then Customer’s state law will apply to the Controversy, without reference to conflict of law principles.
(ii) CANADA. If Customer is located in Canada (outside Quebec), then the law of the Province of Ontario law apply, without reference to conflict of law principles. If Customer is located in Quebec, then the laws of the Province Quebec will apply, without reference to conflict of law principles.
(iii) EMEA. If both parties to this Agreement are entities incorporated in countries in the Europe, Middle East, or Africa regions, the Controversy shall be tried in the District Court located in Amsterdam, the Netherlands and the substantive laws of the Netherlands shall govern. Both parties hereby submit to the exclusive jurisdiction of the District Court in Amsterdam, the Netherlands and waive all defenses based on forum non conveniens.
(iv) ASIA PACIFIC. If both parties to this Agreement are entities incorporated in countries in the Asia Pacific region, the arbitration shall be held in Singapore under the then-applicable rules of the Singapore International Arbitration Centre and the substantive laws of Singapore will govern.
(v) OTHER REGIONS. In all other instances, the arbitration shall be held in New York City, New York, under the then-applicable international rules of the American Arbitration Association and the substantive laws of the State of Texas will govern.
For all arbitrations conducted hereunder: (a) the arbitration shall be conducted in English; (b) the relevant arbitral institution shall determine the number of arbitrators, but any Controversy in which the amount in dispute is greater than $10 million USD shall be decided by three arbitrators, with each party having the right to select one arbitrator; (c) the costs of such arbitration shall be borne equally, pending the arbitrator’s award; (d) the arbitration award rendered shall be final and binding on the parties, shall not be subject to appeal to any court and shall be enforceable in any court having jurisdiction over the parties; (e) the arbitration proceedings, award and pleadings shall all be confidential, unless disclosure of particular information is required for purposes of enforcing/challenging the award or to meet local securities law requirements; and (f) the party prevailing in arbitration shall be entitled to recover its reasonable attorneys’ fees and the necessary costs incurred in connection with the arbitration.
The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. Nothing in this Agreement shall be deemed as preventing either party from seeking immediate injunctive relief from any court having jurisdiction over the parties and the subject matter of the dispute.
18. BMC ENTITIES. The following licensing entities apply to this Agreement:
Region | Licensing Entity | Address of Licensing Entity |
---|---|---|
United States and Latin America South (not a specified Central or South America country below) | BMC Software, Inc. | 2103 CityWest Boulevard, Houston, Texas 77042 |
Canada | BMC Software Canada Inc. | 50 Minthorn Boulevard, Suite 200, Markham, Ontario L3T 7X8 Canada |
EMEA (Europe, Middle East and Africa) | BMC Software Distribution B.V. | Boeing Avenue 245, 1119 PD Schiphol Rijk, The Netherlands |
Brazil | BMC Software do Brasil Ltda. | Avenida Dra. Ruth Cardoso, n° 8.501, Condomínio Eldorado Business Tower, 22° andar, Pinheiros, São Paulo – SP, CEP: 05425-070 |
Mexico | BMC Software Distribution de México, S.A. de C.V. | Torre Esmeralda II Blvd. Manuel Avila, Camacho #36, Piso 23 Col. Lomas de Chapultepec, CP11000, Mexico City, México D.F. |
Argentina | BMC Software de Argentina S.A. | Ing. Butty 220 - Piso 18, Catalinas Plaza Buenos Aires, República de Argentina, C1001A |
S.E.A (Southeast Asia), Australia, New Zealand, Hong Kong, Taiwan | BMC Software Asia Pacific Pte Ltd | 600 North Bridge Road, #20-01/10 Parkview Square, Singapore 188778 |
China | BMC Software (China) Limited | Room 502, Level 5, Tower W1, The Towers, Oriental Plaza, No. 1 East Chang An Ave., Dong Cheng Dist., Beijing 100738, China |
Japan | BMC Software K.K. | Harmony Tower 24th Floor, 1-32-2 Honcho, Nakano-ku, Tokyo, 164-8721 |
Korea | BMC Software Korea Ltd | 24th Fl., ASEM Tower, 1517, Yeongdong-daero,Gangnam-gu, Seoul 135-798, Korea South |
19. ASSIGNMENT AND TRANSFERS. Customer has the right to assign this Agreement or a License in whole to an Affiliate, or to a successor in connection with (i) the sale of all or substantially all of the assets of that party or (ii) a merger by operation of law by providing written notice to BMC. The assignee may not be a known direct competitor of BMC. The successor or Affiliate must agree in writing with BMC (in advance of the assignment) to be bound by the terms of this Agreement. Any Customer transfer or assignment except as expressly authorized above will be null and void.
20. DATA PROTECTION. The processing of personal data under this Agreement is governed by the Data Processing Agreement set forth on the Order, unless BMC already has a signed Data Processing Agreement with Customer for such BMC offerings; in which case, the signed version governs the processing of personal data. In the event there is no signed Data Processing Agreement or no reference to the applicable Data Processing Agreement in the Order, BMC and Customer agree that the Data Processing Agreement applicable on the date of the Order, a copy of which may be viewed at https://www.bmc.com/content/dam/bmc/corporate/bmcdpa.pdf, applies to the BMC offerings under this Agreement.
21. NOTICES. Any demand, notice, consent, or other communication required by this Agreement must be given in writing and shall be deemed delivered upon receipt when delivered personally or upon confirmation of receipt following delivery by internationally recognized overnight courier service to the addresses specified on the applicable Order.
22. CONDUCTING BUSINESS WITH HONEST AND INTEGRITY. BMC is committed to conducting business with honesty and integrity. BMC’s Code of Conduct set forth in https://www.bmc.com/content/dam/bmc/corporate/Code%2Bof%2BConduct(English).pdf governs the conduct of all officers, directors, and employees of BMC. BMC’s Third-Party Code of Conduct set forth in https://www.bmc.com/content/dam/bmc/corporate/Third+Party+Code+of+Conduct.pdf governs the conduct of contingent workers and business partners acting on BMC’s behalf. BMC demonstrates its commitment to environmental stewardship by its global accreditation for ISO 14001:2015.
23. MISCELLANEOUS TERMS. A waiver by a party of any breach of any term of this Agreement will not be construed as a waiver of any continuing or succeeding breach. Should any term of this Agreement be invalid or unenforceable, the remaining terms will remain in effect. The parties acknowledge they have read this Agreement and agree that it is the complete and exclusive statement of the agreement and supersedes any prior or contemporaneous negotiations or agreements between the parties relating to the subject matter of this Agreement. There are no representations, promises, warranties, covenants, or undertakings between the parties other than those expressly set forth in this Agreement. This Agreement may not be modified or rescinded except in writing signed by both parties. Any delay or failure of any party to perform any obligation under this Agreement caused by governmental restrictions, labor disputes, storms or natural disasters, emergency, or other causes beyond the reasonable control of the party, will not be deemed a breach of this Agreement; provided, however, this provision does not apply to the payment of monies or any breach of Section 10. Customer agrees that BMC and its affiliates may refer to Customer as a customer of BMC, both internally and in externally published media. The BMC Products may contain third party software which is delivered to Customer as part of the Product and may not be taken out of the Product or used separately from the Product and for which additional terms may be included in the Documentation. The Product may contain hyperlinks to websites controlled by parties other than BMC. BMC is not responsible for and does not endorse the content or accept any responsibility for Customer’s use of these websites. Customer should refer to the policies posted by other websites regarding data privacy and other topics before using them. Any additional documents presented to a BMC representative by Customer for signature as a condition for going on a Customer’s site will be governed by this Agreement and to the extent that such document presents additional terms or conflicts with this Agreement, it shall be considered null and void. Les parties exigent que la présente convention ainsi que les documents qui s’y rattachent soient rédigés en anglais.
24. U.S. GOVERNMENT END USER RIGHTS. This Section applies only to acquisitions of the commercial Product and Documentation subject to this Agreement by or on behalf of the United States Government, or by any prime contractor or subcontractor (at any tier) under any contract, grant, agreement or other activity with the United States Government. When Products are delivered or provided to the United States Government, the United States Government agrees that this commercial license Agreement and the Products governed by this Agreement are defined in accordance with and qualify as “commercial items” consisting of “commercial computer software” and “commercial computer software documentation” as outlined in FAR 12.211, FAR 12.212 and DFARS 227.202-3, as applicable. The terms and conditions of this Agreement shall pertain to the United States Government’s use (including documentation or technical data), duplication, and disclosure of the Product, and shall supersede any conflicting contractual terms and conditions.
YOU AGREE THAT YOU HAVE READ THIS AGREEMENT AND INTEND TO BE BOUND, AS IF YOU HAD SIGNED THIS AGREEMENT IN WRITING. IF YOU ARE ACTING ON BEHALF OF AN ENTITY, YOU WARRANT THAT YOU HAVE THE AUTHORITY TO ACCEPT THE TERMS OF THIS AGREEMENT FOR SUCH ENTITY.
Effective July 7th 2020 to August 27th 2020
DownloadTable of Contents
END USER LICENSE AGREEMENT
BY OPENING THE PACKAGE, DOWNLOADING OR INSTALLING, PRESSING “AGREE” OR “YES” OR USING THE PRODUCT, THE ENTITY OR INDIVIDUAL ENTERING INTO THIS AGREEMENT AGREES TO BE BOUND BY THE FOLLOWING TERMS. IF YOU DO NOT AGREE WITH ANY OF THESE TERMS, DO NOT INSTALL OR USE THE PRODUCT, PROMPTLY RETURN THE PRODUCT TO BMC OR YOUR BMC RESELLER. IF YOU REJECT THIS AGREEMENT, YOU WILL NOT ACQUIRE ANY LICENSE TO USE THE PRODUCT.
This Agreement ("Agreement") is between the entity or individual entering into this Agreement (“Customer”) and the BMC Entity for the applicable Region where Customer acquired the License as described in Section 18 (“BMC”). This Agreement was last updated on July 7, 2020. For Customer’s convenience, prior versions of this Agreement are available at https://www.bmc.com/legal/end-user-license-agreements.html.
1. GENERAL DEFINITIONS.
“Affiliate” is an entity that controls, is controlled by or shares common control with BMC or Customer, where such control arises from the legal power to direct or cause the direction of the general management and policies of the company, partnership or legal entity.
“Authorized User” means Customer, Customer Affiliate(s), and their employees, consultants, contractors and agents that are bound by the terms and conditions no less restrictive than those contained herein and for whom Customer takes full responsibility. Authorized Users do not include service providers or outsourcers.
"Documentation" means the technical publications relating to the software, such as release notes, license entitlement descriptions, reference, user, installation, systems administrator and technical guidelines, included with the Product.
“Licensed Capacity” is the amount of each Product licensed as established in the Order. Any Units of Measure and License Restrictions related to the Licensed Capacity will be set forth in the Order.
“Order” is an agreed written or electronic document, subject to the terms of this Agreement that identifies the Products to be licensed and the Licensed Capacity and/or the Support to be purchased and the fees to be paid.
“Product” is the object code of the software and all accompanying Documentation delivered to Customer, including all items delivered by BMC to Customer under Support.
“Support” is the support services program as further specified in this Agreement.
“Territory” means the country(ies) where Customer is licensed to install the Product as specified in the Order.
2. SCOPE. Licenses are granted, and Support is obtained, solely by execution of Orders. Each Order is deemed to be a discrete contract, separate from each other Order, unless expressly stated otherwise therein, and in the event of a direct conflict between any Order and the terms of this Agreement, the terms of the Order will control only if the Order is agreed to by each party. Neither execution of this Agreement, nor anything contained herein, shall obligate either party to enter into any Orders. In the event an Order is proposed by BMC and is deemed to constitute an offer, then acceptance of such offer is limited to its terms. In the event Customer proposes an Order by submitting a purchase order, then regardless of whether BMC acknowledges, accepts or fully or partially performs under such purchase order, BMC OBJECTS to any additional or different terms in the purchase order.
3. LICENSE. Subject to the terms, conditions, payment requirements and restrictions set forth in this Agreement, BMC grants Customer a non-exclusive, non-transferable, non-sub-licensable perpetual (unless a non-perpetual license is provided on an Order) license to install in the Territory, access and use the Product (i) by Authorized User(s), (ii) up to the Licensed Capacity, (iii) for Customer’s and its Affiliates internal business operations, (iv) in accordance with the Documentation and the applicable Order, and (v) make a reasonable number of copies of the Product and the Documentation for archival purposes only (collectively a "License"). Affiliates may use and access the Products and Support under the terms of this Agreement, and Customer is responsible for its Affiliates compliance with the terms of this Agreement.
4. RESTRICTIONS. Customer will not: (a) copy, operate or use any Product in excess of the applicable Licensed Capacity or other than as set forth in the License above; (b) modify, delete or remove any ownership, title, trademark, patent or copyright notices from any Product, or copy or partial copy of a Product; (c) disassemble, reverse engineer, decompile or otherwise attempt to derive any Product source code from object code, except to the extent expressly permitted by applicable law despite this limitation without possibility of contractual waiver; (d) distribute, rent, lease, sublicense or provide the Product to any third party; (e) use the Products in an outsourcing or service bureau environment on behalf of non-Affiliate third parties, or allow the products to be used by an outsourcing or service bureau provider on Customer’s behalf (without obtaining prior written approval from BMC); (f) provide a third party with the results of any functional evaluation, or performance tests, without BMC's prior written approval; or (g) attempt to disable or circumvent any of the licensing mechanisms within the Product.
5. PRODUCT PERFORMANCE WARRANTY. BMC warrants that (a) the Product will perform in substantial accordance with its Documentation for a period of one year from the date of the first Order, (b) BMC has used commercially reasonable efforts consistent with industry standards to scan for and remove software viruses, and (c) other than passwords that may be required for the operation of the Product, BMC has not inserted any code that is not addressed in the Documentation and that is designed to delete, interfere with or disable the normal operation of the Product in accordance with the License. This warranty will not apply to any problems caused by hardware, Computers, or software other than the Product, or misuse of the Product, use of the Product other than as provided by the applicable License, modification of the Product, or claims made either outside the warranty period or not in compliance with the notice and access requirements set forth below. No warranty is provided for additional Licensed Capacity, Product provided pursuant to Support or Product provided pursuant to Section 12.
6. LIMITED REMEDIES. BMC’s entire liability, and Customer’s exclusive remedy, for breach of the above warranty is limited to: BMC’s use of commercially reasonable efforts to have the Product perform in substantial accordance with its Documentation, or replacement of the non-conforming Product within a reasonable period of time, or if BMC cannot have the Product perform in substantial accordance with its Documentation replace the Product within such time period, then BMC will refund the amount paid by Customer for the License for that Product. Customer’s rights and BMC's obligations in this Section are conditioned upon Customer’s providing BMC during the warranty period (a) full cooperation and access to the Product in resolving any claim; and (b) written notice addressed to the BMC Legal Department that includes notice of the claim, a complete description of the alleged defects sufficient to permit their reproduction in BMC’s development or support environment, and a specific reference to the Documentation to which such alleged defects are contrary.
7. DISCLAIMER OF WARRANTIES. EXCEPT FOR THE EXPRESS WARRANTIES IN THIS AGREEMENT, THE PRODUCT IS PROVIDED WITH NO OTHER WARRANTIES WHATSOEVER, AND BMC, ITS AFFILIATES AND LICENSORS DISCLAIM ALL OTHER WARRANTIES, INCLUDING, FITNESS FOR A PARTICULAR PURPOSE AND IN THE UNITED STATES AND CANADA, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, AND NON-INFRINGEMENT. BMC DOES NOT WARRANT THAT THE OPERATION OF THE PRODUCT WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT ALL DEFECTS CAN BE CORRECTED.
8. SUPPORT. Customer may acquire BMC support services (“Support”) on an Order for the total Licensed Capacity of a Product. BMC will notify Customer that it is time to renew Support at least 60 days prior to the end of any prepaid Support period. Customer will provide notice to BMC if it does not intend to renew Support. The annual fee for Support will be agreed upon at the time of each Order. A further description of Support is located at www.bmc.com/support/review-policies, and is incorporated herein by this reference. BMC may change its Support terms to be effective at the end of any prepaid Support period. BMC reserves the right to discontinue Support for a Product where BMC generally discontinues such services to all licensees of that Product. If Customer stops being enrolled in Support and then re-enrolls in Support, BMC may charge Customer a reinstatement fee.
9. PAYMENT, DELIVERY AND TAXES. Customer will pay each License fee and/or Support fee within 30 days of the date of the invoice. Customer will pay taxes imposed in connection with the fees paid for the License and/or Support, which are exclusive of these taxes. For Products that are delivered electronically, upon request from BMC, Customer agrees to provide BMC with documentation supporting that the designated Product was received electronically. If Customer accepts any Product in a non-electronic format, there may be an additional charge and it is the sole responsibility of Customer to bear any sales/use tax obligation, penalties, and interest. Late balances may, at BMC’s sole election, bear interest at a rate equal to the lesser of 1% per month or the maximum amount permitted by law. All Products are licensed FCA (“Free Carrier” as per Incoterms 2000) shipping point. The Products are accepted on the date BMC delivers the Product to the Customer either physically or by providing access codes for electronic download, whichever occurs first, however, such acceptance will not affect the Product Performance Warranty provided in this Agreement. With regard to Products acquired by Customer through an authorized Solution Provider of BMC, notwithstanding anything to the contrary herein, Customer will have no direct payment obligations to BMC for such fees.
10. PROPRIETARY RIGHTS AND CONFIDENTIALITY. (a) BMC, its Affiliates or licensors retain all right, title and interest to the Product, Support and all related intellectual property and proprietary rights. The Product and all third party software provided with the Product are protected by applicable copyright, trade secret, industrial and other intellectual property laws. BMC reserves any rights not expressly granted to Customer in this Agreement. (b) “Confidential Information” means all proprietary or confidential information that is disclosed to the recipient (“Recipient”) by the discloser (“Discloser”), and includes, among other things (i) any and all information relating Discloser financial information, customers, employees, products or services, including, without limitation, software code, flow charts, techniques, specifications, development and marketing plans, strategies, forecasts, and proposal related documents and responses; (ii) as to BMC, and its licensors, the Product (excluding portions of the Documentation that BMC makes publicly available) and any third party software provided with the Product; and (iii) the terms of this Agreement, including without limitation, Product pricing information. Confidential Information does not include information that Recipient can show: (a) was rightfully in Recipient’s possession without any obligation of confidentiality before receipt from the Discloser; (b) is or becomes a matter of public knowledge through no fault of Recipient; (c) is rightfully received by Recipient from a third party without violation of a duty of confidentiality; or (d) is independently developed by or for Recipient. Recipient may not disclose Confidential Information of Discloser to any third party or use the Confidential Information in violation of this Agreement. The Recipient (i) will exercise the same degree of care and protection with respect to the Confidential Information of the Discloser that it exercises with respect to its own Confidential Information and (ii) will not, either directly or indirectly, disclose, copy, distribute, republish, or allow any third party to have access to any Confidential Information of the Discloser. Notwithstanding the foregoing, Recipient may disclose Discloser’s Confidential Information to Recipient’s employees and agents (if Recipient is BMC) and to Authorized User(s) (if Recipient is the Customer)who have the need to know provided that such employees, agents and Authorized User(s) have legal obligations of confidentiality substantially the same (and in no case less protective) as the provisions of this Agreement. (c) Notification Obligation. If the Recipient becomes aware of any unauthorized use or disclosure of Discloser’s Confidential Information, then Recipient will promptly and fully notify the Discloser of all facts known to it concerning such unauthorized use or disclosure. In addition, if the Recipient or any of its employees or agents are required (by oral questions, interrogatories, requests for information, or documents in legal proceedings, subpoena, civil investigative demand, or other similar process) to disclose any of Discloser’s Confidential Information, the Recipient will not disclose the Discloser’s Confidential Information without providing the Discloser with commercially reasonable advance prior written notice to allow Discloser to seek a protective order or other appropriate remedy or to waive compliance with this provision. In any event, the Recipient will exercise its commercially reasonable efforts to preserve the confidentiality of the Discloser’s Confidential Information, including, without limitation, cooperating with Discloser to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded to the Confidential Information.
11. DISCLAIMER OF DAMAGES; LIMITS ON LIABILITY. EXCEPT FOR VIOLATIONS OF LICENSE RESTRICTIONS (Section 4), AND PROPRIETARY RIGHTS AND CONFIDENTIALITY (SECTION 10) AND FOR INFRINGEMENT CLAIMS (SECTION 13), GROSS NEGLIGENCE, WILLFUL MISCONDUCT, DEATH OR BODILY INJURY, ACTS OF FRAUD AND ANY LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED BY LAW, NEITHER PARTY, ITS AFFILIATES OR BMC’s LICENSORS (A) ARE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES RELATING TO OR ARISING OUT OF THIS AGREEMENT, SUPPORT, THE PRODUCT OR ANY THIRD PARTY CODE OR SOFTWARE PROVIDED WITH THE PRODUCT (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST COMPUTER USAGE TIME, AND DAMAGE TO, OR LOSS OF USE OF DATA), EVEN IF ADVISED OF THE OF THE POSSIBILITY OF SUCH DAMAGES, AND IRRESPECTIVE OF NEGLIGENCE OF A PARTY OR WHETHER SUCH DAMAGES RESULT FROM A CLAIM ARISING UNDER TORT OR CONTRACT LAW AND (B) LIABILITY IN ANY EVENT SHALL NOT EXCEED THE AMOUNT PAID AND PAYABLE BY CUSTOMER FOR THE LICENSE TO THE APPLICABLE PRODUCT GIVING RISE TO SUCH DAMAGES.
12. TRIAL LICENSE. BMC may determine, in its sole discretion, to make products available to Customer without an Order and without charge. Such products are deemed to be “Products” pursuant to this Agreement except that (a) they are provided to Customer solely so that Customer may evaluate internally whether to acquire a license to the products for a fee, (b) the license term for such products is 30 days; (c) the Products are provided “AS IS” and without any warranty or support, and (d) the products cannot be put into productive use or included as part of Customer’s business processes in any manner, unless or until they are expressly licensed and paid for under an Order. BMC may terminate all of Customer’s rights and licenses to these Products for BMC’s convenience upon notice to Customer.
13. INFRINGEMENT CLAIMS. If a third party asserts a claim against Customer asserting that Customer’s use of a Product in accordance with this Agreement violates that third-party’s patent, trade secret or copyright rights (“Infringement Claim”), then BMC will, at its own expense: (a) defend or settle the Infringement Claim; and (b) indemnify Customer for any damages finally awarded against Customer based on infringement by the Product. BMC’s obligations under this Section will not apply if: (a) BMC’s legal department does not receive prompt, detailed written notice of the Infringement Claim from Customer, (b) BMC is not able to retain sole control of the defense of the Infringement Claim and all negotiations for its settlement or compromise, (c) BMC does not receive all reasonable assistance, or (d) the Infringement Claim is based on (i) the use of Product in combination with products not approved by BMC in the Product's Documentation, (ii) the failure of Customer to use any updates to such Product within a reasonable time after such updates are made available to Customer, or (iii) the failure of Customer to use the Product as permitted by the Order and in accordance with the Documentation. BMC will not bind Customer to a monetary obligation in a settlement or compromise, or make an admission on behalf of Customer, without obtaining Customer’s prior consent. If BMC determines in BMC’s reasonable discretion that use of the Product should be stopped because of an Infringement Claim or potential Infringement Claim, if a court of competent jurisdiction enjoins Customer from using a Product as a result of an Infringement Claim and BMC is unable to have such injunction stayed or overturned, or if BMC settles an Infringement Claim on terms that would require Customer to stop using the Product, then BMC will, at its expense and election: (a) modify or replace the Product, (b) procure the right to continue using the Product, or (c) if in BMC’s reasonable judgment, neither (a) or (b) is commercially reasonable, terminate Customer's License to the Product and (i) for any perpetual licenses, issue a refund based upon the applicable license fees paid, prorated over 48 months from the date of the Order under which the Products were initially licensed; and (ii) for any non-perpetual licenses, release Customer from its obligation to make future payments for the Product or issue a pro rata refund for any fees paid in advance. This Section contains Customer's exclusive remedies and BMC's sole liability for Infringement Claims.
14. TERMINATION. Upon thirty days advance written notice, either party may terminate this Agreement for its convenience on a prospective basis; however, such termination will have no effect on Orders placed prior to its effective date and such Orders will remain in full force and effect under the terms of this Agreement. Either party may terminate this Agreement and/or an Order for cause on 30 days’ written notice for material breach if the other party fails to cure the breach within 30-day-notice period. Upon any termination of a License, Customer will immediately uninstall and stop using the relevant Product, and upon BMC's request, Customer will immediately return such Product to BMC, together with all related Documentation and copies, or certify its destruction in writing. Any terms in this Agreement which by their nature extend beyond termination of this Agreement will remain in effect until fulfilled.
15. AUDIT. If requested by BMC, and not more than once a year, Customer agrees to deliver to BMC, within 30 days of such request, as specified by BMC either (a) periodic product usage reports generated from specific products or (b) written periodic product usage reports, to be provided solely when the product does not generate reports (“Report”). Additionally, if requested by BMC not more than once a year and upon at least 10 (ten) days prior written notice to Customer, Customer agrees to allow BMC to perform an audit (“Audit”) to ensure compliance with the terms of this Agreement at the locations where the Products are installed, during normal business hours.. Customer agrees to cooperate during any such Audit and to provide reasonable access to its information and systems.
16. EXPORT CONTROLS. Both parties agree to comply with applicable export regulations, including but not limited to U.S. Export Administration Regulations and the OFAC embargoes and sanctions lists. More information on BMC’s export compliance program may be found here: https://www.bmc.com/legal/export-compliance.html.
17. GOVERNING LAW AND DISPUTE RESOLUTION. Any controversy, dispute or claim arising out of or relating to this Agreement, or to the formation, interpretation, breach, termination, or validity thereof (each, a “Controversy”) will be resolved as follows:
(i) UNITED STATES. If both parties to this Agreement are entities incorporated under the law of any state in the United States, the Controversy shall be tried in either state or federal court located in Houston, Texas and the laws of the State of Texas shall govern. Both parties hereby submit to the exclusive jurisdiction of the courts in Houston, Texas and waive all defenses based on forum non conveniens. Notwithstanding the foregoing, if Customer is a state or local governmental entity or higher education institution and legally required to apply state law, then Customer’s state law will apply to the Controversy, without reference to conflict of law principles.
(ii) CANADA. If Customer is located in Canada (outside Quebec), then the law of the Province of Ontario law apply, without reference to conflict of law principles. If Customer is located in Quebec, then the laws of the Province Quebec will apply, without reference to conflict of law principles.
(iii) EMEA. If both parties to this Agreement are entities incorporated in countries in the Europe, Middle East, or Africa regions, the Controversy shall be tried in the District Court located in Amsterdam, the Netherlands and the substantive laws of the Netherlands shall govern. Both parties hereby submit to the exclusive jurisdiction of the District Court in Amsterdam, the Netherlands and waive all defenses based on forum non conveniens.
(iv) ASIA PACIFIC. If both parties to this Agreement are entities incorporated in countries in the Asia Pacific region, the arbitration shall be held in Singapore under the then-applicable rules of the Singapore International Arbitration Centre and the substantive laws of Singapore will govern.
(v) OTHER REGIONS. In all other instances, the arbitration shall be held in New York City, New York, under the then-applicable international rules of the American Arbitration Association and the substantive laws of the State of Texas will govern.
For all arbitrations conducted hereunder: (a) the arbitration shall be conducted in English; (b) the relevant arbitral institution shall determine the number of arbitrators, but any Controversy in which the amount in dispute is greater than $10 million USD shall be decided by three arbitrators, with each party having the right to select one arbitrator; (c) the costs of such arbitration shall be borne equally, pending the arbitrator’s award; (d) the arbitration award rendered shall be final and binding on the parties, shall not be subject to appeal to any court and shall be enforceable in any court having jurisdiction over the parties; (e) the arbitration proceedings, award and pleadings shall all be confidential, unless disclosure of particular information is required for purposes of enforcing/challenging the award or to meet local securities law requirements; and (f) the party prevailing in arbitration shall be entitled to recover its reasonable attorneys’ fees and the necessary costs incurred in connection with the arbitration.
The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. Nothing in this Agreement shall be deemed as preventing either party from seeking immediate injunctive relief from any court having jurisdiction over the parties and the subject matter of the dispute.
18. BMC ENTITIES. The following licensing entities apply to this Agreement:
Region | Licensing Entity | Address of Licensing Entity |
---|---|---|
United States and Latin America South (not a specified Central or South America country below) | BMC Software, Inc. | 2103 CityWest Boulevard, Houston, Texas 77042 |
Canada | BMC Software Canada Inc. | 50 Minthorn Boulevard, Suite 200, Markham, Ontario L3T 7X8 Canada |
EMEA (Europe, Middle East and Africa) | BMC Software Distribution B.V. | Boeing Avenue 245, 1119 PD Schiphol Rijk, The Netherlands |
Brazil | BMC Software do Brasil Ltda. | Avenida Dra. Ruth Cardoso, n° 8.501, Condomínio Eldorado Business Tower, 22° andar, Pinheiros, São Paulo – SP, CEP: 05425-070 |
Mexico | BMC Software Distribution de México, S.A. de C.V. | Torre Esmeralda II Blvd. Manuel Avila, Camacho #36, Piso 23 Col. Lomas de Chapultepec, CP11000, Mexico City, México D.F. |
Argentina | BMC Software de Argentina S.A. | Ing. Butty 220 - Piso 18, Catalinas Plaza Buenos Aires, República de Argentina, C1001A |
S.E.A (Southeast Asia), Australia, New Zealand, Hong Kong, Taiwan | BMC Software Asia Pacific Pte Ltd | 600 North Bridge Road, #20-01/10 Parkview Square, Singapore 188778 |
China | BMC Software (China) Limited | Room 502, Level 5, Tower W1, The Towers, Oriental Plaza, No. 1 East Chang An Ave., Dong Cheng Dist., Beijing 100738, China |
Japan | BMC Software K.K. | Harmony Tower 24th Floor, 1-32-2 Honcho, Nakano-ku, Tokyo, 164-8721 |
Korea | BMC Software Korea Ltd | 24th Fl., ASEM Tower, 1517, Yeongdong-daero,Gangnam-gu, Seoul 135-798, Korea South |
19. ASSIGNMENT AND TRANSFERS. Customer has the right to assign this Agreement or a License in whole to an Affiliate, or to a successor in connection with (i) the sale of all or substantially all of the assets of that party or (ii) a merger by operation of law by providing written notice to BMC. The assignee may not be a known direct competitor of BMC. The successor or Affiliate must agree in writing with BMC (in advance of the assignment) to be bound by the terms of this Agreement. Any Customer transfer or assignment except as expressly authorized above will be null and void.
20. DATA PROTECTION. The processing of personal data under this Agreement is governed by the Data Processing Agreement set forth on the Order, unless BMC already has a signed Data Processing Agreement with Customer for such BMC offerings; in which case, the signed version governs the processing of personal data. In the event there is no signed Data Processing Agreement or no reference to the applicable Data Processing Agreement in the Order, BMC and Customer agree that the Data Processing Agreement applicable on the date of the Order, a copy of which may be viewed at https://www.bmc.com/content/dam/bmc/corporate/bmcdpa.pdf, applies to the BMC offerings under this Agreement.
21. NOTICES. Any demand, notice, consent, or other communication required by this Agreement must be given in writing and shall be deemed delivered upon receipt when delivered personally or upon confirmation of receipt following delivery by internationally recognized overnight courier service to the addresses specified on the applicable Order.
22. CONDUCTING BUSINESS WITH HONEST AND INTEGRITY. BMC is committed to conducting business with honesty and integrity. BMC’s Code of Conduct set forth in https://www.bmc.com/content/dam/bmc/corporate/Code%2Bof%2BConduct(English).pdf governs the conduct of all officers, directors, and employees of BMC. BMC’s Third-Party Code of Conduct set forth in https://www.bmc.com/content/dam/bmc/corporate/Third+Party+Code+of+Conduct.pdf governs the conduct of contingent workers and business partners acting on BMC’s behalf. BMC demonstrates its commitment to environmental stewardship by its global accreditation for ISO 14001:2015.
23. MISCELLANEOUS TERMS. A waiver by a party of any breach of any term of this Agreement will not be construed as a waiver of any continuing or succeeding breach. Should any term of this Agreement be invalid or unenforceable, the remaining terms will remain in effect. The parties acknowledge they have read this Agreement and agree that it is the complete and exclusive statement of the agreement and supersedes any prior or contemporaneous negotiations or agreements between the parties relating to the subject matter of this Agreement. There are no representations, promises, warranties, covenants, or undertakings between the parties other than those expressly set forth in this Agreement. This Agreement may not be modified or rescinded except in writing signed by both parties. Any delay or failure of any party to perform any obligation under this Agreement caused by governmental restrictions, labor disputes, storms or natural disasters, emergency, or other causes beyond the reasonable control of the party, will not be deemed a breach of this Agreement; provided, however, this provision does not apply to the payment of monies or any breach of Section 10. Customer agrees that BMC and its affiliates may refer to Customer as a customer of BMC, both internally and in externally published media. The BMC Products may contain third party software which is delivered to Customer as part of the Product and may not be taken out of the Product or used separately from the Product and for which additional terms may be included in the Documentation. The Product may contain hyperlinks to websites controlled by parties other than BMC. BMC is not responsible for and does not endorse the content or accept any responsibility for Customer’s use of these websites. Customer should refer to the policies posted by other websites regarding data privacy and other topics before using them. Any additional documents presented to a BMC representative by Customer for signature as a condition for going on a Customer’s site will be governed by this Agreement and to the extent that such document presents additional terms or conflicts with this Agreement, it shall be considered null and void. Les parties exigent que la présente convention ainsi que les documents qui s’y rattachent soient rédigés en anglais.
24. U.S. GOVERNMENT END USER RIGHTS. This Section applies only to acquisitions of the commercial Product and Documentation subject to this Agreement by or on behalf of the United States Government, or by any prime contractor or subcontractor (at any tier) under any contract, grant, agreement or other activity with the United States Government. When Products are delivered or provided to the United States Government, the United States Government agrees that this commercial license Agreement and the Products governed by this Agreement are defined in accordance with and qualify as “commercial items” consisting of “commercial computer software” and “commercial computer software documentation” as outlined in FAR 12.211, FAR 12.212 and DFARS 227.202-3, as applicable. The terms and conditions of this Agreement shall pertain to the United States Government’s use (including documentation or technical data), duplication, and disclosure of the Product, and shall supersede any conflicting contractual terms and conditions.
YOU AGREE THAT YOU HAVE READ THIS AGREEMENT AND INTEND TO BE BOUND, AS IF YOU HAD SIGNED THIS AGREEMENT IN WRITING. IF YOU ARE ACTING ON BEHALF OF AN ENTITY, YOU WARRANT THAT YOU HAVE THE AUTHORITY TO ACCEPT THE TERMS OF THIS AGREEMENT FOR SUCH ENTITY.
Effective April 3rd 2020 to July 7th 2020
DownloadTable of Contents
END USER LICENSE AGREEMENT
BY OPENING THE PACKAGE, DOWNLOADING OR INSTALLING, PRESSING “AGREE” OR “YES” OR USING THE PRODUCT, THE ENTITY OR INDIVIDUAL ENTERING INTO THIS AGREEMENT AGREES TO BE BOUND BY THE FOLLOWING TERMS. IF YOU DO NOT AGREE WITH ANY OF THESE TERMS, DO NOT INSTALL OR USE THE PRODUCT, PROMPTLY RETURN THE PRODUCT TO BMC OR YOUR BMC RESELLER. IF YOU REJECT THIS AGREEMENT, YOU WILL NOT ACQUIRE ANY LICENSE TO USE THE PRODUCT.
This Agreement ("Agreement") is between the entity or individual entering into this Agreement (“Customer”) and the BMC Entity for the applicable Region where Customer acquired the License as described in Section 18 (“BMC”). This Agreement was last updated on November 26, 2019. For Customer’s convenience, prior versions of this Agreement are available at https://www.bmc.com/legal/end-user-license-agreements.html.
1. GENERAL DEFINITIONS.
“Affiliate” is an entity that controls, is controlled by or shares common control with BMC or Customer, where such control arises from either (a) a direct or indirect ownership interest of more than 50% or (b) the power to direct or cause the direction of the management and policies, whether through the ownership of voting stock by contract, or otherwise, equal to that provided by a direct or indirect ownership of more than 50%.
"Documentation" means the technical publications relating to the software, such as release notes, license entitlement descriptions, reference, user, installation, systems administrator and technical guidelines, included with the Product.
“Licensed Capacity” is the amount of each Product licensed as established in the Order. Any Units of Measure and License Restrictions related to the Licensed Capacity will be set forth in the Order.
“Order” is an agreed written or electronic document, subject to the terms of this Agreement that identifies the Products to be licensed and the Licensed Capacity and/or the Support to be purchased and the fees to be paid.
“Product” is the object code of the software and all accompanying Documentation delivered to Customer, including all items delivered by BMC to Customer under Support.
“Support” is the support services program as further specified in this Agreement.
“Territory” means the country(ies) where Customer is licensed to install the Product as specified in the Order.
2. SCOPE. Licenses are granted, and Support is obtained, solely by execution of Orders. Each Order is deemed to be a discrete contract, separate from each other Order, unless expressly stated otherwise therein, and in the event of a direct conflict between any Order and the terms of this Agreement, the terms of the Order will control only if the Order is agreed to by each party. Orders may be entered under this Agreement by and between (a) BMC or an Affiliate of BMC; and (b) the Customer or an Affiliate of Customer. With respect to an Order, the terms “BMC” and “Customer” as used in this Agreement will be deemed to refer to the entities that execute that Order, the Order will be considered a two party agreement between such entities, and BMC or its authorized reseller will separately invoice the Customer named in the Order for the associated License fees and Support fees. Neither execution of this Agreement, nor anything contained herein, shall obligate either party to enter into any Orders. In the event an Order is proposed by BMC and is deemed to constitute an offer, then acceptance of such offer is limited to its terms. In the event Customer proposes an Order by submitting a purchase order, then regardless of whether BMC acknowledges, accepts or fully or partially performs under such purchase order, BMC OBJECTS to any additional or different terms in the purchase order.
3. LICENSE. Subject to the terms, conditions, payment requirements and restrictions set forth in this Agreement, BMC grants Customer a non-exclusive, non-transferable, non-sub-licensable perpetual (unless a non-perpetual license is provided on an Order) license to install in the Territory, access and use the Product (i) up to the Licensed Capacity, (ii) for Customer’s and its Affiliates internal business operations, (iii) in accordance with the Documentation and the applicable Order, and (iv) make one copy of the Product for archival purposes only (collectively a "License"). Affiliates may use and access the Products and Support under the terms of this Agreement, and Customer is responsible for its Affiliates compliance with the terms of this Agreement.
4. RESTRICTIONS. Customer will not: (a) copy, operate or use any Product in excess of the applicable Licensed Capacity or other than as set forth in the License above; (b) modify, delete or remove any ownership, title, trademark, patent or copyright notices from any Product, or copy or partial copy of a Product; (c) disassemble, reverse engineer, decompile or otherwise attempt to derive any Product source code from object code, except to the extent expressly permitted by applicable law despite this limitation without possibility of contractual waiver; (d) distribute, rent, lease, sublicense or provide the Product to any third party; (e) use the Products in an outsourcing or service bureau environment on behalf of non-Affiliate third parties, or allow the products to be used by an outsourcing or service bureau provider on Customer’s behalf; (f) provide a third party with the results of any functional evaluation, or performance tests, without BMC's prior written approval; or (g) attempt to disable or circumvent any of the licensing mechanisms within the Product.
5. PRODUCT PERFORMANCE WARRANTY. BMC warrants that (a) the Product will perform in substantial accordance with its Documentation for a period of one year from the date of the first Order, (b) BMC has used commercially reasonable efforts consistent with industry standards to scan for and remove software viruses, and (c) other than passwords that may be required for the operation of the Product, BMC has not inserted any code that is not addressed in the Documentation and that is designed to delete, interfere with or disable the normal operation of the Product in accordance with the License. This warranty will not apply to any problems caused by hardware, Computers, or software other than the Product, or misuse of the Product, use of the Product other than as provided by the applicable License, modification of the Product, or claims made either outside the warranty period or not in compliance with the notice and access requirements set forth below. No warranty is provided for additional Licensed Capacity, Product provided pursuant to Support or Product provided pursuant to Section 12.
6. LIMITED REMEDIES. BMC’s entire liability, and Customer’s exclusive remedy, for breach of the above warranty is limited to: BMC’s use of commercially reasonable efforts to have the Product perform in substantial accordance with its Documentation, or replacement of the non-conforming Product within a reasonable period of time, or if BMC cannot have the Product perform in substantial accordance with its Documentation replace the Product within such time period, then BMC will refund the amount paid by Customer for the License for that Product. Customer’s rights and BMC's obligations in this Section are conditioned upon Customer’s providing BMC during the warranty period (a) full cooperation and access to the Product in resolving any claim; and (b) written notice addressed to the BMC Legal Department that includes notice of the claim, a complete description of the alleged defects sufficient to permit their reproduction in BMC’s development or support environment, and a specific reference to the Documentation to which such alleged defects are contrary.
7.	DISCLAIMER OF WARRANTIES. EXCEPT FOR THE EXPRESS WARRANTIES IN THIS AGREEMENT, THE PRODUCT IS PROVIDED WITH NO OTHER WARRANTIES WHATSOEVER, AND BMC, ITS AFFILIATES AND LICENSORS DISCLAIM ALL OTHER WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. BMC DOES NOT WARRANT THAT THE OPERATION OF THE PRODUCT WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT ALL DEFECTS CAN BE CORRECTED.
8. SUPPORT. Customer may acquire BMC support services (“Support”) on an Order for the total Licensed Capacity of a Product. BMC will notify Customer that it is time to renew Support at least 60 days prior to the end of any prepaid Support period. Customer will provide notice to BMC if it does not intend to renew Support. The annual fee for Support will be agreed upon at the time of each Order. A further description of Support is located at www.bmc.com/support/review-policies, and is incorporated herein by this reference. BMC may change its Support terms to be effective at the end of any prepaid Support period. BMC reserves the right to discontinue Support for a Product where BMC generally discontinues such services to all licensees of that Product. If Customer stops being enrolled in Support and then re-enrolls in Support, BMC may charge Customer a reinstatement fee.
9. 	PAYMENT, DELIVERY AND TAXES. If Customer is purchasing directly from BMC, Customer will pay each License fee and/or Support fee upon receipt of invoice. Customer will pay, or reimburse, BMC or when required by law the appropriate governmental agency for taxes of any kind, including sales, use, VAT, excise, customs duties, withholding, property, and other similar taxes (other than taxes based on BMC’s net income) imposed in connection with the License and/or the Support fees which are exclusive of these taxes. For Products that are delivered electronically, upon request from BMC, Customer agrees to provide BMC with documentation supporting that the designated Product was received electronically. If Customer accepts any Product in a non-electronic format, there may be an additional charge and it is the sole responsibility of Customer to bear any sales/use tax obligation, penalties, and interest. The unpaid balance of each late payment bears interest at a rate equal to the lesser of 1% per month or the maximum amount permitted by law. All Products are licensed FCA (“Free Carrier” as per Incoterms 2000) shipping point. The Products are accepted on the date BMC delivers the Product to the Customer either physically or by providing access codes for electronic download, whichever occurs first, however, such acceptance will not affect the Product Performance Warranty provided in this Agreement.
10. PROPRIETARY RIGHTS AND CONFIDENTIALITY. (a) BMC, its Affiliates or licensors retain all right, title and interest to the Product, Support and all related intellectual property and proprietary rights. The Product and all third party software provided with the Product are protected by applicable copyright, trade secret, industrial and other intellectual property laws. BMC reserves any rights not expressly granted to Customer in this Agreement. (b) “Confidential Information” means all proprietary or confidential information that is disclosed to the recipient (“Recipient”) by the discloser (“Discloser”), and includes, among other things (i) any and all information relating Discloser financial information, customers, employees, products or services, including, without limitation, software code, flow charts, techniques, specifications, development and marketing plans, strategies, forecasts, and proposal related documents and responses; (ii) as to BMC, and its licensors, the Product (excluding portions of the Documentation that BMC makes publicly available) and any third party software provided with the Product; and (iii) the terms of this Agreement, including without limitation, Product pricing information. Confidential Information does not include information that Recipient can show: (a) was rightfully in Recipient’s possession without any obligation of confidentiality before receipt from the Discloser; (b) is or becomes a matter of public knowledge through no fault of Recipient; (c) is rightfully received by Recipient from a third party without violation of a duty of confidentiality; or (d) is independently developed by or for Recipient. Recipient may not disclose Confidential Information of Discloser to any third party or use the Confidential Information in violation of this Agreement. The Recipient (i) will exercise the same degree of care and protection with respect to the Confidential Information of the Discloser that it exercises with respect to its own Confidential Information and (ii) will not, either directly or indirectly, disclose, copy, distribute, republish, or allow any third party to have access to any Confidential Information of the Discloser. Notwithstanding the foregoing, Recipient may disclose Discloser’s Confidential Information to Recipient’s employees and agents who have the need to know provided that such employees and agents have legal obligations of confidentiality substantially the same (and in no case less protective) as the provisions of this Agreement. (c) Notification Obligation. If the Recipient becomes aware of any unauthorized use or disclosure of Discloser’s Confidential Information, then Recipient will promptly and fully notify the Discloser of all facts known to it concerning such unauthorized use or disclosure. In addition, if the Recipient or any of its employees or agents are required (by oral questions, interrogatories, requests for information, or documents in legal proceedings, subpoena, civil investigative demand, or other similar process) to disclose any of Discloser’s Confidential Information, the Recipient will not disclose the Discloser’s Confidential Information without providing the Discloser with commercially reasonable advance prior written notice to allow Discloser to seek a protective order or other appropriate remedy or to waive compliance with this provision. In any event, the Recipient will exercise its commercially reasonable efforts to preserve the confidentiality of the Discloser’s Confidential Information, including, without limitation, cooperating with Discloser to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded to the Confidential Information.
11. DISCLAIMER OF DAMAGES; LIMITS ON LIABILITY. EXCEPT FOR VIOLATIONS OF LICENSE RESTRICTIONS (Section 4), AND PROPRIETARY RIGHTS AND CONFIDENTIALITY (SECTION 10) AND FOR INFRINGEMENT CLAIMS (SECTION 13), NEITHER PARTY, ITS AFFILIATES OR BMC’s LICENSORS ARE LIABLE FOR (A) ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES RELATING TO OR ARISING OUT OF THIS AGREEMENT, SUPPORT, THE PRODUCT OR ANY THIRD PARTY CODE OR SOFTWARE PROVIDED WITH THE PRODUCT (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST COMPUTER USAGE TIME, AND DAMAGE TO, OR LOSS OF USE OF DATA), EVEN IF ADVISED OF THE OF THE POSSIBILITY OF SUCH DAMAGES, AND IRRESPECTIVE OF NEGLIGENCE OF A PARTY OR WHETHER SUCH DAMAGES RESULT FROM A CLAIM ARISING UNDER TORT OR CONTRACT LAW OR (B) DAMAGES OF ANY KIND IN AN AMOUNT GREATER THAN THE AMOUNT OF ACTUAL, DIRECT DAMAGES UP TO THE GREATER OF THE AMOUNT PAID AND PAYABLE BY CUSTOMER FOR THE LICENSE TO THE APPLICABLE PRODUCT GIVING RISE TO SUCH DAMAGES.
12.	TRIAL LICENSE. BMC may determine, in its sole discretion, to make products available to Customer without an Order and without charge. Such products are deemed to be “Products” pursuant to this Agreement except that (a) they are provided to Customer solely so that Customer may evaluate internally whether to acquire a license to the products for a fee, (b) the license term for such products is 30 days; (c) the Products are provided “AS IS” and without any warranty or support, and (d) the products cannot be put into productive use or included as part of Customer’s business processes in any manner, unless or until they are expressly licensed and paid for under an Order. BMC may terminate all of Customer’s rights and licenses to these Products for BMC’s convenience upon notice to Customer.
13. 	Infringement Claims. If a third party asserts a claim against Customer asserting that Customer’s use of a Product in accordance with this Agreement violates that third-party’s patent, trade secret or copyright rights (“Infringement Claim”), then BMC will, at its own expense: (a) defend or settle the Infringement Claim; and (b) indemnify Customer for any damages finally awarded against Customer based on infringement by the Product. BMC’s obligations under this Section will not apply if: (a) BMC’s legal department does not receive prompt, detailed written notice of the Infringement Claim from Customer, (b) BMC is not able to retain sole control of the defense of the Infringement Claim and all negotiations for its settlement or compromise, (c) BMC does not receive all reasonable assistance, or (d) the Infringement Claim is based on (i) the use of Product in combination with products not approved by BMC in the Product's Documentation, (ii) the failure of Customer to use any updates to such Product within a reasonable time after such updates are made available to Customer, or (iii) the failure of Customer to use the Product as permitted by the Order and in accordance with the Documentation. BMC will not bind Customer to a monetary obligation in a settlement or compromise, or make an admission on behalf of Customer, without obtaining Customer’s prior consent. If BMC determines in BMC’s reasonable discretion that use of the Product should be stopped because of an Infringement Claim or potential Infringement Claim, if a court of competent jurisdiction enjoins Customer from using a Product as a result of an Infringement Claim and BMC is unable to have such injunction stayed or overturned, or if BMC settles an Infringement Claim on terms that would require Customer to stop using the Product, then BMC will, at its expense and election: (a) modify or replace the Product, (b) procure the right to continue using the Product, or (c) if in BMC’s reasonable judgment, neither (a) or (b) is commercially reasonable, terminate Customer's License to the Product and (i) for any perpetual licenses, issue a refund based upon the applicable license fees paid, prorated over 48 months from the date of the Order under which the Products were initially licensed; and (ii) for any non-perpetual licenses, release Customer from its obligation to make future payments for the Product or issue a pro rata refund for any fees paid in advance. This Section contains Customer's exclusive remedies and BMC's sole liability for Infringement Claims.
14. TERMINATION. Upon thirty days advance written notice, either party may terminate this Agreement for its convenience on a prospective basis; however, such termination will have no effect on Orders placed prior to its effective date and such Orders will remain in full force and effect under the terms of this Agreement. BMC may: (i) terminate an Order and the Licenses to the Products on that Order if Customer fails to pay any applicable fees due under that Order within 30 days after receipt of written notice from BMC of non-payment; (ii) terminate any or all Orders, Licenses to the Products and/or this Agreement, without notice or cure period, if Customer violates the intellectual property rights of BMC, its Affiliates or licensors, or uses the Products outside of the scope of the applicable Licenses; or (iii) terminate all Licenses and this Agreement in whole or in part if Customer commits any other material breach of this Agreement and fails to correct the breach within 30 days after BMC notifies Customer in writing of the breach. Upon any termination of a License, Customer will immediately uninstall and stop using the relevant Product, and upon BMC's request, Customer will immediately return such Product to BMC, together with all related Documentation and copies, or certify its destruction in writing.
15. 	AUDIT. If requested by BMC, and not more than once a year, Customer agrees to deliver to BMC, within 30 days of such request, as specified by BMC either (a) periodic product usage reports generated from specific products or (b) written periodic product usage reports, to be provided solely when the product does not generate reports (“Report”). Additionally, if requested by BMC not more than once a year, Customer agrees to allow BMC to perform an audit (“Audit”) at the locations where the Products are installed, during normal business hours to ensure compliance with the terms of this Agreement. Customer agrees to cooperate during any such Audit and to provide reasonable access to its information and systems. If an Audit or a Report reveals that Customer has exceeded the Licensed Capacity for a Product, Customer agrees to pay the applicable fees for additional capacity upon receipt of invoice. If the understated capacity exceeds 5% of the Licensed Capacity of the applicable Product, then Customer agrees to also pay BMC’s reasonable costs of conducting the Audit.
16. EXPORT CONTROLS. Customer represents and warrants that it: a) will comply with the United States Export Administration Regulations and other U.S. or foreign export regulations; b) no individual accessing or using the Product is a citizen of or from an embargoed country (currently Iran, Syria, Sudan, Cuba and North Korea); c) is not prohibited from receiving the Product under such regulations; d) will not acquire the Product for a person who is restricted under such regulations; e) will not use the Product in contradiction to such regulations; and f) will not use the Product for prohibited uses, including but not limited to nuclear, chemical, missile or biological weapons related end uses. For Product exported from Ireland, EC No. 428/2009 sets up a Community regime for control of exports of dual-use items and technology, and it is declared that this Product is intended for civil purposes only. Therefore, Customer agrees to comply with both the U.S. regulations and those E.U. regulations and will not export in violation of the regulations and without all proper licenses. Any failure to comply with these regulations will result in Customer forfeiting all rights to the Product.
17. GOVERNING LAW AND DISPUTE RESOLUTION. Any controversy, dispute or claim arising out of or relating to this Agreement, or to the formation, interpretation, breach, termination, or validity thereof (each, a “Controversy”) will be resolved as follows:
(i) UNITED STATES. If both parties to this Agreement are entities incorporated under the law of any state in the United States, the Controversy shall be tried in either state or federal court located in Houston, Texas and the laws of the State of Texas shall govern. Both parties hereby submit to the exclusive jurisdiction of the courts in Houston, Texas and waive all defenses based on forum non conveniens.
(ii) EMEA. If both parties to this Agreement are entities incorporated in countries in the Europe, Middle East, or Africa regions, the Controversy shall be tried in the District Court located in Amsterdam, the Netherlands and the substantive laws of the Netherlands shall govern. Both parties hereby submit to the exclusive jurisdiction of the District Court in Amsterdam, the Netherlands and waive all defenses based on forum non conveniens.
(iii) ASIA PACIFIC. If both parties to this Agreement are entities incorporated in countries in the Asia Pacific region, the arbitration shall be held in Singapore under the then-applicable rules of the Singapore International Arbitration Centre and the substantive laws of Singapore will govern.
(iv) OTHER REGIONS. In all other instances, the arbitration shall be held in New York City, New York, under the then-applicable international rules of the American Arbitration Association and the substantive laws of the State of Texas will govern.
For all arbitrations conducted hereunder: (a) the arbitration shall be conducted in English; (b) the relevant arbitral institution shall determine the number of arbitrators, but any Controversy in which the amount in dispute is greater than $10 million USD shall be decided by three arbitrators, with each party having the right to select one arbitrator; (c) the costs of such arbitration shall be borne equally, pending the arbitrator’s award; (d) the arbitration award rendered shall be final and binding on the parties, shall not be subject to appeal to any court and shall be enforceable in any court having jurisdiction over the parties; (e) the arbitration proceedings, award and pleadings shall all be confidential, unless disclosure of particular information is required for purposes of enforcing/challenging the award or to meet local securities law requirements; and (f) the party prevailing in arbitration shall be entitled to recover its reasonable attorneys’ fees and the necessary costs incurred in connection with the arbitration.
The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. Nothing in this Agreement shall be deemed as preventing either party from seeking immediate injunctive relief from any court having jurisdiction over the parties and the subject matter of the dispute.
18. BMC ENTITIES. The following licensing entities apply to this Agreement:
Region | Licensing Entity | Address of Licensing Entity |
---|---|---|
United States and Latin America South (not a specified Central or South America country below) | BMC Software, Inc. | 2103 CityWest Boulevard, Houston, Texas 77042 |
Canada | BMC Software Canada Inc. | 50 Minthorn Boulevard, Suite 200, Markham, Ontario L3T 7X8 Canada |
EMEA (Europe, Middle East and Africa) | BMC Software Distribution B.V. | Boeing Avenue 245, 1119 PD Schiphol Rijk, The Netherlands |
Brazil | BMC Software do Brasil Ltda. | Avenida Dra. Ruth Cardoso, n° 8.501, Condomínio Eldorado Business Tower, 22° andar, Pinheiros, São Paulo – SP, CEP: 05425-070 |
Mexico | BMC Software Distribution de México, S.A. de C.V. | Torre Esmeralda II Blvd. Manuel Avila, Camacho #36, Piso 23 Col. Lomas de Chapultepec, CP11000, Mexico City, México D.F. |
Argentina | BMC Software de Argentina S.A. | Ing. Butty 220 - Piso 18, Catalinas Plaza Buenos Aires, República de Argentina, C1001A |
S.E.A (Southeast Asia), Australia, New Zealand, Hong Kong, Taiwan | BMC Software Asia Pacific Pte Ltd | 600 North Bridge Road, #20-01/10 Parkview Square, Singapore 188778 |
China | BMC Software (China) Limited | Room 502, Level 5, Tower W1, The Towers, Oriental Plaza, No. 1 East Chang An Ave., Dong Cheng Dist., Beijing 100738, China |
Japan | BMC Software K.K. | Harmony Tower 24th Floor, 1-32-2 Honcho, Nakano-ku, Tokyo, 164-8721 |
Korea | BMC Software Korea Ltd | 24th Fl., ASEM Tower, 1517, Yeongdong-daero,Gangnam-gu, Seoul 135-798, Korea South |
19. Assignment and Transfers. Customer may not assign or transfer a Product separate from the applicable Agreement and License, and may not assign or transfer an Agreement or a License, except in the event of a merger with or into, or a transfer of all or substantially all of Customer’s assets to, a third party who assumes all of Customer’s liabilities and obligations under the Agreement and License, and expressly agrees in writing to be bound by and comply with all of the terms of the Agreement and License. Except as specifically authorized by applicable law, any attempt to assign or transfer an Agreement or License in violation of this provision will be null and void and be treated as a violation of BMC’s intellectual property rights or use outside the scope of the License.
20. DATA PROTECTION. The processing of personal data under this Agreement is governed by the Data Processing Agreement set forth on the Order, unless BMC already has a signed Data Processing Agreement with Customer for such BMC offerings; in which case, the signed version governs the processing of personal data. In the event there is no signed Data Processing Agreement or no reference to the applicable Data Processing Agreement in the Order, BMC and Customer agree that the Data Processing Agreement applicable on the date of the Order, a copy of which may be viewed at https://www.bmc.com/content/dam/bmc/corporate/bmcdpa.pdf, applies to the BMC offerings under this Agreement.
21. MISCELLANEOUS TERMS. A waiver by a party of any breach of any term of this Agreement will not be construed as a waiver of any continuing or succeeding breach. Should any term of this Agreement be invalid or unenforceable, the remaining terms will remain in effect. The parties acknowledge they have read this Agreement and agree that it is the complete and exclusive statement of the agreement and supersedes any prior or contemporaneous negotiations or agreements between the parties relating to the subject matter of this Agreement. There are no representations, promises, warranties, covenants, or undertakings between the parties other than those expressly set forth in this Agreement. This Agreement may not be modified or rescinded except in writing signed by both parties. Any delay or failure of any party to perform any obligation under this Agreement caused by governmental restrictions, labor disputes, storms or natural disasters, emergency, or other causes beyond the reasonable control of the party, will not be deemed a breach of this Agreement; provided, however, this provision does not apply to the payment of monies or any breach of Section 10. Customer agrees that BMC and its affiliates may refer to Customer as a customer of BMC, both internally and in externally published media. The BMC Products may contain third party software which is delivered to Customer as part of the Product and may not be taken out of the Product or used separately from the Product and for which additional terms may be included in the Documentation. The Product may contain hyperlinks to websites controlled by parties other than BMC. BMC is not responsible for and does not endorse the content or accept any responsibility for Customer’s use of these websites. Customer should refer to the policies posted by other websites regarding data privacy and other topics before using them. Any additional documents presented to a BMC representative by Customer for signature as a condition for going on a Customer’s site will be governed by this Agreement and to the extent that such document presents additional terms or conflicts with this Agreement, it shall be considered null and void.
22. U.S. FEDERAL ACQUISITIONS. This Section applies only to acquisitions of the commercial Product and Documentation subject to this Agreement by or on behalf of the United States Government, or by any prime contractor or subcontractor (at any tier) under any contract, grant, cooperative agreement or other activity with the United States Government. In the event the Products are delivered to the United States Government, the United States Government hereby agrees that the Products qualify as “commercial items” within the meaning of the Federal acquisition regulation(s) applicable to this procurement. The terms and conditions of this Agreement shall pertain to the United States Government’s use and disclosure of the Product, and shall supersede any conflicting contractual terms and conditions. The following additional statement applies only to acquisitions governed by DFARS Subpart 227.4 (October 1988): “Restricted Rights – Use, duplication and disclosure by the Government is subject to restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 (Oct. 1988).”
YOU AGREE THAT YOU HAVE READ THIS AGREEMENT AND INTEND TO BE BOUND, AS IF YOU HAD SIGNED THIS AGREEMENT IN WRITING. IF YOU ARE ACTING ON BEHALF OF AN ENTITY, YOU WARRANT THAT YOU HAVE THE AUTHORITY TO ACCEPT THE TERMS OF THIS AGREEMENT FOR SUCH ENTITY.
Export Compliance Statement
Effective May 2nd 2024
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By clicking I agree, you acknowledge that you will comply with all applicable export and re-export control laws and regulations, including but not limited to those of the United States (U.S.), the European Union (EU), United Kingdom (UK), and all other relevant countries (“Applicable Laws”). You agree that you will not download, license, or otherwise export or re-export, directly or indirectly, this software, any technical publications relating to this software or underlying information (collectively, “Technology”) in violation of any such Applicable Laws, or without any written governmental authorization required by such Applicable Laws. Additionally, the Technology may not be exported or re-exported to any countries or regions subject to comprehensive sanctions issued by the U.S., EU, and UK, including but not limited to: Cuba, Iran, North Korea, Syria, and the Crimea, Donetsk, and Luhansk Regions (each a “Restricted Country”). The foregoing list is not exhaustive and is also subject to change depending on applicable export control regulations. By downloading, licensing and/or using the Technology, you represent and warrant that: (a) the Technology will not be downloaded, licensed, exported, or re-exported, directly or indirectly: (i) into a Restricted Country or to a national or resident of a Restricted Country; (ii) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or other Blocked Persons, the U.S. Commerce Department’s Denied Parties List, Entity List, or Unverified List, or any other U.S. government list of persons or entities with which U.S. persons are prohibited from transacting (collectively, “Restricted Party List”); or (iii) for any proliferation-related (nuclear weapons, missile technology or chemical/biological weapons) end use (“Unauthorized End Use”); (b) you are not located in, under control of, acting on behalf of, or a national or resident of a Restricted Country; (c) you are not on a Restricted Party List; (d) you are not involved in any such Unauthorized End Use; and (e) no U.S. federal or governmental agency has suspended, revoked, or denied your export privileges. You agree that all rights to use the Technology are granted on the condition that such rights are forfeited if you fail to comply with these terms.
Effective May 11th 2023 to May 2nd 2024
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By clicking I agree, you acknowledge that you are responsible for complying with the applicable laws and regulations of the United States and all other relevant countries relating to exports and re-exports. You agree that you will not download, license or otherwise export or re-export, directly or indirectly, this software, any technical publications relating to this software or underlying information (collectively, “Technology”) in violation of any such laws and regulations, or without any written governmental authorization required by such applicable laws. The list of Restricted Countries can and does change from time to time. It currently includes Cuba, Iran, North Korea, Sudan, Syria and the Crimea Region. In particular, but without limitation, the Technology may not be downloaded, licensed or otherwise exported or re-exported, directly or indirectly, (a) into a Restricted Country or to a national or resident of a Restricted Country; (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or other Blocked Persons, the U.S. Commerce Department’s Denied Parties List, Entity List, or Unverified List; or (c) to or for any proliferation-related (nuclear weapons, missile technology or chemical/biological weapons) end use. By downloading, licensing and/or using the Technology, you represent and warrant that (w) you are not located in, under control of, acting on behalf of, or a national or resident of any such country; (x) you are not on any such list; (y) you are not involved in any such end use; and (z) no U.S. federal agency has suspended, revoked, or denied your export privileges. You agree that all rights to use the Technology are granted on the condition that such rights are forfeited if you fail to comply with these terms.
Effective December 23rd 2020 to May 11th 2023
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By clicking I agree, you acknowledge that you are responsible for complying with the applicable laws and regulations of the United States and all other relevant countries relating to exports and re-exports. You agree that you will not download, license or otherwise export or re-export, directly or indirectly, this software, any technical publications relating to this software or underlying information (collectively, “Technology”) in violation of any such laws and regulations, or without any written governmental authorization required by such applicable laws. The list of Restricted Countries can and does change from time to time. It currently includes Cuba, Iran, North Korea, Sudan, Syria and the Crimea Region. In particular, but without limitation, the Technology may not be downloaded, licensed or otherwise exported or re-exported, directly or indirectly, (a) into a Restricted Country or to a national or resident of a Restricted Country; (b) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or other Blocked Persons, the U.S. Commerce Department’s Denied Parties List, Entity List, or Unverified List; or (c) to or for any proliferation-related (nuclear weapons, missile technology or chemical/biological weapons) end use. By downloading, licensing and/or using the Technology, you represent and warrant that (w) you are not located in, under control of, acting on behalf of, or a national or resident of any such country; (x) you are not on any such list; (y) you are not involved in any such end use; and (z) no U.S. federal agency has suspended, revoked, or denied your export privileges. You agree that all rights to use the Technology are granted on the condition that such rights are forfeited if you fail to comply with these terms.
Effective April 9th 2020 to December 23rd 2020
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By clicking I agree, you acknowledge that you are responsible for complying with the applicable laws and regulations of the United States and all other relevant countries relating to exports and re-exports. You agree that you will not download, license or otherwise export or re-export, directly or indirectly, this software, any technical publications relating to this software or underlying information (collectively, “Technology”) in violation of any such laws and regulations, or without any written governmental authorization required by such applicable laws. The list of Restricted Countries can and does change from time to time. It currently includes Cuba, Iran, North Korea, Sudan and Syria. In particular, but without limitation, the Technology may not be downloaded, licensed or otherwise exported or re-exported, directly or indirectly, (a) into a Restricted Country or to a national or resident of a Restricted Country; (b) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or other Blocked Persons, the U.S. Commerce Department’s Denied Parties List, Entity List, or Unverified List; or (c) to or for any proliferation-related (nuclear weapons, missile technology or chemical/biological weapons) end use. By downloading, licensing and/or using the Technology, you represent and warrant that (w) you are not located in, under control of, acting on behalf of, or a national or resident of any such country; (x) you are not on any such list; (y) you are not involved in any such end use; and (z) no U.S. federal agency has suspended, revoked, or denied your export privileges. You agree that all rights to use the Technology are granted on the condition that such rights are forfeited if you fail to comply with these terms.
Effective April 9th 2020 to April 9th 2020
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By clicking the “I agree” button below, you are acknowledging that you are responsible for complying with the laws and regulations of the United States and all the relevant countries, relating to exports (including “deemed” exports and “deemed” re-exports as defined by the Export Administration Regulations) and re-exports (“Export Laws”). You agree that you will not import, export, re-export or transfer, directly or indirectly, including via remote access, any part of the BMC Products, or any other BMC information or technology in violation of any such laws and regulations, or without any written governmental authorization required under applicable laws. In particular, but without limitation, none of the Software or the underlying information or technology may be downloaded or otherwise exported or re-exported, directly or indirectly, (a) into (or to a national or resident of) any country to which the United States government has imposed trade sanctions denying the export of any products; (b) to anyone on the US Treasury Department’s list of Specially Designated Nationals or Other Blocked Persons, the US Commerce Department’s Denied Parties List, the US Commerce Department’s Entity List, or the US Commerce Department’s Unverified List; or (c) to or for any proliferation-related (nuclear weapons, missile technology, or chemical/biological weapons) end use. By downloading and/or using the Products, you represent and warrant that you are not located in, under control of, or a national or resident of any such country or on any such list and that no U.S. federal agency has suspended, revoked, or denied your export privileges.
Product Access Terms
Effective April 9th 2020
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User and BMC or its authorized distributor have entered into license and support agreements for the Products listed on the Licensed Products page, and the parties’ rights and obligations with respect to such Products are governed by those agreements. User is responsible for ensuring that User does not download Products or amounts of Products that User has not licensed. Users access this site to: (1) Fill new orders of Products (2) Get Products provided as part of Support; and/or (3) Get trials of Products
Effective April 9th 2020 to April 9th 2020
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User and BMC or its authorized distributor have entered into license and support agreements for the Products listed on the Licensed Products page, and the parties’ rights and obligations with respect to such Products are governed by those agreements. User is responsible for ensuring that User does not download Products or amounts of Products that User has not licensed. Users access this site to: (1) Fill new orders of Products (2) Get Products provided as part of Support; and/or (3) Get trials of Products
Product Access Terms
Effective April 9th 2020
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产品访问条款 用户和BMC或其授权经销商已经签订了许可产品页面上本产品的许可和支持协议,并且各方关于上述产品的权利和义务受这些协议的约束。用户有责任确保用户不会下载产品或用户未得到许可的大量产品。 用户访问本站的目的是:
(1) 填写产品的新订单
(2) 将产品作为支持的一部分;和/或
(3) 试用产品
Effective April 9th 2020 to April 9th 2020
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产品访问条款 用户和BMC或其授权经销商已经签订了许可产品页面上本产品的许可和支持协议,并且各方关于上述产品的权利和义务受这些协议的约束。用户有责任确保用户不会下载产品或用户未得到许可的大量产品。 用户访问本站的目的是:
(1) 填写产品的新订单
(2) 将产品作为支持的一部分;和/或
(3) 试用产品
Export Compliance Statement
Effective June 5th 2024
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点击“我同意”,即表示遵守所有适用的出口和再出口管制法律、法规,包括但不限于美国 (U.S.)、欧盟 (Eu)、英国 (UK) 以及其他所有相关国家(“适用法律”)的法律、法规。您同意,不会在违反任何此类适用法律,或未经此类适用法律规定的任何政府书面授权的情况下,直接或间接下载、许可或以其他方式出口或再出口该软件、任何与该软件相关的技术文件或基础信息(统称为“技术”)。此外,这项技术不得向受美国、欧盟和英国全面制裁的任何国家或地区出口或再出口,其中包括但不限于:古巴、伊朗、朝鲜、叙利亚,以及克里米亚、顿涅茨克和卢甘斯克地区(均为“受限制国家/地区”)。以上名单并非详尽无遗,会依照相关出口管制规定进行调整。通过下载、许可和/或使用这项技术,您特此声明并保证:(a) 不会直接或间接下载、许可、出口或再出口这项技术:(i) 受限制国家/地区或受限制国家/地区的国民或居民;(ii) 美国财政部特定的国民名单或其他屏蔽人员名单、美国商务部拒绝交易方名单、实体名单或未核实名单,或其他任何美国政府禁止美国人与之交易的个人或实体名单(统称为“受限制方名单”)上的任何人;或 (iii) 用于任何与扩散相关的(核武器、导弹技术或化学/生物武器)最终用途(“未经授权的最终用途”);(b) 您不在受限制国家/地区境内,不受其控制,不代表其行事,也不是受限制国家/地区的国民或居民;(c) 您不在受限制方名单上;(d) 您未牵涉任何此类未经授权的最终用途;以及 (e) 任何美国联邦机构或政府机构均未暂停、撤销或否认您的出口特权。您同意,倘若您未能遵守这些条款,在授予您使用这项技术的所有权利的前提下,您将丧失这些权利。
Effective April 9th 2020 to June 5th 2024
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出口合规免责声明 只要点击了 “我同意”按钮,就表示您确认您有责任遵守美国及所有其它相关国家有关出口产品及转口产品的适用法律和法规。您同意,您不会违反任何此类法律和法规,或未经此类适用法律规定的任何书面形式的政府授权,直接或间接,下载、许可或者是出口或转口本软件、与本软件有关的任何技术出版物或基础信息(总称为“技术”)。受限制国家名单时时都在发生变化。目前包括古巴、伊朗、北朝鲜、苏丹以及叙利亚。尤其是(但不仅限于此),该技术不得下载、许可或者是不得以直接或间接的方式出口或转口(a)到受限制国家或者是受限制国家的国民或居民;(b)给美国财政部特别指定的国民或其他被禁人员名单上的任何人,美国商务部被拒绝的当事人名单上的任何人,美国商务部实体名单上的任何人,或未经证实名单上的任何人;或(c)为了任何有关扩散的(核武器、导弹技术,或化学/生物武器)最终用途。下载、许可和/或使用本技术,就表示您声明并保证:(w)您没有位于或受控于上述任何这些国家、没有代表这些国家行事、不是这些国家的国民或居民;(x)您不是上述名单中的一员;(y)您没有卷入任何上述最终用途;以及(z)美国联邦机构也没有暂停、取消或拒绝您的出口特权。您同意,使用本技术的所有权利在以下条件下被授予,即:如果您未能遵守这些条款,将丧失上述权利。
Effective April 9th 2020 to April 9th 2020
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出口合规性声明 只要点击了“我同意”按钮,就表示您确认您有责任遵守美国及所有其它相关国家有关出口产品(包括由出口管理条例规定的“被视为的”出口产品和“被视为的”转口产品)及转口产品(“出口法律”)的法律和法规。您同意您不会违反任何此类法律和法规,或未经适用法律规定的任何书面形式的政府授权,直接或间接,包括通过远程访问,进口、出口、转口或转让BMC产品的任何一部分或任何其他BMC的信息或技术。尤其是在以下情况下(但不仅限于以下情况),本软件或构成本软件的信息或技术都不得下载,或不得以直接或间接的方式出口或转口(a)到美国政府已对其实施贸易制裁拒绝向其出口任何产品的任何国家(或给该国的国民或居民);(b)给美国财政部特别指定的国民或其他被禁人员名单上的任何人,美国商务部被拒绝的当事人名单上的任何人,美国商务部实体名单上的任何人,或美国商务部未经证实名单上的任何人;或(c)为了任何有关扩散的(核武器、导弹技术,或化学/生物武器)最终用途。下载和/或使用本产品,就表示您声明并保证:您没有位于或受控于上述任何这些国家、不是这些国家的国民或居民,也不是上述清单上的人员,并且美国联邦机构也没有暂停、取销或拒绝您的出口特权。
Product Access Terms
Effective April 9th 2020
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제품 액세스 조항.
사용자와 비엠씨 또는 허가된 판매자 는 라이선스 제품 페이지에 열거되어 있는 제품들을 위한 라이센스 및 유지보수 계약을 체결한다. 그리고 그러한 제품들에 관한 당사자들의 권리와 의무들은 계약에 따른다. 사용자는, 사용자가 라이선스 되지 않은 제품들이나 제품들의 수량을 다운로드 하지 않는다는 것을 분명히 할 책임이 있다. 사용자의 액세스는 이 사이트에서
(1) 제품들을 신규 주문하고,
(2) 지원의 부분으로서 제품들이 제공되게 하고, 또는
(3) 시험용 제품들을 받기 위해서이다.
Effective April 9th 2020 to April 9th 2020
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제품 액세스 조항.
사용자와 비엠씨 또는 허가된 판매자 는 라이선스 제품 페이지에 열거되어 있는 제품들을 위한 라이센스 및 유지보수 계약을 체결한다. 그리고 그러한 제품들에 관한 당사자들의 권리와 의무들은 계약에 따른다. 사용자는, 사용자가 라이선스 되지 않은 제품들이나 제품들의 수량을 다운로드 하지 않는다는 것을 분명히 할 책임이 있다. 사용자의 액세스는 이 사이트에서
(1) 제품들을 신규 주문하고,
(2) 지원의 부분으로서 제품들이 제공되게 하고, 또는
(3) 시험용 제품들을 받기 위해서이다.
Export Compliance Statement
Effective June 5th 2024
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‘동의’를 클릭하면 미국(U.S.), 유럽 연합(EU), 영국(UK) 및 기타 모든 관련 국가의 수출 및 재수출 통제 법률 및 규정(“준거법”)을 포함하되 이에 국한되지 않는 모든 해당 수출 및 재수출 통제 법률 및 규정을 준수할 것임을 인정하는 것입니다. 귀하는 해당 준거법을 위반하거나 해당 준거법에서 요구하는 정부의 서면 승인 없이 본 소프트웨어, 본 소프트웨어와 관련된 기술 출판물 또는 기본 정보(총칭하여 “기술”)를 직간접적으로 다운로드, 사용권 부여 또는 기타 방식으로 수출 또는 재수출하지 않을 것에 동의합니다. 또한, 본 기술은 쿠바, 이란, 북한, 시리아, 크림 반도, 도네츠크, 루한스크 지역(각각 “제한 국가”)을 포함하되 이에 국한되지 않는 미국, 유럽 연합 및 영국의 포괄적 제재 대상 국가 또는 지역으로 수출 또는 재수출할 수 없습니다. 상기 목록은 완전한 목록이 아니며 해당 수출 통제 규정에 따라 변경될 수 있습니다. 기술을 다운로드, 사용권 부여 및/또는 사용함으로써 귀하는 다음을 표명하고 보증합니다. (a) 본 기술은 다음에 해당하는 대상에게 직접 또는 간접적으로 다운로드, 사용권 부여, 수출 또는 재수출되지 않습니다. (i) 거래 제한 국가 또는 거래 제한 국가의 국민 또는 거주자, (ii) 미국 재무부의 특별지정국 또는 기타 차단 대상자 목록, 미국 상무부의 거래 거부자 목록, 대상 단체 목록(Entity List) 또는 미검증 목록(Unverified List)에 있는 사람이나 단체 또는 기타 미국 정부 목록에 포함된 미국인과의 거래가 금지되어 있는 사람 또는 단체 목록(총칭하여 “거래 제한 당사자 목록”)에 포함된 대상 또는 (iii) 확산 관련(핵무기, 미사일 기술 또는 화학/생물학적 무기) 최종 용도(“무단 최종 용도”), (b) 귀하는 거래 제한 국가에 위치하거나, 통제하에 있거나, 해당 국가를 대신하여 행동하거나, 해당 국가의 국민 또는 거주자가 아니며, (c) 귀하는 거래 제한 당사자 목록에 포함되어 있지 않고, (d) 귀하는 어떠한 무단 최종 용도에도 관여하지 않으며, (e) 귀하는 어떠한 미국 연방 또는 정부 기관이 귀하의 수출 권한을 정지, 취소 또는 거부하지 않습니다. 귀하는 본 약관을 준수하지 않을 경우 해당 권리를 상실한다는 조건으로 기술 사용에 대한 모든 권리가 부여된다는 데 동의합니다.
Effective April 9th 2020 to June 5th 2024
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수출 관련법규 준수에 관한 법적 책임 부인
‘동의 (I agree)’ 버튼을 클릭함으로써 귀사는 수출 및 재수출과 관련된 미국과 다른 모든 관련국들의 관련 법 및 규정을 준수할 책임이 있음을 인정한다. 귀사는 귀사가 본 소프트웨어 혹은 본 소프트웨어와 관련된 어떠한 기술적 출판물 또는 내재된 정보 (집합적으로 “기술”) 들을 어떠한 관련 법과 규정들을 위반하거나 혹은 그러한 해당 법률에 의해 요구되는 정부의 서면 승인 없이, 다운로드 하거나 승인하거나, 직접 혹은 간접적으로 수출 또는 재수출하지 않을 것이라는 점에 동의한다. 제재 국가들의 목록은 때때로 변경될 수 있다. 현재 제재 국가의 목록에는 쿠바, 이란, 북한, 수단 그리고 시리아가 포함되어 있다. 특히, 그러나 제한 없이, 그러한 기술은 (a) 제재 국가 혹은 제제 국가의 국민이나 거주자 (b) 미국 재무부 에서 특별히 지정한 국민 또는 다른 봉쇄 명단에 있는 자들, 미국상무부의 거부대상 명단, 단체 목록, 혹은 미확인 목록에 있는 자 또는 (c) 핵무기, 미사일기술, 또는 화학/생물학 무기 확산의 최종사용에 관련된 자들에게 다운로드 되거나, 인가되거나, 직접 혹은 간접적으로 수출 또는 재수출될 수 없다. 다운로드 하거나 라이선스 하고 또는 그러한 기술을 사용함으로써 귀사는 다음 사항을 표명 및 보증한다. 즉, (w) 상기의 국가 또는 상기 목록상에 해당하는 곳에 위치하지 않으며, 동 국가 및 목록상의 국민 또는 거주자에 의해 통제되지 아니하거나 대신해서 행동하지 않고, (x) 동 국가 및 목록에 없으며, (y) 상기 된 어떠한 최종 사용에도 관련되지 않았고, 그리고 (z) 어떠한 미국 연방 기관도 귀하의 수출 특권을 정지, 취소, 부인하지 않았음을 표명하고 보증한다. 귀하는 그러한 기술사용에 관한 모든 권한이, 만약 귀하가 이러한 조건들을 준수하는 데 실패했을 경우엔 그러한 권한들은 모두 몰수 된다는 조건하에서 주어진다는 점에 동의한다.
Effective April 9th 2020 to April 9th 2020
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수출 관련법규 준수에 관한 법적 책임 부인
“동의(I Agree)” 버튼을 클릭함으로써 사용자인 귀사는 다음의 사항에 동의한다. 귀사는 수출 (수출관리규정에서 정의한 수출 또는 재수출로 간주되는 행위를 포함함.) 및 재수출(수출 관련 법규)과 관련하여 미국 및 다른 모든 관련국가의 법률 및 법규를 준수해야 할 의무가 있다는 것을 인정한다. 귀사는 관련 법률 및 법규를 위반하거나 이러한 관련 법률 및 법규가 요건으로 하고 있는 서면상의 정부에 의한 권한 부여 없이는 비엠씨 제품들의 일부, 또는 어떠한 다른 비엠씨 정보, 또는 기술을 수입, 수출, 재수출, 또는 원거리 액세스를 포함하여 직접 또는 간접적으로 이전하지 않아야 한다는 점에 동의한다. 특히, 제한 없이 어떠한 소프트웨어나 내재되어 있는 정보 또는 기술은 (a)미국정부가 어떠한 제품의 수출도 거부하는 무역제재를 하고 있는 다음과 같은 국가의 국민이나 거주자에게 다운로드 되거나 직접 또는 간접적으로 수출되거나 재수출되어서는 안 된다. 즉, (b) 미국 재무부에서 특별히 지정한 국민 목록에 있는 자와 봉쇄된 자 또는 미국 상무부의 거부 명령 목록에 있는 자, 미국 상무부의 단체 목록 또는 미국 상무부의 미확인 목록에 있는 자, (c) 또는 핵무기, 미사일기술, 또는 화학/생물학 무기 확산의 최종사용에 관련된 자이다. 동 제품을 다운로드 하거나 사용함으로써(또는 두 가지 경우 모두) 귀사는 다음의 사항을 표명 및 보증한다. 즉, 귀사는 상기의 국가 또는 상기목록상에 해당하는 곳에 위치하지 않으며, 동 국가 및 목록 또는 동 국가 및 목록상의 국민 또는 거주자에 의해 통제되지 아니하며, 동 국가 또는 목록상의 국민 또는 거주자가 아니라는 점과 어떠한 미국 연방 기관도 귀사의 수출 특권을 정지, 취소, 부인하지 않았음을 표명하고 보증한다.
Product Access Terms
Effective April 9th 2020
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お客様とBMCもしくはBMCに認定された代理店は、許諾製品一覧に記載された製品の使用許諾およびサポート契約を締結しています。当該製品に関する各々の権利と義務はこれらの契約に基づきます。 お客様はライセンス許諾を受けていない製品のダウンロードを行うことはできません。 お客様は本サイトに以下の目的に限ってアクセスできます。
(1) 発注した製品を入手するため
(2) サポート契約に基づいて製品を入手するため
(3) トライアル製品を入手するため
Effective April 9th 2020 to April 9th 2020
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製品にアクセスす
る条件 お客様とBMCもしくはBMCに認定された代理店は、許諾製品一覧に記載された製品の使用許諾およびサポート契約を締結しています。当該製品に関する各々の権利と義務はこれらの契約に基づきます。 お客様はライセンス許諾を受けていない製品のダウンロードを行うことはできません。 お客様は本サイトに以下の目的に限ってアクセスできます。
(1) 発注した製品を入手するため
(2) サポート契約に基づいて製品を入手するため
(3) トライアル製品を入手するため
Export Compliance Statement
Effective June 5th 2024
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「I agree(同意する)」をクリックすることにより、お客様は、お客様が輸出ならびに再輸出管理に関する全ての適用可能な法律および規制に準拠することについて承認するものとする。上記の適用可能な法律および規制には、合衆国(US)、欧州連合(EU)、英国(UK)のみならず、他のあらゆる関連諸国における適用可能な法律および規制等が含まれるが、これらに限定されないものとする(以下「適用法令」と呼称する)。これに加えて、お客様は、下記の事項についても合意するものとする。すなわち、お客様は、そのような適用法令に違反して、もしくはそのような適用法令によって要請される何らかの書面による政府の許可を得ずに、直接的あるいは間接的であるかどうかにかかわらず、本件のソフトウェア、本件のソフトウェアに関連した何らかの専門的な出版物または基本的な情報(以下「科学技術」と総称する)をダウンロードしない、ライセンスの付与を行わない、あるいは、他の方法で輸出もしくは再輸出しないものとする。更に、本件の科学技術は、合衆国、欧州連合および英国によって課される包括的な制裁措置の対象となる一定の諸国あるいは地域に対して輸出もしくは再輸出されないものとする。上記の一定の諸国あるいは地域には、キューバ、イラン、北朝鮮、シリアおよびクリミア半島、ドネツク、更にルハンシク地域(ウクライナ)が含まれるが、これらに限定されないものとする(以下、個別に「制限を受けた国家」と呼称する)。上記のリストは、必ずしもすべてを網羅するものではなく、適用可能な輸出管理に関する規制に従い、変更されるものとする。本件の科学技術に関連したダウンロード、ライセンスの付与および/あるいは利用により、お客様は、下記の事項について表明し、保証するものとする。すなわち、(a)本件の科学技術は、直接的あるいは間接的であるかどうかにかかわらず、(i)制限を受けた国家もしくは制限を受けた国家の国民または居住者を対象として、(ii)合衆国財務省による特別指定国民および他の資格停止者のリストに記載された当事者、合衆国商務省による取引禁止当事者のリスト、事業体のリストあるいは未検証エンドユーザーリストに記載された当事者を対象として、もしくは合衆国に位置する個人が取引することを禁止されている当事者または事業体として合衆国政府の他のリストに記載された当事者等(以下「制限を受けた当事者のリスト」と総称する)を対象として、または(iii)何らかの拡散に関連した(核兵器、ミサイル技術あるいは化学/生物兵器)最終的な利用(以下「不正な最終的利用」と呼称する)を目的として、ダウンロードされないとともに、ライセンスの付与が行われない、または輸出あるいは再輸出されないものとする。(b)お客様は、制限を受けた国家に所在しないとともに、制限を受けた国家の支配を受けず、制限を受けた国家の代表として活動しない、もしくは、制限を受けた国家の国民あるいは居住者ではないものとする。(c)お客様は、制限を受けた当事者のリストに記載されていないものとする。(d)お客様は、そのような不正な最終的利用に関与しないものとする。これに加えて、(e)合衆国の連邦機関あるいは政府機関は、お客様の輸出特権を停止、撤回あるいは却下しないものとする。お客様は、お客様がこれらの契約条件への準拠を怠る場合、そのような権利が剥奪されることを条件として、本件の科学技術を利用するあらゆる権利が付与されることについて合意するものとする。
Effective April 9th 2020 to June 5th 2024
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輸出関連法の遵守に関する注意事項
「I Agree(同意します)」ボタンのクリックにより、お客様は、米国その他すべての関連各国の輸出、再輸出に関連する法令および規制(輸出関連法)を遵守する責任を負うものとします。お客様は、法令および規制に違反して、若しくは該当する法令により要求される書面による政府の承認を得ることなしに、対象製品の資料、基礎情報を使用し、また、直接、間接を問わず輸出、再輸出をしないことに同意するものとします。特に下記の対象者に対しては、無制限に対象製品、資料等を直接、間接を問わず輸出、再輸出することはできません。(ⅰ)キューバ、イラン、北朝鮮、スーダン、シリア、その他米国の貿易制裁を課されている国、これら各国の国民もしくは居住者又はこれら各国等の統制下にある個人、法人(ⅱ)米国財務省の特別指定国民又は米国商務省の受注拒否一覧表に掲載されている者(ⅲ)米国法若しくは対象製品を取得した場所における管轄法令により使用を禁止されているエンド・ユーザー。
対象製品をダウンロード又は使用する場合には、お客様は、上記各国、その国民、居住者、その統制下にある者、その他上記一覧表に記載されている者ではないこと及び米国連邦政府がお客様の対象製品の輸出に関する権利を停止、取消、又は否認していないことを表明かつ保証するものとします。
Effective April 9th 2020 to April 9th 2020
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輸出関連法の遵守に関する注意事項
「I Agree(同意します)」ボタンのクリックにより、お客様は、米国その他すべての関連各国の輸出、再輸出に関連する法令および規制(輸出関連法)を遵守する責任を負うものとします。お客様は、法令および規制に違反して、若しくは該当する法令により要求される書面による政府の承認を得ることなしに、対象製品の資料、基礎情報を使用し、また、直接、間接を問わず輸出、再輸出をしないことに同意するものとします。特に下記の対象者に対しては、無制限に対象製品、資料等を直接、間接を問わず輸出、再輸出することはできません。(ⅰ)キューバ、イラン、北朝鮮、スーダン、シリア、その他米国の貿易制裁を課されている国、これら各国の国民もしくは居住者又はこれら各国等の統制下にある個人、法人(ⅱ)米国財務省の特別指定国民又は米国商務省の受注拒否一覧表に掲載されている者(ⅲ)米国法若しくは対象製品を取得した場所における管轄法令により使用を禁止されているエンド・ユーザー。
対象製品をダウンロード又は使用する場合には、お客様は、上記各国、その国民、居住者、その統制下にある者、その他上記一覧表に記載されている者ではないこと及び米国連邦政府がお客様の対象製品の輸出に関する権利を停止、取消、又は否認していないことを表明かつ保証するものとします。
Export Compliance Statement
Effective May 22nd 2024
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Al hacer clic en Acepto, usted reconoce que cumplirá todas las leyes y normativas aplicables de control de exportaciones y reexportaciones, incluidas, entre otras, las de los Estados Unidos (EE.UU.), la Unión Europea (UE), el Reino Unido (RU) y todos los demás países pertinentes ("Leyes Aplicables"). Usted se compromete a no descargar, conceder licencias o exportar o reexportar de cualquier otro modo, directa o indirectamente, este software, las publicaciones técnicas relacionadas con este software o la información subyacente (colectivamente, la "Tecnología") vulnerando cualquiera de dichas Leyes Aplicables, o sin la correspondiente autorización gubernamental por escrito requerida por dichas Leyes Aplicables. Además, la Tecnología no se puede exportar ni reexportar a ningún país o región sujetos a sanciones emitidas por EE.UU., la UE y el RU, incluidos, entre otros: Cuba, Irán, Corea del Norte, Siria y las regiones de Crimea, Donetsk y Luhansk (cada uno de ellos un "País Restringido"). La lista anterior no es exhaustiva y está sujeta a cambios en función de la normativa de control de exportaciones aplicable. Al descargar, licenciar y/o utilizar la Tecnología, usted declara y garantiza que: (a) la Tecnología no se descargará, licenciará, exportará o reexportará, directa o indirectamente: (i) a un País Restringido o a un nacional o residente de un País Restringido; (ii) a ninguna persona que figure en la lista de Nacionales Especialmente Designados u otras Personas Bloqueadas del Departamento del Tesoro de EE.UU., en la Lista de Partes Denegadas, la Lista de Entidades o la Lista No Verificada del Departamento de Comercio de EE.UU., o en cualquier otra lista gubernamental de EE.UU. de personas o entidades con las que las personas de EE.UU. tengan prohibido realizar transacciones (colectivamente “Lista de Personas Restringidas”); o (iii) para cualquier uso final relacionado con la proliferación (armas nucleares, tecnología de misiles o armas químicas/biológicas) ("Uso Final No Autorizado"); (b) usted no se encuentra en un País Restringido, no está bajo el control de un País Restringido, no actúa en su nombre ni es nacional o residente de un País Restringido; (c) usted no figura en una lista de Personas Restringidas; (d) usted no está implicado en ningún Uso Final No Autorizado; y (e) ninguna agencia federal o gubernamental de EE.UU. ha suspendido, revocado o denegado sus derechos de exportación. Usted acepta que todos los derechos de uso de la Tecnología se conceden con la condición de que dichos derechos se perderán si usted incumple estas condiciones.
Effective December 23rd 2020 to May 22nd 2024
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Declaración en relación con las Leyes de Exportación
Presionando “Acepto”, usted estará reconociendo que es responsable del cumplimiento de las leyes y normas aplicables de los Estados Unidos y cualquier otro país en cuestión, en relación con el control de exportaciones. Usted acepta que no descargará, licenciará o de cualquier otra forma exportará o reexportará éste software, cualquier publicación técnica relativa al mismo o la información incluida en el mismo (en conjunto, la “Tecnología”) de forma tal que vulnere dichas leyes o normas ó, sin el correspondiente permiso administrativo que se requiera de conformidad con las leyes aplicables. La lista de países prohibidos (“Países Prohibidos”) puede ser y es modificada con frecuencia. Actualmente incluye Cuba, Irán, Corea del Norte, Sudan, Siria y Crimea Region. En particular, pero sin limitación, la Tecnología no puede ser descargada, licenciada, exportada o reexportada directa o indirectamente (a) a un País Prohibido ó a un nacional o residente en un País Prohibido; (b) a cualquier persona incluida en la lista del Departamento del Tesoro de los Estados Unidos para Nacionales Especialmente Designados u otras Personas Censuradas, la lista del Departamento de Comercio de los Estados Unidos para Personas Físicas o Jurídicas Rechazadas o la lista Sin Verificar; ó (c) para actividades relacionadas a la proliferación de armas nucleares, tecnología de misiles, armas químicas o biológicas. Descargando, licenciando y/o usando la Tecnología, usted declara y garantiza que usted (i) no se encuentra ubicado ó bajo el control ó actúa en nombre de un nacional o residente de un País Prohibido; (ii) no se encuentra incluido en ninguna de las listas antes referidas; (iii) no está relacionado con la proliferación de las armas descritas; y (iv) ninguna agencia federal de los Estados Unidos le ha suspendido, revocado o denegado la exportación. Usted acuerda que todos los derechos de uso de la Tecnología están condicionados al cumplimiento de éstos términos. En consecuencia, el derecho de uso terminará en caso de que, en cualquier momento, se incumpla con lo dispuesto precedentemente.
Effective April 9th 2020 to December 23rd 2020
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Declaración en relación con las Leyes de Exportación
Presionando “Acepto”, usted estará reconociendo que es responsable del cumplimiento de las leyes y normas aplicables de los Estados Unidos y cualquier otro país en cuestión, en relación con el control de exportaciones. Usted acepta que no descargará, licenciará o de cualquier otra forma exportará o reexportará éste software, cualquier publicación técnica relativa al mismo o la información incluida en el mismo (en conjunto, la “Tecnología”) de forma tal que vulnere dichas leyes o normas ó, sin el correspondiente permiso administrativo que se requiera de conformidad con las leyes aplicables. La lista de países prohibidos (“Países Prohibidos”) puede ser y es modificada con frecuencia. Actualmente incluye Cuba, Irán, Corea del Norte, Sudan y Siria. En particular, pero sin limitación, la Tecnología no puede ser descargada, licenciada, exportada o reexportada directa o indirectamente (a) a un País Prohibido ó a un nacional o residente en un País Prohibido; (b) a cualquier persona incluida en la lista del Departamento del Tesoro de los Estados Unidos para Nacionales Especialmente Designados u otras Personas Censuradas, la lista del Departamento de Comercio de los Estados Unidos para Personas Físicas o Jurídicas Rechazadas o la lista Sin Verificar; ó (c) para actividades relacionadas a la proliferación de armas nucleares, tecnología de misiles, armas químicas o biológicas. Descargando, licenciando y/o usando la Tecnología, usted declara y garantiza que usted (i) no se encuentra ubicado ó bajo el control ó actúa en nombre de un nacional o residente de un País Prohibido; (ii) no se encuentra incluido en ninguna de las listas antes referidas; (iii) no está relacionado con la proliferación de las armas descritas; y (iv) ninguna agencia federal de los Estados Unidos le ha suspendido, revocado o denegado la exportación. Usted acuerda que todos los derechos de uso de la Tecnología están condicionados al cumplimiento de éstos términos. En consecuencia, el derecho de uso terminará en caso de que, en cualquier momento, se incumpla con lo dispuesto precedentemente.
Effective April 9th 2020 to April 9th 2020
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Cumplimiento de las Leyes de Exportación
Al presionar el botón “Estoy de Acuerdo”, usted reconoce que es responsable de cumplir con las leyes y regulaciones administrativas de los Estados Unidos y cualquier otro país relevante, en relación con el control de exportaciones (incluyendo exportaciones y reexportaciones necesarias como se encuentran definidas por las Regulaciones Administrativas en Materia de Exportaciones) (“Leyes de Exportación”). Usted acuerda que no importará, exportará, reexportará o transmitirá directa o indirectamente (incluyendo la vía de acceso a distancia), parte alguna de los módulos de BMC o cualquier otra información o tecnología de BMC en infracción de dichas Leyes de Exportación, o sin autorización de las autoridades gubernamentales especificadas en dichas leyes. En particular, pero sin limitación, el Software o la información o tecnología relacionada con la misma no puede ser adquirida de forma informática, exportada o reexportada directamente o indirectamente (a) a (o una persona con nacionalidad) un país a los que el gobierno de los Estados Unidos haya impuesto sanciones comerciales negando la exportación de cualquier producto a dicho país; (b) a cualquier persona designada en la lista del Departamento del Tesoro de los Estados Unidos para Nacionales Especialmente Designados u otras Personas Censuradas, la lista del Departamento de Comercio de los Estados Unidos para Personas Físicas o Jurídicas Rechazadas o lista Sin Verificar; o (c) a cualquier persona que tenga por fin proliferar armas nucleares, tecnología de misiles, armas químicas o biológicas. Al descargar y/o usar los Productos, usted declara y garantiza que no se encuentra ubicado en o bajo el control de un nacional o residente de cualquiera de dichos países o listas y que ninguna entidad Estadounidense federal le ha suspendido, revocado o negado sus privilegios de exportación. Asimismo, usted acuerda no vender o distribuir de forma directa o indirecta cualquier Producto sujeto al Anexo 1 del Reglamento (CE) nº 1334/2000 del Consejo, de 22 de junio de 2000 (y sus modificaciones) a ninguna entidad militar o cualquier otra entidad para fines militares, incluyendo Fuerzas de Seguridad Nacionales. Igualmente, usted acuerda no transmitir Productos a sus clientes para que los mismos sean utilizados en relación con armas químicas, biológicas o nucleares o misiles capaces de crear dichas armas. Acuerda no exportar o reexportar Productos a cualquier entidad radicada en China que se autodenomine “Instituto” o “Academia” o a cualquier país que se encuentre sujeto a sanciones de la Unión Europea, Naciones Unidas u la Organización para la Seguridad y Cooperación en Europa sin antes haber obtenido la correspondiente licencia.
Product Access Terms
Effective April 9th 2020
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Términos de Acceso al Producto
El Usuario y BMC o su distribuidor autorizado han acordado contratos de licencia y de soporte para los Productos enumerados en la página de Productos Licenciados, y los derechos y obligaciones de las partes relativos a tales Productos están determinados por estos contratos. El Usuario es responsable de asegurar que el Usuario no descargue Productos o cantidades de Productos que el Usuario no ha licenciado. Los Usuarios acceden este recurso
(1) Cumplimentar nuevos pedidos de Productos
(2) Obtener Productos proporcionados en relación con Soporte; y/o
(3) Obtener versiones de pruebas de Productos
Effective April 9th 2020 to April 9th 2020
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Términos de Acceso al Producto
El Usuario y BMC o su distribuidor autorizado han acordado contratos de licencia y de soporte para los Productos enumerados en la página de Productos Licenciados, y los derechos y obligaciones de las partes relativos a tales Productos están determinados por estos contratos. El Usuario es responsable de asegurar que el Usuario no descargue Productos o cantidades de Productos que el Usuario no ha licenciado. Los Usuarios acceden este recurso
(1) Cumplimentar nuevos pedidos de Productos
(2) Obtener Productos proporcionados en relación con Soporte; y/o
(3) Obtener versiones de pruebas de Productos
Export Compliance Statement
Effective May 22nd 2024
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Al hacer clic en Acepto, usted reconoce que cumplirá todas las leyes y normativas aplicables de control de exportaciones y reexportaciones, incluidas, entre otras, las de los Estados Unidos (EE.UU.), la Unión Europea (UE), el Reino Unido (RU) y todos los demás países pertinentes ("Leyes Aplicables"). Usted se compromete a no descargar, conceder licencias o exportar o reexportar de cualquier otro modo, directa o indirectamente, este software, las publicaciones técnicas relacionadas con este software o la información subyacente (colectivamente, la "Tecnología") vulnerando cualquiera de dichas Leyes Aplicables, o sin la correspondiente autorización gubernamental por escrito requerida por dichas Leyes Aplicables. Además, la Tecnología no se puede exportar ni reexportar a ningún país o región sujetos a sanciones emitidas por EE.UU., la UE y el RU, incluidos, entre otros: Cuba, Irán, Corea del Norte, Siria y las regiones de Crimea, Donetsk y Luhansk (cada uno de ellos un "País Restringido"). La lista anterior no es exhaustiva y está sujeta a cambios en función de la normativa de control de exportaciones aplicable. Al descargar, licenciar y/o utilizar la Tecnología, usted declara y garantiza que: (a) la Tecnología no se descargará, licenciará, exportará o reexportará, directa o indirectamente: (i) a un País Restringido o a un nacional o residente de un País Restringido; (ii) a ninguna persona que figure en la lista de Nacionales Especialmente Designados u otras Personas Bloqueadas del Departamento del Tesoro de EE.UU., en la Lista de Partes Denegadas, la Lista de Entidades o la Lista No Verificada del Departamento de Comercio de EE.UU., o en cualquier otra lista gubernamental de EE.UU. de personas o entidades con las que las personas de EE.UU. tengan prohibido realizar transacciones (colectivamente “Lista de Personas Restringidas”); o (iii) para cualquier uso final relacionado con la proliferación (armas nucleares, tecnología de misiles o armas químicas/biológicas) ("Uso Final No Autorizado"); (b) usted no se encuentra en un País Restringido, no está bajo el control de un País Restringido, no actúa en su nombre ni es nacional o residente de un País Restringido; (c) usted no figura en una lista de Personas Restringidas; (d) usted no está implicado en ningún Uso Final No Autorizado; y (e) ninguna agencia federal o gubernamental de EE.UU. ha suspendido, revocado o denegado sus derechos de exportación. Usted acepta que todos los derechos de uso de la Tecnología se conceden con la condición de que dichos derechos se perderán si usted incumple estas condiciones.
Effective December 23rd 2020 to May 22nd 2024
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Declaración de Cumplimiento de Exportación
Presionando “Acepto”, usted estará reconociendo que es responsable del cumplimiento de las leyes y normas aplicables de los Estados Unidos y cualquier otro país en cuestión, en relación con el control de exportaciones y re-exportaciones. Usted acepta que no descargará, licenciará o de cualquier otra forma exportará o reexportará en forma directa o indirecta éste software, cualquier publicación técnica relativa al mismo o la información incluida en el mismo (en conjunto, la “Tecnología”) de forma tal que vulnere dichas leyes o normas ó, sin el correspondiente permiso administrativo que se requiera de conformidad con las leyes aplicables. La lista de países prohibidos (“Países Prohibidos”) puede ser y es modificada con frecuencia. Actualmente incluye Cuba, Irán, Corea del Norte, Sudan, Siria y Crimea Region. En particular, pero sin limitación, la Tecnología no puede ser descargada, licenciada, exportada o reexportada directa o indirectamente (a) a un País Prohibido ó a un nacional o residente en un País Prohibido; (b) a cualquier persona incluida en la lista del Departamento del Tesoro de los Estados Unidos para Nacionales Especialmente Designados u otras Personas Censuradas, la lista del Departamento de Comercio de los Estados Unidos para Personas Físicas o Jurídicas Rechazadas o la lista Sin Verificar (“U.S. Treasury Department's list of Specially Designated Nationals” u otros “Blocked Persons”, el “U.S. Commerce Department’s Denied Parties List”, “Entity List”, o “Unverified List”); ó (c) para actividades relacionadas a la proliferación de armas nucleares, tecnología de misiles, armas químicas o biológicas. Descargando, licenciando y/o usando la Tecnología, usted declara y garantiza que usted (i) no se encuentra ubicado ó bajo el control ó actúa en nombre de, o es un nacional o residente de un País Prohibido; (ii) no se encuentra incluido en ninguna de las listas antes referidas; (iii) no está relacionado con la proliferación de las armas descritas; y (iv) ninguna agencia federal de los Estados Unidos le ha suspendido, revocado o denegado la exportación. Usted acuerda que todos los derechos de uso de la Tecnología están condicionados al cumplimiento de éstos términos. En consecuencia, el derecho de uso terminará en caso de que, en cualquier momento, se incumpla con lo dispuesto precedentemente.
Effective April 9th 2020 to December 23rd 2020
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Declaración de Cumplimiento de Exportación
Presionando “Acepto”, usted estará reconociendo que es responsable del cumplimiento de las leyes y normas aplicables de los Estados Unidos y cualquier otro país en cuestión, en relación con el control de exportaciones y re-exportaciones. Usted acepta que no descargará, licenciará o de cualquier otra forma exportará o reexportará en forma directa o indirecta éste software, cualquier publicación técnica relativa al mismo o la información incluida en el mismo (en conjunto, la “Tecnología”) de forma tal que vulnere dichas leyes o normas ó, sin el correspondiente permiso administrativo que se requiera de conformidad con las leyes aplicables. La lista de países prohibidos (“Países Prohibidos”) puede ser y es modificada con frecuencia. Actualmente incluye Cuba, Irán, Corea del Norte, Sudan y Siria. En particular, pero sin limitación, la Tecnología no puede ser descargada, licenciada, exportada o reexportada directa o indirectamente (a) a un País Prohibido ó a un nacional o residente en un País Prohibido; (b) a cualquier persona incluida en la lista del Departamento del Tesoro de los Estados Unidos para Nacionales Especialmente Designados u otras Personas Censuradas, la lista del Departamento de Comercio de los Estados Unidos para Personas Físicas o Jurídicas Rechazadas o la lista Sin Verificar (“U.S. Treasury Department's list of Specially Designated Nationals” u otros “Blocked Persons”, el “U.S. Commerce Department’s Denied Parties List”, “Entity List”, o “Unverified List”); ó (c) para actividades relacionadas a la proliferación de armas nucleares, tecnología de misiles, armas químicas o biológicas. Descargando, licenciando y/o usando la Tecnología, usted declara y garantiza que usted (i) no se encuentra ubicado ó bajo el control ó actúa en nombre de, o es un nacional o residente de un País Prohibido; (ii) no se encuentra incluido en ninguna de las listas antes referidas; (iii) no está relacionado con la proliferación de las armas descritas; y (iv) ninguna agencia federal de los Estados Unidos le ha suspendido, revocado o denegado la exportación. Usted acuerda que todos los derechos de uso de la Tecnología están condicionados al cumplimiento de éstos términos. En consecuencia, el derecho de uso terminará en caso de que, en cualquier momento, se incumpla con lo dispuesto precedentemente.
Effective April 9th 2020 to April 9th 2020
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Presionando “Acepto”, usted estará reconociendo que es responsable del cumplimiento de las leyes y normas aplicables de los Estados Unidos y cualquier otro país en cuestión, en relación con el control de exportaciones y re-exportaciones. Usted acepta que no descargará, licenciará o de cualquier otra forma exportará o reexportará en forma directa o indirecta éste software, cualquier publicación técnica relativa al mismo o la información incluida en el mismo (en conjunto, la “Tecnología”) de forma tal que vulnere dichas leyes o normas ó, sin el correspondiente permiso administrativo que se requiera de conformidad con las leyes aplicables. La lista de países prohibidos (“Países Prohibidos”) puede ser y es modificada con frecuencia. Actualmente incluye Cuba, Irán, Corea del Norte, Sudan y Siria. En particular, pero sin limitación, la Tecnología no puede ser descargada, licenciada, exportada o reexportada directa o indirectamente (a) a un País Prohibido ó a un nacional o residente en un País Prohibido; (b) a cualquier persona incluida en la lista del Departamento del Tesoro de los Estados Unidos para Nacionales Especialmente Designados u otras Personas Censuradas, la lista del Departamento de Comercio de los Estados Unidos para Personas Físicas o Jurídicas Rechazadas o la lista Sin Verificar (“U.S. Treasury Department's list of Specially Designated Nationals” u otros “Blocked Persons”, el “U.S. Commerce Department’s Denied Parties List”, “Entity List”, o “Unverified List”); ó (c) para actividades relacionadas a la proliferación de armas nucleares, tecnología de misiles, armas químicas o biológicas. Descargando, licenciando y/o usando la Tecnología, usted declara y garantiza que usted (i) no se encuentra ubicado ó bajo el control ó actúa en nombre de, o es un nacional o residente de un País Prohibido; (ii) no se encuentra incluido en ninguna de las listas antes referidas; (iii) no está relacionado con la proliferación de las armas descritas; y (iv) ninguna agencia federal de los Estados Unidos le ha suspendido, revocado o denegado la exportación. Usted acuerda que todos los derechos de uso de la Tecnología están condicionados al cumplimiento de éstos términos. En consecuencia, el derecho de uso terminará en caso de que, en cualquier momento, se incumpla con lo dispuesto precedentemente.
Effective April 9th 2020 to April 9th 2020
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Declaración de Cumplimiento de Exportación
Al presionar el botón “I Agree” o “De Acuerdo”, usted reconoce que es responsable de cumplir con las leyes, reglamentos y demás disposiciones legales de los Estados Unidos de América y de todos los demás países aplicables, en relación con exportación (incluyendo “deemed export” y “deemed re-export” según se los define en las Regulaciones de Administración de Exportaciones) y reexportación (“Leyes de Exportación”). Usted acepta que no importará, exportará, reexportará o transferirá, directa o indirectamente, incluyendo vía acceso remoto, cualquier parte de los Productos BMC, o cualquier otra información o tecnología de BMC en violación con cualquier ley y/o regulación, o sin haber obtenido por escrito todas las autorizaciones gubernamentales requeridas por dichas leyes aplicables. En particular, pero sin limitación, ningún Software o la información subyacente o tecnología podrá ser bajada o de cualquier otra forma ser exportada o reexportada, ya sea de manera directa o indirecta (a) a cualquier país (o nacional o residente del mismo) al cual los Estados Unidos ha impuesto sanciones comerciales prohibiendo la exportación de cualquier producto; o (b) o a cualquier incluido en la lista de Naciones Especiales Designadas o Otras Personas Bloqueadas del Departamnet del Tesosro de los Estados Unidos (US Treasury Department’s list of Specially Designated Nationals or Other Blocked Persons), la Lista de Partes Denegadas del Departamento de Comercio de los Estadios Unidos (US Commerce Department’s Denied Parties List), la Lista de Entidades del Departamento de Comercio de los Estados Unidos (US Commerce Department’s Entity List), o la Lista de No Verificados del Departamento de Comercio de los Estados Unidos (US Commerce Department’s Unverified List); o (c) a o para cualquier proliferación relacionada con el uso final de armas nucleares, tecnología en misiles o armas químicas o biológicas. Al descargar y/o usar los Productos, usted manifiesta y garantiza que usted no está ubicado, está bajo control de, o es un nacional o residente de cualquiera de los países mencionados, o incluido en alguna de las listas mencionadas anteriormente y que ninguna agencia federal de los Estados Unidos le ha suspendido, revocado o negado sus derechos de exportación.
Product Access Terms
Effective April 9th 2020
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Términos de Acceso al Producto
El Usuario y BMC o su distribuidor autorizado han celebrado contratos de licencia y soporte por los Productos listados en la página de Productos Licenciados, y los derechos y obligaciones de las partes con respecto a tales Productos son regidos por esos contratos. El Usuario es responsable de asegurarse que no bajará Productos o cantidades de Productos que no haya licenciado.
Los Usuarios acceden a este sitio para:
(1) Completar nuevas ordenes de Productos
(2) Conseguir Productos provistos como parte del Soporte; y/o
(3) Conseguir Productos en prueba
Effective April 9th 2020 to April 9th 2020
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Términos de Acceso al Producto
El Usuario y BMC o su distribuidor autorizado han celebrado contratos de licencia y soporte por los Productos listados en la página de Productos Licenciados, y los derechos y obligaciones de las partes con respecto a tales Productos son regidos por esos contratos. El Usuario es responsable de asegurarse que no bajará Productos o cantidades de Productos que no haya licenciado.
Los Usuarios acceden a este sitio para:
(1) Completar nuevas ordenes de Productos
(2) Conseguir Productos provistos como parte del Soporte; y/o
(3) Conseguir Productos en prueba
Effective April 9th 2020 to April 9th 2020
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Términos de Acceso al Producto
El Usuario y BMC o su distribuidor autorizado han celebrado contratos de licencia y soporte por los Productos listados en la página de Productos Licenciados, y los derechos y obligaciones de las partes con respecto a tales Productos son regidos por esos contratos. El Usuario es responsable de asegurarse que no bajará Productos o cantidades de Productos que no haya licenciado.
Los Usuarios acceden a este sitio para:
(1) Completar nuevas ordenes de Productos
(2) Conseguir Productos provistos como parte del Soporte; y/o
(3) Conseguir Productos en prueba
Export Compliance Statement
Effective May 22nd 2024
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Indem Sie auf "Ich stimme zu" klicken, bestätigen Sie, dass Sie alle anwendbaren Gesetze und Vorschriften zur Export- und Reexportkontrolle einhalten werden, einschließlich, aber nicht beschränkt auf die Gesetze der Vereinigten Staaten (USA), der Europäischen Union (EU), des Vereinigten Königreichs (UK) und aller anderen relevanten Länder ("Anwendbare Gesetze"). Sie erklären sich damit einverstanden, dass Sie diese Software, alle technischen Veröffentlichungen, die sich auf diese Software beziehen, oder die zugrundeliegenden Informationen (zusammenfassend als "Technologie" bezeichnet) weder direkt noch indirekt herunterladen, lizenzieren oder anderweitig exportieren oder reexportieren werden, wenn dies einen Verstoß gegen ein solches Anwendbare Gesetz darstellt oder ohne eine schriftliche behördliche Genehmigung, die durch ein solches anwendbares Gesetz vorgeschrieben ist. Darüber hinaus darf die Technologie nicht in Länder oder Regionen exportiert oder reexportiert werden, die umfassenden Sanktionen der USA, der EU und des Vereinigten Königreichs unterliegen, einschließlich aber nicht beschränkt auf: Kuba, Iran, Nordkorea, Syrien und die Regionen Krim, Donezk und Luhansk (jeweils ein "Restringiertes Land"). Die vorstehende Liste erhebt keinen Anspruch auf Vollständigkeit und kann sich je nach den geltenden Exportkontrollbestimmungen auch ändern. Durch das Herunterladen, die Lizenzierung und/oder die Nutzung der Technologie sichern Sie zu und gewährleisten, dass: (a) die Technologie weder direkt noch indirekt heruntergeladen, lizenziert, exportiert oder reexportiert wird: (i) in ein Restringiertes Land oder an einen Staatsangehörigen oder Einwohner eines Restringierten Landes; (ii) an eine Person, die auf der Liste der "Specially Designated Nationals" oder anderer "Blocked Persons" des U.S.-Finanzministeriums, der "Denied Parties List", der "Entity List" oder der "Unverified List" des U.S.-Handelsministeriums oder auf einer anderen Liste der U.S.-Regierung mit Personen oder Organisationen steht, mit denen U.S.-Personen keine Geschäfte tätigen dürfen (zusammenfassend "Liste der restringierten Parteien"); oder (iii) für einen proliferationsbezogenen Endverwendungszweck (Atomwaffen, Raketentechnologie oder chemische/biologische Waffen) ("Unerlaubter Endverwendungszweck"); (b) Sie befinden sich nicht in einem Restringierten Land, stehen nicht unter der Kontrolle eines solchen Landes, handeln nicht im Namen eines solchen Landes oder sind kein Staatsangehöriger oder Einwohner eines solchen Landes; (c) Sie stehen nicht auf einer Liste der restringierten Parteien; (d) Sie sind nicht an einem solchen Unerlaubten Endverwendungszweck beteiligt; und (e) keine U.S.-Bundes- oder Regierungsbehörde hat Ihre Exportprivilegien ausgesetzt, widerrufen oder verweigert. Sie stimmen zu, dass alle Rechte zur Nutzung der Technologie unter der Bedingung gewährt werden, dass diese Rechte verwirkt werden, wenn Sie vorstehende Bedingungen nicht einhalten.
Effective December 23rd 2020 to May 22nd 2024
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Durch das Anklicken von “Ich stimme zu” erkennen Sie an, dass Sie für die Einhaltung der anwendbaren Gesetze und Vorschriften der U.S.A. und aller anderen betreffenden Länder hinsichtlich von Exporten und Re-Exporten („Exportgesetze“) verantwortlich sind. Insbesondere verpflichten Sie sich, Produkte, Teile davon oder alle sonstigen von BMC erhaltene Informationen und Technologien (zusammen „Technologien“) nicht entgegen dieser Exportgesetze oder ohne die hierfür nach den jeweils anwendbaren Exportgesetzen erforderlichen amtlichen Genehmigungen in anderen Ländern herunterzuladen, zu lizenzieren oder auf andere Weise zu exportieren oder zu re-exportieren, sei es direkt oder indirekt. Die Liste der Länder, die aufgrund der Exportgesetze gesperrt sind („Restricted Countries“) kann und wird gelegentlich geändert werden. Derzeit umfasst sie Kuba, Iran, Nordkorea, Sudan, Syrien, und die Crimea Region. Insbesondere dürfen die Technologien weder direkt noch indirekt (a) in Restricted Countries oder an einen Staatsangehörigen oder Einwohner von Restricted Countries, (b) an eine (natürliche oder juristische) Person, die auf einer der folgenden Listen steht: (i) Liste des US-Finanzministeriums („U.S. Treasury Department“) von ausdrücklich benannten Staatsangehörigen oder sonstigen gesperrten Personen („Specially Designated Nationals or other Blocked Persons“), (ii) Liste des US-Wirtschaftsministeriums („U.S. Commerce Department “) der „Denied Parties“, der „Entity List“ oder der „Unverified List“; oder (c) für die Nutzung zu Waffenzwecken (Kernwaffen, Raketentechnik oder chemische/biologische Waffen) heruntergeladen, lizenziert oder auf andere Weise exportiert oder re-exportiert werden. Durch das Herunterladen, Lizenzieren und/oder Nutzen der Technologien sichern Sie zu, dass Sie (w) weder in einem der oben beschriebenen Länder ansässig sind, noch der Kontrolle eines solchen Landes unterstehen oder im Namen eines solchen Landes handeln oder ein Einwohner oder Staatsbürger eines solchen Landes sind, (x) nicht auf einer der genannten Listen stehen, (y) nicht an einer solchen Endnutzung beteiligt sind, und (z) dass Ihnen von keiner U.S. Bundesbehörde je die Export-Berechtigung ausgesetzt, widerrufen oder versagt worden ist. Sie stimmen hiermit zu, dass Ihnen alle Rechte die Technologien zu nutzen unter der Bedingung gewährt werden, dass Sie diese Rechte verlieren, wenn Sie die vorgenannten Bedingungen nicht einhalten.
Effective December 23rd 2020 to December 23rd 2020
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Durch das Anklicken von “Ich stimme zu” erkennen Sie an, dass Sie für die Einhaltung der anwendbaren Gesetze und Vorschriften der U.S.A. und aller anderen betreffenden Länder hinsichtlich von Exporten und Re-Exporten („Exportgesetze“) verantwortlich sind. Insbesondere verpflichten Sie sich, Produkte, Teile davon oder alle sonstigen von BMC erhaltene Informationen und Technologien (zusammen „Technologien“) nicht entgegen dieser Exportgesetze oder ohne die hierfür nach den jeweils anwendbaren Exportgesetzen erforderlichen amtlichen Genehmigungen in anderen Ländern herunterzuladen, zu lizenzieren oder auf andere Weise zu exportieren oder zu re-exportieren, sei es direkt oder indirekt. Die Liste der Länder, die aufgrund der Exportgesetze gesperrt sind („Restricted Countries“) kann und wird gelegentlich geändert werden. Derzeit umfasst sie Kuba, Iran, Nordkorea, Sudan, Syrien, und die Cremea Region. Insbesondere dürfen die Technologien weder direkt noch indirekt (a) in Restricted Countries oder an einen Staatsangehörigen oder Einwohner von Restricted Countries, (b) an eine (natürliche oder juristische) Person, die auf einer der folgenden Listen steht: (i) Liste des US-Finanzministeriums („U.S. Treasury Department“) von ausdrücklich benannten Staatsangehörigen oder sonstigen gesperrten Personen („Specially Designated Nationals or other Blocked Persons“), (ii) Liste des US-Wirtschaftsministeriums („U.S. Commerce Department “) der „Denied Parties“, der „Entity List“ oder der „Unverified List“; oder (c) für die Nutzung zu Waffenzwecken (Kernwaffen, Raketentechnik oder chemische/biologische Waffen) heruntergeladen, lizenziert oder auf andere Weise exportiert oder re-exportiert werden. Durch das Herunterladen, Lizenzieren und/oder Nutzen der Technologien sichern Sie zu, dass Sie (w) weder in einem der oben beschriebenen Länder ansässig sind, noch der Kontrolle eines solchen Landes unterstehen oder im Namen eines solchen Landes handeln oder ein Einwohner oder Staatsbürger eines solchen Landes sind, (x) nicht auf einer der genannten Listen stehen, (y) nicht an einer solchen Endnutzung beteiligt sind, und (z) dass Ihnen von keiner U.S. Bundesbehörde je die Export-Berechtigung ausgesetzt, widerrufen oder versagt worden ist. Sie stimmen hiermit zu, dass Ihnen alle Rechte die Technologien zu nutzen unter der Bedingung gewährt werden, dass Sie diese Rechte verlieren, wenn Sie die vorgenannten Bedingungen nicht einhalten.
Effective April 9th 2020 to December 23rd 2020
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Durch das Anklicken von “Ich stimme zu” erkennen Sie an, dass Sie für die Einhaltung der anwendbaren Gesetze und Vorschriften der U.S.A. und aller anderen betreffenden Länder hinsichtlich von Exporten und Re-Exporten („Exportgesetze“) verantwortlich sind. Insbesondere verpflichten Sie sich, Produkte, Teile davon oder alle sonstigen von BMC erhaltene Informationen und Technologien (zusammen „Technologien“) nicht entgegen dieser Exportgesetze oder ohne die hierfür nach den jeweils anwendbaren Exportgesetzen erforderlichen amtlichen Genehmigungen in anderen Ländern herunterzuladen, zu lizenzieren oder auf andere Weise zu exportieren oder zu re-exportieren, sei es direkt oder indirekt. Die Liste der Länder, die aufgrund der Exportgesetze gesperrt sind („Restricted Countries“) kann und wird gelegentlich geändert werden. Derzeit umfasst sie Kuba, Iran, Nordkorea, Sudan und Syrien. Insbesondere dürfen die Technologien weder direkt noch indirekt (a) in Restricted Countries oder an einen Staatsangehörigen oder Einwohner von Restricted Countries, (b) an eine (natürliche oder juristische) Person, die auf einer der folgenden Listen steht: (i) Liste des US-Finanzministeriums („U.S. Treasury Department“) von ausdrücklich benannten Staatsangehörigen oder sonstigen gesperrten Personen („Specially Designated Nationals or other Blocked Persons“), (ii) Liste des US-Wirtschaftsministeriums („U.S. Commerce Department “) der „Denied Parties“, der „Entity List“ oder der „Unverified List“; oder (c) für die Nutzung zu Waffenzwecken (Kernwaffen, Raketentechnik oder chemische/biologische Waffen) heruntergeladen, lizenziert oder auf andere Weise exportiert oder re-exportiert werden. Durch das Herunterladen, Lizenzieren und/oder Nutzen der Technologien sichern Sie zu, dass Sie (w) weder in einem der oben beschriebenen Länder ansässig sind, noch der Kontrolle eines solchen Landes unterstehen oder im Namen eines solchen Landes handeln oder ein Einwohner oder Staatsbürger eines solchen Landes sind, (x) nicht auf einer der genannten Listen stehen, (y) nicht an einer solchen Endnutzung beteiligt sind, und (z) dass Ihnen von keiner U.S. Bundesbehörde je die Export-Berechtigung ausgesetzt, widerrufen oder versagt worden ist. Sie stimmen hiermit zu, dass Ihnen alle Rechte die Technologien zu nutzen unter der Bedingung gewährt werden, dass Sie diese Rechte verlieren, wenn Sie die vorgenannten Bedingungen nicht einhalten.
Effective April 9th 2020 to April 9th 2020
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Durch das Anklicken von “Ich stimme zu” erkennen Sie an, dass Sie für die Einhaltung der Gesetze und Vorschriften der U.S.A. und aller anderen betreffenden Länder hinsichtlich der Exportkontrolle (einschließlich der „deemed exports“ und „deemed re-exports“ gemäß den US-amerikanischen „Export Administration Regulations“) („Exportgesetze“) verantwortlich sind. Insbesondere verpflichten Sie sich, Produkte, Teile davon oder alle sonstigen von BMC erhaltenen Informationen und Technologien nicht entgegen dieser Exportgesetze oder ohne die hierfür nach den jeweils anwendbaren Exportgesetzten erforderlichen Genehmigungen in andere Länder zu importieren, exportieren, oder sonst zu verbringen, sei es direkt oder indirekt (einschließlich des Weges über Datenfernverbindungen). Insbesondere darf diese Technologie/die Produkte und/oder die diesen zugrundeliegenden Informationen weder direkt noch indirekt (a) nach (oder an einen Staatsangehörigen oder Einwohner von) allen Ländern, gegen welche bezüglich der Produkte ein Handelsembargo der Vereinigten Staaten von Amerika, der Europäischen Union oder Irland, welches die Ausfuhr untersagt besteht; oder (b) an eine (natürliche oder juristische) Person die auf einer der folgenden Listen steht: (i) Liste des US-Finanzministeriums („US Treasury Department“) von ausdrücklich benannten Staatsangehörigen oder sonstigen gesperrten Personen (Specially Designated Nationals or Other Blocked Persons“), (i) Liste des US-Wirtschaftsministeriums der “Denied Parties” oder der „Entity List“ oder der „Unverified List“´; oder (c) für die Nutzung zu Waffenzwecken (Kernwaffen, Raketentechnik oder chemisch/biologischen Waffen)
heruntergeladen werden oder in anderer Weise importiert, exportiert oder sonst verbracht werden. Durch das Herunterladen und/oder Nutzen der Produkte sichern Sie zu, dass Sie weder in einem der oben beschriebenen Länder ansässig sind, noch der Kontrolle eines solchen Landes unterstehen oder ein Einwohner oder Staatsbürger eines solchen Landes sind, noch auf einer der genannten Liste stehen sowie, dass Ihnen von keiner US Bundesbehörde je die Export-Berechtigung ausgesetzt, widerrufen oder versagt worden ist.
Effective April 9th 2020 to April 9th 2020
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Export Compliance Erklärung:
Durch das Anklicken von “Ich stimme zu” erkennen Sie an, dass Sie für die Einhaltung der Gesetze und Vorschriften der U.S.A. und aller anderen betreffenden Länder hinsichtlich der Exportkontrolle (einschließlich der „deemed exports“ und „deemed re-exports“ gemäß den US-amerikanischen „Export Administration Regulations“) („Exportgesetze“) verantwortlich sind. Insbesondere verpflichten Sie sich, Produkte, Teile davon oder alle sonstigen von BMC erhaltenen Informationen und Technologien nicht entgegen dieser Exportgesetze oder ohne die hierfür nach den jeweils anwendbaren Exportgesetzten erforderlichen Genehmigungen in andere Länder zu importieren, exportieren, oder sonst zu verbringen, sei es direkt oder indirekt (einschließlich des Weges über Datenfernverbindungen). Insbesondere darf diese Technologie/die Produkte und/oder die diesen zugrundeliegenden Informationen weder direkt noch indirekt (a) nach (oder an einen Staatsangehörigen oder Einwohner von) allen Ländern, gegen welche bezüglich der Produkte ein Handelsembargo der Vereinigten Staaten von Amerika, der Europäischen Union oder Irland, welches die Ausfuhr untersagt besteht; oder (b) an eine (natürliche oder juristische) Person die auf einer der folgenden Listen steht: (i) Liste des US-Finanzministeriums („US Treasury Department“) von ausdrücklich benannten Staatsangehörigen oder sonstigen gesperrten Personen (Specially Designated Nationals or Other Blocked Persons“), (i) Liste des US-Wirtschaftsministeriums der “Denied Parties” oder der „Entity List“ oder der „Unverified List“´; oder (c) für die Nutzung zu Waffenzwecken (Kernwaffen, Raketentechnik oder chemisch/biologischen Waffen) heruntergeladen werden oder in anderer Weise importiert, exportiert oder sonst verbracht werden. Durch das Herunterladen und/oder Nutzen der Produkte sichern Sie zu, dass Sie weder in einem der oben beschriebenen Länder ansässig sind, noch der Kontrolle eines solchen Landes unterstehen oder ein Einwohner oder Staatsbürger eines solchen Landes sind, noch auf einer der genannten Liste stehen sowie, dass Ihnen von keiner US Bundesbehörde je die Export-Berechtigung ausgesetzt, widerrufen oder versagt worden ist.
Product Access Terms
Effective April 9th 2020
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Nutzer und BMC oder dessen autorisierter Wiederverkäufer haben Lizenz- und Wartungsverträge bezüglich derjenigen Produkte abgeschlossen, die auf der „Licensed Products“ - Seite aufgelistet sind. Die Rechte und Pflichten der Parteien bezüglich dieser Produkte unterliegen den vorgenannten Verträgen. Der Nutzer ist verpflichtet, keine Produkte bzw. Produktmengen herunterzuladen, für die er keine Lizenz hat.
Nutzer greifen auf diese Seite zu um
(1) neu erworbene Produkte herunterzuladen
(2) Produkte als Teil der Wartung zur Verfügung gestellt zu bekommen, und/oder
(3) Testversionen von Produkten zu bekommen
Effective April 9th 2020 to April 9th 2020
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Nutzer und BMC oder dessen autorisierter Wiederverkäufer haben Lizenz- und Wartungsverträge bezüglich derjenigen Produkte abgeschlossen, die auf der „Licensed Products“ - Seite aufgelistet sind. Die Rechte und Pflichten der Parteien bezüglich dieser Produkte unterliegen den vorgenannten Verträgen. Der Nutzer ist verpflichtet, keine Produkte bzw. Produktmengen herunterzuladen, für die er keine Lizenz hat.
Nutzer greifen auf diese Seite zu um
(1) neu erworbene Produkte herunterzuladen
(2) Produkte als Teil der Wartung zur Verfügung gestellt zu bekommen, und/oder
(3) Testversionen von Produkten zu bekommen
Effective April 9th 2020 to April 9th 2020
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Bedingungen für den Zugriff auf die Produkte
Nutzer und BMC oder dessen autorisierter Wiederverkäufer haben Lizenz- und Wartungsverträge bezüglich derjenigen Produkte abgeschlossen, die auf der „Licensed Products“ - Seite aufgelistet sind. Die Rechte und Pflichten der Parteien bezüglich dieser Produkte unterliegen den vorgenannten Verträgen. Der Nutzer ist verpflichtet, keine Produkte bzw. Produktmengen herunterzuladen, für die er keine Lizenz hat.
Nutzer greifen auf diese Seite zu um
(1) neu erworbene Produkte herunterzuladen
(2) Produkte als Teil der Wartung zur Verfügung gestellt zu bekommen, und/oder
(3) Testversionen von Produkten zu bekommen
Product Access Terms
Effective April 9th 2020
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Conditions d'Accès aux Produits:
L'Utilisateur et BMC ou ses distributeurs autorisés ont conclu des accords de licence et de maintenance pour les Produits listés sur la page des Produits Licenciés, et les droits et obligations des Parties relativement à ces Produits sont régis par lesdits accords. Il revient à l'Utilisateur de s'assurer qu'il ne télécharge aucun Produit ou quantité de Produit pour lesquels il ne serait pas licencié.
Les Utilisateurs accèdent au présent site afin de:
(1) Compléter de nouvelles commandes de Produits
(2) Obtenir des Produits fournis dans le cadre du Support; et/ou
(3) Obtenir des Produits d'essai
Effective April 9th 2020 to April 9th 2020
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Conditions d'Accès aux Produits:
L'Utilisateur et BMC ou ses distributeurs autorisés ont conclu des accords de licence et de maintenance pour les Produits listés sur la page des Produits Licenciés, et les droits et obligations des Parties relativement à ces Produits sont régis par lesdits accords. Il revient à l'Utilisateur de s'assurer qu'il ne télécharge aucun Produit ou quantité de Produit pour lesquels il ne serait pas licencié.
Les Utilisateurs accèdent au présent site afin de:
(1) Compléter de nouvelles commandes de Produits
(2) Obtenir des Produits fournis dans le cadre du Support; et/ou
(3) Obtenir des Produits d'essai
Effective April 9th 2020 to April 9th 2020
DownloadTable of Contents
Conditions d'Accès aux Produits:
L'Utilisateur et BMC ou ses distributeurs autorisés ont conclu des accords de licence et de maintenance pour les Produits listés sur la page des Produits Licenciés, et les droits et obligations des Parties relativement à ces Produits sont régis par lesdits accords. Il revient à l'Utilisateur de s'assurer qu'il ne télécharge aucun Produit ou quantité de Produit pour lesquels il ne serait pas licencié.
Les Utilisateurs accèdent au présent site afin de:
(1) Compléter de nouvelles commandes de Produits
(2) Obtenir des Produits fournis dans le cadre du Support; et/ou
(3) Obtenir des Produits d'essai
Export Compliance Statement
Effective May 22nd 2024
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En cliquant sur « J'accepte », vous reconnaissez que vous vous conformerez à toutes les lois et réglementations applicables en matière de contrôle des exportations et des réexportations, y compris, mais sans s'y limiter, celles des États-Unis, de l'Union Européenne, du Royaume-Uni et de tout autre pays concerné (les « Lois Applicables »). Vous acceptez de ne pas télécharger, accorder de licence ou exporter ou réexporter, directement ou indirectement, ce logiciel, toute publication technique relative à ce logiciel ou toute information sous-jacente (collectivement, la « Technologie ») en violation des Lois Applicables, ou sans autorisation gouvernementale écrite requise par les Lois Applicables. En outre, la Technologie ne peut pas être exportée ou réexportée vers des pays ou régions soumis à des sanctions émises par les États-Unis, l'Union Européenne et le Royaume-Uni, y compris, mais sans s'y limiter : Cuba, l'Iran, la Corée du Nord, la Syrie et les régions de Crimée, de Donetsk et de Louhansk (chacun étant désigné un « Pays Soumis à des Restrictions »). La liste qui précède n'est pas exhaustive et est également susceptible d'être modifiée en fonction des réglementations applicables en matière de contrôle des exportations. En téléchargeant, en concédant des licences et/ou en utilisant la Technologie, vous déclarez et garantissez que : (a) la Technologie ne sera pas téléchargée, concédée sous licence, exportée ou réexportée, directement ou indirectement : (i) dans un Pays Soumis à des Restrictions ou à un ressortissant ou résident d'un Pays Soumis à des Restrictions ; (ii) à toute personne figurant sur la liste des « Ressortissants Spécialement Désignés et Personnes Bloquées » du Département du Trésor des États-Unis, sur la « Denied Persons List », la « Entity List » ou la « Unverified List » du Département du Commerce des États-Unis, ou sur toute autre liste du gouvernement des États-Unis de personnes ou d'entités avec lesquelles il est interdit aux personnes des États-Unis d'effectuer des transactions (collectivement, « Liste des Parties Soumises à des Restrictions ») ; ou (iii) pour toute utilisation finale liée à la prolifération (armes nucléaires, technologie des missiles ou armes chimiques/biologiques) (« Utilisation Finale Non Autorisée ») ; (b) vous n'êtes pas situé dans, sous le contrôle de, agissant au nom de, ou un ressortissant ou résident d'un Pays Soumis à des Restrictions ; (c) vous n'êtes pas sur la Liste des Parties Soumises à Restrictions ; (d) vous n'êtes pas impliqué dans une Utilisation Finale Non Autorisée ; et (e) aucune agence fédérale ou gouvernementale américaine n'a suspendu, révoqué ou refusé vos privilèges d'exportation. Vous acceptez que tous les droits d'utilisation sur la Technologie sont accordés à la condition que ces droits soient révoqués si vous ne respectez pas ces conditions.
Effective December 23rd 2020 to May 22nd 2024
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En cliquant sur “J’accepte”, vous reconnaissez qu’il est de votre responsabilité de vous conformer aux lois et règlementations en matière d’exportation ou de ré-exportation applicables aux Etats-Unis ou dans tout autre pays. Vous acceptez de ne pas télécharger, licencier, exporter ou ré-exporter ce Progiciel ni la documentation technique (ci-après la “Technologie”) relative, directement ou indirectement, en violation de telles lois ou règlementations ou sans autorisation gouvernementale écrite éventuellement requise par lesdites lois ou règlementations. La liste des Pays sous embargo est susceptible d’être régulièrement modifiée. Cette liste inclue à ce jour Cuba, l’Iran, la Corée du nord, le Soudan, la Syrie, le Crimea Region. La Technologie ne peut notamment être téléchargée, licenciée, importée ou ré-exportée, directement ou indirectement, (a) dans un pays sous embargo ou vers un citoyen ou résident d’un pays sous embargo; (b) à toute personne figurant sur la liste des Ressortissants Spécialement Désignés ou autres Personnes Bloquées du Département du Trésor des Etats-Unis, ou sur la Liste des Personnes ou Entités ayant Interdiction d’Exporter du Ministère du Commerce des États-Unis, ou sur la Liste des Entités du Ministère du Commerce des États-Unis ou de la Liste Non Vérifiée du Ministère du Commerce des Etats-Unis ; ou (c) en vue d’un usage final lié à la prolifération (d’armes nucléaires, de la technologie des missiles ou des armes chimiques / biologiques). En téléchargeant, licenciant et/ou utilisant la Technologie, vous garantissez que (w) vous n’êtes ni établi, ni sous contrôle de, ni agissant pour le compte de, ni résident ou citoyen de l’un de ces pays ; (x) vous ne figurez pas sur l’une de ces listes ; (y) vous n’êtes pas impliqué dans un tel usage final ; et (z) aucune agence fédérale des Etats-Unis n’a suspendu, révoqué, ou dénié vos droits d’exportations. Vous reconnaissez que les droits d’utilisation de la Technologie sont concédés sous réserve du respect des dispositions ci-dessus.
Effective December 23rd 2020 to December 23rd 2020
DownloadTable of Contents
En cliquant sur “J’accepte”, vous reconnaissez qu’il est de votre responsabilité de vous conformer aux lois et règlementations en matière d’exportation ou de ré-exportation applicables aux Etats-Unis ou dans tout autre pays. Vous acceptez de ne pas télécharger, licencier, exporter ou ré-exporter ce Progiciel ni la documentation technique (ci-après la “Technologie”) relative, directement ou indirectement, en violation de telles lois ou règlementations ou sans autorisation gouvernementale écrite éventuellement requise par lesdites lois ou règlementations. La liste des Pays sous embargo est susceptible d’être régulièrement modifiée. Cette liste inclue à ce jour Cuba, l’Iran, la Corée du nord, le Soudan, la Syrie, le Cremea Region. La Technologie ne peut notamment être téléchargée, licenciée, importée ou ré-exportée, directement ou indirectement, (a) dans un pays sous embargo ou vers un citoyen ou résident d’un pays sous embargo; (b) à toute personne figurant sur la liste des Ressortissants Spécialement Désignés ou autres Personnes Bloquées du Département du Trésor des Etats-Unis, ou sur la Liste des Personnes ou Entités ayant Interdiction d’Exporter du Ministère du Commerce des États-Unis, ou sur la Liste des Entités du Ministère du Commerce des États-Unis ou de la Liste Non Vérifiée du Ministère du Commerce des Etats-Unis ; ou (c) en vue d’un usage final lié à la prolifération (d’armes nucléaires, de la technologie des missiles ou des armes chimiques / biologiques). En téléchargeant, licenciant et/ou utilisant la Technologie, vous garantissez que (w) vous n’êtes ni établi, ni sous contrôle de, ni agissant pour le compte de, ni résident ou citoyen de l’un de ces pays ; (x) vous ne figurez pas sur l’une de ces listes ; (y) vous n’êtes pas impliqué dans un tel usage final ; et (z) aucune agence fédérale des Etats-Unis n’a suspendu, révoqué, ou dénié vos droits d’exportations. Vous reconnaissez que les droits d’utilisation de la Technologie sont concédés sous réserve du respect des dispositions ci-dessus.
Effective April 9th 2020 to December 23rd 2020
DownloadTable of Contents
En cliquant sur “J’accepte”, vous reconnaissez qu’il est de votre responsabilité de vous conformer aux lois et règlementations en matière d’exportation ou de ré-exportation applicables aux Etats-Unis ou dans tout autre pays. Vous acceptez de ne pas télécharger, licencier, exporter ou ré-exporter ce Progiciel ni la documentation technique (ci-après la “Technologie”) relative, directement ou indirectement, en violation de telles lois ou règlementations ou sans autorisation gouvernementale écrite éventuellement requise par lesdites lois ou règlementations. La liste des Pays sous embargo est susceptible d’être régulièrement modifiée. Cette liste inclue à ce jour Cuba, l’Iran, la Corée du nord, le Soudan, la Syrie. La Technologie ne peut notamment être téléchargée, licenciée, importée ou ré-exportée, directement ou indirectement, (a) dans un pays sous embargo ou vers un citoyen ou résident d’un pays sous embargo; (b) à toute personne figurant sur la liste des Ressortissants Spécialement Désignés ou autres Personnes Bloquées du Département du Trésor des Etats-Unis, ou sur la Liste des Personnes ou Entités ayant Interdiction d’Exporter du Ministère du Commerce des États-Unis, ou sur la Liste des Entités du Ministère du Commerce des États-Unis ou de la Liste Non Vérifiée du Ministère du Commerce des Etats-Unis ; ou (c) en vue d’un usage final lié à la prolifération (d’armes nucléaires, de la technologie des missiles ou des armes chimiques / biologiques). En téléchargeant, licenciant et/ou utilisant la Technologie, vous garantissez que (w) vous n’êtes ni établi, ni sous contrôle de, ni agissant pour le compte de, ni résident ou citoyen de l’un de ces pays ; (x) vous ne figurez pas sur l’une de ces listes ; (y) vous n’êtes pas impliqué dans un tel usage final ; et (z) aucune agence fédérale des Etats-Unis n’a suspendu, révoqué, ou dénié vos droits d’exportations. Vous reconnaissez que les droits d’utilisation de la Technologie sont concédés sous réserve du respect des dispositions ci-dessus.
Effective April 9th 2020 to April 9th 2020
DownloadTable of Contents
DECLARATION DE CONFORMITE AUXS LOIS D’EXPORTATION.
En cliquant sur “J’accepte”, vous reconnaissez qu’il est de votre responsabilité de vous conformer aux lois et règlementations en matière d’exportation ou de ré-exportation applicables aux Etats-Unis ou dans tout autre pays. Vous acceptez de ne pas télécharger, licencier, exporter ou ré-exporter ce Progiciel ni la documentation technique (ci-après la “Technologie”) relative, directement ou indirectement, en violation de telles lois ou règlementations ou sans autorisation gouvernementale écrite éventuellement requise par lesdites lois ou règlementations. La liste des Pays sous embargo est susceptible d’être régulièrement modifiée. Cette liste inclue à ce jour Cuba, l’Iran, la Corée du nord, le Soudan, la Syrie. La Technologie ne peut notamment être téléchargée, licenciée, importée ou ré-exportée, directement ou indirectement, (a) dans un pays sous embargo ou vers un citoyen ou résident d’un pays sous embargo; (b) à toute personne figurant sur la liste des Ressortissants Spécialement Désignés ou autres Personnes Bloquées du Département du Trésor des Etats-Unis, ou sur la Liste des Personnes ou Entités ayant Interdiction d’Exporter du Ministère du Commerce des États-Unis, ou sur la Liste des Entités du Ministère du Commerce des États-Unis ou de la Liste Non Vérifiée du Ministère du Commerce des Etats-Unis ; ou (c) en vue d’un usage final lié à la prolifération (d’armes nucléaires, de la technologie des missiles ou des armes chimiques / biologiques). En téléchargeant, licenciant et/ou utilisant la Technologie, vous garantissez que (w) vous n’êtes ni établi, ni sous contrôle de, ni agissant pour le compte de, ni résident ou citoyen de l’un de ces pays ; (x) vous ne figurez pas sur l’une de ces listes ; (y) vous n’êtes pas impliqué dans un tel usage final ; et (z) aucune agence fédérale des Etats-Unis n’a suspendu, révoqué, ou dénié vos droits d’exportations. Vous reconnaissez que les droits d’utilisation de la Technologie sont concédés sous réserve du respect des dispositions ci-dessus.
Effective April 9th 2020 to April 9th 2020
DownloadTable of Contents
DECLARATION DE CONFORMITE AUXS LOIS D’EXPORTATION.
En cliquant sur le bouton " J'accepte " , vous reconnaissez qu’il vous appartient de vous conformer aux lois et règlements d'exportation des États-Unis et d'autres lois locales relatives aux exportations (y compris les " exportations “présumées” et ré-exportations “présumées” telles que définis par les Règlements de l’Administration d’Exportation) ainsi que les ré-exportations (les “Lois d’Exportation”). Vous acceptez de ne pas importer, exporter, ré-exporter ou transférer, directement ou indirectement, y compris par accès à distance, tout ou partie d’un Progiciel BMC, ou toute autre information ou technologie de BMC en violation desdites lois, ou sans l’autorisation écrite de l’autorité publique requise par ces lois le cas échéant. Par ailleurs, et sans que cela soit exhaustif, aucun Progiciel ou technologie ou information attachée ne peut être téléchargé ni exporté ou ré-exporté, directement ou indirectement, (a) vers un pays (ou un citoyen ou résident de ce pays) pour lequels le gouvernement des Etats-Unis a imposé des sanctions commerciales interdisant l'exportation de touts produits; (b) à toute personne figurant sur les listes du Département du Trésor des États-Unis des Ressortissants Désignés Spécialement ou Autres Personnes Bloquées, la Liste des Personnes ou Entités ayant interdiction d’exporter du Département du Commerce des États-Unis, ou de la Liste non Vérifiée du Département du Commerce des États-Unis; ou (c) en vue de la prolifération d'armes nucléaires, chimiques ou biologiques ou le développement de technologie des missiles. En téléchargeant et/ou en utilisant les Progiciels, vous certifiez que vous n’êtes pas domicilé ni sous le contrôle d’un tel pays, ni un citoyen ou résident d’un tel pays, et que vous ne figurez sur aucune des liste précitées, ni qu’aucune agence fédérale des Etats-Unis d’Amérique n’a suspendu, révoqué ou refusé votre éventuelle licence d’exportation.
Export Compliance Statement
Effective May 28th 2024
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Ao clicar em Concordo, você reconhece que cumprirá todas as leis e regulamentos de controle de exportação e reexportação aplicáveis, incluindo, entre outros, os dos Estados Unidos (EUA), da União Europeia (UE), do Reino Unido (RU) e de todos os outros países relevantes ("Leis Aplicáveis"). Você concorda em não fazer download, licenciar ou, de outra forma, exportar ou reexportar, direta ou indiretamente, este software, quaisquer publicações técnicas relacionadas a este software ou informações subjacentes (coletivamente, "Tecnologia") em violação a qualquer uma dessas Leis Aplicáveis, ou sem qualquer autorização governamental por escrito exigida por essas Leis Aplicáveis. Além disso, a Tecnologia não pode ser exportada ou reexportada para quaisquer países ou regiões sujeitos a sanções abrangentes emitidas pelos EUA, UE e Reino Unido, incluindo, entre outros: Cuba, Irã, Coreia do Norte, Síria e as regiões da Crimeia, Donetsk e Luhansk (cada um deles um "País Restrito"). A lista anterior não é exaustiva e também está sujeita a alterações, dependendo dos regulamentos de controle de exportação aplicáveis. Ao fazer o download, licenciar e/ou usar a Tecnologia, você declara e garante que: (a) a Tecnologia não será baixada, licenciada, exportada ou reexportada, direta ou indiretamente: (i) para um País Restrito ou para um cidadão ou residente de um País Restrito; (ii) para qualquer pessoa da lista de Cidadãos Especialmente Designados ou outras Pessoas Bloqueadas do Departamento do Tesouro dos EUA, da Lista de Partes Negadas, da Lista de Entidades ou da Lista Não Verificada do Departamento de Comércio dos EUA, ou de qualquer outra lista do governo dos EUA de pessoas ou entidades com as quais pessoas dos EUA estejam proibidas de fazer transações (coletivamente “Lista de Pessoas Restritas”); ou (iii) uso final relacionado à proliferação (armas nucleares, tecnologia de mísseis ou outras armas químicas/biológicas) (“Uso Final Não Autorizado”) (b) você não está localizado em, sob controle de, agindo em nome de, ou é nacional ou residente de um País Restrito; (c) você não está em uma Lista de Partes Restritas; (d) você não está envolvido em qualquer Uso Final Não Autorizado; e (e) nenhum órgão federal ou governamental dos EUA suspendeu, revogou ou negou seus privilégios de exportação. Você concorda que todos os direitos de uso da Tecnologia são concedidos sob a condição de que tais direitos sejam perdidos caso você não cumpra estes termos.
Effective December 23rd 2020 to May 28th 2024
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Ao clicar em "Eu concordo", você reconhece que você é responsável por cumprir as leis e regulamentos relacionados à exportação e re-exportação aplicáveis dos Estados Unidos e todos os outros países. Você concorda que você não realizará download, licenciará ou de outra forma exportará ou re-exportará, direta ou indiretamente, este software, quaisquer publicações técnicas relacionadas a este software ou informações relacionadas (em conjunto, “Tecnologia”) em violação a tais leis e regulamentos ou sem qualquer autorização governamental exigida por tais leis aplicáveis. A lista de Países Restritos pode ser e é alterada de tempos em tempos. Atualmente, ela inclui Cuba, Irã , Coréia do Norte, Sudão, Síria e Crimea Region. Em especial, mas sem limitação, a Tecnologia não pode ser adquirida por meio de download, licenciada ou de outra forma exportada ou re-exportada, direta ou indiretamente (a) para um País Restrito ou para um cidadão ou residente do País Restrito; (b) para qualquer indivíduo constante da Lista de Indivíduos Especialmente Designados do Departamento do Tesouro dos Estados Unidos ou outros Indivíduos Proibidos, a Lista de Partes Denegadas do Departamento de Comércio dos Estados Unidos, Lista de Empresa ou Lista não Verificada; ou (c) para qualquer motivo relacionado a proliferação (armas nucleares, tecnologia de míssil ou armas químicas/biológicas). Ao realizar download, licenciar e/ou usar a Tecnologia, você declara e garante que (w) você não está localizado, sob o controle, atuando em nome de ou é um cidadão ou residente de qualquer país mencionado acima; (x) você não está listado em qualquer lista acima; (y) você não está envolvido em qualquer uso mencionado acima; e (z) nenhum órgão dos Estados Unidos suspendeu, revogou ou negou seus privilégios de exportação. Você concorda que todos os direitos de usar a Tecnologia são concedidos sob a condição de que tais direitos serão revogados se você deixar de cumprir estes termos.
Effective December 23rd 2020 to December 23rd 2020
DownloadTable of Contents
Ao clicar em "Eu concordo", você reconhece que você é responsável por cumprir as leis e regulamentos relacionados à exportação e re-exportação aplicáveis dos Estados Unidos e todos os outros países. Você concorda que você não realizará download, licenciará ou de outra forma exportará ou re-exportará, direta ou indiretamente, este software, quaisquer publicações técnicas relacionadas a este software ou informações relacionadas (em conjunto, “Tecnologia”) em violação a tais leis e regulamentos ou sem qualquer autorização governamental exigida por tais leis aplicáveis. A lista de Países Restritos pode ser e é alterada de tempos em tempos. Atualmente, ela inclui Cuba, Irã , Coréia do Norte, Sudão, Síria e Cremea Region. Em especial, mas sem limitação, a Tecnologia não pode ser adquirida por meio de download, licenciada ou de outra forma exportada ou re-exportada, direta ou indiretamente (a) para um País Restrito ou para um cidadão ou residente do País Restrito; (b) para qualquer indivíduo constante da Lista de Indivíduos Especialmente Designados do Departamento do Tesouro dos Estados Unidos ou outros Indivíduos Proibidos, a Lista de Partes Denegadas do Departamento de Comércio dos Estados Unidos, Lista de Empresa ou Lista não Verificada; ou (c) para qualquer motivo relacionado a proliferação (armas nucleares, tecnologia de míssil ou armas químicas/biológicas). Ao realizar download, licenciar e/ou usar a Tecnologia, você declara e garante que (w) você não está localizado, sob o controle, atuando em nome de ou é um cidadão ou residente de qualquer país mencionado acima; (x) você não está listado em qualquer lista acima; (y) você não está envolvido em qualquer uso mencionado acima; e (z) nenhum órgão dos Estados Unidos suspendeu, revogou ou negou seus privilégios de exportação. Você concorda que todos os direitos de usar a Tecnologia são concedidos sob a condição de que tais direitos serão revogados se você deixar de cumprir estes termos.
Effective April 9th 2020 to December 23rd 2020
DownloadTable of Contents
Ao clicar em "Eu concordo", você reconhece que você é responsável por cumprir as leis e regulamentos relacionados à exportação e re-exportação aplicáveis dos Estados Unidos e todos os outros países. Você concorda que você não realizará download, licenciará ou de outra forma exportará ou re-exportará, direta ou indiretamente, este software, quaisquer publicações técnicas relacionadas a este software ou informações relacionadas (em conjunto, “Tecnologia”) em violação a tais leis e regulamentos ou sem qualquer autorização governamental exigida por tais leis aplicáveis. A lista de Países Restritos pode ser e é alterada de tempos em tempos. Atualmente, ela inclui Cuba, Irã , Coréia do Norte, Sudão e Síria. Em especial, mas sem limitação, a Tecnologia não pode ser adquirida por meio de download, licenciada ou de outra forma exportada ou re-exportada, direta ou indiretamente (a) para um País Restrito ou para um cidadão ou residente do País Restrito; (b) para qualquer indivíduo constante da Lista de Indivíduos Especialmente Designados do Departamento do Tesouro dos Estados Unidos ou outros Indivíduos Proibidos, a Lista de Partes Denegadas do Departamento de Comércio dos Estados Unidos, Lista de Empresa ou Lista não Verificada; ou (c) para qualquer motivo relacionado a proliferação (armas nucleares, tecnologia de míssil ou armas químicas/biológicas). Ao realizar download, licenciar e/ou usar a Tecnologia, você declara e garante que (w) você não está localizado, sob o controle, atuando em nome de ou é um cidadão ou residente de qualquer país mencionado acima; (x) você não está listado em qualquer lista acima; (y) você não está envolvido em qualquer uso mencionado acima; e (z) nenhum órgão dos Estados Unidos suspendeu, revogou ou negou seus privilégios de exportação. Você concorda que todos os direitos de usar a Tecnologia são concedidos sob a condição de que tais direitos serão revogados se você deixar de cumprir estes termos.
Effective April 9th 2020 to April 9th 2020
DownloadTable of Contents
Declaração de Exportação em Conformidade
Ao clicar em "Eu concordo", você reconhece que você é responsável por cumprir as leis e regulamentos relacionados à exportação e re-exportação aplicáveis dos Estados Unidos e todos os outros países. Você concorda que você não realizará download, licenciará ou de outra forma exportará ou re-exportará, direta ou indiretamente, este software, quaisquer publicações técnicas relacionadas a este software ou informações relacionadas (em conjunto, “Tecnologia”) em violação a tais leis e regulamentos ou sem qualquer autorização governamental exigida por tais leis aplicáveis. A lista de Países Restritos pode ser e é alterada de tempos em tempos. Atualmente, ela inclui Cuba, Irã , Coréia do Norte, Sudão e Síria. Em especial, mas sem limitação, a Tecnologia não pode ser adquirida por meio de download, licenciada ou de outra forma exportada ou re-exportada, direta ou indiretamente (a) para um País Restrito ou para um cidadão ou residente do País Restrito; (b) para qualquer indivíduo constante da Lista de Indivíduos Especialmente Designados do Departamento do Tesouro dos Estados Unidos ou outros Indivíduos Proibidos, a Lista de Partes Denegadas do Departamento de Comércio dos Estados Unidos, Lista de Empresa ou Lista não Verificada; ou (c) para qualquer motivo relacionado a proliferação (armas nucleares, tecnologia de míssil ou armas químicas/biológicas). Ao realizar download, licenciar e/ou usar a Tecnologia, você declara e garante que (w) você não está localizado, sob o controle, atuando em nome de ou é um cidadão ou residente de qualquer país mencionado acima; (x) você não está listado em qualquer lista acima; (y) você não está envolvido em qualquer uso mencionado acima; e (z) nenhum órgão dos Estados Unidos suspendeu, revogou ou negou seus privilégios de exportação. Você concorda que todos os direitos de usar a Tecnologia são concedidos sob a condição de que tais direitos serão revogados se você deixar de cumprir estes termos.
Effective April 9th 2020 to April 9th 2020
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Declaração de Exportação em Conformidade
Ao clicar “Eu concordo”, você está reconhecendo que você será responsável por cumprir todas as leis e regulamentos dos Estados Unidos da América e de qualquer outro país aplicável, em relação à exportação (incluindo os ““considerados” exportados ou “considerados” reexportados, conforme definidos no Regulamento de Administração de Exportações) e reexportação (Leis de Exportação). Você concorda que não importará, exportará, re-exportará ou transferirá, direta ou indiretamente, inclusive através de via de acesso remota, qualquer parte dos Produtos BMC, ou qualquer outra informação ou tecnologia BMC em violação a tais leis e regulamentos, ou sem obter a autorização governamental escrita exigida sob as leis aplicáveis. Em particular, nem o Software, a informação ou tecnologia correlatas poderão ser eletronicamente gravadas (“download”) ou de alguma outra forma exportadas ou re-exportadas, direta ou indiretamente, incluindo-se, mas sem limitação, (a) para (um cidadão ou residente) de países para os quais os Estados Unidos da América tenham imposto sanções comerciais que vedem a exportação de quaisquer produtos; (b) para qualquer um que esteja na lista do Ministério do Tesouro dos Estados Unidos da América denominada “Specially Designated Nationals or Other Blocked Persons”, nas listas do Departamento de Comércio dos Estados Norte-Americano intituladas “Denied Parties List”, “Department’s Entity List” e “Unverified List” ou (c) para uso com propósito final relacionado a propagação (armas nucleares, químicas ou biológicas, bem como tecnologia para mísseis). Ao fazer o “download” e/ou usar os Produtos, você declara e garante que você não está localizado em, ou sob controle de, nem é cidadão ou residente de qualquer país acima aludido, ou que consta em qualquer das listas acima mencionadas e que nenhuma agência federal dos Estados Unidos da América suspendeu, revogou ou negado seus direitos de exportação.
Product Access Terms
Effective April 9th 2020
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Termos de Acesso aos Produtos
O Usuário e a BMC ou seu distribuidor autorizado, firmaram contratos de licença e suporte para os Produtos listados na página de Produtos licenciados, e os direitos e obrigações das partes com relação a tais Produtos são regidos por tais contratos. O Usuário é responsável por assegurar que não irá baixar Produtos que não tenham sido licenciados nem quantidades não-licenciadas.
Os Usuários acessam esta página para:
(1) Preencher novos pedidos de Produtos
(2) Obter Produtos fornecidos como parte do Suporte; e/ou
(3) Obter Produtos para uso experimental
Effective April 9th 2020 to April 9th 2020
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Termos de Acesso aos Produtos
O Usuário e a BMC ou seu distribuidor autorizado, firmaram contratos de licença e suporte para os Produtos listados na página de Produtos licenciados, e os direitos e obrigações das partes com relação a tais Produtos são regidos por tais contratos. O Usuário é responsável por assegurar que não irá baixar Produtos que não tenham sido licenciados nem quantidades não-licenciadas.
Os Usuários acessam esta página para:
(1) Preencher novos pedidos de Produtos
(2) Obter Produtos fornecidos como parte do Suporte; e/ou
(3) Obter Produtos para uso experimental
Effective April 9th 2020 to April 9th 2020
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Termos de Acesso aos Produtos
O Usuário e a BMC ou seu distribuidor autorizado, firmaram contratos de licença e suporte para os Produtos listados na página de Produtos licenciados, e os direitos e obrigações das partes com relação a tais Produtos são regidos por tais contratos. O Usuário é responsável por assegurar que não irá baixar Produtos que não tenham sido licenciados nem quantidades não-licenciadas.
Os Usuários acessam esta página para:
(1) Preencher novos pedidos de Produtos
(2) Obter Produtos fornecidos como parte do Suporte; e/ou
(3) Obter Produtos para uso experimental
Product Access Terms
Effective April 9th 2020
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Condizioni di Accesso al prodotto
L’Utente e BMC o il distributore da esso autorizzato hanno raggiunto un accordo per la licenza e il supporto per I Prodotti elencati nella pagina “Licensed Products”; I diritti e le obbligazioni di ciascuna parte in merito ai Prodotti sono regolati da quegli Accordi. L’utente sarà responsabile per qualsiasi download di Prodotti non licenziati o nel caso in cui le quantità di tali Prodotti eccedano quanto licneziato.
L’utente accede al sito per:
(1) inserire nuovi ordini per I prodotti
(2) ottenere I prodotti in quanto parte del supporto; e/o
(3) ottenere licenza in prova sui prodotti
Effective April 9th 2020 to April 9th 2020
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Condizioni di Accesso al prodotto
L’Utente e BMC o il distributore da esso autorizzato hanno raggiunto un accordo per la licenza e il supporto per I Prodotti elencati nella pagina “Licensed Products”; I diritti e le obbligazioni di ciascuna parte in merito ai Prodotti sono regolati da quegli Accordi. L’utente sarà responsabile per qualsiasi download di Prodotti non licenziati o nel caso in cui le quantità di tali Prodotti eccedano quanto licneziato.
L’utente accede al sito per:
(1) inserire nuovi ordini per I prodotti
(2) ottenere I prodotti in quanto parte del supporto; e/o
(3) ottenere licenza in prova sui prodotti
Effective April 9th 2020 to April 9th 2020
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Condizioni di Accesso al prodotto
L’Utente e BMC o il distributore da esso autorizzato hanno raggiunto un accordo per la licenza e il supporto per I Prodotti elencati nella pagina “Licensed Products”; I diritti e le obbligazioni di ciascuna parte in merito ai Prodotti sono regolati da quegli Accordi. L’utente sarà responsabile per qualsiasi download di Prodotti non licenziati o nel caso in cui le quantità di tali Prodotti eccedano quanto licneziato.
L’utente accede al sito per:
(1) inserire nuovi ordini per I prodotti
(2) ottenere I prodotti in quanto parte del supporto; e/o
(3) ottenere licenza in prova sui prodotti
Effective April 9th 2020 to April 9th 2020
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Condizioni di Accesso al prodotto
L’Utente e BMC o il distributore da esso autorizzato hanno raggiunto un accordo per la licenza e il supporto per I Prodotti elencati nella pagina “Licensed Products”; I diritti e le obbligazioni di ciascuna parte in merito ai Prodotti sono regolati da quegli Accordi. L’utente sarà responsabile per qualsiasi download di Prodotti non licenziati o nel caso in cui le quantità di tali Prodotti eccedano quanto licneziato.
L’utente accede al sito per:
(1) inserire nuovi ordini per I prodotti
(2) ottenere I prodotti in quanto parte del supporto; e/o
(3) ottenere licenza in prova sui prodotti
Export Compliance Statement
Effective May 28th 2024
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Cliccando su Accetto, l'utente si impegna ad osservare tutte le leggi e tutti i regolamenti applicabili sul controllo delle esportazioni e delle riesportazioni, inclusi a titolo esemplificativo quelli degli Stati Uniti d’America, dell'Unione Europea, del Regno Unito e di tutti gli altri paesi interessati (“Leggi Applicabili”). L'utente accetta di non scaricare, concedere in licenza o altrimenti esportare o riesportare, direttamente o indirettamente, questo software, qualsiasi pubblicazione tecnica relativa a questo software o le informazioni sottostanti (collettivamente, "Tecnologia") in violazione delle suddette Leggi Applicabili, ovvero senza alcuna autorizzazione governativa scritta richiesta dalle Leggi Applicabili medesime. Inoltre, la Tecnologia non può essere esportata o riesportata in paesi o regioni soggetti a sanzioni globali emesse dagli Stati Uniti d’America, dall'Unione Europea e dal Regno Unito, inclusi a titolo esemplificativo Cuba, Iran, Corea del Nord, Siria e Crimea, nonchè le regioni del Donetsk e del Luhansk (ciascuno, un “Paese Soggetto a Restrizioni”). L'elenco precedente non è esaustivo ed è soggetto a modifiche in base alle normative pro tempore applicabili sul controllo delle esportazioni. Scaricando, concedendo in licenza e/o utilizzando la Tecnologia, l'utente dichiara e garantisce che: (a) la Tecnologia non verrà scaricata, concessa in licenza, esportata o riesportata, direttamente o indirettamente: (i) in un Paese Soggetto a Restrizioni o a favore di un cittadino o residente in un Paese Soggetto a Restrizioni; (ii) a favore di chiunque sia presente nell’elenco “Specially Designated Nationals or other Blocked Persons” del Dipartimento del Tesoro degli Stati Uniti d’America, ovvero negli elenchi “Denied Parties List”, “Entity List” o “Unverified List” del Dipartimento del Commercio degli Stati Uniti d’America o in qualsiasi altro elenco del governo degli Stati Uniti d’America relativo a persone o entità con cui i cittadini statunitensi sono proibiti dall’intrattenere rapporti commerciali (collettivamente, "Elenco delle Parti Soggette a Restrizioni"); o (iii) per qualsiasi uso finale correlato alla proliferazione (armi nucleari, tecnologia missilistica o armi chimiche/biologiche) ("Uso Finale Non Autorizzato"); (b) non sia ubicato presso, non sia sotto il controllo di, non agisca per conto di, o sia cittadino di o residente in un Paese Soggetto a Restrizioni; (c) non sia presente nell’Elenco delle Parti Soggette a Restrizioni; (d) non sia coinvolto in alcun Uso Finale Non Autorizzato; e (e) nessuna agenzia federale o governativa statunitense abbia sospeso, revocato o negato i diritti dell’utente all’esportazione. L'utente prende atto che tutti i diritti di utilizzo della Tecnologia sono concessi a condizione che essi verranno meno in caso di mancata osservanza da parte dell’utente stesso delle presenti condizioni.
Effective December 23rd 2020 to May 28th 2024
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DICHIARAZIONE DI CONFORMITA’ ALLA NORMATIVA SULLE ESPORTAZIONI:
Clikkando sul tasto Accetto/I agree dichiarate altresì che sarete responsabili del rispetto delle leggi e dei regolamenti degli Stati Uniti e di qualsiasi altro paese rilevante ai sensi del presente Contrattoin materia di esportazioni e riesportazioni. Dichiarate inoltre che non effettuerete il download, concederete in licenza, esporterete o riesporterete, direttamente o indirettamente, il software, la relative documentazioni o altre informazioni (congiuntamente la Tecnologia) in violazione delle sopra menzionate leggi o regolamenti, o senza il preventivo consenso scritto delle autorità governative competenti, ove ciò sia prescritto. La lista dei Paesi Non Ammessi potrebbe essere soggetta a cambiamenti; al momento include Cuba, Iran, Nord Corea, Sudan, Siria e Crimea Region. A titolo esemplificativo ma non esaustivo, non potrete effettuare il download, concedere in licenza, esportare o riesportare , direttamente o indirettamente, la Tecnologia (a) in uno dei Paesi Non Ammessi o ad una persona fisica o giuridica che sia stabilita, residente o cittadina di un Paese Non Ammesso; (b) a qualsiasi soggetto iscritto nella lista dei cittadini oggetto di segnalazione particolare (Specially Designated National) o altro soggetto non autorizzato del Dipartimento del Tesoro statunitense, oppure in una delle seguenti liste del Dipartimento del Commercio statunitense: Denied Parties List, Entity List, Unverified List; o (c) allo scopo di o per fini connessi con la proliferazione nucleare (armi nucleari, tecnologia missilistica o altre armi chimiche o biologiche). Effettuando il download ovvero utilizzando la Tecnologia, dichiarate che (w) non vi trovate in un alcuno dei Paesi Non Ammessi, nè sotto il loro controllo, nè che state agendo in rappresentanza di essi; (x) che non siete stati parte di alcuna delle liste sopra menzionate; (y) non siete coinvolti in attività non consentite; e (z) no nessuna autorità federale degli Stati Uniti vi ha mai sospeso, revocato o negato l’autorizzazione a esportare. I diritti d’uso concessi sulla alla tecnologia potranno essere revocati se non ottempererete agli obblighi sopra espressi.
Effective April 9th 2020 to December 23rd 2020
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DICHIARAZIONE DI CONFORMITA’ ALLA NORMATIVA SULLE ESPORTAZIONI:
Clikkando sul tasto Accetto/I agree dichiarate altresì che sarete responsabili del rispetto delle leggi e dei regolamenti degli Stati Uniti e di qualsiasi altro paese rilevante ai sensi del presente Contrattoin materia di esportazioni e riesportazioni. Dichiarate inoltre che non effettuerete il download, concederete in licenza, esporterete o riesporterete, direttamente o indirettamente, il software, la relative documentazioni o altre informazioni (congiuntamente la Tecnologia) in violazione delle sopra menzionate leggi o regolamenti, o senza il preventivo consenso scritto delle autorità governative competenti, ove ciò sia prescritto. La lista dei Paesi Non Ammessi potrebbe essere soggetta a cambiamenti; al momento include Cuba, Iran, Nord Corea, Sudan e Siria. A titolo esemplificativo ma non esaustivo, non potrete effettuare il download, concedere in licenza, esportare o riesportare , direttamente o indirettamente, la Tecnologia (a) in uno dei Paesi Non Ammessi o ad una persona fisica o giuridica che sia stabilita, residente o cittadina di un Paese Non Ammesso; (b) a qualsiasi soggetto iscritto nella lista dei cittadini oggetto di segnalazione particolare (Specially Designated National) o altro soggetto non autorizzato del Dipartimento del Tesoro statunitense, oppure in una delle seguenti liste del Dipartimento del Commercio statunitense: Denied Parties List, Entity List, Unverified List; o (c) allo scopo di o per fini connessi con la proliferazione nucleare (armi nucleari, tecnologia missilistica o altre armi chimiche o biologiche). Effettuando il download ovvero utilizzando la Tecnologia, dichiarate che (w) non vi trovate in un alcuno dei Paesi Non Ammessi, nè sotto il loro controllo, nè che state agendo in rappresentanza di essi; (x) che non siete stati parte di alcuna delle liste sopra menzionate; (y) non siete coinvolti in attività non consentite; e (z) no nessuna autorità federale degli Stati Uniti vi ha mai sospeso, revocato o negato l’autorizzazione a esportare. I diritti d’uso concessi sulla alla tecnologia potranno essere revocati se non ottempererete agli obblighi sopra espressi.
Effective April 9th 2020 to April 9th 2020
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DICHIARAZIONE DI CONFORMITA’ ALLA NORMATIVA SULLE ESPORTAZIONI
Clikkando sul tasto Accetto/I agree dichiarate altresì che sarete responsabili del rispetto delle leggi e dei regolamenti degli Stati Uniti e di qualsiasi altro paese rilevante ai sensi del presente Contrattoin materia di esportazioni e riesportazioni. Dichiarate inoltre che non effettuerete il download, concederete in licenza, esporterete o riesporterete, direttamente o indirettamente, il software, la relative documentazioni o altre informazioni (congiuntamente la Tecnologia) in violazione delle sopra menzionate leggi o regolamenti, o senza il preventivo consenso scritto delle autorità governative competenti, ove ciò sia prescritto. La lista dei Paesi Non Ammessi potrebbe essere soggetta a cambiamenti; al momento include Cuba, Iran, Nord Corea, Sudan e Siria. A titolo esemplificativo ma non esaustivo, non potrete effettuare il download, concedere in licenza, esportare o riesportare , direttamente o indirettamente, la Tecnologia (a) in uno dei Paesi Non Ammessi o ad una persona fisica o giuridica che sia stabilita, residente o cittadina di un Paese Non Ammesso; (b) a qualsiasi soggetto iscritto nella lista dei cittadini oggetto di segnalazione particolare (Specially Designated National) o altro soggetto non autorizzato del Dipartimento del Tesoro statunitense, oppure in una delle seguenti liste del Dipartimento del Commercio statunitense: Denied Parties List, Entity List, Unverified List; o (c) allo scopo di o per fini connessi con la proliferazione nucleare (armi nucleari, tecnologia missilistica o altre armi chimiche o biologiche). Effettuando il download ovvero utilizzando la Tecnologia, dichiarate che (w) non vi trovate in un alcuno dei Paesi Non Ammessi, nè sotto il loro controllo, nè che state agendo in rappresentanza di essi; (x) che non siete stati parte di alcuna delle liste sopra menzionate; (y) non siete coinvolti in attività non consentite; e (z) no nessuna autorità federale degli Stati Uniti vi ha mai sospeso, revocato o negato l’autorizzazione a esportare. I diritti d’uso concessi sulla alla tecnologia potranno essere revocati se non ottempererete agli obblighi sopra espressi.
Effective April 9th 2020 to April 9th 2020
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DICHIARAZIONE DI CONFORMITA’ ALLA NORMATIVA SULLE ESPORTAZIONI
1) Clikkando sul tasto Accetto/I agree dichiarate altresì che sarete responsabili del rispetto delle leggi e dei regolamenti degli Stati Uniti e di qualsiasi altro paese rilevante ai sensi del presente Contrattoin materia di esportazioni e riesportazioni. Dichiarate inoltre che non effettuerete il download, concederete in licenza, esporterete o riesporterete, direttamente o indirettamente, il software, la relative documentazioni o altre informazioni (congiuntamente la Tecnologia) in violazione delle sopra menzionate leggi o regolamenti, o senza il preventivo consenso scritto delle autorità governative competenti, ove ciò sia prescritto. La lista dei Paesi Non Ammessi potrebbe essere soggetta a cambiamenti; al momento include Cuba, Iran, Nord Corea, Sudan e Siria. A titolo esemplificativo ma non esaustivo, non potrete effettuare il download, concedere in licenza, esportare o riesportare , direttamente o indirettamente, la Tecnologia (a) in uno dei Paesi Non Ammessi o ad una persona fisica o giuridica che sia stabilita, residente o cittadina di un Paese Non Ammesso; (b) a qualsiasi soggetto iscritto nella lista dei cittadini oggetto di segnalazione particolare (Specially Designated National) o altro soggetto non autorizzato del Dipartimento del Tesoro statunitense, oppure in una delle seguenti liste del Dipartimento del Commercio statunitense: Denied Parties List, Entity List, Unverified List; o (c) allo scopo di o per fini connessi con la proliferazione nucleare (armi nucleari, tecnologia missilistica o altre armi chimiche o biologiche). Effettuando il download ovvero utilizzando la Tecnologia, dichiarate che (w) non vi trovate in un alcuno dei Paesi Non Ammessi, nè sotto il loro controllo, nè che state agendo in rappresentanza di essi; (x) che non siete stati parte di alcuna delle liste sopra menzionate; (y) non siete coinvolti in attività non consentite; e (z) no nessuna autorità federale degli Stati Uniti vi ha mai sospeso, revocato o negato l’autorizzazione a esportare. I diritti d’uso concessi sulla alla tecnologia potranno essere revocati se non ottempererete agli obblighi sopra espressi.
Effective April 9th 2020 to April 9th 2020
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RISPETTO DELLA NORMATIVA SULL’ESPORTAZIONE
Clikkando sul tasto “Accetto” vi dichiarate responsabili e pertanto vi impegnate a rispettare le leggi e i regolamenti amministrativi degli Stati Uniti e altre nazioni rilevanti, relativamente al controllo delle esportazioni e la ri-esportazione (In base a quanto viene considerato esportazione e la ri-esportazione ai sensi dei regolamenti delle Amministrazioni sulle Esportazioni) (“Leggi sull’Esportazione”). Non potrete importare, esportare o riesportare, o trasferire direttamente o indirettamente, (incluso via accesso remoto) componenti dei Prodotti BMC o qualsiasi informazione inerente la tecnologia di BMC in violazione delle Leggi sull’Esportazione o senza prima ottenere preventivamente tutte le necessarie autorizzazioni. In particolare nessun software, nessuna informazione di BMC o Tecnologia BMC potrà essere messa a disposizione per il download o altrimenti direttamente o indirettamente esportata o riesportata (i) verso qualsiasi persona fisica o giuridica residente o cittadino di paese nei cui confronti il governo degli Stati Uniti abbia emanato sanzioni commerciali che proibiscano l’esportazioni di qualsiasi prodotto; b) ) a qualsiasi soggetto appartenente alla lista dei Cittadini oggetto di segnalazione particolare (Specially Designated National) o altro Soggetto non autorizzato del Dipartimento del Tesoro statunitense, oppure in una delle seguenti liste del Dipartimento del Commercio statunitense: Lista delle Parti non riconosciute (Denied Parties List), Lista delle persone fisiche o giuridiche (Entity List) e Lista non verificata (Unverified List); (c) allo scopo di o per fini connessi con la proliferazione nucleare (armi nucleari, tecnologia missilistica o altre armi chimiche o biologiche). Scaricando ed utilizzando i Prodotti, dichiarate di non trovarvi, di non essere sotto il controllo o cittadino o residente in uno dei Paesi sopra indicati né su alcuna delle liste sopra menzionate; dichiarate inoltre che nessuna agenzia federale degli Stati Uniti vi ha mai sospeso, revocato o negato i permessi necessari all’esportazione.
Trial Agreement
Effective February 15th 2022
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ONLINE TRIAL AGREEMENT
If BMC accepts this agreement ("Agreement"), it is an Agreement between the entity or individual entering into this agreement ("User") and the BMC entity set forth in Section 11 below ("BMC"). If BMC accepts this Agreement, then this Agreement is effective on the date it is communicated to User. This Agreement applies to User’s trial of the Product, regardless of whether such trial occurs as part of a “proof of concept” or “proof of value” process in which BMC participates or otherwise.
Product: The BMC software product and/or subscription service for which a temporary license and/or access right is being granted in accordance with terms of this Agreement.
Technology: The Product, solution, and/or demonstration environment being installed, accessed and/or used by User pursuant to the terms of this Agreement, and all related software, systems, platforms or networks.
Documentation: The technical publications relating to the Product, such as release notes, reference, user, installation, systems administrator and technical guidelines included with the Product.
1. TRIAL LICENSE. BMC grants User a worldwide, non-exclusive, non-transferable, temporary right to access and use the Technology up to the installed capacity as determined by BMC, for a 30 day time period, unless otherwise provided by BMC (“Trial Period”), only (a) to internally evaluate and determine whether to acquire a license to the Products for a fee, or (b) if User is an authorized BMC Partner or a Service Provider, to demonstrate to the prospective customer for the prospective customer’s internal evaluation purposes. User may not access or use the Technology if it is a direct competitor of BMC, unless otherwise authorized by BMC to do so in writing.
2. RESTRICTIONS ON USE. User will not: (a) operate or use any Technology in any manner other than as set forth in the trial license above; (b) use the Technology to process production data, or for development, commercial, production, or database management purposes; (c) use the Technology with data or information that has not been backed up; (d) modify, copy or create derivative works based on the Product; (e) create Internet “links” to or reproduce any content forming part of the Product, other than for its own internal non-production business purposes; (f) use any components provided with the Technology separately from the Product; (g) attempt to gain unauthorized access to the Product or its related software, systems, platforms or networks; (g) modify, delete or remove any ownership, title, trademark, patent or copyright notices from any Product; (h) copy the Technology for any purposes, except to the extent expressly permitted by applicable law or treaty notwithstanding this limitation. User agrees not to claim or assert title to or ownership of the Technology, or modifications thereto; (i) disassemble, reverse engineer, decompile or otherwise attempt to derive any Product source code from object code or access it in order to copy any ideas, features, content, functions or graphics of the Product, except to the extent expressly permitted by applicable law despite this limitation without possibility of contractual waiver; (j) sell, distribute, rent, lease, sublicense, display, modify, time share, outsource or otherwise provide the Product to any third party or use it in a service bureau, outsourcing environment, or for the processing of third party data; (k) access the Product for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes; (l) release any results of performance tests related to Product to any third party without BMC’s prior written consent; (m) attempt to disable or circumvent any of the licensing mechanisms within the Product or Technology; (n) interfere with or disrupt the integrity or performance of the Product; (o) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortuous material via the Product; (p) send or store viruses or malicious code via the Product; (q) violate any other usage restrictions contained in the Documentation; or (r) make any representations to prospective customers which are not made by BMC in this Agreement. User is responsible for maintaining the confidentiality of any passwords assigned to User. User will immediately notify BMC if it becomes aware that a password is lost, stolen, disclosed to an unauthorized third party, or otherwise compromised. User will be responsible for any and all activities under User’s account and/or using User passwords. User will (i) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Product, and notify BMC promptly of any such unauthorized access or use, and (ii) comply with all applicable laws in using the Product.
3. OWNERSHIP. All title and copyrights in and to the Technology are owned by BMC and/or its affiliates and licensors, and are protected by both United States copyright law and applicable international copyright treaties. User acknowledges that the Technology contain valuable trade secrets of BMC and/or its affiliates and licensors.
4. NO WARRANTY AND LIMITATION OF LIABILITY. THE TECHNOLOGY IS PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT ANY WARRANTY, INCLUDING WITHOUT LIMITATION NO IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, OR NON-INFRINGEMENT. NEITHER BMC, NOR ITS AFFILIATES, SUPPLIERS OR LICENSORS ARE LIABLE FOR INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES FROM ANY CAUSE ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THE TECHNOLOGY OR THIS AGREEMENT. BMC’S, ITS AFFLIATES', SUPPLIERS' AND LICENSORS' LIABILITY FOR DIRECT DAMAGES RESULTING FROM THE USE OF THE TECHNOLOGY OR THIS AGREEMENT IS LIMITED TO US $500.
5. ACTIONS UPON EXPIRATION OF TRIAL PERIOD. Upon termination of this Agreement or expiration of a Trial Period: (a) User will immediately cease using the Technology; (b) if User has installed the Product on its system, then User will delete it immediately; (c) if User is accessing the Product via an Internet-based demonstration site, BMC may disable User’s access; (d) If User desires to acquire a paid-for license to access and use the Product, then User must acquire a license to use and access the Product under the then-current subscription service or software license terms, as applicable, with BMC or its appropriate subsidiary or affiliate; and (e) BMC may permanently delete all data input or imported into the Product during the trial period. At BMC’s sole discretion, a new Trial Period may be activated upon request and approval by BMC. This agreement creates no obligation on the part of User to purchase a license to any Products or for BMC to provide such license to User. Further, this Agreement creates no obligation on the part of BMC to make any Internet-based demonstration site available to User.
6. PROPRIETARY RIGHTS AND CONFIDENTIALITY. (a) BMC, its Affiliates or licensors retain all right, title and interest to the Technology and all related intellectual property and proprietary rights. The Product and all third party software provided with the Product are protected by applicable copyright, trade secret, industrial and other intellectual property laws. User may not remove any product identification, copyright, trademark or other notice from the Product. BMC reserves any rights not expressly granted to User in this Agreement. (b) “Confidential Information” means all proprietary or confidential information that is disclosed to User by BMC, and includes, among other things (i) any and all information relating to products or services, including, without limitation, software code, BMC product vulnerabilities, flow charts, techniques, specifications, development and marketing plans, strategies, forecasts, and proposal related documents and responses; (ii) as to BMC, and its licensors, the Product (excluding portions of the Documentation that BMC makes publicly available) and any third party software provided with the Product; and (iii) the terms of this Agreement. Confidential Information does not include information that User can show: (a) was rightfully in User’s possession without any obligation of confidentiality before receipt from BMC; (b) is or becomes a matter of public knowledge through no fault of User; (c) is rightfully received by User from a third party without violation of a duty of confidentiality; or (d) is independently developed by or for User. User may not disclose Confidential Information of BMC to any third party or use the Confidential Information in violation of this Agreement. User (i) will exercise the same degree of care and protection with respect to the Confidential Information of BMC that it exercises with respect to its own Confidential Information and (ii) will not, either directly or indirectly, disclose, copy, distribute, republish, or allow any third party to have access to any Confidential Information of BMC. Notwithstanding the foregoing, User may disclose BMC’s Confidential Information to User’s employees and agents who have the need to know provided that such employees and agents have legal obligations of confidentiality substantially the same (and in no case less protective) as the provisions of this Agreement. (c) Notification Obligation. If User becomes aware of any unauthorized use or disclosure of BMC’s Confidential Information, then User will promptly and fully notify BMC of all facts known to it concerning such unauthorized use or disclosure. In addition, if User or any of its employees or agents are required (by oral questions, interrogatories, requests for information, or documents in legal proceedings, subpoena, civil investigative demand, or other similar process) to disclose any of BMC’s Confidential Information, User will not disclose BMC’s Confidential Information without providing BMC with commercially reasonable advance prior written notice to allow BMC to seek a protective order or other appropriate remedy or to waive compliance with this provision. In any event, User will exercise its commercially reasonable efforts to preserve the confidentiality of BMC’s Confidential Information, including, without limitation, cooperating with BMC to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded to the Confidential Information. User agrees to destroy or return to BMC all copies of Confidential Information promptly upon the expiration or termination of this Agreement.
7. DATA PROTECTION. The processing of personal data under this Agreement is governed by the Data Processing Agreement referenced below, unless BMC already has a signed Data Processing Agreement with User for such BMC offerings; in which case, the signed version governs the processing of personal data. In the event there is no signed Data Processing Agreement, BMC and User agree that the Data Processing Agreement applicable on the date the Technology is made available to User, a copy of which may be viewed at https://www.bmc.com/content/dam/bmc/corporate/bmcdpa.pdf, applies to Technology under this Agreement.
8. EXPORT CONTROLS. Both parties agree to comply with applicable export regulations, including but not limited to U.S. Export Administration Regulations and the OFAC embargoes and sanctions lists. More information on BMC’s export compliance program may be found here: https://www.bmc.com/legal/export-compliance.html.
9. GOVERNING LAW AND DISPUTE RESOLUTION. Any controversy, dispute or claim arising out of or relating to this Agreement, or to the formation, interpretation, breach, termination, or validity thereof (each, a “Controversy”) will be resolved as follows:
(i) UNITED STATES. If both parties to this Agreement are entities incorporated under the law of any state in the United States, the Controversy shall be tried in either state or federal court located in Houston, Texas and the laws of the State of Texas shall govern. Both parties hereby submit to the exclusive jurisdiction of the courts in Houston, Texas and waive all defenses based on forum non conveniens.
(ii) EMEA. If both parties to this Agreement are entities incorporated in countries in the Europe, Middle East, or Africa regions, the Controversy shall be tried in the District Court located in Amsterdam, the Netherlands and the substantive laws of the Netherlands shall govern. Both parties hereby submit to the exclusive jurisdiction of the District Court in Amsterdam, the Netherlands and waive all defenses based on forum non conveniens.
(iii) ASIA PACIFIC. If both parties to this Agreement are entities incorporated in countries in the Asia Pacific region, the arbitration shall be held in Singapore under the then-applicable rules of the Singapore International Arbitration Centre and the substantive laws of Singapore will govern.
(iv) OTHER REGIONS. In all other instances, the arbitration shall be held in New York City, New York, under the then-applicable international rules of the American Arbitration Association and the substantive laws of the State of Texas will govern.
For all arbitrations conducted hereunder: (a) the arbitration shall be conducted in English; (b) the relevant arbitral institution shall determine the number of arbitrators, but any Controversy in which the amount in dispute is greater than $10 million USD shall be decided by three arbitrators, with each party having the right to select one arbitrator; (c) the costs of such arbitration shall be borne equally, pending the arbitrator’s award; (d) the arbitration award rendered shall be final and binding on the parties, shall not be subject to appeal to any court and shall be enforceable in any court having jurisdiction over the parties; (e) the arbitration proceedings, award and pleadings shall all be confidential, unless disclosure of particular information is required for purposes of enforcing/challenging the award or to meet local securities law requirements; and (f) the party prevailing in arbitration shall be entitled to recover its reasonable attorneys’ fees and the necessary costs incurred in connection with the arbitration.
The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. Nothing in this Agreement shall be deemed as preventing either party from seeking immediate injunctive relief from any court having jurisdiction over the parties and the subject matter of the dispute.
10. U.S. GOVERNMENT END USER RIGHTS. This Section applies only to acquisitions of the commercial Product and Documentation subject to this Agreement by or on behalf of the United States Government, or by any prime contractor or subcontractor (at any tier) under any contract, grant, agreement or other activity with the United States Government. When Products are delivered or provided to the United States Government, the United States Government agrees that this commercial license Agreement and the Products governed by this Agreement are defined in accordance with and qualify as “commercial items” consisting of “commercial computer software” and “commercial computer software documentation” as outlined in FAR 12.211, FAR 12.212 and DFARS 227.202-3, as applicable. The terms and conditions of this Agreement shall pertain to the United States Government’s use (including documentation or technical data), duplication, and disclosure of the Product, and shall supersede any conflicting contractual terms and conditions.
11. BMC ENTITIES. The following licensing entities apply to this Agreement:
Region | Licensing Entity | Address of Licensing Entity |
United States and Latin America South (not a specified Central or South America country below) | BMC Software, Inc. | 2103 CityWest Boulevard, Houston, Texas 77042 |
Canada | BMC Software Canada Inc. | 50 Minthorn Boulevard, Suite 200 Markham, Ontario L3T 7X8 Canada |
EMEA (Europe, Middle East and Africa) | BMC Software Distribution B.V. | Boeing Avenue 245, 1119 PD Schiphol Rijk, The Netherlands |
Brazil | BMC Software do Brasil Ltda. | Avenida Dra. Ruth Cardoso, n° 8.501, Condomínio Eldorado Business Tower, 22° andar, Pinheiros, São Paulo – SP, CEP: 05425-070 |
Mexico | BMC Software Distribution de México, S.A. de C.V. | Torre Esmeralda II Blvd. Manuel Avila, Camacho #36, Piso 23 Col. Lomas de Chapultepec, CP11000, Mexico City, México D.F. |
Argentina | BMC Software de Argentina S.A. | Ing. Butty 220 - Piso 18, Catalinas Plaza Buenos Aires, República de Argentina, C1001A |
S.E.A (Southeast Asia), Australia, New Zealand, Hong Kong, Taiwan | BMC Software Asia Pacific Pte Ltd | 600 North Bridge Road, #20-01/10 Parkview Square, Singapore 188778 |
China | BMC Software (China) Limited | Room 502, Level 5, Tower W1, The Towers, Oriental Plaza, No. 1 East Chang An Ave., Dong Cheng Dist., Beijing 100738, China |
Japan | BMC Software K.K. | Harmony Tower 24th Floor, 1-32-2 Honcho, Nakano-ku, Tokyo, 164-8721 |
Korea | BMC Software Korea Ltd | 24th Fl., ASEM Tower, 1517, Yeongdong-daero, Gangnam-gu, Seoul 135-798, Korea South |
12. MISCELLANEOUS TERMS. This is the entire agreement of the parties, and it supersedes and replaces all prior and contemporaneous agreements and negotiations with respect to this subject matter. There are no representations, promises, warranties, covenants, or undertakings between the parties other than those expressly set forth in this Agreement. This Agreement may only be amended by a signed writing of the parties. Either party may terminate this Agreement at any time upon two weeks prior notice. User may not assign or transfer this Agreement without BMC’s prior written consent. No failure or delay by either party in exercising any right, power or privilege shall operate as a waiver, nor shall any single or partial exercise thereof preclude any other or further exercise, or the exercise of any right, power or privilege under this Agreement. If any part of this Agreement is found to be invalid or unenforceable, that part will be modified to the extent necessary to eliminate its invalidity or unenforceability, and the remaining terms will be in full force and effect. The Products may contain third party software which is delivered to User as part of the Product and may not be taken out of the Product or used separately from the Product and for which additional terms may be included in the Documentation. The Product may contain hyperlinks to websites controlled by parties other than BMC. BMC is not responsible for and does not endorse the content or accept any responsibility for User’s use of these websites. User should refer to the policies posted by other websites regarding data privacy and other topics before using them. Any additional documents presented to a BMC representative by User for signature as a condition for going on a User’s site will be governed by this Agreement and to the extent that such document presents additional terms or conflicts with this Agreement, it shall be considered null and void. The parties have agreed that this Agreement and the documents related thereto be drawn up in the English language. Les parties exigent que la présente convention ainsi que les documents qui s’y rattachent soient rédigés en anglais.
YOU AGREE THAT YOU HAVE READ THIS AGREEMENT AND INTEND TO BE BOUND, AS IF YOU HAD SIGNED THIS AGREEMENT IN WRITING. IF YOU ARE ACTING ON BEHALF OF AN ENTITY, YOU WARRANT THAT YOU HAVE THE AUTHORITY TO ACCEPT THE TERMS OF THIS AGREEMENT FOR SUCH ENTITY.
Effective April 9th 2020 to February 15th 2022
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TRIAL AGREEMENT
THIS TRIAL AGREEMENT ("AGREEMENT") WILL BECOME A LEGAL AGREEMENT BETWEEN THE USER OF THE DOWNLOADED PRODUCT NAMED IN THE EXPORT VALIDATION SECTION OF THE BMC SUPPORT WEB SITE (WITHIN WWW.BMC.COM) OR ANY SUCCESSOR SITE) OF WHICH THIS AGREEMENT IS A PART ("USER") AND BMC SOFTWARE, INC. OR ITS LOCAL LICENSING AFFILIATE ("BMC"). BY PRESSING THE "I AGREE" BUTTON, YOU REPRESENT AND WARRANT THAT YOU HAVE READ AND UNDERSTOOD THE TERMS OF THIS AGREEMENT, THAT YOU HAVE THE AUTHORITY TO BIND USER TO THIS AGREEMENT, AND THAT USER AGREES TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. BMC AGREES TO PERMIT YOU TO DOWNLOAD PRODUCTS ONLY IF AND AFTER YOU AND USER HAVE ACCEPTED ALL OF THESE TERMS BY PRESSING THE "I AGREE" BUTTON.
PLEASE READ THIS AGREEMENT: IF YOU DO NOT UNDERSTAND OR AGREE WITH ANY OF THE TERMS OF THIS AGREEMENT, DO NOT PRESS THE "I AGREE" BUTTON.
1. DEFINED TERMS. "Confidential Information" means all proprietary or confidential information that is disclosed to the recipient ("Recipient") by the discloser ("Discloser"), and includes, among other things (i) any and all information relating Discloser's financial information, customers, employees, products or services, including, without limitation, software code, flow charts, techniques, specifications, development and marketing plans, strategies, forecasts, and proposal related documents and responses; (ii) as to BMC, and its licensors, the software Product and any third party software provided with the Product; and (iii) the terms of this Agreement, including without limitation, Product pricing information. Confidential Information does not include information that Recipient can show: (a) was rightfully in Recipient's possession without any obligation of confidentiality before receipt from the Discloser; (b) is or becomes a matter of public knowledge through no fault of the Recipient; (c) is rightfully received by the Recipient from a third party without violation of a duty of confidentiality; or (d) is independently developed by or for the Recipient. "Products" are software or hardware products and their related documentation and other technical information owned or distributed by BMC which may be accessed on the BMC EPD Web site (www.bmc.com/ or any successor web site) and for which User is granted a license under this Agreement. "Trial Period" with respect to a Product, is the time period that begins the date that You download such Product and ends on the sooner of (a) thirty calendar days thereafter, or (b) the number of calendar days thereafter specified in the license key provided with such Product.
2. TRIAL LICENSE. BMC grants User a non-exclusive, non-transferable, non-assignable temporary license to use each Product on a single computer for the Trial Period only to internally evaluate and determine whether to acquire and/or license such Product for a fee, and not for development, commercial, production, or database management purposes, or with production data. User must enter into a separate agreement to obtain production rights and technical support for a Product.
3. PROPRIETARY RIGHTS AND CONFIDENTIALITY (a) BMC, its affiliates or licensors retain all right, title and interest to the Product, Support and all related intellectual property and proprietary rights. The Product and all third party software provided with the Product are protected by applicable copyright, trade secret, industrial and other intellectual property laws. User may not remove any product identification, copyright, trademark or other notice from the Product. BMC reserves any rights not expressly granted to User in this Agreement. (b) Recipient may not disclose Confidential Information of Discloser to any third party or use the Confidential Information in violation of this Agreement. The Recipient (i) will exercise the same degree of care and protection with respect to the Confidential Information of the Discloser that it exercises with respect to its own Confidential Information and (ii) will not, either directly or indirectly, disclose, copy, distribute, republish, or allow any third party to have access to any Confidential Information of Discloser. Notwithstanding the foregoing, Recipient may disclose Discloser's Confidential Information to Recipient's employees and agents who have the need to know provided that such employees and agents have legal obligations of confidentiality substantially the same (and in no case less protective) as the provisions of this Agreement. (c) Notification Obligation. If the Recipient becomes aware of any unauthorized use or disclosure of Discloser's Confidential Information, then Recipient will promptly and fully notify the Discloser of all facts known to it concerning such unauthorized use or disclosure. In addition, if the Recipient or any of its employees or agents are required (by oral questions, interrogatories, requests for information, or documents in legal proceedings, subpoena, civil investigative demand, or other similar process) to disclose any of Discloser's Confidential Information, the Recipient will not disclose the Discloser's Confidential Information without providing the Discloser with commercially reasonable advance prior written notice to allow Discloser to seek a protective order or other appropriate remedy or to waive compliance with this provision. In any event, the Recipient will exercise its commercially reasonable efforts to preserve the confidentiality of the Discloser's Confidential Information, including, without limitation, cooperating with Discloser to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded to the Confidential Information.
4. RESTRICTIONS ON USE. User will not: (a) modify, delete or remove any ownership, title, trademark, patent or copyright notices ("Identification") from any Product; (b) copy any Product or any portion of any Product without reproducing all Identification on each copy or partial copy; (c) disassemble, reverse engineer, decompile or otherwise attempt to derive any Product source code from object code, except to the extent expressly permitted by applicable law despite this limitation without possibility of contractual waiver; (d) distribute, rent, lease, sublicense or provide the Product to any third party; (e) provide a third party with the results of any functional evaluation, or performance tests, without BMC's prior written approval; (f) attempt to disable or circumvent any of the licensing mechanisms within the Product; or (g) violate any other usage restrictions contained in the Documentation.
5. NO WARRANTY AND LIMITATION OF LIABILITY. THE PRODUCTS ARE PROVIDED "AS IS" FOR EVALUATION PURPOSES ONLY AND WITHOUT ANY WARRANTY, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE OR MERCHANTABILITY, AND NON-INFRINGEMENT, OR ANY OTHER WARRANTY, WHETHER EXPRESS OR IMPLIED. NONE OF BMC, ITS AFFILIATES, SUPPLIERS OR LICENSORS SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OR ANY LOSS OF PROFITS, REVENUE, DATA OR DATA USE FROM ANY CAUSE ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THE PRODUCT OR THIS AGREEMENT. BMC'S, IT'S AFFILIATES', SUPPLIER'S AND LICENSOR'S LIABILITY FOR DAMAGES RESULTING FROM THE USE OF THE PRODUCT OR THIS AGREEMENT, WHETHER IN CONTRACT OR TORT, SHALL BE LIMITED TO THE GREATER OF THE AMOUNT PAID BY USER TO LICENSE THE USE OF THAT PRODUCT OR $500. IN THE COUNTRIESLISTED IN SUBSECTION 9(F), BELOW, THE LIMITATION OF LIABLITY IN THIS SECTION WILL NOT APPLY IF AND TO THE EXTENT THAT THE DAMAGE WAS CAUSED BY THE WILLFUL INTENT OR GROSS NEGLIGENCE OF EITHER PARTY.
6. TERMINATION. Either party may terminate this Agreement at any time upon two weeks prior notice. Upon termination of this Agreement or expiration of a Trial Period, if User has not obtained a production use license for the Product, User shall (a) cease using the Product, and (b) certify in writing to BMC that User has de-installed and destroyed, or returned to BMC, the Products and all copies of the Products. This requirement applies to copies in all forms, partial and complete, in all types of media and computer memory and whether or not merged into other materials. This Agreement creates no obligation on the part of BMC to license any Products to User or on the part of User to purchase any hardware or license any software Products from BMC. Notwithstanding anything to the contrary in this Section 6, if hardware is included with the Product, upon conclusion of the Trial Period User will either purchase the hardware or return it to BMC within five days in its original packing material.
7. DATA PROTECTION. BMC and Customer agree that the Data Processing Agreement, a copy of which may be viewed at https://www.bmc.com/content/dam/bmc/corporate/bmcdpa.pdf, applies to the BMC Products downloaded unless BMC already has a signed Data Processing Agreement with Customer for such BMC Products; in which case, the signed version applies.
8. EXPORT CONTROLS. User represents and warrants that it: a) will comply with the United States Export Administration Regulations and other U.S. or foreign export regulations; b) no individual accessing or using the Product is a citizen of or from an embargoed country (currently Iran, Syria, Sudan, Cuba and North Korea); c) is not prohibited from receiving the Product under such regulations; d) will not acquire the Product for a person who is restricted under such regulations; e) will not use the Product in contradiction to such regulations; and f) will not use the Product for prohibited uses, including but not limited to nuclear, chemical, missile or biological weapons related end uses. For Product exported from Ireland, EC No. 428/2009 sets up a Community regime for control of exports of dual-use item and technology, and it is declared that this Product is intended for civil purposes only. Therefore, User agrees to comply with both the U.S. regulations and those E.U. regulations and will not export in violation of the regulations and without all proper licenses. Any failure to comply with these regulations will result in User forfeiting all rights to the Product.
9. GOVERNING LAW AND DISPUTE RESOLUTION. A party will provide written notice to the other party of any controversy, dispute or claim arising out of or relating to this Agreement, or to the formation, interpretation, breach, termination, or validity thereof ("Controversy"). The parties shall engage in good faith negotiations to resolve the Controversy. Only if the Controversy is not resolved through good faith negotiations within 15 days of the sending of the written notice of Controversy, the Controversy may be submitted to litigation or binding arbitration, based on the place of incorporation of the parties, as follows: (i) If both parties to this Agreement are entities incorporated under the law of any state in the United States, the Controversy shall be tried in either state or federal court located in Houston, Texas and the laws of the State of Texas shall govern. Both sides hereby submit to the exclusive jurisdiction of the courts in Houston, Texas and waive all defenses based on forum non conveniens; (ii) If both parties to this Agreement are entities incorporated in countries in the Europe, Middle East, or Africa regions, the arbitration shall be held in Amsterdam, Netherlands under the then-applicable rules of the International Chamber of Commerce and the substantive laws of the Netherlands will govern; (iii) If both parties to this Agreement are entities incorporated in countries in the Asia Pacific region, the arbitration shall be held in Singapore under the then-applicable rules of the Singapore International Arbitration Centre and the substantive laws of Singapore will govern; and (iv) In all other instances, the arbitration shall be held in New York City, New York, under the then-applicable international rules of the American Arbitration Association and the substantive laws of the State of Texas will govern. For all arbitrations conducted hereunder: (a) the arbitration shall be conducted in English; (b) the relevant arbitral institution shall determine the number of arbitrators, but any Controversy in which the amount in dispute is greater than $10 million USD shall be decided by three arbitrators, with each party having the right to select one arbitrator; (c) the costs of such arbitration shall be borne equally, pending the arbitrator's award; (d) the arbitration award rendered shall be final and binding on the parties, shall not be subject to appeal to any court and shall be enforceable in any court having jurisdiction over the Parties; (e) the arbitration proceedings, award and pleadings shall all be confidential, unless disclosure of particular information is required for purposes of enforcing/challenging the award or to meet local securities law requirements; and (f) the party prevailing in arbitration shall be entitled to recover its reasonable attorneys' fees and the necessary costs incurred in connection with the arbitration. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. Nothing in this Agreement shall be deemed as preventing either party from seeking immediate injunctive relief from any court having jurisdiction over the parties and the subject matter of the dispute.
10. U.S. FEDERAL ACQUISITIONS. This Section applies only to acquisitions of the commercial Product and Documentation subject to this Agreement by or on behalf of the United States Government, or by any prime contractor or subcontractor (at any tier) under any contract, grant, cooperative agreement or other activity with the United States Government. In the event the Products are delivered to the United States Government, the United States Government hereby agrees that the Products qualify as "commercial items" within the meaning of the Federal acquisition regulation(s) applicable to this procurement. The terms and conditions of this Agreement shall pertain to the United States Government's use and disclosure of the Product, and shall supersede any conflicting contractual terms and conditions. The following additional statement applies only to acquisitions governed by DFARS Subpart 227.4 (October 1988): "Restricted Rights – Use, duplication and disclosure by the Government is subject to restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 (Oct. 1988)."
11. MISCELLANEOUS TERMS. A waiver by a party of any breach of any term of this Agreement will not be construed as a waiver of any continuing or succeeding breach. Should any term of this Agreement be invalid or unenforceable, the remaining terms will remain in effect. The parties acknowledge they have read this Agreement and agree that it is the complete and exclusive statement of the agreement and supersedes any prior or contemporaneous negotiations or agreements, between the parties relating to the subject matter of this Agreement. There are no representations, promises, warranties, covenants, or undertakings between the parties other than those expressly set forth in this Agreement. This Agreement may not be modified or rescinded except in writing signed by both parties. The prevailing party in any litigation is entitled to recover its attorney's fees and costs from the other party. User may not assign or transfer this Agreement without BMC's prior written consent. The BMC Products may contain third party software which is delivered to User as part of the Product and may not be taken out of the Product or used separately from the Product and for which additional terms may be included in the Documentation. Any additional documents presented to a BMC representative by User for signature as a condition for going on a User's site will be governed by this Agreement and to the extent that such document presents additional terms or conflicts with this Agreement, it shall be considered null and void.
If you agree, as an authorized representative of User, to accept the license terms above on behalf of yourself and User, and to confirm that you and User are in compliance with and will remain in compliance with all of the terms and conditions set forth above, click on the "I agree" button below.
Effective April 9th 2020 to April 9th 2020
DownloadTable of Contents
TRIAL AGREEMENT
THIS TRIAL AGREEMENT ("AGREEMENT") WILL BECOME A LEGAL AGREEMENT BETWEEN THE USER OF THE DOWNLOADED PRODUCT NAMED IN THE EXPORT VALIDATION SECTION OF THE BMC SUPPORT WEB SITE (WITHIN WWW.BMC.COM) OR ANY SUCCESSOR SITE) OF WHICH THIS AGREEMENT IS A PART ("USER") AND BMC SOFTWARE, INC. OR ITS LOCAL LICENSING AFFILIATE ("BMC"). BY PRESSING THE "I AGREE" BUTTON, YOU REPRESENT AND WARRANT THAT YOU HAVE READ AND UNDERSTOOD THE TERMS OF THIS AGREEMENT, THAT YOU HAVE THE AUTHORITY TO BIND USER TO THIS AGREEMENT, AND THAT USER AGREES TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. BMC AGREES TO PERMIT YOU TO DOWNLOAD PRODUCTS ONLY IF AND AFTER YOU AND USER HAVE ACCEPTED ALL OF THESE TERMS BY PRESSING THE "I AGREE" BUTTON.
PLEASE READ THIS AGREEMENT: IF YOU DO NOT UNDERSTAND OR AGREE WITH ANY OF THE TERMS OF THIS AGREEMENT, DO NOT PRESS THE "I AGREE" BUTTON.
1. DEFINED TERMS. "Confidential Information" means all proprietary or confidential information that is disclosed to the recipient ("Recipient") by the discloser ("Discloser"), and includes, among other things (i) any and all information relating Discloser's financial information, customers, employees, products or services, including, without limitation, software code, flow charts, techniques, specifications, development and marketing plans, strategies, forecasts, and proposal related documents and responses; (ii) as to BMC, and its licensors, the software Product and any third party software provided with the Product; and (iii) the terms of this Agreement, including without limitation, Product pricing information. Confidential Information does not include information that Recipient can show: (a) was rightfully in Recipient's possession without any obligation of confidentiality before receipt from the Discloser; (b) is or becomes a matter of public knowledge through no fault of the Recipient; (c) is rightfully received by the Recipient from a third party without violation of a duty of confidentiality; or (d) is independently developed by or for the Recipient. "Products" are software or hardware products and their related documentation and other technical information owned or distributed by BMC which may be accessed on the BMC EPD Web site (www.bmc.com/ or any successor web site) and for which User is granted a license under this Agreement. "Trial Period" with respect to a Product, is the time period that begins the date that You download such Product and ends on the sooner of (a) thirty calendar days thereafter, or (b) the number of calendar days thereafter specified in the license key provided with such Product.
2. TRIAL LICENSE. BMC grants User a non-exclusive, non-transferable, non-assignable temporary license to use each Product on a single computer for the Trial Period only to internally evaluate and determine whether to acquire and/or license such Product for a fee, and not for development, commercial, production, or database management purposes, or with production data. User must enter into a separate agreement to obtain production rights and technical support for a Product.
3. PROPRIETARY RIGHTS AND CONFIDENTIALITY (a) BMC, its affiliates or licensors retain all right, title and interest to the Product, Support and all related intellectual property and proprietary rights. The Product and all third party software provided with the Product are protected by applicable copyright, trade secret, industrial and other intellectual property laws. User may not remove any product identification, copyright, trademark or other notice from the Product. BMC reserves any rights not expressly granted to User in this Agreement. (b) Recipient may not disclose Confidential Information of Discloser to any third party or use the Confidential Information in violation of this Agreement. The Recipient (i) will exercise the same degree of care and protection with respect to the Confidential Information of the Discloser that it exercises with respect to its own Confidential Information and (ii) will not, either directly or indirectly, disclose, copy, distribute, republish, or allow any third party to have access to any Confidential Information of Discloser. Notwithstanding the foregoing, Recipient may disclose Discloser's Confidential Information to Recipient's employees and agents who have the need to know provided that such employees and agents have legal obligations of confidentiality substantially the same (and in no case less protective) as the provisions of this Agreement. (c) Notification Obligation. If the Recipient becomes aware of any unauthorized use or disclosure of Discloser's Confidential Information, then Recipient will promptly and fully notify the Discloser of all facts known to it concerning such unauthorized use or disclosure. In addition, if the Recipient or any of its employees or agents are required (by oral questions, interrogatories, requests for information, or documents in legal proceedings, subpoena, civil investigative demand, or other similar process) to disclose any of Discloser's Confidential Information, the Recipient will not disclose the Discloser's Confidential Information without providing the Discloser with commercially reasonable advance prior written notice to allow Discloser to seek a protective order or other appropriate remedy or to waive compliance with this provision. In any event, the Recipient will exercise its commercially reasonable efforts to preserve the confidentiality of the Discloser's Confidential Information, including, without limitation, cooperating with Discloser to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded to the Confidential Information.
4. RESTRICTIONS ON USE. User will not: (a) modify, delete or remove any ownership, title, trademark, patent or copyright notices ("Identification") from any Product; (b) copy any Product or any portion of any Product without reproducing all Identification on each copy or partial copy; (c) disassemble, reverse engineer, decompile or otherwise attempt to derive any Product source code from object code, except to the extent expressly permitted by applicable law despite this limitation without possibility of contractual waiver; (d) distribute, rent, lease, sublicense or provide the Product to any third party; (e) provide a third party with the results of any functional evaluation, or performance tests, without BMC's prior written approval; (f) attempt to disable or circumvent any of the licensing mechanisms within the Product; or (g) violate any other usage restrictions contained in the Documentation.
5. NO WARRANTY AND LIMITATION OF LIABILITY. THE PRODUCTS ARE PROVIDED "AS IS" FOR EVALUATION PURPOSES ONLY AND WITHOUT ANY WARRANTY, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE OR MERCHANTABILITY, AND NON-INFRINGEMENT, OR ANY OTHER WARRANTY, WHETHER EXPRESS OR IMPLIED. NONE OF BMC, ITS AFFILIATES, SUPPLIERS OR LICENSORS SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OR ANY LOSS OF PROFITS, REVENUE, DATA OR DATA USE FROM ANY CAUSE ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THE PRODUCT OR THIS AGREEMENT. BMC'S, IT'S AFFILIATES', SUPPLIER'S AND LICENSOR'S LIABILITY FOR DAMAGES RESULTING FROM THE USE OF THE PRODUCT OR THIS AGREEMENT, WHETHER IN CONTRACT OR TORT, SHALL BE LIMITED TO THE GREATER OF THE AMOUNT PAID BY USER TO LICENSE THE USE OF THAT PRODUCT OR $500. IN THE COUNTRIESLISTED IN SUBSECTION 9(F), BELOW, THE LIMITATION OF LIABLITY IN THIS SECTION WILL NOT APPLY IF AND TO THE EXTENT THAT THE DAMAGE WAS CAUSED BY THE WILLFUL INTENT OR GROSS NEGLIGENCE OF EITHER PARTY.
6. TERMINATION. Either party may terminate this Agreement at any time upon two weeks prior notice. Upon termination of this Agreement or expiration of a Trial Period, if User has not obtained a production use license for the Product, User shall (a) cease using the Product, and (b) certify in writing to BMC that User has de-installed and destroyed, or returned to BMC, the Products and all copies of the Products. This requirement applies to copies in all forms, partial and complete, in all types of media and computer memory and whether or not merged into other materials. This Agreement creates no obligation on the part of BMC to license any Products to User or on the part of User to purchase any hardware or license any software Products from BMC. Notwithstanding anything to the contrary in this Section 6, if hardware is included with the Product, upon conclusion of the Trial Period User will either purchase the hardware or return it to BMC within five days in its original packing material.
7. DATA PROTECTION. BMC and Customer agree that the Data Processing Agreement, a copy of which may be viewed at https://www.bmc.com/content/dam/bmc/corporate/bmcdpa.pdf, applies to the BMC Products downloaded unless BMC already has a signed Data Processing Agreement with Customer for such BMC Products; in which case, the signed version applies.
8. EXPORT CONTROLS. User represents and warrants that it: a) will comply with the United States Export Administration Regulations and other U.S. or foreign export regulations; b) no individual accessing or using the Product is a citizen of or from an embargoed country (currently Iran, Syria, Sudan, Cuba and North Korea); c) is not prohibited from receiving the Product under such regulations; d) will not acquire the Product for a person who is restricted under such regulations; e) will not use the Product in contradiction to such regulations; and f) will not use the Product for prohibited uses, including but not limited to nuclear, chemical, missile or biological weapons related end uses. For Product exported from Ireland, EC No. 428/2009 sets up a Community regime for control of exports of dual-use item and technology, and it is declared that this Product is intended for civil purposes only. Therefore, User agrees to comply with both the U.S. regulations and those E.U. regulations and will not export in violation of the regulations and without all proper licenses. Any failure to comply with these regulations will result in User forfeiting all rights to the Product.
9. GOVERNING LAW AND DISPUTE RESOLUTION. A party will provide written notice to the other party of any controversy, dispute or claim arising out of or relating to this Agreement, or to the formation, interpretation, breach, termination, or validity thereof ("Controversy"). The parties shall engage in good faith negotiations to resolve the Controversy. Only if the Controversy is not resolved through good faith negotiations within 15 days of the sending of the written notice of Controversy, the Controversy may be submitted to litigation or binding arbitration, based on the place of incorporation of the parties, as follows: (i) If both parties to this Agreement are entities incorporated under the law of any state in the United States, the Controversy shall be tried in either state or federal court located in Houston, Texas and the laws of the State of Texas shall govern. Both sides hereby submit to the exclusive jurisdiction of the courts in Houston, Texas and waive all defenses based on forum non conveniens; (ii) If both parties to this Agreement are entities incorporated in countries in the Europe, Middle East, or Africa regions, the arbitration shall be held in Amsterdam, Netherlands under the then-applicable rules of the International Chamber of Commerce and the substantive laws of the Netherlands will govern; (iii) If both parties to this Agreement are entities incorporated in countries in the Asia Pacific region, the arbitration shall be held in Singapore under the then-applicable rules of the Singapore International Arbitration Centre and the substantive laws of Singapore will govern; and (iv) In all other instances, the arbitration shall be held in New York City, New York, under the then-applicable international rules of the American Arbitration Association and the substantive laws of the State of Texas will govern. For all arbitrations conducted hereunder: (a) the arbitration shall be conducted in English; (b) the relevant arbitral institution shall determine the number of arbitrators, but any Controversy in which the amount in dispute is greater than $10 million USD shall be decided by three arbitrators, with each party having the right to select one arbitrator; (c) the costs of such arbitration shall be borne equally, pending the arbitrator's award; (d) the arbitration award rendered shall be final and binding on the parties, shall not be subject to appeal to any court and shall be enforceable in any court having jurisdiction over the Parties; (e) the arbitration proceedings, award and pleadings shall all be confidential, unless disclosure of particular information is required for purposes of enforcing/challenging the award or to meet local securities law requirements; and (f) the party prevailing in arbitration shall be entitled to recover its reasonable attorneys' fees and the necessary costs incurred in connection with the arbitration. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. Nothing in this Agreement shall be deemed as preventing either party from seeking immediate injunctive relief from any court having jurisdiction over the parties and the subject matter of the dispute.
10. U.S. FEDERAL ACQUISITIONS. This Section applies only to acquisitions of the commercial Product and Documentation subject to this Agreement by or on behalf of the United States Government, or by any prime contractor or subcontractor (at any tier) under any contract, grant, cooperative agreement or other activity with the United States Government. In the event the Products are delivered to the United States Government, the United States Government hereby agrees that the Products qualify as "commercial items" within the meaning of the Federal acquisition regulation(s) applicable to this procurement. The terms and conditions of this Agreement shall pertain to the United States Government's use and disclosure of the Product, and shall supersede any conflicting contractual terms and conditions. The following additional statement applies only to acquisitions governed by DFARS Subpart 227.4 (October 1988): "Restricted Rights – Use, duplication and disclosure by the Government is subject to restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 (Oct. 1988)."
11. MISCELLANEOUS TERMS. A waiver by a party of any breach of any term of this Agreement will not be construed as a waiver of any continuing or succeeding breach. Should any term of this Agreement be invalid or unenforceable, the remaining terms will remain in effect. The parties acknowledge they have read this Agreement and agree that it is the complete and exclusive statement of the agreement and supersedes any prior or contemporaneous negotiations or agreements, between the parties relating to the subject matter of this Agreement. There are no representations, promises, warranties, covenants, or undertakings between the parties other than those expressly set forth in this Agreement. This Agreement may not be modified or rescinded except in writing signed by both parties. The prevailing party in any litigation is entitled to recover its attorney's fees and costs from the other party. User may not assign or transfer this Agreement without BMC's prior written consent. The BMC Products may contain third party software which is delivered to User as part of the Product and may not be taken out of the Product or used separately from the Product and for which additional terms may be included in the Documentation. Any additional documents presented to a BMC representative by User for signature as a condition for going on a User's site will be governed by this Agreement and to the extent that such document presents additional terms or conflicts with this Agreement, it shall be considered null and void.
If you agree, as an authorized representative of User, to accept the license terms above on behalf of yourself and User, and to confirm that you and User are in compliance with and will remain in compliance with all of the terms and conditions set forth above, click on the "I agree" button below.
Effective April 9th 2020 to April 9th 2020
DownloadTable of Contents
THIS TRIAL AGREEMENT ("AGREEMENT") WILL BECOME A LEGAL AGREEMENT BETWEEN THE USER OF THE DOWNLOADED PRODUCT NAMED IN THE EXPORT VALIDATION SECTION OF THE BMC SUPPORT WEB SITE (WITHIN WWW.BMC.COM) OR ANY SUCCESSOR SITE) OF WHICH THIS AGREEMENT IS A PART ("USER") AND BMC SOFTWARE, INC. OR ITS LOCAL LICENSING AFFILIATE ("BMC"). BY PRESSING THE "I AGREE" BUTTON, YOU REPRESENT AND WARRANT THAT YOU HAVE READ AND UNDERSTOOD THE TERMS OF THIS AGREEMENT, THAT YOU HAVE THE AUTHORITY TO BIND USER TO THIS AGREEMENT, AND THAT USER AGREES TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. BMC AGREES TO PERMIT YOU TO DOWNLOAD PRODUCTS ONLY IF AND AFTER YOU AND USER HAVE ACCEPTED ALL OF THESE TERMS BY PRESSING THE "I AGREE" BUTTON.
PLEASE READ THIS AGREEMENT: IF YOU DO NOT UNDERSTAND OR AGREE WITH ANY OF THE TERMS OF THIS AGREEMENT, DO NOT PRESS THE "I AGREE" BUTTON.
1. DEFINED TERMS. "Confidential Information" means all proprietary or confidential information that is disclosed to the recipient ("Recipient") by the discloser ("Discloser"), and includes, among other things (i) any and all information relating Discloser's financial information, customers, employees, products or services, including, without limitation, software code, flow charts, techniques, specifications, development and marketing plans, strategies, forecasts, and proposal related documents and responses; (ii) as to BMC, and its licensors, the software Product and any third party software provided with the Product; and (iii) the terms of this Agreement, including without limitation, Product pricing information. Confidential Information does not include information that Recipient can show: (a) was rightfully in Recipient's possession without any obligation of confidentiality before receipt from the Discloser; (b) is or becomes a matter of public knowledge through no fault of the Recipient; (c) is rightfully received by the Recipient from a third party without violation of a duty of confidentiality; or (d) is independently developed by or for the Recipient. "Products" are software or hardware products and their related documentation and other technical information owned or distributed by BMC which may be accessed on the BMC EPD Web site (www.bmc.com/ or any successor web site) and for which User is granted a license under this Agreement. "Trial Period" with respect to a Product, is the time period that begins the date that You download such Product and ends on the sooner of (a) thirty calendar days thereafter, or (b) the number of calendar days thereafter specified in the license key provided with such Product.
2. TRIAL LICENSE. BMC grants User a non-exclusive, non-transferable, non-assignable temporary license to use each Product on a single computer for the Trial Period only to internally evaluate and determine whether to acquire and/or license such Product for a fee, and not for development, commercial, production, or database management purposes, or with production data. User must enter into a separate agreement to obtain production rights and technical support for a Product.
3. PROPRIETARY RIGHTS AND CONFIDENTIALITY (a) BMC, its affiliates or licensors retain all right, title and interest to the Product, Support and all related intellectual property and proprietary rights. The Product and all third party software provided with the Product are protected by applicable copyright, trade secret, industrial and other intellectual property laws. User may not remove any product identification, copyright, trademark or other notice from the Product. BMC reserves any rights not expressly granted to User in this Agreement. (b) Recipient may not disclose Confidential Information of Discloser to any third party or use the Confidential Information in violation of this Agreement. The Recipient (i) will exercise the same degree of care and protection with respect to the Confidential Information of the Discloser that it exercises with respect to its own Confidential Information and (ii) will not, either directly or indirectly, disclose, copy, distribute, republish, or allow any third party to have access to any Confidential Information of Discloser. Notwithstanding the foregoing, Recipient may disclose Discloser's Confidential Information to Recipient's employees and agents who have the need to know provided that such employees and agents have legal obligations of confidentiality substantially the same (and in no case less protective) as the provisions of this Agreement. (c) Notification Obligation. If the Recipient becomes aware of any unauthorized use or disclosure of Discloser's Confidential Information, then Recipient will promptly and fully notify the Discloser of all facts known to it concerning such unauthorized use or disclosure. In addition, if the Recipient or any of its employees or agents are required (by oral questions, interrogatories, requests for information, or documents in legal proceedings, subpoena, civil investigative demand, or other similar process) to disclose any of Discloser's Confidential Information, the Recipient will not disclose the Discloser's Confidential Information without providing the Discloser with commercially reasonable advance prior written notice to allow Discloser to seek a protective order or other appropriate remedy or to waive compliance with this provision. In any event, the Recipient will exercise its commercially reasonable efforts to preserve the confidentiality of the Discloser's Confidential Information, including, without limitation, cooperating with Discloser to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded to the Confidential Information.
4. RESTRICTIONS ON USE. User will not: (a) modify, delete or remove any ownership, title, trademark, patent or copyright notices ("Identification") from any Product; (b) copy any Product or any portion of any Product without reproducing all Identification on each copy or partial copy; (c) disassemble, reverse engineer, decompile or otherwise attempt to derive any Product source code from object code, except to the extent expressly permitted by applicable law despite this limitation without possibility of contractual waiver; (d) distribute, rent, lease, sublicense or provide the Product to any third party; (e) provide a third party with the results of any functional evaluation, or performance tests, without BMC's prior written approval; (f) attempt to disable or circumvent any of the licensing mechanisms within the Product; or (g) violate any other usage restrictions contained in the Documentation.
5. NO WARRANTY AND LIMITATION OF LIABILITY. THE PRODUCTS ARE PROVIDED "AS IS" FOR EVALUATION PURPOSES ONLY AND WITHOUT ANY WARRANTY, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE OR MERCHANTABILITY, AND NON-INFRINGEMENT, OR ANY OTHER WARRANTY, WHETHER EXPRESS OR IMPLIED. NONE OF BMC, ITS AFFILIATES, SUPPLIERS OR LICENSORS SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OR ANY LOSS OF PROFITS, REVENUE, DATA OR DATA USE FROM ANY CAUSE ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THE PRODUCT OR THIS AGREEMENT. BMC'S, IT'S AFFILIATES', SUPPLIER'S AND LICENSOR'S LIABILITY FOR DAMAGES RESULTING FROM THE USE OF THE PRODUCT OR THIS AGREEMENT, WHETHER IN CONTRACT OR TORT, SHALL BE LIMITED TO THE GREATER OF THE AMOUNT PAID BY USER TO LICENSE THE USE OF THAT PRODUCT OR $500. IN THE COUNTRIESLISTED IN SUBSECTION 9(F), BELOW, THE LIMITATION OF LIABLITY IN THIS SECTION WILL NOT APPLY IF AND TO THE EXTENT THAT THE DAMAGE WAS CAUSED BY THE WILLFUL INTENT OR GROSS NEGLIGENCE OF EITHER PARTY.
6. TERMINATION. Either party may terminate this Agreement at any time upon two weeks prior notice. Upon termination of this Agreement or expiration of a Trial Period, if User has not obtained a production use license for the Product, User shall (a) cease using the Product, and (b) certify in writing to BMC that User has de-installed and destroyed, or returned to BMC, the Products and all copies of the Products. This requirement applies to copies in all forms, partial and complete, in all types of media and computer memory and whether or not merged into other materials. This Agreement creates no obligation on the part of BMC to license any Products to User or on the part of User to purchase any hardware or license any software Products from BMC. Notwithstanding anything to the contrary in this Section 6, if hardware is included with the Product, upon conclusion of the Trial Period User will either purchase the hardware or return it to BMC within five days in its original packing material.
7. DATA PROTECTION. BMC and Customer agree that the Data Processing Agreement, a copy of which may be viewed at https://www.bmc.com/content/dam/bmc/corporate/bmcdpa.pdf, applies to the BMC Products downloaded unless BMC already has a signed Data Processing Agreement with Customer for such BMC Products; in which case, the signed version applies.
8. EXPORT CONTROLS. User represents and warrants that it: a) will comply with the United States Export Administration Regulations and other U.S. or foreign export regulations; b) no individual accessing or using the Product is a citizen of or from an embargoed country (currently Iran, Syria, Sudan, Cuba and North Korea); c) is not prohibited from receiving the Product under such regulations; d) will not acquire the Product for a person who is restricted under such regulations; e) will not use the Product in contradiction to such regulations; and f) will not use the Product for prohibited uses, including but not limited to nuclear, chemical, missile or biological weapons related end uses. For Product exported from Ireland, EC No. 428/2009 sets up a Community regime for control of exports of dual-use item and technology, and it is declared that this Product is intended for civil purposes only. Therefore, User agrees to comply with both the U.S. regulations and those E.U. regulations and will not export in violation of the regulations and without all proper licenses. Any failure to comply with these regulations will result in User forfeiting all rights to the Product.
9. GOVERNING LAW AND DISPUTE RESOLUTION. A party will provide written notice to the other party of any controversy, dispute or claim arising out of or relating to this Agreement, or to the formation, interpretation, breach, termination, or validity thereof ("Controversy"). The parties shall engage in good faith negotiations to resolve the Controversy. Only if the Controversy is not resolved through good faith negotiations within 15 days of the sending of the written notice of Controversy, the Controversy may be submitted to litigation or binding arbitration, based on the place of incorporation of the parties, as follows: (i) If both parties to this Agreement are entities incorporated under the law of any state in the United States, the Controversy shall be tried in either state or federal court located in Houston, Texas and the laws of the State of Texas shall govern. Both sides hereby submit to the exclusive jurisdiction of the courts in Houston, Texas and waive all defenses based on forum non conveniens; (ii) If both parties to this Agreement are entities incorporated in countries in the Europe, Middle East, or Africa regions, the arbitration shall be held in Amsterdam, Netherlands under the then-applicable rules of the International Chamber of Commerce and the substantive laws of the Netherlands will govern; (iii) If both parties to this Agreement are entities incorporated in countries in the Asia Pacific region, the arbitration shall be held in Singapore under the then-applicable rules of the Singapore International Arbitration Centre and the substantive laws of Singapore will govern; and (iv) In all other instances, the arbitration shall be held in New York City, New York, under the then-applicable international rules of the American Arbitration Association and the substantive laws of the State of Texas will govern. For all arbitrations conducted hereunder: (a) the arbitration shall be conducted in English; (b) the relevant arbitral institution shall determine the number of arbitrators, but any Controversy in which the amount in dispute is greater than $10 million USD shall be decided by three arbitrators, with each party having the right to select one arbitrator; (c) the costs of such arbitration shall be borne equally, pending the arbitrator's award; (d) the arbitration award rendered shall be final and binding on the parties, shall not be subject to appeal to any court and shall be enforceable in any court having jurisdiction over the Parties; (e) the arbitration proceedings, award and pleadings shall all be confidential, unless disclosure of particular information is required for purposes of enforcing/challenging the award or to meet local securities law requirements; and (f) the party prevailing in arbitration shall be entitled to recover its reasonable attorneys' fees and the necessary costs incurred in connection with the arbitration. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. Nothing in this Agreement shall be deemed as preventing either party from seeking immediate injunctive relief from any court having jurisdiction over the parties and the subject matter of the dispute.
10. U.S. FEDERAL ACQUISITIONS. This Section applies only to acquisitions of the commercial Product and Documentation subject to this Agreement by or on behalf of the United States Government, or by any prime contractor or subcontractor (at any tier) under any contract, grant, cooperative agreement or other activity with the United States Government. In the event the Products are delivered to the United States Government, the United States Government hereby agrees that the Products qualify as "commercial items" within the meaning of the Federal acquisition regulation(s) applicable to this procurement. The terms and conditions of this Agreement shall pertain to the United States Government's use and disclosure of the Product, and shall supersede any conflicting contractual terms and conditions. The following additional statement applies only to acquisitions governed by DFARS Subpart 227.4 (October 1988): "Restricted Rights – Use, duplication and disclosure by the Government is subject to restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 (Oct. 1988)."
11. MISCELLANEOUS TERMS. A waiver by a party of any breach of any term of this Agreement will not be construed as a waiver of any continuing or succeeding breach. Should any term of this Agreement be invalid or unenforceable, the remaining terms will remain in effect. The parties acknowledge they have read this Agreement and agree that it is the complete and exclusive statement of the agreement and supersedes any prior or contemporaneous negotiations or agreements, between the parties relating to the subject matter of this Agreement. There are no representations, promises, warranties, covenants, or undertakings between the parties other than those expressly set forth in this Agreement. This Agreement may not be modified or rescinded except in writing signed by both parties. The prevailing party in any litigation is entitled to recover its attorney's fees and costs from the other party. User may not assign or transfer this Agreement without BMC's prior written consent. The BMC Products may contain third party software which is delivered to User as part of the Product and may not be taken out of the Product or used separately from the Product and for which additional terms may be included in the Documentation. Any additional documents presented to a BMC representative by User for signature as a condition for going on a User's site will be governed by this Agreement and to the extent that such document presents additional terms or conflicts with this Agreement, it shall be considered null and void.
If you agree, as an authorized representative of User, to accept the license terms above on behalf of yourself and User, and to confirm that you and User are in compliance with and will remain in compliance with all of the terms and conditions set forth above, click on the "I agree" button below.
Effective April 9th 2020 to April 9th 2020
DownloadTable of Contents
THIS TRIAL AGREEMENT ("AGREEMENT") WILL BECOME A LEGAL AGREEMENT BETWEEN THE USER OF THE DOWNLOADED PRODUCT NAMED IN THE EXPORT VALIDATION SECTION OF THE BMC SUPPORT WEB SITE (WITHIN WWW.BMC.COM) OR ANY SUCCESSOR SITE) OF WHICH THIS AGREEMENT IS A PART ("USER") AND BMC SOFTWARE DISTRIBUTION, INC. OR ITS LOCAL LICENSING AFFILIATE ("BMC"). BY PRESSING THE "I AGREE" BUTTON, YOU REPRESENT AND WARRANT THAT YOU HAVE READ AND UNDERSTOOD THE TERMS OF THIS AGREEMENT, THAT YOU HAVE THE AUTHORITY TO BIND USER TO THIS AGREEMENT, AND THAT USER AGREES TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. BMC AGREES TO PERMIT YOU TO DOWNLOAD PRODUCTS ONLY IF AND AFTER YOU AND USER HAVE ACCEPTED ALL OF THESE TERMS BY PRESSING THE "I AGREE" BUTTON.PLEASE READ THIS AGREEMENT: IF YOU DO NOT UNDERSTAND OR AGREE WITH ANY OF THE TERMS OF THIS AGREEMENT, DO NOT PRESS THE "I AGREE" BUTTON.1. DEFINED TERMS. "Confidential Information" means all proprietary or confidential information that is disclosed to the recipient ("Recipient") by the discloser ("Discloser"), and includes, among other things (i) any and all information relating Discloser's financial information, customers, employees, products or services, including, without limitation, software code, flow charts, techniques, specifications, development and marketing plans, strategies, forecasts, and proposal related documents and responses; (ii) as to BMC, and its licensors, the software Product and any third party software provided with the Product; and (iii) the terms of this Agreement, including without limitation, Product pricing information. Confidential Information does not include information that Recipient can show: (a) was rightfully in Recipient's possession without any obligation of confidentiality before receipt from the Discloser; (b) is or becomes a matter of public knowledge through no fault of the Recipient; (c) is rightfully received by the Recipient from a third party without violation of a duty of confidentiality; or (d) is independently developed by or for the Recipient. "Products" are software or hardware products and their related documentation and other technical information owned or distributed by BMC which may be accessed on the BMC EPD Web site (www.bmc.com/ or any successor web site) and for which User is granted a license under this Agreement. "Trial Period" with respect to a Product, is the time period that begins the date that You download such Product and ends on the sooner of (a) thirty calendar days thereafter, or (b) the number of calendar days thereafter specified in the license key provided with such Product2. TRIAL LICENSE BMC grants User a non-exclusive, non-transferable, non-assignable temporary license to use each Product on a single computer for the Trial Period only to internally evaluate and determine whether to acquire and/or license such Product for a fee, and not for development, commercial, production, or database management purposes, or with production data. User must enter into a separate agreement to obtain production rights and technical support for a Product.3. PROPRIETARY RIGHTS AND CONFIDENTIALITY (a) BMC, its affiliates or licensors retain all right, title and interest to the Product, Support and all related intellectual property and proprietary rights. The Product and all third party software provided with the Product are protected by applicable copyright, trade secret, industrial and other intellectual property laws. User may not remove any product identification, copyright, trademark or other notice from the Product. BMC reserves any rights not expressly granted to User in this Agreement. (b) Recipient may not disclose Confidential Information of Discloser to any third party or use the Confidential Information in violation of this Agreement. The Recipient (i) will exercise the same degree of care and protection with respect to the Confidential Information of the Discloser that it exercises with respect to its own Confidential Information and (ii) will not, either directly or indirectly, disclose, copy, distribute, republish, or allow any third party to have access to any Confidential Information of Discloser. Notwithstanding the foregoing, Recipient may disclose Discloser's Confidential Information to Recipient's employees and agents who have the need to know provided that such employees and agents have legal obligations of confidentiality substantially the same (and in no case less protective) as the provisions of this Agreement. (c) Notification Obligation. If the Recipient becomes aware of any unauthorized use or disclosure of Discloser's Confidential Information, then Recipient will promptly and fully notify the Discloser of all facts known to it concerning such unauthorized use or disclosure. In addition, if the Recipient or any of its employees or agents are required (by oral questions, interrogatories, requests for information, or documents in legal proceedings, subpoena, civil investigative demand, or other similar process) to disclose any of Discloser's Confidential Information, the Recipient will not disclose the Discloser's Confidential Information without providing the Discloser with commercially reasonable advance prior written notice to allow Discloser to seek a protective order or other appropriate remedy or to waive compliance with this provision. In any event, the Recipient will exercise its commercially reasonable efforts to preserve the confidentiality of the Discloser's Confidential Information, including, without limitation, cooperating with Discloser to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded to the Confidential Information.4. RESTRICTIONS ON USE User will not: (a) modify, delete or remove any ownership, title, trademark, patent or copyright notices ("Identification") from any Product; (b) copy any Product or any portion of any Product without reproducing all Identification on each copy or partial copy; (c) disassemble, reverse engineer, decompile or otherwise attempt to derive any Product source code from object code, except to the extent expressly permitted by applicable law despite this limitation without possibility of contractual waiver; (d) distribute, rent, lease, sublicense or provide the Product to any third party; (e) provide a third party with the results of any functional evaluation, or performance tests, without BMC's prior written approval; (f) attempt to disable or circumvent any of the licensing mechanisms within the Product; or (g) violate any other usage restrictions contained in the Documentation.5. no warranty and limitation of LIABILITY. THE PRODUCTS ARE PROVIDED "AS IS" FOR EVALUATION PURPOSES ONLY AND WITHOUT ANY WARRANTY, including without limitation, ANY implied warranties of fitness for a particular purpose or merchantability, AND NON-INFRINGEMENT, OR ANY OTHER WARRANTY, WHETHER EXPRESS OR IMPLIED. NONE OF BMC, its affiliates, suppliers or licensors SHALL BE liable for ANY indirect, incidental, SPECIAL, PUNITIVE or consequential damages OR ANY LOSS OF PROFITS, REVENUE, DATA OR DATA USE from any cause arising out of or in any way connected with the use of the Product or this agreement. BMC's, it's affiliates', supplier's and licensor's liability for damages resulting from the use of the Product or this agreement, WHETHER IN CONTRACT OR TORT, SHALL BE LIMITED to the greater of the amount paid by USER to LICENSE THE USE OF THAT PRODUcT or $500. IN THE COUNTRIESLISTED IN SUBSECTION 9(F), BELOW, THE LIMITATION OF LIABLITY IN THIS SECTION WILL NOT APPLY IF AND TO THE EXTENT THAT THE DAMAGE WAS CAUSED BY THE WILLFUL INTENT OR GROSS NEGLIGENCE OF EITHER PARTY.6. TERMINATION. Either party may terminate this Agreement at any time upon two weeks prior notice. Upon termination of this Agreement or expiration of a Trial Period, if User has not obtained a production use license for the Product, User shall (a) cease using the Product, and (b) certify in writing to BMC that User has de-installed and destroyed, or returned to BMC, the Products and all copies of the Products. This requirement applies to copies in all forms, partial and complete, in all types of media and computer memory and whether or not merged into other materials. This Agreement creates no obligation on the part of BMC to license any Products to User or on the part of User to purchase any hardware or license any software Products from BMC. Notwithstanding anything to the contrary in this Section 6, if hardware is included with the Product, upon conclusion of the Trial Period User will either purchase the hardware or return it to BMC within five days in its original packing material.7. EXPORT CONTROLS User represents and warrants that it: a) will comply with the United States Export Administration Regulations and other U.S. or foreign export regulations; b) no individual accessing or using the Product is a citizen of or from an embargoed country (currently Iran, Syria, Sudan, Cuba and North Korea); c) is not prohibited from receiving the Product under such regulations; d) will not acquire the Product for a person who is restricted under such regulations; e) will not use the Product in contradiction to such regulations; and f) will not use the Product for prohibited uses, including but not limited to nuclear, chemical, missile or biological weapons related end uses. For Product exported from Ireland, EC No. 428/2009 sets up a Community regime for control of exports of dual-use item and technology, and it is declared that this Product is intended for civil purposes only. Therefore, User agrees to comply with both the U.S. regulations and those E.U. regulations and will not export in violation of the regulations and without all proper licenses. Any failure to comply with these regulations will result in User forfeiting all rights to the Product.8. GOVERNING LAW AND DISPUTE RESOLUTION A party will provide written notice to the other party of any controversy, dispute or claim arising out of or relating to this Agreement, or to the formation, interpretation, breach, termination, or validity thereof ("Controversy"). The parties shall engage in good faith negotiations to resolve the Controversy. Only if the Controversy is not resolved through good faith negotiations within 15 days of the sending of the written notice of Controversy, the Controversy may be submitted to litigation or binding arbitration, based on the place of incorporation of the parties, as follows: (i) If both parties to this Agreement are entities incorporated under the law of any state in the United States, the Controversy shall be tried in either state or federal court located in Houston, Texas and the laws of the State of Texas shall govern. Both sides hereby submit to the exclusive jurisdiction of the courts in Houston, Texas and waive all defenses based on forum non (ii) If both parties to this Agreement are entities incorporated in countries in the Europe, Middle East, or Africa regions, the arbitration shall be held in Amsterdam, Netherlands under the then-applicable rules of the International Chamber of Commerce and the substantive laws of the Netherlands will govern. (iii) If both parties to this Agreement are entities incorporated in countries in the Asia Pacific region, the arbitration shall be held in Singapore under the then-applicable rules of the Singapore International Arbitration Centre and the substantive laws of Singapore will govern. (iv) In all other instances, the arbitration shall be held in New York City, New York, under the then-applicable international rules of the American Arbitration Association and the substantive laws of the State of Texas will govern.For all arbitrations conducted hereunder: (a) the arbitration shall be conducted in English; (b) the relevant arbitral institution shall determine the number of arbitrators, but any Controversy in which the amount in dispute is greater than $10 million USD shall be decided by three arbitrators, with each party having the right to select one arbitrator; (c) the costs of such arbitration shall be borne equally, pending the arbitrator's award; (d) the arbitration award rendered shall be final and binding on the parties, shall not be subject to appeal to any court and shall be enforceable in any court having jurisdiction over the Parties; (e) the arbitration proceedings, award and pleadings shall all be confidential, unless disclosure of particular information is required for purposes of enforcing/challenging the award or to meet local securities law requirements; and (f) the party prevailing in arbitration shall be entitled to recover its reasonable attorneys' fees and the necessary costs incurred in connection with the arbitration. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. Nothing in this Agreement shall be deemed as preventing either party from seeking immediate injunctive relief from any court having jurisdiction over the parties and the subject matter of the dispute.9. U.S. FEDERAL ACQUISITIONS. This Section applies only to acquisitions of the commercial Product and Documentation subject to this Agreement by or on behalf of the United States Government, or by any prime contractor or subcontractor (at any tier) under any contract, grant, cooperative agreement or other activity with the United States Government. In the event the Products are delivered to the United States Government, the United States Government hereby agrees that the Products qualify as "commercial items" within the meaning of the Federal acquisition regulation(s) applicable to this procurement. The terms and conditions of this Agreement shall pertain to the United States Government's use and disclosure of the Product, and shall supersede any conflicting contractual terms and conditions. The following additional statement applies only to acquisitions governed by DFARS Subpart 227.4 (October 1988): "Restricted Rights – Use, duplication and disclosure by the Government is subject to restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 (Oct. 1988)."10. MISCELLANEOUS TERMS. A waiver by a party of any breach of any term of this Agreement will not be construed as a waiver of any continuing or succeeding breach. Should any term of this Agreement be invalid or unenforceable, the remaining terms will remain in effect. The parties acknowledge they have read this Agreement and agree that it is the complete and exclusive statement of the agreement and supersedes any prior or contemporaneous negotiations or agreements, between the parties relating to the subject matter of this Agreement. There are no representations, promises, warranties, covenants, or undertakings between the parties other than those expressly set forth in this Agreement. This Agreement may not be modified or rescinded except in writing signed by both parties. The prevailing party in any litigation is entitled to recover its attorney's fees and costs from the other party. User may not assign or transfer this Agreement without BMC's prior written consent. The BMC Products may contain third party software which is delivered to User as part of the Product and may not be taken out of the Product or used separately from the Product and for which additional terms may be included in the Documentation. Any additional documents presented to a BMC representative by User for signature as a condition for going on a User's site will be governed by this Agreement and to the extent that such document presents additional terms or conflicts with this Agreement, it shall be considered null and void.If you agree, as an authorized representative of User, to accept the license terms above on behalf of yourself and User, and to confirm that you and User are in compliance with and will remain in compliance with all of the terms and conditions set forth above, click on the "I agree" button below.
Effective April 9th 2020 to April 9th 2020
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THIS TRIAL AGREEMENT ("AGREEMENT") WILL BECOME A LEGAL AGREEMENT BETWEEN THE USER OF THE DOWNLOADED PRODUCT NAMED IN THE EXPORT VALIDATION SECTION OF THE BMC SUPPORT WEB SITE (WITHIN WWW.BMC.COM) OR ANY SUCCESSOR SITE) OF WHICH THIS AGREEMENT IS A PART ("USER") AND BMC SOFTWARE DISTRIBUTION, INC. OR ITS LOCAL LICENSING AFFILIATE ("BMC"). BY PRESSING THE "I AGREE" BUTTON, YOU REPRESENT AND WARRANT THAT YOU HAVE READ AND UNDERSTOOD THE TERMS OF THIS AGREEMENT, THAT YOU HAVE THE AUTHORITY TO BIND USER TO THIS AGREEMENT, AND THAT USER AGREES TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. BMC AGREES TO PERMIT YOU TO DOWNLOAD PRODUCTS ONLY IF AND AFTER YOU AND USER HAVE ACCEPTED ALL OF THESE TERMS BY PRESSING THE "I AGREE" BUTTON.
Effective April 9th 2020 to April 9th 2020
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THIS TRIAL AGREEMENT ("AGREEMENT") WILL BECOME A LEGAL AGREEMENT BETWEEN THE USER OF THE DOWNLOADED PRODUCT NAMED IN THE EXPORT VALIDATION SECTION OF THE BMC SUPPORT WEB SITE (WITHIN WWW.BMC.COM) OR ANY SUCCESSOR SITE) OF WHICH THIS AGREEMENT IS A PART ("USER") AND BMC SOFTWARE DISTRIBUTION, INC. OR ITS LOCAL LICENSING AFFILIATE ("BMC"). BY PRESSING THE "I AGREE" BUTTON, YOU REPRESENT AND WARRANT THAT YOU HAVE READ AND UNDERSTOOD THE TERMS OF THIS AGREEMENT, THAT YOU HAVE THE AUTHORITY TO BIND USER TO THIS AGREEMENT, AND THAT USER AGREES TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. BMC AGREES TO PERMIT YOU TO DOWNLOAD PRODUCTS ONLY IF AND AFTER YOU AND USER HAVE ACCEPTED ALL OF THESE TERMS BY PRESSING THE "I AGREE" BUTTON. |
PLEASE READ THIS AGREEMENT: IF YOU DO NOT UNDERSTAND OR AGREE WITH ANY OF THE TERMS OF THIS AGREEMENT, DO NOT PRESS THE "I AGREE" BUTTON. |
(1) DEFINED TERMS. "Confidential Information" is all information that is proprietary information and/or confidential information of the disclosing party and does not include information that: (a) was rightfully in the receiving party's possession without any obligation of confidentiality before receipt from the disclosing party; (b) is or becomes a matter of public knowledge through no fault of the receiving party; (c) is rightfully received by the receiving party from a third party without violation of a duty of confidentiality; or (d) is independently developed by or for the receiving party. "Products" are software products and their related documentation and other technical information owned or distributed by BMC which may be accessed on the BMC EPD Web site (www.bmc.com/ or any successor web site) and for which User is granted a license under this Agreement. "Trial Period" with respect to a Product, is the time period that begins the date that You download such Product and ends on the sooner of (a) thirty calendar days thereafter, or (b) the number of calendar days thereafter specified in the license key provided with such Product. |
(2) TRIAL LICENSE. BMC grants User a non-exclusive, non-transferable, non-assignable temporary license to use each Product on a single computer for the Trial Period only to internally evaluate and determine whether to acquire a license to such Product for a fee and not for development, commercial, production, or database management purposes, or with production data. User must enter into a separate agreement to obtain production rights and technical support for a Product. To the extent a Product includes third party code, if (a) such third party code is provided for use with a Product, it may be used only with that Product; and (b) the documentation contains terms that pertain to such third party code, those terms govern the third party code in place of the terms of the this Agreement. |
(3) RESTRICTIONS ON USE. User shall not: (a) remove any Product identifiers, copyright notices, or other notices or proprietary restrictions from the Products, (b) cause or permit the de-compilation, disassembly, reverse engineering or any other attempt to derive a Product's source code from executable code, except to the extent expressly permitted by applicable law or treaty despite this limitation; (c) disclose the results of any benchmark tests of any Product to any third party without BMC's prior written consent, (d) duplicate, install and/or use the Products other than as specified in this Agreement, or (e) sublicense, modify, timeshare, rent, service bureau or otherwise transfer or share the Products to or with, or permit access or use of the Products by, any third party. User may not export or re-export any Products without both the prior written consent of BMC and the appropriate U.S. and/or foreign government licenses or license exceptions. |
(4) TERMINATION. Upon termination of this Agreement or expiration of a Trial Period, if User has not obtained a production use license for the Product, User shall (a) cease using the Product, and (b) certify in writing to BMC that User has de-installed and destroyed, or returned to BMC, the Products and all copies of the Products. This requirement applies to copies in all forms, partial and complete, in all types pf media and computer memory and whether or not merged into other materials. This Agreement creates no obligation on the part of BMC to license any Products to User or on the part of User to purchase any license to the Products from BMC. |
(5) NO WARRANTY AND LIMITATION OF LIABILITY. THE PRODUCTS ARE PROVIDED "AS IS" FOR EVALUATION PURPOSES ONLY AND WITHOUT ANY WARRANTY, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE OR MERCHANTABILITY, AND NON-INFRINGEMENT, OR ANY OTHER WARRANTY, WHETHER EXPRESS OR IMPLIED. NONE OF BMC, ITS AFFILIATES, SUPPLIERS OR LICENSORS SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OR ANY LOSS OF PROFITS, REVENUE, DATA OR DATA USE FROM ANY CAUSE ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THE PRODUCT OR THIS AGREEMENT. BMC'S, ITS AFFILIATES', SUPPLIER'S AND LICENSOR'S LIABILITY FOR DAMAGES RESULTING FROM THE USE OF THE PRODUCT OR THIS AGREEMENT, WHETHER IN CONTRACT OR TORT, SHALL BE LIMITED TO THE GREATER OF THE AMOUNT PAID BY USER TO LICENSE THE USE OF THAT PRODUCT OR US$500.00 . IN THE COUNTRIES LISTED IN SUBSECTION 9(F), BELOW, THE LIMITATION OF LIABLITY IN THIS SECTION WILL NOT APPLY IF AND TO THE EXTENT THAT THE DAMAGE WAS CAUSED BY THE WILLFUL INTENT OR GROSS NEGLIGENCE OF EITHER PARTY. |
(6) PROPRIETARY RIGHTS AND CONFIDENTIALITY. BMC, its affiliates and/or licensors, as applicable, retain all right, title and interest to the Products and all related intellectual property and proprietary rights. The Products and any third party software provided with the Product are protected by applicable copyright, trade secret, industrial and other intellectual property laws. BMC reserves any rights not expressly granted to User. The parties agree that the Products are BMC's confidential information. A receiving party (a) will hold the other party's Confidential Information in confidence for five (5) years from the later of (i) the date of disclosure or (ii) the last use of the Product and (b) will only disclose the other party's Confidential Information to employees or agents of the receiving party who are bound not to disclose such information by legal obligations at least as protective as those in this Agreement and who have to know the information to perform his, hers or its job. Nothing will prevent either party from disclosing the terms or pricing under this Agreement in any legal proceeding arising from or in connection with this Agreement or disclosing information to a federal or state governmental entity as required by law. |
(7) EXPORT LAWS. Export laws and regulations of the United States and other relevant local export laws and regulations apply to the Products. User's use of the Products (including technical data) is governed by, and User shall comply with, all such laws, including "deemed export" and "deemed re-export" regulations. User agrees that no Product, data, information, program and/or materials will be exported, directly or indirectly, in violation of these laws or will be used for any purpose prohibited by these laws, including nuclear, chemical or biological weapons proliferation or development of missile technology. Pressing the "I agree" button below is also a confirmation of User's agreement that User complies, now and during the trial term, with each of the following statements:(a) User is not a citizen, national or resident of, or is under control of, the government of Cuba, Iran, Sudan, Iraq, North Korea, Syria or any country to which the United States has prohibited export; and (b) User will not download otherwise export or re-export any Product, directly or indirectly, to any of the above-mentioned countries or to citizens, nationals or residents of any of such countries; and (c) User is not listed on the United States Department of Treasury lists of Specially Designated Nationals, Specially designated terrorists, or Specially Designated Narcotic Traffickers or is listed on the United States Department of Commerce Table of Denial Orders; and (d) User will not download or otherwise export or re-export any Product, directly or indirectly, to any person on any of the above-mentioned list; and (e) User will not use any Product for, or will allow any Product to be used for, any purpose prohibited by United States or other applicable law, including, without limitation, the development, design, manufacture or production of nuclear, chemical or biological weapons of mass destruction. |
(8) ENTIRE AGREEMENT. This is the entire agreement of the parties, and it supersedes and replaces all prior and contemporaneous agreements and negotiations with respect to User's use of the Products on a trial basis. This Agreement may only be amended by a signed writing of the parties. User may not assign or transfer this Agreement without BMC's prior written consent. No failure or delay by either party in exercising any right, power or privilege shall operate as a waiver, nor shall any single or partial exercise thereof preclude any other or further exercise, or the exercise of any right, power or privilege under this Agreement. In the event that any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions of this Agreement will remain in full force and effect. |
(9) CHOICE OF LAW AND JURISDICTION. If User is located and will be using the Product in (a) Argentina, the laws of Argentina, without regard to conflict of laws principles, will apply to this Agreement and jurisdiction will be in the Courts of Buenos Aires, and BMC and User agree to the personal jurisdiction of such Courts for such matters, (b) Brazil, the laws of Brazil, without regard to conflict of laws principles, will apply to this Agreement and jurisdiction will be in the Courts of Sao Paulo, and BMC and User agree to the personal jurisdiction of such Courts for such matters, (c) United Mexican States, the laws of United Mexican States, without regard to conflict of laws principles, will apply to this Agreement and jurisdiction will be in the Courts of Mexico City, and BMC and User agree to the personal jurisdiction of such Courts for such matters, (d) Japan, South Korea, Peoples Republic of China, Special Administrative Regions of Hong Kong or Macau, Taiwan, Philippines, Indonesia, Malaysia, Myanmar, Singapore, Brunei, Vietnam, Cambodia, Laos, Thailand, India, Pakistan, Australia, New Zealand, Papua New Guinea or any of the pacific island states, then the substantive laws of Singapore, without regard to conflict or laws principles, will apply and jurisdiction will be in the Courts of the Singapore, and BMC and User agree to the personal jurisdiction of such Courts for such matters, (e) the United States, Puerto Rico or any other US protectorate, Canada, or any country in Central or South America not specifically covered above, the laws of the State of Texas, without regard o conflict of laws principles, will apply to this Agreement, and jurisdiction will be in the state and federal courts located in Harris County, Texas, and BMC and User hereby consent to the personal jurisdiction of such courts for such matters, and (f) in country not covered by any of the foregoing, the laws of the Netherlands, without regard to conflict of laws principles, will apply to this Agreement, and jurisdiction will be in the Courts of Amsterdam, and BMC and User agree to the personal jurisdiction of such Courts for such matters. |
The choice of law rules of any jurisdiction and the United Nations convention on contracts for the international sale of goods do not apply to this Agreement. |
(10)MISCELLANEOUS. Upon thirty (30) calendar days written notice, BMC may audit User's use of the Products. User shall cooperate with such audit and provide reasonable assistance and access to information. Within thirty (30) calendar days of receiving notice thereof, User shall pay any underpaid fees disclosed by the audit. |
(11) U.S. FEDERAL ACQUISITIONS. This Article applies to all acquisitions of the Product subject to this Agreement by or on behalf of the US federal government, or by any prime contractor or subcontractor (at any tier) under any contract, grant, cooperative agreement or other activity with the US federal government. By accepting delivery of the Product, the government hereby agrees that the Product qualifies as "commercial" within the meaning of the acquisition regulation(s) applicable to this procurement. The terms and conditions of this Agreement shall pertain to the government's use and disclosure of the Product, and shall supersede any conflicting contractual terms and conditions. If the license granted by this Agreement fails to meet the government's needs or is inconsistent in any respect with Federal law, the government agrees to return the Product, unused, to BMC. The following additional statement applies only to acquisitions governed by DFARS Subpart 227.4 (October 1988): "Restricted Rights - Use, duplication and disclosure by the Government is subject to restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 (Oct. 1988)." |
If you agree, as an authorized representative of User, to accept the license terms above on behalf of yourself and User, and to confirm that you and User are in compliance with and will remain in compliance with all of the terms and conditions set forth above, click on the "I agree" button below. |
Trial Agreement
Effective April 9th 2020
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本试用协议("协议")是一份由使用含有本试用协议的BMC支持网站上(WWW.BMC.COM 或任何后继网站)出口验证一条下列明之下载产品的用户("用户")和BMC SOFTWARE, INC.或BMC SOFTWARE, INC或当地许可关联公司("BMC")共同签订的合法协议。只要点击"我同意"按钮,即表示您声明和保证您已经阅读了并理解了本协议条款;您有权让用户受本协议约束;用户同意接受本协议条款和条件的约束。BMC同意只有在您和用户通过点击"我同意"按钮接受全部条款之后,BMC方同意您下载产品。
请阅读本协议:如果您不理解或无法同意本协议的任何条款,请不要点击"我同意"按钮。
(1) 定义条款。 "机密信息"是指披露方(“披露方”)披露给接收方(“接收方”)的所有专利或保密信息,包括但不限于(i)任何及所有与披露方财务信息、客户、雇员、产品或服务(包括但不限于软件代码、流程图、技术、规格、开发和市场营销计划、策略、预测和与提案相关的文件和回复)相关的信息;(ii)对于BMC及其许可人来说,指软件产品以及产品附带的第三方软件;和(iii)本协议条款,包括但不限于产品定价信息。保密信息不包含接收方可以证明处于以下情况的信息(a)在从披露方处获得之前,接收方在不承担保密义务的情况下已经正当享有的信息;(b)由于非接收方的过错而被公开的信息;(c)接收方从未违反保密义务的第三方处正当获得的信息;或(d)由接收方或为接受方独立开发的信息。 "产品"是指BMC拥有的或分发的、在BMC EPD网站上 ((www.bmc.com/ 或任何后继网站)可以访问到的软件或硬件产品、软件产品的相关文件资料和其他技术信息。根据本协议规定,用户被授予了此类"产品"的许可。"试用期"就产品而言,是指从您下载该产品开始,到下列 (a)和(b)中较早一天时结束的期限,即(a)下载日后的第三十个日历日,或(b)与产品一道提供的许可钥匙中规定的下载日后的某一日历日。
(2) 试用许可。 BMC向用户授予了一项在试用期内能在单个计算机上使用每件产品的非独占性、不可转让、不可出让的临时许可,授予此项许可只是为了内部评估和确定是否付费获得和/或许可此类产品, 而不用于开发、商业、生产或数据库管理的目的,或是否在付费情况下与生产数据一道获得此类产品许可。用户必须签订一份单独协议,以便获得产品的生产权和技术支持。
(3) 专有权利和保密。(a) BMC、其关联公司或许可人保留产品和支持上的一切权利、所有权和权益以及所有相关知识产权和专有权利。产品和与产品一道提供的所有第三方软件均受到适用的著作权、商业秘密、工业产权和其他知识产权法律的保护。用户不得从产品上摘除任何产品标识、版权、商标或其他通知。BMC保留在本协议中未明确授予用户的任何权利。(b)接收方不得向任何第三方透露披露方的保密信息或违反本协议使用保密信息。接收方(i)将以处理自有保密信息同样的认真和保护态度对待披露方的保密信息,且(ii)不会直接或间接披露、复制、分发、转发披露方的保密信息,或允许第三方获得披露方的保密信息。即使有前述规定,接收方可将披露方的保密信息披露给需要知道的接收方员工和代理人,前提是该等员工和代理人承担本协议条款中规定的几乎同样的合法保密义务(在任何情况下不得减轻义务)。(c)通知义务。如果接收方发现任何未授权使用或泄露披露方保密信息的情况,接收方将迅速且完全将其所知的未授权使用或披露情况通知披露方。此外,如果接收方或其任何员工或代理人有必要披露(口头询问、书面质询、索取法律诉讼信息或文件、传票、提起民事调查,或其他类似程序)任何披露方的保密信息,接收方在向披露方提供商业上合理的提前书面通知以允许披露方寻求保护令或其他适当的救济或免除遵守本条款之前,接收方不会披露披露方的保密信息。在任何情况下,接收方将尽商业上合理的努力保护披露方保密信息的保密性,包括但不限于与披露方合作获得适当的保护令或其他表示将对保密信息进行保密处理的可靠保证。
(4) 使用限制。用户不得(a)从产品上修改、删除或去除任何所有权、权利、商标、专利或版权通知(“身份标签”);(b)在没有复制所有身份标签的情况下复制任何产品或其部分;(c)拆解、逆向工程、反编译或以其他方式试图从目标代码中获取产品的源代码,除非适用法律明确表示许可,在这种情况下该限制不适用,且不可协议弃权;(d)向任何第三方分发、出租、租用、转授权或提供产品;(e)在未获得BMC事先书面批准的情况下向第三方提供任何功能评估或性能测试结果;(f)尝试废除或规避产品内的许可机制;或(g)违反文档内的任何其他使用限制。
(5) 无保证和责任限制。 产品只能为了评估的目的按照"原状"提供,不提供任何保证,包括但不限于对适用于特定目的的适应性或适销性和非侵权作出的任何暗示保证,或任何其他明示的或暗示的保证。如果产品使用或本协议以任何方式造成了任何间接的、附带的、特殊的、惩罚性的或结果性的损害、或任何利润的、收入的、数据的或数据使用的损失,则 BMC、其关联公司、供应商或许可人均不承担责任。对于产品使用或本协议造成的损害,BMC、其关联公司、供应商和许可人需要承担的损害责任,无论是合同责任或侵权责任,均只限于以下两项金额中的较大一项,即用户为产品使用许可而支付的金额或500美元。在以下第9(e)条列出的国家中,如果由于一方故意或重大过失而导致损失,则不适用于本条中的责任限制。
(6) 终止。 任何一方可在任何时候终止本协议,前提是提前两周书面通知对方。在本协议终止或试用期届满时,如果用户尚未获得产品生产使用许可,则用户应当(a)停止使用产品,和(b)向BMC书面证实:用户已经卸载了和损毁了,或已经向BMC返还了产品和产品的所有副本。本项要求适用于各种媒介和计算机存储器中存储的、采用各类形式的副本,无论此类副本是否与其他资料合并在一起。本协议未规定BMC有义务向用户许可任何产品,亦未规定用户有义务向BMC购买任何硬件或许可任何软件产品。尽管第6节存在相反的规定,如果产品内包含硬件,在试用期结束后用户将购买硬件或在五天内以原包装材料将其退回给BMC。
(7) 数据保护。 BMC和客户同意,数据处理协议适用于已下载的BMC产品(其副本可在https://www.bmc.com/content/dam/bmc/corporate/bmcdpa.pdf上查看), 除非BMC已有与客户就此类BMC产品签订的数据处理协议;在这种情况下,签定的版本适用。
(8) 出口管控。用户声明并保证:a)将遵守《美国出口管理条例》以及其他美国或外国出口法规;b) 占用或使用产品的个人不得是禁运国的公民或来自该国家(当前包括伊朗、叙利亚、苏丹、古巴和北朝鲜);c)不得被该等法规禁止接收产品;d)不会将产品给予受该等法规禁止的人士;e)不会以违反该等法规的方式使用产品;f)不会将产品用于被禁止的用途,包括但不限于核能、化学、导弹或生化武器相关的用途。对于从爱尔兰出口的产品,EC No. 428/2009法规设定了一个双用途物品和技术出口管控的欧洲共同体体制,并明确声明该产品仅可用于民用用途。因此用户同意遵守美国法规和欧盟法规,并且不会违反该法规的规定与在未获得适当许可的情况下出口产品。未遵守该法规将导致用户丧失产品的所有权利。
(9) 准据法和争议解决。如果产生因本协议引起、与本协议相关或与本协议生成、解释、违反、终止或效力相关的争议、争论或索赔(“争议”),一方将书面通知另一方。双方应本着善意通过协商解决争议。若在发出书面争议通知后15天内仍然无法通过善意协商解决争议,则可以通过在双方成立所在地提交诉讼或有约束力的仲裁解决,如下:
(i)如果协议双方均为根据美国任意州法律成立的实体,则争议应交由德克萨斯州休斯顿的州法院或联邦法院审理,应受德克萨斯州法律管辖。双方特此服从德克萨斯州休斯顿的专属管辖权,并且放弃所有不方便法院的辩护。
(ii)如果协议双方均为在欧洲、中东或非洲地区国家成立的实体,应在荷兰阿姆斯特丹根据国际商会当时适用的规则和荷兰实体法进行仲裁。
(iii) 如果协议双方均为在亚太地区国家成立的实体,应在新加坡根据新加坡国际仲裁中心当时适用的规则和新加坡实体法进行仲裁。
(iv)在所有其他情况下,应在纽约市根据美国仲裁协会当时适用的规则和德克萨斯州实体法进行仲裁。
对于在本协议下进行的所有仲裁:(a)仲裁应以英语进行;(b)有关仲裁机构应确定仲裁员人数,但争议金额大于1000万美元的任何争议应由三名仲裁员决定,每位当事人有权选择一名仲裁员;(c)在仲裁员裁决之前,该仲裁费用应平等承担;(d)所作出的仲裁裁决是终局的,对各方具有约束力,不得向任何法院提出上诉,并可在任何对双方具有管辖权的法院执行;(e)仲裁程序、裁决和诉状均应保密,除非为执行/质疑裁决或符合当地证券法规定的目的而需要披露特定信息;及(f)仲裁胜诉当事人有权收回其合理的律师费及与仲裁有关的必要费用。
《联合国国际货物销售合同公约》不适用于本协议。本协议中的任何内容不得被视为阻止任何一方立即向任何对双方和争议事项有管辖权的法院寻求禁令救济。
(10) 美国联邦购买条例。 本节规定仅适用于根据本协议由美国政府或代表美国政府购买商业产品和文档的购买行为,或美国政府作为参与方的任何合同、授权、合作协议或其他活动下规定的任何总承包商或分包商(任何级别)购买商业产品和文档的购买行为。一旦产品交付给美国政府,美国政府在此同意产品具有适用于本采购行为的联邦采购条例下定义的"商业物品"性质。本协议的条款和条件与美国政府使用和披露产品有关,并应当取代任何冲突的合同条款和条件。以下额外声明只适用于受美国联邦购买条例国防补充规定(DFARS)第227.4部分(1998年10月)所管辖的购买行为,该规定内容为:"限制权利-政府使用、复制和披露行为要受DFARS 252.227-7013(1988年10月)中"技术数据和计算机软件权利"部分第(c)(1)(ii) 条下限制规定的约束"。
(11) 其他条款。一方当事人放弃对本协议任何条款的任何违约的主张权利不会被解释为对任何持续或继续违约的弃权。如果本协议的任何条款无效或不可执行,其余条款将继续有效。双方承认其已阅读本协议并同意这是本协议完整和唯一的声明,并取代双方之间有关本协议标的的任何先前或同期的谈判或协议。除本协议明确规定之外,双方之间没有任何声明,诺言,保证,契约或承诺。本协议不得修改或撤销,除非经双方书面签署。任何诉讼中胜诉的一方有权从另一方收回其律师费用和成本。未经BMC事先书面同意,用户不得转让本协议。BMC产品可能包含第三方软件,作为产品的一部分交付给用户,用户不得将其从产品中取出或与产品分开使用,并且文档中可能包含针对第三方软件的其他条款。用户作为登录用户网站的条件而提交给BMC代表的任何额外文档将受本协议的管辖,并且如果此类文档的附加条款与条件与本协议冲突,则其应被视为无效。
如果您作为用户授权代表同意代表您自己和用户接受以上许可条款,并同意确认您和用户均遵守而且会继续遵守以上所有条款和条件,请点击下方"我同意"按钮。
Effective April 9th 2020 to April 9th 2020
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本试用协议("协议")是一份由使用含有本试用协议的BMC支持网站上(WWW.BMC.COM 或任何后继网站)出口验证一条下列明之下载产品的用户("用户")和BMC SOFTWARE, INC.或BMC SOFTWARE, INC或当地许可关联公司("BMC")共同签订的合法协议。只要点击"我同意"按钮,即表示您声明和保证您已经阅读了并理解了本协议条款;您有权让用户受本协议约束;用户同意接受本协议条款和条件的约束。BMC同意只有在您和用户通过点击"我同意"按钮接受全部条款之后,BMC方同意您下载产品。
请阅读本协议:如果您不理解或无法同意本协议的任何条款,请不要点击"我同意"按钮。
(1) 定义条款。 "机密信息"是指披露方(“披露方”)披露给接收方(“接收方”)的所有专利或保密信息,包括但不限于(i)任何及所有与披露方财务信息、客户、雇员、产品或服务(包括但不限于软件代码、流程图、技术、规格、开发和市场营销计划、策略、预测和与提案相关的文件和回复)相关的信息;(ii)对于BMC及其许可人来说,指软件产品以及产品附带的第三方软件;和(iii)本协议条款,包括但不限于产品定价信息。保密信息不包含接收方可以证明处于以下情况的信息(a)在从披露方处获得之前,接收方在不承担保密义务的情况下已经正当享有的信息;(b)由于非接收方的过错而被公开的信息;(c)接收方从未违反保密义务的第三方处正当获得的信息;或(d)由接收方或为接受方独立开发的信息。 "产品"是指BMC拥有的或分发的、在BMC EPD网站上 ((www.bmc.com/ 或任何后继网站)可以访问到的软件或硬件产品、软件产品的相关文件资料和其他技术信息。根据本协议规定,用户被授予了此类"产品"的许可。"试用期"就产品而言,是指从您下载该产品开始,到下列 (a)和(b)中较早一天时结束的期限,即(a)下载日后的第三十个日历日,或(b)与产品一道提供的许可钥匙中规定的下载日后的某一日历日。
(2) 试用许可。 BMC向用户授予了一项在试用期内能在单个计算机上使用每件产品的非独占性、不可转让、不可出让的临时许可,授予此项许可只是为了内部评估和确定是否付费获得和/或许可此类产品, 而不用于开发、商业、生产或数据库管理的目的,或是否在付费情况下与生产数据一道获得此类产品许可。用户必须签订一份单独协议,以便获得产品的生产权和技术支持。
(3) 专有权利和保密。(a) BMC、其关联公司或许可人保留产品和支持上的一切权利、所有权和权益以及所有相关知识产权和专有权利。产品和与产品一道提供的所有第三方软件均受到适用的著作权、商业秘密、工业产权和其他知识产权法律的保护。用户不得从产品上摘除任何产品标识、版权、商标或其他通知。BMC保留在本协议中未明确授予用户的任何权利。(b)接收方不得向任何第三方透露披露方的保密信息或违反本协议使用保密信息。接收方(i)将以处理自有保密信息同样的认真和保护态度对待披露方的保密信息,且(ii)不会直接或间接披露、复制、分发、转发披露方的保密信息,或允许第三方获得披露方的保密信息。即使有前述规定,接收方可将披露方的保密信息披露给需要知道的接收方员工和代理人,前提是该等员工和代理人承担本协议条款中规定的几乎同样的合法保密义务(在任何情况下不得减轻义务)。(c)通知义务。如果接收方发现任何未授权使用或泄露披露方保密信息的情况,接收方将迅速且完全将其所知的未授权使用或披露情况通知披露方。此外,如果接收方或其任何员工或代理人有必要披露(口头询问、书面质询、索取法律诉讼信息或文件、传票、提起民事调查,或其他类似程序)任何披露方的保密信息,接收方在向披露方提供商业上合理的提前书面通知以允许披露方寻求保护令或其他适当的救济或免除遵守本条款之前,接收方不会披露披露方的保密信息。在任何情况下,接收方将尽商业上合理的努力保护披露方保密信息的保密性,包括但不限于与披露方合作获得适当的保护令或其他表示将对保密信息进行保密处理的可靠保证。
(4) 使用限制。用户不得(a)从产品上修改、删除或去除任何所有权、权利、商标、专利或版权通知(“身份标签”);(b)在没有复制所有身份标签的情况下复制任何产品或其部分;(c)拆解、逆向工程、反编译或以其他方式试图从目标代码中获取产品的源代码,除非适用法律明确表示许可,在这种情况下该限制不适用,且不可协议弃权;(d)向任何第三方分发、出租、租用、转授权或提供产品;(e)在未获得BMC事先书面批准的情况下向第三方提供任何功能评估或性能测试结果;(f)尝试废除或规避产品内的许可机制;或(g)违反文档内的任何其他使用限制。
(5) 无保证和责任限制。 产品只能为了评估的目的按照"原状"提供,不提供任何保证,包括但不限于对适用于特定目的的适应性或适销性和非侵权作出的任何暗示保证,或任何其他明示的或暗示的保证。如果产品使用或本协议以任何方式造成了任何间接的、附带的、特殊的、惩罚性的或结果性的损害、或任何利润的、收入的、数据的或数据使用的损失,则 BMC、其关联公司、供应商或许可人均不承担责任。对于产品使用或本协议造成的损害,BMC、其关联公司、供应商和许可人需要承担的损害责任,无论是合同责任或侵权责任,均只限于以下两项金额中的较大一项,即用户为产品使用许可而支付的金额或500美元。在以下第9(e)条列出的国家中,如果由于一方故意或重大过失而导致损失,则不适用于本条中的责任限制。
(6) 终止。 任何一方可在任何时候终止本协议,前提是提前两周书面通知对方。在本协议终止或试用期届满时,如果用户尚未获得产品生产使用许可,则用户应当(a)停止使用产品,和(b)向BMC书面证实:用户已经卸载了和损毁了,或已经向BMC返还了产品和产品的所有副本。本项要求适用于各种媒介和计算机存储器中存储的、采用各类形式的副本,无论此类副本是否与其他资料合并在一起。本协议未规定BMC有义务向用户许可任何产品,亦未规定用户有义务向BMC购买任何硬件或许可任何软件产品。尽管第6节存在相反的规定,如果产品内包含硬件,在试用期结束后用户将购买硬件或在五天内以原包装材料将其退回给BMC。
(7) 数据保护。 BMC和客户同意,数据处理协议适用于已下载的BMC产品(其副本可在https://www.bmc.com/content/dam/bmc/corporate/bmcdpa.pdf上查看), 除非BMC已有与客户就此类BMC产品签订的数据处理协议;在这种情况下,签定的版本适用。
(8) 出口管控。用户声明并保证:a)将遵守《美国出口管理条例》以及其他美国或外国出口法规;b) 占用或使用产品的个人不得是禁运国的公民或来自该国家(当前包括伊朗、叙利亚、苏丹、古巴和北朝鲜);c)不得被该等法规禁止接收产品;d)不会将产品给予受该等法规禁止的人士;e)不会以违反该等法规的方式使用产品;f)不会将产品用于被禁止的用途,包括但不限于核能、化学、导弹或生化武器相关的用途。对于从爱尔兰出口的产品,EC No. 428/2009法规设定了一个双用途物品和技术出口管控的欧洲共同体体制,并明确声明该产品仅可用于民用用途。因此用户同意遵守美国法规和欧盟法规,并且不会违反该法规的规定与在未获得适当许可的情况下出口产品。未遵守该法规将导致用户丧失产品的所有权利。
(9) 准据法和争议解决。如果产生因本协议引起、与本协议相关或与本协议生成、解释、违反、终止或效力相关的争议、争论或索赔(“争议”),一方将书面通知另一方。双方应本着善意通过协商解决争议。若在发出书面争议通知后15天内仍然无法通过善意协商解决争议,则可以通过在双方成立所在地提交诉讼或有约束力的仲裁解决,如下:
(i)如果协议双方均为根据美国任意州法律成立的实体,则争议应交由德克萨斯州休斯顿的州法院或联邦法院审理,应受德克萨斯州法律管辖。双方特此服从德克萨斯州休斯顿的专属管辖权,并且放弃所有不方便法院的辩护。
(ii)如果协议双方均为在欧洲、中东或非洲地区国家成立的实体,应在荷兰阿姆斯特丹根据国际商会当时适用的规则和荷兰实体法进行仲裁。
(iii) 如果协议双方均为在亚太地区国家成立的实体,应在新加坡根据新加坡国际仲裁中心当时适用的规则和新加坡实体法进行仲裁。
(iv)在所有其他情况下,应在纽约市根据美国仲裁协会当时适用的规则和德克萨斯州实体法进行仲裁。
对于在本协议下进行的所有仲裁:(a)仲裁应以英语进行;(b)有关仲裁机构应确定仲裁员人数,但争议金额大于1000万美元的任何争议应由三名仲裁员决定,每位当事人有权选择一名仲裁员;(c)在仲裁员裁决之前,该仲裁费用应平等承担;(d)所作出的仲裁裁决是终局的,对各方具有约束力,不得向任何法院提出上诉,并可在任何对双方具有管辖权的法院执行;(e)仲裁程序、裁决和诉状均应保密,除非为执行/质疑裁决或符合当地证券法规定的目的而需要披露特定信息;及(f)仲裁胜诉当事人有权收回其合理的律师费及与仲裁有关的必要费用。
《联合国国际货物销售合同公约》不适用于本协议。本协议中的任何内容不得被视为阻止任何一方立即向任何对双方和争议事项有管辖权的法院寻求禁令救济。
(10) 美国联邦购买条例。 本节规定仅适用于根据本协议由美国政府或代表美国政府购买商业产品和文档的购买行为,或美国政府作为参与方的任何合同、授权、合作协议或其他活动下规定的任何总承包商或分包商(任何级别)购买商业产品和文档的购买行为。一旦产品交付给美国政府,美国政府在此同意产品具有适用于本采购行为的联邦采购条例下定义的"商业物品"性质。本协议的条款和条件与美国政府使用和披露产品有关,并应当取代任何冲突的合同条款和条件。以下额外声明只适用于受美国联邦购买条例国防补充规定(DFARS)第227.4部分(1998年10月)所管辖的购买行为,该规定内容为:"限制权利-政府使用、复制和披露行为要受DFARS 252.227-7013(1988年10月)中"技术数据和计算机软件权利"部分第(c)(1)(ii) 条下限制规定的约束"。
(11) 其他条款。一方当事人放弃对本协议任何条款的任何违约的主张权利不会被解释为对任何持续或继续违约的弃权。如果本协议的任何条款无效或不可执行,其余条款将继续有效。双方承认其已阅读本协议并同意这是本协议完整和唯一的声明,并取代双方之间有关本协议标的的任何先前或同期的谈判或协议。除本协议明确规定之外,双方之间没有任何声明,诺言,保证,契约或承诺。本协议不得修改或撤销,除非经双方书面签署。任何诉讼中胜诉的一方有权从另一方收回其律师费用和成本。未经BMC事先书面同意,用户不得转让本协议。BMC产品可能包含第三方软件,作为产品的一部分交付给用户,用户不得将其从产品中取出或与产品分开使用,并且文档中可能包含针对第三方软件的其他条款。用户作为登录用户网站的条件而提交给BMC代表的任何额外文档将受本协议的管辖,并且如果此类文档的附加条款与条件与本协议冲突,则其应被视为无效。
如果您作为用户授权代表同意代表您自己和用户接受以上许可条款,并同意确认您和用户均遵守而且会继续遵守以上所有条款和条件,请点击下方"我同意"按钮。
Effective April 9th 2020 to April 9th 2020
DownloadTable of Contents
本试用协议("协议")是一份由使用含有本试用协议的BMC支持网站上(WWW.BMC.COM 或任何后继网站)出口验证一条下列明之下载产品的用户("用户")和BMC SOFTWARE, INC.或BMC SOFTWARE DISTRIBUTION, INC或当地许可关联公司("BMC")共同签订的合法协议。只要点击"我同意"按钮,即表示您声明和保证您已经阅读了并理解了本协议条款;您有权让用户受本协议约束;用户同意接受本协议条款和条件的约束。BMC同意只有在您和用户通过点击"我同意"按钮接受全部条款之后,BMC方同意您下载产品。
请阅读本协议:如果您不理解或无法同意本协议的任何条款,请不要点击"我同意"按钮。
(1) 定义条款。 "机密信息"是指披露方(“披露方”)披露给接收方(“接收方”)的所有专利或保密信息,包括但不限于(i)任何及所有与披露方财务信息、客户、雇员、产品或服务(包括但不限于软件代码、流程图、技术、规格、开发和市场营销计划、策略、预测和与提案相关的文件和回复)相关的信息;(ii)对于BMC及其许可人来说,指软件产品以及产品附带的第三方软件;和(iii)本协议条款,包括但不限于产品定价信息。保密信息不包含接收方可以证明处于以下情况的信息(a)在从披露方处获得之前,接收方在不承担保密义务的情况下已经正当享有的信息;(b)由于非接收方的过错而被公开的信息;(c)接收方从未违反保密义务的第三方处正当获得的信息;或(d)由接收方或为接受方独立开发的信息。 "产品"是指BMC拥有的或分发的、在BMC EPD网站上 ((www.bmc.com/ 或任何后继网站)可以访问到的软件或硬件产品、软件产品的相关文件资料和其他技术信息。根据本协议规定,用户被授予了此类"产品"的许可。"试用期"就产品而言,是指从您下载该产品开始,到下列 (a)和(b)中较早一天时结束的期限,即(a)下载日后的第三十个日历日,或(b)与产品一道提供的许可钥匙中规定的下载日后的某一日历日。
(2) 试用许可。 BMC向用户授予了一项在试用期内能在单个计算机上使用每件产品的非独占性、不可转让、不可出让的临时许可,授予此项许可只是为了内部评估和确定是否付费获得和/或许可此类产品, 而不用于开发、商业、生产或数据库管理的目的,或是否在付费情况下与生产数据一道获得此类产品许可。用户必须签订一份单独协议,以便获得产品的生产权和技术支持。
(3) 专有权利和保密。(a) BMC、其关联公司或许可人保留产品和支持上的一切权利、所有权和权益以及所有相关知识产权和专有权利。产品和与产品一道提供的所有第三方软件均受到适用的著作权、商业秘密、工业产权和其他知识产权法律的保护。用户不得从产品上摘除任何产品标识、版权、商标或其他通知。BMC保留在本协议中未明确授予用户的任何权利。(b)接收方不得向任何第三方透露披露方的保密信息或违反本协议使用保密信息。接收方(i)将以处理自有保密信息同样的认真和保护态度对待披露方的保密信息,且(ii)不会直接或间接披露、复制、分发、转发披露方的保密信息,或允许第三方获得披露方的保密信息。即使有前述规定,接收方可将披露方的保密信息披露给需要知道的接收方员工和代理人,前提是该等员工和代理人承担本协议条款中规定的几乎同样的合法保密义务(在任何情况下不得减轻义务)。(c)通知义务。如果接收方发现任何未授权使用或泄露披露方保密信息的情况,接收方将迅速且完全将其所知的未授权使用或披露情况通知披露方。此外,如果接收方或其任何员工或代理人有必要披露(口头询问、书面质询、索取法律诉讼信息或文件、传票、提起民事调查,或其他类似程序)任何披露方的保密信息,接收方在向披露方提供商业上合理的提前书面通知以允许披露方寻求保护令或其他适当的救济或免除遵守本条款之前,接收方不会披露披露方的保密信息。在任何情况下,接收方将尽商业上合理的努力保护披露方保密信息的保密性,包括但不限于与披露方合作获得适当的保护令或其他表示将对保密信息进行保密处理的可靠保证。
(4) 使用限制。用户不得(a)从产品上修改、删除或去除任何所有权、权利、商标、专利或版权通知(“身份标签”);(b)在没有复制所有身份标签的情况下复制任何产品或其部分;(c)拆解、逆向工程、反编译或以其他方式试图从目标代码中获取产品的源代码,除非适用法律明确表示许可,在这种情况下该限制不适用,且不可协议弃权;(d)向任何第三方分发、出租、租用、转授权或提供产品;(e)在未获得BMC事先书面批准的情况下向第三方提供任何功能评估或性能测试结果;(f)尝试废除或规避产品内的许可机制;或(g)违反文档内的任何其他使用限制。
(5) 无保证和责任限制。 产品只能为了评估的目的按照"原状"提供,不提供任何保证,包括但不限于对适用于特定目的的适应性或适销性和非侵权作出的任何暗示保证,或任何其他明示的或暗示的保证。如果产品使用或本协议以任何方式造成了任何间接的、附带的、特殊的、惩罚性的或结果性的损害、或任何利润的、收入的、数据的或数据使用的损失,则 BMC、其关联公司、供应商或许可人均不承担责任。对于产品使用或本协议造成的损害,BMC、其关联公司、供应商和许可人需要承担的损害责任,无论是合同责任或侵权责任,均只限于以下两项金额中的较大一项,即用户为产品使用许可而支付的金额或500美元。在以下第9(e)条列出的国家中,如果由于一方故意或重大过失而导致损失,则不适用于本条中的责任限制。
(6) 终止。 任何一方可在任何时候终止本协议,前提是提前两周书面通知对方。在本协议终止或试用期届满时,如果用户尚未获得产品生产使用许可,则用户应当(a)停止使用产品,和(b)向BMC书面证实:用户已经卸载了和损毁了,或已经向BMC返还了产品和产品的所有副本。本项要求适用于各种媒介和计算机存储器中存储的、采用各类形式的副本,无论此类副本是否与其他资料合并在一起。本协议未规定BMC有义务向用户许可任何产品,亦未规定用户有义务向BMC购买任何硬件或许可任何软件产品。尽管第6节存在相反的规定,如果产品内包含硬件,在试用期结束后用户将购买硬件或在五天内以原包装材料将其退回给BMC。
(7) 数据保护。 BMC和客户同意,数据处理协议适用于已下载的BMC产品(其副本可在https://www.bmc.com/content/dam/bmc/corporate/bmcdpa.pdf上查看), 除非BMC已有与客户就此类BMC产品签订的数据处理协议;在这种情况下,签定的版本适用。
(8) 出口管控。用户声明并保证:a)将遵守《美国出口管理条例》以及其他美国或外国出口法规;b) 占用或使用产品的个人不得是禁运国的公民或来自该国家(当前包括伊朗、叙利亚、苏丹、古巴和北朝鲜);c)不得被该等法规禁止接收产品;d)不会将产品给予受该等法规禁止的人士;e)不会以违反该等法规的方式使用产品;f)不会将产品用于被禁止的用途,包括但不限于核能、化学、导弹或生化武器相关的用途。对于从爱尔兰出口的产品,EC No. 428/2009法规设定了一个双用途物品和技术出口管控的欧洲共同体体制,并明确声明该产品仅可用于民用用途。因此用户同意遵守美国法规和欧盟法规,并且不会违反该法规的规定与在未获得适当许可的情况下出口产品。未遵守该法规将导致用户丧失产品的所有权利。
(9) 准据法和争议解决。如果产生因本协议引起、与本协议相关或与本协议生成、解释、违反、终止或效力相关的争议、争论或索赔(“争议”),一方将书面通知另一方。双方应本着善意通过协商解决争议。若在发出书面争议通知后15天内仍然无法通过善意协商解决争议,则可以通过在双方成立所在地提交诉讼或有约束力的仲裁解决,如下:
(i)如果协议双方均为根据美国任意州法律成立的实体,则争议应交由德克萨斯州休斯顿的州法院或联邦法院审理,应受德克萨斯州法律管辖。双方特此服从德克萨斯州休斯顿的专属管辖权,并且放弃所有不方便法院的辩护。
(ii)如果协议双方均为在欧洲、中东或非洲地区国家成立的实体,应在荷兰阿姆斯特丹根据国际商会当时适用的规则和荷兰实体法进行仲裁。
(iii) 如果协议双方均为在亚太地区国家成立的实体,应在新加坡根据新加坡国际仲裁中心当时适用的规则和新加坡实体法进行仲裁。
(iv)在所有其他情况下,应在纽约市根据美国仲裁协会当时适用的规则和德克萨斯州实体法进行仲裁。
对于在本协议下进行的所有仲裁:(a)仲裁应以英语进行;(b)有关仲裁机构应确定仲裁员人数,但争议金额大于1000万美元的任何争议应由三名仲裁员决定,每位当事人有权选择一名仲裁员;(c)在仲裁员裁决之前,该仲裁费用应平等承担;(d)所作出的仲裁裁决是终局的,对各方具有约束力,不得向任何法院提出上诉,并可在任何对双方具有管辖权的法院执行;(e)仲裁程序、裁决和诉状均应保密,除非为执行/质疑裁决或符合当地证券法规定的目的而需要披露特定信息;及(f)仲裁胜诉当事人有权收回其合理的律师费及与仲裁有关的必要费用。
《联合国国际货物销售合同公约》不适用于本协议。本协议中的任何内容不得被视为阻止任何一方立即向任何对双方和争议事项有管辖权的法院寻求禁令救济。
(10) 美国联邦购买条例。 本节规定仅适用于根据本协议由美国政府或代表美国政府购买商业产品和文档的购买行为,或美国政府作为参与方的任何合同、授权、合作协议或其他活动下规定的任何总承包商或分包商(任何级别)购买商业产品和文档的购买行为。一旦产品交付给美国政府,美国政府在此同意产品具有适用于本采购行为的联邦采购条例下定义的"商业物品"性质。本协议的条款和条件与美国政府使用和披露产品有关,并应当取代任何冲突的合同条款和条件。以下额外声明只适用于受美国联邦购买条例国防补充规定(DFARS)第227.4部分(1998年10月)所管辖的购买行为,该规定内容为:"限制权利-政府使用、复制和披露行为要受DFARS 252.227-7013(1988年10月)中"技术数据和计算机软件权利"部分第(c)(1)(ii) 条下限制规定的约束"。
(11) 其他条款。一方当事人放弃对本协议任何条款的任何违约的主张权利不会被解释为对任何持续或继续违约的弃权。如果本协议的任何条款无效或不可执行,其余条款将继续有效。双方承认其已阅读本协议并同意这是本协议完整和唯一的声明,并取代双方之间有关本协议标的的任何先前或同期的谈判或协议。除本协议明确规定之外,双方之间没有任何声明,诺言,保证,契约或承诺。本协议不得修改或撤销,除非经双方书面签署。任何诉讼中胜诉的一方有权从另一方收回其律师费用和成本。未经BMC事先书面同意,用户不得转让本协议。BMC产品可能包含第三方软件,作为产品的一部分交付给用户,用户不得将其从产品中取出或与产品分开使用,并且文档中可能包含针对第三方软件的其他条款。用户作为登录用户网站的条件而提交给BMC代表的任何额外文档将受本协议的管辖,并且如果此类文档的附加条款与条件与本协议冲突,则其应被视为无效。
如果您作为用户授权代表同意代表您自己和用户接受以上许可条款,并同意确认您和用户均遵守而且会继续遵守以上所有条款和条件,请点击下方"我同意"按钮。
Effective April 9th 2020 to April 9th 2020
DownloadTable of Contents
本试用协议("协议")是一份由使用含有本试用协议的BMC支持网站上(WWW.BMC.COM 或任何后继网站)出口验证一条下列明之下载产品的用户("用户")和BMC SOFTWARE DISTRIBUTION, INC.或BMC SOFTWARE DISTRIBUTION, INC或当地许可关联公司("BMC")共同签订的合法协议。只要点击"我同意"按钮,即表示您声明和保证您已经阅读了并理解了本协议条款;您有权让用户受本协议约束;用户同意接受本协议条款和条件的约束。BMC同意只有在您和用户通过点击"我同意"按钮接受全部条款之后,BMC方同意您下载产品。 |
请阅读本协议:如果您不理解或无法同意本协议的任何条款,请不要点击"我同意"按钮。 |
(1) 定义条款。 "机密信息"是指披露方的专有信息和/或机密信息,其中不包括以下信息(a)在从披露方处获得之前,接收方在不承担保密义务的情况下已经正当享有的信息;(b)由于非接收方的过错而被公开的信息;(c)接收方从未违反保密义务的第三方处正当获得的信息;或(d)由接收方或为接受方独立开发的信息。 "产品"是指BMC拥有的或分发的、在BMC EPD网站上 ((www.bmc.com/ 或任何后继网站)可以访问到的软件产品、软件产品的相关文件资料和其他技术信息。根据本协议规定,用户被授予了此类"产品"的许可。"试用期"就产品而言,是指从您下载该产品开始,到下列 (a)和(b)中较早一天时结束的期限,即(a)下载日后的第三十个日历日,或(b)与产品一道提供的许可钥匙中规定的下载日后的某一日历日。 |
(2) 试用许可。 BMC向用户授予了一项在试用期内能在单个计算机上使用每件产品的非独占性、不可转让、不可出让的临时许可,授予此项许可只是为了内部评估和确定是否付费获得此类产品许可, 而不用于开发、商业、生产或数据库管理的目的,或是否在付费情况下与生产数据一道获得此类产品许可。用户必须签订一份单独协议,以便获得产品的生产权和技术支持。如果产品含有第三方代码,只要(a)提供第三方代码与产品一道使用,则第三方代码只能与该产品结合使用;和(b)文件资料中含有与第三方代码有关的条款,则此类条款就能代替本协议条款管辖第三方代码。 |
(3) 使用限制。用户不得(a)从产品上删除任何产品标识符、版权通知、其他通知或专有限制规定,(b)促成或允许反编译、反汇编、反向工程、或企图从执行码中衍生出产品源代码的任何其他企图行为,除非适用法律或协定另有明确许可,无论本条限制规定如何;(c)未经BMC事先书面许可,向任何第三方披露任何产品的任何基准测试结果,(d)对本协议下规定以外的产品进行复制、安装和/或使用,或(e)向任何第三方或与任何第三方分许可、变更、分时共享、租赁本产品、将产品用于服务局之目的或另外转让或共享产品,或允许任何第三方访问或使用产品。未经BMC的事先书面许可,以及适当的美国和/或外国政府许可规定或许可例外规定下的许可,用户不得出口或转口任何产品。 |
(4) 终止。 在本协议终止或试用期届满时,如果用户尚未获得产品生产使用许可,则用户应当(a)停止使用产品,和(b)向BMC书面证实:用户已经卸载了和损毁了,或已经向BMC返还了产品和产品的所有副本。本项要求适用于各种媒介和计算机存储器中存储的、采用各类形式的副本,无论此类副本是否与其他资料合并在一起。本协议未规定BMC有义务向用户许可任何产品,亦未规定用户有义务向BMC购买产品的任何许可。 |
(5) 无保证和责任限制。 产品只能为了评估的目的按照"原状"提供,不提供任何保证,包括但不限于对适用于特定目的的适应性或适销性和非侵权作出的任何暗示保证,或任何其他明示的或暗示的保证。如果产品使用或本协议以任何方式造成了任何间接的、附带的、特殊的、惩罚性的或结果性的损害、或任何利润的、收入的、数据的或数据使用的损失,则 BMC、其关联公司、供应商或许可人均不承担责任。对于产品使用或本协议造成的损害,BMC、其关联公司、供应商和许可人需要承担的损害责任,无论是合同责任或侵权责任,均只限于以下两项金额中的较大一项,即用户为产品使用许可而支付的金额或500美元。在以下第9(e)条列出的国家中,如果由于一方故意或重大过失而导致损失,则不适用于本条中的责任限制。 |
(6) 专有权利和保密。 BMC、其关联公司和/或许可人,如适用的话,保留产品上的一切权利、所有权和权益以及所有相关知识产权和专有权利。产品和与产品一道提供的任何第三方软件均受到与著作权、商业秘密、工业产权和其他知识产权有关的适用法律的保护。BMC保留未被明确授予给用户的任何权利。双方同意产品是BMC的机密信息。接收方(a)要在(i)披露日或(ii)产品的最后使用这两个日期中较晚的日期之后五(5)年内,对对方的机密信息保密,和(b)只能把对方机密信息披露给接收方雇员或代理人中受法律义务约束而不能披露该信息的人员(该保密信息受保护的程度不低于本协议中的信息),以及为了履行自身职责必须知悉信息的那些雇员和代理人。本协议任何规定均不得阻止任何一方在本协议引起的任何法律程序中披露本协议下的条款或定价,亦不得阻止任何一方按照法律规定将信息披露给联邦或州立政府机构。 |
(7) 出口法律。美国的出口法律法规,以及其他相关的地方性出口法律法规均适用于产品。用户对产品(包括技术数据)的使用均受到所有此类法律的管辖,其中包括"视同出口"和"视同转口"的法规,而且用户也应当遵守所有此类法律,包括"视同出口"和"视同转口"的法规。用户同意:不会违反此类法律直接或间接出口产品、数据、信息、程序和/或资料,亦不会将产品、数据、信息、程序和/或资料用于此类法律禁止的任何目的,包括核武器扩散、生化武器扩散或导弹技术的开发。一旦点击"我同意"按钮还表明用户同意:目前和在试用期内用户会遵守以下任何声明: (a) 用户不是古巴、伊朗、苏丹、伊拉克、朝鲜、叙利亚的或美国禁止出口的任何国家的公民、国民或居民,亦不受到前述各国政府的控制;和 (b) 用户不会下载、或另外直接或间接地向任何上述国家或任何此类国家的公民、国民或居民出口或转口任何产品;和 (c) 用户未被列名在美国财政部"特别指定国民"、"特别指定恐怖分子"和"特别指定贩毒者"的名单上,或未被列名在美国商务部"拒绝订购表"上;和 (d) 用户不会下载,或另外直接或间接地向上述任何名单上的任何人员出口或转口任何产品;和 (e) 用户不得将任何产品用于美国或其他适用法律禁止的任何目的,亦不得允许任何产品被用于此类目的,包括但不限于开发、设计、制造或生产大规模杀伤性的核武器、生化武器。 |
(8) 完整协议。本协议构成了双方间的完整协议,并取代就用户试用产品而达成的先前的和现在的所有协议和谈判。本协议只有经双方签署书面文件后方能予以修改。未经BMC事先书面许可,用户不得出让或转让本协议。任何一方未行使或延迟行使任何权利、权力或特权均不构成对行使此类权利、权力或特权的放弃,而且单一或部分行使任何权利、权力或特权亦不妨碍其行使其他任何权利、权力或特权或进一步行使该权利、权力或特权。如果本协议任何规定被认定无效或不可执行,则本协议其他规定应当持续充分有效。 |
(9) 法律选择和管辖权。 如果用户位于以下各国且将在该国境内使用产品,则(a)阿根廷,则阿根廷法律将适用于本协议(不考虑冲突法律的规定),而且布宜诺斯艾利斯市的法院享有管辖权,BMC和用户同意此类法院对该事务具有属人管辖权;(b)巴西,则巴西法律将适用于本协议(不考虑冲突法律的规定),而且圣保罗市的法院享有管辖权,BMC和用户同意此类法院对该事务具有属人管辖权;(c)墨西哥,则墨西哥法律将适用于本协议(不考虑冲突法律的规定),而且墨西哥城的法院享有管辖权,BMC和用户同意此类法院对该事务具有属人管辖权;(d)日本、韩国、中华人民共和国、香港或澳门特别行政区、台湾、菲律宾、印度尼西亚、马来西亚、缅甸、新加坡、文莱、越南、柬埔寨、老挝、泰国、印度、巴基斯坦、澳大利亚、新西兰、巴布亚新几内亚或任何太平洋岛国,则新加坡实体法将适用于本协议(不考虑冲突法律的规定),而且新加坡的法院享有管辖权,BMC和用户同意此类法院对该事务具有属人管辖权;(e)美国、波多黎或其他任何美国的保护国、加拿大、或任何上文中未特别指明的中美洲或南美洲国家,则得克萨斯州的法律将适用于本协议(不考虑冲突法律的规定),而且位于得克萨斯州哈里斯郡的州法院和联邦法院享有管辖权,BMC和用户同意此类法院对该事务具有属人管辖权;(f)上文中未包括的国家,则荷兰法律将适用于本协议(不考虑冲突法律的规定),而且荷兰的法院享有管辖权,BMC和用户同意此类法院对该事务具有属人管辖权。 |
任何管辖区的法律选择规定以及联合国国际货物销售合同公约都不适用于本协议。根据上述内容,BMC和用户在此同意上述法院对本协议引起的或与本协议有关的任何争议享有属人管辖权。 |
(10) 其他规定。BMC可以在提前三十个日历日(30)书面通知后,对用户使用产品的情况进行稽核。用户应当配合稽核行动,并提供合理协助和授予查阅信息的权利。用户应当在收到该通知后三十日历日(30)内,支付稽核中披露的任何欠缴费用。 |
(11) 美国联邦购买条例。 本条规定适用于根据本协议美国联邦政府或为美国联邦政府购买产品的一切购买行为,或美国联邦政府作为参与方的任何合同、授权、合作协议或其他活动下规定的任何总承包商或分包商(任何级别)购买商业产品的一切购买行为。一旦接受产品的交付,即表示政府在此同意产品具有适用于本采购行为的购买条例下定义的"商业"性质。本协议的条款和条件与政府使用和披露产品有关,并应当取代任何冲突的合同条款和条件。如果本协议授予的许可未能满足政府需求或与联邦法律全面不符,则政府同意会把未使用的产品归还给BMC。以下额外声明只适用于受美国联邦购买条例国防补充规定(DFARS)第227.4部分(1998年10月)所管辖的购买行为,该规定内容为:"限制权利-政府使用、复制和披露行为要受DFARS 252.227-7013(1988年10月)中"技术数据和计算机软件权利"部分第(c)(1)(ii) 条下限制规定的约束"。 |
如果您作为用户授权代表同意代表您自己和用户接受以上许可条款,并同意确认您和用户均遵守而且会继续遵守以上所有条款和条件,请点击下方"我同意"按钮。 |
Trial Agreement
Effective April 9th 2020
DownloadTable of Contents
CONTRATO PARA PRUEBAS DE SOFTWARE
ÉSTE CONTRATO PARA PRUEBAS DE SOFTWARE ("CONTRATO") ES UN CONTRATO EXIGIBLE CELEBRADO ENTRE BMC SOFTWARE, INC O SUS AFILIADAS DE LICENCIAMIENTO LOCALES (“BMC”) Y EL USUARIO DEL PRODUCTO DESCARGADO (“USUARIO”), PRODUCTO DESCARGADO DETALLADO EN LA SECCIÓN DE VALIDACIÓN DE EXPORTACIÓN DEL SITIO WEB DE SOPORTE DE BMC WWW.BMC.COM (O CUALQUIER SITIO QUE LO REEMPLACE). ÉSTE CONTRATO FORMA PARTE INTEGRAL DEL SITIO ANTES MENCIONADO. PRESIONANDO EL BOTÓN "ACEPTO", USTED CONFIRMA Y GARANTIZA QUE HA LEÍDO Y ENTENDIDO LOS TÉRMINOS DE ESTE CONTRATO Y QUE TIENE LA FACULTAD LEGAL SUFICIENTE PARA OBLIGARSE Y OBLIGAR AL USUARIO AL CUMPLIMIENTO DEL PRESENTE CONTRATO, ASI MISMO , CONFIRMA QUE EL USUARIO A SU VEZ ACEPTA OBLIGARSE CONFORME A LOS TÉRMINOS Y CONDICIONES DE ESTE CONTRATO. BMC ACUERDA EN PERMITIR QUE USTED DESCARGUE LOS PRODUCTOS BMC (“PRODUCTOS”) SÓLO SI Y DESPUÉS DE QUE USTED Y EL USUARIO HAYAN ACEPTADO TODOS LOS TÉRMINOS DEL CONTRATO A TRAVÉS DE SU ACEPTACIÓN ELECTRÓNICA, PRESIONANDO EL BOTÓN "ACEPTO" (“I AGREE”).
PORFAVOR LEA ÉSTE CONTRATO: SI USTED NO ENTIENDE O ESTA DE ACUERDO CON CUALQUIERA DE LOS TERMINOS DE ÉSTE CONTRATO, NO PRESIONE EL BOTÓN “ACEPTO”.
1. TÉRMINOS DEFINIDOS. "Información Confidencial", significa toda la información confidencial que es divulgada al receptor ( "Receptor") por el divulgador ("Divulgador") e incluye, entre otras cosas: (i) toda la información relativa a la información financiera del Divulgador, sus clientes, empleados, productos o servicios, incluyendo sin limitación, el código de software, diagramas de flujo, técnicas, especificaciones, planes de desarrollo y marketing, estrategias, pronósticos , documentos y respuestas relacionados con las propuestas comerciales o de cualquier tipo; (ii) toda información de BMC, y sus licenciantes, lo relativo a los Productos de software y cualquier software de terceros proporcionado con dichos Productos; así como: (iii) los términos de este Contrato, incluyendo, sin limitación información de precios de Productos. La Información Confidencial no incluye información que el Receptor pueda demostrar que: (a) estaba legítimamente en posesión del Receptor sin ninguna obligación de confidencialidad antes de ser recibida por el Divulgador; (b) es o se convierte en un asunto de conocimiento público sin intervención de culpa o negligencia a cargo del Receptor; (c) es recibida legítimamente por el Receptor de un tercero sin violar una obligación o deber de confidencialidad; o (d) es desarrollada independientemente por o para el Receptor. Los "Productos", son productos de software o hardware, incluyendo su documentación relacionada y otra información técnica propiedad o distribuida por BMC a la que se puede acceder en el sitio web de BMC EPD (www.bmc.com/ o en cualquier sitio web que lo sustituya) y en virtud del cual se le haya concedido una licencia al Usuario bajo este Contrato. El "Período de Prueba" con respecto a un Producto, es el período de tiempo que comienza en la fecha en que Usted descarga dicho Producto y termina (lo que suceda primero): a) treinta días naturales a partir de la fecha de descarga de los Productos, o (b) después del número de días calendario siguientes a su descarga, especificados en la Clave de licenciamiento proporcionada con dicho Producto.
2. LICENCIA DE PRUEBA. BMC otorga al Usuario una licencia temporal no exclusiva, intransferible y no sujeta a cesión para utilizar cada Producto en una única computadora durante el Período de Prueba, lo anterior solamente para evaluar internamente y determinar si el Usuario adquirirá y / o licenciará dicho Producto a través del pago de un cargo. El Producto de prueba no podrá ser usado con fines de desarrollo, comerciales, de producción o de gestión de bases de datos, o con producción de datos. El Usuario deberá firmar un contrato por separado para obtener derechos de producción y soporte técnico para un Producto en particular.
3. DERECHOS DE PROPIEDAD Y DEBER DE CONFIDENCIALIDAD. (a) BMC, sus Afiliadas y licenciantes conservan cualesquiera derechos, titularidad o interés en el Producto, Soporte y todos los derechos de propiedad relacionados incluida la propiedad intelectual. Los Productos y todo el software de cualquier tercero proporcionado con los Productos está protegido por las leyes de derecho de autor (copyright), secreto comercial, industrial y cualesquiera otras de propiedad intelectual o industrial. El Usuario no podrá remover ninguna identificación del Producto relativa al derecho de copia, marca o cualquier otro aviso incluido en el Producto. BMC se reserva todos los derechos que no hayan sido expresamente otorgados al Usuario en virtud del presente Contrato; (b) El Receptor no podrá divulgar la Información Confidencial del Divulgador a ningún tercero ni usar la Información Confidencial en violación de éste Contrato. El Receptor: (i) Será considerada información confidencial (“Información Confidencial”) cualquier información de propiedad o confidencial, revelada por una persona (“Divulgador”) a otra persona (“Receptor”) e incluye, entre otras: (i) todas y cada una de las informaciones del Divulgador relativas a su información financiera, clientes, empleados, productos o servicios, incluyendo sin limitación, el código del software, los diagramas de flujo, planos, técnicas, especificaciones, planes de marketing y desarrollo, estrategias previsiones, documentos relacionados propuestos y respuestas ; (ii) en relación con BMC y los licenciantes, el Producto y cualquier software de terceros con él proporcionado; y (iii) los términos del Contrato, incluyendo sin limitación el precio de los Productos. No será considerada Información Confidencial aquella sobre la cual el Receptor pueda demostrar que: (a) fue conocida por el Receptor de manera legal en el momento de la divulgación; (b) si era de dominio público en el momento en que fue revelada o que pasara a ser de dominio público sin intervención por acción u omisión del Divulgador; (c) fuera puesta en conocimiento del Divulgador por un tercero que no haya incumplido este Contrato y que tuviera derecho a revelarla; o (d) fuera desarrollada de manera independiente por el Receptor sin utilizar en forma alguna Información Confidencial del Divulgador. El Receptor no revelará Información Confidencial del Divulgador a tercero alguno ni la utilizará para infringir lo previsto en este Contrato. El Receptor (i) pondrá el mismo nivel de cuidado y protección en relación a la Información Confidencial del Divulgador que pone respecto de su propia Información Confidencial y (ii) no copiará, divulgará distribuirá, publicará o autorizará a terceros a tener acceso a la Información Confidencial del Divulgador ya sea de forma directa o indirecta. Sin perjuicio de ello, el Receptor podrá revelar la Información Confidencial del Divulgador a sus empleados y agentes que tengan necesidad de conocer dicha Información Confidencial siempre que dichos empleados o agentes tengan en vigor obligaciones de confidencialidad tan estrictas como las contempladas en el presente Contrato. (c) Obligación de notificación. En el supuesto de que el Receptor tenga conocimiento de cualquier utilización no autorizada o revelación de la Información Confidencial del Divulgador, el Receptor deberá notificar inmediatamente y de forma completa al Divulgador de todos los hechos relativos a dicha utilización no autorizada o revelación. Asimismo, en el supuesto de que se le solicite al Receptor, sus empleados o agentes (mediante interrogatorios, solicitud de información documental o por cualquier otro medio en un proceso judicial) revelar cualquier Información Confidencial, el Receptor no revelará la Información Confidencial sin antes suministrar al Divulgador una notificación de dicho requerimiento que le permita al Divulgador evitar legalmente la revelación de la Información Confidencial. En todo caso, el Receptor deberá realizar esfuerzos comercialmente razonables para preservar la confidencialidad de la Información Confidencial del Divulgador, incluyendo, sin limitación, cooperación con el Divulgador para obtener una medida cautelar o cualquier otra medida que pueda asegurar que la Información Confidencial sea tratada como tal.
4. RESTRICCIONES DE USO. El Usuario no podrá: (a) modificar, eliminar o remover ninguna propiedad, título, marca registrada, patente o avisos de derechos de autor ("Identificación") de ningún Producto; (b) copiar cualquier Producto o cualquier porción de cualquier Producto sin reproducir toda la Identificación en cada copia o copia parcial; (c) desmontar, realizar ingeniería inversa, descompilar o intentar derivar cualquier código fuente del producto del código objeto, excepto en la medida en que lo permita expresamente la ley aplicable, a pesar de esta limitación, sin posibilidad de renuncia contractual; (d) distribuir, rentar, alquilar, sub licenciar o proporcionar el Producto a terceros; (e) proporcionar a un tercero los resultados de cualquier evaluación funcional o pruebas de desempeño, sin la aprobación previa por escrito de BMC; (f) intentar inhabilitar o eludir cualquiera de los mecanismos de licenciamiento dentro del Producto; o (g) violar cualquier otra restricción de uso contenida en la Documentación técnica del Producto.
5. NO GARANTÍA Y LIMITE DE RESPONSABILIDAD. LOS PRODUCTos son PROPORCIONADOS “TAL CUAL” (“AS IS”) CON PROPÓSITOS DE EVALUACIÓN SOLAMENTE Y SON PROVISTOS SIN GARANTÍA ALGUNA, INCLUYENDO, SIN LIMITACIÓN, CUALQUIER GARANTÍA IMPLÍCITA DE ADECUACIÓN PARA UN PROPÓSITO PARTICULAR O COMERCIALIZACIÓN Y NO INFRACCIÓN O CUALQUIER OTRA GARANTÍA, YA SEA EXPRESA O IMPLÍCITA. NINGUN EMPLEADO DE BMC, SUS AFILIADAS, PROVEEDORES O LICENCIANTES SERÁN RESPONSABLES POR NINGÚN DAÑO INDIRECTO, INCIDENTAL, ESPECIAL, PUNITIVO O CONSECUENCIAL NI NINGUNA PÉRDIDA DE GANACIAS, INGRESOS, DATOS O USO DE DATOS, POR CUALQUIER CAUSA QUE SURJA DE O EN CUALQUIER MANERA RELACIONADA CON EL USO DEL PRODUCTO O ÉSTE CONTRATO. LA RESPONSABILIDAD DE BMC, SUS AFILIADAS, PROVEEDORES Y LICENCIANTES POR DAÑOS OCASIONADOS POR EL USO DEL PRODUCTO O DE ESTE CONTRATO, YA SEA POR CONTRATO O POR AGRAVIO, SE LIMITARÁ A LA CANTIDAD PAGADA POR EL USUARIO PARA LICENCIAR EL USO DEL PRODUCTO o $ 500USD (LA CANTIDAD QUE RESULTÉ MAYOR). EN LOS PAÍSES QUE SE ENCUENTRAN EN LA SUBSECCIÓN 9(F), SEÑALADA ABAJO, EL LÍMITE DE RESPONSABILIDAD DESCRITO EN ESTA SECCIÓN NO SERÁ APLICABLE SI EL DAÑO HUBIESE SIDO CAUSADO POR DOLO O GRAVE NEGLIGENCIA DE CUALQUIERA DE LAS PARTES.
6. TERMINACIÓN. Ambas partes podrán dar por terminado este Contrato en cualquier momento, con previa notificación por escrito de dos semanas de anticipación a la fecha de terminación de que se trate. A la terminación del presente Contrato o del Periodo de Prueba, si el Usuario no hubiera obtenido una licencia de uso de producción para el Producto, el Usuario deberá: (a) dejar de usar el Producto y (b) certificar por escrito a BMC que el Usuario ha desinstalado y destruido, o devuelto a BMC, los Productos y todas las copias de los mismos. Este requisito se aplica a las copias en todas las formas, parciales y completas, en todos los tipos de medios de comunicación y en memorias de computadora ya sea o no fusionadas en otros materiales. El presente Contrato no crea obligación alguna por parte de BMC de licenciar algún Producto al Usuario o por parte del Usuario para adquirir cualquier hardware o licencia de cualquier Producto de software de BMC. Sin perjuicio de lo contrario en esta Sección 6, si se incluye el hardware con el Producto, al finalizar el Periodo de Prueba, el Usuario podrá comprar el hardware o devolverlo a BMC en un periodo de cinco días en su empaque original.
7. PROTECCIÓN DE DATOS. BMC y el Cliente acuerdan que el Contrato de Procesamiento de Datos, copia que puede ser vista en: https://www.bmc.com/content/dam/bmc/corporate/bmcdpa.pdf., aplicará a los productos de BMC descargados, a menos que BMC y el Cliente hayan firmado un Contrato de Procesamiento de Datos con anterioridad para dichos productos, en cuyo caso, la versión firmada regirá éste Contrato.
8. CONTROLES DE EXPORTACIÓN. El Usuario declara y garantiza que: a) cumplirá con las Regulaciones de la Administración de Exportaciones de Estados Unidos y otras regulaciones de exportación de los Estados Unidos o extranjeras; b) ningún individuo que acceda o utilice el Producto es ciudadano de un país embargado (actualmente Irán, Siria, Sudán, Cuba y Corea del Norte); c) no tiene prohibido recibir el Producto bajo dichas regulaciones; d) no adquirirá el Producto para una persona restringida bajo dichas regulaciones; e) no utilizará el Producto en contravención con dichos reglamentos; y f) no utilizará el Producto para usos prohibidos, de forma enunciativa mas no limitativa a usos relacionados con armas nucleares, químicas, misiles o biológicas. En el caso de los productos exportados de Irlanda, la EC nº 428/2009 establece un régimen comunitario para el control de las exportaciones de productos y tecnología de doble uso y se declara que este producto se destina únicamente a fines civiles. Por lo tanto, el Usuario se compromete a cumplir con las regulaciones de los EE.UU. y de la Unión Europea y no podrá exportar en violación a las regulaciones y sin las licencias apropiadas. El usuario perderá todos los derechos sobre el Producto por cualquier incumplimiento a éstas regulaciones.
9. LEY APLICABLE Y RESOLUCIÓN DE CONFLICTOS. Una de las partes notificará por escrito a la otra parte con respecto a cualquier controversia, disputa o reclamación que surja de o se relacione con este Contrato, o con la formación, interpretación, incumplimiento, terminación o validez del mismo ("Controversia"). Las partes deberán entablar negociaciones de buena fe para resolver la Controversia. Únicamente si la Controversia no es resuelta mediante negociaciones de buena fe dentro de los 15 días siguientes al envío de la notificación por escrito de Controversia, la misma podrá ser sometida a litigio o arbitraje vinculante, basado en el lugar de constitución de las partes, de la siguiente manera:
(i) Si ambas partes en este Contrato son entidades constituidas bajo las leyes de cualquier estado en los Estados Unidos, la Controversia será juzgada en cualquier tribunal estatal o federal ubicado en Houston, Texas y regirán las leyes del Estado de Texas. Ambas partes acuerdan someterse a la exclusiva jurisdicción de los tribunales de Houston, Texas y renuncian a todas las defensas basadas en forum non conveniens.
(ii) Si ambas partes en el presente Contrato son entidades constituidas en países de Europa, Medio Oriente o África, el arbitraje se celebrará en Amsterdam, Países Bajos, de conformidad con las normas aplicables de la Cámara Internacional de Comercio y regirán las leyes sustantivas de los Países Bajos.
(iii) Si ambas partes del presente Contrato son entidades constituidas en países de Asia y el Pacífico, el arbitraje se celebrará en Singapur de conformidad con las normas aplicables del Centro Internacional de Arbitraje de Singapur y regirán las leyes sustantivas de Singapur.
(iv) En todos los demás casos, el arbitraje se celebrará en la ciudad de Nueva York, de conformidad con las normas internacionales de la Asociación Americana de Arbitraje y regirán las leyes sustantivas del Estado de Texas.
Para todos los arbitrajes, se observará lo siguiente: (a) el arbitraje se llevará a cabo en inglés; (b) la institución de arbitraje pertinente determinará el número de árbitros, pero cualquier Controversia en la cual el monto en disputa sea mayor de $ 10 millones USD será determinada por tres árbitros, cada una de las partes tendrá derecho a seleccionar un árbitro; (c) los gastos del arbitraje los absorberán por igual las Partes, antes del laudo arbitral; (d) el laudo arbitral dictado será definitivo y obligatorio para las partes, no podrá ser objeto de apelación ante ningún tribunal y podrá ser ejecutado en cualquier tribunal que tenga jurisdicción sobre las Partes; (e) los procedimientos de arbitraje, los laudos y los escritos procesales serán confidenciales, a menos que se requiera la revelación de información en particular con el fin de hacer cumplir o impugnar el laudo o para cumplir requerimientos de leyes locales en materia de seguridad; y (f) la parte que predomine en el arbitraje tendrá derecho a recuperar los honorarios razonables por abogados y los costos incurridos en relación con el arbitraje. La Convención de las Naciones Unidas sobre los Contratos de Compraventa Internacional de Mercaderías no será aplicable al presente Contrato. Nada de lo establecido en el presente Contrato se considerará como impedimento a ninguna de las partes a solicitar alguna medida cautelar inmediata de algún tribunal que tenga jurisdicción sobre las partes y sobre el objeto de la controversia.
10. ADQUISICIONES FEDERALES DE LOS ESTADOS UNIDOS. Esta Sección aplicará únicamente a las adquisiciones del Producto comercial y Documentación sujeto al presente Contrato por o en nombre del Gobierno de los Estados Unidos, o por cualquier contratista principal o subcontratista (a cualquier nivel) bajo cualquier contrato, concesión, acuerdo de cooperación u otra actividad con El Gobierno de los Estados Unidos. En caso de que los Productos sean entregados al Gobierno de los Estados Unidos, el Gobierno de los Estados Unidos por medio del presente acuerda que los Productos se calificarán como "artículos comerciales" en el sentido del reglamento federal de adquisiciones aplicable a esta adquisición. Los términos y condiciones de este Contrato se referirán al uso y divulgación del Producto por parte del Gobierno de los Estados Unidos y prevalecerán sobre los términos y condiciones contractuales que se contrapongan a los mismos. La siguiente declaración adicional sólo se aplica a las adquisiciones regidas por la Subparte 227.4 de DFARS (octubre de 1988): "Derechos Restringidos - El uso, duplicación y divulgación por parte del Gobierno estará sujeto a las restricciones establecidas en el inciso (c) (1) (ii) de los Derechos en datos técnicos y software informático en DFARS 252.227-7013 (octubre de 1988) ".
11. MISCELÁNEOS. La renuncia de una de las partes por cualquier incumplimiento de cualquier término de este Contrato no se interpretará como renuncia a cualquier incumplimiento continuo o subsiguiente. En caso de que cualquier término de este Contrato sea inválido o inaplicable, los demás términos continuarán surtiendo efectos. Las partes reconocen haber leído el presente Contrato y están de acuerdo en que es la declaración completa y exclusiva del contrato y reemplaza cualquier negociación o contrato previo o actual entre las partes en relación con el objeto del presente Contrato. No existirán manifestaciones, promesas, garantías, pactos o compromisos entre las partes distintas a las expresamente establecidas en este Contrato. El presente no podrá ser modificado o rescindido salvo por escrito firmado por ambas partes. La parte que predomine en cualquier litigio tendrá derecho a exigir a la otra parte los honorarios y costos de abogados. El Usuario no podrá ceder o transferir este Contrato sin el previo consentimiento por escrito de BMC. Los Productos BMC pueden contener software de terceros que se entrega al Usuario como parte del Producto y no podrá ser retirado del Producto o utilizado por separado del Producto y para el cual podrán incluirse términos adicionales en la Documentación. Cualquier documento adicional presentado a un representante de BMC por el Usuario para ser firmado como condición para acceder al sitio de un Usuario se regirá por este Contrato y en la medida en que dicho documento presente términos adicionales o se contraponga al presente Contrato, se considerará nulo.
Como representante autorizado del Usuario, si usted está de acuerdo, para aceptar los términos de licencia anteriores en nombre de usted y del Usuario, y confirmar que usted y el Usuario cumplen y seguirán cumpliendo con todos los términos y condiciones establecidos anteriormente, haga click , presionando el botón "Acepto”, ubicado en la parte inferior.
Effective April 9th 2020 to April 9th 2020
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CONTRATO PARA PRUEBAS DE SOFTWARE
ÉSTE CONTRATO PARA PRUEBAS DE SOFTWARE ("CONTRATO") ES UN CONTRATO EXIGIBLE CELEBRADO ENTRE BMC SOFTWARE, INC O SUS AFILIADAS DE LICENCIAMIENTO LOCALES (“BMC”) Y EL USUARIO DEL PRODUCTO DESCARGADO (“USUARIO”), PRODUCTO DESCARGADO DETALLADO EN LA SECCIÓN DE VALIDACIÓN DE EXPORTACIÓN DEL SITIO WEB DE SOPORTE DE BMC WWW.BMC.COM (O CUALQUIER SITIO QUE LO REEMPLACE). ÉSTE CONTRATO FORMA PARTE INTEGRAL DEL SITIO ANTES MENCIONADO. PRESIONANDO EL BOTÓN "ACEPTO", USTED CONFIRMA Y GARANTIZA QUE HA LEÍDO Y ENTENDIDO LOS TÉRMINOS DE ESTE CONTRATO Y QUE TIENE LA FACULTAD LEGAL SUFICIENTE PARA OBLIGARSE Y OBLIGAR AL USUARIO AL CUMPLIMIENTO DEL PRESENTE CONTRATO, ASI MISMO , CONFIRMA QUE EL USUARIO A SU VEZ ACEPTA OBLIGARSE CONFORME A LOS TÉRMINOS Y CONDICIONES DE ESTE CONTRATO. BMC ACUERDA EN PERMITIR QUE USTED DESCARGUE LOS PRODUCTOS BMC (“PRODUCTOS”) SÓLO SI Y DESPUÉS DE QUE USTED Y EL USUARIO HAYAN ACEPTADO TODOS LOS TÉRMINOS DEL CONTRATO A TRAVÉS DE SU ACEPTACIÓN ELECTRÓNICA, PRESIONANDO EL BOTÓN "ACEPTO" (“I AGREE”).
PORFAVOR LEA ÉSTE CONTRATO: SI USTED NO ENTIENDE O ESTA DE ACUERDO CON CUALQUIERA DE LOS TERMINOS DE ÉSTE CONTRATO, NO PRESIONE EL BOTÓN “ACEPTO”.
- TÉRMINOS DEFINIDOS. "Información Confidencial", significa toda la información confidencial que es divulgada al receptor ( "Receptor") por el divulgador ("Divulgador") e incluye, entre otras cosas: (i) toda la información relativa a la información financiera del Divulgador, sus clientes, empleados, productos o servicios, incluyendo sin limitación, el código de software, diagramas de flujo, técnicas, especificaciones, planes de desarrollo y marketing, estrategias, pronósticos , documentos y respuestas relacionados con las propuestas comerciales o de cualquier tipo; (ii) toda información de BMC, y sus licenciantes, lo relativo a los Productos de software y cualquier software de terceros proporcionado con dichos Productos; así como: (iii) los términos de este Contrato, incluyendo, sin limitación información de precios de Productos. La Información Confidencial no incluye información que el Receptor pueda demostrar que: (a) estaba legítimamente en posesión del Receptor sin ninguna obligación de confidencialidad antes de ser recibida por el Divulgador; (b) es o se convierte en un asunto de conocimiento público sin intervención de culpa o negligencia a cargo del Receptor; (c) es recibida legítimamente por el Receptor de un tercero sin violar una obligación o deber de confidencialidad; o (d) es desarrollada independientemente por o para el Receptor. Los "Productos", son productos de software o hardware, incluyendo su documentación relacionada y otra información técnica propiedad o distribuida por BMC a la que se puede acceder en el sitio web de BMC EPD (www.bmc.com/ o en cualquier sitio web que lo sustituya) y en virtud del cual se le haya concedido una licencia al Usuario bajo este Contrato. El "Período de Prueba" con respecto a un Producto, es el período de tiempo que comienza en la fecha en que Usted descarga dicho Producto y termina (lo que suceda primero): a) treinta días naturales a partir de la fecha de descarga de los Productos, o (b) después del número de días calendario siguientes a su descarga, especificados en la Clave de licenciamiento proporcionada con dicho Producto.
- LICENCIA DE PRUEBA. BMC otorga al Usuario una licencia temporal no exclusiva, intransferible y no sujeta a cesión para utilizar cada Producto en una única computadora durante el Período de Prueba, lo anterior solamente para evaluar internamente y determinar si el Usuario adquirirá y / o licenciará dicho Producto a través del pago de un cargo. El Producto de prueba no podrá ser usado con fines de desarrollo, comerciales, de producción o de gestión de bases de datos, o con producción de datos. El Usuario deberá firmar un contrato por separado para obtener derechos de producción y soporte técnico para un Producto en particular.
- DERECHOS DE PROPIEDAD Y DEBER DE CONFIDENCIALIDAD. (a) BMC, sus Afiliadas y licenciantes conservan cualesquiera derechos, titularidad o interés en el Producto, Soporte y todos los derechos de propiedad relacionados incluida la propiedad intelectual. Los Productos y todo el software de cualquier tercero proporcionado con los Productos está protegido por las leyes de derecho de autor (copyright), secreto comercial, industrial y cualesquiera otras de propiedad intelectual o industrial. El Usuario no podrá remover ninguna identificación del Producto relativa al derecho de copia, marca o cualquier otro aviso incluido en el Producto. BMC se reserva todos los derechos que no hayan sido expresamente otorgados al Usuario en virtud del presente Contrato; (b) El Receptor no podrá divulgar la Información Confidencial del Divulgador a ningún tercero ni usar la Información Confidencial en violación de éste Contrato. El Receptor: (i) Será considerada información confidencial (“Información Confidencial”) cualquier información de propiedad o confidencial, revelada por una persona (“Divulgador”) a otra persona (“Receptor”) e incluye, entre otras: (i) todas y cada una de las informaciones del Divulgador relativas a su información financiera, clientes, empleados, productos o servicios, incluyendo sin limitación, el código del software, los diagramas de flujo, planos, técnicas, especificaciones, planes de marketing y desarrollo, estrategias previsiones, documentos relacionados propuestos y respuestas ; (ii) en relación con BMC y los licenciantes, el Producto y cualquier software de terceros con él proporcionado; y (iii) los términos del Contrato, incluyendo sin limitación el precio de los Productos. No será considerada Información Confidencial aquella sobre la cual el Receptor pueda demostrar que: (a) fue conocida por el Receptor de manera legal en el momento de la divulgación; (b) si era de dominio público en el momento en que fue revelada o que pasara a ser de dominio público sin intervención por acción u omisión del Divulgador; (c) fuera puesta en conocimiento del Divulgador por un tercero que no haya incumplido este Contrato y que tuviera derecho a revelarla; o (d) fuera desarrollada de manera independiente por el Receptor sin utilizar en forma alguna Información Confidencial del Divulgador. El Receptor no revelará Información Confidencial del Divulgador a tercero alguno ni la utilizará para infringir lo previsto en este Contrato. El Receptor (i) pondrá el mismo nivel de cuidado y protección en relación a la Información Confidencial del Divulgador que pone respecto de su propia Información Confidencial y (ii) no copiará, divulgará distribuirá, publicará o autorizará a terceros a tener acceso a la Información Confidencial del Divulgador ya sea de forma directa o indirecta. Sin perjuicio de ello, el Receptor podrá revelar la Información Confidencial del Divulgador a sus empleados y agentes que tengan necesidad de conocer dicha Información Confidencial siempre que dichos empleados o agentes tengan en vigor obligaciones de confidencialidad tan estrictas como las contempladas en el presente Contrato. (c) Obligación de notificación. En el supuesto de que el Receptor tenga conocimiento de cualquier utilización no autorizada o revelación de la Información Confidencial del Divulgador, el Receptor deberá notificar inmediatamente y de forma completa al Divulgador de todos los hechos relativos a dicha utilización no autorizada o revelación. Asimismo, en el supuesto de que se le solicite al Receptor, sus empleados o agentes (mediante interrogatorios, solicitud de información documental o por cualquier otro medio en un proceso judicial) revelar cualquier Información Confidencial, el Receptor no revelará la Información Confidencial sin antes suministrar al Divulgador una notificación de dicho requerimiento que le permita al Divulgador evitar legalmente la revelación de la Información Confidencial. En todo caso, el Receptor deberá realizar esfuerzos comercialmente razonables para preservar la confidencialidad de la Información Confidencial del Divulgador, incluyendo, sin limitación, cooperación con el Divulgador para obtener una medida cautelar o cualquier otra medida que pueda asegurar que la Información Confidencial sea tratada como tal.
- RESTRICCIONES DE USO. El Usuario no podrá: (a) modificar, eliminar o remover ninguna propiedad, título, marca registrada, patente o avisos de derechos de autor ("Identificación") de ningún Producto; (b) copiar cualquier Producto o cualquier porción de cualquier Producto sin reproducir toda la Identificación en cada copia o copia parcial; (c) desmontar, realizar ingeniería inversa, descompilar o intentar derivar cualquier código fuente del producto del código objeto, excepto en la medida en que lo permita expresamente la ley aplicable, a pesar de esta limitación, sin posibilidad de renuncia contractual; (d) distribuir, rentar, alquilar, sub licenciar o proporcionar el Producto a terceros; (e) proporcionar a un tercero los resultados de cualquier evaluación funcional o pruebas de desempeño, sin la aprobación previa por escrito de BMC; (f) intentar inhabilitar o eludir cualquiera de los mecanismos de licenciamiento dentro del Producto; o (g) violar cualquier otra restricción de uso contenida en la Documentación técnica del Producto.
- NO GARANTÍA Y LIMITE DE RESPONSABILIDAD. LOS PRODUCTos son PROPORCIONADOS “TAL CUAL” (“AS IS”) CON PROPÓSITOS DE EVALUACIÓN SOLAMENTE Y SON PROVISTOS SIN GARANTÍA ALGUNA, INCLUYENDO, SIN LIMITACIÓN, CUALQUIER GARANTÍA IMPLÍCITA DE ADECUACIÓN PARA UN PROPÓSITO PARTICULAR O COMERCIALIZACIÓN Y NO INFRACCIÓN O CUALQUIER OTRA GARANTÍA, YA SEA EXPRESA O IMPLÍCITA. NINGUN EMPLEADO DE BMC, SUS AFILIADAS, PROVEEDORES O LICENCIANTES SERÁN RESPONSABLES POR NINGÚN DAÑO INDIRECTO, INCIDENTAL, ESPECIAL, PUNITIVO O CONSECUENCIAL NI NINGUNA PÉRDIDA DE GANACIAS, INGRESOS, DATOS O USO DE DATOS, POR CUALQUIER CAUSA QUE SURJA DE O EN CUALQUIER MANERA RELACIONADA CON EL USO DEL PRODUCTO O ÉSTE CONTRATO. LA RESPONSABILIDAD DE BMC, SUS AFILIADAS, PROVEEDORES Y LICENCIANTES POR DAÑOS OCASIONADOS POR EL USO DEL PRODUCTO O DE ESTE CONTRATO, YA SEA POR CONTRATO O POR AGRAVIO, SE LIMITARÁ A LA CANTIDAD PAGADA POR EL USUARIO PARA LICENCIAR EL USO DEL PRODUCTO o $ 500USD (LA CANTIDAD QUE RESULTÉ MAYOR). EN LOS PAÍSES QUE SE ENCUENTRAN EN LA SUBSECCIÓN 9(F), SEÑALADA ABAJO, EL LÍMITE DE RESPONSABILIDAD DESCRITO EN ESTA SECCIÓN NO SERÁ APLICABLE SI EL DAÑO HUBIESE SIDO CAUSADO POR DOLO O GRAVE NEGLIGENCIA DE CUALQUIERA DE LAS PARTES.
- TERMINACIÓN. Ambas partes podrán dar por terminado este Contrato en cualquier momento, con previa notificación por escrito de dos semanas de anticipación a la fecha de terminación de que se trate. A la terminación del presente Contrato o del Periodo de Prueba, si el Usuario no hubiera obtenido una licencia de uso de producción para el Producto, el Usuario deberá: (a) dejar de usar el Producto y (b) certificar por escrito a BMC que el Usuario ha desinstalado y destruido, o devuelto a BMC, los Productos y todas las copias de los mismos. Este requisito se aplica a las copias en todas las formas, parciales y completas, en todos los tipos de medios de comunicación y en memorias de computadora ya sea o no fusionadas en otros materiales. El presente Contrato no crea obligación alguna por parte de BMC de licenciar algún Producto al Usuario o por parte del Usuario para adquirir cualquier hardware o licencia de cualquier Producto de software de BMC. Sin perjuicio de lo contrario en esta Sección 6, si se incluye el hardware con el Producto, al finalizar el Periodo de Prueba, el Usuario podrá comprar el hardware o devolverlo a BMC en un periodo de cinco días en su empaque original.
- PROTECCIÓN DE DATOS. BMC y el Cliente acuerdan que el Contrato de Procesamiento de Datos, copia que puede ser vista en: https://www.bmc.com/content/dam/bmc/corporate/bmcdpa.pdf., aplicará a los productos de BMC descargados, a menos que BMC y el Cliente hayan firmado un Contrato de Procesamiento de Datos con anterioridad para dichos productos, en cuyo caso, la versión firmada regirá éste Contrato.
- CONTROLES DE EXPORTACIÓN. El Usuario declara y garantiza que: a) cumplirá con las Regulaciones de la Administración de Exportaciones de Estados Unidos y otras regulaciones de exportación de los Estados Unidos o extranjeras; b) ningún individuo que acceda o utilice el Producto es ciudadano de un país embargado (actualmente Irán, Siria, Sudán, Cuba y Corea del Norte); c) no tiene prohibido recibir el Producto bajo dichas regulaciones; d) no adquirirá el Producto para una persona restringida bajo dichas regulaciones; e) no utilizará el Producto en contravención con dichos reglamentos; y f) no utilizará el Producto para usos prohibidos, de forma enunciativa mas no limitativa a usos relacionados con armas nucleares, químicas, misiles o biológicas. En el caso de los productos exportados de Irlanda, la EC nº 428/2009 establece un régimen comunitario para el control de las exportaciones de productos y tecnología de doble uso y se declara que este producto se destina únicamente a fines civiles. Por lo tanto, el Usuario se compromete a cumplir con las regulaciones de los EE.UU. y de la Unión Europea y no podrá exportar en violación a las regulaciones y sin las licencias apropiadas. El usuario perderá todos los derechos sobre el Producto por cualquier incumplimiento a éstas regulaciones.
- LEY APLICABLE Y RESOLUCIÓN DE CONFLICTOS. Una de las partes notificará por escrito a la otra parte con respecto a cualquier controversia, disputa o reclamación que surja de o se relacione con este Contrato, o con la formación, interpretación, incumplimiento, terminación o validez del mismo ("Controversia"). Las partes deberán entablar negociaciones de buena fe para resolver la Controversia. Únicamente si la Controversia no es resuelta mediante negociaciones de buena fe dentro de los 15 días siguientes al envío de la notificación por escrito de Controversia, la misma podrá ser sometida a litigio o arbitraje vinculante, basado en el lugar de constitución de las partes, de la siguiente manera:
(i) Si ambas partes en este Contrato son entidades constituidas bajo las leyes de cualquier estado en los Estados Unidos, la Controversia será juzgada en cualquier tribunal estatal o federal ubicado en Houston, Texas y regirán las leyes del Estado de Texas. Ambas partes acuerdan someterse a la exclusiva jurisdicción de los tribunales de Houston, Texas y renuncian a todas las defensas basadas en forum non conveniens.
(ii) Si ambas partes en el presente Contrato son entidades constituidas en países de Europa, Medio Oriente o África, el arbitraje se celebrará en Amsterdam, Países Bajos, de conformidad con las normas aplicables de la Cámara Internacional de Comercio y regirán las leyes sustantivas de los Países Bajos.
(iii) Si ambas partes del presente Contrato son entidades constituidas en países de Asia y el Pacífico, el arbitraje se celebrará en Singapur de conformidad con las normas aplicables del Centro Internacional de Arbitraje de Singapur y regirán las leyes sustantivas de Singapur.
(iv) En todos los demás casos, el arbitraje se celebrará en la ciudad de Nueva York, de conformidad con las normas internacionales de la Asociación Americana de Arbitraje y regirán las leyes sustantivas del Estado de Texas.
Para todos los arbitrajes, se observará lo siguiente: (a) el arbitraje se llevará a cabo en inglés; (b) la institución de arbitraje pertinente determinará el número de árbitros, pero cualquier Controversia en la cual el monto en disputa sea mayor de $ 10 millones USD será determinada por tres árbitros, cada una de las partes tendrá derecho a seleccionar un árbitro; (c) los gastos del arbitraje los absorberán por igual las Partes, antes del laudo arbitral; (d) el laudo arbitral dictado será definitivo y obligatorio para las partes, no podrá ser objeto de apelación ante ningún tribunal y podrá ser ejecutado en cualquier tribunal que tenga jurisdicción sobre las Partes; (e) los procedimientos de arbitraje, los laudos y los escritos procesales serán confidenciales, a menos que se requiera la revelación de información en particular con el fin de hacer cumplir o impugnar el laudo o para cumplir requerimientos de leyes locales en materia de seguridad; y (f) la parte que predomine en el arbitraje tendrá derecho a recuperar los honorarios razonables por abogados y los costos incurridos en relación con el arbitraje. La Convención de las Naciones Unidas sobre los Contratos de Compraventa Internacional de Mercaderías no será aplicable al presente Contrato. Nada de lo establecido en el presente Contrato se considerará como impedimento a ninguna de las partes a solicitar alguna medida cautelar inmediata de algún tribunal que tenga jurisdicción sobre las partes y sobre el objeto de la controversia
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- ADQUISICIONES FEDERALES DE LOS ESTADOS UNIDOS. Esta Sección aplicará únicamente a las adquisiciones del Producto comercial y Documentación sujeto al presente Contrato por o en nombre del Gobierno de los Estados Unidos, o por cualquier contratista principal o subcontratista (a cualquier nivel) bajo cualquier contrato, concesión, acuerdo de cooperación u otra actividad con El Gobierno de los Estados Unidos. En caso de que los Productos sean entregados al Gobierno de los Estados Unidos, el Gobierno de los Estados Unidos por medio del presente acuerda que los Productos se calificarán como "artículos comerciales" en el sentido del reglamento federal de adquisiciones aplicable a esta adquisición. Los términos y condiciones de este Contrato se referirán al uso y divulgación del Producto por parte del Gobierno de los Estados Unidos y prevalecerán sobre los términos y condiciones contractuales que se contrapongan a los mismos. La siguiente declaración adicional sólo se aplica a las adquisiciones regidas por la Subparte 227.4 de DFARS (octubre de 1988): "Derechos Restringidos - El uso, duplicación y divulgación por parte del Gobierno estará sujeto a las restricciones establecidas en el inciso (c) (1) (ii) de los Derechos en datos técnicos y software informático en DFARS 252.227-7013 (octubre de 1988) ".
- MISCELÁNEOS. La renuncia de una de las partes por cualquier incumplimiento de cualquier término de este Contrato no se interpretará como renuncia a cualquier incumplimiento continuo o subsiguiente. En caso de que cualquier término de este Contrato sea inválido o inaplicable, los demás términos continuarán surtiendo efectos. Las partes reconocen haber leído el presente Contrato y están de acuerdo en que es la declaración completa y exclusiva del contrato y reemplaza cualquier negociación o contrato previo o actual entre las partes en relación con el objeto del presente Contrato. No existirán manifestaciones, promesas, garantías, pactos o compromisos entre las partes distintas a las expresamente establecidas en este Contrato. El presente no podrá ser modificado o rescindido salvo por escrito firmado por ambas partes. La parte que predomine en cualquier litigio tendrá derecho a exigir a la otra parte los honorarios y costos de abogados. El Usuario no podrá ceder o transferir este Contrato sin el previo consentimiento por escrito de BMC. Los Productos BMC pueden contener software de terceros que se entrega al Usuario como parte del Producto y no podrá ser retirado del Producto o utilizado por separado del Producto y para el cual podrán incluirse términos adicionales en la Documentación. Cualquier documento adicional presentado a un representante de BMC por el Usuario para ser firmado como condición para acceder al sitio de un Usuario se regirá por este Contrato y en la medida en que dicho documento presente términos adicionales o se contraponga al presente Contrato, se considerará nulo.
Como representante autorizado del Usuario, si usted está de acuerdo, para aceptar los términos de licencia anteriores en nombre de usted y del Usuario, y confirmar que usted y el Usuario cumplen y seguirán cumpliendo con todos los términos y condiciones establecidos anteriormente, haga click , presionando el botón "Acepto”, ubicado en la parte inferior.
Effective April 9th 2020 to April 9th 2020
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LA PRESENTE LICENCIA DE USO PARA EVALUACION ("CONTRATO") SERA UN ACUERDO LEGAL Y VINCULANTE ENTRE EL USUARIO DEL PRODUCTO DESCARGADO SEÑALADO EN LA SECCIÓN "EXPORT VALIDATION" DEL SITIO WEB SE SOPORTE DE BMC (DENTRO DE WWW.BMC.COM) O CUALQUIER SITIO QUE LO REEMPLACE, DEL CUAL ESTE CONTRATO ES UNA PARTE ("USUARIO") Y BMC SOFTWARE DISTRIBUTION, INC. O SU AFILIADA LICENCIANTE LOCAL ("BMC"). AL PRESIONAR EL BOTON "I AGREE" o "DE ACUERDO" QUE SE ENCUENTRA DEBAJO, USTED MANIFIESTA Y GARANTIZA QUE HA LEIDO Y ENTENDIDO LOS TERMINOS DE ESTE CONTRATO, QUE USTED TIENE LA AUTORIDAD PARA OBLIGAR AL USUARIO BAJO ESTE CONTRATO, Y QUE EL USUARIO ACUERDA ESTAR OBLIGADO POR LOS TERMINOS Y CONDICIONES DE ESTE CONTRATO. BMC ACUERDA PERMITIRLE A USTED DESCARGAR LOS PRODUCTOS SOLO SI Y DESPUÉS QUE USTED Y EL USUARIO HAN ACEPTADO TODOS ESTOS TERMINOS AL PRESIONAR EL BOTON "I AGREE" OR "DE ACUERDO" QUE SE ENCUENTRA DEBAJO. |
POR FAVOR LEA ESTE CONTRATO: SI USTED NO ENTIENDE O NO ESTA DE ACUERDO CON ALGUNO DE LOS TERMINOS DE ESTE CONTRATO NO PRESIONE EL BOTON "I AGREE" OR "DE ACUERDO" QUE SE ENCUENTRA DEBAJO. |
(1) TERMINOS DEFINIDOS. "Información Confidencial" es toda información que es propietaria y/o confidencial de la parte divulgadora, y no incluye aquella información que: (a) estaba legítimamente en posesión de la receptora sin estar sujeta a una obligación de confidencialidad, antes de recibirla de la parte divulgadora; (b) es o deviene de conocimiento general sin que medie falta de la parte receptora; (c) es recibida legítimamente por la parte receptora de una tercera parte sin violación de una obligación de confidencialidad; o (d) es o fue desarrollada en forma independiente por o para la parte receptora. "Productos" son los productos de software y su documentación relacionada y toda otra información técnica propietaria o distribuida por BMC, los que pueden ser accedidos en el sitio web BMC EPC ((www.bmc.com o cualquier sitio que lo reemplace) y respecto de los cuales se otorga al Usuario una licencia bajo este Contrato. "Periodo de Evaluación" con respecto a un Producto, es el periodo de tiempo que comienza el día en que Usted descarga el Producto y finaliza: a) treinta días calendario a contar desde esa fecha, o b) el número de días calendario especificados en la llave de licencia (license key) provista con el Producto; lo que ocurra primero. |
(2) LICENCIA DE USO PARA EVALUACIÓN. BMC otorga al Usuario una licencia temporal no exclusiva, intransferible, no cedible, para usar cada Producto en una sola computadora determinada durante el Período de Evaluación, sólo para su evaluación interna a fin de determinar la adquisición o no de una licencia de uso de los Productos con su cargo correspondiente, y no para efectuar desarrollos, usos comerciales, producción, manejo de bases de datos, o con datos en ambiente productivo. El Usuario debe celebrar un contrato independiente para obtener derechos para uso en ambiente productivo y soporte técnico para un Producto. En el caso que un Producto contenga código de tercero: si a) dicho código de tercero es provisto para su uso con el Producto, sólo podrá ser usado con ese Producto; y b) la documentación contiene términos que pertenezcan a dicho código de tercero, dichos términos gobernarán el código de tercero en lugar de los términos de este Contrato. |
(3) RESTRICCIONES AL USO. El Usuario acuerda no: (a) remover ninguna identificación del Producto, aviso de copyright, u otro aviso o restricción del Producto, (b) causar o permitir alguna descompilación, desensamblamiento, realización de ingeniería reversa, ni de ninguna otra manera intentar derivar el código fuente de los Productos a partir de un código ejecutable, excepto que sea en la medida expresamente permitido por una ley o tratado aplicable a pesar de la presente limitación; (c) divulgar los resultados de cualquier evaluación de desempeño (benchmark test) de algún Producto a una tercera parte, sin el previo consentimiento por escrito de BMC, (d) duplicar, instalar y/o utilizar los Productos en forma distinta a lo establecido en el presente Contrato, o (e) sublicenciar, modificar, usar en modalidad de tiempo compartido (timeshare), alquilar, brindar servicios o de alguna otra forma transferir o compartir los Productos o permitir el uso de los mismos por una tercera parte. El Usuario no podrá exportar o re-exportar cualquier Producto sin el previo consentimiento escrito de BMC y los permisos o licencias aplicables otorgados por el gobierno de los Estados Unidos o los gobiernos extranjeros correspondientes o bien la exención de dichas licencias o permisos |
(4) TERMINACION. A la terminación de este contrato, o la expiración del Período de Evaluación, si el Usuario no ha obtenido una licencia para uso productivo del Producto, el Usuario deberá (a) dejar de usar el Producto, y (b) certificar por escrito a BMC que ha desinstalado y destruido, o retornado a BMC, el Producto y todas las copias de los Productos. Este requerimiento aplica a copias en todos los formatos, parciales o completos, en todos los tipos de medios y memorias de computadoras y si fueren o no incluidos en otros materiales. Este Contrato no crea ninguna obligación para BMC para otorgar licencias de cualquier Producto, ni para el Usuario de adquirir de BMC una licencia de cualquier Producto. |
(5) AUSENCIA DE GARANTIAS, LIMITACIÓN DE RESPONSABILIDAD. Los Productos se entregan en el estado en que se encuentran "as-is" con el único propósito de ser evaluados, sin ninguna garantía, incluyendo, sin limitarse, las garantías implícitas de adecuación a un fin determinado o de comerciabilidad o de no infracción de derechos, o cualquier otra garantía, ya sea implícita o explícita. Ni BMC, ni sus afiliadas, proveedores o licenciantes son responsables de ningún daño indirecto, incidental, especial, punitivo o consecuencia, o cualquier pérdida de ganancia, ingresos, información o uso de información (data use) originado por la causa que fuera, en relación con el uso del Producto o este Contrato. En todo caso, la responsabilidad de BMC, sus afiliadas, proveedores y licenciantes por daños resultantes del uso de los Productos o de este Contrato, ya sea contractual o extracontractual, quedará limitada al monto que resulte mayor ente el monto pagado por el Usuario por la licencia otorgada en el presente, o la suma de USD$500.00 (Quinientos dólares, moneda de curso legal en los Estados Unidos de América). En los países listados en la sección 9 (F) que se encuentra mas abajo, la limitación de responsabilidad de esta sección no aplicará en el caso que el daño sea causado de manera intencional o con culpa grave de cualquiera de las partes. |
(6) DERECHOS PROPIETARIOS Y CONFIDENCIALIDAD. BMC, y sus Afiliadas y/o licenciantes, según aplique, retienen todo derecho, título e interés sobre el Producto y toda propiedad intelectual y derechos de autoría relacionados. El Producto y cualquier software de cualquier tercero proporcionado con el Producto, están protegidos por derechos de autor, secretos comerciales, leyes de propiedad industrial y otras leyes de propiedad intelectual. BMC se reserva todos los derechos que no se hayan expresamente otorgado al Usuario. Las partes acuerdan que los Productos son información confidencial de BMC. La parte receptora (a) mantendrá la Información Confidencial de la otra parte por 5 años desde lo ultimo que ocurra entre (i) la fecha de la divulgación o (ii) el último uso del Producto; y (b) solo divulgará la Información Confidencial de la otra parte a los empleados o agentes de la parte receptora que estén obligados a no divulgar tal información mediante obligaciones legales que protejan dicha información al menos en la misma medida que el presente Contrato y que tengan que conocer tal información para desempeñar su trabajo. Nada podrá impedir a ninguna de las partes divulgar los términos o precios establecidos en este Contrato en algún procedimiento legal planteado o relacionado con este contrato o divulgar información a una entidad gubernamental según sea requerido por ley. |
(7) LEYES DE EXPORTACIÓN. Las leyes de exportación y regulación de los Estados Unidos y otras leyes locales de exportación y regulaciones relevantes aplican a los Productos. El uso de los Productos por parte del Usuario (incluido información técnica) es regido por todas estas leyes, incluyendo regulaciones "deemed export" y "deemed re-export", y el Usuario debe obedecerlas. El Usuario acuerda que ningún Producto, datos, información, programa y/o materiales van ser exportados, directa o indirectamente, en violación a estas leyes o serán utilizados con algún fin prohibido por estas leyes, incluyendo proliferación de armas nucleares, químicas o biológicas o desarrollo de misil tecnológico. Al presionar el botón "I agree" que se encuentra debajo el Usuario confirma también su consentimiento en cuanto a cumplir, desde este momento y mientras dure el Período de Evaluación, con cada una de las siguientes declaraciones:(a) el Usuario no es ciudadano, nacional o residente de, o está bajo el control del gobierno de Cuba, Iran, Sudan, Iraq, Korea del Norte, Siria o cualquier otro país al cual los Estados Unidos tiene prohibido exportar; y (b) el Usuario no descargará o de otra forma exportará o reexportará cualquier Producto, directa o indirectamente a ninguno de los países arriba mencionados ni a ningún ciudadano, nacional o residente de alguno de esos países, y (c) el Usuario no está incluido en las listas del United States Department of Treasury de Specally Designated Nationals, Specially designated terrorist, o Specially Designated Narcotic Traffickers o listado el United States Departement of Comerce Table of Denial Orders; y (d) el Usuario no descargará o de otra forma exportará o reexportará cualquier Producto, directa o indirectamente a alguna persona incluida en las listas arriba mencionadas; y (e) el Usuario no utilizará los Productos para, o permitirá que algún Producto sea utilizada para cualquier uso prohibido por las leyes de los Estados Unidos de América u otra ley aplicable, incluyendo, sin limitación, el desarrollo, diseño, manufactura o producción de armas nucleares, químicas o biológicas de destrucción masiva. |
(8) ACUERDO INTEGRO. Este es un acuerdo total entre las partes, y reemplace y prevalece todos los acuerdos previos y contemporáneo y negociaciones con respecto al uso del Usuario de los Productos bajo un esquema de evaluación. Este Contrato solo podrá ser enmendado por escrito y con las firma de ambas partes. El usuario no podrá ceder o transferir este contrato sin el previo consentimiento por escrito de BMC. En ningún caso la demora o la no ejecución de algún derecho, poder o privilegio operará como una renuncia al mismo, ningún ejercicio parcial excluye el derecho de ejecutar otros derechos bajo este Contrato. |
(9) LEY APLICABLE Y JURISDICCION. Si el Usuario esta situado y usará los Productos en (a) Argentina, las leyes de Argentina aplicarán a este Contrato, sin incluir normas de conflicto de leyes y la jurisdicción será la de los Tribunales de Buenos Aires, y BMC y el Usuario consienten la jurisdicción de tal tribunal, (b) Brasil, las leyes de Brasil aplicarán a este Contrato, sin incluir normas de conflicto de leyes y la jurisdicción será la de los Tribunales de San Pablo, y BMC y el Usuario consienten la jurisdicción de tal tribunal, (c) Estados Unidos Mexicanos, las leyes de los Estados Unidos Mexicanos aplicarán a este Contrato, sin incluir normas de conflicto de leyes y la jurisdicción será la de los Tribunales de la ciudad de México, y BMC y el Usuario consienten la jurisdicción de tal tribunal, (d) Japón, Corea del Sur, República Popular de China, Regiones Especiales Administrativas de Hong Kong o Macao, Taiwán, Filipinas, Indonesia, Malasia, Myanmar, Singapur, Brunei, Vietnam, Camboya, Laos, Tailandia, India, Pakistán, Australia, Nueva Zelanda, Papua Nueva Guinea o cualquier otro estado insular del pacífico, las leyes sustantivas de Singapur, sin incluir normas de conflicto de leyes, aplicarán a este Contrato y tendrán jurisdicción los tribunales de Singapur, y BMC y el Usuario consienten la jurisdicción de tal tribunal, (e) los Estados Unidos de Norteamérica, Puerto Rico u otro protectorado de los Estados Unidos de Norteamérica, Canadá o todo otro país en América Central y América del Sur no especificado en la presente cláusula, las leyes de Texas, sin incluir normas de conflicto de leyes, aplicarán, y la jurisdicción será la de la corte estatal y federal de situada en Harris County, Texas, y BMC y el Usuario consienten la jurisdicción de tal corte, y (f) aquellos países no listados en la presente cláusula, las leyes de los Países Bajos, sin incluir normas de conflicto de leyes, aplicarán a este Contrato y la jurisdicción será de la corte de Ámsterdam, y BMC y el Usuario consienten la jurisdicción de tal corte. |
Las normas de conflicto de leyes de cualquier jurisdicción y la Convención de Naciones Unidas sobre contratos para la venta internacional de mercaderías no aplicarán a este Contrato. |
(10) MISCELANEOS. Con un preaviso de treinta (30) días calendario, BMC puede auditar el uso del Usuario de los Productos. El Usuario cooperará con tal auditoría y proveerá asistencia razonable y acceso a la información. Dentro de los treinta (30) días calendario de recibida la notificación, el Usuario deberá pagar aquellos cargos adeudados revelados por la auditoría. |
(11) ADQUISICIONES FEDERALES EN ESTADOS UNIDOS DE AMERICA. Esta cláusula aplica a todas las adquisiciones de los Productos sujetas a este Contrato por o en nombre del gobierno federal de los Estados Unidos de América, o por algún contratista principal o subcontratista (de cualquier nivel) bajo cualquier contrato, concesión, acuerdo cooperativo u otra actividad del gobierno federal de los Estados Unidos de América. Al aceptar la entrega del Producto, el gobierno acuerda que el Producto califica como "comercial" dentro del significado de regulaciones de adquisiciones aplicable a esta operación. Los términos y condiciones de este Contrato deberán regir el uso y divulgación de los Productos por parte del gobierno y prevalecerán sobre cualquier término y condición contractual conflictiva. Si las licencias otorgadas por este Contrato no cumplen con las necesidades del gobierno o son inconsistentes en algún punto con la ley federal, el gobierno acuerda en devolver el Producto, sin haber sido usado, a BMC. La siguiente declaración adicional aplica solo a adquisiciones efectuadas por DFARS Subpart 227.4 (October 1988): "Derechos restringidos – Uso, duplicación o divulgación por parte del Gobierno está sujeto a las restricciones establecida en los subpárrafos (c)(1)(ii) de la cláusula Rights in Technical Data and Computer Software del DFARS 252.227-7013 (Oct 1988)." |
Si Usted está de acuerdo, como un representante autorizado del Usuario, en aceptar los términos de licenciamiento arriba descriptos en su nombre y en nombre del Usuario, y para confirmar que Usted y el Usuario están en cumplimiento con y continuarán cumpliendo con todos los términos y condiciones establecidos más arriba, presione el botón "I agree" o "de acuerdo" que se encuentra debajo. |
Trial Agreement
Effective April 9th 2020
DownloadTable of Contents
PROBELIZENZ
DIESE PROBELIZENZ (DIE "VEREINBARUNG") GILT ALS JURISTISCHE VEREINBARUNG ZWISCHEN DEM NUTZER DES IN DEM EXPORTBESTÄTIGUNGSTEIL DER BMC SUPPORT-WEBSEITE (AUF WWW.BMC.COM ODER AUF JEGLICHER WEBSEITE EINES NACHFOLGERS) GENANNTEN HERUNTER GELADENEN PRODUKTS, ZU DEM DIESE VEREINBARUNG GEHÖRT, (DER "NUTZER") UND BMC SOFTWARE, INC. ODER DEREN LOKALEM VERBUNDENEN VERTRIEBSUNTERNEHMEN ("BMC"). INDEM SIE AUF "ICH STIMME ZU" KLICKEN, SICHERN SIE ZU UND GARANTIEREN, DASS SIE DIE BESTIMMUNGEN DIESER VEREINBARUNG GELESEN UND VERSTANDEN HABEN, DASS SIE ERMÄCHTIGT SIND, DEN NUTZER AN DIESE VEREINBARUNG ZU BINDEN UND DASS DER NUTZER SICH DAMIT EINVERSTANDEN ERKLÄRT, AN DIE BESTIMMUNGEN UND BEDINGUNGEN DIESER VEREINBARUNG GEBUNDEN ZU SEIN. BMC ERKLÄRT SICH NUR DAMIT EINVERSTANDEN, IHNEN DAS HERUNTERLADEN DER PRODUKTE ZU GESTATTEN, WENN UND NACHDEM SIE UND DER NUTZER SÄMTLICHE DIESER BESTIMMUNGEN ANGENOMMEN HABEN, INDEM SIE AUF "ICH STIMME ZU" GEKLICKT HABEN.
BITTE LESEN SIE DIESE VEREINBARUNG: FALLS SIE BESTIMMUNGEN DIESER VEREINBARUNG NICHT VERSTEHEN ODER NICHT DAMIT ÜBEREINSTIMMEN, KLICKEN SIE NICHT AUF "ICH STIMME ZU".
1. DEFINIERTE BEGRIFFE. "Vertrauliche Informationen" sind alle geschützten und vertraulichen Informationen, die die mitteilende Partei der empfangenden Partei offenlegt, und umfasst unter anderem folgende Informationen: (a) finanzielle Informationen, Betriebs- und Geschäftsgeheimnisse, technisches Know-how, Betriebsmethoden, Produktdaten, Entwicklungs- und Forschungsergebnisse, Erfindungen, Quellcodes, Marktanalysen, Sicherheitsmaßnahmen, technische Spezifikationen, interne Richtlinien, Kunden- und Mitarbeiterdaten und Warenbezugsquellen sowie Dokumente und Daten, die den Parteien im Rahmen ihrer Zusammenarbeit bekannt werden; (b) für BMC und seine Lizenzgeber die Software Produkte und jede Software Dritter die mit den Produkten zur Verfügung gestellt wird; und (c) die Bedingungen dieses Vertrags über eine Probelizenz inklusive Preisinformationen. Vertrauliche Informationen beinhalten keine (a) Informationen, die der empfangenden Partei vor Weitergabe durch die mitteilende Partei rechtmäßig und ohne Verstoß gegen eine Geheimhaltungspflicht bekannt waren oder außerhalb der Zusammenarbeit bekannt werden; (b) Informationen, die ohne Verschulden der empfangenden Partei der Öffentlichkeit zugänglich sind oder öffentlich zugänglich werden; (c) Informationen, die der empfangenden Partei rechtmäßig und ohne Verletzung einer Geheimhaltungspflicht von einer Drittpartei mitgeteilt werden; oder (d) Informationen, die unabhängig und selbstständig von oder für die empfangende Partei entwickelt wurden bzw. werden. ("Produkte") bezeichnet Software oder Hardwareprodukte, die dazugehörigen Dokumentationen und andere technische Informationen, die BMC gehören oder von BMC vertrieben werden und auf die von der BMC EPD-Webseite (www.bmc.com/ oder jegliche Webseite eines Nachfolgers) aus zugegriffen werden kann, für die dem Nutzer gemäß dieser Vereinbarung eine Lizenz gewährt wird. ("Probezeit") in Bezug auf ein Produkt bezeichnet den Zeitraum, der mit dem Datum, an dem Sie ein solches Produkt herunterladen, beginnt und dem jeweils früheren Zeitpunkt der folgenden endet: (a) dreißig Kalendertage nach vorgenanntem Datum oder (b) nach Ablauf der im produktspezifischen Lizenzschlüssel festgelegten Anzahl Kalendertagen.
2. PROBELIZENZ. BMC gewährt dem Nutzer eine nicht-exklusive, nicht-übertragbare, nicht-abtretbare zeitlich beschränkte Lizenz zur Nutzung jedes Produkts auf einem einzigen Computer während der Probezeit und zwar ausschließlich zur internen Bewertung um zu entscheiden, ob der Nutzer eine Lizenz zu dem Produkt entgeltlich erwerben und/oder lizenzieren möchte, und nicht für Entwicklungs-, Produktions-, Datenbankmanagement- oder gewerbliche Zwecke sowie unter Ausschluss einer Nutzung mit produktiven Daten. Der Nutzer muss eine separate Vereinbarung eingehen, um Rechte für den produktiven Betrieb und technischen Support für ein Produkt zu erhalten.
3. EIGENTUMSRECHTE UND GEHEIMHALTUNGSPFLICHT. (a) Sämtliche Rechte, Rechtstitel und Vorteile an den Produkten sowie sämtliche damit zusammenhängende geistige und anderen Eigentumsrechte liegen bei BMC, respektive seinen verbundenen Unternehmen und/oder Lizenznehmern. Die Produkte und jegliche mit dem Produkt mitgelieferte Drittparteiensoftware stehen unter dem Schutz geltender Urheberschutz-, Geschäftsgeheimnis-, gewerblicher und anderer geistiger Eigentumsrechte. Nutzern ist es untersagt jegliche Produktidentifikationen, Markenzeichen oder andere Hinweise von den Produkten zu entfernen. BMC behält sich jegliche dem Nutzer nicht ausdrücklich gestatteten Rechte vor. Die Parteien stimmen überein, dass die Produkte vertrauliche Informationen von BMC darstellen. (b) Die empfangende Partei offenbart die Vertraulichen Informationen der mitteilenden Partei nicht gegenüber Drittparteien oder verwendet die Vertraulichen Informationen in Verletzung dieser Vereinbarung. Um die unbefugte Nutzung oder Offenlegung von Vertraulichen Informationen zu verhindern, hat die empfangende Partei (i) die Vertraulichen Informationen der mitteilenden Partei gleichermaßen sorgfältig zu verwenden und zu schützen, die die empfangende Partei verwendet, um ihre eigenen Vertraulichen Informationen zu schützen. (ii) wird die empfangende Partei einer Drittpartei die Vertraulichen Informationen weder indirekt noch direkt offenbaren, kopieren, vertreiben, neu veröffentlichen noch einer Drittpartei Zugang zu den Vertraulichen Informationen der mitteilenden Partei gewähren. Ungeachtet dessen wird die empfangende Partei die Vertraulichen Informationen der mitteilenden Partei gegenüber Angestellten oder Beauftragten der empfangenden Partei nur offen legen, wenn ihnen die Vertraulichen Informationen zur Erfüllung ihrer Arbeit bekannt sein sie müssen; vorausgesetzt die Angestellten oder Beauftragten sind gleichermaßen verpflichtet, solche Informationen nicht offen zu legen, und zwar gemäß rechtlicher Pflichten, die mindestens (keinesfalls weniger schützend) den in dieser Vereinbarung dargelegten entsprechen (c) Meldepflicht. Wird der empfangenden Partei eine unbefugte Nutzung oder Offenlegung der Vertraulichen Informationen der mitteilenden Partei bekannt, so wird die empfangende Partei die mitteilende Partei umgehend über alle Tatsachen, die ihr über eine unbefugte Nutzung oder Offenlegung bekannt sind, unterrichten. Wird darüber hinaus die empfangende Partei, ihre Mitarbeiter oder Vertreter aufgrund gesetzlicher Bestimmungen oder Verfügungen verpflichtet Vertrauliche Informationen der mitteilenden Partei bekannt zu geben, wird sie die Vertraulichen Informationen der mitteilenden Partei nicht offenlegen, ohne ihr vorab schriftlich eine wirtschaftlich vernünftige Mitteilung zu geben, um der mitteilenden Partei die Möglichkeit zu geben eine Schutzanordnung oder einen anderen geeigneten Rechtsbehelf einzulegen oder den Verzicht auf Einhaltung dieser Bestimmung zu erklären. In jedem Fall wird der die empfangende Partei kommerziell angemessene Anstrengungen unternehmen, um die Vertraulichkeit der Informationen der mitteilenden Partei zu wahren. Dies schließt, ohne Einschränkung, die Zusammenarbeit mit der mitteilenden Partei ein, um eine angemessene Schutzanordnung oder eine andere zuverlässige Sicherheit zu erhalten, dass die Vertraulichen Informationen vertraulich behandelt werden.
4. NUTZUNGSBESCHRÄNKUNGEN. Dem Nutzer wird nicht gestattet: (a) jegliche Identifizierungszeichen, Eigentums-, Marken-, Patenthinweise Urheberschutzvermerke, andere Vermerke oder Eigentumsbeschränkungen von den Produkten zu entfernen, (b) jegliches Produkt oder Teile eines Produktes zu kopieren ohne die dazugehörigen Identifikationsmerkmale zu reproduzieren, (c) jegliches Dekompilieren, Disassemblieren oder Reverse Engineering zu veranlassen oder zu erlauben bzw. auf andere Weise zu versuchen, den Quellencode eines Produkts vom ausführbaren Programmcode abzuleiten, außer insofern ausdrücklich von den maßgeblichen Gesetzesvorschriften oder Staatsverträgen trotz dieser Beschränkung gestattet; (d) die Produkte zu vertreiben, zu mieten oder zu vermieten, unterzulizenzieren, sie auf andere Weise einer Drittpartei zur Verfügung zu stellen, (e).die Ergebnisse jeglicher Benchmark-Tests jeglichen Produkts jeglicher Drittpartei preiszugeben ohne zuerst BMCs schriftliche Genehmigung einzuholen; (f) den Lizenzierungsmechanismus innerhalb des Produkts zu deaktivieren oder zu umgehen; oder (g) jegliche andere Nutzungsbeschränkung, die in der Dokumentation enthalten ist, zu verletzen.
5. GEWAEHRLEISTUNGSAUSSCHLUSS UND HAFTBARKEITSBESCHRÄNKUNG. DIE PRODUKTE WERDEN OHNE GEWÄHRLEISTUNG AUSSCHLIESSLICH ZU BEWERTUNGSZWECKEN ZUR VERFÜGUNG GESTELLT, UND ZWAR OHNE JEGLICHE GARANTIE, EINSCHLIESSLICH, OHNE BESCHRÄNKUNG, JEGLICHER IMPLIZIERTER GARANTIE ODER GARANTIE AUF TAUGLICHKEIT FÜR BESTIMMTE ZWECKE ODER GEBRAUCHSTAUGLICHKEIT, GARANTIE AUF NICHT-VERLETZUNG VON IMMATERIALGÜTERRECHTEN ODER JEGLICHER ANDEREN GARANTIE, OB AUSDRÜCKLICH ODER IMPLIZIT. WEDER BMC NOCH SEINE VERBUNDENEN UNTERNEHMEN, ZULIEFERER ODER LIZENZNEHMER SIND HAFTBAR FÜR JEGLICHE INDIREKTEN, NEBEN-, SONDER- ODER FOLGESCHÄDEN ODER BUSSZAHLUNGEN, NOCH FÜR JEGLICHE GELDEINBUSSEN, EINKOMMENS-, DATEN- ODER DATENNUTZUNGSVERLUSTE BASIEREND AUF URSACHEN, DIE SICH AUS DER NUTZUNG DES PRODUKTS ODER DIESER VEREINBARUNG ERGEBEN ODER IN JEGLICHER WEISE DAMIT IN VERBINDUNG STEHEN. SICH AUS DER NUTZUNG DES PRODUKTS ODER DIESER VEREINBARUNG ERGEBENDE HAFTBARKEIT FÜR SCHADENERSATZ DURCH BMC, SEINE VERBUNDENEN UNTERNEHMEN UND LIZENZNEHMER, OB AUS VERTRAG ODER UNERLAUBTER HANDLUNG, IST AUF DEN JEWEILS HÖHEREN DER FOLGENDEN BETRÄGE BESCHRÄNKT: DEN VOM NUTZER FÜR DIE PRODUKTLIZENZ BEZAHLTEN BETRAG ODER $500.00. IN DEN IN PARAGRAPH 9 (F) UNTEN AUFGELISTETEN LÄNDERN GILT DIE IN DIESEM PARAGRAPH BESCHRIEBENE HAFTBARKEITSBESCHRÄNKUNG NICHT, FALLS UND INSOFERN DIESER SCHADEN VORSÄTZLICH ODER DURCH GROBE FAHRLÄSSIGKEIT VON EINER DER BEIDEN PARTEIEN VERURSACHT WURDE.
6. KÜNDIGUNG. Beide Parteien können diese Vereinbarung schriftlich mit einer Frist von zwei Wochen kündigen. Falls der Nutzer keine Lizenz zur produktiven Nutzung des Produkts erworben hat, muss der Nutzer nach Kündigung dieser Vereinbarung bzw. nach Ablauf der Probezeit (a) die Nutzung des Produkts einstellen und (b) BMC schriftlich bestätigen, dass der Nutzer die Produkte und sämtliche Kopien der Produkte deinstalliert und zerstört bzw. an BMC zurückgegeben hat. Diese Anforderung gilt für Kopien in sämtlicher Form, ob teilweise oder komplett, auf sämtlichen Arten von Medien und Computerspeichern und unabhängig davon, ob die Kopien als Teil anderen Materials existieren oder nicht. Diese Vereinbarung verpflichtet BMC in keiner Weise dazu, dem Nutzer jegliche Hardware zu erwerben oder Produkte zu lizenzieren noch verpflichtet sie den Nutzer dazu, jegliche Lizenzen zu den Produkten von BMC zu erwerben. Ungeachtet anders lautender Bestimmungen in Ziffer 6, wenn Hardware Teil eines Produkts ist, muss der Nutzer die Hardware nach Ablauf der Probezeit entweder erwerben oder sie BMC originalverpackt innerhalb von fünf Tagen zurückgeben.
7. DATENSCHUTZ. BMC und der Kunde stimmen zu, dass die Auftragsverarbeitungsvereinbarung, die unter https://www.bmc.com/content/dam/bmc/corporate/bmcdpa.pdf eingesehen werden kann, auf diesen Produktbestellschein Anwendung findet, es sei denn, BMC hat bereits eine unterzeichnete Auftragsverarbeitungsvereinbarung mit dem Kunden für solche BMC Angebote abgeschlossen. In diesem Fall findet diese unterschriebene Version auf diesen Produktbestellschein Anwendung.
8. EXPORTGESETZE. Der Nutzer bestätigt und stellt sich, dass: a) er die Vorschriften der U.S. Export Administration („United States Export Administration Regulations“) und andere Exportvorschriften der U.S.A. einhalten wird; b) Staatsangehörige eines gesperrten Landes (derzeit Iran, Kuba, Nordkorea, Sudan und Syrien) die Produkte nicht nutzen oder darauf zugreifen werden; c) ihm der Bezug von Produkten nicht gemäss der in a) genannten Vorschriften verboten ist; d) er die Produkte nicht für Personen erwirbt, welche gemäss der in a) genannten Vorschriften gesperrt sind; e) er die Produkte nicht entgegen der in a) genannten Vorschriften nutzen wird; und f) er die Produkte nicht für verbotenen Zwecke, insbesondere auch nicht zu Waffenzwecken (Kernwaffen, Raketentechnik oder chemisch/biologischen Waffen), nutzen wird. In Bezug auf Produkte, die aus Irland exportiert werden, begründet die Verordnung des Rates (EG) Nr. 428/2009 eine Gemeinschaftsregelung für die Kontrolle der Ausfuhr von Gütern und Technologien mit doppeltem Verwendungszweck. Die Parteien vereinbaren, dass die Produkte nur für zivile Zwecke genutzt werden dürfen. Aus diesem Grund stimmt der Kunde zu, dass er sowohl die U.S. als auch diese E.U. Vorschriften einhalten wird und er die Produkte nicht entgegen dieser Vorschriften und nicht ohne eine entsprechende, ordnungsgemässe Genehmigung exportieren wird. Bei Nichteinhaltung der in dieser Ziffer aufgeführten Bestimmungen verliert der Kunde alle seine Rechte an den Produkten.
9. ANWENDBARES RECHT UND GERICHTSSTAND. Eine Partei wird der anderen Partei jede Streitigkeit, oder Forderung, die sich aus oder im Zusammenhang mit dieser Vereinbarung oder der Bildung, Auslegung, Verletzung, Beendigung oder Gültigkeit dieser ergibt ("Rechtsstreitigkeit"), schriftlich mitteilen. Die Parteien verpflichten sich in gutem Glauben Verhandlungen zur Beilegung der Rechtsstreitigkeit zu führen. Nur wenn die Parteien die Rechtstreitigkeit innerhalb von 15 Tagen nach der Absendung der schriftlichen Bekanntmachung der Rechtsstreitigkeit nicht lösen können, kann je nach Sitz der Parteien wie folgt eine Klage eingereicht werden oder ein oder einem verbindlichen Schiedsverfahren eingeleitet werden: (i) Sind beide Parteien dieser Vereinbarung Körperschaften, die nach dem Recht eines Staates in den Vereinigten Staaten gegründet worden sind, so findet das Verfahren zur Streitbeilegung entweder in einem Bundesstaat der Vereinigten Staaten oder Bundesgericht in Houston, Texas, und unterliegt dem Recht des Staates Texas. Die Parteien unterwerfen sich der ausschließlichen Zuständigkeit der Gerichte in Houston, Texas, und verzichten auf alle Verteidigungen, die auf dem Forum non conveniens beruhen. (ii) Befindet sich der Sitz der Parteien in Europa, dem Mittleren Osten oder Afrika, findet das Schiedsverfahren in Amsterdam, Niederlande statt und unterliegt der aktuellsten Fassung der Regelungen der Internationalen Handelskammer sowie des materiellen Rechts der Niederlande. (iii) Befindet sich der Sitz der Parteien in Asien, findet das Schiedsverfahren in Singapore statt und unterliegt der aktuellsten Fassung der Regelungen des „Singapore International Arbitration Centre“ sowie des materiellen Rechts von Singapore. (iv) In allen anderen Fällen findet das Schiedsverfahren in New York City, New York statt und unterliegt der aktuellsten Fassung der Regelungen der „American Arbitration Association“ sowie des materiellen Rechts Bundesstaates Texas. Für alle vorstehenden Schiedsverfahren gilt: (a) das Schiedsverfahren ist in englischer Sprache durchzuführen; (b) das Schiedsgericht bestimmt die Anzahl der Schiedsrichter, aber jede Streitfrage, bei der der Streitwert größer als $ 10 Millionen USD ist, wird von drei Schiedsrichtern durchgeführt, wobei jede Partei das Recht hat, einen Schiedsrichter auszuwählen; (c) die Kosten eines solchen Schiedsverfahrens werden bis zum Schiedsspruch der Schiedsrichter gleichmäßig getragen; (d) der erteilte Schiedsspruch ist für die Parteien rechtlich bindend, darf nicht einem staatlichen Gericht nicht zwecks Überprüfung des Schiedsspruchs weitergeleitet werden und kann von jedem Gericht, das für die Vertragsparteien zuständig ist, vollstreckbar erklärt werden; (e) das Schiedsverfahren, der Schiedsspruch und die Schriftsätze sind vertraulich, es sei denn, die Offenlegung bestimmter Informationen ist erforderlich, um den Schiedsspruch umzusetzen oder die jeweils staatlichen Anforderungen an das Wertpapierrecht zu erfüllen; und (f) die im Schiedsverfahren obsiegende Partei ist berechtigt, ihre angemessenen Anwaltsgebühren und die im Zusammenhang mit dem Schiedsverfahren entstandenen Kosten von der unterliegenden Partei ersetzt zu bekommen. Die Vorschriften zum internationalen Privatrecht sowie die Vorschriften des Übereinkommens der Vereinten Nationen über Verträge über den internationalen Warenkauf (CISG) finden keine Anwendung. Keine der in diesem Rahmenvertrag getroffenen Regelungen soll die Parteien daran hindern, eine einstweilige Verfügung auf Unterlassen bei einem für die Parteien und den Gegenstand des Rechtsstreits zuständigen Gerichts zu erwirken.
10. ERWERB DURCH DIE US-BUNDESREGIERUNG. Diese Ziffer gilt für sämtliche dieser Vereinbarung unterliegende Ankäufe des kommerziellen Produkts durch oder im Namen der US-Bundesregierung oder durch jeglichen Hauptauftragnehmer oder Unterauftragnehmer (auf jeglicher Ebene) unter jeglichem Vertrag, Zuschuss, Kooperationsvertrag oder anderen Aktivität mit der US-Bundesregierung. Für den Fall, dass die Produkte an die US-Bundesregierung geliefert wird, erkennt die US-Bundesregierung hiermit an, dass die Produkte als "kommerzieller Gegenstand" gemäß den entsprechenden bundesstaatlichen Ankaufsvorschriften in Bezug auf diesen Erwerb eingestuft werden. Die Bestimmungen und Bedingungen dieser Vereinbarung gelten für die Benutzung und Offenlegung des Produkts durch die US-Regierung und treten an die Stelle jeglicher ihnen widersprechenden vertraglichen Bestimmungen und Bedingungen. Die folgende zusätzliche Aussage gilt nur für der Regelung DFARS Subpart 227.4 (Oktober 1988) unterliegende Ankäufe: "Eingeschränkte Rechte - Nutzung, Vervielfältigung und Offenlegung durch die US-Regierung unterliegt den im Unterabschnitt (c)(1)(ii) der Klausel Rechte in Technischen Daten und Computersoftware, DFARS 252.227-7013 (Okt. 1988), dargelegten Einschränkungen."
11. VERSCHIEDENES. Ein einmaliger Verzicht im Hinblick auf die Geltendmachung eines Anspruches wegen einer Vertragsverletzung kann nicht generell als Verzicht auf die Geltendmachung von Ansprüchen wegen dieser oder anderer Vertragsverletzungen ausgelegt werden. Sollten einzelne Regelungen dieses Vertrages sich als rechtsunwirksam oder nicht durchführbar erweisen, so bleibt die Wirksamkeit der übrigen Regelungen hiervon unberührt. Die Vertragspartner bestätigen hiermit, dass sie diesen Rahmenvertrag gelesen haben und stimmen darin überein, dass dieser Rahmenvertrag die vollständige und abschließende Vereinbarung zwischen den Vertragspartnern darstellt. Mit Abschluss dieses Rahmenvertrages werden sämtliche bisherigen mündlichen oder schriftlichen Vereinbarungen, die von den Vertragspartnern hinsichtlich des Vertragsgegenstandes dieses Rahmenvertrages getroffen wurden, durch die Bestimmungen dieses Rahmenvertrages ersetzt. Mit Ausnahme der in diesem Rahmenvertrag getroffenen Vereinbarung bestehen zwischen den Parteien keine Repräsentanzen, Versprechen, Garantien, Zusicherungen oder Verpflichtungen. Änderungen und Ergänzungen der Bestimmungen dieses Vertrages bedürfen der Schriftform und müssen von beiden Parteien eigenhändig unterzeichnet werden. Dies gilt auch für die Aufhebung des Schriftformerfordernisses. BMC Produkte enthalten möglicherweise Software Dritter, welche dem Kunden als Bestandteil des Produktes geliefert wird und die nicht aus dem Produkt herausgelöst werden und nur zusammen mit dem Produkt benutzt werden darf; die Dokumentation kann für diese Software Dritter zusätzliche Bedingungen enthalten. Etwaige zusätzliche Dokumente, welche der Kunde einem Vertreter von BMC als Voraussetzung für das Betreten eines Kundenstandorts zur Unterschrift vorgelegt, unterliegen den Bestimmungen dieses Rahmenvertrages und jegliche in einem solchen Dokument enthaltene zusätzlichen Bedingungen oder im Widerspruch zu den in diesem Rahmenvertrag getroffenen Vereinbarungen sind unwirksam.
Falls Sie als bevollmächtigter Vertreter des Nutzers sich damit einverstanden erklären, die vorangehenden Bestimmungen der Lizenz in Ihrem Namen sowie im Namen des Nutzers anzunehmen, und bestätigen, dass Sie und der Nutzer sämtlichen oben dargelegten Bestimmungen und Bedingungen entsprechen und weiterhin entsprechen werden, klicken Sie auf "Ich stimme zu".
Effective April 9th 2020 to April 9th 2020
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PROBELIZENZ
DIESE PROBELIZENZ (DIE "VEREINBARUNG") GILT ALS JURISTISCHE VEREINBARUNG ZWISCHEN DEM NUTZER DES IN DEM EXPORTBESTÄTIGUNGSTEIL DER BMC SUPPORT-WEBSEITE (AUF WWW.BMC.COM ODER AUF JEGLICHER WEBSEITE EINES NACHFOLGERS) GENANNTEN HERUNTER GELADENEN PRODUKTS, ZU DEM DIESE VEREINBARUNG GEHÖRT, (DER "NUTZER") UND BMC SOFTWARE, INC. ODER DEREN LOKALEM VERBUNDENEN VERTRIEBSUNTERNEHMEN ("BMC"). INDEM SIE AUF "ICH STIMME ZU" KLICKEN, SICHERN SIE ZU UND GARANTIEREN, DASS SIE DIE BESTIMMUNGEN DIESER VEREINBARUNG GELESEN UND VERSTANDEN HABEN, DASS SIE ERMÄCHTIGT SIND, DEN NUTZER AN DIESE VEREINBARUNG ZU BINDEN UND DASS DER NUTZER SICH DAMIT EINVERSTANDEN ERKLÄRT, AN DIE BESTIMMUNGEN UND BEDINGUNGEN DIESER VEREINBARUNG GEBUNDEN ZU SEIN. BMC ERKLÄRT SICH NUR DAMIT EINVERSTANDEN, IHNEN DAS HERUNTERLADEN DER PRODUKTE ZU GESTATTEN, WENN UND NACHDEM SIE UND DER NUTZER SÄMTLICHE DIESER BESTIMMUNGEN ANGENOMMEN HABEN, INDEM SIE AUF "ICH STIMME ZU" GEKLICKT HABEN.
BITTE LESEN SIE DIESE VEREINBARUNG: FALLS SIE BESTIMMUNGEN DIESER VEREINBARUNG NICHT VERSTEHEN ODER NICHT DAMIT ÜBEREINSTIMMEN, KLICKEN SIE NICHT AUF "ICH STIMME ZU".
- DEFINIERTE BEGRIFFE. "Vertrauliche Informationen" sind alle geschützten und vertraulichen Informationen, die die mitteilende Partei der empfangenden Partei offenlegt, und umfasst unter anderem folgende Informationen: (a) finanzielle Informationen, Betriebs- und Geschäftsgeheimnisse, technisches Know-how, Betriebsmethoden, Produktdaten, Entwicklungs- und Forschungsergebnisse, Erfindungen, Quellcodes, Marktanalysen, Sicherheitsmaßnahmen, technische Spezifikationen, interne Richtlinien, Kunden- und Mitarbeiterdaten und Warenbezugsquellen sowie Dokumente und Daten, die den Parteien im Rahmen ihrer Zusammenarbeit bekannt werden; (b) für BMC und seine Lizenzgeber die Software Produkte und jede Software Dritter die mit den Produkten zur Verfügung gestellt wird; und (c) die Bedingungen dieses Vertrags über eine Probelizenz inklusive Preisinformationen. Vertrauliche Informationen beinhalten keine (a) Informationen, die der empfangenden Partei vor Weitergabe durch die mitteilende Partei rechtmäßig und ohne Verstoß gegen eine Geheimhaltungspflicht bekannt waren oder außerhalb der Zusammenarbeit bekannt werden; (b) Informationen, die ohne Verschulden der empfangenden Partei der Öffentlichkeit zugänglich sind oder öffentlich zugänglich werden; (c) Informationen, die der empfangenden Partei rechtmäßig und ohne Verletzung einer Geheimhaltungspflicht von einer Drittpartei mitgeteilt werden; oder (d) Informationen, die unabhängig und selbstständig von oder für die empfangende Partei entwickelt wurden bzw. werden. ("Produkte") bezeichnet Software oder Hardwareprodukte, die dazugehörigen Dokumentationen und andere technische Informationen, die BMC gehören oder von BMC vertrieben werden und auf die von der BMC EPD-Webseite (www.bmc.com/ oder jegliche Webseite eines Nachfolgers) aus zugegriffen werden kann, für die dem Nutzer gemäß dieser Vereinbarung eine Lizenz gewährt wird. ("Probezeit") in Bezug auf ein Produkt bezeichnet den Zeitraum, der mit dem Datum, an dem Sie ein solches Produkt herunterladen, beginnt und dem jeweils früheren Zeitpunkt der folgenden endet: (a) dreißig Kalendertage nach vorgenanntem Datum oder (b) nach Ablauf der im produktspezifischen Lizenzschlüssel festgelegten Anzahl Kalendertagen.
- PROBELIZENZ. BMC gewährt dem Nutzer eine nicht-exklusive, nicht-übertragbare, nicht-abtretbare zeitlich beschränkte Lizenz zur Nutzung jedes Produkts auf einem einzigen Computer während der Probezeit und zwar ausschließlich zur internen Bewertung um zu entscheiden, ob der Nutzer eine Lizenz zu dem Produkt entgeltlich erwerben und/oder lizenzieren möchte, und nicht für Entwicklungs-, Produktions-, Datenbankmanagement- oder gewerbliche Zwecke sowie unter Ausschluss einer Nutzung mit produktiven Daten. Der Nutzer muss eine separate Vereinbarung eingehen, um Rechte für den produktiven Betrieb und technischen Support für ein Produkt zu erhalten.
- EIGENTUMSRECHTE UND GEHEIMHALTUNGSPFLICHT. (a) Sämtliche Rechte, Rechtstitel und Vorteile an den Produkten sowie sämtliche damit zusammenhängende geistige und anderen Eigentumsrechte liegen bei BMC, respektive seinen verbundenen Unternehmen und/oder Lizenznehmern. Die Produkte und jegliche mit dem Produkt mitgelieferte Drittparteiensoftware stehen unter dem Schutz geltender Urheberschutz-, Geschäftsgeheimnis-, gewerblicher und anderer geistiger Eigentumsrechte. Nutzern ist es untersagt jegliche Produktidentifikationen, Markenzeichen oder andere Hinweise von den Produkten zu entfernen. BMC behält sich jegliche dem Nutzer nicht ausdrücklich gestatteten Rechte vor. Die Parteien stimmen überein, dass die Produkte vertrauliche Informationen von BMC darstellen. (b) Die empfangende Partei offenbart die Vertraulichen Informationen der mitteilenden Partei nicht gegenüber Drittparteien oder verwendet die Vertraulichen Informationen in Verletzung dieser Vereinbarung. Um die unbefugte Nutzung oder Offenlegung von Vertraulichen Informationen zu verhindern, hat die empfangende Partei (i) die Vertraulichen Informationen der mitteilenden Partei gleichermaßen sorgfältig zu verwenden und zu schützen, die die empfangende Partei verwendet, um ihre eigenen Vertraulichen Informationen zu schützen. (ii) wird die empfangende Partei einer Drittpartei die Vertraulichen Informationen weder indirekt noch direkt offenbaren, kopieren, vertreiben, neu veröffentlichen noch einer Drittpartei Zugang zu den Vertraulichen Informationen der mitteilenden Partei gewähren. Ungeachtet dessen wird die empfangende Partei die Vertraulichen Informationen der mitteilenden Partei gegenüber Angestellten oder Beauftragten der empfangenden Partei nur offen legen, wenn ihnen die Vertraulichen Informationen zur Erfüllung ihrer Arbeit bekannt sein sie müssen; vorausgesetzt die Angestellten oder Beauftragten sind gleichermaßen verpflichtet, solche Informationen nicht offen zu legen, und zwar gemäß rechtlicher Pflichten, die mindestens (keinesfalls weniger schützend) den in dieser Vereinbarung dargelegten entsprechen (c) Meldepflicht. Wird der empfangenden Partei eine unbefugte Nutzung oder Offenlegung der Vertraulichen Informationen der mitteilenden Partei bekannt, so wird die empfangende Partei die mitteilende Partei umgehend über alle Tatsachen, die ihr über eine unbefugte Nutzung oder Offenlegung bekannt sind, unterrichten. Wird darüber hinaus die empfangende Partei, ihre Mitarbeiter oder Vertreter aufgrund gesetzlicher Bestimmungen oder Verfügungen verpflichtet Vertrauliche Informationen der mitteilenden Partei bekannt zu geben, wird sie die Vertraulichen Informationen der mitteilenden Partei nicht offenlegen, ohne ihr vorab schriftlich eine wirtschaftlich vernünftige Mitteilung zu geben, um der mitteilenden Partei die Möglichkeit zu geben eine Schutzanordnung oder einen anderen geeigneten Rechtsbehelf einzulegen oder den Verzicht auf Einhaltung dieser Bestimmung zu erklären. In jedem Fall wird der die empfangende Partei kommerziell angemessene Anstrengungen unternehmen, um die Vertraulichkeit der Informationen der mitteilenden Partei zu wahren. Dies schließt, ohne Einschränkung, die Zusammenarbeit mit der mitteilenden Partei ein, um eine angemessene Schutzanordnung oder eine andere zuverlässige Sicherheit zu erhalten, dass die Vertraulichen Informationen vertraulich behandelt werden.
- NUTZUNGSBESCHRÄNKUNGEN. Dem Nutzer wird nicht gestattet: (a) jegliche Identifizierungszeichen, Eigentums-, Marken-, Patenthinweise Urheberschutzvermerke, andere Vermerke oder Eigentumsbeschränkungen von den Produkten zu entfernen, (b) jegliches Produkt oder Teile eines Produktes zu kopieren ohne die dazugehörigen Identifikationsmerkmale zu reproduzieren, (c) jegliches Dekompilieren, Disassemblieren oder Reverse Engineering zu veranlassen oder zu erlauben bzw. auf andere Weise zu versuchen, den Quellencode eines Produkts vom ausführbaren Programmcode abzuleiten, außer insofern ausdrücklich von den maßgeblichen Gesetzesvorschriften oder Staatsverträgen trotz dieser Beschränkung gestattet; (d) die Produkte zu vertreiben, zu mieten oder zu vermieten, unterzulizenzieren, sie auf andere Weise einer Drittpartei zur Verfügung zu stellen, (e).die Ergebnisse jeglicher Benchmark-Tests jeglichen Produkts jeglicher Drittpartei preiszugeben ohne zuerst BMCs schriftliche Genehmigung einzuholen; (f) den Lizenzierungsmechanismus innerhalb des Produkts zu deaktivieren oder zu umgehen; oder (g) jegliche andere Nutzungsbeschränkung, die in der Dokumentation enthalten ist, zu verletzen.
- GEWAEHRLEISTUNGSAUSSCHLUSS UND HAFTBARKEITSBESCHRÄNKUNG. DIE PRODUKTE WERDEN OHNE GEWÄHRLEISTUNG AUSSCHLIESSLICH ZU BEWERTUNGSZWECKEN ZUR VERFÜGUNG GESTELLT, UND ZWAR OHNE JEGLICHE GARANTIE, EINSCHLIESSLICH, OHNE BESCHRÄNKUNG, JEGLICHER IMPLIZIERTER GARANTIE ODER GARANTIE AUF TAUGLICHKEIT FÜR BESTIMMTE ZWECKE ODER GEBRAUCHSTAUGLICHKEIT, GARANTIE AUF NICHT-VERLETZUNG VON IMMATERIALGÜTERRECHTEN ODER JEGLICHER ANDEREN GARANTIE, OB AUSDRÜCKLICH ODER IMPLIZIT. WEDER BMC NOCH SEINE VERBUNDENEN UNTERNEHMEN, ZULIEFERER ODER LIZENZNEHMER SIND HAFTBAR FÜR JEGLICHE INDIREKTEN, NEBEN-, SONDER- ODER FOLGESCHÄDEN ODER BUSSZAHLUNGEN, NOCH FÜR JEGLICHE GELDEINBUSSEN, EINKOMMENS-, DATEN- ODER DATENNUTZUNGSVERLUSTE BASIEREND AUF URSACHEN, DIE SICH AUS DER NUTZUNG DES PRODUKTS ODER DIESER VEREINBARUNG ERGEBEN ODER IN JEGLICHER WEISE DAMIT IN VERBINDUNG STEHEN. SICH AUS DER NUTZUNG DES PRODUKTS ODER DIESER VEREINBARUNG ERGEBENDE HAFTBARKEIT FÜR SCHADENERSATZ DURCH BMC, SEINE VERBUNDENEN UNTERNEHMEN UND LIZENZNEHMER, OB AUS VERTRAG ODER UNERLAUBTER HANDLUNG, IST AUF DEN JEWEILS HÖHEREN DER FOLGENDEN BETRÄGE BESCHRÄNKT: DEN VOM NUTZER FÜR DIE PRODUKTLIZENZ BEZAHLTEN BETRAG ODER $500.00. IN DEN IN PARAGRAPH 9 (F) UNTEN AUFGELISTETEN LÄNDERN GILT DIE IN DIESEM PARAGRAPH BESCHRIEBENE HAFTBARKEITSBESCHRÄNKUNG NICHT, FALLS UND INSOFERN DIESER SCHADEN VORSÄTZLICH ODER DURCH GROBE FAHRLÄSSIGKEIT VON EINER DER BEIDEN PARTEIEN VERURSACHT WURDE.
- KÜNDIGUNG. Beide Parteien können diese Vereinbarung schriftlich mit einer Frist von zwei Wochen kündigen. Falls der Nutzer keine Lizenz zur produktiven Nutzung des Produkts erworben hat, muss der Nutzer nach Kündigung dieser Vereinbarung bzw. nach Ablauf der Probezeit (a) die Nutzung des Produkts einstellen und (b) BMC schriftlich bestätigen, dass der Nutzer die Produkte und sämtliche Kopien der Produkte deinstalliert und zerstört bzw. an BMC zurückgegeben hat. Diese Anforderung gilt für Kopien in sämtlicher Form, ob teilweise oder komplett, auf sämtlichen Arten von Medien und Computerspeichern und unabhängig davon, ob die Kopien als Teil anderen Materials existieren oder nicht. Diese Vereinbarung verpflichtet BMC in keiner Weise dazu, dem Nutzer jegliche Hardware zu erwerben oder Produkte zu lizenzieren noch verpflichtet sie den Nutzer dazu, jegliche Lizenzen zu den Produkten von BMC zu erwerben. Ungeachtet anders lautender Bestimmungen in Ziffer 6, wenn Hardware Teil eines Produkts ist, muss der Nutzer die Hardware nach Ablauf der Probezeit entweder erwerben oder sie BMC originalverpackt innerhalb von fünf Tagen zurückgeben.
- DATENSCHUTZ. BMC und der Kunde stimmen zu, dass die Auftragsverarbeitungsvereinbarung, die unter https://www.bmc.com/content/dam/bmc/corporate/bmcdpa.pdf eingesehen werden kann, auf diesen Produktbestellschein Anwendung findet, es sei denn, BMC hat bereits eine unterzeichnete Auftragsverarbeitungsvereinbarung mit dem Kunden für solche BMC Angebote abgeschlossen. In diesem Fall findet diese unterschriebene Version auf diesen Produktbestellschein Anwendung.
- EXPORTGESETZE. Der Nutzer bestätigt und stellt sich, dass: a) er die Vorschriften der U.S. Export Administration („United States Export Administration Regulations“) und andere Exportvorschriften der U.S.A. einhalten wird; b) Staatsangehörige eines gesperrten Landes (derzeit Iran, Kuba, Nordkorea, Sudan und Syrien) die Produkte nicht nutzen oder darauf zugreifen werden; c) ihm der Bezug von Produkten nicht gemäss der in a) genannten Vorschriften verboten ist; d) er die Produkte nicht für Personen erwirbt, welche gemäss der in a) genannten Vorschriften gesperrt sind; e) er die Produkte nicht entgegen der in a) genannten Vorschriften nutzen wird; und f) er die Produkte nicht für verbotenen Zwecke, insbesondere auch nicht zu Waffenzwecken (Kernwaffen, Raketentechnik oder chemisch/biologischen Waffen), nutzen wird. In Bezug auf Produkte, die aus Irland exportiert werden, begründet die Verordnung des Rates (EG) Nr. 428/2009 eine Gemeinschaftsregelung für die Kontrolle der Ausfuhr von Gütern und Technologien mit doppeltem Verwendungszweck. Die Parteien vereinbaren, dass die Produkte nur für zivile Zwecke genutzt werden dürfen. Aus diesem Grund stimmt der Kunde zu, dass er sowohl die U.S. als auch diese E.U. Vorschriften einhalten wird und er die Produkte nicht entgegen dieser Vorschriften und nicht ohne eine entsprechende, ordnungsgemässe Genehmigung exportieren wird. Bei Nichteinhaltung der in dieser Ziffer aufgeführten Bestimmungen verliert der Kunde alle seine Rechte an den Produkten.
- ANWENDBARES RECHT UND GERICHTSSTAND. Eine Partei wird der anderen Partei jede Streitigkeit, oder Forderung, die sich aus oder im Zusammenhang mit dieser Vereinbarung oder der Bildung, Auslegung, Verletzung, Beendigung oder Gültigkeit dieser ergibt ("Rechtsstreitigkeit"), schriftlich mitteilen. Die Parteien verpflichten sich in gutem Glauben Verhandlungen zur Beilegung der Rechtsstreitigkeit zu führen. Nur wenn die Parteien die Rechtstreitigkeit innerhalb von 15 Tagen nach der Absendung der schriftlichen Bekanntmachung der Rechtsstreitigkeit nicht lösen können, kann je nach Sitz der Parteien wie folgt eine Klage eingereicht werden oder ein oder einem verbindlichen Schiedsverfahren eingeleitet werden: (i) Sind beide Parteien dieser Vereinbarung Körperschaften, die nach dem Recht eines Staates in den Vereinigten Staaten gegründet worden sind, so findet das Verfahren zur Streitbeilegung entweder in einem Bundesstaat der Vereinigten Staaten oder Bundesgericht in Houston, Texas, und unterliegt dem Recht des Staates Texas. Die Parteien unterwerfen sich der ausschließlichen Zuständigkeit der Gerichte in Houston, Texas, und verzichten auf alle Verteidigungen, die auf dem Forum non conveniens beruhen. (ii) Befindet sich der Sitz der Parteien in Europa, dem Mittleren Osten oder Afrika, findet das Schiedsverfahren in Amsterdam, Niederlande statt und unterliegt der aktuellsten Fassung der Regelungen der Internationalen Handelskammer sowie des materiellen Rechts der Niederlande. (iii) Befindet sich der Sitz der Parteien in Asien, findet das Schiedsverfahren in Singapore statt und unterliegt der aktuellsten Fassung der Regelungen des „Singapore International Arbitration Centre“ sowie des materiellen Rechts von Singapore. (iv) In allen anderen Fällen findet das Schiedsverfahren in New York City, New York statt und unterliegt der aktuellsten Fassung der Regelungen der „American Arbitration Association“ sowie des materiellen Rechts Bundesstaates Texas. Für alle vorstehenden Schiedsverfahren gilt: (a) das Schiedsverfahren ist in englischer Sprache durchzuführen; (b) das Schiedsgericht bestimmt die Anzahl der Schiedsrichter, aber jede Streitfrage, bei der der Streitwert größer als $ 10 Millionen USD ist, wird von drei Schiedsrichtern durchgeführt, wobei jede Partei das Recht hat, einen Schiedsrichter auszuwählen; (c) die Kosten eines solchen Schiedsverfahrens werden bis zum Schiedsspruch der Schiedsrichter gleichmäßig getragen; (d) der erteilte Schiedsspruch ist für die Parteien rechtlich bindend, darf nicht einem staatlichen Gericht nicht zwecks Überprüfung des Schiedsspruchs weitergeleitet werden und kann von jedem Gericht, das für die Vertragsparteien zuständig ist, vollstreckbar erklärt werden; (e) das Schiedsverfahren, der Schiedsspruch und die Schriftsätze sind vertraulich, es sei denn, die Offenlegung bestimmter Informationen ist erforderlich, um den Schiedsspruch umzusetzen oder die jeweils staatlichen Anforderungen an das Wertpapierrecht zu erfüllen; und (f) die im Schiedsverfahren obsiegende Partei ist berechtigt, ihre angemessenen Anwaltsgebühren und die im Zusammenhang mit dem Schiedsverfahren entstandenen Kosten von der unterliegenden Partei ersetzt zu bekommen. Die Vorschriften zum internationalen Privatrecht sowie die Vorschriften des Übereinkommens der Vereinten Nationen über Verträge über den internationalen Warenkauf (CISG) finden keine Anwendung. Keine der in diesem Rahmenvertrag getroffenen Regelungen soll die Parteien daran hindern, eine einstweilige Verfügung auf Unterlassen bei einem für die Parteien und den Gegenstand des Rechtsstreits zuständigen Gerichts zu erwirken.
- ERWERB DURCH DIE US-BUNDESREGIERUNG. Diese Ziffer gilt für sämtliche dieser Vereinbarung unterliegende Ankäufe des kommerziellen Produkts durch oder im Namen der US-Bundesregierung oder durch jeglichen Hauptauftragnehmer oder Unterauftragnehmer (auf jeglicher Ebene) unter jeglichem Vertrag, Zuschuss, Kooperationsvertrag oder anderen Aktivität mit der US-Bundesregierung. Für den Fall, dass die Produkte an die US-Bundesregierung geliefert wird, erkennt die US-Bundesregierung hiermit an, dass die Produkte als "kommerzieller Gegenstand" gemäß den entsprechenden bundesstaatlichen Ankaufsvorschriften in Bezug auf diesen Erwerb eingestuft werden. Die Bestimmungen und Bedingungen dieser Vereinbarung gelten für die Benutzung und Offenlegung des Produkts durch die US-Regierung und treten an die Stelle jeglicher ihnen widersprechenden vertraglichen Bestimmungen und Bedingungen. Die folgende zusätzliche Aussage gilt nur für der Regelung DFARS Subpart 227.4 (Oktober 1988) unterliegende Ankäufe: "Eingeschränkte Rechte - Nutzung, Vervielfältigung und Offenlegung durch die US-Regierung unterliegt den im Unterabschnitt (c)(1)(ii) der Klausel Rechte in Technischen Daten und Computersoftware, DFARS 252.227-7013 (Okt. 1988), dargelegten Einschränkungen."
- VERSCHIEDENES. Ein einmaliger Verzicht im Hinblick auf die Geltendmachung eines Anspruches wegen einer Vertragsverletzung kann nicht generell als Verzicht auf die Geltendmachung von Ansprüchen wegen dieser oder anderer Vertragsverletzungen ausgelegt werden. Sollten einzelne Regelungen dieses Vertrages sich als rechtsunwirksam oder nicht durchführbar erweisen, so bleibt die Wirksamkeit der übrigen Regelungen hiervon unberührt. Die Vertragspartner bestätigen hiermit, dass sie diesen Rahmenvertrag gelesen haben und stimmen darin überein, dass dieser Rahmenvertrag die vollständige und abschließende Vereinbarung zwischen den Vertragspartnern darstellt. Mit Abschluss dieses Rahmenvertrages werden sämtliche bisherigen mündlichen oder schriftlichen Vereinbarungen, die von den Vertragspartnern hinsichtlich des Vertragsgegenstandes dieses Rahmenvertrages getroffen wurden, durch die Bestimmungen dieses Rahmenvertrages ersetzt. Mit Ausnahme der in diesem Rahmenvertrag getroffenen Vereinbarung bestehen zwischen den Parteien keine Repräsentanzen, Versprechen, Garantien, Zusicherungen oder Verpflichtungen. Änderungen und Ergänzungen der Bestimmungen dieses Vertrages bedürfen der Schriftform und müssen von beiden Parteien eigenhändig unterzeichnet werden. Dies gilt auch für die Aufhebung des Schriftformerfordernisses. BMC Produkte enthalten möglicherweise Software Dritter, welche dem Kunden als Bestandteil des Produktes geliefert wird und die nicht aus dem Produkt herausgelöst werden und nur zusammen mit dem Produkt benutzt werden darf; die Dokumentation kann für diese Software Dritter zusätzliche Bedingungen enthalten. Etwaige zusätzliche Dokumente, welche der Kunde einem Vertreter von BMC als Voraussetzung für das Betreten eines Kundenstandorts zur Unterschrift vorgelegt, unterliegen den Bestimmungen dieses Rahmenvertrages und jegliche in einem solchen Dokument enthaltene zusätzlichen Bedingungen oder im Widerspruch zu den in diesem Rahmenvertrag getroffenen Vereinbarungen sind unwirksam.
Falls Sie als bevollmächtigter Vertreter des Nutzers sich damit einverstanden erklären, die vorangehenden Bestimmungen der Lizenz in Ihrem Namen sowie im Namen des Nutzers anzunehmen, und bestätigen, dass Sie und der Nutzer sämtlichen oben dargelegten Bestimmungen und Bedingungen entsprechen und weiterhin entsprechen werden, klicken Sie auf "Ich stimme zu".
Effective April 9th 2020 to April 9th 2020
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DIESE PROBELIZENZ (DIE "VEREINBARUNG") GILT ALS JURISTISCHE VEREINBARUNG ZWISCHEN DEM NUTZER DES IN DEM EXPORTBESTÄTIGUNGSTEIL DER BMC SUPPORT-WEBSEITE (AUF WWW.BMC.COM ODER AUF JEGLICHER WEBSEITE EINES NACHFOLGERS) GENANNTEN HERUNTER GELADENEN PRODUKTS, ZU DEM DIESE VEREINBARUNG GEHÖRT, (DER "NUTZER") UND BMC SOFTWARE DISTRIBUTION, INC. ODER DEREN LOKALEM VERBUNDENEN VERTRIEBSUNTERNEHMEN ("BMC"). INDEM SIE AUF "ICH STIMME ZU" KLICKEN, SICHERN SIE ZU UND GARANTIEREN, DASS SIE DIE BESTIMMUNGEN DIESER VEREINBARUNG GELESEN UND VERSTANDEN HABEN, DASS SIE ERMÄCHTIGT SIND, DEN NUTZER AN DIESE VEREINBARUNG ZU BINDEN UND DASS DER NUTZER SICH DAMIT EINVERSTANDEN ERKLÄRT, AN DIE BESTIMMUNGEN UND BEDINGUNGEN DIESER VEREINBARUNG GEBUNDEN ZU SEIN. BMC ERKLÄRT SICH DAMIT EINVERSTANDEN, IHNEN DAS HERUNTERLADEN DER PRODUKTE ZU GESTATTEN, DOCH NUR WENN UND NACHDEM SIE UND DER NUTZER SÄMTLICHE DIESER BESTIMMUNGEN ANGENOMMEN HABEN, INDEM SIE AUF "ICH STIMME ZU" GEKLICKT HABEN. |
BITTE LESEN SIE DIESE VEREINBARUNG: FALLS SIE JEGLICHE DER BESTIMMUNGEN DIESER VEREINBARUNG NICHT VERSTEHEN ODER NICHT DAMIT ÜBEREINSTIMMEN, KLICKEN SIE NICHT AUF "ICH STIMME ZU". |
(1) DEFINIERTE BEGRIFFE. "Vertrauliche Informationen" bezeichnet sämtliche Informationen, bei denen es sich um geschützte und/oder vertrauliche Informationen der mitteilenden Partei handelt, und schließt folgende Informationen nicht mit ein: (a) Informationen, die der empfangenen Partei vor Weitergabe durch die mitteilende Partei rechtmäßig und ohne Geheimhaltungspflicht bekannt waren; (b) Informationen, die ohne Zutun der empfangenden Partei der Öffentlichkeit bekannt sind oder werden; (c) Informationen, die der empfangenden Partei rechtmäßig und ohne Verletzung einer Geheimhaltungspflicht von einer Drittpartei mitgeteilt werden; oder (d) Informationen, die unabhängig von oder für die empfangende Partei entwickelt werden. "Produkte" bezeichnet Softwareprodukte, die dazugehörigen Dokumentationen und andere technische Informationen, die BMC gehören oder von BMC vertrieben werden und auf die von der BMC EPD-Webseite (www.bmc.com/ oder jegliche Webseite eines Nachfolgers) aus zugegriffen werden kann, für die dem Nutzer gemäß dieser Vereinbarung eine Lizenz gewährt wird. "Probezeit" in Bezug auf ein Produkt bezeichnet den Zeitraum, der mit dem Datum, an dem Sie ein solches Produkt herunter laden, beginnt und dem jeweils früheren Zeitpunkt der folgenden endet: (a) dreißig Kalendertage nach vorgenanntem Datum oder (b) nach Ablauf der im produktspezifischen Lizenzschlüssel festgelegten Anzahl Kalendertagen. |
(2) PROBELIZENZ. BMC gewährt dem Nutzer eine nicht-exklusive, nicht-übertragbare, nicht-abtretbare zeitlich beschränkte Lizenz zur Nutzung jedes Produkts auf einem einzigen Computer während der Probezeit und zwar ausschließlich zur internen Bewertung um zu entscheiden, ob der Nutzer eine Lizenz zu dem Produkt entgeltlich erwerben möchte, und nicht für Entwicklungs-, Produktions-, Datenbankmanagement- oder gewerbliche Zwecke sowie unter Ausschluss einer Nutzung mit produktiven Daten. Der Nutzer muss eine separate Vereinbarung eingehen, um Rechte für den produktiven Betrieb und technischen Support für ein Produkt zu erhalten. Insofern ein Produkt den Softwarecode einer Drittpartei mit einschließt, gilt das folgende: (a) Falls ein solcher Softwarecode einer Drittpartei zur Nutzung mit einem Produkt bereitgestellt wird, darf er ausschließlich mit dem Produkt genutzt werden; und (b) falls die Dokumentation Bestimmungen enthält, die sich auf einen solchen Softwarecode einer Drittpartei beziehen, gelten diese Bestimmungen für den Softwarecode der Drittpartei anstelle der Bestimmungen dieser Vereinbarung. |
(3) NUTZUNGSBESCHRÄNKUNGEN. Es ist dem Nutzer nicht gestattet: (a) jegliche Identifizierungszeichen, Urheberschutzvermerke, andere Vermerke oder Eigentumsbeschränkungen von den Produkten zu entfernen, (b) jegliches Dekompilieren, Disassemblieren oder Reverse Engineering zu veranlassen oder zu erlauben bzw. auf andere Weise zu versuchen, den Quellencode eines Produkts vom ausführbaren Programmcode abzuleiten, außer insofern ausdrücklich von den maßgeblichen Gesetzesvorschriften oder Staatsverträgen trotz dieser Beschränkung gestattet; (c) die Ergebnisse jeglicher Benchmark-Tests jeglichen Produkts jeglicher Drittpartei preiszugeben ohne zuerst BMCs schriftliche Genehmigung einzuholen; (d) die Produkte auf andere Weise als in dieser Vereinbarung festgelegt zu vervielfältigen, installieren und/oder zu benutzen; oder (e) die Produkte unterzulizenzieren, zu verändern, als Timeshare oder anderweitig zu vermieten, als Serviceunternehmen anzubieten oder sie auf andere Weise an eine Drittpartei zu übertragen oder mit einer solchen zu teilen oder jeglicher Drittpartei Zugriff auf die Produkte bzw. deren Nutzung zu erlauben. Es ist dem Nutzer untersagt, Produkte ohne die vorherige schriftliche Genehmigung von BMC und die notwendigen US-amerikanischen und/oder ausländischen Regierungslizenzen oder Ausnahmegenehmigungen zu exportieren oder reexportieren. |
(4) KÜNDIGUNG. Falls der Nutzer keine Lizenz zur produktiven Nutzung des Produkts erworben hat, muss der Nutzer nach Kündigung dieser Vereinbarung bzw. nach Ablauf der Probezeit (a) die Nutzung des Produkts einstellen und (b) BMC schriftlich bestätigen, dass der Nutzer die Produkte und sämtliche Kopien der Produkte deinstalliert und zerstört bzw. an BMC zurückgegeben hat. Diese Anforderung gilt für Kopien in sämtlicher Form, ob teilweise oder komplett, auf sämtlichen Arten von Medien und Computerspeichern und unabhängig davon, ob die Kopien als Teil anderen Materials existieren oder nicht. Diese Vereinbarung verpflichtet BMC in keiner Weise dazu, dem Nutzer jegliche Produkte zu lizenzieren noch verpflichtet sie den Nutzer dazu, jegliche Lizenzen zu den Produkten von BMC zu erwerben. |
(5) KEINE GARANTIE UND HAFTBARKEITSBESCHRÄNKUNG. DIE PRODUKTE WERDEN OHNE GEWÄHRLEISTUNG AUSSCHLIESSLICH ZU BEWERTUNGSZWECKEN ZUR VERFÜGUNG GESTELLT, UND ZWAR OHNE JEGLICHE GARANTIE, EINSCHLIESSLICH, OHNE BESCHRÄNKUNG, JEGLICHER IMPLIZIERTER GARANTIE ODER GARANTIE AUF TAUGLICHKEIT FÜR BESTIMMTE ZWECKE ODER GEBRAUCHSTAUGLICHKEIT, GARANTIE AUF NICHT-VERLETZUNG VON IMMATERIALGÜTERRECHTEN ODER JEGLICHER ANDEREN GARANTIE, OB AUSDRÜCKLICH ODER IMPLIZIT. WEDER BMC NOCH SEINE VERBUNDENEN UNTERNEHMEN, ZULIEFERER ODER LIZENZNEHMER SIND HAFTBAR FÜR JEGLICHE INDIREKTEN, NEBEN-, SONDER- ODER FOLGESCHÄDEN ODER BUSSZAHLUNGEN, NOCH FÜR JEGLICHE GELDEINBUSSEN, EINKOMMENS-, DATEN- ODER DATENNUTZUNGSVERLUSTE BASIEREND AUF URSACHEN, DIE SICH AUS DER NUTZUNG DES PRODUKTS ODER DIESER VEREINBARUNG ERGEBEN ODER IN JEGLICHER WEISE DAMIT IN VERBINDUNG STEHEN. SICH AUS DER NUTZUNG DES PRODUKTS ODER DIESER VEREINBARUNG ERGEBENDE HAFTBARKEIT FÜR SCHADENERSATZ DURCH BMC, SEINE VERBUNDENEN UNTERNEHMEN UND LIZENZNEHMER, OB AUS VERTRAG ODER UNERLAUBTER HANDLUNG, IST AUF DEN JEWEILS HÖHEREN DER FOLGENDEN BETRÄGE BESCHRÄNKT: DEN VOM NUTZER FÜR DIE PRODUKTLIZENZ BEZAHLTEN BETRAG ODER $500.00. IN DEN IN PARAGRAPH 9 (F) UNTEN AUFGELISTETEN LÄNDERN GILT DIE IN DIESEM PARAGRAPH BESCHRIEBENE HAFTBARKEITSBESCHRÄNKUNG NICHT, FALLS UND INSOFERN DIESER SCHADEN VORSÄTZLICH ODER DURCH GROBE FAHRLÄSSIGKEIT VON EINER DER BEIDEN PARTEIEN VERURSACHT WURDE. |
(6) EIGENTUMSRECHTE UND GEHEIMHALTUNGSPFLICHT. Sämtliche Rechte, Rechtstitel und Vorteile an den Produkten sowie sämtliche damit zusammenhängende geistige und anderen Eigentumsrechte liegen bei BMC, respektive seinen verbundenen Unternehmen und/oder Lizenznehmern. Die Produkte und jegliche mit dem Produkt mitgelieferte Drittparteiensoftware stehen unter dem Schutz geltender Urheberschutz-, Geschäftsgeheimnis-, gewerblicher und anderer geistiger Eigentumsrechte. BMC behält sich jegliche dem Nutzer nicht ausdrücklich gestatteten Rechte vor. Die Parteien stimmen überein, dass die Produkte vertrauliche Informationen von BMC darstellen. Eine empfangende Partei (a) behandelt die Vertraulichen Informationen der anderen Partei vertraulich für fünf (5) Jahre ab (i) dem Datum der Offenlegung oder (ii) der letzten Nutzung des Produkts und (b) wird die Vertraulichen Informationen der anderen Partei nur gegenüber Angestellten oder Beauftragten der empfangenden Partei offen legen, die verpflichtet sind, solche Informationen nicht offen zu legen, und zwar gemäß rechtlicher Pflichten, die den in dieser Vereinbarung dargelegten mindestens entsprechen, und denen diese Informationen zur Erfüllung ihrer Arbeit bekannt sein müssen. Nichts hindert die Parteien daran, die Bestimmungen oder preislichen Vereinbarungen unter dieser Vereinbarung in jedweden gerichtlichen Verfahren offen zu legen, insofern solche Verfahren sich aus dieser Vereinbarung oder in Verbindung mit dieser ergeben, oder im Rahmen zwingender gesetzlicher Regelungen Informationen staatlichen Behörden gegenüber offen zu legen. |
(7) EXPORTGESETZE. Für die Produkte gelten die Exportgesetze und -regelungen der Vereinigten Staaten sowie andere maßgebliche örtliche Exportgesetze und -regelungen. Die Nutzung der Produkte (einschließlich technischer Daten) durch den Nutzer unterliegt sämtlichen solchen Gesetzen und der Nutzer verpflichtet sich, diesen Gesetzen zu entsprechen, einschließlich Regelungen für "vorgesehene Ausfuhr" und "vorgesehene Wiederausfuhr". Der Nutzer stimmt überein, dass keinerlei Produkte, Daten, Informationen, Programme und/oder Materialien entgegen den Bestimmungen dieser Gesetze direkt oder indirekt exportiert oder für jegliche durch diese Gesetze verbotenen Zwecke benutzt werden dürfen, einschließlich der Verbreitung nuklearer, chemischer oder biologischer Waffen oder der Entwicklung von Flugkörpertechnologie. Indem Sie unten auf "Ich stimme zu" klicken, bestätigen Sie außerdem, dass der Nutzer zum jetzigen Zeitpunkt sowie während der Probezeit dem Folgenden entspricht:(a) Der Nutzer ist weder Staatsbürger, Staatsangehöriger oder Einwohner noch befindet er sich unter der Kontrolle der Regierung Kubas, Irans, Sudans, Iraks, Nordkoreas, Syriens oder eines anderen Landes, gegen das die Vereinigten Staaten eine Ausfuhrsperre verhängt hat; und (b) Der Nutzer wird jegliche Produkte nicht durch Herunterladen oder anderweitig direkt oder indirekt an jegliche der oben genannten Länder oder an Staatsbürger, Staatsangehörige oder Einwohner jener Länder exportieren oder reexportieren; und (c) Der Nutzer wird weder auf den Listen des US-Bundesfinanzministeriums von ausdrücklich benannten Staatsangehörigen (Specially Designated Nationals), ausdrücklich benannten Terroristen (Specially Designated Terrorists) oder ausdrücklich benannten Drogenschiebern (Specially Designated Narcotic Traffickers) geführt, noch in dem Verzeichnis über Bestellungsablehnung (Table of Deny Orders) des US-Bundeswirtschaftsministeriums; und (d) Der Nutzer wird jegliches Produkt weder herunterladen noch anderweitig direkt oder indirekt an jegliche auf jeglicher der oben genannten Listen aufgeführten Personen exportieren oder reexportieren; und (e) Der Nutzer wird das Produkt nicht für jegliche in den Vereinigten Staaten oder durch anderes geltendes Recht verbotene Zwecke benutzen noch eine solche Nutzung gestatten, einschließlich, ohne Einschränkung, die Entwicklung, Planung, Herstellung oder Produktion nuklearer, chemischer oder biologischer Massenvernichtungswaffen. |
(8) GESAMTVEREINBARUNG. Diese Vereinbarung stellt die gesamte Vereinbarung der Parteien dar und tritt an die Stelle und ersetzt sämtliche vorhergehenden und zeitgleichen Vereinbarungen und Verhandlungen in Bezug auf die probeweise Nutzung der Produkte durch den Nutzer. Jegliche Abänderung dieser Vereinbarung bedarf der Schriftform und muss die Unterschriften der Parteien tragen. Es ist dem Nutzer nicht gestattet, diese Vereinbarung ohne die vorherige schriftliche Genehmigung von BMC abzutreten oder zu übertragen. Weder das Versäumnis noch die Verzögerung jeglicher Partei in der Ausübung jeglicher Rechte, Befugnisse oder Vorrechte unter dieser Vereinbarung kann als Verzicht auf dieselben ausgelegt werden, noch schließt jegliche einzelne oder teilweise Ausübung derselben jegliche andere oder weitere Ausübung oder die Ausübung jeglicher Rechte, Befugnisse oder Vorrechte unter dieser Vereinbarung aus. Sollte sich jegliche Bestimmung dieser Vereinbarung als ungültig oder undurchführbar erweisen, gelten die verbleibenden Bestimmungen dieser Vereinbarung weiterhin. |
(9) WAHL DER GERICHTSBARKEIT. Falls sich der Nutzer in dem jeweils nachfolgend genannten Land befindet und das Produkt dort nutzt, gilt in (a) Argentinien argentinisches Recht für diese Vereinbarung, ohne dass die dort geltenden Kollisionsnormen zur Anwendung kommen, und gerichtliche Zuständigkeit haben die Gerichte von Buenos Aires, und BMC und der Nutzer stimmen der personenbezogenen Zuständigkeit solcher Gerichte für solche Angelegenheiten zu, (b) Brasilien brasilianisches Recht, ohne dass die dort geltenden Kollisionsnormen zur Anwendung kommen, und gerichtliche Zuständigkeit haben die Gerichte von Sao Paulo, und BMC und der Nutzer stimmen der personenbezogenen Zuständigkeit solcher Gerichte für solche Angelegenheiten zu, (c) den Vereinigten Mexikanischen Staaten das Recht der Vereinigten Mexikanischen Staaten, ohne dass die dort geltenden Kollisionsnormen zur Anwendung kommen, und gerichtliche Zuständigkeit haben die Gerichte von Mexiko-Stadt, und BMC und der Nutzer stimmen der personenbezogenen Zuständigkeit solcher Gerichte für solche Angelegenheiten zu, (d) Japan, Südkorea, der Volksrepublik China, den Sonderverwaltungszonen Hongkong oder Macao, Taiwan, den Philippinen, Indonesien, Malaysia, Burma, Singapur, Brunei, Vietnam, Kambodscha, Laos, Thailand, Indien, Pakistan, Australien, Neuseeland, Papua Neu-Guinea oder jegliche der pazifischen Inselstaaten das sachliche Recht Singapurs, ohne dass die dort geltenden Kollisionsnormen zur Anwendung kommen, und gerichtliche Zuständigkeit haben die Gerichte von Singapur, und BMC und der Nutzer stimmen der personenbezogenen Zuständigkeit solcher Gerichte für solche Angelegenheiten zu, (e) den Vereinigten Staaten, Puerto Rico oder jeglichem anderen US Protektorat, Kanada oder jeglichem Land in Mittel- oder Südamerika, das oben nicht ausdrücklich genannt wird, das Recht des Bundesstaats Texas, ohne dass die dort geltenden Kollisionsnormen zur Anwendung kommen, und gerichtliche Zuständigkeit haben die einzel- und bundesstaatlichen Gerichte in Harris County, Texas, und BMC und der Nutzer stimmen der personenbezogenen Zuständigkeit solcher Gerichte für solche Angelegenheiten zu, und (f) Ländern, die oben nicht ausdrücklich genannt werden, niederländisches Recht, ohne dass die dort geltenden Kollisionsnormen zur Anwendung kommen, und gerichtliche Zuständigkeit haben die Gerichte von Amsterdam, und BMC und der Nutzer stimmen der personenbezogenen Zuständigkeit solcher Gerichte für solche Angelegenheiten zu. |
Die geltenden Rechtswahlnormen der zuständigen Gerichtsbarkeit und das UN-Abkommen zu Verträgen für den internationalen Verkauf von Waren gelten für diese Vereinbarung nicht. |
(10) VERSCHIEDENES. Es ist BMC gestattet, die Nutzung der Produkte durch den Nutzer zu prüfen, und zwar unter Einhaltung einer Ankündigungsfrist von dreißig (30) Kalendertagen. Der Nutzer erklärt sich damit einverstanden, bei einer solchen Prüfung mitzuwirken und angemessene Unterstützung zu leisten sowie Zugang zu Informationen zu gewähren. Der Nutzer ist verpflichtet, innerhalb von dreißig (30) Kalendertagen nach Empfang einer entsprechenden Mitteilung jegliche unbezahlten Gebühren, die in der Prüfung festgestellt wurden, zu bezahlen. |
(11) ERWERB DURCH DIE US-BUNDESREGIERUNG. Dieser Artikel gilt für sämtliche dieser Vereinbarung unterliegende Ankäufe des Produkts durch oder im Namen der US-Bundesregierung oder durch jeglichen Hauptauftragnehmer oder Unterauftragnehmer (auf jeglicher Ebene) unter jeglichem Vertrag, Zuschuss, Kooperationsvertrag oder anderen Aktivität mit der US-Bundesregierung. Durch die Annahme der Lieferung des Produkts, erkennt die US-Regierung hiermit an, dass das Produkt als "kommerziell" gemäß den entsprechenden Ankaufsvorschriften in Bezug auf diesen Erwerb eingestuft wird. Die Bestimmungen und Bedingungen dieser Vereinbarung gelten für die Benutzung und Offenlegung des Produkts durch die US-Regierung und treten an die Stelle jeglicher ihnen widersprechenden vertraglichen Bestimmungen und Bedingungen. Falls die durch diese Vereinbarung gewährte Lizenz die Bedürfnisse der US-Regierung nicht erfüllt oder in jeglicher Hinsicht mit dem Bundesgesetz unvereinbar ist, erklärt sich die US-Regierung damit einverstanden, das Produkt unbenutzt an BMC zurückzusenden. Die folgende zusätzliche Aussage gilt nur für der Regelung DFARS Subpart 227.4 (Oktober 1988) unterliegende Ankäufe: "Eingeschränkte Rechte - Nutzung, Vervielfältigung und Offenlegung durch die US-Regierung unterliegt den im Unterabschnitt (c)(1)(ii) der Klausel Rechte in Technischen Daten und Computersoftware, DFARS 252.227-7013 (Okt. 1988), dargelegten Einschränkungen." |
Falls Sie als bevollmächtigter Vertreter des Nutzers sich damit einverstanden erklären, die vorangehenden Bestimmungen der Lizenz in Ihrem Namen sowie im Namen des Nutzers anzunehmen, und bestätigen, dass Sie und der Nutzer sämtlichen oben dargelegten Bestimmungen und Bedingungen entsprechen und weiterhin entsprechen werden, klicken Sie auf "Ich stimme zu". |
Trial Agreement
Effective April 9th 2020
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CONTRATTO DI PROVA
IL PRESENTE CONTRATO DI PROVA (IL “CONTRATTO”) DIVERRÀ UN CONTRATTO GIURIDICAMENTE VINCOLANTE TRA L’UTENTE DEI PRODOTTI SCARICATI ED INDICATI NELLA SEZIONE “EXPORT VALIDATION” DEL SITO WEB DI SUPPORTO BMC (NEL DOMINIO WWW.BMC.COM) O QUALSIASI ALTRO SITO CHE EVENTUALMENTE LO SOSTITUIRÀ (DI SEGUITO L’“UTENTE”) E BMC SOFTWARE DISTRIBUTION, INC. O LA SOCIETÀ AD ESSA COLLEGATA CONCEDENTE LICENZA A LIVELLO LOCALE (“BMC”). PREMENDO IL PULSANTE "ACCETTO", VOI DICHIARATE E GARANTITE DI AVER LETTO E COMPRESO LE CONDIZIONI DEL PRESENTE CONTRATTO, DI AVERE IL POTERE DI VINCOLARE L’UTENTE AL PRESENTE CONTRATTO, E CHE L’UTENTE ACCETTA DI ESSERE VINCOLATO DAI TERMINI E CONDIZIONI DEL PRESENTE CONTRATTO. BMC ACCETTA DI CONSENTIRVI DI SCARICARE PRODOTTI SOLO SE, E DOPO CHE, VOI E L’UTENTE ABBIATE ACCETTATO TUTTE LE PRESENTI CONDIZIONI PREMENDO IL PULSANTE “ACCETTO”.
VI PREGHIAMO DI LEGGERE IL PRESENTE CONTRATTO: SE NON CAPITE O NON ACCETTATE ALCUNA DELLE CONDIZIONI DEL PRESENTE CONTRATTO, NON PREMETE IL PULSANTE "ACCETTO".
1. DEFINIZIONI. “Informazioni Riservate” indica tutte le informazioni di proprietà o riservate rivelate al destinatario (il “Destinatario”) dal dichiarante (il “Dichiarante”) ed includono, tra l’altro (i) i dati sulla sua situazione finanziaria, il nominativo dei clienti, dei dipendenti dei prodotti e dei servizi nonché il codice del software, i diagrammi di flusso, le tecniche, le specifiche, i piani di marketing e di sviluppo, le strategie, le previsioni; (ii) per quanto riguarda BMC e i suoi licenzianti, il Prodotto e l’eventuale software di terzi fornito con il Prodotto; e (iii) i termini e le condizioni del presente Contratto, ivi comprese, a titolo esemplificativo, le informazioni sul prezzo del Prodotto. Le Informazioni Riservate non includono quelle informazioni per le quali il Destinatario possa dimostrare che: (a) erano in legittimo possesso del Destinatario senza alcun obbligo di riservatezza prima di riceverle dal Dichiarante; (b) siano o siano diventate di dominio pubblico non per colpa del Destinatario; (c) siano state legittimamente ricevute dal Destinatario da terzi senza che vi fosse violazione di un obbligo di riservatezza; oppure (d) siano o siano state sviluppate indipendentemente dal o per il Destinatario. “Prodotti” sono i prodotti software o hardware e la loro relativa documentazione e altre informazioni tecniche possedute o distribuite da BMC a cui si possa avere accesso sul sito web di BMC EPD (www.bmc.com o qualsiasi altro sito web che eventualmente lo sostituirà) e per i quali all’Utente sia concessa una licenza ai sensi del presente Contratto. Il “Periodo di Prova”, in relazione ad un Prodotto, indica il periodo di tempo che inizia alla data in cui Voi scaricate tale Prodotto e termina al primo tra (a) il trentesimo giorno solare successivo, o (b) il numero di giorni solari successivi indicati nella chiave di licenza fornita con tale Prodotto.
2. LICENZA DI PROVA. BMC concede all’Utente una licenza temporanea non esclusiva, non trasferibile, non assegnabile per l’uso di ciascun Prodotto su un singolo computer per un Periodo di Prova, al solo scopo di valutare e determinare internamente se acquistare e/o prendere in licenza tale Prodotto verso un corrispettivo e non a fini di sviluppo, commerciali, di produzione, o di gestione di banca dati, o con i dati di produzione. L’Utente deve stipulare un contratto separato per ottenere i diritti di produzione e supporto tecnico per un Prodotto.
3. DIRITTI DI PROPRIETÀ E RISERVATEZZA. (a) BMC, le sue affiliate o licenzianti mantengono tutti i diritti, la titolarità e la partecipazione nel Prodotto, nel Supporto oltre a tutti i diritti di proprietà intellettuale e d’altro tipo connessi allo stesso. Il Prodotto e l’eventuale software di terzi fornito con il Prodotto sono protetti dalla legislazione applicabile in materia di diritto d’autore, segreto commerciale, industriale o altro tipo di proprietà intellettuale. L’Utente non può rimuovere dal Prodotto alcuna identificazione del prodotto, diritto d’autore, marchio commerciale o altra comunicazione. BMC si riserva tutti i diritti non espressamente concessi all’Utente in base al presente Contratto. (b) Il Destinatario non può divulgare a terzi Informazioni Riservate del Dichiarante né utilizzarle in violazione del presente Contratto. Il Destinatario (i) nel proteggere le Informazioni Riservate del Dichiarante eserciterà lo stesso livello di cura e protezione che utilizza nel proteggere le proprie Informazioni Riservate, e (ii) non rivelerà, copierà distribuirà, trasferirà o pubblicherà o garantirà l’accesso alle Informazioni Riservate a terze parti, neppure indirettamente. Ciononostante, il Destinatario potrà rivelare Informazioni Riservate ai propri dipendenti o suoi agenti che abbiano necessità di accedere a tali Informazioni Riservate, a condizione che essi siano vincolati da obblighi di riservatezza che garantiscano un grado di protezione non minore di quello garantito dal Destinatario. (c) Obbligo di informazione. Se il Destinatario viene a conoscenza dell’uso improprio delle Informazioni Riservate, sarà tenuto a darne notizia al Dichiarante. Laddove al Destinatario o suoi dipendenti o Agenti venisse richiesto (in procedimenti giudiziari di qualsiasi natura) di rivelare Informazioni Riservate, il Destinatario sarà tenuto preventivamente ad informare il Dichiarante e a dare le opportune giustificazioni. In modo tale da consentire al Dichiarante di porre rimedio alla diffusione delle informazioni. In qualsiasi caso il Destinatario farà quanto ragionevolmente possibile per preservare la riservatezza delle Informazioni Riservate e per porre rimedio alla diffusione delle informazioni. Rimane comunque inteso che l’Utente presta il proprio consenso ad essere incluso nella lista dei clienti di BMC.
4. LIMITAZIONI ALL’USO. L’Utente si impegna a non: (a) modificare, cancellare o rimuovere i marchi di proprietà e gli avvisi inerenti il copyright o i brevetti dai Prodotti (l’“Identificazione”); (b) copiare i prodotti o parte di essi senza riportare altresì l’Identificazione su ciascuna copia; (c) disassemblare, applicare tecniche di reverse engineering, de-compilare o altrimenti cercare di risalire al codice sorgente del Prodotto dal suo codice oggetto, salvo nei casi e nei limiti inderogabili previsti dalla normativa applicabile indipendentemente dalla suddetta limitazione; (d) distribuire o fornire il Prodotto a terzi o impiegarlo in servizi di assistenza, outsourcing o elaborazione di dati di terzi, né concederlo a noleggio, leasing o sub licenza; (e) fornire a terzi i risultati di qualsiasi valutazione funzionale o di test di rendimento senza il preventivo consenso scritto di BMC; (f) cercare di disabilitare o bypassare i meccanismi di licenza all’interno del Prodotto; (g) violare eventuali altre limitazioni d’uso indicate nella Documentazione.
5. ASSENZA DI GARANZIA E LIMITAZIONE DI RESPONSABILITÀ. I PRODOTTI SONO FORNITI NELLO STATO DI FATTO IN CUI SI TROVANO A SOLI FINI DIMOSTRATIVI E SENZA ALCUNA GARANZIA, COMPRESA, A MERO TITOLO ESEMPLIFICATIVO, QUALSIASI GARANZIA IMPLICITA DI ADEGUATEZZA PER UN PARTICOLARE SCOPO O PER LA COMMERCIABILITÀ, E MANCATA VIOLAZIONE, O QUALSIASI ALTRA GARANZIA, SIA ESPRESSA CHE IMPLICITA. NESSUNO TRA BMC, I SUOI AFFILIATI, FORNITORI O LICENZIANTI SARÀ RESPONSABILE PER QUALSIASI DANNO INDIRETTO, INCIDENTALE, SPECIALE, PUNITIVO O CONSEQUENZIALE, O PER QUALSIASI LUCRO CESSANTE, PERDITA DI PROVENTI, DATI O USO DI DATI DERIVANTI DA QUALSIASI CAUSA O CONNESSI IN QUALSIASI MODO ALLUSO DEL PRODOTTO O AL PRESENTE CONTRATTO. LA RESPONSABILITÀ DI BMC, DEI SUOI AFFILIATI, FORNITORI E LICENZIANTI PER DANNI RISULTANTI DALLUSO DEL PRODOTTO O DAL PRESENTE CONTRATTO, INDIPENDENTEMENTE DAL FATTO CHE SIA DI NATURA CONTRATTUALE O EXTRA-CONTRATTUALE, SARÀ LIMITATA AL MAGGIORE TRA L’IMPORTO PAGATO DALL’UTENTE PER CONCEDERE IN LICENZA L’USO DI TALE PRODOTTO O USD 500,00. NEI PAESI ELENCATI NELLA SEGUENTE SEZIONE 9, PUNTO (II), LA LIMITAZIONE DI RESPONSABILITÀ NELLA PRESENTE SEZIONE NON SI APPLICHERÀ SE, E NELLA MISURA IN CUI, TALE DANNO SIA STATO CAUSATO DAL DOLO O DALLA COLPA GRAVE DI UNA DELLE PARTI.
6. RISOLUZIONE. Previa notifica scritta con preavviso di almeno due settimane, ciascuna parte potrà recedere dal presente Contratto. Alla risoluzione del presente Contratto o scadenza di un Periodo di Prova, se l’Utente non ha ottenuto una licenza di produzione d’uso per il Prodotto, l’Utente dovrà (a) cessare di usare il Prodotto, e (b) attestare in forma scritta a BMC che l’Utente ha disinstallato e distrutto, o restituito a BMC, i prodotti e tutte le copie dei Prodotti. Questo requisito si applica alle copie in tutte le forme, parziali e complete, in tutti i tipi di strumenti e memorie di computer e indipendentemente dal fatto che siano incorporati o meno in altri materiali. Il presente Contratto non costituisce alcuna obbligazione da parte di BMC di concedere in licenza alcun Prodotto all’Utente o da parte dell’Utente di acquistare hardware o licenze su Prodotti software di BMC. In deroga a qualsiasi disposizione contraria contenuta nella presente Sezione, ove materiale hardware sia incluso nel Prodotto, al termine del Periodo di Prova l’Utente dovrà acquistare tale hardware ovvero restituirlo a BMC entro cinque giorni all’interno della confezione originale.
7. CONTROLLI SULLE ESPORTAZIONI. L’Utente dichiara e garantisce che esso (a) si atterrà alle normative degli Stati Uniti d’America e di qualsiasi altro paese relativamente alle esportazioni (ivi incluse le “United States Export Administration Regulations”); (b) nessun soggetto che farà uso dei, o avrà accesso ai, Prodotti è cittadino di o da un paese sottoposto ad embargo (alla data del presente Contratto, Iran, Siria, Sudan, Cuba e Corea del Nord); (c) non è sottoposto a restrizioni circa la ricevibilità dei Prodotti ai sensi delle suddette normative; (d) non acquisirà i Prodotti per soggetti sottoposti a restrizioni circa la ricevibilità dei Prodotti ai sensi delle normative medesime; (e) non farà uso dei Prodotti in violazione di tali normative; e (f) non si avvarrà dei Prodotti allo scopo di farne usi proibiti, ivi inclusi – a mero titolo esemplificativo e non esaustivo – fini connessi con la proliferazione di armi nucleari, tecnologia missilistica o altre armi chimiche o biologiche. Con riferimento ai Prodotti esportati dall’Irlanda, il Regolamento n. 428/2009 dell’Unione Europea stabilisce un regime relativo ai controlli sulle esportazioni di beni e tecnologie a doppio uso, e si dà atto che tali Prodotti saranno utilizzati esclusivamente per usi civili. Pertanto, l’Utente si impegna ad attenersi a tutte le normative degli Stati Uniti d’America e dell’Unione Europea qui contemplate e che lo esso non effettuerà esportazioni in violazione di tali normative ed in assenza di tutte le necessarie autorizzazioni. Qualsiasi violazione di tali normative comporterà la perdita da parte dell’Utente di tutti i diritti sui Prodotti.
8. PROTEZIONE DEI DATI PERSONALI. BMC e il Cliente convengono che l'Accordo sul trattamento dei dati, una copia del quale può essere visionata su https://www.bmc.com/content/dam/bmc/corporate/bmcdpa.pdf, si applicherà ai Prodotti scaricati dal Cliente, salvo che BMC abbia già firmato un Accordo sul trattamento dei dati con il Cliente per tali Prodotti; in tal caso, troverà applicazione la versione firmata di tale Accordo.
9. LEGGE REGOLATRICE E RISOLUZIONE DELLE CONTROVERSIE. Ciascuna parte dovrà dare comunicazione scritta all’altra parte di qualsiasi controversia, disputa o pretesa derivante dal, o relativa al, presente Contratto ovvero alla conclusione, interpretazione, violazione, cessazione o validità dello stesso (la “Controversia”). Le parti si impegnano a risolvere in via bonaria eventuali Controversie. Solo ove la Controversia non possa essere risolta in via bonaria entro 15 giorni dall'invio della comunicazione scritta relativa alla Controversia medesima, la Controversia potrà essere definita mediante procedimento contenzioso da instaurarsi in base al luogo di costituzione delle parti, come segue:
(i) ove entrambe le parti del presente Contratto siano società costituite ai sensi delle leggi di qualsiasi stato degli Stati Uniti, la Controversia sarà devoluta ad un tribunale statale o federale avente sede a Houston, Texas, e sarà decisa secondo le leggi dello stato del Texas. Entrambe le parti si sottopongono alla giurisdizione esclusiva dei tribunali aventi sede a Houston, Texas, e rinunciano a qualsiasi tutela basa sul forum non conveniens;
(ii) ove entrambe le parti del presente Contratto siano società costituite ai sensi delle leggi di paesi ubicati in Europa, Medio Oriente o Africa, la Controversia sarà definita mediante arbitrato da svolgersi ad Amsterdam, Paesi Bassi, secondo il regolamento della Camera di Commercio Internazionale, e sarà decisa secondo le leggi dei Paesi Bassi;
(iii) ove entrambe le parti del presente Contratto siano società costituite ai sensi delle leggi di paesi ubicati nella regione Asia Pacifica, la Controversia sarà definita mediante arbitrato da svolgersi a Singapore, secondo il regolamento della Camera Arbitrale Internazionale di Singapore, e sarà decisa secondo le leggi di Singapore;
(iv) in tutti gli altri casi, la Controversia sarà definita mediante arbitrato da svolgersi a New York, New York, secondo il regolamento dell’Associazione Arbitrale Americana, e sarà decisa secondo le leggi dello stato del Texas.
Per tutti i procedimenti arbitrali qui contemplati: (a) l'arbitrato si svolgerà in lingua inglese; (b) l’organo arbitrale adito determinerà il numero degli arbitri, ma ogni Controversia il cui valore superi USD 10 milioni saranno decisi da un collegio di tre arbitri, con ciascuna parte avente diritto a scegliere un arbitro; (c) i costi dell’arbitrato saranno sostenuti dalle parti in pari misura, in attesa del lodo arbitrale; (d) il lodo arbitrale sarà definitivo e vincolante per le parti, non potrà essere oggetto di reclamo dinanzi all’autorità giudiziaria e sarà esecutivo in qualsiasi tribunale avente giurisdizione sulle parti; (e) il procedimento, il lodo e gli atti relativi all’arbitrato dovranno intendersi confidenziali, salvo che sia richiesta la divulgazione di alcune informazioni al fine di ottenere l’esecuzione del lodo arbitrale o di ottemperare a normative locali; e (f) la parte vincitrice avrà diritto al rimborso delle spese ragionevolmente sostenute per i propri avvocati nonché i costi necessari sostenuti in relazione all’arbitrato.
La Convenzione delle Nazioni Unite sui Contratti di Compravendita Internazionale di Merci non si applica al presente Contratto. Nessuna disposizione del presente Contratto potrà impedire alle parti di ottenere provvedimenti urgenti di natura cautelare da qualsiasi tribunale avente giurisdizione sulle parti e competente a decidere sulla materia della Controversia.
10. ACQUISIZIONI FEDERALI DEGLI U.S.A. La presente Sezione si applica esclusivamente alle acquisizioni di Prodotti commerciali e Documentazione soggette al presente Contratto da parte, o per conto del, governo degli Stati Uniti d’America, o da parte di qualsiasi primo appaltatore o subappaltatore (a qualsiasi grado) ai sensi di qualsiasi contratto di appalto, concessione, cooperazione o altra attività con il governo degli Stati Uniti d’America. Nel caso in cui i Prodotti siano consegnati al governo degli Stati Uniti d’America, il governo degli Stati Uniti d’America accetta che i Prodotti stessi siano qualificati come “prodotti commerciali” secondo il significato dei regolamenti sulle acquisizioni federali applicabili alla fornitura qui contemplata. I termini e condizioni del presente Contratto hanno ad oggetto l’uso e la divulgazione dei Prodotti da parte del governo degli Stati Uniti d’America, e dovranno prevalere su qualsiasi termine e condizione contrattuale in conflitto. La seguente dichiarazione aggiuntiva si applica solo alle acquisizioni regolate dal DFARS Subpart 227.4 (ottobre 1988): “Diritti Limitati – Uso, duplicazione e divulgazione da parte del Governo soggetto a limitazioni come stabilito nel sotto-paragrafo (c)(1)(ii) della clausola Diritti su Dati Tecnici e Software di Computer del DFARS 252.227-7013 (ottobre 1988)”.
11. DISPOSIZIONI VARIE. Un’eventuale rinuncia di una parte in relazione alla violazione di uno dei termini del presente Contratto non dovrà essere interpretata come liberatoria relativamente a violazioni persistenti o successive. Qualora una disposizione del presente Contratto fosse ritenuta invalida o inapplicabile, le restanti disposizioni manterranno piena validità ed efficacia. Le parti danno atto di aver letto il presente Contratto e convengono che lo stesso costituisce l’intero accordo, e supera e sostituisce qualsiasi altro accordo o negoziazione precedente o contestuale, tra le parti in relazione alle materie che costituiscono l’oggetto del presente Contratto. Gli unici obblighi, impegni, dichiarazioni e garanzie tra le parti sono esclusivamente quelli contenuti nel presente Contratto. Il presente Contratto può essere modificato o risolto solo mediante atto scritto firmato da entrambe le parti. La parte vincitrice in qualsiasi controversia avrò diritto di ricevere dall’altra parte il rimborso degli onorari e delle spese corrisposti ai propri avvocati. L’Utente non può cedere o trasferire il presente Contratto senza il previo consenso scritto di BMC. I Prodotti di BMC possono includere software di terze parti, che vengono consegnati all’Utente come parte dei Prodotti, non possono essere rimossi o usati separatamente dagli stessi, e per i quali la Documentazione può prevedere condizioni d’uso aggiuntive. Qualsiasi documento aggiuntivo che l’Utente richiedesse ad un rappresentate di BMC di sottoscrivere quale condizione per l’accesso alle strutture dell’Utente sarà regolato dal presente Contratto e, qualora tale documento contenesse condizioni aggiuntive o confliggenti rispetto a quelle del presente Contratto, esso sarà considerato nullo e non applicabile.
Se intendete, in qualità di rappresentante autorizzato dell’Utente, accettare le condizioni della licenza di cui sopra per conto di Voi stessi e dell’Utente, e confermare che Voi e l’Utente operate e continuerete ad operare nel rispetto di tutti i termini e condizioni stabiliti sopra, cliccate sul pulsante “Accetto” qui sotto.
Effective April 9th 2020 to April 9th 2020
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CONTRATTO DI PROVA
IL PRESENTE CONTRATO DI PROVA (IL “CONTRATTO”) DIVERRÀ UN CONTRATTO GIURIDICAMENTE VINCOLANTE TRA L’UTENTE DEI PRODOTTI SCARICATI ED INDICATI NELLA SEZIONE “EXPORT VALIDATION” DEL SITO WEB DI SUPPORTO BMC (NEL DOMINIO WWW.BMC.COM) O QUALSIASI ALTRO SITO CHE EVENTUALMENTE LO SOSTITUIRÀ (DI SEGUITO L’“UTENTE”) E BMC SOFTWARE DISTRIBUTION, INC. O LA SOCIETÀ AD ESSA COLLEGATA CONCEDENTE LICENZA A LIVELLO LOCALE (“BMC”). PREMENDO IL PULSANTE "ACCETTO", VOI DICHIARATE E GARANTITE DI AVER LETTO E COMPRESO LE CONDIZIONI DEL PRESENTE CONTRATTO, DI AVERE IL POTERE DI VINCOLARE L’UTENTE AL PRESENTE CONTRATTO, E CHE L’UTENTE ACCETTA DI ESSERE VINCOLATO DAI TERMINI E CONDIZIONI DEL PRESENTE CONTRATTO. BMC ACCETTA DI CONSENTIRVI DI SCARICARE PRODOTTI SOLO SE, E DOPO CHE, VOI E L’UTENTE ABBIATE ACCETTATO TUTTE LE PRESENTI CONDIZIONI PREMENDO IL PULSANTE “ACCETTO”.
VI PREGHIAMO DI LEGGERE IL PRESENTE CONTRATTO: SE NON CAPITE O NON ACCETTATE ALCUNA DELLE CONDIZIONI DEL PRESENTE CONTRATTO, NON PREMETE IL PULSANTE "ACCETTO".
(1) DEFINIZIONI. “Informazioni Riservate” indica tutte le informazioni di proprietà o riservate rivelate al destinatario (il “Destinatario”) dal dichiarante (il “Dichiarante”) ed includono, tra l’altro (i) i dati sulla sua situazione finanziaria, il nominativo dei clienti, dei dipendenti dei prodotti e dei servizi nonché il codice del software, i diagrammi di flusso, le tecniche, le specifiche, i piani di marketing e di sviluppo, le strategie, le previsioni; (ii) per quanto riguarda BMC e i suoi licenzianti, il Prodotto e l’eventuale software di terzi fornito con il Prodotto; e (iii) i termini e le condizioni del presente Contratto, ivi comprese, a titolo esemplificativo, le informazioni sul prezzo del Prodotto. Le Informazioni Riservate non includono quelle informazioni per le quali il Destinatario possa dimostrare che: (a) erano in legittimo possesso del Destinatario senza alcun obbligo di riservatezza prima di riceverle dal Dichiarante; (b) siano o siano diventate di dominio pubblico non per colpa del Destinatario; (c) siano state legittimamente ricevute dal Destinatario da terzi senza che vi fosse violazione di un obbligo di riservatezza; oppure (d) siano o siano state sviluppate indipendentemente dal o per il Destinatario. “Prodotti” sono i prodotti software o hardware e la loro relativa documentazione e altre informazioni tecniche possedute o distribuite da BMC a cui si possa avere accesso sul sito web di BMC EPD (www.bmc.com o qualsiasi altro sito web che eventualmente lo sostituirà) e per i quali all’Utente sia concessa una licenza ai sensi del presente Contratto. Il “Periodo di Prova”, in relazione ad un Prodotto, indica il periodo di tempo che inizia alla data in cui Voi scaricate tale Prodotto e termina al primo tra (a) il trentesimo giorno solare successivo, o (b) il numero di giorni solari successivi indicati nella chiave di licenza fornita con tale Prodotto.
(2) LICENZA DI PROVA. BMC concede all’Utente una licenza temporanea non esclusiva, non trasferibile, non assegnabile per l’uso di ciascun Prodotto su un singolo computer per un Periodo di Prova, al solo scopo di valutare e determinare internamente se acquistare e/o prendere in licenza tale Prodotto verso un corrispettivo e non a fini di sviluppo, commerciali, di produzione, o di gestione di banca dati, o con i dati di produzione. L’Utente deve stipulare un contratto separato per ottenere i diritti di produzione e supporto tecnico per un Prodotto.
(3) DIRITTI DI PROPRIETÀ E RISERVATEZZA. (a) BMC, le sue affiliate o licenzianti mantengono tutti i diritti, la titolarità e la partecipazione nel Prodotto, nel Supporto oltre a tutti i diritti di proprietà intellettuale e d’altro tipo connessi allo stesso. Il Prodotto e l’eventuale software di terzi fornito con il Prodotto sono protetti dalla legislazione applicabile in materia di diritto d’autore, segreto commerciale, industriale o altro tipo di proprietà intellettuale. L’Utente non può rimuovere dal Prodotto alcuna identificazione del prodotto, diritto d’autore, marchio commerciale o altra comunicazione. BMC si riserva tutti i diritti non espressamente concessi all’Utente in base al presente Contratto. (b) Il Destinatario non può divulgare a terzi Informazioni Riservate del Dichiarante né utilizzarle in violazione del presente Contratto. Il Destinatario (i) nel proteggere le Informazioni Riservate del Dichiarante eserciterà lo stesso livello di cura e protezione che utilizza nel proteggere le proprie Informazioni Riservate, e (ii) non rivelerà, copierà distribuirà, trasferirà o pubblicherà o garantirà l’accesso alle Informazioni Riservate a terze parti, neppure indirettamente. Ciononostante, il Destinatario potrà rivelare Informazioni Riservate ai propri dipendenti o suoi agenti che abbiano necessità di accedere a tali Informazioni Riservate, a condizione che essi siano vincolati da obblighi di riservatezza che garantiscano un grado di protezione non minore di quello garantito dal Destinatario. (c) Obbligo di informazione. Se il Destinatario viene a conoscenza dell’uso improprio delle Informazioni Riservate, sarà tenuto a darne notizia al Dichiarante. Laddove al Destinatario o suoi dipendenti o Agenti venisse richiesto (in procedimenti giudiziari di qualsiasi natura) di rivelare Informazioni Riservate, il Destinatario sarà tenuto preventivamente ad informare il Dichiarante e a dare le opportune giustificazioni. In modo tale da consentire al Dichiarante di porre rimedio alla diffusione delle informazioni. In qualsiasi caso il Destinatario farà quanto ragionevolmente possibile per preservare la riservatezza delle Informazioni Riservate e per porre rimedio alla diffusione delle informazioni. Rimane comunque inteso che l’Utente presta il proprio consenso ad essere incluso nella lista dei clienti di BMC.
(4) LIMITAZIONI ALL’USO. L’Utente si impegna a non: (a) modificare, cancellare o rimuovere i marchi di proprietà e gli avvisi inerenti il copyright o i brevetti dai Prodotti (l’“Identificazione”); (b) copiare i prodotti o parte di essi senza riportare altresì l’Identificazione su ciascuna copia; (c) disassemblare, applicare tecniche di reverse engineering, de-compilare o altrimenti cercare di risalire al codice sorgente del Prodotto dal suo codice oggetto, salvo nei casi e nei limiti inderogabili previsti dalla normativa applicabile indipendentemente dalla suddetta limitazione; (d) distribuire o fornire il Prodotto a terzi o impiegarlo in servizi di assistenza, outsourcing o elaborazione di dati di terzi, né concederlo a noleggio, leasing o sub licenza; (e) fornire a terzi i risultati di qualsiasi valutazione funzionale o di test di rendimento senza il preventivo consenso scritto di BMC; (f) cercare di disabilitare o bypassare i meccanismi di licenza all’interno del Prodotto; (g) violare eventuali altre limitazioni d’uso indicate nella Documentazione.
(5) ASSENZA DI GARANZIA E LIMITAZIONE DI RESPONSABILITÀ. I PRODOTTI SONO FORNITI NELLO STATO DI FATTO IN CUI SI TROVANO A SOLI FINI DIMOSTRATIVI E SENZA ALCUNA GARANZIA, COMPRESA, A MERO TITOLO ESEMPLIFICATIVO, QUALSIASI GARANZIA IMPLICITA DI ADEGUATEZZA PER UN PARTICOLARE SCOPO O PER LA COMMERCIABILITÀ, E MANCATA VIOLAZIONE, O QUALSIASI ALTRA GARANZIA, SIA ESPRESSA CHE IMPLICITA. NESSUNO TRA BMC, I SUOI AFFILIATI, FORNITORI O LICENZIANTI SARÀ RESPONSABILE PER QUALSIASI DANNO INDIRETTO, INCIDENTALE, SPECIALE, PUNITIVO O CONSEQUENZIALE, O PER QUALSIASI LUCRO CESSANTE, PERDITA DI PROVENTI, DATI O USO DI DATI DERIVANTI DA QUALSIASI CAUSA O CONNESSI IN QUALSIASI MODO ALLUSO DEL PRODOTTO O AL PRESENTE CONTRATTO. LA RESPONSABILITÀ DI BMC, DEI SUOI AFFILIATI, FORNITORI E LICENZIANTI PER DANNI RISULTANTI DALLUSO DEL PRODOTTO O DAL PRESENTE CONTRATTO, INDIPENDENTEMENTE DAL FATTO CHE SIA DI NATURA CONTRATTUALE O EXTRA-CONTRATTUALE, SARÀ LIMITATA AL MAGGIORE TRA L’IMPORTO PAGATO DALL’UTENTE PER CONCEDERE IN LICENZA L’USO DI TALE PRODOTTO O USD 500,00. NEI PAESI ELENCATI NELLA SEGUENTE SEZIONE 9, PUNTO (II), LA LIMITAZIONE DI RESPONSABILITÀ NELLA PRESENTE SEZIONE NON SI APPLICHERÀ SE, E NELLA MISURA IN CUI, TALE DANNO SIA STATO CAUSATO DAL DOLO O DALLA COLPA GRAVE DI UNA DELLE PARTI.
(6) RISOLUZIONE. Previa notifica scritta con preavviso di almeno due settimane, ciascuna parte potrà recedere dal presente Contratto. Alla risoluzione del presente Contratto o scadenza di un Periodo di Prova, se l’Utente non ha ottenuto una licenza di produzione d’uso per il Prodotto, l’Utente dovrà (a) cessare di usare il Prodotto, e (b) attestare in forma scritta a BMC che l’Utente ha disinstallato e distrutto, o restituito a BMC, i prodotti e tutte le copie dei Prodotti. Questo requisito si applica alle copie in tutte le forme, parziali e complete, in tutti i tipi di strumenti e memorie di computer e indipendentemente dal fatto che siano incorporati o meno in altri materiali. Il presente Contratto non costituisce alcuna obbligazione da parte di BMC di concedere in licenza alcun Prodotto all’Utente o da parte dell’Utente di acquistare hardware o licenze su Prodotti software di BMC. In deroga a qualsiasi disposizione contraria contenuta nella presente Sezione, ove materiale hardware sia incluso nel Prodotto, al termine del Periodo di Prova l’Utente dovrà acquistare tale hardware ovvero restituirlo a BMC entro cinque giorni all’interno della confezione originale.
(7) CONTROLLI SULLE ESPORTAZIONI. L’Utente dichiara e garantisce che esso (a) si atterrà alle normative degli Stati Uniti d’America e di qualsiasi altro paese relativamente alle esportazioni (ivi incluse le “United States Export Administration Regulations”); (b) nessun soggetto che farà uso dei, o avrà accesso ai, Prodotti è cittadino di o da un paese sottoposto ad embargo (alla data del presente Contratto, Iran, Siria, Sudan, Cuba e Corea del Nord); (c) non è sottoposto a restrizioni circa la ricevibilità dei Prodotti ai sensi delle suddette normative; (d) non acquisirà i Prodotti per soggetti sottoposti a restrizioni circa la ricevibilità dei Prodotti ai sensi delle normative medesime; (e) non farà uso dei Prodotti in violazione di tali normative; e (f) non si avvarrà dei Prodotti allo scopo di farne usi proibiti, ivi inclusi – a mero titolo esemplificativo e non esaustivo – fini connessi con la proliferazione di armi nucleari, tecnologia missilistica o altre armi chimiche o biologiche. Con riferimento ai Prodotti esportati dall’Irlanda, il Regolamento n. 428/2009 dell’Unione Europea stabilisce un regime relativo ai controlli sulle esportazioni di beni e tecnologie a doppio uso, e si dà atto che tali Prodotti saranno utilizzati esclusivamente per usi civili. Pertanto, l’Utente si impegna ad attenersi a tutte le normative degli Stati Uniti d’America e dell’Unione Europea qui contemplate e che lo esso non effettuerà esportazioni in violazione di tali normative ed in assenza di tutte le necessarie autorizzazioni. Qualsiasi violazione di tali normative comporterà la perdita da parte dell’Utente di tutti i diritti sui Prodotti.
(8) PROTEZIONE DEI DATI PERSONALI. BMC e il Cliente convengono che l'Accordo sul trattamento dei dati, una copia del quale può essere visionata su https://www.bmc.com/content/dam/bmc/corporate/bmcdpa.pdf, si applicherà ai Prodotti scaricati dal Cliente, salvo che BMC abbia già firmato un Accordo sul trattamento dei dati con il Cliente per tali Prodotti; in tal caso, troverà applicazione la versione firmata di tale Accordo.
(9) LEGGE REGOLATRICE E RISOLUZIONE DELLE CONTROVERSIE. Ciascuna parte dovrà dare comunicazione scritta all’altra parte di qualsiasi controversia, disputa o pretesa derivante dal, o relativa al, presente Contratto ovvero alla conclusione, interpretazione, violazione, cessazione o validità dello stesso (la “Controversia”). Le parti si impegnano a risolvere in via bonaria eventuali Controversie. Solo ove la Controversia non possa essere risolta in via bonaria entro 15 giorni dall'invio della comunicazione scritta relativa alla Controversia medesima, la Controversia potrà essere definita mediante procedimento contenzioso da instaurarsi in base al luogo di costituzione delle parti, come segue:
(i) ove entrambe le parti del presente Contratto siano società costituite ai sensi delle leggi di qualsiasi stato degli Stati Uniti, la Controversia sarà devoluta ad un tribunale statale o federale avente sede a Houston, Texas, e sarà decisa secondo le leggi dello stato del Texas. Entrambe le parti si sottopongono alla giurisdizione esclusiva dei tribunali aventi sede a Houston, Texas, e rinunciano a qualsiasi tutela basa sul forum non conveniens;
(ii) ove entrambe le parti del presente Contratto siano società costituite ai sensi delle leggi di paesi ubicati in Europa, Medio Oriente o Africa, la Controversia sarà definita mediante arbitrato da svolgersi ad Amsterdam, Paesi Bassi, secondo il regolamento della Camera di Commercio Internazionale, e sarà decisa secondo le leggi dei Paesi Bassi;
(iii) ove entrambe le parti del presente Contratto siano società costituite ai sensi delle leggi di paesi ubicati nella regione Asia Pacifica, la Controversia sarà definita mediante arbitrato da svolgersi a Singapore, secondo il regolamento della Camera Arbitrale Internazionale di Singapore, e sarà decisa secondo le leggi di Singapore;
(iv) in tutti gli altri casi, la Controversia sarà definita mediante arbitrato da svolgersi a New York, New York, secondo il regolamento dell’Associazione Arbitrale Americana, e sarà decisa secondo le leggi dello stato del Texas.
Per tutti i procedimenti arbitrali qui contemplati: (a) l'arbitrato si svolgerà in lingua inglese; (b) l’organo arbitrale adito determinerà il numero degli arbitri, ma ogni Controversia il cui valore superi USD 10 milioni saranno decisi da un collegio di tre arbitri, con ciascuna parte avente diritto a scegliere un arbitro; (c) i costi dell’arbitrato saranno sostenuti dalle parti in pari misura, in attesa del lodo arbitrale; (d) il lodo arbitrale sarà definitivo e vincolante per le parti, non potrà essere oggetto di reclamo dinanzi all’autorità giudiziaria e sarà esecutivo in qualsiasi tribunale avente giurisdizione sulle parti; (e) il procedimento, il lodo e gli atti relativi all’arbitrato dovranno intendersi confidenziali, salvo che sia richiesta la divulgazione di alcune informazioni al fine di ottenere l’esecuzione del lodo arbitrale o di ottemperare a normative locali; e (f) la parte vincitrice avrà diritto al rimborso delle spese ragionevolmente sostenute per i propri avvocati nonché i costi necessari sostenuti in relazione all’arbitrato.
La Convenzione delle Nazioni Unite sui Contratti di Compravendita Internazionale di Merci non si applica al presente Contratto. Nessuna disposizione del presente Contratto potrà impedire alle parti di ottenere provvedimenti urgenti di natura cautelare da qualsiasi tribunale avente giurisdizione sulle parti e competente a decidere sulla materia della Controversia.
(10) ACQUISIZIONI FEDERALI DEGLI U.S.A. La presente Sezione si applica esclusivamente alle acquisizioni di Prodotti commerciali e Documentazione soggette al presente Contratto da parte, o per conto del, governo degli Stati Uniti d’America, o da parte di qualsiasi primo appaltatore o subappaltatore (a qualsiasi grado) ai sensi di qualsiasi contratto di appalto, concessione, cooperazione o altra attività con il governo degli Stati Uniti d’America. Nel caso in cui i Prodotti siano consegnati al governo degli Stati Uniti d’America, il governo degli Stati Uniti d’America accetta che i Prodotti stessi siano qualificati come “prodotti commerciali” secondo il significato dei regolamenti sulle acquisizioni federali applicabili alla fornitura qui contemplata. I termini e condizioni del presente Contratto hanno ad oggetto l’uso e la divulgazione dei Prodotti da parte del governo degli Stati Uniti d’America, e dovranno prevalere su qualsiasi termine e condizione contrattuale in conflitto. La seguente dichiarazione aggiuntiva si applica solo alle acquisizioni regolate dal DFARS Subpart 227.4 (ottobre 1988): “Diritti Limitati – Uso, duplicazione e divulgazione da parte del Governo soggetto a limitazioni come stabilito nel sotto-paragrafo (c)(1)(ii) della clausola Diritti su Dati Tecnici e Software di Computer del DFARS 252.227-7013 (ottobre 1988)”.
(11) DISPOSIZIONI VARIE. Un’eventuale rinuncia di una parte in relazione alla violazione di uno dei termini del presente Contratto non dovrà essere interpretata come liberatoria relativamente a violazioni persistenti o successive. Qualora una disposizione del presente Contratto fosse ritenuta invalida o inapplicabile, le restanti disposizioni manterranno piena validità ed efficacia. Le parti danno atto di aver letto il presente Contratto e convengono che lo stesso costituisce l’intero accordo, e supera e sostituisce qualsiasi altro accordo o negoziazione precedente o contestuale, tra le parti in relazione alle materie che costituiscono l’oggetto del presente Contratto. Gli unici obblighi, impegni, dichiarazioni e garanzie tra le parti sono esclusivamente quelli contenuti nel presente Contratto. Il presente Contratto può essere modificato o risolto solo mediante atto scritto firmato da entrambe le parti. La parte vincitrice in qualsiasi controversia avrò diritto di ricevere dall’altra parte il rimborso degli onorari e delle spese corrisposti ai propri avvocati. L’Utente non può cedere o trasferire il presente Contratto senza il previo consenso scritto di BMC. I Prodotti di BMC possono includere software di terze parti, che vengono consegnati all’Utente come parte dei Prodotti, non possono essere rimossi o usati separatamente dagli stessi, e per i quali la Documentazione può prevedere condizioni d’uso aggiuntive. Qualsiasi documento aggiuntivo che l’Utente richiedesse ad un rappresentate di BMC di sottoscrivere quale condizione per l’accesso alle strutture dell’Utente sarà regolato dal presente Contratto e, qualora tale documento contenesse condizioni aggiuntive o confliggenti rispetto a quelle del presente Contratto, esso sarà considerato nullo e non applicabile.
Se intendete, in qualità di rappresentante autorizzato dell’Utente, accettare le condizioni della licenza di cui sopra per conto di Voi stessi e dell’Utente, e confermare che Voi e l’Utente operate e continuerete ad operare nel rispetto di tutti i termini e condizioni stabiliti sopra, cliccate sul pulsante “Accetto” qui sotto.
Effective April 9th 2020 to April 9th 2020
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IL PRESENTE CONTRATO DI PROVA (CONTRATTO) DIVERR UN CONTRATTO GIURIDICAMENTE VINCOLANTE TRA LUTENTE DEI PRODOTTI SCARICATI ED INDICATI NELLA SEZIONE EXPORT VALIDATION DEL SITO WEB DI SUPPORTO BMC (IN WWW.BMC.COM) O QUALSIASI ALTRO SITO CHE EVENTUALMENTE LO SOSTITUIR) (DI SEGUITO LUTENTE) E BMC SOFTWARE DISTRIBUTION, INC. O LA SOCIET AD ESSA COLLEGATA CONCEDENTE LICENZA A LIVELLO LOCALE (BMC). PREMENDO IL PULSANTE "ACCETTO", VOI DICHIARATE E GARANTITE DI AVER LETTO E COMPRESO LE CONDIZIONI DEL PRESENTE CONTRATTO, DI AVERE IL POTERE DI VINCOLARE LUTENTE AL PRESENTE CONTRATTO, E CHE LUTENTE ACCETTA DI ESSERE VINCOLATO DAI TERMINI E CONDIZIONI DEL PRESENTE CONTRATTO. BMC ACCETTA DI CONSENTIRVI DI SCARICARE PRODOTTI SOLO SE, E DOPO CHE, VOI E LUTENTE ABBIATE ACCETTATO TUTTE LE PRESENTI CONDIZIONI PREMENDO IL PULSANTE "ACCETTO". |
VI PREGHIAMO DI LEGGERE IL PRESENTE CONTRATTO: SE NON CAPITE O NON ACCETTATE ALCUNA DELLE CONDIZIONI DEL PRESENTE CONTRATTO, NON PREMETE IL PULSANTE "ACCETTO". |
(1) TERMINI DEFINITI. Informazioni Riservate sono tutte le informazioni che sono informazioni di propriet e/o informazioni riservate della parte rivelante e non comprendono le informazioni che: (a) erano legittimamente in possesso della parte ricevente senza alcun obbligo di riservatezza prima della ricezione dalla parte rivelante; (b) sono o diventano fatto di pubblico dominio in assenza di alcuna violazione della parte ricevente; (c) sono legittimamente ricevute dalla parte ricevente da un terzo senza violazione di alcun obbligo di riservatezza; o (d) sono sviluppate indipendentemente dalla, o per la, parte ricevente. Prodotti sono i prodotti software e la loro relativa documentazione e altre informazioni tecniche possedute o distribuite da BMC a cui si possa avere accesso sul sito Web di BMC EPD (www.bmc.com o qualsiasi altro sito web che eventualmente lo sostituir) e per i quali allUtente sia concessa una licenza ai sensi del presente Contratto. Il Periodo di Prova in relazione ad un Prodotto, il periodo di tempo che inizia alla data in cui Voi scaricate tale Prodotto e termina al primo tra (a) il trentesimo giorno solare successivo, o (b) il numero di giorni solari successivi indicati nella chiave di licenza indicata fornita con tale Prodotto. |
(2) LICENZA DI PROVA. BMC concede allUtente una licenza temporanea non esclusiva, non trasferibile, non assegnabile per luso di ciascun Prodotto su un singolo computer per un Periodo di Prova, al solo scopo di valutare e determinare internamente se acquistare una licenza per tale Prodotto verso un corrispettivo e non a fini di sviluppo, commerciali, di produzione, o di gestione di banca dati, o con i dati di produzione. LUtente deve stipulare un contratto separato per ottenere i diritti di produzione e supporto tecnico per un Prodotto. Nella misura in cui un Prodotto comprenda un codice terzo, se (a) tale codice terzo fornito per luso con un Prodotto, pu essere usato solo con tale Prodotto; e (b) la documentazione contiene termini che attengono a tale codice terzo, tali termini regolano il codice terzo in luogo dei termini del presente Contratto. |
(3) LIMITAZIONI ALLUSO. LUtente non dovr: (a) rimuovere qualsiasi elemento identificante del Prodotto, avviso di copyright, o qualsiasi altro avviso o limitazione di propriet dai Prodotti, (b) causare o permettere la scomposizione, smontaggio, reingegnerizzazione o qualsiasi altro tentativo di ottenere un codice sorgente di un Prodotto da un codice eseguibile, salvo che nella misura espressamente consentita dalla legge o trattato applicabile nonostante la presente limitazione; (c) rivelare i risultati di qualsiasi test di benchmark a qualsiasi terzo senza il previo consenso scritto di BMC, (d) duplicare, installare e/o usare i Prodotti diversi da quelli indicati nel presente Contratto, o (e) concedere in sublicenza, modificare, condividere in timeshare, affittare, concedere tramite societ di servizi informatici a pagamento o altrimenti trasferire o dividere i Prodotti a o con, o permettere laccesso o luso dei Prodotti da parte di, qualsiasi terzo. LUtente non pu esportare o re-esportare qualsiasi Prodotto senza il previo consenso scritto di BMC e le eventuali licenze o eccezioni alla licenza imposte dal governo U.S.A. e/o di altro governo straniero. |
(4) RISOLUZIONE. Alla risoluzione del presente Contratto o scadenza di un Periodo di Prova, se lUtente non ha ottenuto una licenza di produzione duso per il Prodotto, lUtente dovr (a) cessare di usare il Prodotto, e (b) attestare in forma scritta a BMC che lUtente ha disinstallato e distrutto, o restituito a BMC, i prodotti e tutte le copie dei Prodotti. Questo requisito si applica alle copie in tutte le forme, parziali e complete, in tutti i tipi di strumenti e memorie di computer e indipendentemente dal fatto che siano incorporati o meno in altri materiali. Il presente Contratto non costituisce alcuna obbligazione da parte di BMC di concedere in licenza alcun Prodotto allUtente o da parte dellUtente di acquistare alcuna licenza sui Prodotti da BMC. |
(5) ASSENZA DI GARANZIA E LIMITAZIONE DI RESPONSABILIT. I PRODOTTI SONO FORNITI NELLO STATO DI FATTO IN CUI SI TROVANO A SOLI FINI DIMOSTRATIVI E SENZA ALCUNA GARANZIA, COMPRESO, A MERO TITOLO ESEMPLIFICATIVO, QUALSIASI GARANZIA IMPLICITA DI ADEGUATEZZA PER UN PARTICOLARE SCOPO O PER LA COMMERCIABILIT, E MANCATA VIOLAZIONE, O QUALSIASI ALTRA GARANZIA, SIA ESPRESSA CHE IMPLICITA. NESSUNO TRA BMC, I SUOI AFFILIATI, FORNITORI O CONCEDENTI DI LICENZA SAR RESPONSABILE PER QUALSIASI DANNO INDIRETTO, INCIDENTALE, SPECIALE, PUNITIVO O CONSEQUENZIALE, O PER QUALSIASI LUCRO CESSANTE, PERDITA DI PROVENTI, DATI O USO DI DATI DERIVANTI DA QUALSIASI CAUSA O CONNESSI IN QUALSIASI MODO ALLUSO DEL PRODOTTO O AL PRESENTE CONTRATTO. LA RESPONSABILIT DI BMC, DEI SUOI AFFILIATI, FORNITORI E CONCEDENTI DI LICENZA PER DANNI RISULTANTI DALLUSO DEL PRODOTTO O DAL PRESENTE CONTRATTO, INDIPENDENTEMENTE DAL FATTO CHE SIA DI NATURA CONTRATTUALE O EXTRA-CONTRATTUALE, SAR LIMITATA AL MAGGIORE TRA LIMPORTO PAGATO DALLUTENTE PER CONCEDERE IN LICENZA LUSO DI TALE PRODOTTO O USD 500,00. NEI PAESI ELENCATI NELLA SEGUENTE SOTTOSEZIONE 9, LETT. E), LA LIMITAZIONE DI RESPONSABILIT NELLA PRESENTE SEZIONE NON SI APPLICHER SE, E NELLA MISURA IN CUI, TALE DANNO SIA STATO CAUSATO DAL DOLO O DALLA COLPA GRAVE DI UNA DELLE PARTI. |
(6) DIRITTI DI PROPRIET E RISERVATEZZA. BMC, i suoi affiliati e/o concedenti di licenza, come applicabile, si riservano tutti i diritti, titoli e interessi sui Prodotti e su tutti i diritti connessi di propriet intellettuale e di propriet. I Prodotti e qualsiasi software terzo fornito con il Prodotto sono protetti dall'applicabile diritto dautore, segreti commerciali, legge industriale e altre leggi sulla propriet intellettuale. BMC si riserva qualsiasi diritto non espressamente concesso allUtente. Le parti concordano che i Prodotti sono informazioni riservate di BMC. Una parte ricevente (a) manterr riservate le Informazioni Riservate dellaltra parte per (5) anni dallultimo di (i) la data di rivelazione o (ii) lultimo uso del Prodotto e (b) riveler soltanto le Informazioni Riservate dellaltra parte a dipendenti o agenti della parte ricevente che siano vincolati a non rivelare tali informazioni da obbligazioni giuridiche che forniscano una tutela almeno pari a quella del presente Contratto e che debbano essere a conoscenza delle informazioni per svolgere il proprio lavoro. Niente impedir a ciascuna delle parti di rivelare le condizioni o i prezzi di cui al presente Contratto in qualsiasi procedimento legale derivante dal, o in relazione al, presente Contratto o di rivelare le informazione richieste dalla legge ad un ente amministrativo federale o statale. |
(7) LEGGI SULLESPORTAZIONE. Ai Prodotti si applicano le leggi ed i regolamenti sullesportazione degli Stati Uniti e altre pertinenti leggi e regolamenti locali sullesportazione. Luso dellUtente dei Prodotti (compresi i dati tecnici) regolato da, e lUtente dovr osservare, tutte tali leggi, compre le normative esportazione ritenuta e ri-esportazione ritenuta. Lutente accetta che nessun Prodotto, dato, informazione, programma e/o materiale sar esportato, direttamente o indirettamente, in violazione di queste leggi o sar usato a qualsiasi fine proibito da queste leggi, compreso per la proliferazione di armi nucleari, chimiche o biologiche o per lo sviluppo di tecnologie missilistiche. Premendo il pulsante Accetto confermate anche laccettazione dellUtente a rispettare, ora e nel corso della durata della prova, ciascuna delle seguenti dichiarazioni:(a) lUtente non un cittadino, o residente o sotto il controllo, del governo di Cuba, Iran, Sudan, Iraq, Corea del Nord, Siria o qualsiasi paese verso cui gli Stati Uniti hanno proibito le esportazioni; e (b) lUtente non scaricher o altrimenti esporter o ri-esporter alcun Prodotto, direttamente o indirettamente, in uno dei paesi sopraccitati o a cittadini o residenti di alcuno di tali paesi; e (c) lUtente non nellelenco del Dipartimento del Tesoro degli Stati Uniti di Cittadini Specificamente Designati, Terroristi Specificamente Designati, o Narco-Trafficanti Specificamente Designati n nellelenco della Tabella del Dipartimento del Commercio degli Stati Uniti di Rifiuto di Ordini; e (d) lUtente non scaricher o altrimenti esporter o ri-esporter alcun Prodotto, direttamente o indirettamente verso qualsiasi persona su uno qualsiasi degli elenchi sopraccitati; e (e) lUtente non user alcun Prodotto per, n consentir che alcun Prodotto venga usato per, qualsiasi scopo vietato dagli Stati Uniti o altra legge applicabile, compreso, a merito titolo esemplificativo, lo sviluppo, la progettazione, fabbricazione o produzione di armi di distruzione di massa nucleari, chimiche o biologiche. |
(8) INTERO CONTRATTO. Il presente documento costituisce lintero contratto tra le parti, e supera e sostituisce tutti gli accordi e le negoziazioni precedenti e contestuali in relazione alluso dellUtente dei Prodotti a scopo di prova. Il presente Contratto pu solo essere modificato da un atto scritto e firmato delle parti. LUtente non pu assegnare o trasferire il presente Contratto senza il previo consenso scritto di BMC. Nessun mancato o ritardato esercizio di una delle parti di qualsiasi diritto, potere o privilegio dovr operare come rinuncia, n dovr qualsiasi relativo singolo o parziale esercizio precludere qualsiasi ulteriore esercizio, o lesercizio di qualsiasi diritto, potere o privilegio ai sensi del presente Contratto. Nel caso in cui qualsiasi disposizione del presente Contratto sia ritenuta essere invalida o inefficace, le disposizioni restanti del presente Contratto resteranno pienamente in vigore ed efficaci. |
(9) SCELTA DI LEGGE E GIURISDIZIONE. Se lUtente si trova e usa il Prodotto in (a) Argentina, al presente Contratto si applicher la legge dellArgentina, con esclusione delle norme di conflitto di leggi, e la giurisdizione sar attribuita ai Tribunali di Buenos Aires, e BMC e lUtente accettano la giurisdizione personale di tali Tribunali per tali questioni, (b) Brasile, al presente Contratto si applicher la legge del Brasile, con esclusione delle norme di conflitto di leggi, e la giurisdizione sar attribuita ai Tribunali di San Paolo, e BMC e lUtente accettano la giurisdizione personale di tali Tribunali per tali questioni, (c) Stati Uniti del Messico, al presente Contratto si applicher la legge degli Stati Uniti del Messico, con esclusione delle norme di conflitto di leggi, e la giurisdizione sar attribuita ai Tribunali di Citt del Messico, e BMC e lUtente accettano la giurisdizione personale di tali Tribunali per tali questioni, (d) Giappone, Corea del Sud, Repubblica Popolare Cinese, Regione Amministrativa Speciale di Hong Kong o Macao, Taiwan, Filippine, Indonesia, Malesia, Myanmar, Singapore, Brunei, Vietnam, Cambogia, Laos, Tailandia, India, Pakistan, Australia, Nuova Zelanda, Papua Nuova Guinea o qualsiasi stato delle isole del pacifico, al presente Contratto si applicher la legge sostanziale di Singapore, con esclusione delle norme di conflitto di leggi, e la giurisdizione sar attribuita ai Tribunali di Singapore, e BMC e lUtente accettano la giurisdizione personale di tali Tribunali per tali questioni, (e) Stati Uniti, Porto Rico o qualsiasi altro protettorato degli USA, Canada, o qualsiasi paese nellAmerica Centrale o America del Sud non specificamente rientrante tra quelli elencati sopra, al presente Contratto si applicher la legge dello Stato del Texas, con esclusione delle norme di conflitto di leggi, e la giurisdizione sar attribuita ai Tribunali federali situati nella Contea di Harris, Texas, e BMC e lUtente accettano la giurisdizione personale di tali Tribunali per tali questioni, e (f) se in un paese non specificamente rientrante tra quelli elencati sopra, al presente Contratto si applicher la legge dei Paese Bassi, con esclusione delle norme di conflitto di leggi, e la giurisdizione sar attribuita ai Tribunali di Amsterdam, e BMC e lUtente accettano la giurisdizione personale di tali Tribunali per tali questioni. |
Le norme di scelta di legge di qualsiasi giurisdizione e la convenzione delle Nazioni Unite sui contratti per la vendita internazionale di merci non si applicheranno al presente Contratto. BMC e lUtente con il presente atto accettano la giurisdizione personale dei tribunali indicati sopra in qualsiasi controversia derivante dal, o relativa al, presente Contratto in conformit a quanto sopra. |
(10) VARIE. Con preavviso scritto di trenta (30) giorni solari, BMC pu controllare luso di Prodotti dellUtente. LUtente dovr cooperare con tale controllo e fornire la ragionevole assistenza e accesso alle informazioni. Entro trenta (30) giorni solari dalla ricezione della relativa richiesta, lUtente dovr pagare qualsiasi corrispettivo dovuto a BMC in base a quanto emerso dal controllo. |
(11) ACQUISIZIONI FEDERALI DEGLI U.S.A. Il presente Articolo si applica a tutte le acquisizioni del Prodotto soggette al presente Contratto da parte o per conto del governo federale degli USA, o da parte di qualsiasi primo appaltatore o subappaltatore (a qualsiasi grado) ai sensi di qualsiasi contratto di appalto, concessione, cooperazione o altra attivit con il governo federale degli USA. Accettando la consegna del Prodotto, il governo ivi accetta che il Prodotto venga qualificato come commerciale secondo il significato del(dei) regolamento(i) di acquisizione applicabile(i) a questa fornitura. I termini e condizioni del presente Contratto dovranno trattare luso del governo e la rivelazione del Prodotto, e dovranno prevalere su qualsiasi termine e condizione contrattuale in conflitto. Se la licenza concessa dal presente Contratto non soddisfa le esigenze del governo o non conforme a qualsiasi fine rispetto alla legge federale, il governo accetta di restituire il Prodotto, inutilizzato, a BMC. La seguente dichiarazione aggiuntiva si applica solo alle acquisizioni regolate da DFARS sotto-parte 227.4 (ottobre 1988): Diritti Limitati luso, duplicazione e rivelazione da parte del Governo soggetto a limitazioni come stabilito nel sotto-paragrafo (c)(1)(ii) della clausola Diritti su Dati Tecnici e Software di Computer del DFARS 252.227-7013 (ott. 1988). |
Se intendete, in qualit di rappresentante autorizzato dellUtente, accettare le condizioni della licenza di cui sopra per conto di Voi stessi e dellUtente, e confermare che Voi e lUtente operate e continuerete ad operare nel rispetto di tutti i termini e condizioni stabiliti sopra, cliccate sul pulsante Accetto qui sotto. |
Trial Agreement
Effective April 9th 2020
DownloadTable of Contents
CONTRAT D'ESSAI DE PROGICIELS
CE CONTRAT D'ESSAI (" CONTRAT ") DEVIENDRA UN CONTRAT LEGALEMENT EXECUTOIRE ENTRE L'UTILISATEUR DU PROGICIEL TÉLÉCHARGÉ tel que nommé DANS LA SECTION « Export validation SECTION » DE LA PAGE INTERNET DUSUPPORT BMC (SUR LE SITE WWW.BMC.COM OU TOUT SITE QUI LUI SUCCEDERAIT) DONT CE CONTRAT FAIT PARTIE INTéGRANTE (L’" UTILISATEUR ") ET BMC SOFTWARE DISTRIBUTION, INC. OU SA SOCIETE AFFILIÉE LOCALE (" BMC "). EN CLIQUANT SUR " J'ACCEPTE ", VOUS RECONNAISSEZ ET GARANTISSEZ AVOIR LU ET COMPRIS LES TERMES DU PRESENT CONTRAT, ETRE HABILITÉ A REPRÉSENTER ET LIER L'UTILISATEUR À CE CONTRAT (« VOUS »), ET QUE L'UTILISATEUR CONSENT A ÊTRE ENGAGÉ PAR LES TERMES ET LES CONDITIONS DE CE CONTRAT. BMC ACCEPTE DE VOUS AUTORISER A PROCÉDER AU TÉLÉCHARGEMENT DU(ES) PROGICIEL(S) CONCERNES A LA SEULE CONDITION QUE VOUS ET L'UTILISATEUR AYEZ PREALABLEMENT ACCEPTÉ L’ENSEMBLE DES DISPOSITIONS CI-DESSOUS EN CLIQUANT SUR " J'ACCEPTE ". |
EN CONSEQUENCE, VEUILLEZ LIRE LE PRESENT CONTRAT: SI VOUS NE COMPRENEZ PAS OU SI VOUS N’ACCEPTEZ PAS L’UNE QUELCONQUE DE SES DISPOSITIONS, NE CLIQUEZ PAS SUR " J'ACCEPTE ". |
1. DÉFINITION. Les "Informations Confidentielles" désignent toutes informations propriétaires et/ou confidentielles communiquées par l’une des parties aux présentes (l’"Emetteur ») à l’autre partie (le "Récipendiaire") et comprenant, en particulier, sans que cette liste soit limitative (i) toutes les informations de nature financière, ou relatives aux clients, employés, produits ou services, et notamment les codes objets et sources d’un logiciel, les graphiques, techniques, spécifications, plans de développement et de marketing, stratégies et prévisions de l’Emetteur; (ii) s’agissant de BMC et de ses concédants de licence, le Progiciel et tout logiciel tiers fourni avec le Progiciel ; et (iii) les dispositions du Contrat, y compris les éléments de tarification du Progiciel. Les Informations Confidentielles ne comprennent pas les informations pour lesquelles le Récipiendaire pourra démontrer : (a) qu’elles étaient, avant leur communication par l’Émetteur, légalement en sa possession sans être couvertes par une obligation de confidentialité; (b) qu’elles sont tombées dans le domaine public sans que le Récipiendaire n’ait commis la moindre faute à cet égard ; (c) que le Récipiendaire les a légalement reçues d’un tiers, sans violation d’une quelconque obligation de confidentialité ; ou (d) qu’elles sont ou ont été développées de manière indépendante par ou pour le Récipiendaire. Les "Progiciels" désignent les progiciels et leurs documentations associées ainsi que tout autre information technique y afférent, qui sont la propriété de BMC ou qui sont distribués par BMC, accessibles depuis le site Internet de BMC (www.bmc.com ou tout site Internet qui lui succèderait) et pour lesquels une licence a été accordée à l'Utilisateur en vertu du Contrat. La " Période d'essai " pour un Progiciel est la période qui commence à la date où vous téléchargez le Progiciel et se termine soit (a) trente jours calendaires après le téléchargement, ou soit (b) à l’expiration du nombre de jours calendaires spécifié dans la clé de la licence fournie avec le Progiciel, selon le premier de ces évènements qui intervient. |
2. LICENCE D'ESSAI. BMC accorde à l’Utilisateur, pour une durée de de à compléter, une licence temporaire, non-transférable et non-exclusive d’'utilisation de chaque Progiciel sur un seul ordinateur pour la Période d'essai, uniquement dans le but de l'évaluer et de déterminer s'il souhaite acquérir un tel Progiciel moyennant le paiement d’une redevance, et non à des fins de développement, de commercialisation, de production, de gestion de banques de données, ou de production de données. L'Utilisateur doit conclure un contrat séparé pour obtenir les droits d’utilisation du Progiciel à des fins de production et pour l'assistance technique du(des) Progiciel(s). 3. DROITS DE PROPRIÉTÉ ET DE CONFIDENTIALITÉ. (a) BMC, ses affiliés ou ses concédants de licence conserveront l’ensemble des droits, y inclus les droits de propriété intellectuelle, titres et intérêts portant sur les Progiciels et le Support. Le Progiciel et tous les logiciels tiers fournis avec le Progiciel sont protégés par les lois applicables en matière de droits d'auteur, secrets commerciaux, propriété industrielle et toutes autres lois régissant la propriété intellectuelle. L'Utilisateur ne pourra retirer les avis de propriété intellectuelle, les marques de commerce, et les avis de brevet ou de droit d’auteur du Progiciel. BMC conserve l’ensemble des droits non expressément concédés à l'Utilisateur par le Contrat. (b) Le Récipiendaire ne peut divulguer les Informations Confidentielles données par l’Emetteur à un tiers ou utiliser les Informations Confidentielles en violation du Contrat. Le Récipiendaire (i) exercera le même degré de soin et de protection à l'égard des Informations Confidentielles de l’Emetteur que celui qu'il exerce à l'égard de ses propres informations confidentiels, (ii) ne divulguera, copiera, distribuera, republiera ou n'autorisera aucun tiers à avoir accès aux Informations Confidentielles de l'Emetteur, que ce soit, directement ou indirectement. Nonobstant ce qui précède, le Récipiendaire pourra divulguer les Informations Confidentielles de l’Emetteur aux seuls employés et agents du Récipiendaire ayant besoin d’en connaître, sous réserve que ceux-ci soient liés par une obligation de confidentialité d’un niveau de protection équivalent à (et en aucun cas moins protectrice que) celle des présentes. Les obligations de confidentialité perdurent pendant toute la durée du Contrat et pendant une période de 10 ans après l’arrivée de leur terme, de leur résiliation ou de leur résolution, quelles qu’en soient les raisons ou le fondement (c) Obligation de Notification. Dans l’hypothèse où le Récipiendaire aurait accès aux Informations Confidentielles de l’Emetteur sans autorisation de la part de ce dernier, il devra en informer inmmédiatement l’Emetteur. Par ailleurs, dans l’hypothèse où le Récipiendaire ou l’un de ses employés ou agents doit divulguer les Informations Confidentielles de l’Emetteur (par le biais de questions orales, interrogatoires, demandes d’information, demandes de remises de documents dans le cadre d’une procédure judiciaire ou similaire) le Récipiendaire doit préalablement notifier par écrit à l’Emeteur de la divulgation de ses Informations Confidentielles, dans un délai commercialement raisonnable, afin de permettre à l’Emetteur d’obtenir une ordonnance ou tout autre recours approprié pour encadrer la divulgation des Informations Confidentielles, ou pour lever l’obligation de confidentialité. En tout état de cause, le Récipiendaire fournira tous efforts commercialement raisonnables pour préserver la confidentialité des Informations Confidentielles de l’Emetteur, y compris, coopérer sans limitation avec l’Emetteur afin d'obtenir une ordonnance ou une confirmation concernant le traitement confidentiel des Informations Confidentielles. |
4. RESTRICTIONS POUR L'UTILISATION. L'Utilisateur s’engage à ne pas: (a) modifier, effacer, supprimer ou retirer tous avis de propriété intellectuelle, marques de commerce, avis de brevet ou de droits d’auteur du Progiciel ou réaliser une copie totale ou partielle du Progiciel (« Notice d’Identification »); (b) copier tout Progiciel ou toute partie de tout Progiciel sans reproduire toutes les Notices d'Identification sur chaque copie ou copie partielle ; (c) désassembler, procéder à de la rétro-ingénierie, décompiler ou tenter par tout autre moyen d’obtenir le code source du Progiciel à partir du code objet, sauf si cela est expressément autorisé par la législation applicable et dans la mesure où il n’est pas possible d’y renoncer contractuellement; (d) distribuer, louer, céder, sous-licencier ou fournir le Progiciel à un tiers; (e) fournir à un tiers les résultats de toute évaluation fonctionnelle ou de tout test de performance sans avoir au préalable obtenu l’accord écrit de BMC ; (f) tenter de désactiver ou de contourner l'un quelconque des mécanismes de restriction des licences inclus dans le Progiciel; ou (g) enfreindre toute autre restriction d'utilisation contenue dans la documentation du Progiciel. 5. EXCLUSION DE GARANTIE ET LIMITATION DE RESPONSABILITÉ. LES PROGICIELS SONT FOURNIS " EN L'ÉTAT" AUX FINS DE REALISER UNE EVALUATION ET NE SONT ASSORTIS D’AUCUNE GARANTIE DE QUELQUE NATURE QU’ELLE SOIT, COMPRENANT SANS QUE CETTE LISTE NE SOIT LIMITATIVE, TOUTES GARANTIES IMPLICITES D’EXPLOITATION A UNE FIN PARTICULIERE, DE COMMERCIALISATION, ET DE NON-CONTREFAÇON, OU TOUTE AUTRE GARANTIE, EXPRESSE OU IMPLICITE. AUCUNE DES PARTIES, INCLUANT BMC, SES AFFILIÉS, SES FOURNISSEURS OU SES CONCEDANTS DE LICENCE NE POURRA ETRE TENUE POUR RESPONSABLE POUR TOUT DOMMAGE INDIRECT (Y INCLUS, SANS QUE CETTE LISTE SOIT LIMITATIVE, TOUTES PERTES DE BÉNÉFICES, D’ECONOMIES, D’EXPLOITATION, DE REVENUS, DE DONNÉES OU D'UTILISATION DES DONNÉES RESULTANT DE L'UTILISATION CONFORME DE CE PROGICIEL OU DE L’EXECUTION DE CE CONTRAT. LA RESPONSABILITÉ DE BMC, DE SES AFFILIÉS, DE SES FOURNISSEURS OU DE SES LICENCEURS POUR LES DOMMAGES RÉSULTANTS DIRECTEMENT DE L'UTILISATION CONFORME DU PROGICIEL OU DE L’EXECUTION DE CET ACCORD SERA LIMITÉE SOIT À LA SOMME PAYÉE PAR L'UTILISATEUR DE LA LICENCE D'UTILISATION, SOIT À 500,00 US DOLLARS, LA PLUS IMPORTANTE DES DEUX SOMMES ETANT RETENUE. IL EST ENTENDU QUE LA PRESENTE LIMITATION DE RESPONSABILITE NE S'APPLIQUERA PAS AUX DOMMAGES CAUSES PAR UNE FAUTE LOURDE OU INTENTIONNELLE IMPUTABLE A BMC OU EN CAS DE DOMMAGE CORPOREL. Par dérogation à l’article 1220 du Code civil, aucune des parties ne pourra suspendre le Contrat sans manquement prouvé de l’autre partie. Par ailleurs, en cas de manquement d’une des parties aux obligations à sa charge en vertu du Contrat, et notamment de l’article « Restrictions pour l’utilisation », pour quelque cause que ce soit (y compris en cas de force majeure), l’autre partie s’interdit de faire exécuter lesdites obligations par un tiers sans l’accord préalable et express de la partie défaillante. Aucun remboursement de frais, ni aucune avance ne pourront être demandés à la partie défaillante à ce titre sans son accord préalable et express. |
6. RESILIATION. Chacune des parties aux présentes peut résilier de plein droit le présent Contrat, à tout moment, sous réserve du respect d’un préavis écrit, notifié par lettre recommandée avec accusé de réception, de deux (2) semaines. À la date résiliation du Contrat ou à la date l'expiration de la Période d'Essai, si l'Utilisateur n'a pas obtenu une licence d'utilisation de ce Progiciel pour un environnement de production, l'Utilisateur devra (a) cesser immédiatement d'utiliser ce Progiciel, et (b) garantir par écrit à BMC qu’il a désinstallé et détruit, ou renvoyé à BMC, ce Progiciel et toutes les copies de ce Progiciel. Cette condition s'applique à toutes les copies, peu importe le format utilisé, qu’elles soient partielles ou totales, quelque soit le média employé et ce, qu’elles aient été ou n'ont incorporées dans d'autres supports. Ce Contrat ne crée aucune obligation pour BMC d'accorder à l'Utilisateur une licence pour quelque Progiciel que ce soit, ni pour l'Utilisateur d'acheter du materiel ou d’acquérir une licence de Progiciel auprès de BMC. Nonobstant toute disposition contraire contenue au présent article 6, si du matériel est fourni avec le Progiciel, l'Utilisateur devra, à la fin de la Période d'Essai, achèter le matériel ou le rendre à BMC dans un délai de cinq (5) jours ouvrés, dans son emballage d'origine. |
7. CONTRÔLES À L'EXPORTATION. L’Utilisateur déclare et garantit: a) qu’il respectera la réglementation régissant les exportations aux États-Unis (« les Export Administration Regulations ») ainsi que les autres lois et règlementations américaines ou étrangères applicables en matière d’exportations ; b) qu’il n’y a, parmi les personnes qui accèdent aux Progiciels ou qui les utilisent, aucun ressortissant de pays sous embargo (actuellement l’Iran, la Syrie, le Soudan, Cuba et la Corée du Nord) ; c) que les lois et règlementations applicables en matière d’exportation ne lui interdisent pas de recevoir et bénéficier des Progiciels ; d) qu’il n’acquérera pas les Progiciels pour une personne physique ou entité qui est visée par les restrictions prévues dans ces lois et règlementations; e) qu’il n’utilisera pas les Progiciels de façon contraire à ces lois et règlementations; et f) qu’il n’utilisera pas les Progiciels à des fins interdites par ces lois et règlements et notamment (mais non limitativement) en vue d’une utilisation pour la conception, le développement ou la production de missiles, armes nucléaires, chimiques ou biologiques. Pour les Progiciels exportés depuis l’Irlande, le Règlement du Conseil de l’Union Européenne N°428/2009 institue un régime communautaire de contrôle des exportations de biens à double usage, et il est stipulé que ces Progiciels seront exclusivement destinés à des fins civiles. Par conséquent, le Client accepte de se conformer aux lois et règlementations des États-Unis ainsi qu’à celles de l’Union Européenne et ne procédera à aucune exportation en violation de ces lois et règlementations ou sans disposer des autorisations nécessaires. En cas de manquement à ces lois et règlementations, l’Utilisateur perdra tous ses droits sur les Progiciels. 8. LOI APPLICABLE ET ATTRIBUTION DE COMPETENCE. Le Contrat sera régi par le droit français sans égard aux principes relatifs aux conflits de lois. Tous les différends nés du présent Contrat ou en rapport avec celui-ci qui n’auraient pas été résolus à l'amiable dans un délai de 15 jours suivant l’envoi d’une lettre recommandée avec accusé de réception précisant l’objet de la dispute relèveront exclusivement du Tribunal de Commerce de Nanterre. La Convention des Nations Unies sur les Contrats de Vente Internationales de Marchandises ne s’applique pas. Aucune disposition de ce Contrat n’empêchera l’une des Parties à demander une injonction immédiate de toute juridiction compétente sur les Parties et l’objet du différend. |
9. ACQUISITIONS PAR LE GOUVERNEMENT FÉDÉRAL DES ÉTATS-UNIS. Cette clause s'applique exclusivement aux acquisitions des Progiciels et de leur documentation couverts par le présent Contrat par ou pour le compte du gouvernement fédéral des Etats-Unis, ou par tout entrepreneur principal ou sous-traitant (peut importe le niveau de sous-traitant considéré) sous contrat, subvention, contrat de coopération ou lié par toute autre activité avec le gouvernement fédéral des Etats-Unis. Dans l'éventualité où les Progiciels seraient livrés au gouvernement fédéral des Etats-Unis, celui-ci reconnaît expressément que ces Progiciels seront considérés comme étant des "articles du commerce" au sens des réglementations sur les acquisitions fédérales (« Federal acquisition regulation(s)) applicables à cet achat. Les termes et conditions du présent Contrat s’appliquent à l'utilisation et la divulgation du Progiciel par le gouvernement fédéral des Etats-Unisaméricain, et prévalent sur d’eventuelles dispositions contraires. La dispositin additionnelle qui suit ne s'applique qu'aux achats régis par le " DFARS Subpart 227.4 (Octobre 1988) ": " Droits limités - L'utilisation, la reproduction et la divulgation des Progiciels par le Gouvernement fédéral des Etats-Unis sont soumises aux restrictions résultant du paragraphe (c)(1)(ii) de l’article relatif aux droits portant sur les données techniques et les logiciels informatiques DFARS 252.227-7013 (Oct. 1988) (« (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 (Oct. 1988) »). " 10. PROTECTION DES DONNEES. BMC et le Client acceptent quel'Accord sur le Traitement des Données, dont une copie est disponible sur https://www.bmc.com/content/dam/bmc/corporate/bmcdpa.pdf, s'applique aux produits BMC téléchargés, à moins qu'un Accord de Traitement des Données signé soit déjà signé et en vigueur entre BMC et le Client pour les Produits BMC concernés. Dans cette hypothèse, cette dernière version prévaudra. 11. MODALITES DIVERSES. Le fait pour une Partie de ne pas exercer un renoncement à recours pour toute violation par l’autre Partie d’une des obligations contractuelles à sa charge en vertu du présent Contrat ne pourra être interprété comme un renoncement à la poursuite de ladite violation ou de toute nouvelle violation. Si une des dispositions du présent Contrat était jugée invalide, ou nulle par une juridiction, cette disposition serait réputée écartée, sans que cela n’affecte la validité des autres dispositions du Contrat. Les parties reconnaissent avoir lu le présent Contrat et conviennent qu’il constitue l’intégralité de l’accord passé entre elles concernant son objet et qu’il annule et remplace toutes négociations et accords antérieurs ou concomitants intervenus entre les Parties relatifs audit objet. Le Contrat ne pourra être ni modifié ni abrogé, si ce n’est par le biais d’un avenant écrit signé par les représentants dûment habilités des deux parties. L'Utilisateur ne pourra céder ni transférer le présent Contrat sans avoir obtenu le consentement écrit préalable de BMC. Certains Progiciels BMC peuvent contenir des composantes logicielles d’éditeurs tiers qui sont déjà intégrés aux Progiciels BMC au moment de leur livraison à l’Utilisateur et qui ne peuvent être utilisés qu’avec lesdits Progiciels. Dans les cas où la documentation BMC contient des dispositions spécifiques relatives à ces composantes tiers, ces composantes tiers sont régis exclusivement par lesdites dispositions et non par celles du Contrat. Tout document additionel présenté à un représentant de BMC par l'Utilisateur et dont la signature par BMC constitue une condition préalable à toute visite par BMC sur le Site de l’Utilisateur est soumis aux dispositions du présent Contrat, et toute disposition complémentaire ou contradictoire avec celles du présent Contrat sera considérée comme nulle et non avenue. |
Si Vous consentez, en tant que représentant habilité de l'Utilisateur, à accepter les dispositions du présent Contrat pour votre propre compte et pour le compte de l'Utilisateur, et afin de confirmer que Vous et l'Utilisateur respecterez les termes et conditions définies ci-avant, cliquez sur le bouton " J'accepte " ci-dessous. |
Effective April 9th 2020 to April 9th 2020
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CONTRAT D'ESSAI DE PROGICIELS
CE CONTRAT D'ESSAI (" CONTRAT ") DEVIENDRA UN CONTRAT LEGALEMENT EXECUTOIRE ENTRE L'UTILISATEUR DU PROGICIEL TÉLÉCHARGÉ tel que nommé DANS LA SECTION « Export validation SECTION » DE LA PAGE INTERNET DUSUPPORT BMC (SUR LE SITE WWW.BMC.COM OU TOUT SITE QUI LUI SUCCEDERAIT) DONT CE CONTRAT FAIT PARTIE INTéGRANTE (L’" UTILISATEUR ") ET BMC SOFTWARE DISTRIBUTION, INC. OU SA SOCIETE AFFILIÉE LOCALE (" BMC "). EN CLIQUANT SUR " J'ACCEPTE ", VOUS RECONNAISSEZ ET GARANTISSEZ AVOIR LU ET COMPRIS LES TERMES DU PRESENT CONTRAT, ETRE HABILITÉ A REPRÉSENTER ET LIER L'UTILISATEUR À CE CONTRAT (« VOUS »), ET QUE L'UTILISATEUR CONSENT A ÊTRE ENGAGÉ PAR LES TERMES ET LES CONDITIONS DE CE CONTRAT. BMC ACCEPTE DE VOUS AUTORISER A PROCÉDER AU TÉLÉCHARGEMENT DU(ES) PROGICIEL(S) CONCERNES A LA SEULE CONDITION QUE VOUS ET L'UTILISATEUR AYEZ PREALABLEMENT ACCEPTÉ L’ENSEMBLE DES DISPOSITIONS CI-DESSOUS EN CLIQUANT SUR " J'ACCEPTE ". |
EN CONSEQUENCE, VEUILLEZ LIRE LE PRESENT CONTRAT: SI VOUS NE COMPRENEZ PAS OU SI VOUS N’ACCEPTEZ PAS L’UNE QUELCONQUE DE SES DISPOSITIONS, NE CLIQUEZ PAS SUR " J'ACCEPTE ". |
(1) DÉFINITION. Les "Informations Confidentielles" désignent toutes informations propriétaires et/ou confidentielles communiquées par l’une des parties aux présentes (l’"Emetteur ») à l’autre partie (le "Récipendiaire") et comprenant, en particulier, sans que cette liste soit limitative (i) toutes les informations de nature financière, ou relatives aux clients, employés, produits ou services, et notamment les codes objets et sources d’un logiciel, les graphiques, techniques, spécifications, plans de développement et de marketing, stratégies et prévisions de l’Emetteur; (ii) s’agissant de BMC et de ses concédants de licence, le Progiciel et tout logiciel tiers fourni avec le Progiciel ; et (iii) les dispositions du Contrat, y compris les éléments de tarification du Progiciel. Les Informations Confidentielles ne comprennent pas les informations pour lesquelles le Récipiendaire pourra démontrer : (a) qu’elles étaient, avant leur communication par l’Émetteur, légalement en sa possession sans être couvertes par une obligation de confidentialité; (b) qu’elles sont tombées dans le domaine public sans que le Récipiendaire n’ait commis la moindre faute à cet égard ; (c) que le Récipiendaire les a légalement reçues d’un tiers, sans violation d’une quelconque obligation de confidentialité ; ou (d) qu’elles sont ou ont été développées de manière indépendante par ou pour le Récipiendaire. Les "Progiciels" désignent les progiciels et leurs documentations associées ainsi que tout autre information technique y afférent, qui sont la propriété de BMC ou qui sont distribués par BMC, accessibles depuis le site Internet de BMC (www.bmc.com ou tout site Internet qui lui succèderait) et pour lesquels une licence a été accordée à l'Utilisateur en vertu du Contrat. La " Période d'essai " pour un Progiciel est la période qui commence à la date où vous téléchargez le Progiciel et se termine soit (a) trente jours calendaires après le téléchargement, ou soit (b) à l’expiration du nombre de jours calendaires spécifié dans la clé de la licence fournie avec le Progiciel, selon le premier de ces évènements qui intervient. |
(2) LICENCE D'ESSAI. BMC accorde à l’Utilisateur, pour une durée de de à compléter, une licence temporaire, non-transférable et non-exclusive d’'utilisation de chaque Progiciel sur un seul ordinateur pour la Période d'essai, uniquement dans le but de l'évaluer et de déterminer s'il souhaite acquérir un tel Progiciel moyennant le paiement d’une redevance, et non à des fins de développement, de commercialisation, de production, de gestion de banques de données, ou de production de données. L'Utilisateur doit conclure un contrat séparé pour obtenir les droits d’utilisation du Progiciel à des fins de production et pour l'assistance technique du(des) Progiciel(s). (3) DROITS DE PROPRIÉTÉ ET DE CONFIDENTIALITÉ. (a) BMC, ses affiliés ou ses concédants de licence conserveront l’ensemble des droits, y inclus les droits de propriété intellectuelle, titres et intérêts portant sur les Progiciels et le Support. Le Progiciel et tous les logiciels tiers fournis avec le Progiciel sont protégés par les lois applicables en matière de droits d'auteur, secrets commerciaux, propriété industrielle et toutes autres lois régissant la propriété intellectuelle. L'Utilisateur ne pourra retirer les avis de propriété intellectuelle, les marques de commerce, et les avis de brevet ou de droit d’auteur du Progiciel. BMC conserve l’ensemble des droits non expressément concédés à l'Utilisateur par le Contrat. (b) Le Récipiendaire ne peut divulguer les Informations Confidentielles données par l’Emetteur à un tiers ou utiliser les Informations Confidentielles en violation du Contrat. Le Récipiendaire (i) exercera le même degré de soin et de protection à l'égard des Informations Confidentielles de l’Emetteur que celui qu'il exerce à l'égard de ses propres informations confidentiels, (ii) ne divulguera, copiera, distribuera, republiera ou n'autorisera aucun tiers à avoir accès aux Informations Confidentielles de l'Emetteur, que ce soit, directement ou indirectement. Nonobstant ce qui précède, le Récipiendaire pourra divulguer les Informations Confidentielles de l’Emetteur aux seuls employés et agents du Récipiendaire ayant besoin d’en connaître, sous réserve que ceux-ci soient liés par une obligation de confidentialité d’un niveau de protection équivalent à (et en aucun cas moins protectrice que) celle des présentes. Les obligations de confidentialité perdurent pendant toute la durée du Contrat et pendant une période de 10 ans après l’arrivée de leur terme, de leur résiliation ou de leur résolution, quelles qu’en soient les raisons ou le fondement (c) Obligation de Notification. Dans l’hypothèse où le Récipiendaire aurait accès aux Informations Confidentielles de l’Emetteur sans autorisation de la part de ce dernier, il devra en informer inmmédiatement l’Emetteur. Par ailleurs, dans l’hypothèse où le Récipiendaire ou l’un de ses employés ou agents doit divulguer les Informations Confidentielles de l’Emetteur (par le biais de questions orales, interrogatoires, demandes d’information, demandes de remises de documents dans le cadre d’une procédure judiciaire ou similaire) le Récipiendaire doit préalablement notifier par écrit à l’Emeteur de la divulgation de ses Informations Confidentielles, dans un délai commercialement raisonnable, afin de permettre à l’Emetteur d’obtenir une ordonnance ou tout autre recours approprié pour encadrer la divulgation des Informations Confidentielles, ou pour lever l’obligation de confidentialité. En tout état de cause, le Récipiendaire fournira tous efforts commercialement raisonnables pour préserver la confidentialité des Informations Confidentielles de l’Emetteur, y compris, coopérer sans limitation avec l’Emetteur afin d'obtenir une ordonnance ou une confirmation concernant le traitement confidentiel des Informations Confidentielles. |
(4) RESTRICTIONS POUR L'UTILISATION. L'Utilisateur s’engage à ne pas: (a) modifier, effacer, supprimer ou retirer tous avis de propriété intellectuelle, marques de commerce, avis de brevet ou de droits d’auteur du Progiciel ou réaliser une copie totale ou partielle du Progiciel (« Notice d’Identification »); (b) copier tout Progiciel ou toute partie de tout Progiciel sans reproduire toutes les Notices d'Identification sur chaque copie ou copie partielle ; (c) désassembler, procéder à de la rétro-ingénierie, décompiler ou tenter par tout autre moyen d’obtenir le code source du Progiciel à partir du code objet, sauf si cela est expressément autorisé par la législation applicable et dans la mesure où il n’est pas possible d’y renoncer contractuellement; (d) distribuer, louer, céder, sous-licencier ou fournir le Progiciel à un tiers; (e) fournir à un tiers les résultats de toute évaluation fonctionnelle ou de tout test de performance sans avoir au préalable obtenu l’accord écrit de BMC ; (f) tenter de désactiver ou de contourner l'un quelconque des mécanismes de restriction des licences inclus dans le Progiciel; ou (g) enfreindre toute autre restriction d'utilisation contenue dans la documentation du Progiciel. (5) EXCLUSION DE GARANTIE ET LIMITATION DE RESPONSABILITÉ. LES PROGICIELS SONT FOURNIS " EN L'ÉTAT" AUX FINS DE REALISER UNE EVALUATION ET NE SONT ASSORTIS D’AUCUNE GARANTIE DE QUELQUE NATURE QU’ELLE SOIT, COMPRENANT SANS QUE CETTE LISTE NE SOIT LIMITATIVE, TOUTES GARANTIES IMPLICITES D’EXPLOITATION A UNE FIN PARTICULIERE, DE COMMERCIALISATION, ET DE NON-CONTREFAÇON, OU TOUTE AUTRE GARANTIE, EXPRESSE OU IMPLICITE. AUCUNE DES PARTIES, INCLUANT BMC, SES AFFILIÉS, SES FOURNISSEURS OU SES CONCEDANTS DE LICENCE NE POURRA ETRE TENUE POUR RESPONSABLE POUR TOUT DOMMAGE INDIRECT (Y INCLUS, SANS QUE CETTE LISTE SOIT LIMITATIVE, TOUTES PERTES DE BÉNÉFICES, D’ECONOMIES, D’EXPLOITATION, DE REVENUS, DE DONNÉES OU D'UTILISATION DES DONNÉES RESULTANT DE L'UTILISATION CONFORME DE CE PROGICIEL OU DE L’EXECUTION DE CE CONTRAT. LA RESPONSABILITÉ DE BMC, DE SES AFFILIÉS, DE SES FOURNISSEURS OU DE SES LICENCEURS POUR LES DOMMAGES RÉSULTANTS DIRECTEMENT DE L'UTILISATION CONFORME DU PROGICIEL OU DE L’EXECUTION DE CET ACCORD SERA LIMITÉE SOIT À LA SOMME PAYÉE PAR L'UTILISATEUR DE LA LICENCE D'UTILISATION, SOIT À 500,00 US DOLLARS, LA PLUS IMPORTANTE DES DEUX SOMMES ETANT RETENUE. IL EST ENTENDU QUE LA PRESENTE LIMITATION DE RESPONSABILITE NE S'APPLIQUERA PAS AUX DOMMAGES CAUSES PAR UNE FAUTE LOURDE OU INTENTIONNELLE IMPUTABLE A BMC OU EN CAS DE DOMMAGE CORPOREL. Par dérogation à l’article 1220 du Code civil, aucune des parties ne pourra suspendre le Contrat sans manquement prouvé de l’autre partie. Par ailleurs, en cas de manquement d’une des parties aux obligations à sa charge en vertu du Contrat, et notamment de l’article « Restrictions pour l’utilisation », pour quelque cause que ce soit (y compris en cas de force majeure), l’autre partie s’interdit de faire exécuter lesdites obligations par un tiers sans l’accord préalable et express de la partie défaillante. Aucun remboursement de frais, ni aucune avance ne pourront être demandés à la partie défaillante à ce titre sans son accord préalable et express. |
(6) RESILIATION. Chacune des parties aux présentes peut résilier de plein droit le présent Contrat, à tout moment, sous réserve du respect d’un préavis écrit, notifié par lettre recommandée avec accusé de réception, de deux (2) semaines. À la date résiliation du Contrat ou à la date l'expiration de la Période d'Essai, si l'Utilisateur n'a pas obtenu une licence d'utilisation de ce Progiciel pour un environnement de production, l'Utilisateur devra (a) cesser immédiatement d'utiliser ce Progiciel, et (b) garantir par écrit à BMC qu’il a désinstallé et détruit, ou renvoyé à BMC, ce Progiciel et toutes les copies de ce Progiciel. Cette condition s'applique à toutes les copies, peu importe le format utilisé, qu’elles soient partielles ou totales, quelque soit le média employé et ce, qu’elles aient été ou n'ont incorporées dans d'autres supports. Ce Contrat ne crée aucune obligation pour BMC d'accorder à l'Utilisateur une licence pour quelque Progiciel que ce soit, ni pour l'Utilisateur d'acheter du materiel ou d’acquérir une licence de Progiciel auprès de BMC. Nonobstant toute disposition contraire contenue au présent article 6, si du matériel est fourni avec le Progiciel, l'Utilisateur devra, à la fin de la Période d'Essai, achèter le matériel ou le rendre à BMC dans un délai de cinq (5) jours ouvrés, dans son emballage d'origine. |
(7) CONTRÔLES À L'EXPORTATION. L’Utilisateur déclare et garantit: a) qu’il respectera la réglementation régissant les exportations aux États-Unis (« les Export Administration Regulations ») ainsi que les autres lois et règlementations américaines ou étrangères applicables en matière d’exportations ; b) qu’il n’y a, parmi les personnes qui accèdent aux Progiciels ou qui les utilisent, aucun ressortissant de pays sous embargo (actuellement l’Iran, la Syrie, le Soudan, Cuba et la Corée du Nord) ; c) que les lois et règlementations applicables en matière d’exportation ne lui interdisent pas de recevoir et bénéficier des Progiciels ; d) qu’il n’acquérera pas les Progiciels pour une personne physique ou entité qui est visée par les restrictions prévues dans ces lois et règlementations; e) qu’il n’utilisera pas les Progiciels de façon contraire à ces lois et règlementations; et f) qu’il n’utilisera pas les Progiciels à des fins interdites par ces lois et règlements et notamment (mais non limitativement) en vue d’une utilisation pour la conception, le développement ou la production de missiles, armes nucléaires, chimiques ou biologiques. Pour les Progiciels exportés depuis l’Irlande, le Règlement du Conseil de l’Union Européenne N°428/2009 institue un régime communautaire de contrôle des exportations de biens à double usage, et il est stipulé que ces Progiciels seront exclusivement destinés à des fins civiles. Par conséquent, le Client accepte de se conformer aux lois et règlementations des États-Unis ainsi qu’à celles de l’Union Européenne et ne procédera à aucune exportation en violation de ces lois et règlementations ou sans disposer des autorisations nécessaires. En cas de manquement à ces lois et règlementations, l’Utilisateur perdra tous ses droits sur les Progiciels. (8) LOI APPLICABLE ET ATTRIBUTION DE COMPETENCE. Le Contrat sera régi par le droit français sans égard aux principes relatifs aux conflits de lois. Tous les différends nés du présent Contrat ou en rapport avec celui-ci qui n’auraient pas été résolus à l'amiable dans un délai de 15 jours suivant l’envoi d’une lettre recommandée avec accusé de réception précisant l’objet de la dispute relèveront exclusivement du Tribunal de Commerce de Nanterre. La Convention des Nations Unies sur les Contrats de Vente Internationales de Marchandises ne s’applique pas. Aucune disposition de ce Contrat n’empêchera l’une des Parties à demander une injonction immédiate de toute juridiction compétente sur les Parties et l’objet du différend. |
(9) ACQUISITIONS PAR LE GOUVERNEMENT FÉDÉRAL DES ÉTATS-UNIS. Cette clause s'applique exclusivement aux acquisitions des Progiciels et de leur documentation couverts par le présent Contrat par ou pour le compte du gouvernement fédéral des Etats-Unis, ou par tout entrepreneur principal ou sous-traitant (peut importe le niveau de sous-traitant considéré) sous contrat, subvention, contrat de coopération ou lié par toute autre activité avec le gouvernement fédéral des Etats-Unis. Dans l'éventualité où les Progiciels seraient livrés au gouvernement fédéral des Etats-Unis, celui-ci reconnaît expressément que ces Progiciels seront considérés comme étant des "articles du commerce" au sens des réglementations sur les acquisitions fédérales (« Federal acquisition regulation(s)) applicables à cet achat. Les termes et conditions du présent Contrat s’appliquent à l'utilisation et la divulgation du Progiciel par le gouvernement fédéral des Etats-Unisaméricain, et prévalent sur d’eventuelles dispositions contraires. La dispositin additionnelle qui suit ne s'applique qu'aux achats régis par le " DFARS Subpart 227.4 (Octobre 1988) ": " Droits limités - L'utilisation, la reproduction et la divulgation des Progiciels par le Gouvernement fédéral des Etats-Unis sont soumises aux restrictions résultant du paragraphe (c)(1)(ii) de l’article relatif aux droits portant sur les données techniques et les logiciels informatiques DFARS 252.227-7013 (Oct. 1988) (« (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 (Oct. 1988) »). " (10) PROTECTION DES DONNEES. BMC et le Client acceptent quel'Accord sur le Traitement des Données, dont une copie est disponible sur https://www.bmc.com/content/dam/bmc/corporate/bmcdpa.pdf, s'applique aux produits BMC téléchargés, à moins qu'un Accord de Traitement des Données signé soit déjà signé et en vigueur entre BMC et le Client pour les Produits BMC concernés. Dans cette hypothèse, cette dernière version prévaudra. (11) MODALITES DIVERSES. Le fait pour une Partie de ne pas exercer un renoncement à recours pour toute violation par l’autre Partie d’une des obligations contractuelles à sa charge en vertu du présent Contrat ne pourra être interprété comme un renoncement à la poursuite de ladite violation ou de toute nouvelle violation. Si une des dispositions du présent Contrat était jugée invalide, ou nulle par une juridiction, cette disposition serait réputée écartée, sans que cela n’affecte la validité des autres dispositions du Contrat. Les parties reconnaissent avoir lu le présent Contrat et conviennent qu’il constitue l’intégralité de l’accord passé entre elles concernant son objet et qu’il annule et remplace toutes négociations et accords antérieurs ou concomitants intervenus entre les Parties relatifs audit objet. Le Contrat ne pourra être ni modifié ni abrogé, si ce n’est par le biais d’un avenant écrit signé par les représentants dûment habilités des deux parties. L'Utilisateur ne pourra céder ni transférer le présent Contrat sans avoir obtenu le consentement écrit préalable de BMC. Certains Progiciels BMC peuvent contenir des composantes logicielles d’éditeurs tiers qui sont déjà intégrés aux Progiciels BMC au moment de leur livraison à l’Utilisateur et qui ne peuvent être utilisés qu’avec lesdits Progiciels. Dans les cas où la documentation BMC contient des dispositions spécifiques relatives à ces composantes tiers, ces composantes tiers sont régis exclusivement par lesdites dispositions et non par celles du Contrat. Tout document additionel présenté à un représentant de BMC par l'Utilisateur et dont la signature par BMC constitue une condition préalable à toute visite par BMC sur le Site de l’Utilisateur est soumis aux dispositions du présent Contrat, et toute disposition complémentaire ou contradictoire avec celles du présent Contrat sera considérée comme nulle et non avenue. |
Si Vous consentez, en tant que représentant habilité de l'Utilisateur, à accepter les dispositions du présent Contrat pour votre propre compte et pour le compte de l'Utilisateur, et afin de confirmer que Vous et l'Utilisateur respecterez les termes et conditions définies ci-avant, cliquez sur le bouton " J'accepte " ci-dessous. |
Effective April 9th 2020 to April 9th 2020
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CE CONTRAT D'ESSAI (" CONTRAT ") DEVIENDRA UN CONTRAT VALIDE ENTRE L'UTILISATEUR DU PRODUIT TÉLÉCHARGÉ INTITULÉ DANS LA SECTION DE VALIDATION D'EXPORTATION DU SITE INTERNET DE SUPPORT DE BMC (DANS WWW.BMC.COM OU TOUT SITE SUCCESSEUR) DONT CE CONTRAT EST UNE PARTIE (" L'UTILISATEUR ") ET BMC SOFTWARE DISTRIBUTION, INC. OU SON AFFILIÉ LOCAL POUR LA LICENCE (" BMC "). EN APPUYANT SUR LE BOUTON " J'ACCEPTE ", VOUS REPRÉSENTEZ ET GARANTISSEZ QUE VOUS AVEZ LU ET COMPRIS LES TERMES DE CE CONTRAT, QUE VOUS AVEZ L'AUTORITÉ DE LIER L'UTILISATEUR À CE CONTRAT, ET QUE L'UTILISATEUR CONSENT A ÊTRE LIÉ PAR LES TERMES ET LES CONDITIONS DE CE CONTRAT. BMC AGRÉE DE VOUS PERMETTRE DE TÉLÉCHARGER DES PRODUITS SEULEMENT SI ET APRÈS QUE VOUS ET L'UTILISATEUR AVEZ ACCEPTÉ TOUS LES TERMES EN APPUYANT SUR LE BOUTON " J'ACCEPTE ". |
VEUILLEZ LIRE CE CONTRAT: SI VOUS NE COMPRENEZ PAS OU SI VOUS N'AGRÉEZ AVEC N'IMPORTE QUEL DISPOSITION DE CE CONTRAT, N'APPUYEZ PAS SUR LE BOUTON " J'ACCEPTE ". |
(1) DÉFINITION DES TERMES. Les " Informations confidentielles " comprennent toutes les informations qui sont des informations propriétaires et/ou des informations confidentielles de la partie qui les divulguent et n'incluent pas des informations qui : (a) sont de bon droit en possession de la partie destinataire sans aucune obligation de confidentialité avant la réception par la partie qui les divulgue; (b) sont ou deviendront un sujet de connaissance de domaine public sans aucune faute de la partie destinataire ; (c) sont reçus de bon droit par la partie destinataire par un tiers sans violation de la responsabilité de confidentialité; ou (d) sont développées indépendamment par ou pour la partie destinataire. Les " Produits " sont des progiciels et leurs documentations correspondantes et autres informations techniques, qui sont la propriété ou sont distribués par BMC, accessibles sur le site Internet BMC EPD (www.bmc.com/ ou tout site Internet successeur) et pour lesquels une licence a été accordée à l'Utilisateur selon ce Contrat. La " Période d'essai " pour un Produit est la durée de la période qui commence à la date où vous téléchargez le Produit et se termine à la date la plus proche de soit (a) trente jours calendaires qui suivent, ou soit (b) le nombre de jours calendaires ci-après spécifié dans la clé de la licence fournie avec le Produit. |
(2) LICENCE D'ESSAI. BMC accorde une licence temporaire non-transférable et non-exclusive, pour l'utilisation de chaque Produit sur un seul ordinateur pour la Période d'essai, uniquement dans le but de l'évaluer et de déterminer s'il faudra acquérir un tel produit pour une certaine redevance, et non pas à des fins de développement, de commercialisation, de production, de gestion de banque de données, ou de production de données. L'Utilisateur doit conclure un contrat séparé pour obtenir les droits de production et l'assistance technique pour un Produit. Dans la mesure où un Produit comprend un code d'un tiers, si (a) le tel code d'un tiers est fourni pour être utilisé avec un Produit, il peut être utilisé seulement avec ce Produit; et (b) si la documentation contient des termes qui appartiennent à tel code d'un tiers, ces termes s'appliquent au code d'un tiers au lieu des termes de ce Contrat. |
(3) RESTRICTIONS POUR L'UTILISATION. L'Utilisateur ne doit pas: (a) retirer toutes les identifications du Produit, les notifications de droits d'auteur (" Copyright "), ou autres notifications ou restrictions de propriété des Produits, (b) occasionner ou permettre la décompilation, le désassemblage, l'ingénierie inverse ou toute autre tentative de dériver le code de la source du Produit à partir du code exécutable, sauf dans la mesure permise expressément par des lois ou des traités applicables en dépit de cette limitation; (c) divulguer les résultats de tout essai de performance de tout Produit à tout tiers sans un consentement préalable par écrit de BMC, (d) dupliquer, installer et/ou utiliser d'autres Produits que ceux stipulés dans ce Contrat, ou (e) sous-licencier, modifier, partager, louer, avoir un service bureau ou autrement partager ou transférer avec d'autres, ou permettre l'accès ou l'utilisation des Produits par tout tiers. L'Utilisateur ne peut pas exporter ou réexporter tous Produits sans avoir obtenu au préalable par écrit l'accord de BMC et des organismes gouvernementaux appropriés des Etats-Unis et/ou des pays étrangers concernant les licences ou les exceptions de licences. |
(4) RESILIATION. À la résiliation de ce Contrat ou à l'expiration de la période d'essai, si l'Utilisateur n'a pas obtenu une licence d'utilisation de production pour ce Produit, l'Utilisateur devra (a) cesser d'utiliser ce Produit, et (b) garantir par écrit à BMC que l'Utilisateur à désinstallé et détruit, ou a renvoyé à BMC, les Produits et toutes les copies de ces Produits. Cette condition requise s'applique à toutes les copies en toutes formes, partielles et complètes, sur tous les types de média de mémoire d'ordinateur et si elles ont été ou n'ont pas été incorporées dans d'autres matériaux. Ce Contrat ne crée aucune obligation de la part de BMC d'accorder la licence de tout Produit à l'Utilisateur ou de la part de l'Utilisateur d'acheter toute licence des Produits de BMC. |
(5) EXCLUSION DE GARANTIE ET LIMITATION DE RESPONSABILITÉ. LES PRODUITS SONT FOURNIS " EN L'ÉTAT " EN VUE SEULEMENT D'ÉVALUATION ET SANS AUCUNE GARANTIE, COMPRENANT SANS LIMITATION, TOUTES GARANTIES IMPLICITES OU D'APTITUDE A UNE FIN PARTICULIERE OU DE COMMERCIALISATION, ET DE NON-CONTREFAÇON, OU TOUTE AUTRE GARANTIE, EXPRIMÉE OU IMPLICITE. AUCUNE DES PARTIES COMPRENANT BMC, SES AFFILIÉS, SES FOURNISSEURS OU SES CONCEDANTS DE LICENCE NE SERA RESPONSABLE POUR TOUT DOMMAGE INDIRECT, ACCESSOIRE, SPÉCIAL, PUNITIF OU CONSÉQUENTIEL, OU TOUTE PERTE DE BÉNÉFICES, DE REVENUS, DE DONNÉES OU D'UTILISATION DE DONNÉES DE TOUTE CAUSE PROVENANT OU ÉTANT RELIÉE DE N'IMPORTE QUELLE FAÇON AVEC L'UTILISATION DE CE PRODUIT OU DE CE CONTRAT. LA RESPONSABILITÉ DE BMC, DE SES AFFILIÉS, DE SES FOURNISSEURS OU DE SES LICENCEURS POUR LES DOMMAGES RÉSULTANTS DE L'UTILISATION DU PRODUIT OU DE CET ACCORD SOIT EN CONTRAT OU SOIT EN PRÉJUDICE, SERA LIMITÉE À LA PLUS GRANDE VALEUR DE LA SOMME SOIT PAYÉE PAR L'UTILISATEUR DE LA LICENCE D'UTILISATION OU SOIT À 500,00 US DOLLARS. DANS LES PAYS INDIQUÉS DANS LE SOUS-PARAGRAPHE 9(F), CI-DESSOUS, LA LIMITATION DE RESPONSABILITÉ DE CE PARAGRAPHE NE S'APPLIQUERA PAS SI CE DOMMAGE A ÉTÉ CAUSÉ VOLONTAIREMENT OU PAR UNE FAUTE GRAVE DE L'UNE DES PARTIES. |
(6) DROITS DE PROPRIÉTÉ ET DE CONFIDENTIALITÉ. BMC, ses affiliés et/ou ses concédants de licence, quand cela s'applique, conservent tous les droits, les titres et les intérêts de ces Produits et tous les droits propriétaires et de propriétés intellectuelles qui s'y rapportent. Les Produits et tous les logiciels de tiers fournis avec le Produit sont protégés par les lois applicables concernant les droits d'auteur " Copyrights ", les secrets commerciaux, les propriétés industrielles et autres propriétés intellectuelles. BMC se réserve tous les droits qui n'ont été expressément accordés à l'Utilisateur. Les parties conviennent que les Produits sont des informations confidentielles de BMC. La partie destinataire (a) maintiendra les informations confidentielles de l'autre partie d'une façon confidentielle pendant cinq (5) années à partir de la date la plus postérieure entre (i) la date de divulgation ou (ii) la dernière utilisation du Produit et (b) divulgueront les informations confidentielles de l'autre partie aux seuls employés ou agents de la partie destinataire qui se sont engagés à ne pas divulguer de telles informations, par des obligations légales au moins aussi protectrices que celles de ce Contrat et qui ont besoin de prendre connaissance de ces informations pour accomplir leur travail. Rien n'empêchera chaque partie de divulguer les termes ou les prix de ce Contrat dans le cadre de toutes poursuites judiciaires provenant de ou étant en rapport avec ce Contrat ou de divulguer des informations à une entité gouvernementale de l'état ou fédérale, quand cela est requis par la loi. |
(7) LOIS SUR L'EXPORTATION. Les lois sur l'exportation et les règlements des États-Unis et d'autres lois locales relevant des régulations et des lois s'appliquent à ces Produits. Les utilisations par l'Utilisateur de ces produits (comprenant les données techniques) sont gouverné sont régies par de telles lois, et l'Utilisateur doit s'y soumettre, comprenant les régulations " d'exportations que l'on croit convenables " ou de " réexportations que l'on croit convenables ". L'Utilisateur consent qu'aucun Produit, aucune donnée, aucune information, aucun programme et/ou aucun matériel ne sera exporté, directement ou indirectement, en violation de ces lois ou ne sera utilisé pour tout propos interdit par ces lois, comprenant la prolifération d'armes nucléaires, chimiques ou biologiques ou le développement de technologie des missiles. En appuyant sur le bouton " J'accepte " ci-dessous, l'Utilisateur confirme également qu'il se conforme, maintenant et durant la période de l'essai, à chacune des déclarations suivantes:(a) L'Utilisateur n'est pas un citoyen, un ressortissant ou un résident, ou n'est pas sous le contrôle d'un des gouvernements de Cuba, d'Iran, du Soudan, d'Irak, de la Corée du Nord, de la Syrie ou de tout autre pays pour lesquels les Etats-Unis ont interdits l'exportation; et (b) L'Utilisateur ne téléchargera pas ou d'une autre façon n'exportera pas ou ne réexportera pas tout Produit, directement ou indirectement, à aucun des pays mentionnés ci-avant ou aux citoyens, aux ressortissants ou aux résidents d'aucun de tels pays; et (c) L'Utilisateur n'est pas indiqué sur les listes du Département du Trésor des États-Unis des ressortissants désignés spécialement, des terroristes désignés spécialement, ou des trafiquants de stupéfiants désignés spécialement ou est indiqué sur le tableau des commandes refusées par le Département du Commerce des États-Unis ; et (d) L'Utilisateur ne téléchargera pas ou d'une autre façon n'exportera pas ou ne réexportera pas tout Produit, directement ou indirectement, à toute personne présente sur toutes les listes mentionnées ci-avant; et (e) L'Utilisateur n'utilisera aucun Produit, ou ne permettra à aucun Produit d'être utilisé pour tout objectif interdit par les Etats-Unis ou par d'autres lois applicables, comprenant, sans limitation, le développement, la conception, la fabrication ou la production d'armes nucléaires, chimiques ou biologiques de destruction en masse. |
(8) INTEGRALITE. Ceci est le contrat complet entre les parties, et il supplante et remplace tous contrats antérieurs et contemporains et les négociations relatives à l'utilisation par l'Utilisateur de ces produits selon la base d'un essai. Ce Contrat ne peut être modifié que par un document écrit et signé par les deux parties. L'Utilisateur ne peut pas céder ou transférer ce Contrat sans un accord préalable écrit de BMC. Aucun défaut ou retard par l'une des parties pour exercer tout droit ou privilège ne devra être interprété comme une renonciation, ni tout exercice partiel ou unique ne devra empêcher tout autre exercice ou autre exercice postérieur, ou l'exercice de tout droit ou privilège au titre de ce Contrat. Dans le cas où toute clause de ce Contrat est déterminée comme étant invalide ou inapplicable, les clauses restantes de ce Contrat conserveront pleine force et en effet. |
(9) CHOIX DES LOIS ET DE LA JURIDICTION. Si l'Utilisateur est situé et utilisera ce Produit (a) en Argentine, les lois d'Argentine, sans considération des conflits des principes de lois, s'appliqueront à ce Contrat et la juridiction sera alors les tribunaux de Buenos Aires, et BMC et l'Utilisateur consentent à la juridiction personnelle de tels tribunaux pour de telles conditions, (b) au Brésil, les lois du Brésil, sans considération des conflits des principes de lois, s'appliqueront à ce Contrat et la juridiction sera dans les tribunaux de Sao Paulo, BMC et l'Utilisateur consentent à la juridiction personnelle de tels tribunaux pour de telles conditions, (c) dans les États-Unis du Mexique, les lois des États-Unis du Mexique, sans considération des conflits des principes de lois, s'appliqueront à ce Contrat et la juridiction sera dans les tribunaux de Mexico, et BMC et l'Utilisateur consentent à la juridiction personnelle de tels tribunaux pour de telles conditions, (d) le Japon, la Corée du Sud, la République populaire de Chine, les Régions Administratives Spéciales de Hong Kong ou de Macao, le Taiwan, les Philippines, l'Indonésie, la Malaisie, Myanmar, Singapour, Brunei, le Viêtnam, le Cambodge, le Laos, la Thaïlande, l'Inde, le Pakistan, l'Australie, la Nouvelle-Zélande , la Nouvelle-Guinée Papouasie ou tous les états des iles du pacifique, alors les lois substantives de Singapour, sans considération des conflits des principes de lois, s'appliqueront et la juridiction sera dans les tribunaux de Singapour, et BMC et l'Utilisateur consentent à la juridiction personnelle des dits tribunaux pour de telles conditions, (e) les États-Unis, Puerto Rico ou tout autre protectorat des É-U-A, le Canada, ou tout autre pays situé en Amérique centrale ou en Amérique du Sud qui n'a pas été spécifiquement indiqué ci-avant, les lois de l'état du Texas, sans considération des conflits de principes de lois, s'appliqueront à ce Contrat, et la juridiction sera avec les tribunaux fédéraux et ceux de l'état situés dans le Comté de Harris, au Texas, et BMC et l'Utilisateur consentent par la présente à la juridiction personnelle de tels tribunaux pour de telles conditions, et (f) dans les pays qui ne sont couverts par aucune des conditions précédentes, les lois des Pays-Bas, sans considération des conflits de principes de lois, s'appliqueront à ce Contrat, et les tribunaux d'Amsterdam seront compétents, et BMC et l'Utilisateur consent à la juridiction personnelle de tels tribunaux pour de telles conditions. |
Le choix des règles juridiques de toute juridiction et la convention des Nations Unies concernant les contrats pour la vente internationale de biens ne s'appliquent pas à ce Contrat. |
(10) MATIÈRES DIVERSES. BMC pourra, trente (30) jours calendaires après l'envoi d'une notification écrite préalable, vérifier l'utilisation des Produits par l'Utilisateur. L'Utilisateur devra coopérer pour une telle vérification et devra fournir une aide raisonnable et un accès aux informations. Dans les trente (30) jours calendaires après la réception de la notice en question, l'Utilisateur devra payer toutes les redevances dues révélées par la vérification. |
(11) ACQUISITIONS PAR LE GOUVERNEMENT FÉDÉRAL DES ÉTATS-UNIS. Cette clause s'applique à toutes les acquisitions de ce Produit assujetties par ce Contrat par ou au nom du gouvernement fédéral des États-Unis, ou par tout entrepreneur principal ou sous-traitant (come tout tiers) sous tout contrat, subvention, Contrat coopératif ou toute autre activité avec le gouvernement fédéral des États-Unis. En acceptant la livraison de ce Produit, le gouvernement par la présente consent que ce produit que ce Produit est qualifié comme étant " commercial " dans les limites de la signification des régulations d'acquisitions applicables à cet achat. Les termes et les conditions de ce Contrat devront appartenir à l'utilisation par le gouvernement et à la divulgation de ce Produit, et devra supplanter toutes conditions et termes contractuels qui sont en conflit. Si la licence octroyée par ce Contrat ne réussi pas à satisfaire les besoins du gouvernement ou est inconsistante en ce qui concerne la loi fédérale, le gouvernement accepte de retourner le Produit, inutilisé, à BMC. La clause additionnelle qui suit ne s'applique seulement qu'aux achats régis par " DFARS Subpart 227.4 (Octobre 1988) ": " Droits limités - L'utilisation, la reproduction et la divulgation par le gouvernement sont soumises aux restrictions comme définies dans le sous-paragraphe (c)(1)(ii) des droits de la clause des logiciels d'ordinateur et des données techniques à DFARS 252.227-7013 (Oct. 1988). " |
Si vous consentez, comme étant le représentant autorisé de l'Utilisateur, à accepter les termes ci-avant de cette licence pour le compte de vous-même et de l'Utilisateur, et de confirmer que vous et l'Utilisateur respectent et respecteront les termes et conditions définies ci-avant, cliquez sur le bouton " J'accepte " ci-dessous. |
Trial Agreement
Effective April 9th 2020
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トライアル契約書
本トライアル契約(「本契約」)は、本契約がその一部を構成しているBMCサポート・ウェブサイト(WWW.BMC.COMもしくはその後継ウェブサイトの中にあります。)の輸出確認欄にその名称を掲げられているダウンロード製品の使用者(「お客様」)とBMC SOFTWARE,INC又はそのライセンス許諾を行う現地の関連法人(「BMC」)との間の法的な同意を形成するものです。「I Agree (同意します) 」ボタンをクリックすることにより、あなたは、本契約の条項を読み、理解したこと、お客様に本契約の義務を負わせることについての権限を有していること、並びにお客様が本契約の条項及び条件に拘束されることに同意することを表明し、保証することになります。BMCは、「I Agree (同意します) 」ボタンのクリックにより、あなたとお客様がこれらの条項のすべてを承諾した場合に限り製品のダウンロードを許可することに同意します。 |
本契約をお読み下さい:あなたが本契約のいずれかの条項を理解しない場合又は同意しない場合には、「I Agree (同意します)」ボタンをクリックしないで下さい。 |
1. 定義 「機密情報」とは、開示者が受領者に開示する専有又は機密なすべての情報をいい、その中には、とりわけ、(i)開示者の財務情報、顧客、従業員、製品又はサービス、ソフトウェア・コード、フロー・チャート、手法、仕様、開発及びマーケティング計画、戦略、予測、並びに提案書に関する一切の情報、(ii)BMCのソフトウェア製品及びBMCのソフトウェア製品と一緒に提供される第三者のソフトウェア、並びに(iii)本契約の各条項(製品価格情報を含む)、が含まれます。また、受領者が証明できる場合には以下の情報は機密情報には含まれません。すなわち、(a)開示者から受領する前から機密保持義務のない状態で正当に受領者の占有下にあった情報、(b)公知の事項であること又は受領者の過失によることなしに公知の事項になった情報、(c)受領者が機密保持の責務に違反することなく第三者から正当に受領した情報、又は(d)受領者により又は受領者のために独自に開発された情報。「対象製品」とは、BMCが所有する又は頒布するソフトウェア製品又はハードウェア製品、及びそれらの関連ドキュメンテーション並びにその他の技術情報であって、BMCのEPDウェブサイト上(( WWW.BMC.COMもしくはその後継ウェブサイト)でアクセスでき、お客様が本契約に基づいてそのライセンス許諾を受けるものをいいます。対象製品についての「トライアル期間」とは、当該対象製品をダウンロードした日に開始し、(a)その後30日又は(b)当該対象製品とともに提供されるライセンス・キーに特定されている日数の、いずれか早く到来する時点で終了するまでの期間をいいます。 |
2. トライアル・ライセンス BMCは、当該対象製品のライセンスを有償で取得するかどうかを内部的に評価、判断することのみを目的として、トライアル期間中に対象製品を1台のコンピューター上で使用する、非独占的で譲渡不能な一時的ライセンスを、お客様に許諾します。当該対象製品を開発、商取引、実運用、若しくはデータべース管理を目的として使用してはならず、又は実運用データとともに使用することはできません。お客様は、対象製品を実運用に用いたり技術サポートを受けたりする権利を取得するためには別途の契約を締結しなければなりません。 |
3. 所有権および守秘義務 a) BMC、その関連会社および使用許諾者は、対象製品、サポート及び関連する全ての知的所有権・所有権に関するすべての権利を保有しています。対象製品及び対象製品に付属する第三者のすべてのソフトウェアは、著作権法、営業秘密法、商標法、工業所有権並びにその他の知的財産法等によって保護されています。お客様は、対象製品から製品識別表示、著作権に関する表示、トレードマーク又はその他の表示を取り除いてはいけません。BMCは、本契約において明示的にお客様に許諾していない限り、すべての権利を留保します。b)「機密情報」とは、開示者(以下「開示者」という)によって受領者(以下「受領者」という)に開示されたすべての専有または機密の情報をいい、次のものを含みます。すなわち、(b) 受領者は、開示者の機密情報をいかなる第三者にも開示したり、本契約に違反する形態で機密情報を使用したりすることはできません。受領者は(i) 開示者からの機密情報を自己の機密情報に払うのと同等の注意をもって管理し、(ii) 直接か間接かを問わず、開示、複製、配布、再出版またはいかなる第三者への閲覧を許可してはなりません。ただし、受領者は、受領者の業務上知る必要がある従業員および代理人に、本契約の条項と同等以上の機密保持に対する法的責任を負わせることを条件に、開示者の機密情報を開示することができます。c) 通知義務 受領者が開示者からの機密情報の不正な使用・開示を見つけた場合は、受領者はすみやかに開示者にその事実を伝えるものとします。さらに、受領者、その従業員または代理人が(口頭尋問、審問、訴訟手続きにおける情報開示または証拠書類の提出請求、召喚、民事調査請求、またはそれらに類する過程において)開示者からの機密情報を開示するよう求められた場合は、受領者は、開示者が保護命令や他の適切な救済措置を求めたり本条項における権利を放棄したりするために、機密情報を開示者の商業的に妥当な事前の書面による承認なしに開示することはできません。いかなる場合においても、受領者は開示者からの機密情報の機密性を維持するための商業的に妥当な努力をするものとします。これには機密情報が機密扱いされるために、適切な保護命令またはその他の信頼に足る保証が得られるよう開示者に協力することを含みます。 |
4. 使用制限事項 お客様は、次に挙げる行為をすることはできません。(a)対象製品から所有権、権原、商標、特許権、著作権など(「アイデンティフィケーション」)関する表記を改変、削除、除去すること、(b)対象製品(全体であっても一部であっても)を、各コピー上または部分コピー上にすべてのアイデンティフィケーションを複製することなしにコピーすること、(c)契約上の権利放棄の可能性となるものではないが、対象製品の実行可能コードからソース・コードを派生させるためにデコンパイル、逆アセンブル、リバース・エンジニアリングすること、若しくはその他の方法でこれを派生させようと試みること又は許可すること(但し、適用法又は条約により明示的に許可される範囲においてはこの限りではありません。)、(d)対象製品を第三者に配布、レンタル、リース、サブリース、又は提供すること、 (e) BMCの事前の書面による承認なしに、機能評価、または性能テストの結果を第三者に提供すること、 (f)対象製品に含まれているライセンス許諾の仕組を無効化または回避しようと試みること、又は(g)ドキュメントに記載されているその他の使用制限に違反すること。 |
5. 保証の否認及び責任の限定 対象製品は、評価の目的のためだけに、「現状のまま」提供されます。BMCは、特定目的への適合性、商品性、第三者の権利の不侵害を含む一切の保証を、明示若しくは黙示の保証を問わず、いたしません。BMC、その関連法人、サプライヤー又は使用許諾権者はいずれも、対象製品の使用又は本契約に起因して生じた若しくは関連して生じた間接的、付随的、特別的、懲罰的又は派生的な損害、あるいは利益、収益、データ若しくはデータ使用の逸失について責任を負いません。契約責任、不法行為責任を問わず、対象製品の使用又は本契約の結果として生じた損害金に関するBMC、その関連法人、サプライヤー及び使用許諾権者の責任は、対象製品を使用するライセンスを受けるためにお客様が支払った金額か又は500ドルかの、いずれか多い方を上限とします。後記9(E)に記載する各国においては、いずれかの当事者の故意又は重大な過失により損害が発生した場合には、本条項の責任の限定は適用されません。 |
6. 終了 両当事者は、2週間以上前に相手方に通知することで本契約をいつでも終了することができます。本契約の終了時又はトライアル期間の満了時に、お客様が対象製品の使用許諾ライセンスを取得していない場合、お客様は、(a)対象製品の使用を中止し、(b)対象製品及びその製品のすべてのコピーをアンインストールし、製品等の破棄又はBMCへ返還したことをBMCに対する書面により証明するものとします。当該要件は、すべての形式のコピー、部分コピー及び全体コピー、すべての種類の媒体及びコンピューター・メモリー内のコピーに対し適用され、他の資料に統合されているかどうかを問いません。本契約は、BMCがお客様に対象製品をライセンスする義務を課すものではなく、また、お客様がBMCから対象製品を購入する義務を課すものではありません。 6条の規定にかかわらず、対象製品にハードウェアが含まれている場合は、お客様はトライアル期間の満了後5営業日以内に当該ハードウェアを購入するかBMCに返却するものとします。 |
7. データ保護 BMCとお客様は、データ処理に関する合意書(BMCのウェッブサイト https://www.bmc.com/content/dam/bmc/corporate/bmcdpa.pdf で閲覧することができます)をダウンロードされたBMC製品に適用することに同意します。すでにBMCとお客様が締結済みの場合は、当該締結済みの合意書が適用されます。 |
8. 輸出規制 お客様は以下のことを表明し保証するものとします。すなわち、a) the United States Export Administration Regulationおよびその他のアメリカ合衆国または他の国の輸出に関する規制に準拠すること、 b) 通商を停止している国(本契約書作成時点においてはイラン、シリア、スーダン、キューバ、および北朝鮮)に所在するまたはそれらの国から来た個人に製品にアクセスさせたり使わせたりしないこと、c) 該当する規制により製品を受領することを禁じられていないこと、d) 該当する規制で禁じられている者のために製品を取得しないこと、e) 該当する規制に反して製品を使用しないこと、および f) 禁じられた使用(核兵器、化学兵器、ミサイル、または生物兵器を含みますがこれらに限定されません)のために製品を用いないこと。アイルランドから輸出された製品に関して、欧州連合輸出管理規則No. 428/2009は民生・軍事のどちらにも利用できる品目・技術の輸出を管理する委員会体制を定めており、製品は民間利用のみを目的とするものであると申告されています。従って、お客様は、アメリカ合衆国の規制およびこの欧州連合輸出管理規則の両方に準拠し、これらの規制に違反して製品を輸出しないことに同意するものとします。これらの規制に対するお客様の不履行があった場合、製品に対するお客様の全ての権利は没収されるものとします。 |
9. 準拠法及び裁判管轄 一方当事者は、本契約に起因するまたは関連する(あるいは本契約の形体、説明、違反、終了、有効性についての)論争、意義、要求(「論争」)がある場合には、相手方当事者に書面で通知するものとし、両当事者は、論争を解決するために誠意を持って協議するものとします。書面が送付されてから15日以内に誠意を持った協議を経ても論争が解決しない場合に限り、以下に示す両当事者が所在する地において、訴訟または拘束力のある仲裁によって論争を解決するものとします。 (i) 本契約における両当事者がアメリカ合衆国のいずれかの州法の下に法人組織となっている場合は、論争はテキサス州ヒューストンの州裁判所または連邦裁判所においてテキサス州法に基づいて審問されるものとします。両当事者は、テキサス州ヒューストンの裁判所の専属的管轄権に服し、フォーラム・ノン・コンビニエンス(他の裁判所が紛争を審理する上で適切、かつより便宜な法廷地であると認められる場合には、申立を却下することができるという法理)に基づいた防御を放棄するものとします。 (ii) 本契約における両当事者がヨーロッパ、中東、またはアフリカ地域において法人組織となっている場合には、オランダ国アムステルダムにおいて、その時点で有効な国際商工会議所の規則およびオランダ国の実体法に基づいて、仲裁が行わるものとします。 (iii) 本契約における両当事者がアジア太平洋地域において法人組織となっている場合には、シンガポールにおいて、その時点で有効なシンガポール国際仲裁センターの規則およびシンガポール国の実体法に基づいて、仲裁が行われるものとします。 (iv) それ以外の場合には、仲裁はニューヨーク州ニューヨークにおいて、その時点で有効な米国仲裁協会の規則およびテキサス州の実体法に基づいて、仲裁が行われるものとします。 すべての仲裁は、(a)英語で行われ、(b)仲裁人の数は関連する仲裁協会によって決定されますが、議論される金額が1千万米ドルを超える論争については3人の仲裁人とし、両当事者が1名ずつ仲裁人を選べるものとし、(c) 仲裁人の裁定が出るまでの仲裁の費用は均等に負担するものとし、(d) 仲裁の裁定は両当事者にとって最終的で拘束力を有するものであり、いかなる法廷にも上告せず、審理権を有した法廷で施行されるものとし、(e) 仲裁の手続き、裁定および申し開きは、特定の情報の開示が裁定の執行/忌避のために求められたり、またはセキュリティに関連する法が開示を求めたりしない限りは、機密情報として扱われるものとし、(f) 仲裁で勝訴した当事者は仲裁に関係して生じた妥当な弁護人費用やその他の必要経費の返済を相手側当事者に請求することができます。 製品の国際的販売についての契約における管轄に関する法律および国際協定は、本契約には適用されません。本契約のいかなる条項も、当事者に対して裁判権を持ついずれかの法廷から当事者が差止めによる救済を要求することができないとみなすものではありません。 |
10. 米国政府による権利取得 米国政府による取得 本条項は、米国政府または米国政府との契約、許諾、同意、またはその他の活動によって米国政府の請負人または下請人となった者による本契約に基づく対象製品およびドキュメントの商業的な取得に対してのみ適用されます。対象製品が米国政府に提供されることにより、米国政府は、米国政府の取得に関する規制の範囲において、製品が「市販品」として適格であることに合意したものと見なされます。本契約の規定は、米国政府による製品の使用と開示に関連しており、いかなる相反する契約条件があってもそれらに優先します。以下の追加表明は、DFARS Subpart 227.4 (1988年10月)に基づいた取得に限り適用されます。「制限的使用 - 米国政府による使用、複製または開示には、DFARS 252.227-7013 (1988年10月)の「技術データおよびコンピュータソフトウェアの権利」条項の第(c) (1) (ii)項で規定される制限が適用されます」。 |
11. 雑則 一方当事者が相手方当事者による本契約の規定の違反に対してその責任を問わなかったとしても、相手方当事者の継続的な違反または以後の違反も免責されると解釈されるものではありません。本契約のいずれかの規定が無効または執行不能となった場合においても、残余の規定は有効に存続するものとします。両当事者は、本契約書を読んでいること、本契約書が本契約の主題に関わる両当事者間での完全かつ唯一の合意表明であり、過去または現在における両当事者間におけるいかなる交渉や合意にも優先することを認識します。両当事者間には、本契約において定められている以外の表明、約束、保証、誓約、または引受義務は存在しません。両当事者が署名または捺印した書面によらない限り、本契約を変更したり無効にしたりすることはできません。仲裁で勝訴した当事者は仲裁に関係して生じた妥当な弁護人費用やその他の必要経費の返済を相手側当事者に請求することができます。お客様は、BMCの事前の書面による同意なしに本契約を譲渡したり移転したりすることはできません。対象製品が第三者が所有権を有するソフトウェアを自らの一部として抱合している場合は、それらを対象製品から取り出したり、対象製品と分けて使用したりすることはできません。当該第三者ソフトウェアに関してドキュメントに追加条項が記載されている場合があります。BMCが派遣する者がお客様の施設に立ち入る条件としてお客様が署名を求めて提示する書面も本契約が拘束する対象となり、当該書面に本契約に対する追加の条件または本契約に矛盾する条件が含まれている場合は効力を有しないものとします。 |
あなたが、お客様を代表する権限を有する者として、自己及びお客様のために上記のライセンス条項を承諾すること、並びに自己及びお客様が上に明記されている条項及び条件のすべてを遵守し、また、遵守し続けることを確認することに同意する場合、以下の「I Agree (同意します)」ボタンをクリックして下さい。 |
Effective April 9th 2020 to April 9th 2020
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本トライアル契約(「本契約」)は、本契約がその一部を構成しているBMCサポート・ウェブサイト(WWW.BMC.COMもしくはその後継ウェブサイトの中にあります。)の輸出確認欄に名称を掲げられているダウンロード製品の使用者(「お客様」)とBMC SOFTWARE DISTRIBUTION,INC又はそのライセンス許諾を行う現地の関連法人(「BMC」)との間の法的な同意を形成するものです。「I Agree (同意します) 」ボタンをクリックすることにより、あなたは、本契約の条項を読み、了解したこと、お客様に本契約の義務を負わせることについての権限を有していること、並びにお客様が本契約の条項及び条件に拘束されることに同意することを表明し、保証することになります。BMCは、「I Agree (同意します) 」ボタンのクリックにより、あなたとお客様がこれらの条項のすべてを承諾した場合に限り製品のダウンロードを許可することに同意します。 |
本契約をお読み下さい:あなたが本契約のいずれかの条項を了解しない場合又は同意しない場合には、「I Agree (同意します)」ボタンをクリックしないで下さい。 |
(1) 定義 「機密情報」とは、開示者の専有の情報及び/又は機密情報に該当するすべての情報のことであり、これには、以下に該当する情報は含まれません。すなわち、(a)開示者から受領前から機密保持義務のない状態で正当に受領者の占有下にあったもの、(b)公知の事項であるもの又は受領者の過失によることなく公知の事項となったもの、(c)機密保持の責務に違反しない状態で受領者が第三者から正当に受け取ったもの、又は(d)受領者により又は受領者のために独自に開発されたもの。「対象製品」とは、BMCが所有する又は頒布するソフトウェア製品及びそれに関係するドキュメンテーション並びにその他の技術情報であって、BMCのEPDウェブサイト上(( WWW.BMC.COMもしくはその後継ウェブサイト)でアクセスでき、お客様が本契約に基づいてそのライセンス許諾を受けるものをいいます。対象製品についての「トライアル期間」とは、当該対象製品をダウンロードした日に開始し、(a)その後30日又は(b)当該対象製品とともに提供されるライセンス・キーに特定されている日数の、いずれか早く到来する時点で終了するまでの期間をいいます。 |
(2) トライアル・ライセンス BMCは、トライアル期間中、各対象製品を1台のコンピューター上で使用し、専ら内部的に当該対象製品のライセンスを有償で取得するかどうかを評価、判断することを目的とする、非独占的で、譲渡不能な一時的ライセンスをお客様に許諾します。なお、当該対象製品を開発、商取引、プロダクション、若しくはデータべース管理を目的として使用してはならず、又はプロダクション・データとともに使用してなりません。お客様は、対象製品についてプロダクション権及び技術サポートを取得するためには個別の契約を締結しなければなりません。対象製品に第三者のコードが含まれている場合、その範囲で、(a)当該第三者コードが対象製品とともに使用されるために提供されている場合、当該コードは、対象製品とともにのみ使用することができ、(b)当該第三者のコードに関連する条件がドキュメンテーションに含まれている場合には、当該条件が本契約の条項に代わり、第三者のコードを規律します。 |
(3) 使用制限事項 お客様は、次に挙げる行為をすることはできません。(a)対象製品から製品識別表示、著作権に関する表示、又はその他の製品に関する表示若しくは所有に関する制限表示を取り除くこと、(b)対象製品の実行可能コードからソース・コードを派生させるためにデコンパイル、逆アセンブル、リバース・エンジニアリングすること、若しくはその他の方法でこれを派生させようと試みること又は許可すること(但し、適用法又は条約により明示的に許可される範囲においてはこの限りではありません。)、(c)BMCの事前の書面による許可なく、第三者に対象製品の性能テストの結果を提供すること、(d)本契約に明記されている以外に、対象製品を複製、インストール又は使用すること、又は(e)第三者に対し対象製品をサブライセンス、修正、タイムシェアリング、貸与すること、サービス・ビューロー業務に用いること若しくはその他の方法で譲渡、共有すること、又は第三者による対象製品へのアクセスや使用を許可すること。お客様は、BMCの書面による同意と米国政府、その他対象国政府の許可若しくは許可の免除を得ることなくして対象製品を輸出又は再輸出することができません。 |
(4) 終了 本契約の終了時又はトライアル期間の満了時に、お客様が対象製品の使用許諾ライセンスを取得していない場合、お客様は、(a)対象製品の使用を中止し、(b)対象製品及びその製品のすべてのコピーをアンインストールし、製品等の破棄又はBMCへ返還したことをBMCに対する書面により証明するものとします。当該条件は、すべての形式のコピー、部分コピー及び全体コピー、すべての種類の媒体及びコンピューター・メモリー内のコピーに対し適用され、他の資料に統合されているかどうかを問いません。本契約は、BMCがお客様に対象製品をライセンスする義務を課すものではなく、また、お客様がBMCから対象製品を購入する義務を課すものではありません。 |
(5) 保証の否認及び責任の限定 対象製品は、評価の目的のためだけに、「現状のまま」提供されます。BMCは、特定目的への適合性、第三者の権利を侵害していないこと等、明示若しくは黙示の保証を問わず、一切の保証をいたしません。BMC、その関連法人、サプライヤー又は使用許諾権者は、いずれも、原因のいかんを問わず、対象製品の使用若しくは本契約に関連、派生して生じた間接的、付随的、懲罰的損害又は利益、収益、データ若しくはデータ使用の逸失について責任を負いません。契約責任、不法行為責任を問わず、対象製品の使用又は本契約の結果として発生した損害金に関するBMC、その関連法人、サプライヤー及びライセンサーの責任は、対象製品を使用するライセンスを受けるためにお客様が支払った金額か又は500ドルかの、いずれか多い方を上限とします。後記(9)の(E)に記載する各国においては、いずれかの当事者の故意又は重大な過失により損害が発生した場合、本条項の責任の限定は適用されません。 |
(6) 所有権及び機密保持 BMC、その関連法人及び使用許諾権者は、対象製品に関するすべての権利、権原及び利権並びに関係するすべての知的財産権及び所有権を保有します。対象製品及び対象製品とともに提供される第三者のソフトウェアは、適用される著作権法、 商標法、工業所有権法及びその他の知的財産権に関する法により保護されています。BMCは、お客様に明示的に許諾していない権利を留保します。両当事者は、対象製品がBMCの機密情報に該当することに同意します。受領者は、(a)開示者の機密情報を(ⅰ)開示日から又は(ⅱ)対象製品の最後の使用から5年間、その機密を保持し、(b)受領者の従業員、代理人に対しても、本契約と同等の機密情報についての法的義務を負わせ、職務遂行に必要な者に対してのみ機密情報を開示するものとします。但し、各当事者が本契約、本契約に関連して生ずる法的手続の中で本契約の条項、価格設定を開示すること又は法の定めにしたがって、政府または地方自体等に対し機密情報を開示することを妨げるものではありません。 |
(7) 輸出関連法 米国の輸出に関する法律及び規則並びにその他の関連する現地の輸出に関する法律及び規則が対象製品に適用されます。お客様による対象製品(技術データを含みます)の使用は、これらすべての法令(「みなし輸出」及び「みなし再輸出」に関する規則を含みます)により規制され、お客様は、それらを遵守しなければなりません。お客様は、対象製品、データ、情報、プログラム、資料を、直接的、間接的に、これらの法令に違反して輸出しないこと、又これらの法令が禁止する目的(核兵器、化学兵器、生物兵器の拡散若しくはミサイル技術の開発を含みます)に使用しないことに同意します。また、以下の「I agree (同意します)」ボタンをクリックすることにより、お客様が、現在及びトライアルの期間中、以下の各事項を遵守することを確認するものとします。 (a) お客様がキューバ、イラン、スーダン、イラク、北朝鮮、シリア若しくは米国が輸出を禁止している国の市民、国民若しくは居住者ではなく、又はそれらの国の政府の統制下にないこと。 (b) お客様が、直接的にも又は間接的にも、上記の各国に対し又は当該各国の市民、国民若しくは居住者に対し対象製品をダウンロードせず、その他の方法で輸出、再輸出しないこと。 (c) お客様が米国財務省の特別指定国民、特別指定テロリスト、若しくは特別指定麻薬不正取引者のリストに掲載されておらず又は米国商務省の受注拒否一覧表に掲載されていないこと。 (d) お客様が、直接的にも又は間接的にも、上記の各リストに掲載されている者に対し対象製品をダウンロードせず又はその他の方法で輸出、再輸出しないこと。 (e) お客様が米国法又はその他の適用される法律が禁止する目的(大量破壊核兵器、化学兵器又は生物兵器の開発、設計、製造又は生産を含みますがそれに限定されません)に対象製品を使用せず、又は対象製品が使用されるのを認めないこと。 |
(8) 完全なる同意 本契約は、お客様がトライアル・ベースで対象製品を使用することに関する両当事者の完全な同意であり、事前及び現時点でのすべての同意及び交渉に代わるものです。本契約は、両当事者の署名のある書面による場合に限り変更することができます。お客様は、BMCの事前の書面による同意なしに本契約を譲渡又は移譲することはできません。一方当事者が特定の権利、権原若しくは特権を行使しなかったこと又は行使していないことが権利等の放棄としてみなされることはありません。また、当該権利等の1回の行使又は部分的な行使が、他の権利等の行使若しくは追加の行使を妨げたり、又は本契約に基づく各権利、権原若しくは特権の行使を妨げることはありません。本契約の特定の規定が無効又は履行不能と判断された場合でも、他の規定は、完全な効力及び効果を維持するものとします。 |
(9) 準拠法及び裁判管轄 お客様が次に掲げる場所に所在し、対象製品を使用する場合には、法の抵触に関する原則を考慮することなく、以下に記載する準拠法と管轄が適用され、BMCとお客様は、法的紛争につき、これにしたがうものとします。(a)お客様がアルゼンチンに所在し、そこで対象製品を使用する場合、アルゼンチン法が本契約に適用され、管轄権はブエノスアイレスの裁判所にあるものとします。(b)お客様がブラジルに所在し、そこで対象製品を使用する場合、ブラジル法が本契約に適用され、管轄権はサンパウロの裁判所にあるものとします。(c)メキシコに所在し、そこで対象製品を使用する場合、メキシコ法が本契約に適用され、管轄権はサンホセの裁判所にあるものとし、(d)日本、韓国、中国、香港またはマカオの特別行政区、台湾、フィリピン、インドネシア、マレーシア、シンガポール、ブルネイ、ベトナム、カンボジア、ラオス、タイ、インド、パキスタン、オーストラリア、ニュージーランド、パプアニューギニア、その他太平洋地域の各国に所在し、そこで対象製品を使用する場合、シンガポール法が本契約に適用され、管轄権はシンガポールの裁判所にあるものとします。(e)米国、プエルトリコもしくは米国保護国の各国、カナダ、上記に記載のない中南米の各国に所在し、そこで対象製品を使用する場合、テキサス州法が本契約に適用され、管轄権はテキサス州ハリス郡に位置する州裁判所又は連邦裁判所にあるものとし、(f)前記に記載のない各国に所在し、そこで対象製品を使用する場合、オランダ法が本契約に適用され、管轄権はアムステルダムの裁判所にあるものとします。 |
製品の国際的販売についての契約における管轄に関する法律および国際協定は、本契約には適用されません。 |
(10) 雑則 BMCは、30日前までの書面による通知により、お客様による対象製品の使用を監査できるものとします。お客様は、当該監査に協力しなければならず、合理的な援助及び情報へのアクセスを提供しなければなりません。お客様は、その旨の通知を受け取ってから30日以内に、監査で判明した手数料の支払不足分を支払わなければなりません。 |
(11) 米国政府による権利取得 本条項は、米国政府の代理人、米国政府に協力する契約をしている契約者その従事者、もしくは共同活動しているその他の者が本契約にしたがい、対象製品を取得した場合に適用されます。対象製品を受領した場合 には、米国政府は、対象製品の取得に適用される規制にしたがって対象製品が商業製品としての資格を有することに同意します。本契約の条件と条項は、対象製品に関する米国政府の使用と公開について適用され、また抵触する条件等に優先するものとします。本契約により許諾されたライセンスが米国政府の要請を充足できない場合、または米国の法令に反する場合、米国政府は、本製品をBMCに未使用の状態で返還することに同意します。次の文言は、DFARS Subpart 227.4(1998 年10月)により取得された場合に限り適用されます。権利の制限:米国政府による使用、複製および公開は、DFARS 252.227‐7013(1998年10月)に規定される技術データおよびコンピュータソフトウェアの権利に関する説明(c)(1)(ii)による制限にしたがうものとします。 |
あなたが、お客様の権限を有する代表者として、自己及びお客様のために上記のライセンス条項を承諾すること、並びに自己及びお客様が上に明記されている条項及び条件のすべてを遵守し、また、遵守し続けることを確認することに同意する場合、以下の「I Agree (同意します)」ボタンをクリックして下さい。 |
Trial Agreement
Effective April 9th 2020
DownloadTable of Contents
TRIAL AGREEMENT
재판 계약
THIS TRIAL AGREEMENT ("AGREEMENT") WILL BECOME A LEGAL AGREEMENT BETWEEN THE USER OF THE DOWNLOADED PRODUCT NAMED IN THE EXPORT VALIDATION SECTION OF THE BMC SUPPORT WEB SITE (WITHIN WWW.BMC.COM) OR ANY SUCCESSOR SITE) OF WHICH THIS AGREEMENT IS A PART ("USER") AND BMC SOFTWARE , INC. OR ITS LOCAL LICENSING AFFILIATE ("BMC"). BY PRESSING THE "I AGREE" BUTTON, YOU REPRESENT AND WARRANT THAT YOU HAVE READ AND UNDERSTOOD THE TERMS OF THIS AGREEMENT, THAT YOU HAVE THE AUTHORITY TO BIND USER TO THIS AGREEMENT, AND THAT USER AGREES TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. BMC AGREES TO PERMIT YOU TO DOWNLOAD PRODUCTS ONLY IF AND AFTER YOU AND USER HAVE ACCEPTED ALL OF THESE TERMS BY PRESSING THE "I AGREE" BUTTON.
본 계약 ( "계약")은 본 계약서의 BMC 지원 웹 사이트 (WWW.BMC.COM 내) 또는 후발 사이트의 수출 유효 기간 섹션에있는 다운로드 된 제품의 사용자와 법적 계약이됩니다 A 부분 ( "사용자") 및 BMC 소프트웨어 배포 회사 또는 해당 지역 라이센스 제휴 업체 ( "BMC"). "동의 함"버튼을 누르면, 귀하는 귀하가 본 계약서에 사용자를 구속 할 수있는 권한을 가지고 있거나, 귀하가 본 계약서의 조건들을 준수 할 것에 동의한다는 것을이 계약서의 조건들을 읽고 이해했음을 진술하고 보증합니다. 이 계약. BMC는 귀하가 "동의 함"버튼을 눌러서 본 약관을 모두 수락 한 경우에만 제품을 다운로드 할 수 있도록 동의합니다.
PLEASE READ THIS AGREEMENT: IF YOU DO NOT UNDERSTAND OR AGREE WITH ANY OF THE TERMS OF THIS AGREEMENT, DO NOT PRESS THE "I AGREE" BUTTON.
본 계약서를 읽으십시오 : 귀하가이 계약서의 내용을 이해하거나 동의하지 않으면 "동의 함"버튼을 누르지 마십시오.
1. DEFINED TERMS. "Confidential Information" means all proprietary or confidential information that is disclosed to the recipient (“Recipient”) by the discloser (“Discloser”), and includes, among other things (i) any and all information relating Discloser’s financial information, customers, employees, products or services, including, without limitation, software code, flow charts, techniques, specifications, development and marketing plans, strategies, forecasts, and proposal related documents and responses; (ii) as to BMC, and its licensors, the software Product and any third party software provided with the Product; and (iii) the terms of this Agreement, including without limitation, Product pricing information. Confidential Information does not include information that Recipient can show: (a) was rightfully in Recipient’s possession without any obligation of confidentiality before receipt from the Discloser; (b) is or becomes a matter of public knowledge through no fault of the Recipient; (c) is rightfully received by the Recipient from a third party without violation of a duty of confidentiality; or (d) is independently developed by or for the Recipient. "Products" are software or hardware products and their related documentation and other technical information owned or distributed by BMC which may be accessed on the BMC EPD Web site (www.bmc.com/ or any successor web site) and for which User is granted a license under this Agreement. "Trial Period" with respect to a Product, is the time period that begins the date that You download such Product and ends on the sooner of (a) thirty calendar days thereafter, or (b) the number of calendar days thereafter specified in the license key provided with such Product.
정의 된 조건. "기밀 정보 (Confidential Information)"는 공시인 ( "공시인")이 수령인 ( "수령인")에게 공개하는 모든 독점적 또는 기밀 정보를 의미하며, 그 중에서도 (i) Discloser의 재무 정보, 고객, 흐름도, 기술, 사양, 개발 및 마케팅 계획, 전략, 예측 및 제안 관련 문서 및 응답을 포함하되 이에 국한되지 않는 직원, 제품 또는 서비스; (ii) BMC 및 라이센스 제공자, 제품과 함께 제공된 소프트웨어 제품 및 제 3 자 소프트웨어; (iii) 제품 가격 정보를 포함하되 이에 제한되지 않는 본 계약의 조건. 기밀 정보에는 수신자가 표시 할 수있는 정보가 포함되어 있지 않습니다. (a) 공개 자의 영수증을 수령하기 전에 기밀 유지 의무가 없습니다. (b) 수령자의 과실없이 공개 지식의 문제가되거나 그 문제가된다. (c) 기밀 유지 의무를 위반하지 않고 제 3 자로부터 수령인이 정당하게 접수 한 경우. 또는 (d) 수취인에 의해 또는 수취인을 위해 독자적으로 개발 됨. "제품"은 BMC EPD 웹 사이트 (www.bmc.com/ 또는 후속 웹 사이트)에서 액세스 할 수있는 소프트웨어 또는 하드웨어 제품 및 관련 문서 및 BMC가 소유하거나 배포하는 기타 기술 정보이며 사용자는 본 계약에 따른 라이센스. 제품에 대한 "시험 기간"은 귀하가 그러한 제품을 다운로드 한 날로부터 시작하여 (a) 30 일 이내에 종료되거나 (b) 그 이후에 지정된 달력 일수가 해당 제품과 함께 제공된 라이센스 키.
2. TRIAL LICENSE. BMC grants User a non-exclusive, non-transferable, non-assignable temporary license to use each Product on a single computer for the Trial Period only to internally evaluate and determine whether to acquire and/or license such Product for a fee, and not for development, commercial, production, or database management purposes, or with production data. User must enter into a separate agreement to obtain production rights and technical support for a Product.
시험 사용권. BMC는 평가판 사용을 위해 한 대의 컴퓨터에서 각 제품을 사용하기위한 비 독점적 인 양도 불가능한 비 양도성 임시 라이센스를 사용자에게 부여하여 해당 제품을 유료로 구입 및 / 또는 라이센스를 부여할지 여부를 내부적으로 평가하고 결정합니다. 개발, 상업용, 프로덕션 또는 데이터베이스 관리 목적 또는 프로덕션 데이터 용. 사용자는 제품에 대한 생산 권한 및 기술 지원을 얻으려면 별도의 계약을 체결해야합니다.
3. PROPRIETARY RIGHTS AND CONFIDENTIALITY. (a) BMC, its affiliates or licensors retain all right, title and interest to the Product, Support and all related intellectual property and proprietary rights. The Product and all third party software provided with the Product are protected by applicable copyright, trade secret, industrial and other intellectual property laws. User may not remove any product identification, copyright, trademark or other notice from the Product. BMC reserves any rights not expressly granted to User in this Agreement. (b) Recipient may not disclose Confidential Information of Discloser to any third party or use the Confidential Information in violation of this Agreement. The Recipient (i) will exercise the same degree of care and protection with respect to the Confidential Information of the Discloser that it exercises with respect to its own Confidential Information and (ii) will not, either directly or indirectly, disclose, copy , distribute, republish, or allow any third party to have access to any Confidential Information of Discloser. Nothwithstanding the foregoing, Recipient may disclose Discloser’s Confidential Information to Recipient’s employees and agents who have the need to know provided that such employees and agents have legal obligations of confidentiality substantially the same (and in no case less protective) as the provisions of this Agreement. (c) Notification Obligation. If the Recipient becomes aware of any unauthorized use or disclosure of Discloser’s Confidential Information, then Recipient will promptly and fully notify the Discloser of all facts known to it concerning such unauthorized use or disclosure. In addition, if the Recipient or any of its employees or agents are required (by oral questions, interrogatories, requests for information, or documents in legal proceedings, subpoena, civil investigative demand, or other similar process) to disclose any of Discloser’s Confidential Information, the Recipient will not disclose the Discloser’s Confidential Information without providing the Discloser with commercially reasonable advance prior written notice to allow Discloser to seek a protective order or other appropriate remedy or to waive compliance with this provision. In any event, the Recipient will exercise its commercially reasonable efforts to preserve the confidentiality of the Discloser’s Confidential Information, including, without limitation, cooperating with Discloser to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded to the Confidential Information.
독점적 권리 및 기밀 유지. (a) BMC, 그 계열사 또는 라이센스 제공자는 제품, 지원 및 모든 관련 지적 재산권 및 독점적 권리에 대한 모든 권리, 소유권 및 이권을 보유합니다. 제품과 함께 제공된 제품 및 모든 제 3 자 소프트웨어는 해당 저작권, 영업 비밀, 산업 및 기타 지적 재산권 법률에 의해 보호됩니다. 사용자는 제품 식별, 저작권, 상표 또는 기타 제품을 제품에서 제거 할 수 없습니다. BMC는 본 계약에서 사용자에게 명시 적으로 부여되지 않은 권리를 보유합니다. (b) 수취인은 공개 자의 기밀 정보를 제 3 자에게 공개하거나 본 계약을 위반하여 기밀 정보를 사용할 수 없습니다. 수취인 (i)은 자신의 기밀 정보와 관련하여 수행하는 공개 자의 기밀 정보와 관련하여 동일한 수준의 보살핌 및 보호를 행사할 것이며 (ii) 직접 또는 간접적으로 공시, 복사, 배포 , 제 3 자에게 공개 자의 기밀 정보에 대한 액세스 권한을 부여 할 수 있습니다. 전술 한 내용에도 불구하고 수취인은 수취인의 직원 및 대리인이 본 계약의 조항과 실질적으로 동일하고 (어떠한 경우에도 보호가되지 않는) 기밀 유지에 대한 법적 의무가 있음을 알 필요가있는 수취인의 직원 및 대리인에게 공개 자의 기밀 정보를 공개 할 수 있습니다. (c) 통보 의무. 수취인이 기밀 정보의 무단 사용 또는 공개를 알게되면 수취인은 기밀 정보 사용 또는 공개와 관련하여 기밀 정보에 대해 알려진 모든 사실을 신속하게 완전 공개 자에게 통보합니다. 또한 수취인 또는 그 직원 또는 대리인이 공개 자의 기밀 정보의 공개를 요구하는 경우 (구두 질문, 질의, 정보 요청 또는 소송 절차의 문서, 소환장, 민사 조사 요청 또는 기타 유사한 절차를 통해) 수취인은 Discloser에게 보호 명령 또는 기타 적절한 구제책을 찾거나이 조항의 준수를 포기하도록 상업적으로 합리적인 사전 서면 통지서를 제공하지 않고 공개 자의 기밀 정보를 공개하지 않습니다. 어떤 경우에도 수취인은 기밀 정보에 기밀 취급이 부여된다는 적절한 보호 명령 또는 기타 신뢰할 수있는 확신을 얻기 위해 공개 자의 협력을 비롯한 공개 자의 기밀 정보의 기밀 유지를 위해 상업적으로 합당한 노력을 기울일 것입니다 ..
4. RESTRICTIONS ON USE. User will not: (a) modify, delete or remove any ownership, title, trademark, patent or copyright notices (“Identification”) from any Product; (b) copy any Product or any portion of any Product without reproducing all Identification on each copy or partial copy; (c) disassemble, reverse engineer, decompile or otherwise attempt to derive any Product source code from object code, except to the extent expressly permitted by applicable law despite this limitation without possibility of contractual waiver; (d) distribute, rent, lease, sublicense or provide the Product to any third party; (e) provide a third party with the results of any functional evaluation, or performance tests, without BMC's prior written approval; (f) attempt to disable or circumvent any of the licensing mechanisms within the Product; or (g) violate any other usage restrictions contained in the Documentation.
사용 제한. 사용자는 (a) 모든 제품의 소유권, 제목, 상표, 특허 또는 저작권 표시 ( "식별")를 수정, 삭제 또는 제거 할 수 없습니다. (b) 각 사본 또는 부분 사본에있는 모든 신분을 복제하지 않고 제품이나 제품의 일부를 복사하는 행위. (c) 계약상의 포기 가능성이없는 이러한 제한에도 불구하고 관련 법률에서 명시 적으로 허용하는 경우를 제외하고는 오브젝트 코드에서 제품 소스 코드를 분해, 리버스 엔지니어링, 디 컴파일 또는 기타 유도하려고 시도하지 않습니다. (d) 제품을 제 3 자에게 배포, 대여, 임대, 재사용 또는 제공; (e) BMC의 사전 서면 승인없이 기능적 평가 또는 성능 테스트의 결과를 제 3 자에게 제공합니다. (f) 제품 내의 라이센스 메커니즘을 비활성화하거나 우회하려고 시도하는 행위. (g) 문서에 포함 된 다른 사용 제한을 위반하는 경우
5. NO WARRANTY AND LIMITATION OF LIABILITY. THE PRODUCTS ARE PROVIDED “AS IS” FOR EVALUATION PURPOSES ONLY AND WITHOUT ANY WARRANTY, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE OR MERCHANTABILITY, AND NON-INFRINGEMENT, OR ANY OTHER WARRANTY, WHETHER EXPRESS OR IMPLIED. NONE OF BMC, ITS AFFILIATES, SUPPLIERS OR LICENSORS SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OR ANY LOSS OF PROFITS, REVENUE, DATA OR DATA USE FROM ANY CAUSE ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THE PRODUCT OR THIS AGREEMENT. BMC’S, IT’S AFFILIATES’, SUPPLIER’S AND LICENSOR’S LIABILITY FOR DAMAGES RESULTING FROM THE USE OF THE PRODUCT OR THIS AGREEMENT, WHETHER IN CONTRACT OR TORT, SHALL BE LIMITED TO THE GREATER OF THE AMOUNT PAID BY USER TO LICENSE THE USE OF THAT PRODUCT OR $500. IN THE COUNTRIES LISTED IN SUBSECTION 9(F), BELOW, THE LIMITATION OF LIABLITY IN THIS SECTION WILL NOT APPLY IF AND TO THE EXTENT THAT THE DAMAGE WAS CAUSED BY THE WILLFUL INTENT OR GROSS NEGLIGENCE OF EITHER PARTY.
무보증 및 책임의 제한. 제품은 평가 목적으로 "있는 그대로"제공되며, 명시 적 또는 묵시적이든 특정 목적에 대한 적합성 또는 상업성 및 타인의 권리 비 침해에 대한 묵시적인 보증을 포함하여 모든 보증이 제한없이 제공됩니다. BMC, 그 계열사, 공급 업체 또는 라이센스 제공자는 본 계약과 관련하여 발생하거나 발생하는 모든 간접적, 우발적, 특별, 징벌 적 또는 필연적 손해 또는 이익, 매출, 데이터 또는 데이터의 손실에 대해 책임을지지 않습니다. 제품 또는 본 계약의 사용. 계약 또는 불법 행위에 관계없이 제품 또는 본 계약의 사용으로 인해 발생하는 BMC의 '계열사', 공급 업체 및 라이센스 제공자의 책임은 제품 또는 $ 500의 사용을 라이센스하기 위해 사용자가 지불 한 금액의 상당 부분으로 제한됩니다 . 아래 제 9 (F) 항에 나열된 국가에서 본 절의 책임 제한은 적용되지 않으며 해당 손해가 제 3 자의 과실로 인해 발생했거나 귀하의 과실로 인해 발생한 경우는 예외로합니다.
6. TERMINATION. Either party may terminate this Agreement at any time upon two weeks prior notice. Upon termination of this Agreement or expiration of a Trial Period, if User has not obtained a production use license for the Product, User shall (a) cease using the Product, and (b) certify in writing to BMC that User has de-installed and destroyed, or returned to BMC, the Products and all copies of the Products. This requirement applies to copies in all forms, partial and complete, in all types of media and computer memory and whether or not merged into other materials. This Agreement creates no obligation on the part of BMC to license any Products to User or on the part of User to purchase any hardware or license any software Products from BMC. Notwithstanding anything to the contrary in this Section 6, if hardware is included with the Product, upon conclusion of the Trial Period User will either purchase the hardware or return it to BMC within five days in its original packing material.
해지. 각 당사자는 사전 통보 2 주 후에 언제든지 본 계약을 해지 할 수 있습니다. 본 계약이 만료되거나 평가 기간이 만료 된 경우, 사용자가 제품의 생산 사용 라이센스를 취득하지 않은 경우, 사용자는 (a) 제품 사용을 중단하고 (b) 사용자가 설치 해제했다고 BMC에 서면으로 확인해야합니다 제품 및 모든 제품 사본을 폐기하거나 BMC에 반환해야합니다. 이 요구 사항은 모든 유형의 매체 및 컴퓨터 메모리의 부분 및 전체 형태의 사본 및 기타 자료와 병합되었는지 여부에 적용됩니다. 본 계약은 BMC가 하드웨어 또는 라이센스를 BMC로부터 구매할 수 있도록 사용자에게 제품을 라이센스하거나 사용자의 일부로 라이센스를 부여 할 의무가 없습니다. 본 6 절의 내용과 상반되는 조항에도 불구하고 하드웨어가 제품에 포함되어있는 경우 평가 기간이 끝나면 하드웨어를 구입하거나 원래 포장재로 5 일 이내에 BMC에 반환해야합니다.
7. DATA PROTECTION. BMC and Customer agree that the Data Processing Agreement, a copy of which may be viewed at https://www.bmc.com/content/dam/bmc/corporate/bmcdpa.pdf, applies to the BMC Products downloaded unless BMC already has a signed Data Processing Agreement with Customer for such BMC Products; in which case, the signed version applies.
데이터 보호. BMC와 고객은 데이터처리합의서에 동의하며, (합의서 사본은 https://www.bmc.com/content/dam/bmc/corporate/bmcdpa.pdf 에서 확인할 수 있습니다.) 합의서는 다운로드한 BMC제품에 대해 적용됩니다. 어떤 BMC제품에 관하여, BMC가 이미 고객과 체결된 데이터처리합의서를 보유한 경우에는 등록된 버전이 적용됩니다.
8. EXPORT CONTROLS. User represents and warrants that it: a) will comply with the United States Export Administration Regulations and other U.S. or foreign export regulations; b) no individual accessing or using the Product is a citizen of or from an embargoed country (currently Iran, Syria, Sudan, Cuba and North Korea); c) is not prohibited from receiving the Product under such regulations; d) will not acquire the Product for a person who is restricted under such regulations; e) will not use the Product in contradiction to such regulations; and f) will not use the Product for prohibited uses, including but not limited to nuclear, chemical, missile or biological weapons related end uses. For Product exported from Ireland, EC No. 428/2009 sets up a Community regime for control of exports of dual-use items and technology, and it is declared that this Product is intended for civil purposes only. Therefore, User agrees to comply with both the U.S. regulations and those E.U. regulations and will not export in violation of the regulations and without all proper licenses. Any failure to comply with these regulations will result in User forfeiting all rights to the Product.
수출 통제. 사용자는 다음을 나타내며 보증합니다 : a) 미국 수출 관리 규정 및 기타 미국 또는 해외 수출 규정을 준수합니다. b) 제품에 접근하거나 사용하는 개인은 금수 조치를 취한 국가의 국민이거나 (현재이란, 시리아, 수단, 쿠바 및 북한); c) 해당 규정에 의거하여 제품을 수령하는 것이 금지되어 있지 않습니다. d) 해당 규정에 의거하여 제한된 사람을 위해 제품을 취득하지 않을 것. e) 그러한 규정과 상반되게 제품을 사용하지 않아야합니다. f) 원자력, 화학, 미사일 또는 생물 무기 관련 최종 용도를 포함하되 이에 국한되지 않는 금지 된 용도로 제품을 사용하지 않아야합니다. 아일랜드에서 수출 된 제품의 경우, EC No. 428/2009는 이중 용도 제품 및 기술 수출 통제를위한 공동체 체제를 설정하고이 제품은 시민의 용도로만 사용하도록 고안되었습니다. 따라서 사용자는 미국 법규와 E.U. 규정을 위반하고 모든 적절한 면허가없는 상태로 수출하지 않을 것입니다. 이 규정을 준수하지 않을 경우 사용자는 제품에 대한 모든 권리를 상실하게됩니다.
9. GOVERNING LAW AND DISPUTE RESOLUTION. A party will provide written notice to the other party of any controversy, dispute or claim arising out of or relating to this Agreement, or to the formation, interpretation, breach, termination, or validity thereof (“Controversy”). The parties shall engage in good faith negotiations to resolve the Controversy. Only if the Controversy is not resolved through good faith negotiations within 15 days of the sending of the written notice of Controversy, the Controversy may be submitted to litigation or binding arbitration, based on the place of incorporation of the parties, as follows:
(i) If both parties to this Agreement are entities incorporated under the law of any state in the United States, the Controversy shall be tried in either state or federal court located in Houston, Texas and the laws of the State of Texas shall govern. Both sides hereby submit to the exclusive jurisdiction of the courts in Houston, Texas and waive all defenses based on forum non conveniens.
(ii) If both parties to this Agreement are entities incorporated in countries in the Europe, Middle East, or Africa regions, the arbitration shall be held in Amsterdam, Netherlands under the then-applicable rules of the International Chamber of Commerce and the substantive laws of the Netherlands will govern.
(iii) If both parties to this Agreement are entities incorporated in countries in the Asia Pacific region, the arbitration shall be held in Singapore under the then-applicable rules of the Singapore International Arbitration Centre and the substantive laws of Singapore will govern.
(iv) In all other instances, the arbitration shall be held in New York City, New York, under the then-applicable international rules of the American Arbitration Association and the substantive laws of the State of Texas will govern.
For all arbitrations conducted hereunder:(a) the arbitration shall be conducted in English; (b) the relevant arbitral institution shall determine the number of arbitrators, but any Controversy in which the amount in dispute is greater than $10 million USD shall be decided by three arbitrators, with each party having the right to select one arbitrator; (c) the costs of such arbitration shall be borne equally, pending the arbitrator’s award; (d) the arbitration award rendered shall be final and binding on the parties, shall not be subject to appeal to any court and shall be enforceable in any court having jurisdiction over the Parties; (e) the arbitration proceedings, award and pleadings shall all be confidential, unless disclosure of particular information is required for purposes of enforcing/challenging the award or to meet local securities law requirements; and (f) the party prevailing in arbitration shall be entitled to recover its reasonable attorneys’ fees and the necessary costs incurred in connection with the arbitration.
The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. Nothing in this Agreement shall be deemed as preventing either party from seeking immediate injunctive relief from any court having jurisdiction over the parties and the subject matter of the dispute.
준거법 및 분쟁 해결. 당사자는이 계약 또는 이와 관련하여 발생하는 논쟁, 분쟁 또는 주장 또는 그 형성, 해석, 위반, 해지 또는 유효성에 대한 서면 통보를 상대방에게 제공합니다 ( "논쟁"). 양 당사자는 논쟁을 해결하기 위해 선의의 협상에 종사해야한다. 논쟁의 서면 통지를 보낸 후 15 일 이내에 선의의 협상을 통해 논쟁이 해결되지 않을 경우에만 논쟁은 다음과 같이 당사자의 입지에 따라 소송 또는 구속력있는 중재에 회부 될 수 있습니다.
(i) 본 계약의 양 당사자가 미국의 어느 주법하에 설립 된 단체 인 경우, 텍사스 주 휴스턴에 위치한 주 법원 또는 연방 법원에서 논쟁을 시도하고 텍사스 주법이 적용됩니다. 양측은 텍사스 주 휴스턴 법원의 배타적 관할권에 복종하며 비회원 포럼을 기반으로 모든 방어를 포기합니다.
(ii)이 협정의 양 당사자가 유럽, 중동 또는 아프리카 지역의 국가에 법인을두고있는 경우, 중재는 국제 상공 회의소의 해당 규칙 및 실체법에 따라 네덜란드 암스테르담에서 개최되어야한다 네덜란드의
(iii) 본 계약의 양 당사자가 아시아 태평양 지역의 국가에 법인을두고있는 경우 중재는 싱가포르 국제 중재 센터의 해당 규칙에 따라 싱가포르에서 개최되며 싱가포르의 실질 법률이 우선합니다.
(iv) 그 밖의 모든 경우에, 중재는 뉴욕 중재 재판소 (New York City, New York)에서 열리 며 미국 중재 협회 (American Arbitration Association)의 국제 규칙에 따라 진행되며 텍사스 주정부의 실질 법률이 적용됩니다.
본 계약 하에서 수행되는 모든 중재의 경우 : (a) 중재는 영어로 진행됩니다. (b) 관련 중재 기관은 중재자의 수를 결정해야하지만, 분쟁 금액이 1,000 만 달러 이상인 분쟁은 3 인의 중재자가 결정하며, 각 당사자는 중재인을 1 명 선출 할 권리가있다. (c) 그러한 중재 비용은 중재자의 판정이있을 때까지 동등하게 부담되어야한다. (d) 중재 판정이 최종적으로 당사자들에게 구속력을 가지며 법원에 항소 할 수 없으며 양 당사국을 관할하는 법원에서 집행 할 수있다. (e) 중재 절차, 판정 및 간청은 모두 비밀리에 수행해야하며, 시행을 위해 특정 정보의 공개가 요구되지 않는 한
10. U.S. FEDERAL ACQUISITIONS. This Section applies only to acquisitions of the commercial Product and Documentation subject to this Agreement by or on behalf of the United States Government, or by any prime contractor or subcontractor (at any tier) under any contract, grant, cooperative agreement or other activity with the United States Government. In the event the Products are delivered to the United States Government, the United States Government hereby agrees that the Products qualify as “commercial items” within the meaning of the Federal acquisition regulation(s) applicable to this procurement. The terms and conditions of this Agreement shall pertain to the United States Government’s use and disclosure of the Product, and shall supersede any conflicting contractual terms and conditions. The following additional statement applies only to acquisitions governed by DFARS Subpart 227.4 (October 1988): “Restricted Rights – Use, duplication and disclosure by the Government is subject to restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 (Oct. 1988).”
미국 연방 정부의 취득. 본 조항은 미합중국 정부에 의하여 또는 대신하여 계약, 보조금, 협력 합의 또는 기타 활동에 따라 모든 계약자 또는 하도급 계약자 (모든 계층)가 본 계약의 대상이되는 상업용 제품 및 문서를 취득하는 경우에만 적용됩니다. 미국 정부. 제품이 미합중국 정부에 인도되는 경우 미국 정부는이 조달에 적용 할 수있는 연방 조달 규정의 의미 내에서 제품이 "상업적 품목"의 자격을 갖음에 동의합니다. 본 계약의 조건은 미국 정부가 제품을 사용하고 공개하는 것과 관련이 있으며 충돌하는 계약 조건을 대신합니다. 다음 추가 진술은 DFARS Subpart 227.4 (1988 년 10 월)에 의해 적용되는 인수에만 적용됩니다. "제한된 권리 - 정부의 사용, 복제 및 공개는 (a) 항 (c) (1) (ii) DFARS 252.227-7013 (1988 년 10 월)의 기술 데이터 및 컴퓨터 소프트웨어 조항에 대한 권리 "
11. MISCELLANEOUS TERMS. A waiver by a party of any breach of any term of this Agreement will not be construed as a waiver of any continuing or succeeding breach. Should any term of this Agreement be invalid or unenforceable, the remaining terms will remain in effect. The parties acknowledge they have read this Agreement and agree that it is the complete and exclusive statement of the agreement and supersedes any prior or contemporaneous negotiations or agreements, between the parties relating to the subject matter of this Agreement. There are no representations, promises, warranties, covenants, or undertakings between the parties other than those expressly set forth in this Agreement. This Agreement may not be modified or rescinded except in writing signed by both parties. The prevailing party in any litigation is entitled to recover its attorney’s fees and costs from the other party. User may not assign or transfer this Agreement without BMC’s prior written consent. The BMC Products may contain third party software which is delivered to User as part of the Product and may not be taken out of the Product or used separately from the Product and for which additional terms may be included in the Documentation. Any additional documents presented to a BMC representative by User for signature as a condition for going on a User’s site will be governed by this Agreement and to the extent that such document presents additional terms or conflicts with this Agreement, it shall be considered null and void.
기타 조항. 본 계약 기간의 위반에 대한 당사자의 포기는 계속되거나 계속되는 위반에 대한 권리 포기로 해석되지 않습니다. 본 계약 기간이 유효하지 않거나 시행이 불가능할 경우, 나머지 조건은 유효합니다. 양 당사자는 양 당사자가이 협정을 읽었으며 협약의 완전하고 독점적 인 진술임을 동의하고이 협정의 주제와 관련된 양 당사자 간의 이전 또는 현재의 협상 또는 협의를 대체한다. 이 계약서에 명시 적으로 명시된 것 이외의 다른 당사자 간에는 진술, 약속, 보증, 약정 또는 약정이 없습니다. 본 계약은 양 당사자가 서명 한 서면을 제외하고는 수정되거나 철회 될 수 없습니다. 모든 소송에서 승소 한 당사자는 상대방으로부터 변호사 비용 및 비용을 회수 할 권리가 있습니다. 사용자는 BMC의 사전 서면 동의없이 본 계약을 양도하거나 양도 할 수 없습니다. BMC 제품에는 제품의 일부로 사용자에게 제공되는 제 3 자 소프트웨어가 포함될 수 있으며 제품에서 제거되거나 제품과 별도로 사용되거나 추가 조항이 문서에 포함될 수 없습니다. 사용자가 사이트를 방문하기위한 조건으로 서명하기 위해 사용자가 BMC 담당자에게 제출하는 추가 문서는 본 계약의 적용을받으며이 문서가 본 계약에 대한 추가 조건이나 충돌을 나타내는 한도 내에서 무효로 간주됩니다 .
If you agree, as an authorized representative of User, to accept the license terms above on behalf of yourself and User, and to confirm that you and User are in compliance with and will remain in compliance with all of the terms and conditions set forth above, click on the "I agree" button below.
위임 된 사용자 대표로서 본인 및 사용자를 대신하여 위의 라이센스 조항에 동의하고 귀하와 사용자가 위에 명시된 조건을 준수하고 준수 할 것임을 확인하는 경우 아래의 "동의합니다"버튼을 클릭하십시오
Effective April 9th 2020 to April 9th 2020
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TRIAL AGREEMENT
재판 계약
THIS TRIAL AGREEMENT ("AGREEMENT") WILL BECOME A LEGAL AGREEMENT BETWEEN THE USER OF THE DOWNLOADED PRODUCT NAMED IN THE EXPORT VALIDATION SECTION OF THE BMC SUPPORT WEB SITE (WITHIN WWW.BMC.COM) OR ANY SUCCESSOR SITE) OF WHICH THIS AGREEMENT IS A PART ("USER") AND BMC SOFTWARE , INC. OR ITS LOCAL LICENSING AFFILIATE ("BMC"). BY PRESSING THE "I AGREE" BUTTON, YOU REPRESENT AND WARRANT THAT YOU HAVE READ AND UNDERSTOOD THE TERMS OF THIS AGREEMENT, THAT YOU HAVE THE AUTHORITY TO BIND USER TO THIS AGREEMENT, AND THAT USER AGREES TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. BMC AGREES TO PERMIT YOU TO DOWNLOAD PRODUCTS ONLY IF AND AFTER YOU AND USER HAVE ACCEPTED ALL OF THESE TERMS BY PRESSING THE "I AGREE" BUTTON.
본 계약 ( "계약")은 본 계약서의 BMC 지원 웹 사이트 (WWW.BMC.COM 내) 또는 후발 사이트의 수출 유효 기간 섹션에있는 다운로드 된 제품의 사용자와 법적 계약이됩니다 A 부분 ( "사용자") 및 BMC 소프트웨어 배포 회사 또는 해당 지역 라이센스 제휴 업체 ( "BMC"). "동의 함"버튼을 누르면, 귀하는 귀하가 본 계약서에 사용자를 구속 할 수있는 권한을 가지고 있거나, 귀하가 본 계약서의 조건들을 준수 할 것에 동의한다는 것을이 계약서의 조건들을 읽고 이해했음을 진술하고 보증합니다. 이 계약. BMC는 귀하가 "동의 함"버튼을 눌러서 본 약관을 모두 수락 한 경우에만 제품을 다운로드 할 수 있도록 동의합니다.
PLEASE READ THIS AGREEMENT: IF YOU DO NOT UNDERSTAND OR AGREE WITH ANY OF THE TERMS OF THIS AGREEMENT, DO NOT PRESS THE "I AGREE" BUTTON.
본 계약서를 읽으십시오 : 귀하가이 계약서의 내용을 이해하거나 동의하지 않으면 "동의 함"버튼을 누르지 마십시오.
- DEFINED TERMS. "Confidential Information" means all proprietary or confidential information that is disclosed to the recipient (“Recipient”) by the discloser (“Discloser”), and includes, among other things (i) any and all information relating Discloser’s financial information, customers, employees, products or services, including, without limitation, software code, flow charts, techniques, specifications, development and marketing plans, strategies, forecasts, and proposal related documents and responses; (ii) as to BMC, and its licensors, the software Product and any third party software provided with the Product; and (iii) the terms of this Agreement, including without limitation, Product pricing information. Confidential Information does not include information that Recipient can show: (a) was rightfully in Recipient’s possession without any obligation of confidentiality before receipt from the Discloser; (b) is or becomes a matter of public knowledge through no fault of the Recipient; (c) is rightfully received by the Recipient from a third party without violation of a duty of confidentiality; or (d) is independently developed by or for the Recipient. "Products" are software or hardware products and their related documentation and other technical information owned or distributed by BMC which may be accessed on the BMC EPD Web site (www.bmc.com/ or any successor web site) and for which User is granted a license under this Agreement. "Trial Period" with respect to a Product, is the time period that begins the date that You download such Product and ends on the sooner of (a) thirty calendar days thereafter, or (b) the number of calendar days thereafter specified in the license key provided with such Product.
정의 된 조건. "기밀 정보 (Confidential Information)"는 공시인 ( "공시인")이 수령인 ( "수령인")에게 공개하는 모든 독점적 또는 기밀 정보를 의미하며, 그 중에서도 (i) Discloser의 재무 정보, 고객, 흐름도, 기술, 사양, 개발 및 마케팅 계획, 전략, 예측 및 제안 관련 문서 및 응답을 포함하되 이에 국한되지 않는 직원, 제품 또는 서비스; (ii) BMC 및 라이센스 제공자, 제품과 함께 제공된 소프트웨어 제품 및 제 3 자 소프트웨어; (iii) 제품 가격 정보를 포함하되 이에 제한되지 않는 본 계약의 조건. 기밀 정보에는 수신자가 표시 할 수있는 정보가 포함되어 있지 않습니다. (a) 공개 자의 영수증을 수령하기 전에 기밀 유지 의무가 없습니다. (b) 수령자의 과실없이 공개 지식의 문제가되거나 그 문제가된다. (c) 기밀 유지 의무를 위반하지 않고 제 3 자로부터 수령인이 정당하게 접수 한 경우. 또는 (d) 수취인에 의해 또는 수취인을 위해 독자적으로 개발 됨. "제품"은 BMC EPD 웹 사이트 (www.bmc.com/ 또는 후속 웹 사이트)에서 액세스 할 수있는 소프트웨어 또는 하드웨어 제품 및 관련 문서 및 BMC가 소유하거나 배포하는 기타 기술 정보이며 사용자는 본 계약에 따른 라이센스. 제품에 대한 "시험 기간"은 귀하가 그러한 제품을 다운로드 한 날로부터 시작하여 (a) 30 일 이내에 종료되거나 (b) 그 이후에 지정된 달력 일수가 해당 제품과 함께 제공된 라이센스 키.
- TRIAL LICENSE. BMC grants User a non-exclusive, non-transferable, non-assignable temporary license to use each Product on a single computer for the Trial Period only to internally evaluate and determine whether to acquire and/or license such Product for a fee, and not for development, commercial, production, or database management purposes, or with production data. User must enter into a separate agreement to obtain production rights and technical support for a Product.
시험 사용권. BMC는 평가판 사용을 위해 한 대의 컴퓨터에서 각 제품을 사용하기위한 비 독점적 인 양도 불가능한 비 양도성 임시 라이센스를 사용자에게 부여하여 해당 제품을 유료로 구입 및 / 또는 라이센스를 부여할지 여부를 내부적으로 평가하고 결정합니다. 개발, 상업용, 프로덕션 또는 데이터베이스 관리 목적 또는 프로덕션 데이터 용. 사용자는 제품에 대한 생산 권한 및 기술 지원을 얻으려면 별도의 계약을 체결해야합니다.
- PROPRIETARY RIGHTS AND CONFIDENTIALITY. (a) BMC, its affiliates or licensors retain all right, title and interest to the Product, Support and all related intellectual property and proprietary rights. The Product and all third party software provided with the Product are protected by applicable copyright, trade secret, industrial and other intellectual property laws. User may not remove any product identification, copyright, trademark or other notice from the Product. BMC reserves any rights not expressly granted to User in this Agreement. (b) Recipient may not disclose Confidential Information of Discloser to any third party or use the Confidential Information in violation of this Agreement. The Recipient (i) will exercise the same degree of care and protection with respect to the Confidential Information of the Discloser that it exercises with respect to its own Confidential Information and (ii) will not, either directly or indirectly, disclose, copy , distribute, republish, or allow any third party to have access to any Confidential Information of Discloser. Nothwithstanding the foregoing, Recipient may disclose Discloser’s Confidential Information to Recipient’s employees and agents who have the need to know provided that such employees and agents have legal obligations of confidentiality substantially the same (and in no case less protective) as the provisions of this Agreement. (c) Notification Obligation. If the Recipient becomes aware of any unauthorized use or disclosure of Discloser’s Confidential Information, then Recipient will promptly and fully notify the Discloser of all facts known to it concerning such unauthorized use or disclosure. In addition, if the Recipient or any of its employees or agents are required (by oral questions, interrogatories, requests for information, or documents in legal proceedings, subpoena, civil investigative demand, or other similar process) to disclose any of Discloser’s Confidential Information, the Recipient will not disclose the Discloser’s Confidential Information without providing the Discloser with commercially reasonable advance prior written notice to allow Discloser to seek a protective order or other appropriate remedy or to waive compliance with this provision. In any event, the Recipient will exercise its commercially reasonable efforts to preserve the confidentiality of the Discloser’s Confidential Information, including, without limitation, cooperating with Discloser to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded to the Confidential Information.
독점적 권리 및 기밀 유지. (a) BMC, 그 계열사 또는 라이센스 제공자는 제품, 지원 및 모든 관련 지적 재산권 및 독점적 권리에 대한 모든 권리, 소유권 및 이권을 보유합니다. 제품과 함께 제공된 제품 및 모든 제 3 자 소프트웨어는 해당 저작권, 영업 비밀, 산업 및 기타 지적 재산권 법률에 의해 보호됩니다. 사용자는 제품 식별, 저작권, 상표 또는 기타 제품을 제품에서 제거 할 수 없습니다. BMC는 본 계약에서 사용자에게 명시 적으로 부여되지 않은 권리를 보유합니다. (b) 수취인은 공개 자의 기밀 정보를 제 3 자에게 공개하거나 본 계약을 위반하여 기밀 정보를 사용할 수 없습니다. 수취인 (i)은 자신의 기밀 정보와 관련하여 수행하는 공개 자의 기밀 정보와 관련하여 동일한 수준의 보살핌 및 보호를 행사할 것이며 (ii) 직접 또는 간접적으로 공시, 복사, 배포 , 제 3 자에게 공개 자의 기밀 정보에 대한 액세스 권한을 부여 할 수 있습니다. 전술 한 내용에도 불구하고 수취인은 수취인의 직원 및 대리인이 본 계약의 조항과 실질적으로 동일하고 (어떠한 경우에도 보호가되지 않는) 기밀 유지에 대한 법적 의무가 있음을 알 필요가있는 수취인의 직원 및 대리인에게 공개 자의 기밀 정보를 공개 할 수 있습니다. (c) 통보 의무. 수취인이 기밀 정보의 무단 사용 또는 공개를 알게되면 수취인은 기밀 정보 사용 또는 공개와 관련하여 기밀 정보에 대해 알려진 모든 사실을 신속하게 완전 공개 자에게 통보합니다. 또한 수취인 또는 그 직원 또는 대리인이 공개 자의 기밀 정보의 공개를 요구하는 경우 (구두 질문, 질의, 정보 요청 또는 소송 절차의 문서, 소환장, 민사 조사 요청 또는 기타 유사한 절차를 통해) 수취인은 Discloser에게 보호 명령 또는 기타 적절한 구제책을 찾거나이 조항의 준수를 포기하도록 상업적으로 합리적인 사전 서면 통지서를 제공하지 않고 공개 자의 기밀 정보를 공개하지 않습니다. 어떤 경우에도 수취인은 기밀 정보에 기밀 취급이 부여된다는 적절한 보호 명령 또는 기타 신뢰할 수있는 확신을 얻기 위해 공개 자의 협력을 비롯한 공개 자의 기밀 정보의 기밀 유지를 위해 상업적으로 합당한 노력을 기울일 것입니다 ..
- RESTRICTIONS ON USE. User will not: (a) modify, delete or remove any ownership, title, trademark, patent or copyright notices (“Identification”) from any Product; (b) copy any Product or any portion of any Product without reproducing all Identification on each copy or partial copy; (c) disassemble, reverse engineer, decompile or otherwise attempt to derive any Product source code from object code, except to the extent expressly permitted by applicable law despite this limitation without possibility of contractual waiver; (d) distribute, rent, lease, sublicense or provide the Product to any third party; (e) provide a third party with the results of any functional evaluation, or performance tests, without BMC's prior written approval; (f) attempt to disable or circumvent any of the licensing mechanisms within the Product; or (g) violate any other usage restrictions contained in the Documentation.
사용 제한. 사용자는 (a) 모든 제품의 소유권, 제목, 상표, 특허 또는 저작권 표시 ( "식별")를 수정, 삭제 또는 제거 할 수 없습니다. (b) 각 사본 또는 부분 사본에있는 모든 신분을 복제하지 않고 제품이나 제품의 일부를 복사하는 행위. (c) 계약상의 포기 가능성이없는 이러한 제한에도 불구하고 관련 법률에서 명시 적으로 허용하는 경우를 제외하고는 오브젝트 코드에서 제품 소스 코드를 분해, 리버스 엔지니어링, 디 컴파일 또는 기타 유도하려고 시도하지 않습니다. (d) 제품을 제 3 자에게 배포, 대여, 임대, 재사용 또는 제공; (e) BMC의 사전 서면 승인없이 기능적 평가 또는 성능 테스트의 결과를 제 3 자에게 제공합니다. (f) 제품 내의 라이센스 메커니즘을 비활성화하거나 우회하려고 시도하는 행위. (g) 문서에 포함 된 다른 사용 제한을 위반하는 경우
- NO WARRANTY AND LIMITATION OF LIABILITY. THE PRODUCTS ARE PROVIDED “AS IS” FOR EVALUATION PURPOSES ONLY AND WITHOUT ANY WARRANTY, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE OR MERCHANTABILITY, AND NON-INFRINGEMENT, OR ANY OTHER WARRANTY, WHETHER EXPRESS OR IMPLIED. NONE OF BMC, ITS AFFILIATES, SUPPLIERS OR LICENSORS SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OR ANY LOSS OF PROFITS, REVENUE, DATA OR DATA USE FROM ANY CAUSE ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THE PRODUCT OR THIS AGREEMENT. BMC’S, IT’S AFFILIATES’, SUPPLIER’S AND LICENSOR’S LIABILITY FOR DAMAGES RESULTING FROM THE USE OF THE PRODUCT OR THIS AGREEMENT, WHETHER IN CONTRACT OR TORT, SHALL BE LIMITED TO THE GREATER OF THE AMOUNT PAID BY USER TO LICENSE THE USE OF THAT PRODUCT OR $500. IN THE COUNTRIES LISTED IN SUBSECTION 9(F), BELOW, THE LIMITATION OF LIABLITY IN THIS SECTION WILL NOT APPLY IF AND TO THE EXTENT THAT THE DAMAGE WAS CAUSED BY THE WILLFUL INTENT OR GROSS NEGLIGENCE OF EITHER PARTY.
무보증 및 책임의 제한. 제품은 평가 목적으로 "있는 그대로"제공되며, 명시 적 또는 묵시적이든 특정 목적에 대한 적합성 또는 상업성 및 타인의 권리 비 침해에 대한 묵시적인 보증을 포함하여 모든 보증이 제한없이 제공됩니다. BMC, 그 계열사, 공급 업체 또는 라이센스 제공자는 본 계약과 관련하여 발생하거나 발생하는 모든 간접적, 우발적, 특별, 징벌 적 또는 필연적 손해 또는 이익, 매출, 데이터 또는 데이터의 손실에 대해 책임을지지 않습니다. 제품 또는 본 계약의 사용. 계약 또는 불법 행위에 관계없이 제품 또는 본 계약의 사용으로 인해 발생하는 BMC의 '계열사', 공급 업체 및 라이센스 제공자의 책임은 제품 또는 $ 500의 사용을 라이센스하기 위해 사용자가 지불 한 금액의 상당 부분으로 제한됩니다 . 아래 제 9 (F) 항에 나열된 국가에서 본 절의 책임 제한은 적용되지 않으며 해당 손해가 제 3 자의 과실로 인해 발생했거나 귀하의 과실로 인해 발생한 경우는 예외로합니다.
- TERMINATION. Either party may terminate this Agreement at any time upon two weeks prior notice. Upon termination of this Agreement or expiration of a Trial Period, if User has not obtained a production use license for the Product, User shall (a) cease using the Product, and (b) certify in writing to BMC that User has de-installed and destroyed, or returned to BMC, the Products and all copies of the Products. This requirement applies to copies in all forms, partial and complete, in all types of media and computer memory and whether or not merged into other materials. This Agreement creates no obligation on the part of BMC to license any Products to User or on the part of User to purchase any hardware or license any software Products from BMC. Notwithstanding anything to the contrary in this Section 6, if hardware is included with the Product, upon conclusion of the Trial Period User will either purchase the hardware or return it to BMC within five days in its original packing material.
해지. 각 당사자는 사전 통보 2 주 후에 언제든지 본 계약을 해지 할 수 있습니다. 본 계약이 만료되거나 평가 기간이 만료 된 경우, 사용자가 제품의 생산 사용 라이센스를 취득하지 않은 경우, 사용자는 (a) 제품 사용을 중단하고 (b) 사용자가 설치 해제했다고 BMC에 서면으로 확인해야합니다 제품 및 모든 제품 사본을 폐기하거나 BMC에 반환해야합니다. 이 요구 사항은 모든 유형의 매체 및 컴퓨터 메모리의 부분 및 전체 형태의 사본 및 기타 자료와 병합되었는지 여부에 적용됩니다. 본 계약은 BMC가 하드웨어 또는 라이센스를 BMC로부터 구매할 수 있도록 사용자에게 제품을 라이센스하거나 사용자의 일부로 라이센스를 부여 할 의무가 없습니다. 본 6 절의 내용과 상반되는 조항에도 불구하고 하드웨어가 제품에 포함되어있는 경우 평가 기간이 끝나면 하드웨어를 구입하거나 원래 포장재로 5 일 이내에 BMC에 반환해야합니다.
- DATA PROTECTION. BMC and Customer agree that the Data Processing Agreement, a copy of which may be viewed at https://www.bmc.com/content/dam/bmc/corporate/bmcdpa.pdf, applies to the BMC Products downloaded unless BMC already has a signed Data Processing Agreement with Customer for such BMC Products; in which case, the signed version applies.
데이터 보호. BMC와 고객은 데이터처리합의서에 동의하며, (합의서 사본은 https://www.bmc.com/content/dam/bmc/corporate/bmcdpa.pdf 에서 확인할 수 있습니다.) 합의서는 다운로드한 BMC제품에 대해 적용됩니다. 어떤 BMC제품에 관하여, BMC가 이미 고객과 체결된 데이터처리합의서를 보유한 경우에는 등록된 버전이 적용됩니다.
- EXPORT CONTROLS. User represents and warrants that it: a) will comply with the United States Export Administration Regulations and other U.S. or foreign export regulations; b) no individual accessing or using the Product is a citizen of or from an embargoed country (currently Iran, Syria, Sudan, Cuba and North Korea); c) is not prohibited from receiving the Product under such regulations; d) will not acquire the Product for a person who is restricted under such regulations; e) will not use the Product in contradiction to such regulations; and f) will not use the Product for prohibited uses, including but not limited to nuclear, chemical, missile or biological weapons related end uses. For Product exported from Ireland, EC No. 428/2009 sets up a Community regime for control of exports of dual-use items and technology, and it is declared that this Product is intended for civil purposes only. Therefore, User agrees to comply with both the U.S. regulations and those E.U. regulations and will not export in violation of the regulations and without all proper licenses. Any failure to comply with these regulations will result in User forfeiting all rights to the Product.
수출 통제. 사용자는 다음을 나타내며 보증합니다 : a) 미국 수출 관리 규정 및 기타 미국 또는 해외 수출 규정을 준수합니다. b) 제품에 접근하거나 사용하는 개인은 금수 조치를 취한 국가의 국민이거나 (현재이란, 시리아, 수단, 쿠바 및 북한); c) 해당 규정에 의거하여 제품을 수령하는 것이 금지되어 있지 않습니다. d) 해당 규정에 의거하여 제한된 사람을 위해 제품을 취득하지 않을 것. e) 그러한 규정과 상반되게 제품을 사용하지 않아야합니다. f) 원자력, 화학, 미사일 또는 생물 무기 관련 최종 용도를 포함하되 이에 국한되지 않는 금지 된 용도로 제품을 사용하지 않아야합니다. 아일랜드에서 수출 된 제품의 경우, EC No. 428/2009는 이중 용도 제품 및 기술 수출 통제를위한 공동체 체제를 설정하고이 제품은 시민의 용도로만 사용하도록 고안되었습니다. 따라서 사용자는 미국 법규와 E.U. 규정을 위반하고 모든 적절한 면허가없는 상태로 수출하지 않을 것입니다. 이 규정을 준수하지 않을 경우 사용자는 제품에 대한 모든 권리를 상실하게됩니다.
- GOVERNING LAW AND DISPUTE RESOLUTION. A party will provide written notice to the other party of any controversy, dispute or claim arising out of or relating to this Agreement, or to the formation, interpretation, breach, termination, or validity thereof (“Controversy”). The parties shall engage in good faith negotiations to resolve the Controversy. Only if the Controversy is not resolved through good faith negotiations within 15 days of the sending of the written notice of Controversy, the Controversy may be submitted to litigation or binding arbitration, based on the place of incorporation of the parties, as follows:
(i) If both parties to this Agreement are entities incorporated under the law of any state in the United States, the Controversy shall be tried in either state or federal court located in Houston, Texas and the laws of the State of Texas shall govern. Both sides hereby submit to the exclusive jurisdiction of the courts in Houston, Texas and waive all defenses based on forum non conveniens.
(ii) If both parties to this Agreement are entities incorporated in countries in the Europe, Middle East, or Africa regions, the arbitration shall be held in Amsterdam, Netherlands under the then-applicable rules of the International Chamber of Commerce and the substantive laws of the Netherlands will govern.
(iii) If both parties to this Agreement are entities incorporated in countries in the Asia Pacific region, the arbitration shall be held in Singapore under the then-applicable rules of the Singapore International Arbitration Centre and the substantive laws of Singapore will govern.
(iv) In all other instances, the arbitration shall be held in New York City, New York, under the then-applicable international rules of the American Arbitration Association and the substantive laws of the State of Texas will govern.
For all arbitrations conducted hereunder:(a) the arbitration shall be conducted in English; (b) the relevant arbitral institution shall determine the number of arbitrators, but any Controversy in which the amount in dispute is greater than $10 million USD shall be decided by three arbitrators, with each party having the right to select one arbitrator; (c) the costs of such arbitration shall be borne equally, pending the arbitrator’s award; (d) the arbitration award rendered shall be final and binding on the parties, shall not be subject to appeal to any court and shall be enforceable in any court having jurisdiction over the Parties; (e) the arbitration proceedings, award and pleadings shall all be confidential, unless disclosure of particular information is required for purposes of enforcing/challenging the award or to meet local securities law requirements; and (f) the party prevailing in arbitration shall be entitled to recover its reasonable attorneys’ fees and the necessary costs incurred in connection with the arbitration.
The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. Nothing in this Agreement shall be deemed as preventing either party from seeking immediate injunctive relief from any court having jurisdiction over the parties and the subject matter of the dispute.
준거법 및 분쟁 해결. 당사자는이 계약 또는 이와 관련하여 발생하는 논쟁, 분쟁 또는 주장 또는 그 형성, 해석, 위반, 해지 또는 유효성에 대한 서면 통보를 상대방에게 제공합니다 ( "논쟁"). 양 당사자는 논쟁을 해결하기 위해 선의의 협상에 종사해야한다. 논쟁의 서면 통지를 보낸 후 15 일 이내에 선의의 협상을 통해 논쟁이 해결되지 않을 경우에만 논쟁은 다음과 같이 당사자의 입지에 따라 소송 또는 구속력있는 중재에 회부 될 수 있습니다.
(i) 본 계약의 양 당사자가 미국의 어느 주법하에 설립 된 단체 인 경우, 텍사스 주 휴스턴에 위치한 주 법원 또는 연방 법원에서 논쟁을 시도하고 텍사스 주법이 적용됩니다. 양측은 텍사스 주 휴스턴 법원의 배타적 관할권에 복종하며 비회원 포럼을 기반으로 모든 방어를 포기합니다.
(ii)이 협정의 양 당사자가 유럽, 중동 또는 아프리카 지역의 국가에 법인을두고있는 경우, 중재는 국제 상공 회의소의 해당 규칙 및 실체법에 따라 네덜란드 암스테르담에서 개최되어야한다 네덜란드의
(iii) 본 계약의 양 당사자가 아시아 태평양 지역의 국가에 법인을두고있는 경우 중재는 싱가포르 국제 중재 센터의 해당 규칙에 따라 싱가포르에서 개최되며 싱가포르의 실질 법률이 우선합니다.
(iv) 그 밖의 모든 경우에, 중재는 뉴욕 중재 재판소 (New York City, New York)에서 열리 며 미국 중재 협회 (American Arbitration Association)의 국제 규칙에 따라 진행되며 텍사스 주정부의 실질 법률이 적용됩니다.
본 계약 하에서 수행되는 모든 중재의 경우 : (a) 중재는 영어로 진행됩니다. (b) 관련 중재 기관은 중재자의 수를 결정해야하지만, 분쟁 금액이 1,000 만 달러 이상인 분쟁은 3 인의 중재자가 결정하며, 각 당사자는 중재인을 1 명 선출 할 권리가있다. (c) 그러한 중재 비용은 중재자의 판정이있을 때까지 동등하게 부담되어야한다. (d) 중재 판정이 최종적으로 당사자들에게 구속력을 가지며 법원에 항소 할 수 없으며 양 당사국을 관할하는 법원에서 집행 할 수있다. (e) 중재 절차, 판정 및 간청은 모두 비밀리에 수행해야하며, 시행을 위해 특정 정보의 공개가 요구되지 않는 한
- U.S. FEDERAL ACQUISITIONS. This Section applies only to acquisitions of the commercial Product and Documentation subject to this Agreement by or on behalf of the United States Government, or by any prime contractor or subcontractor (at any tier) under any contract, grant, cooperative agreement or other activity with the United States Government. In the event the Products are delivered to the United States Government, the United States Government hereby agrees that the Products qualify as “commercial items” within the meaning of the Federal acquisition regulation(s) applicable to this procurement. The terms and conditions of this Agreement shall pertain to the United States Government’s use and disclosure of the Product, and shall supersede any conflicting contractual terms and conditions. The following additional statement applies only to acquisitions governed by DFARS Subpart 227.4 (October 1988): “Restricted Rights – Use, duplication and disclosure by the Government is subject to restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 (Oct. 1988).”
미국 연방 정부의 취득. 본 조항은 미합중국 정부에 의하여 또는 대신하여 계약, 보조금, 협력 합의 또는 기타 활동에 따라 모든 계약자 또는 하도급 계약자 (모든 계층)가 본 계약의 대상이되는 상업용 제품 및 문서를 취득하는 경우에만 적용됩니다. 미국 정부. 제품이 미합중국 정부에 인도되는 경우 미국 정부는이 조달에 적용 할 수있는 연방 조달 규정의 의미 내에서 제품이 "상업적 품목"의 자격을 갖음에 동의합니다. 본 계약의 조건은 미국 정부가 제품을 사용하고 공개하는 것과 관련이 있으며 충돌하는 계약 조건을 대신합니다. 다음 추가 진술은 DFARS Subpart 227.4 (1988 년 10 월)에 의해 적용되는 인수에만 적용됩니다. "제한된 권리 - 정부의 사용, 복제 및 공개는 (a) 항 (c) (1) (ii) DFARS 252.227-7013 (1988 년 10 월)의 기술 데이터 및 컴퓨터 소프트웨어 조항에 대한 권리 "
- MISCELLANEOUS TERMS. A waiver by a party of any breach of any term of this Agreement will not be construed as a waiver of any continuing or succeeding breach. Should any term of this Agreement be invalid or unenforceable, the remaining terms will remain in effect. The parties acknowledge they have read this Agreement and agree that it is the complete and exclusive statement of the agreement and supersedes any prior or contemporaneous negotiations or agreements, between the parties relating to the subject matter of this Agreement. There are no representations, promises, warranties, covenants, or undertakings between the parties other than those expressly set forth in this Agreement. This Agreement may not be modified or rescinded except in writing signed by both parties. The prevailing party in any litigation is entitled to recover its attorney’s fees and costs from the other party. User may not assign or transfer this Agreement without BMC’s prior written consent. The BMC Products may contain third party software which is delivered to User as part of the Product and may not be taken out of the Product or used separately from the Product and for which additional terms may be included in the Documentation. Any additional documents presented to a BMC representative by User for signature as a condition for going on a User’s site will be governed by this Agreement and to the extent that such document presents additional terms or conflicts with this Agreement, it shall be considered null and void.
기타 조항. 본 계약 기간의 위반에 대한 당사자의 포기는 계속되거나 계속되는 위반에 대한 권리 포기로 해석되지 않습니다. 본 계약 기간이 유효하지 않거나 시행이 불가능할 경우, 나머지 조건은 유효합니다. 양 당사자는 양 당사자가이 협정을 읽었으며 협약의 완전하고 독점적 인 진술임을 동의하고이 협정의 주제와 관련된 양 당사자 간의 이전 또는 현재의 협상 또는 협의를 대체한다. 이 계약서에 명시 적으로 명시된 것 이외의 다른 당사자 간에는 진술, 약속, 보증, 약정 또는 약정이 없습니다. 본 계약은 양 당사자가 서명 한 서면을 제외하고는 수정되거나 철회 될 수 없습니다. 모든 소송에서 승소 한 당사자는 상대방으로부터 변호사 비용 및 비용을 회수 할 권리가 있습니다. 사용자는 BMC의 사전 서면 동의없이 본 계약을 양도하거나 양도 할 수 없습니다. BMC 제품에는 제품의 일부로 사용자에게 제공되는 제 3 자 소프트웨어가 포함될 수 있으며 제품에서 제거되거나 제품과 별도로 사용되거나 추가 조항이 문서에 포함될 수 없습니다. 사용자가 사이트를 방문하기위한 조건으로 서명하기 위해 사용자가 BMC 담당자에게 제출하는 추가 문서는 본 계약의 적용을받으며이 문서가 본 계약에 대한 추가 조건이나 충돌을 나타내는 한도 내에서 무효로 간주됩니다 .
If you agree, as an authorized representative of User, to accept the license terms above on behalf of yourself and User, and to confirm that you and User are in compliance with and will remain in compliance with all of the terms and conditions set forth above, click on the "I agree" button below.
위임 된 사용자 대표로서 본인 및 사용자를 대신하여 위의 라이센스 조항에 동의하고 귀하와 사용자가 위에 명시된 조건을 준수하고 준수 할 것임을 확인하는 경우 아래의 "동의합니다"버튼을 클릭하십시오
Effective April 9th 2020 to April 9th 2020
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TRIAL AGREEMENT
재판 계약
THIS TRIAL AGREEMENT ("AGREEMENT") WILL BECOME A LEGAL AGREEMENT BETWEEN THE USER OF THE DOWNLOADED PRODUCT NAMED IN THE EXPORT VALIDATION SECTION OF THE BMC SUPPORT WEB SITE (WITHIN WWW.BMC.COM) OR ANY SUCCESSOR SITE) OF WHICH THIS AGREEMENT IS A PART ("USER") AND BMC SOFTWARE , INC. OR ITS LOCAL LICENSING AFFILIATE ("BMC"). BY PRESSING THE "I AGREE" BUTTON, YOU REPRESENT AND WARRANT THAT YOU HAVE READ AND UNDERSTOOD THE TERMS OF THIS AGREEMENT, THAT YOU HAVE THE AUTHORITY TO BIND USER TO THIS AGREEMENT, AND THAT USER AGREES TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. BMC AGREES TO PERMIT YOU TO DOWNLOAD PRODUCTS ONLY IF AND AFTER YOU AND USER HAVE ACCEPTED ALL OF THESE TERMS BY PRESSING THE "I AGREE" BUTTON.
본 계약 ( "계약")은 본 계약서의 BMC 지원 웹 사이트 (WWW.BMC.COM 내) 또는 후발 사이트의 수출 유효 기간 섹션에있는 다운로드 된 제품의 사용자와 법적 계약이됩니다 A 부분 ( "사용자") 및 BMC 소프트웨어 배포 회사 또는 해당 지역 라이센스 제휴 업체 ( "BMC"). "동의 함"버튼을 누르면, 귀하는 귀하가 본 계약서에 사용자를 구속 할 수있는 권한을 가지고 있거나, 귀하가 본 계약서의 조건들을 준수 할 것에 동의한다는 것을이 계약서의 조건들을 읽고 이해했음을 진술하고 보증합니다. 이 계약. BMC는 귀하가 "동의 함"버튼을 눌러서 본 약관을 모두 수락 한 경우에만 제품을 다운로드 할 수 있도록 동의합니다.
PLEASE READ THIS AGREEMENT: IF YOU DO NOT UNDERSTAND OR AGREE WITH ANY OF THE TERMS OF THIS AGREEMENT, DO NOT PRESS THE "I AGREE" BUTTON.
본 계약서를 읽으십시오 : 귀하가이 계약서의 내용을 이해하거나 동의하지 않으면 "동의 함"버튼을 누르지 마십시오.
- DEFINED TERMS. "Confidential Information" means all proprietary or confidential information that is disclosed to the recipient (“Recipient”) by the discloser (“Discloser”), and includes, among other things (i) any and all information relating Discloser’s financial information, customers, employees, products or services, including, without limitation, software code, flow charts, techniques, specifications, development and marketing plans, strategies, forecasts, and proposal related documents and responses; (ii) as to BMC, and its licensors, the software Product and any third party software provided with the Product; and (iii) the terms of this Agreement, including without limitation, Product pricing information. Confidential Information does not include information that Recipient can show: (a) was rightfully in Recipient’s possession without any obligation of confidentiality before receipt from the Discloser; (b) is or becomes a matter of public knowledge through no fault of the Recipient; (c) is rightfully received by the Recipient from a third party without violation of a duty of confidentiality; or (d) is independently developed by or for the Recipient. "Products" are software or hardware products and their related documentation and other technical information owned or distributed by BMC which may be accessed on the BMC EPD Web site (www.bmc.com/ or any successor web site) and for which User is granted a license under this Agreement. "Trial Period" with respect to a Product, is the time period that begins the date that You download such Product and ends on the sooner of (a) thirty calendar days thereafter, or (b) the number of calendar days thereafter specified in the license key provided with such Product.
정의 된 조건. "기밀 정보 (Confidential Information)"는 공시인 ( "공시인")이 수령인 ( "수령인")에게 공개하는 모든 독점적 또는 기밀 정보를 의미하며, 그 중에서도 (i) Discloser의 재무 정보, 고객, 흐름도, 기술, 사양, 개발 및 마케팅 계획, 전략, 예측 및 제안 관련 문서 및 응답을 포함하되 이에 국한되지 않는 직원, 제품 또는 서비스; (ii) BMC 및 라이센스 제공자, 제품과 함께 제공된 소프트웨어 제품 및 제 3 자 소프트웨어; (iii) 제품 가격 정보를 포함하되 이에 제한되지 않는 본 계약의 조건. 기밀 정보에는 수신자가 표시 할 수있는 정보가 포함되어 있지 않습니다. (a) 공개 자의 영수증을 수령하기 전에 기밀 유지 의무가 없습니다. (b) 수령자의 과실없이 공개 지식의 문제가되거나 그 문제가된다. (c) 기밀 유지 의무를 위반하지 않고 제 3 자로부터 수령인이 정당하게 접수 한 경우. 또는 (d) 수취인에 의해 또는 수취인을 위해 독자적으로 개발 됨. "제품"은 BMC EPD 웹 사이트 (www.bmc.com/ 또는 후속 웹 사이트)에서 액세스 할 수있는 소프트웨어 또는 하드웨어 제품 및 관련 문서 및 BMC가 소유하거나 배포하는 기타 기술 정보이며 사용자는 본 계약에 따른 라이센스. 제품에 대한 "시험 기간"은 귀하가 그러한 제품을 다운로드 한 날로부터 시작하여 (a) 30 일 이내에 종료되거나 (b) 그 이후에 지정된 달력 일수가 해당 제품과 함께 제공된 라이센스 키.
- TRIAL LICENSE. BMC grants User a non-exclusive, non-transferable, non-assignable temporary license to use each Product on a single computer for the Trial Period only to internally evaluate and determine whether to acquire and/or license such Product for a fee, and not for development, commercial, production, or database management purposes, or with production data. User must enter into a separate agreement to obtain production rights and technical support for a Product.
시험 사용권. BMC는 평가판 사용을 위해 한 대의 컴퓨터에서 각 제품을 사용하기위한 비 독점적 인 양도 불가능한 비 양도성 임시 라이센스를 사용자에게 부여하여 해당 제품을 유료로 구입 및 / 또는 라이센스를 부여할지 여부를 내부적으로 평가하고 결정합니다. 개발, 상업용, 프로덕션 또는 데이터베이스 관리 목적 또는 프로덕션 데이터 용. 사용자는 제품에 대한 생산 권한 및 기술 지원을 얻으려면 별도의 계약을 체결해야합니다.
- PROPRIETARY RIGHTS AND CONFIDENTIALITY. (a) BMC, its affiliates or licensors retain all right, title and interest to the Product, Support and all related intellectual property and proprietary rights. The Product and all third party software provided with the Product are protected by applicable copyright, trade secret, industrial and other intellectual property laws. User may not remove any product identification, copyright, trademark or other notice from the Product. BMC reserves any rights not expressly granted to User in this Agreement. (b) Recipient may not disclose Confidential Information of Discloser to any third party or use the Confidential Information in violation of this Agreement. The Recipient (i) will exercise the same degree of care and protection with respect to the Confidential Information of the Discloser that it exercises with respect to its own Confidential Information and (ii) will not, either directly or indirectly, disclose, copy , distribute, republish, or allow any third party to have access to any Confidential Information of Discloser. Nothwithstanding the foregoing, Recipient may disclose Discloser’s Confidential Information to Recipient’s employees and agents who have the need to know provided that such employees and agents have legal obligations of confidentiality substantially the same (and in no case less protective) as the provisions of this Agreement. (c) Notification Obligation. If the Recipient becomes aware of any unauthorized use or disclosure of Discloser’s Confidential Information, then Recipient will promptly and fully notify the Discloser of all facts known to it concerning such unauthorized use or disclosure. In addition, if the Recipient or any of its employees or agents are required (by oral questions, interrogatories, requests for information, or documents in legal proceedings, subpoena, civil investigative demand, or other similar process) to disclose any of Discloser’s Confidential Information, the Recipient will not disclose the Discloser’s Confidential Information without providing the Discloser with commercially reasonable advance prior written notice to allow Discloser to seek a protective order or other appropriate remedy or to waive compliance with this provision. In any event, the Recipient will exercise its commercially reasonable efforts to preserve the confidentiality of the Discloser’s Confidential Information, including, without limitation, cooperating with Discloser to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded to the Confidential Information.
독점적 권리 및 기밀 유지. (a) BMC, 그 계열사 또는 라이센스 제공자는 제품, 지원 및 모든 관련 지적 재산권 및 독점적 권리에 대한 모든 권리, 소유권 및 이권을 보유합니다. 제품과 함께 제공된 제품 및 모든 제 3 자 소프트웨어는 해당 저작권, 영업 비밀, 산업 및 기타 지적 재산권 법률에 의해 보호됩니다. 사용자는 제품 식별, 저작권, 상표 또는 기타 제품을 제품에서 제거 할 수 없습니다. BMC는 본 계약에서 사용자에게 명시 적으로 부여되지 않은 권리를 보유합니다. (b) 수취인은 공개 자의 기밀 정보를 제 3 자에게 공개하거나 본 계약을 위반하여 기밀 정보를 사용할 수 없습니다. 수취인 (i)은 자신의 기밀 정보와 관련하여 수행하는 공개 자의 기밀 정보와 관련하여 동일한 수준의 보살핌 및 보호를 행사할 것이며 (ii) 직접 또는 간접적으로 공시, 복사, 배포 , 제 3 자에게 공개 자의 기밀 정보에 대한 액세스 권한을 부여 할 수 있습니다. 전술 한 내용에도 불구하고 수취인은 수취인의 직원 및 대리인이 본 계약의 조항과 실질적으로 동일하고 (어떠한 경우에도 보호가되지 않는) 기밀 유지에 대한 법적 의무가 있음을 알 필요가있는 수취인의 직원 및 대리인에게 공개 자의 기밀 정보를 공개 할 수 있습니다. (c) 통보 의무. 수취인이 기밀 정보의 무단 사용 또는 공개를 알게되면 수취인은 기밀 정보 사용 또는 공개와 관련하여 기밀 정보에 대해 알려진 모든 사실을 신속하게 완전 공개 자에게 통보합니다. 또한 수취인 또는 그 직원 또는 대리인이 공개 자의 기밀 정보의 공개를 요구하는 경우 (구두 질문, 질의, 정보 요청 또는 소송 절차의 문서, 소환장, 민사 조사 요청 또는 기타 유사한 절차를 통해) 수취인은 Discloser에게 보호 명령 또는 기타 적절한 구제책을 찾거나이 조항의 준수를 포기하도록 상업적으로 합리적인 사전 서면 통지서를 제공하지 않고 공개 자의 기밀 정보를 공개하지 않습니다. 어떤 경우에도 수취인은 기밀 정보에 기밀 취급이 부여된다는 적절한 보호 명령 또는 기타 신뢰할 수있는 확신을 얻기 위해 공개 자의 협력을 비롯한 공개 자의 기밀 정보의 기밀 유지를 위해 상업적으로 합당한 노력을 기울일 것입니다 ..
- RESTRICTIONS ON USE. User will not: (a) modify, delete or remove any ownership, title, trademark, patent or copyright notices (“Identification”) from any Product; (b) copy any Product or any portion of any Product without reproducing all Identification on each copy or partial copy; (c) disassemble, reverse engineer, decompile or otherwise attempt to derive any Product source code from object code, except to the extent expressly permitted by applicable law despite this limitation without possibility of contractual waiver; (d) distribute, rent, lease, sublicense or provide the Product to any third party; (e) provide a third party with the results of any functional evaluation, or performance tests, without BMC's prior written approval; (f) attempt to disable or circumvent any of the licensing mechanisms within the Product; or (g) violate any other usage restrictions contained in the Documentation.
사용 제한. 사용자는 (a) 모든 제품의 소유권, 제목, 상표, 특허 또는 저작권 표시 ( "식별")를 수정, 삭제 또는 제거 할 수 없습니다. (b) 각 사본 또는 부분 사본에있는 모든 신분을 복제하지 않고 제품이나 제품의 일부를 복사하는 행위. (c) 계약상의 포기 가능성이없는 이러한 제한에도 불구하고 관련 법률에서 명시 적으로 허용하는 경우를 제외하고는 오브젝트 코드에서 제품 소스 코드를 분해, 리버스 엔지니어링, 디 컴파일 또는 기타 유도하려고 시도하지 않습니다. (d) 제품을 제 3 자에게 배포, 대여, 임대, 재사용 또는 제공; (e) BMC의 사전 서면 승인없이 기능적 평가 또는 성능 테스트의 결과를 제 3 자에게 제공합니다. (f) 제품 내의 라이센스 메커니즘을 비활성화하거나 우회하려고 시도하는 행위. (g) 문서에 포함 된 다른 사용 제한을 위반하는 경우
- no warranty and limitation of LIABILITY. THE PRODUCTS ARE PROVIDED “AS IS” FOR EVALUATION PURPOSES ONLY AND WITHOUT ANY WARRANTY, including without limitation, ANY implied warranties of fitness for a particular purpose or merchantability, AND NON-INFRINGEMENT, OR ANY OTHER WARRANTY, WHETHER EXPRESS OR IMPLIED. NONE OF BMC, its affiliates, suppliers or licensors SHALL BE liable for ANY indirect, incidental, SPECIAL, PUNITIVE or consequential damages OR ANY LOSS OF PROFITS, REVENUE, DATA OR DATA USE from any cause arising out of or in any way connected with the use of the Product or this agreement. BMC’s, it’s affiliates’, supplier’s and licensor’s liability for damages resulting from the use of the Product or this agreement, WHETHER IN CONTRACT OR TORT, SHALL BE LIMITED to the greater of the amount paid by USER to LICENSE THE USE OF THAT PRODUcT or $500. IN THE COUNTRIES LISTED IN SUBSECTION 9(F), BELOW, THE LIMITATION OF LIABLITY IN THIS SECTION WILL NOT APPLY IF AND TO THE EXTENT THAT THE DAMAGE WAS CAUSED BY THE WILLFUL INTENT OR GROSS NEGLIGENCE OF EITHER PARTY.
무보증 및 책임의 제한. 제품은 평가 목적으로 "있는 그대로"제공되며, 명시 적 또는 묵시적이든 특정 목적에 대한 적합성 또는 상업성 및 타인의 권리 비 침해에 대한 묵시적인 보증을 포함하여 모든 보증이 제한없이 제공됩니다. BMC, 그 계열사, 공급 업체 또는 라이센스 제공자는 본 계약과 관련하여 발생하거나 발생하는 모든 간접적, 우발적, 특별, 징벌 적 또는 필연적 손해 또는 이익, 매출, 데이터 또는 데이터의 손실에 대해 책임을지지 않습니다. 제품 또는 본 계약의 사용. 계약 또는 불법 행위에 관계없이 제품 또는 본 계약의 사용으로 인해 발생하는 BMC의 '계열사', 공급 업체 및 라이센스 제공자의 책임은 제품 또는 $ 500의 사용을 라이센스하기 위해 사용자가 지불 한 금액의 상당 부분으로 제한됩니다 . 아래 제 9 (F) 항에 나열된 국가에서 본 절의 책임 제한은 적용되지 않으며 해당 손해가 제 3 자의 과실로 인해 발생했거나 귀하의 과실로 인해 발생한 경우는 예외로합니다.
- TERMINATION. Either party may terminate this Agreement at any time upon two weeks prior notice. Upon termination of this Agreement or expiration of a Trial Period, if User has not obtained a production use license for the Product, User shall (a) cease using the Product, and (b) certify in writing to BMC that User has de-installed and destroyed, or returned to BMC, the Products and all copies of the Products. This requirement applies to copies in all forms, partial and complete, in all types of media and computer memory and whether or not merged into other materials. This Agreement creates no obligation on the part of BMC to license any Products to User or on the part of User to purchase any hardware or license any software Products from BMC. Notwithstanding anything to the contrary in this Section 6, if hardware is included with the Product, upon conclusion of the Trial Period User will either purchase the hardware or return it to BMC within five days in its original packing material.
해지. 각 당사자는 사전 통보 2 주 후에 언제든지 본 계약을 해지 할 수 있습니다. 본 계약이 만료되거나 평가 기간이 만료 된 경우, 사용자가 제품의 생산 사용 라이센스를 취득하지 않은 경우, 사용자는 (a) 제품 사용을 중단하고 (b) 사용자가 설치 해제했다고 BMC에 서면으로 확인해야합니다 제품 및 모든 제품 사본을 폐기하거나 BMC에 반환해야합니다. 이 요구 사항은 모든 유형의 매체 및 컴퓨터 메모리의 부분 및 전체 형태의 사본 및 기타 자료와 병합되었는지 여부에 적용됩니다. 본 계약은 BMC가 하드웨어 또는 라이센스를 BMC로부터 구매할 수 있도록 사용자에게 제품을 라이센스하거나 사용자의 일부로 라이센스를 부여 할 의무가 없습니다. 본 6 절의 내용과 상반되는 조항에도 불구하고 하드웨어가 제품에 포함되어있는 경우 평가 기간이 끝나면 하드웨어를 구입하거나 원래 포장재로 5 일 이내에 BMC에 반환해야합니다.
- DATA PROTECTION. BMC and Customer agree that the Data Processing Agreement, a copy of which may be viewed at https://www.bmc.com/content/dam/bmc/corporate/bmcdpa.pdf, applies to the BMC Products downloaded unless BMC already has a signed Data Processing Agreement with Customer for such BMC Products; in which case, the signed version applies.
데이터 보호. BMC와 고객은 데이터처리합의서에 동의하며, (합의서 사본은 https://www.bmc.com/content/dam/bmc/corporate/bmcdpa.pdf 에서 확인할 수 있습니다.) 합의서는 다운로드한 BMC제품에 대해 적용됩니다. 어떤 BMC제품에 관하여, BMC가 이미 고객과 체결된 데이터처리합의서를 보유한 경우에는 등록된 버전이 적용됩니다.
- EXPORT CONTROLS. User represents and warrants that it: a) will comply with the United States Export Administration Regulations and other U.S. or foreign export regulations; b) no individual accessing or using the Product is a citizen of or from an embargoed country (currently Iran, Syria, Sudan, Cuba and North Korea); c) is not prohibited from receiving the Product under such regulations; d) will not acquire the Product for a person who is restricted under such regulations; e) will not use the Product in contradiction to such regulations; and f) will not use the Product for prohibited uses, including but not limited to nuclear, chemical, missile or biological weapons related end uses. For Product exported from Ireland, EC No. 428/2009 sets up a Community regime for control of exports of dual-use items and technology, and it is declared that this Product is intended for civil purposes only. Therefore, User agrees to comply with both the U.S. regulations and those E.U. regulations and will not export in violation of the regulations and without all proper licenses. Any failure to comply with these regulations will result in User forfeiting all rights to the Product.
수출 통제. 사용자는 다음을 나타내며 보증합니다 : a) 미국 수출 관리 규정 및 기타 미국 또는 해외 수출 규정을 준수합니다. b) 제품에 접근하거나 사용하는 개인은 금수 조치를 취한 국가의 국민이거나 (현재이란, 시리아, 수단, 쿠바 및 북한); c) 해당 규정에 의거하여 제품을 수령하는 것이 금지되어 있지 않습니다. d) 해당 규정에 의거하여 제한된 사람을 위해 제품을 취득하지 않을 것. e) 그러한 규정과 상반되게 제품을 사용하지 않아야합니다. f) 원자력, 화학, 미사일 또는 생물 무기 관련 최종 용도를 포함하되 이에 국한되지 않는 금지 된 용도로 제품을 사용하지 않아야합니다. 아일랜드에서 수출 된 제품의 경우, EC No. 428/2009는 이중 용도 제품 및 기술 수출 통제를위한 공동체 체제를 설정하고이 제품은 시민의 용도로만 사용하도록 고안되었습니다. 따라서 사용자는 미국 법규와 E.U. 규정을 위반하고 모든 적절한 면허가없는 상태로 수출하지 않을 것입니다. 이 규정을 준수하지 않을 경우 사용자는 제품에 대한 모든 권리를 상실하게됩니다.
- GOVERNING LAW AND DISPUTE RESOLUTION. A party will provide written notice to the other party of any controversy, dispute or claim arising out of or relating to this Agreement, or to the formation, interpretation, breach, termination, or validity thereof (“Controversy”). The parties shall engage in good faith negotiations to resolve the Controversy. Only if the Controversy is not resolved through good faith negotiations within 15 days of the sending of the written notice of Controversy, the Controversy may be submitted to litigation or binding arbitration, based on the place of incorporation of the parties, as follows:
(i) If both parties to this Agreement are entities incorporated under the law of any state in the United States, the Controversy shall be tried in either state or federal court located in Houston, Texas and the laws of the State of Texas shall govern. Both sides hereby submit to the exclusive jurisdiction of the courts in Houston, Texas and waive all defenses based on forum non conveniens.
(ii) If both parties to this Agreement are entities incorporated in countries in the Europe, Middle East, or Africa regions, the arbitration shall be held in Amsterdam, Netherlands under the then-applicable rules of the International Chamber of Commerce and the substantive laws of the Netherlands will govern.
(iii) If both parties to this Agreement are entities incorporated in countries in the Asia Pacific region, the arbitration shall be held in Singapore under the then-applicable rules of the Singapore International Arbitration Centre and the substantive laws of Singapore will govern.
(iv) In all other instances, the arbitration shall be held in New York City, New York, under the then-applicable international rules of the American Arbitration Association and the substantive laws of the State of Texas will govern.
For all arbitrations conducted hereunder:(a) the arbitration shall be conducted in English; (b) the relevant arbitral institution shall determine the number of arbitrators, but any Controversy in which the amount in dispute is greater than $10 million USD shall be decided by three arbitrators, with each party having the right to select one arbitrator; (c) the costs of such arbitration shall be borne equally, pending the arbitrator’s award; (d) the arbitration award rendered shall be final and binding on the parties, shall not be subject to appeal to any court and shall be enforceable in any court having jurisdiction over the Parties; (e) the arbitration proceedings, award and pleadings shall all be confidential, unless disclosure of particular information is required for purposes of enforcing/challenging the award or to meet local securities law requirements; and (f) the party prevailing in arbitration shall be entitled to recover its reasonable attorneys’ fees and the necessary costs incurred in connection with the arbitration.
The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. Nothing in this Agreement shall be deemed as preventing either party from seeking immediate injunctive relief from any court having jurisdiction over the parties and the subject matter of the dispute.
준거법 및 분쟁 해결. 당사자는이 계약 또는 이와 관련하여 발생하는 논쟁, 분쟁 또는 주장 또는 그 형성, 해석, 위반, 해지 또는 유효성에 대한 서면 통보를 상대방에게 제공합니다 ( "논쟁"). 양 당사자는 논쟁을 해결하기 위해 선의의 협상에 종사해야한다. 논쟁의 서면 통지를 보낸 후 15 일 이내에 선의의 협상을 통해 논쟁이 해결되지 않을 경우에만 논쟁은 다음과 같이 당사자의 입지에 따라 소송 또는 구속력있는 중재에 회부 될 수 있습니다.
(i) 본 계약의 양 당사자가 미국의 어느 주법하에 설립 된 단체 인 경우, 텍사스 주 휴스턴에 위치한 주 법원 또는 연방 법원에서 논쟁을 시도하고 텍사스 주법이 적용됩니다. 양측은 텍사스 주 휴스턴 법원의 배타적 관할권에 복종하며 비회원 포럼을 기반으로 모든 방어를 포기합니다.
(ii)이 협정의 양 당사자가 유럽, 중동 또는 아프리카 지역의 국가에 법인을두고있는 경우, 중재는 국제 상공 회의소의 해당 규칙 및 실체법에 따라 네덜란드 암스테르담에서 개최되어야한다 네덜란드의
(iii) 본 계약의 양 당사자가 아시아 태평양 지역의 국가에 법인을두고있는 경우 중재는 싱가포르 국제 중재 센터의 해당 규칙에 따라 싱가포르에서 개최되며 싱가포르의 실질 법률이 우선합니다.
(iv) 그 밖의 모든 경우에, 중재는 뉴욕 중재 재판소 (New York City, New York)에서 열리 며 미국 중재 협회 (American Arbitration Association)의 국제 규칙에 따라 진행되며 텍사스 주정부의 실질 법률이 적용됩니다.
본 계약 하에서 수행되는 모든 중재의 경우 : (a) 중재는 영어로 진행됩니다. (b) 관련 중재 기관은 중재자의 수를 결정해야하지만, 분쟁 금액이 1,000 만 달러 이상인 분쟁은 3 인의 중재자가 결정하며, 각 당사자는 중재인을 1 명 선출 할 권리가있다. (c) 그러한 중재 비용은 중재자의 판정이있을 때까지 동등하게 부담되어야한다. (d) 중재 판정이 최종적으로 당사자들에게 구속력을 가지며 법원에 항소 할 수 없으며 양 당사국을 관할하는 법원에서 집행 할 수있다. (e) 중재 절차, 판정 및 간청은 모두 비밀리에 수행해야하며, 시행을 위해 특정 정보의 공개가 요구되지 않는 한
- U.S. FEDERAL ACQUISITIONS. This Section applies only to acquisitions of the commercial Product and Documentation subject to this Agreement by or on behalf of the United States Government, or by any prime contractor or subcontractor (at any tier) under any contract, grant, cooperative agreement or other activity with the United States Government. In the event the Products are delivered to the United States Government, the United States Government hereby agrees that the Products qualify as “commercial items” within the meaning of the Federal acquisition regulation(s) applicable to this procurement. The terms and conditions of this Agreement shall pertain to the United States Government’s use and disclosure of the Product, and shall supersede any conflicting contractual terms and conditions. The following additional statement applies only to acquisitions governed by DFARS Subpart 227.4 (October 1988): “Restricted Rights – Use, duplication and disclosure by the Government is subject to restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 (Oct. 1988).”
미국 연방 정부의 취득. 본 조항은 미합중국 정부에 의하여 또는 대신하여 계약, 보조금, 협력 합의 또는 기타 활동에 따라 모든 계약자 또는 하도급 계약자 (모든 계층)가 본 계약의 대상이되는 상업용 제품 및 문서를 취득하는 경우에만 적용됩니다. 미국 정부. 제품이 미합중국 정부에 인도되는 경우 미국 정부는이 조달에 적용 할 수있는 연방 조달 규정의 의미 내에서 제품이 "상업적 품목"의 자격을 갖음에 동의합니다. 본 계약의 조건은 미국 정부가 제품을 사용하고 공개하는 것과 관련이 있으며 충돌하는 계약 조건을 대신합니다. 다음 추가 진술은 DFARS Subpart 227.4 (1988 년 10 월)에 의해 적용되는 인수에만 적용됩니다. "제한된 권리 - 정부의 사용, 복제 및 공개는 (a) 항 (c) (1) (ii) DFARS 252.227-7013 (1988 년 10 월)의 기술 데이터 및 컴퓨터 소프트웨어 조항에 대한 권리 "
- MISCELLANEOUS TERMS. A waiver by a party of any breach of any term of this Agreement will not be construed as a waiver of any continuing or succeeding breach. Should any term of this Agreement be invalid or unenforceable, the remaining terms will remain in effect. The parties acknowledge they have read this Agreement and agree that it is the complete and exclusive statement of the agreement and supersedes any prior or contemporaneous negotiations or agreements, between the parties relating to the subject matter of this Agreement. There are no representations, promises, warranties, covenants, or undertakings between the parties other than those expressly set forth in this Agreement. This Agreement may not be modified or rescinded except in writing signed by both parties. The prevailing party in any litigation is entitled to recover its attorney’s fees and costs from the other party. User may not assign or transfer this Agreement without BMC’s prior written consent. The BMC Products may contain third party software which is delivered to User as part of the Product and may not be taken out of the Product or used separately from the Product and for which additional terms may be included in the Documentation. Any additional documents presented to a BMC representative by User for signature as a condition for going on a User’s site will be governed by this Agreement and to the extent that such document presents additional terms or conflicts with this Agreement, it shall be considered null and void.
기타 조항. 본 계약 기간의 위반에 대한 당사자의 포기는 계속되거나 계속되는 위반에 대한 권리 포기로 해석되지 않습니다. 본 계약 기간이 유효하지 않거나 시행이 불가능할 경우, 나머지 조건은 유효합니다. 양 당사자는 양 당사자가이 협정을 읽었으며 협약의 완전하고 독점적 인 진술임을 동의하고이 협정의 주제와 관련된 양 당사자 간의 이전 또는 현재의 협상 또는 협의를 대체한다. 이 계약서에 명시 적으로 명시된 것 이외의 다른 당사자 간에는 진술, 약속, 보증, 약정 또는 약정이 없습니다. 본 계약은 양 당사자가 서명 한 서면을 제외하고는 수정되거나 철회 될 수 없습니다. 모든 소송에서 승소 한 당사자는 상대방으로부터 변호사 비용 및 비용을 회수 할 권리가 있습니다. 사용자는 BMC의 사전 서면 동의없이 본 계약을 양도하거나 양도 할 수 없습니다. BMC 제품에는 제품의 일부로 사용자에게 제공되는 제 3 자 소프트웨어가 포함될 수 있으며 제품에서 제거되거나 제품과 별도로 사용되거나 추가 조항이 문서에 포함될 수 없습니다. 사용자가 사이트를 방문하기위한 조건으로 서명하기 위해 사용자가 BMC 담당자에게 제출하는 추가 문서는 본 계약의 적용을받으며이 문서가 본 계약에 대한 추가 조건이나 충돌을 나타내는 한도 내에서 무효로 간주됩니다 .
If you agree, as an authorized representative of User, to accept the license terms above on behalf of yourself and User, and to confirm that you and User are in compliance with and will remain in compliance with all of the terms and conditions set forth above, click on the "I agree" button below.
위임 된 사용자 대표로서 본인 및 사용자를 대신하여 위의 라이센스 조항에 동의하고 귀하와 사용자가 위에 명시된 조건을 준수하고 준수 할 것임을 확인하는 경우 아래의 "동의합니다"버튼을 클릭하십시오
Effective April 9th 2020 to April 9th 2020
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본 시험 사용 계약("본 계약")은 본 계약이 일부가 되는 BMC 지원 웹사이트(WWW.BMC.COM 또는 그의 승계 사이트)의 수출 확인 부분에 명시된 다운로드 제품의 사용자와 BMC SOFTWARE DISTRIBUTION, INC 또는 그의 라이센싱 계열사("BMC") 간의 법률 계약입니다. "동의함" 버튼을 누름으로써 귀하는 본 계약의 조건을 읽고 이해했으며, 귀하는 사용자가 본 계약을 따르도록 하는 권한을 가지고 있고, 사용자가 본 계약의 조건을 따르겠다고 동의하는 것을 진술 및 보증합니다. BMC는 귀하 및 사용자가 "동의함" 버튼을 누름으로써 모든 조건을 수락하는 그 이후에만 귀하가 제품을 다운로드할 수 있도록 허락하는 데 동의합니다. |
본 계약서를 숙지하십시오. 본 계약의 조건을 이해하지 못하거나 동의하지 않는다면 "동의함" 버튼을 누르지 마십시오. |
(1) 용어의 정의. "기밀정보"라 함은 공개 당사자의 독점적 정보 그리고/또는 기밀 정보를 말하며 (가) 공개 당사자로부터의 수령 전에 어떠한 기밀 유지의 의무도 없이 합법적으로 수령 당사자의 소유인 정보, (나) 수령 당사자의 과실 없이 공공의 지식이거나 지식이 되는 정보, (다) 기밀유지 의무의 위반 없이 제3자로부터 합법적으로 수령 당사자가 수령한 정보 또는 (라) 수령 당사자에 의해 또는 수령 당사자를 위해 독립적으로 개발된 정보는 포함하지 않는다. "본건 제품"이라 함은 BMC EPD 웹 사이트 ((www.bmc.com 또는 그의 승계 사이트)에서 입수할 수 있으며 본 계약에 따라 사용자가 라이센스를 획득한 BMC의 소유 또는 BMC에 의해 배포되는 소프트웨어 제품 및 관련 문서 그리고 기타 기술 정보를 말한다. 제품과 관련한 "시험 사용 기간"이라 함은 귀하가 본건 제품을 다운로드한 날짜로부터 시작하여 (가) 그 이후 삼십(30)일 또는 (나) 그 이후 본건 제품과 함께 제공되는 라이센스 키에 명시된 역일(曆日) 중 먼저 도래하는 일자에 종료된다. |
(2) 시험 사용 라이센스. BMC는 사용자에게 개발, 상업, 생산, 또는 데이터베이스 관리 목적이 아니며 실제 데이터에 사용할 목적이 아닌, 본건 제품에 대해 대금을 지불하고 라이센스를 획득할 것인지를 오직 평가 및 결정하기 위해 시험 사용 기간 동안 하나의 컴퓨터에 각 제품을 사용할 수 있는 비독점적, 이전불능, 양도불능의 임시 라이센스를 허여한다. 본건 제품에 대해 실사용 권리 및 기술 지원을 획득하기 위해서는 사용자는 별도의 계약을 해야 한다. 본건 제품이 제3자 코드를 포함하는 경우, (가) 해당 제3자 코드가 본건 제품에 사용하도록 제공되는 경우에는 해당 본건 제품에만 사용할 수 있으며 (나) 문서가 해당 제3자 코드에 종속하는 조건을 포함하고 있는 경우, 해당 조건은 본 계약의 조건에 있는 해당 제3자 코드에 적용된다. |
(3) 사용의 제한. 사용자는 (가) 본건 제품의 등록표시 사항, 저작권 표기 또는 그 밖의 표기나 소유권 표시 사항 등을 일체 제거하지 않으며 (나) 디컴파일, 분해, 리버스 엔지니어링 또는 실행 코드로부터 본건 제품의 소스 코드를 추출하고자 하는 일체의 시도를 유발 또는 허락하지 않으며 (단, 본 제한 조항에도 불구하고 적용법 또는 조약에서 명시적으로 허여된 경우 제외) (다) BCM의 사전 서면 동의 없이 제3자에게 본건 제품에 대한 일체의 벤치마킹 테스트 결과를 공개하지 않으며 (라) 본 계약에서 명시된 이외의 방법으로 본건 제품을 복제, 설치 그리고/ 또는 사용하지 않고 (마) 제3자에게, 또는 제3자와 함께 또는 제3자에게 액세스 또는 사용을 허락하여 본건 제품을 재라이센스, 수정, 시간공유, 임대, 서비스 뷰로 및 그 밖에 양도 또는 공유하지 않는다. 사용자는 BMC 및 적절한 미국 그리고/ 또는 정부 라이센스 또는 라이센스 예외 사항의 사전 서면 동의 없이 본건 제품을 수출 또는 재수출 할 수 없다. |
(4) 해지. 본 계약의 해지 시 또는 시험 사용 기간 만료 시, 사용자가 본건 제품에 대한 실사용 라이센스를 획득하지 않았다면 사용자는 (가) 본건 제품의 사용을 중단해야 하며 (나) 사용자가 본건 제품 및 본건 제품의 모든 사본을 제거 및 파괴 또는 BMC에 반납했음을 서면으로 확인해야 한다. 본 요건은 모든 종류의 매체 및 컴퓨터 메모리 및 다른 재료에 병합되었는지의 여부와 관계없이 일부 또는 전부인 모든 형태의 사본에 적용된다. 본 계약은 BMC가 사용자에게 본건 제품에 대해 라이센스를 해야 하는 의무 또는 사용자가 BMC로부터 본건 제품에 대한 라이센스를 구매해야 하는 의무를 발생시키지 않는다. |
(5) 보증 금지 및 책임의 한계. 본 건 제품은 "현재 상태"로 오직 평가의 목적으로만 특정 목적 부합성, 상업성, 침해 금지에 대한 일체의 묵시적 보증 및 기타 일체의 묵시적 또는 명시적 보증을 포함하는 그 어떠한 보증 없이 제공된다. BMC, 그의 계열사, 공급업체 또는 라이센서는 본건 제품 또는 본 계약으로 인하여 발생하거나 그와 관련하여 발생하는 원인으로부터 간접, 직접, 우발적, 특별, 처벌적 또는 결과적 손해 또는 수익, 매출, 데이터 또는 데이터 사용으로 인한 손실에 대해 책임을 지지 않는다. 계약이나 불법행위 여부와는 관계 없이 본건 제품이나 본 계약의 사용으로 인해 발생하는 손해에 대한 BMC의 계열사, 공급업체, 라이센서의 책임은 사용자가 본건 제품의 사용에 대한 대가로 지불하는 금액 또는 $500.00 중 더 큰 금액으로 제한된다. 본 조의 책임의 한계는 일방의 고의의 의도 또는 중대한 과실에 의해 발생하는 손해의 경우에는 적용되지 않는다. |
(6) 독점적 권리 및 기밀유지. BMC 및 그의 계열사 그리고/또는 라이센서는 적용가능한 경우 본건 제품에 대한 모든 권리, 소유권 및 이해관계 및 관련 모든 지적 재산권 그리고 독점권을 갖는다. 본건 제품과 본건 제품과 함께 제공되는 일체의 제3자 소프트웨어는 관련 저작권, 영업 비밀, 산업 및 그 밖의 지적 재산권법에 의해 보호 받는다. BMC는 명시적으로 사용자에게 허여되지 않은 모든 권리를 보유한다. 계약 당사자는 본건 제품이 BMC의 기밀 정보임에 동의한다. 수령 당사자는 (가) (i) 공개 일자 또는 (ii) 본건 제품의 최종 사용일 중 후에 도래하는 일자로부터 연속한 오(5) 년 동안 상대방의 기밀 정보의 비밀을 유지하고 (나) 최소한 본 계약서와 동일한 법적 의무에 의해 해당 정보를 공개하지 않을 의무가 있으며 담당 업무를 수행하기 위해 해당 정보를 알아야만 하는 수령 당사자의 직원 또는 대리인에게만 상대방의 기밀 정보를 공개한다. 어떠한 것도 일방이 본 계약으로 인해 또는 그와 관련하여 발생하는 일체의 법적 절차에서 본 계약의 조건 또는 가격을 공개하거나 또는 법에 의해 요구되는 연방 또는 주정부 기관에 정보를 공개하는 것을 막지 못한다 |
(7) 수출법. 본건 제품은 미국의 수출법규 및 기타 관련 지역의 수출법규의 적용을 받는다. 본건 제품(기술 데이터 포함)에 대한 사용자의 사용은 "간주 수출" 및 "간주 재수출"을 포함하여 해당 모든 법률에 의해 규제되며 사용자는 이를 준수해야 한다. 사용자는 어떠한 본건 제품, 데이터, 정보, 프로그램, 그리고/또는 재료가 해당 법률에 위반하여 직접적 또는 간접적으로 수출되지 않으며 핵, 화학적 또는 생물학적 무기의 확산 또는 미사일 기술의 개발 등 법에 의해 금지되는 일체의 목적으로 사용되지 않는다는 것에 동의한다. 아래의 "동의함" 버튼을 누르는 것은 또한 사용자가 지금부터 그리고 시험 사용 기간 동안 다음의 조항에 대해 준수한다고 동의하는 것을 확인하는 것이다: (가) 사용자는 쿠바, 이란, 수단, 이라크, 북한, 시리아 또는 미국이 수출을 금지한 일체의 국가의 국민, 시민 또는 거주자 또는 이들의 통제하에 있지 않고, (나) 사용자는 상기 국가 또는 그의 시민, 국민 또는 거주자에게 직접 또는 간접적으로 일체의 본건 제품을 수출 또는 재수출하기 위해 다운로드 하지 않으며 (다) 사용자는 미국 재무성의 특별 지정 국민(Specially Designated Nationals), 특별 지정 테러리스트(Specially designated terrorists) 또는 특별 지정 마약 거래자(Specially Designated Narcotic Traffickers) 목록 또는 미국 상업성의 거부 대상 목록 (Table of Denial Orders)에 올라있지 않고, (라) 사용자는 상기 목록에 있는 어떤 자에게도 일체의 본건 제품을 직접 또는 간접적으로 수출 또는 재수출을 위해 다운로드 하지 않으며, (마) 사용자는 핵, 화학적 또는 생물학적 대량 살상 무기의 개발, 설계, 제조 또는 생산을 포함하는 미국이나 기타 적용법에서 금지하는 일체의 목적으로 일체의 본건 제품을 사용하지 않으며 본건 제품이 사용되도록 허락하지 않는다. |
(8) 완전합의 조항. 본 계약은 계약 당사자의 완전한 합의이며, 사용자가 본건 제품을 시험 사용하는 것과 관련한 모든 사전 또는 동시에 진행 중인 합의 및 협상에 우선하며 그를 대신한다. 본 계약은 계약 당사자 간의 서명된 서면에 의해서만 수정될 수 있다. 사용자는 BMC의 사전 서면 동의 없이 본 계약을 양도 또는 이전할 수 없다. 일방이 권리, 법적 권한 또는 특권의 행사를 못하거나 지연한다고 해서 권리의 포기가 되지는 않으며 이의 단일 또는 일부 행사는 그 외 또는 추가의 행사 또는 본 계약상의 일체의 권리, 법적 권한 또는 특권의 행사의 포기로 간주하지 않는다. 본 계약의 조항 중 일부가 무효 또는 실행 불가능한 것이 되는 경우에도, 본 계약의 나머지 조항들은 완전한 효력을 유지한다. |
(9) 법 및 관할지역의 선택. 사용자가 위치하여 본건 제품을 사용하는 곳이 (가) 아르헨티나이면, 법률 원칙의 대립 없이 아르헨티나의 법이 본 계약에 적용되며 관할법원은 부에노스 아이레스 법원으로 하며 BMC와 사용자는 해당 안건에 대해 해당 법원이 개인적 관할지역이 되는 것에 동의하고, (나) 브라질인 경우, 법률 원칙의 대립 없이 브라질의 법이 본 계약에 적용되며 관할법원은 상파울로 법원으로 하며 BMC와 사용자는 해당 안건에 대해 해당 법원이 개인적 관할지역이 되는 것에 동의하고, (다) 멕시코인 경우, 법률 원칙의 대립없이 멕시코의 법이 본 계약에 적용되며 관할법원은 멕시코 시티 법원으로 하며 BMC와 사용자는 해당 안건에 대해 해당 법원이 개인적 관할지역이 되는 것에 동의하고, (라) 일본, 한국, 중국, 홍콩 특별 자치구 또는 마카오 특별 자치구, 타이완, 필리핀, 인도네시아, 말레이시아, 미얀마, 싱가포르, 브루나이, 베트남, 캄보디아, 라오스, 태국, 인도, 파키스탄, 호주, 뉴질랜드, 파푸아 뉴기니 또는 기타 태평양 도서국인 경우, 원칙의 대립 없이 싱가포르 실체법이 본 계약에 적용되며 관할법원은 상가포르 법원으로 하며 BMC와 사용자는 해당 안건에 대해 해당 법원이 개인적 관할지역이 되는 것에 동의하고 (마) 미국, 푸에르토리코 및 기타 미국 보호령, 캐나다 또는 특별히 위에서 언급하지 않은 그 밖의 중앙 또는 남 아메리카에 위치한 국가인 경우, 법률 원칙의 대립 없이 텍사스주 법이 본 계약에 적용되며 관할법원은 텍사스 주 해리스 카운티에 위치한 주 및 연방 법원으로 하며 BMC와 사용자는 해당 안건에 대해 해당 법원이 개인적 관할지역이 되는 것에 동의하고 (바) 전술한 바에 언급되지 않은 국가인 경우, 법률 원칙의 대립 없이 네덜란드 법이 본 계약에 적용되며 관할법원은 네덜란드 법원으로 하며 BMC와 사용자는 해당 안건에 대해 해당 법원이 개인적 관할지역이 되는 것에 동의한다 |
관할 지역의 법률 선택 및 UN의 상품 국제 판매 계약에 대한 조약은 본 계약에 적용되지 않는다. |
(10) 기타 조항. 삼십 (30) 일 사전 통지에 의해 BMC는 사용자의 본건 제품에 대한 감사를 할 수 있다. 사용자는 이러한 감사에 협력해야 하며 정보에 대한 합리적 조력 및 접근을 제공해야 한다. 본 통지의 수령 후 삼십(30)일 내에 사용자는 감사에 의해 발견되는 일체의 미지급 수수료를 지불해야 한다. |
(11) 미국 연방 취득. 본 조는 미국 연방 정부에 의해 또는 그를 대신하여 또는 미국 연방 정부와의 일체의 계약, 허가, 협력적 합의 또는 그 밖의 활동에 따른 주 계약자 또는 하위 계약자 (어떠한 단계에 있는지 여부와는 관계 없음) 에 의한 본 계약에 따른 본건 제품의 모든 취득에 적용된다. 본건 제품의 배송을 승인함으로써 정부는 본건 제품이 본건 구매에 적용되는 취득 규정의 의미 내에 있는 "상업적"인 제품의 요건이 됨을 동의한다. 본 계약의 조건은 본건 제품에 대한 정부의 사용 및 공개에 관련하는 것이며 일체의 대립되는 계약 조건에 우선한다. 본 계약에 의해 허여된 라이센스가 정부의 필요에 맞지 않거나 연방법과 일치하지 않는 경우, 정부는 사용하지 않은 채로 본건 제품을 BMC로 반환하는 데 동의한다. 하기의 추가 조항은 DFARS Subpart 227.4 (1988년10월)에 의해 적용되는 취득에만 적용된다. "권리의 제한 – 정부에 의한 사용, 복제 및 공개는 DFARS 252.227-7013 (1988년10월)의 Subparagraph (c)(1)(ii)에 명시된 기술적 데이터 및 컴퓨터 소프트웨어 권리에 따른다." |
사용자의 승인된 대리인으로서 귀하가 본인 및 사용자를 대신하여 상기 라이센스 조건을 수용하고 귀하 및 사용자가 상기 모든 조건을 준수하고 있으며 계속하여 준수함을 확인하는 것에 동의하는 경우, 아래의 "동의함" 버튼을 누르십시오. |
Trial Agreement
Effective April 9th 2020
DownloadTable of Contents
CONTRATO PARA FINS DE AVALIAÇÃO
ESTE CONTRATO PARA FINS DE AVALIAÇÃO ("CONTRATO") TORNAR-SE-Á UM INSTRUMENTO LEGAL ENTRE O USUÁRIO DO PRODUTO INSERIDO NA SEÇÃO DE VALIDAÇÃO DE EXPORTAÇÃO DA PÁGINA ELETRÔNICA DO SUPORTE BMC (WWW.BMC.COM OU QUALQUER OUTRA PÁGINA QUE A SUCEDA) DA QUAL ESTE CONTRATO É PARTE ("USUÁRIO") E A BMC SOFTWARE INC. OU SUA AFILIADA LICENCIANTE LOCAL ("BMC"). AO CLICAR NO BOTÃO "EU CONCORDO", VOCÊ DECLARA E GARANTE QUE LEU E ENTENDEU OS TERMOS DESTE CONTRATO, QUE VOCÊ TEM AUTORIDADE PARA VINCULAR O USUÁRIO A ESTE CONTRATO, E QUE O USUÁRIO CONCORDA COM OS TERMOS E CONDIÇÕES DESTE CONTRATO. A BMC CONCORDA EM PERMITÍ-LO FAZER O "DOWNLOAD" DO PRODUTO SOMENTE SE, E APÓS QUE, VOCÊ E O USUÁRIO TENHAM ACEITO TODOS ESTES TERMOS AO CLICAR O BOTÃO "EU CONCORDO".
POR FAVOR LEIA ESTE CONTRATO: SE VOCÊ NÃO ENTENDER OU CONCORDAR COM QUALQUER DOS TERMOS DESTE CONTRATO, NÃO CLIQUE O BOTÃO "EU CONCORDO".
1. TERMOS DEFINIDOS. "Informação Confidencial" é toda a informação proprietária ou confidencial que é divulgada pela parte divulgadora (“Parte Divulgadora”) à parte receptora ("Parte Receptora"), e inclui, entre outras coisas (i) toda e qualquer informação relativa às informações financeiras da Parte Divulgadora, Funcionários, produtos ou serviços, incluindo, sem limitação, código de software, fluxogramas, técnicas, especificações, planos de desenvolvimento e marketing, estratégias, previsões e documentos e respostas relacionados a propostas; (ii) o Produto de software e qualquer software de terceiros fornecido com o Produto; e (iii) os termos deste Contrato, incluindo, sem limitação, informações de preços de produtos. As Informações Confidenciais não incluem informações que a Parte Receptora possa provar que: (a) estava legitimamente na posse da Parte Receptora sem qualquer obrigação de confidencialidade antes da recepção da Parte Receptora; (b) é ou se torna uma questão de conhecimento público sem culpa da Parte Receptora; (c) seja legitimamente recebido pela Parte Receptora de um terceiro sem violação de um dever de confidencialidade; ou (d) é desenvolvido independentemente pelo ou para a Parte Receptora. "Produtos" são produtos de software ou hardware e sua documentação relacionada e outras informações técnicas de propriedade ou distribuídas pela BMC, as quais podem ser acessadas no site da BMC EPD (www.bmc.com/ ou em qualquer site sucessor) e para as quais ao Usuário é concedido uma licença sob os termos deste Contrato. "Período de Avaliação" com relação a um Produto, é o período de tempo que começa na data em que o Cliente efetua o download desse Produto e termina no mais cedo de (a) trinta dias de calendário subsequentes, ou (b) o número de dias especificado neste Produto.
2. LICENÇA PARA FIM DE AVALIAÇÃO. A BMC concede ao Usuário uma licença temporária não exclusiva, intransferível e não passível de cessão para usar cada Produto em um único computador durante o Período de Avaliação apenas para avaliar internamente e determinar se deve adquirir e / ou licenciar tal Produto por uma taxa e não para fins de desenvolvimento, comercial, de produção ou de gestão de bases de dados, ou com dados de produção. O usuário deve entrar em um acordo separado para obter direitos de produção e suporte técnico para um Produto.
3. DIREITOS DE PROPRIEDADE E CONFIDENCIALIDADE. (a) A BMC, suas afiliadas ou licenciadoras reterão todos os direitos, títulos e interesses do Produto, Suporte e todos os direitos de propriedade intelectual e proprietários relacionados. O Produto e todos os softwares de terceiros fornecidos com o Produto estão protegidos por direitos autorais, segredos comerciais, leis industriais e outras leis de propriedade intelectual. O usuário não pode remover nenhuma identificação do produto, direitos autorais, marca comercial ou outro aviso do Produto. A BMC reserva-se quaisquer direitos não expressamente concedidos ao Usuário neste Contrato. (b) O Destinatário não poderá divulgar Informações Confidenciais do Divulgador a terceiros ou utilizar as Informações Confidenciais em violação deste Contrato. O Beneficiário (i) exercerá o mesmo grau de cuidado e proteção com relação às Informações Confidenciais da Parte Divulgadora que ele exerce em relação às suas próprias Informações Confidenciais e (ii) não divulgará, copiará, distribuirá, republicará, ou permitirá que terceiros tenham acesso a qualquer Informação Confidencial da Parte Divulgadora, direta ou indiretamente. Não obstante o acima exposto, a Parte Receptora pode divulgar Informações Confidenciais da Parte Divulgadora aos funcionários e agentes da Parte Receptora que tenham a necessidade de saber desde que tais empregados e agentes tenham obrigações legais de confidencialidade substancialmente as mesmas (e em nenhum caso menos protetoras) como as disposições deste Contrato. (c) Obrigação de notificação. Se a Parte Receptora tomar conhecimento de qualquer uso ou divulgação não autorizada das Informações Confidenciais da Parte Divulgadora, a Parte Receptora notificará prontamente e totalmente a Parte Divulgadora de todos os fatos conhecidos a respeito de tal uso ou divulgação não-autorizados. Além disso, se a Parte Receptora ou qualquer de seus funcionários ou agentes forem obrigados (por perguntas orais, interrogatórios, solicitações de informações ou documentos em processo judicial, intimação, demanda civil de investigação ou outro processo semelhante) a divulgar qualquer uma das Informações Confidenciais da Parte Divulgadora, ela não o fará sem fornecer à Parte Divulgadora aviso prévio por escrito com antecedência comercialmente razoável para permitir que a Parte Divulgadora solicite uma ordem protetora ou outro recurso apropriado ou renuncie ao cumprimento desta disposição. Em qualquer caso, a Parte Receptora exercerá seus esforços comercialmente razoáveis para preservar a confidencialidade das Informações Confidenciais da Parte Divulgadora, incluindo, sem limitação, cooperar com a Parte Divulgadora para obter uma ordem de proteção apropriada ou outra garantia confiável de que o tratamento confidencial será concedido às Informações Confidenciais.
4. RESTRIÇÕES DE USO. O usuário não irá: (a) modificar, excluir ou remover qualquer propriedade, título, marca registrada, patente ou aviso de direitos autorais ("Identificação") de qualquer Produto; (b) copiar qualquer Produto ou qualquer parte de qualquer Produto sem reproduzir toda a Identificação em cada cópia ou cópia parcial; (c) desmontar, fazer engenharia reversa, descompilar ou de outra forma tentar derivar qualquer Código-fonte do produto do código objeto, exceto na medida expressamente permitida pela lei aplicável, apesar desta limitação sem possibilidade de renúncia contratual; (d) distribuir, alugar, arrendar, sublicenciar ou fornecer o Produto a terceiros; (e) fornecer a terceiros os resultados de qualquer avaliação funcional ou testes de desempenho, sem a aprovação prévia por escrito da BMC; (f) tentar desativar ou contornar qualquer um dos mecanismos de licenciamento dentro do Produto; ou (g) violar quaisquer outras restrições de uso contidas na Documentação.
5. NENHUMA GARANTIA E LIMITAÇÃO DE RESPONSABILIDADE. OS PRODUTOS SÃO FORNECIDOS "NO ESTADO EM QUE SE ENCONTRAM" PARA EFEITOS DE AVALIAÇÃO SOMENTE E SEM QUALQUER GARANTIA, INCLUINDO, SEM LIMITAÇÃO, QUAISQUER GARANTIAS IMPLÍCITAS DE ADEQUAÇÃO A UM PROPÓSITO ESPECÍFICO OU COMERCIALIZAÇÃO E NÃO INFRAÇÃO OU QUALQUER OUTRA GARANTIA, SEJA EXPRESSA OU IMPLÍCITA. NENHUMA DA BMC, SUAS AFILIADAS, FORNECEDORES OU LICENCIADORAS SERÃO RESPONSÁVEIS POR QUAISQUER DANOS INDIRETOS, INCIDENTAIS, ESPECIAIS, PUNITIVOS OU CONSEQUENTES OU QUALQUER PERDA DE LUCROS, RECEITAS, DADOS OU USO DE DADOS DE QUALQUER CAUSA DECORRENTE OU DE QUALQUER FORMA RELACIONADA COM A USO DO PRODUTO OU ESTE CONTRATO. A RESPONSABILIDADE DA BMC, AFILIADAS, FORNECEDORES E LICENCIADORES POR DANOS RESULTANTES DA UTILIZAÇÃO DO PRODUTO OU DO PRESENTE ACORDO, SEJA POR CONTRATO OU POR DELITO, ESTARÁ LIMITADA AO MAIOR DO VALOR PAGO PELO UTILIZADOR PARA LICENCIAR O USO DESTE PRODUTO OU US $ 500. NOS PAÍSES LISTADOS NO SUB-CLÁUSULA 9 (F), ABAIXO, A LIMITAÇÃO DE RESPONSABILIDADE NESTA CLÁUSULA NÃO SE APLICARÁ SE E NA MEDIDA EM QUE O PREJUÍZO FOI CAUSADO PELA INTENÇÃO OU NEGLIGÊNCIA BRUTA DE QUALQUER PARTE.
6. RESCISÃO. Qualquer uma das partes pode rescindir o presente Contrato a qualquer momento, mediante notificação prévia de duas semanas. Após a rescisão deste Contrato ou a expiração de um Período de Avaliação, se o Usuário não obtiver uma licença de produção para o Produto, o Usuário deverá (a) cessar de usar o Produto e (b) certificar por escrito ao BMC que o Usuário foi desinstalado e destruído, ou devolvido à BMC, os Produtos e todas as cópias dos Produtos. Este requisito aplica-se a cópias em todas as formas, parciais e completas, em todos os tipos de mídia e memória de computador e independente de ser ou não fundidos em outros materiais. Este Contrato não cria qualquer obrigação por parte da BMC de licenciar qualquer Produto ao Usuário ou por parte do Usuário para comprar qualquer hardware ou licença de qualquer Produto de software da BMC. Não obstante qualquer disposição em contrário nesta Cláusula 6, se o hardware for incluído com o Produto, após a conclusão do Período de Avaliação, o Usuário irá comprar o hardware ou devolvê-lo à BMC dentro de cinco dias em seu material de embalagem original.
7. PROTEÇÃO DE DADOS. A BMC e o Usuário concordam que o Contrato de Tratamento de Dados, cuja cópia pode ser visualizada em https://www.bmc.com/content/dam/bmc/corporate/bmcdpa.pdf, se aplica aos Produtos da BMC baixados, a menos que a BMC já tenha um Contrato de Tratamento de Dados assinado com o Usuário para tais Produtos da BMC; nesse caso, a versão assinada será a aplicável.
8. CONTROLES DE EXPORTAÇÃO. O Usuário declara e garante que: a) cumprirá os Regulamentos da Administração de Exportação dos Estados Unidos e outros regulamentos de exportação dos EUA ou estrangeiros; b) nenhum indivíduo acessando ou usando o Produto é um cidadão de um país embargado (atualmente Irã, Síria, Sudão, Cuba e Coréia do Norte); c) não está proibido de receber o Produto sob tais regulamentos; d) não adquirirá o Produto para uma pessoa que está restrita sob tais regulamentos; e) não utilizar o Produto em contradição com tais regulamentos; e f) não usará o Produto para usos proibidos, incluindo mas não limitado a usos finais relacionados com armas nucleares, químicas, mísseis ou biológicas. No que se refere ao produto exportado da Irlanda, o Regulamento (CE) n.º 428/2009 estabelece um regime comunitário de controlo das exportações de produtos e tecnologias de dupla utilização e declara-se que este produto se destina exclusivamente a fins civis. Portanto, o Usuário concorda em cumprir com os regulamentos dos EUA e com os da U.E. e não exportará em violação dos regulamentos e sem todas as licenças apropriadas. Qualquer incumprimento destes regulamentos resultará em o utilizador perderá todos os direitos sobre o produto.
9. LEGISLAÇÃO VIGENTE E FORO DE ELEIÇÃO. Este Contrato será regido e interpretado pelas leis do Brasil. As Partes elegem o Foro da Capital do Estado de São Paulo para solucionar qualquer divergência proveniente deste Contrato não resolvidas amigavelmente, renunciando, de forma expressa, qualquer outro foro, por mais privilegiado que seja ou venha a ser.
10. AQUISIÇÕES FEDERAIS DOS EUA. Esta Seção aplica-se somente a aquisições do Produto comercial e Documentação sujeitas a este Contrato por ou em nome do Governo dos Estados Unidos, ou por qualquer contratante principal ou subcontratado (a qualquer nível) sob qualquer contrato, concessão, acordo de cooperação ou outra atividade com o Governo dos Estados Unidos. No caso de os Produtos serem entregues ao Governo dos Estados Unidos, o Governo dos Estados Unidos concorda que os Produtos se qualificam como "itens comerciais" na acepção do (s) regulamento (s) de aquisição federal aplicável (s) a este contrato. Os termos e condições deste Contrato referem-se à utilização e divulgação do Produto pelo Governo dos Estados Unidos e substituem quaisquer termos e condições contratuais conflitantes. A seguinte declaração adicional aplica-se somente às aquisições regidas pela Subparte 227.4 do DFARS (outubro de 1988): "Direitos Restritos - O uso, duplicação e divulgação pelo Governo está sujeito às restrições estabelecidas na alínea (c) (1) (ii) Direitos em Dados Técnicos e Software de Computador no DFARS 252.227-7013 (outubro de 1988) ".
11. DISPOSIÇÕES GERAIS. A renúncia por parte de uma parte de qualquer violação de qualquer termo deste Contrato não será interpretada como uma renúncia de qualquer outra violação contínua ou sucessiva. Se qualquer termo deste Contrato for inválido ou inexigível, os termos restantes permanecerão em vigor. As partes reconhecem ter lido este Contrato e concordam que ele é a declaração completa e exclusiva do contrato e substitui quaisquer negociações ou acordos anteriores ou contemporâneos entre as partes relacionadas ao assunto deste Contrato. Não há representações, promessas, garantias, convênios ou compromissos entre as partes além das expressamente estabelecidas neste Contrato. Este Contrato não pode ser modificado ou rescindido, exceto por escrito e assinado por ambas as partes. A parte que prevalece em qualquer litígio tem o direito de recuperar os honorários e custos da sua advogada da outra parte. O Usuário não poderá ceder ou transferir este Contrato sem o consentimento prévio por escrito da BMC. Os Produtos BMC podem conter software de terceiros que é entregue ao Usuário como parte do Produto e não pode ser retirado do Produto ou usado separadamente do Produto e para o qual termos adicionais podem ser incluídos na Documentação. Quaisquer documentos adicionais apresentados a um representante da BMC pelo Usuário para assinatura como condição para entrar no site de um Usuário serão regidos por este Contrato e na medida em que esse documento apresentar termos adicionais ou conflitos com este Contrato, será considerado nulo e sem efeito.
Se você concorda, como um representante autorizado do Usuário, em aceitar os termos de licença acima em seu nome e do Usuário, e confirmar que você e o Usuário estão e permanecerão em conformidade com todos os termos e condições acima especificados, clique no botão "Eu concordo" abaixo.
Effective April 9th 2020 to April 9th 2020
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CONTRATO PARA FINS DE AVALIAÇÃO
ESTE CONTRATO PARA FINS DE AVALIAÇÃO ("CONTRATO") TORNAR-SE-Á UM INSTRUMENTO LEGAL ENTRE O USUÁRIO DO PRODUTO INSERIDO NA SEÇÃO DE VALIDAÇÃO DE EXPORTAÇÃO DA PÁGINA ELETRÔNICA DO SUPORTE BMC (WWW.BMC.COM OU QUALQUER OUTRA PÁGINA QUE A SUCEDA) DA QUAL ESTE CONTRATO É PARTE ("USUÁRIO") E A BMC SOFTWARE INC. OU SUA AFILIADA LICENCIANTE LOCAL ("BMC"). AO CLICAR NO BOTÃO "EU CONCORDO", VOCÊ DECLARA E GARANTE QUE LEU E ENTENDEU OS TERMOS DESTE CONTRATO, QUE VOCÊ TEM AUTORIDADE PARA VINCULAR O USUÁRIO A ESTE CONTRATO, E QUE O USUÁRIO CONCORDA COM OS TERMOS E CONDIÇÕES DESTE CONTRATO. A BMC CONCORDA EM PERMITÍ-LO FAZER O "DOWNLOAD" DO PRODUTO SOMENTE SE, E APÓS QUE, VOCÊ E O USUÁRIO TENHAM ACEITO TODOS ESTES TERMOS AO CLICAR O BOTÃO "EU CONCORDO".
POR FAVOR LEIA ESTE CONTRATO: SE VOCÊ NÃO ENTENDER OU CONCORDAR COM QUALQUER DOS TERMOS DESTE CONTRATO, NÃO CLIQUE O BOTÃO "EU CONCORDO".
1. TERMOS DEFINIDOS. "Informação Confidencial" é toda a informação proprietária ou confidencial que é divulgada pela parte divulgadora (“Parte Divulgadora”) à parte receptora ("Parte Receptora"), e inclui, entre outras coisas (i) toda e qualquer informação relativa às informações financeiras da Parte Divulgadora, Funcionários, produtos ou serviços, incluindo, sem limitação, código de software, fluxogramas, técnicas, especificações, planos de desenvolvimento e marketing, estratégias, previsões e documentos e respostas relacionados a propostas; (ii) o Produto de software e qualquer software de terceiros fornecido com o Produto; e (iii) os termos deste Contrato, incluindo, sem limitação, informações de preços de produtos. As Informações Confidenciais não incluem informações que a Parte Receptora possa provar que: (a) estava legitimamente na posse da Parte Receptora sem qualquer obrigação de confidencialidade antes da recepção da Parte Receptora; (b) é ou se torna uma questão de conhecimento público sem culpa da Parte Receptora; (c) seja legitimamente recebido pela Parte Receptora de um terceiro sem violação de um dever de confidencialidade; ou (d) é desenvolvido independentemente pelo ou para a Parte Receptora. "Produtos" são produtos de software ou hardware e sua documentação relacionada e outras informações técnicas de propriedade ou distribuídas pela BMC, as quais podem ser acessadas no site da BMC EPD ( www.bmc.com/ ou em qualquer site sucessor) e para as quais ao Usuário é concedido uma licença sob os termos deste Contrato. "Período de Avaliação" com relação a um Produto, é o período de tempo que começa na data em que o Cliente efetua o download desse Produto e termina no mais cedo de (a) trinta dias de calendário subsequentes, ou (b) o número de dias especificado neste Produto.
2. LICENÇA PARA FIM DE AVALIAÇÃO. A BMC concede ao Usuário uma licença temporária não exclusiva, intransferível e não passível de cessão para usar cada Produto em um único computador durante o Período de Avaliação apenas para avaliar internamente e determinar se deve adquirir e / ou licenciar tal Produto por uma taxa e não para fins de desenvolvimento, comercial, de produção ou de gestão de bases de dados, ou com dados de produção. O usuário deve entrar em um acordo separado para obter direitos de produção e suporte técnico para um Produto.
3. DIREITOS DE PROPRIEDADE E CONFIDENCIALIDADE. (a) A BMC, suas afiliadas ou licenciadoras reterão todos os direitos, títulos e interesses do Produto, Suporte e todos os direitos de propriedade intelectual e proprietários relacionados. O Produto e todos os softwares de terceiros fornecidos com o Produto estão protegidos por direitos autorais, segredos comerciais, leis industriais e outras leis de propriedade intelectual. O usuário não pode remover nenhuma identificação do produto, direitos autorais, marca comercial ou outro aviso do Produto. A BMC reserva-se quaisquer direitos não expressamente concedidos ao Usuário neste Contrato. (b) O Destinatário não poderá divulgar Informações Confidenciais do Divulgador a terceiros ou utilizar as Informações Confidenciais em violação deste Contrato. O Beneficiário (i) exercerá o mesmo grau de cuidado e proteção com relação às Informações Confidenciais da Parte Divulgadora que ele exerce em relação às suas próprias Informações Confidenciais e (ii) não divulgará, copiará, distribuirá, republicará, ou permitirá que terceiros tenham acesso a qualquer Informação Confidencial da Parte Divulgadora, direta ou indiretamente. Não obstante o acima exposto, a Parte Receptora pode divulgar Informações Confidenciais da Parte Divulgadora aos funcionários e agentes da Parte Receptora que tenham a necessidade de saber desde que tais empregados e agentes tenham obrigações legais de confidencialidade substancialmente as mesmas (e em nenhum caso menos protetoras) como as disposições deste Contrato. (c) Obrigação de notificação. Se a Parte Receptora tomar conhecimento de qualquer uso ou divulgação não autorizada das Informações Confidenciais da Parte Divulgadora, a Parte Receptora notificará prontamente e totalmente a Parte Divulgadora de todos os fatos conhecidos a respeito de tal uso ou divulgação não-autorizados. Além disso, se a Parte Receptora ou qualquer de seus funcionários ou agentes forem obrigados (por perguntas orais, interrogatórios, solicitações de informações ou documentos em processo judicial, intimação, demanda civil de investigação ou outro processo semelhante) a divulgar qualquer uma das Informações Confidenciais da Parte Divulgadora, ela não o fará sem fornecer à Parte Divulgadora aviso prévio por escrito com antecedência comercialmente razoável para permitir que a Parte Divulgadora solicite uma ordem protetora ou outro recurso apropriado ou renuncie ao cumprimento desta disposição. Em qualquer caso, a Parte Receptora exercerá seus esforços comercialmente razoáveis para preservar a confidencialidade das Informações Confidenciais da Parte Divulgadora, incluindo, sem limitação, cooperar com a Parte Divulgadora para obter uma ordem de proteção apropriada ou outra garantia confiável de que o tratamento confidencial será concedido às Informações Confidenciais.
4. RESTRIÇÕES DE USO. O usuário não irá: (a) modificar, excluir ou remover qualquer propriedade, título, marca registrada, patente ou aviso de direitos autorais ("Identificação") de qualquer Produto; (b) copiar qualquer Produto ou qualquer parte de qualquer Produto sem reproduzir toda a Identificação em cada cópia ou cópia parcial; (c) desmontar, fazer engenharia reversa, descompilar ou de outra forma tentar derivar qualquer Código-fonte do produto do código objeto, exceto na medida expressamente permitida pela lei aplicável, apesar desta limitação sem possibilidade de renúncia contratual; (d) distribuir, alugar, arrendar, sublicenciar ou fornecer o Produto a terceiros; (e) fornecer a terceiros os resultados de qualquer avaliação funcional ou testes de desempenho, sem a aprovação prévia por escrito da BMC; (f) tentar desativar ou contornar qualquer um dos mecanismos de licenciamento dentro do Produto; ou (g) violar quaisquer outras restrições de uso contidas na Documentação.
5. NENHUMA GARANTIA E LIMITAÇÃO DE RESPONSABILIDADE. OS PRODUTOS SÃO FORNECIDOS "NO ESTADO EM QUE SE ENCONTRAM" PARA EFEITOS DE AVALIAÇÃO SOMENTE E SEM QUALQUER GARANTIA, INCLUINDO, SEM LIMITAÇÃO, QUAISQUER GARANTIAS IMPLÍCITAS DE ADEQUAÇÃO A UM PROPÓSITO ESPECÍFICO OU COMERCIALIZAÇÃO E NÃO INFRAÇÃO OU QUALQUER OUTRA GARANTIA, SEJA EXPRESSA OU IMPLÍCITA. NENHUMA DA BMC, SUAS AFILIADAS, FORNECEDORES OU LICENCIADORAS SERÃO RESPONSÁVEIS POR QUAISQUER DANOS INDIRETOS, INCIDENTAIS, ESPECIAIS, PUNITIVOS OU CONSEQUENTES OU QUALQUER PERDA DE LUCROS, RECEITAS, DADOS OU USO DE DADOS DE QUALQUER CAUSA DECORRENTE OU DE QUALQUER FORMA RELACIONADA COM A USO DO PRODUTO OU ESTE CONTRATO. A RESPONSABILIDADE DA BMC, AFILIADAS, FORNECEDORES E LICENCIADORES POR DANOS RESULTANTES DA UTILIZAÇÃO DO PRODUTO OU DO PRESENTE ACORDO, SEJA POR CONTRATO OU POR DELITO, ESTARÁ LIMITADA AO MAIOR DO VALOR PAGO PELO UTILIZADOR PARA LICENCIAR O USO DESTE PRODUTO OU US $ 500. NOS PAÍSES LISTADOS NO SUB-CLÁUSULA 9 (F), ABAIXO, A LIMITAÇÃO DE RESPONSABILIDADE NESTA CLÁUSULA NÃO SE APLICARÁ SE E NA MEDIDA EM QUE O PREJUÍZO FOI CAUSADO PELA INTENÇÃO OU NEGLIGÊNCIA BRUTA DE QUALQUER PARTE.
6. RESCISÃO. Qualquer uma das partes pode rescindir o presente Contrato a qualquer momento, mediante notificação prévia de duas semanas. Após a rescisão deste Contrato ou a expiração de um Período de Avaliação, se o Usuário não obtiver uma licença de produção para o Produto, o Usuário deverá (a) cessar de usar o Produto e (b) certificar por escrito ao BMC que o Usuário foi desinstalado e destruído, ou devolvido à BMC, os Produtos e todas as cópias dos Produtos. Este requisito aplica-se a cópias em todas as formas, parciais e completas, em todos os tipos de mídia e memória de computador e independente de ser ou não fundidos em outros materiais. Este Contrato não cria qualquer obrigação por parte da BMC de licenciar qualquer Produto ao Usuário ou por parte do Usuário para comprar qualquer hardware ou licença de qualquer Produto de software da BMC. Não obstante qualquer disposição em contrário nesta Cláusula 6, se o hardware for incluído com o Produto, após a conclusão do Período de Avaliação, o Usuário irá comprar o hardware ou devolvê-lo à BMC dentro de cinco dias em seu material de embalagem original.
7. PROTEÇÃO DE DADOS. A BMC e o Usuário concordam que o Contrato de Tratamento de Dados, cuja cópia pode ser visualizada em https://www.bmc.com/content/dam/bmc/corporate/bmcdpa.pdf , se aplica aos Produtos da BMC baixados, a menos que a BMC já tenha um Contrato de Tratamento de Dados assinado com o Usuário para tais Produtos da BMC; nesse caso, a versão assinada será a aplicável.
8. CONTROLES DE EXPORTAÇÃO. O Usuário declara e garante que: a) cumprirá os Regulamentos da Administração de Exportação dos Estados Unidos e outros regulamentos de exportação dos EUA ou estrangeiros; b) nenhum indivíduo acessando ou usando o Produto é um cidadão de um país embargado (atualmente Irã, Síria, Sudão, Cuba e Coréia do Norte); c) não está proibido de receber o Produto sob tais regulamentos; d) não adquirirá o Produto para uma pessoa que está restrita sob tais regulamentos; e) não utilizar o Produto em contradição com tais regulamentos; e f) não usará o Produto para usos proibidos, incluindo mas não limitado a usos finais relacionados com armas nucleares, químicas, mísseis ou biológicas. No que se refere ao produto exportado da Irlanda, o Regulamento (CE) n.º 428/2009 estabelece um regime comunitário de controlo das exportações de produtos e tecnologias de dupla utilização e declara-se que este produto se destina exclusivamente a fins civis. Portanto, o Usuário concorda em cumprir com os regulamentos dos EUA e com os da U.E. e não exportará em violação dos regulamentos e sem todas as licenças apropriadas. Qualquer incumprimento destes regulamentos resultará em o utilizador perderá todos os direitos sobre o produto.
9. LEGISLAÇÃO VIGENTE E FORO DE ELEIÇÃO. Este Contrato será regido e interpretado pelas leis do Brasil. As Partes elegem o Foro da Capital do Estado de São Paulo para solucionar qualquer divergência proveniente deste Contrato não resolvidas amigavelmente, renunciando, de forma expressa, qualquer outro foro, por mais privilegiado que seja ou venha a ser.
10. AQUISIÇÕES FEDERAIS DOS EUA. Esta Seção aplica-se somente a aquisições do Produto comercial e Documentação sujeitas a este Contrato por ou em nome do Governo dos Estados Unidos, ou por qualquer contratante principal ou subcontratado (a qualquer nível) sob qualquer contrato, concessão, acordo de cooperação ou outra atividade com o Governo dos Estados Unidos. No caso de os Produtos serem entregues ao Governo dos Estados Unidos, o Governo dos Estados Unidos concorda que os Produtos se qualificam como "itens comerciais" na acepção do (s) regulamento (s) de aquisição federal aplicável (s) a este contrato. Os termos e condições deste Contrato referem-se à utilização e divulgação do Produto pelo Governo dos Estados Unidos e substituem quaisquer termos e condições contratuais conflitantes. A seguinte declaração adicional aplica-se somente às aquisições regidas pela Subparte 227.4 do DFARS (outubro de 1988): "Direitos Restritos - O uso, duplicação e divulgação pelo Governo está sujeito às restrições estabelecidas na alínea (c) (1) (ii) Direitos em Dados Técnicos e Software de Computador no DFARS 252.227-7013 (outubro de 1988) ".
11. DISPOSIÇÕES GERAIS. A renúncia por parte de uma parte de qualquer violação de qualquer termo deste Contrato não será interpretada como uma renúncia de qualquer outra violação contínua ou sucessiva. Se qualquer termo deste Contrato for inválido ou inexigível, os termos restantes permanecerão em vigor. As partes reconhecem ter lido este Contrato e concordam que ele é a declaração completa e exclusiva do contrato e substitui quaisquer negociações ou acordos anteriores ou contemporâneos entre as partes relacionadas ao assunto deste Contrato. Não há representações, promessas, garantias, convênios ou compromissos entre as partes além das expressamente estabelecidas neste Contrato. Este Contrato não pode ser modificado ou rescindido, exceto por escrito e assinado por ambas as partes. A parte que prevalece em qualquer litígio tem o direito de recuperar os honorários e custos da sua advogada da outra parte. O Usuário não poderá ceder ou transferir este Contrato sem o consentimento prévio por escrito da BMC. Os Produtos BMC podem conter software de terceiros que é entregue ao Usuário como parte do Produto e não pode ser retirado do Produto ou usado separadamente do Produto e para o qual termos adicionais podem ser incluídos na Documentação. Quaisquer documentos adicionais apresentados a um representante da BMC pelo Usuário para assinatura como condição para entrar no site de um Usuário serão regidos por este Contrato e na medida em que esse documento apresentar termos adicionais ou conflitos com este Contrato, será considerado nulo e sem efeito.
Se você concorda, como um representante autorizado do Usuário, em aceitar os termos de licença acima em seu nome e do Usuário, e confirmar que você e o Usuário estão e permanecerão em conformidade com todos os termos e condições acima especificados, clique no botão "Eu concordo" abaixo.
Effective April 9th 2020 to April 9th 2020
DownloadTable of Contents
ESTE CONTRATO PARA FINS DE AVALIAÇÃO ("CONTRATO") TORNAR-SE-Á UM INSTRUMENTO LEGAL ENTRE O USUÁRIO DO PRODUTO INSERIDO NA SEÇÃO DE VALIDAÇÃO DE EXPORTAÇÃO DA PÁGINA ELETRÔNICA DO SUPORTE BMC (WWW.BMC.COM OU QUALQUER OUTRA PÁGINA QUE A SUCEDA) DA QUAL ESTE CONTRATO PARA FINS DE AVALIAÇÃO É PARTE ("USUÁRIO") E A BMC SOFTWARE INC. OU SUA AFILIADA LICENCIANTE LOCAL ("BMC"). AO CLICAR NO BOTÃO "EU CONCORDO", VOCÊ DECLARA E GARANTE QUE LEU E ENTENDEU OS TERMOS DESTE CONTRATO, QUE VOCÊ TEM AUTORIDADE PARA VINCULAR O USUÁRIO A ESTE CONTRATO, E QUE O USUÁRIO CONCORDA COM OS TERMOS E CONDIÇÕES DESTE CONTRATO. A BMC CONCORDA EM PERMITÍ-LO FAZER O "DOWNLOAD" DO PRODUTO SOMENTE SE, E APÓS QUE, VOCÊ E O USUÁRIO TENHAM ACEITO TODOS ESTES TERMOS AO CLICAR O BOTÃO "EU CONCORDO". |
POR FAVOR LEIA ESTE CONTRATO: SE VOCÊ NÃO ENTENDER OU CONCORDAR COM QUALQUER DOS TERMOS DESTE CONTRATO, NÃO CLIQUE O BOTÃO "EU CONCORDO". |
(1) TERMOS DEFINIDOS. "Informação Confidencial" é toda informação que é de propriedade e/ou confidencial da parte reveladora e não inclui informação que: (a) estava devidamente na posse da parte receptora sem qualquer obrigação de confidencialidade antes de receber da parte reveladora; (b) é ou tornou-se matéria de conhecimento público sem culpa da parte receptora; (c) é regularmente recebida pela parte receptora de um terceiro sem qualquer violação de obrigação de confidencialidade; ou (d) é independetemente desenvolvida pela ou para a parte receptora. "Produtos" são os programas de computador e toda a documentação relacionada e outras informações técnicas de propriedade ou distribuídas pela BMC, as quais poderão ser acessadas pelo endereço eletrônico BMC EPD CONTRATO PARA FINS DE AVALIAÇÃO ESTE CONTRATO PARA FINS DE AVALIAÇÃO ("CONTRATO") TORNAR-SE-Á UM INSTRUMENTO LEGAL ENTRE O USUÁRIO DO PRODUTO INSERIDO NA SEÇÃO DE VALIDAÇÃO DE EXPORTAÇÃO DA PÁGINA ELETRÔNICA DO SUPORTE BMC ( WWW.BMC.COM OU QUALQUER OUTRA PÁGINA QUE A SUCEDA) DA QUAL ESTE CONTRATO É PARTE ("USUÁRIO") E A BMC SOFTWARE INC. OU SUA AFILIADA LICENCIANTE LOCAL ("BMC"). AO CLICAR NO BOTÃO "EU CONCORDO", VOCÊ DECLARA E GARANTE QUE LEU E ENTENDEU OS TERMOS DESTE CONTRATO, QUE VOCÊ TEM AUTORIDADE PARA VINCULAR O USUÁRIO A ESTE CONTRATO, E QUE O USUÁRIO CONCORDA COM OS TERMOS E CONDIÇÕES DESTE CONTRATO. A BMC CONCORDA EM PERMITÍ-LO FAZER O "DOWNLOAD" DO PRODUTO SOMENTE SE, E APÓS QUE, VOCÊ E O USUÁRIO TENHAM ACEITO TODOS ESTES TERMOS AO CLICAR O BOTÃO "EU CONCORDO". POR FAVOR LEIA ESTE CONTRATO: SE VOCÊ NÃO ENTENDER OU CONCORDAR COM QUALQUER DOS TERMOS DESTE CONTRATO, NÃO CLIQUE O BOTÃO "EU CONCORDO". 1. TERMOS DEFINIDOS. "Informação Confidencial" é toda a informação proprietária ou confidencial que é divulgada pela parte divulgadora (“Parte Divulgadora”) à parte receptora ("Parte Receptora"), e inclui, entre outras coisas (i) toda e qualquer informação relativa às informações financeiras da Parte Divulgadora, Funcionários, produtos ou serviços, incluindo, sem limitação, código de software, fluxogramas, técnicas, especificações, planos de desenvolvimento e marketing, estratégias, previsões e documentos e respostas relacionados a propostas; (ii) o Produto de software e qualquer software de terceiros fornecido com o Produto; e (iii) os termos deste Contrato, incluindo, sem limitação, informações de preços de produtos. As Informações Confidenciais não incluem informações que a Parte Receptora possa provar que: (a) estava legitimamente na posse da Parte Receptora sem qualquer obrigação de confidencialidade antes da recepção da Parte Receptora; (b) é ou se torna uma questão de conhecimento público sem culpa da Parte Receptora; (c) seja legitimamente recebido pela Parte Receptora de um terceiro sem violação de um dever de confidencialidade; ou (d) é desenvolvido independentemente pelo ou para a Parte Receptora. "Produtos" são produtos de software ou hardware e sua documentação relacionada e outras informações técnicas de propriedade ou distribuídas pela BMC, as quais podem ser acessadas no site da BMC EPD ( www.bmc.com/ ou em qualquer site sucessor) e para as quais ao Usuário é concedido uma licença sob os termos deste Contrato. "Período de Avaliação" com relação a um Produto, é o período de tempo que começa na data em que o Cliente efetua o download desse Produto e termina no mais cedo de (a) trinta dias de calendário subsequentes, ou (b) o número de dias especificado neste Produto. 2. LICENÇA PARA FIM DE AVALIAÇÃO. A BMC concede ao Usuário uma licença temporária não exclusiva, intransferível e não passível de cessão para usar cada Produto em um único computador durante o Período de Avaliação apenas para avaliar internamente e determinar se deve adquirir e / ou licenciar tal Produto por uma taxa e não para fins de desenvolvimento, comercial, de produção ou de gestão de bases de dados, ou com dados de produção. O usuário deve entrar em um acordo separado para obter direitos de produção e suporte técnico para um Produto. 3. DIREITOS DE PROPRIEDADE E CONFIDENCIALIDADE. (a) A BMC, suas afiliadas ou licenciadoras reterão todos os direitos, títulos e interesses do Produto, Suporte e todos os direitos de propriedade intelectual e proprietários relacionados. O Produto e todos os softwares de terceiros fornecidos com o Produto estão protegidos por direitos autorais, segredos comerciais, leis industriais e outras leis de propriedade intelectual. O usuário não pode remover nenhuma identificação do produto, direitos autorais, marca comercial ou outro aviso do Produto. A BMC reserva-se quaisquer direitos não expressamente concedidos ao Usuário neste Contrato. (b) O Destinatário não poderá divulgar Informações Confidenciais do Divulgador a terceiros ou utilizar as Informações Confidenciais em violação deste Contrato. O Beneficiário (i) exercerá o mesmo grau de cuidado e proteção com relação às Informações Confidenciais da Parte Divulgadora que ele exerce em relação às suas próprias Informações Confidenciais e (ii) não divulgará, copiará, distribuirá, republicará, ou permitirá que terceiros tenham acesso a qualquer Informação Confidencial da Parte Divulgadora, direta ou indiretamente. Não obstante o acima exposto, a Parte Receptora pode divulgar Informações Confidenciais da Parte Divulgadora aos funcionários e agentes da Parte Receptora que tenham a necessidade de saber desde que tais empregados e agentes tenham obrigações legais de confidencialidade substancialmente as mesmas (e em nenhum caso menos protetoras) como as disposições deste Contrato. (c) Obrigação de notificação. Se a Parte Receptora tomar conhecimento de qualquer uso ou divulgação não autorizada das Informações Confidenciais da Parte Divulgadora, a Parte Receptora notificará prontamente e totalmente a Parte Divulgadora de todos os fatos conhecidos a respeito de tal uso ou divulgação não-autorizados. Além disso, se a Parte Receptora ou qualquer de seus funcionários ou agentes forem obrigados (por perguntas orais, interrogatórios, solicitações de informações ou documentos em processo judicial, intimação, demanda civil de investigação ou outro processo semelhante) a divulgar qualquer uma das Informações Confidenciais da Parte Divulgadora, ela não o fará sem fornecer à Parte Divulgadora aviso prévio por escrito com antecedência comercialmente razoável para permitir que a Parte Divulgadora solicite uma ordem protetora ou outro recurso apropriado ou renuncie ao cumprimento desta disposição. Em qualquer caso, a Parte Receptora exercerá seus esforços comercialmente razoáveis para preservar a confidencialidade das Informações Confidenciais da Parte Divulgadora, incluindo, sem limitação, cooperar com a Parte Divulgadora para obter uma ordem de proteção apropriada ou outra garantia confiável de que o tratamento confidencial será concedido às Informações Confidenciais. 4. RESTRIÇÕES DE USO. O usuário não irá: (a) modificar, excluir ou remover qualquer propriedade, título, marca registrada, patente ou aviso de direitos autorais ("Identificação") de qualquer Produto; (b) copiar qualquer Produto ou qualquer parte de qualquer Produto sem reproduzir toda a Identificação em cada cópia ou cópia parcial; (c) desmontar, fazer engenharia reversa, descompilar ou de outra forma tentar derivar qualquer Código-fonte do produto do código objeto, exceto na medida expressamente permitida pela lei aplicável, apesar desta limitação sem possibilidade de renúncia contratual; (d) distribuir, alugar, arrendar, sublicenciar ou fornecer o Produto a terceiros; (e) fornecer a terceiros os resultados de qualquer avaliação funcional ou testes de desempenho, sem a aprovação prévia por escrito da BMC; (f) tentar desativar ou contornar qualquer um dos mecanismos de licenciamento dentro do Produto; ou (g) violar quaisquer outras restrições de uso contidas na Documentação. 5. NENHUMA GARANTIA E LIMITAÇÃO DE RESPONSABILIDADE. OS PRODUTOS SÃO FORNECIDOS "NO ESTADO EM QUE SE ENCONTRAM" PARA EFEITOS DE AVALIAÇÃO SOMENTE E SEM QUALQUER GARANTIA, INCLUINDO, SEM LIMITAÇÃO, QUAISQUER GARANTIAS IMPLÍCITAS DE ADEQUAÇÃO A UM PROPÓSITO ESPECÍFICO OU COMERCIALIZAÇÃO E NÃO INFRAÇÃO OU QUALQUER OUTRA GARANTIA, SEJA EXPRESSA OU IMPLÍCITA. NENHUMA DA BMC, SUAS AFILIADAS, FORNECEDORES OU LICENCIADORAS SERÃO RESPONSÁVEIS POR QUAISQUER DANOS INDIRETOS, INCIDENTAIS, ESPECIAIS, PUNITIVOS OU CONSEQUENTES OU QUALQUER PERDA DE LUCROS, RECEITAS, DADOS OU USO DE DADOS DE QUALQUER CAUSA DECORRENTE OU DE QUALQUER FORMA RELACIONADA COM A USO DO PRODUTO OU ESTE CONTRATO. A RESPONSABILIDADE DA BMC, AFILIADAS, FORNECEDORES E LICENCIADORES POR DANOS RESULTANTES DA UTILIZAÇÃO DO PRODUTO OU DO PRESENTE ACORDO, SEJA POR CONTRATO OU POR DELITO, ESTARÁ LIMITADA AO MAIOR DO VALOR PAGO PELO UTILIZADOR PARA LICENCIAR O USO DESTE PRODUTO OU US $ 500. NOS PAÍSES LISTADOS NO SUB-CLÁUSULA 9 (F), ABAIXO, A LIMITAÇÃO DE RESPONSABILIDADE NESTA CLÁUSULA NÃO SE APLICARÁ SE E NA MEDIDA EM QUE O PREJUÍZO FOI CAUSADO PELA INTENÇÃO OU NEGLIGÊNCIA BRUTA DE QUALQUER PARTE. 6. RESCISÃO. Qualquer uma das partes pode rescindir o presente Contrato a qualquer momento, mediante notificação prévia de duas semanas. Após a rescisão deste Contrato ou a expiração de um Período de Avaliação, se o Usuário não obtiver uma licença de produção para o Produto, o Usuário deverá (a) cessar de usar o Produto e (b) certificar por escrito ao BMC que o Usuário foi desinstalado e destruído, ou devolvido à BMC, os Produtos e todas as cópias dos Produtos. Este requisito aplica-se a cópias em todas as formas, parciais e completas, em todos os tipos de mídia e memória de computador e independente de ser ou não fundidos em outros materiais. Este Contrato não cria qualquer obrigação por parte da BMC de licenciar qualquer Produto ao Usuário ou por parte do Usuário para comprar qualquer hardware ou licença de qualquer Produto de software da BMC. Não obstante qualquer disposição em contrário nesta Cláusula 6, se o hardware for incluído com o Produto, após a conclusão do Período de Avaliação, o Usuário irá comprar o hardware ou devolvê-lo à BMC dentro de cinco dias em seu material de embalagem original. 7. PROTEÇÃO DE DADOS. A BMC e o Usuário concordam que o Contrato de Tratamento de Dados, cuja cópia pode ser visualizada em https://www.bmc.com/content/dam/bmc/corporate/bmcdpa.pdf , se aplica aos Produtos da BMC baixados, a menos que a BMC já tenha um Contrato de Tratamento de Dados assinado com o Usuário para tais Produtos da BMC; nesse caso, a versão assinada será a aplicável. 8. CONTROLES DE EXPORTAÇÃO. O Usuário declara e garante que: a) cumprirá os Regulamentos da Administração de Exportação dos Estados Unidos e outros regulamentos de exportação dos EUA ou estrangeiros; b) nenhum indivíduo acessando ou usando o Produto é um cidadão de um país embargado (atualmente Irã, Síria, Sudão, Cuba e Coréia do Norte); c) não está proibido de receber o Produto sob tais regulamentos; d) não adquirirá o Produto para uma pessoa que está restrita sob tais regulamentos; e) não utilizar o Produto em contradição com tais regulamentos; e f) não usará o Produto para usos proibidos, incluindo mas não limitado a usos finais relacionados com armas nucleares, químicas, mísseis ou biológicas. No que se refere ao produto exportado da Irlanda, o Regulamento (CE) n.º 428/2009 estabelece um regime comunitário de controlo das exportações de produtos e tecnologias de dupla utilização e declara-se que este produto se destina exclusivamente a fins civis. Portanto, o Usuário concorda em cumprir com os regulamentos dos EUA e com os da U.E. e não exportará em violação dos regulamentos e sem todas as licenças apropriadas. Qualquer incumprimento destes regulamentos resultará em o utilizador perderá todos os direitos sobre o produto. 9. LEGISLAÇÃO VIGENTE E FORO DE ELEIÇÃO. Este Contrato será regido e interpretado pelas leis do Brasil. As Partes elegem o Foro da Capital do Estado de São Paulo para solucionar qualquer divergência proveniente deste Contrato não resolvidas amigavelmente, renunciando, de forma expressa, qualquer outro foro, por mais privilegiado que seja ou venha a ser. 10. AQUISIÇÕES FEDERAIS DOS EUA. Esta Seção aplica-se somente a aquisições do Produto comercial e Documentação sujeitas a este Contrato por ou em nome do Governo dos Estados Unidos, ou por qualquer contratante principal ou subcontratado (a qualquer nível) sob qualquer contrato, concessão, acordo de cooperação ou outra atividade com o Governo dos Estados Unidos. No caso de os Produtos serem entregues ao Governo dos Estados Unidos, o Governo dos Estados Unidos concorda que os Produtos se qualificam como "itens comerciais" na acepção do (s) regulamento (s) de aquisição federal aplicável (s) a este contrato. Os termos e condições deste Contrato referem-se à utilização e divulgação do Produto pelo Governo dos Estados Unidos e substituem quaisquer termos e condições contratuais conflitantes. A seguinte declaração adicional aplica-se somente às aquisições regidas pela Subparte 227.4 do DFARS (outubro de 1988): "Direitos Restritos - O uso, duplicação e divulgação pelo Governo está sujeito às restrições estabelecidas na alínea (c) (1) (ii) Direitos em Dados Técnicos e Software de Computador no DFARS 252.227-7013 (outubro de 1988) ". 11. DISPOSIÇÕES GERAIS. A renúncia por parte de uma parte de qualquer violação de qualquer termo deste Contrato não será interpretada como uma renúncia de qualquer outra violação contínua ou sucessiva. Se qualquer termo deste Contrato for inválido ou inexigível, os termos restantes permanecerão em vigor. As partes reconhecem ter lido este Contrato e concordam que ele é a declaração completa e exclusiva do contrato e substitui quaisquer negociações ou acordos anteriores ou contemporâneos entre as partes relacionadas ao assunto deste Contrato. Não há representações, promessas, garantias, convênios ou compromissos entre as partes além das expressamente estabelecidas neste Contrato. Este Contrato não pode ser modificado ou rescindido, exceto por escrito e assinado por ambas as partes. A parte que prevalece em qualquer litígio tem o direito de recuperar os honorários e custos da sua advogada da outra parte. O Usuário não poderá ceder ou transferir este Contrato sem o consentimento prévio por escrito da BMC. Os Produtos BMC podem conter software de terceiros que é entregue ao Usuário como parte do Produto e não pode ser retirado do Produto ou usado separadamente do Produto e para o qual termos adicionais podem ser incluídos na Documentação. Quaisquer documentos adicionais apresentados a um representante da BMC pelo Usuário para assinatura como condição para entrar no site de um Usuário serão regidos por este Contrato e na medida em que esse documento apresentar termos adicionais ou conflitos com este Contrato, será considerado nulo e sem efeito. Se você concorda, como um representante autorizado do Usuário, em aceitar os termos de licença acima em seu nome e do Usuário, e confirmar que você e o Usuário estão e permanecerão em conformidade com todos os termos e condições acima especificados, clique no botão "Eu concordo" abaixo. |
(2) LICENÇA PARA FINS DE AVALIAÇÃO. A BMC concede ao Usuário uma licença não exclusiva, intransferível e temporária para usar cada Produto num único computador durante o Período de Avaliação, somente para avaliar internamente e determinar se irá adquirir uma licença de tal Produto contra pagamento de uma Taxa e não para fins de desenvolvimento, comerciais, de produção, ou para gerenciamento ou produção de dados. O Usuário deverá firmar um contrato separado para obter direitos de produção e suporte técnico para um Produto. Na medida em que os Produtos da BMC incluam um código de terceiros: caso (a) tal código de terceiros seja disponibilizado para uso com um Produto, ele só poderá ser usado com esse Produto; e (b) a documentação apresente termos relativos a tal código de terceiros, esses termos regerão o código de terceiros ao invés dos termos do Pedido aplicável e este Contrato. |
(3) RESTRIÇÕES DE USO. O Usuário não deve: (a) remover qualquer identificação do Produto, aviso de direito autoral ou quaisquer outros avisos ou restrições proprietárias contidas nos Produtos; (b) permitir terceiro ou ele próprio desmontar, submeter à engenharia reversa, descompilar ou de outro modo tentar derivar o código-fonte de qualquer Produto do código-objeto, exceto na medida expressamente permitida pela legislação aplicável, apesar desta limitação; (c) divulgar os resultados de qualquer teste de benchmark de qualquer Produto para terceiros sem o prévio consentimento escrito da BMC; (d) duplicar, instalar e/ou usar o Produto de forma diversa a permitida neste Contrato; ou (e) sublicenciar, modificar, compartilhar, alugar, utilizar em balcão de serviços ou de qualquer outra forma transferir ou compartilhar os Produtos para ou com, ou permitir acesso ou uso dos Produtos, por qualquer terceiro. O Usuário não poderá exportar, reexportar qualquer Produto, a não ser que tenha o prévio consentimento por escrito da BMC e esteja em conformidade integral com todas as leis e regulamentos aplicáveis dos Estados Unidos da América e/ou de países estrangeiros e outras leis e regulamentos aplicáveis. |
(4) RESCISÃO. Havendo rescisão deste Contrato, ou expiração do Período de Avaliação, se o Usuário não tiver obtido uma licença para uso em produção, o Usuário deverá (a) cessar o uso do Produto, e (b) certificar por escrito a BMC de que desinstalou e destruiu ou retornou à BMC o Produto e todas as suas cópias. Este requerimento se aplica para as cópias em quaisquer formas, parcial e completas, em todos os tipos de mídia e memória de computador e incluída ou não com outros materiais. Este Contrato não cria obrigação por parte da BMC para licenciar qualquer Produto ao Usuário ou por parte do Usuário de comprar qualquer licença dos Produtos da BMC. |
(5) GARANTIA E LIMITAÇÃO DE RESPONSABILIDADE. OS PRODUTOS SÃO FORNECIDOS "AS IS" (NO ESTADO EM QUE SE ENCONTRAM) SOMENTE PARA MOTIVOS DE AVALIAÇÃO E SEM QUALQUER GARANTIA, INCLUINDO, MAS NÃO LIMITANDO-SE A, GARANTIAS IMPLÍCITAS DE COMERCIABILIDADE, ADEQUAÇÃO A UM FIM ESPECÍFICO E NÃO VIOLAÇÃO, ENTRE OUTRAS, TANTO EXPRESSAS QUANTO IMPLÍCITAS. A BMC, SUAS AFILIADAS, FORNECEDORES OU LICENCIADORES NÃO SERÃO RESPONSÁVEIS POR QUAISQUER DANOS INDIRETOS, INCIDENTAIS, ESPECIAIS, PUNITIVOS OU CONSEQUENCIAIS, LUCRO CESSANTE, PERDA DE RECEITA, PERDA DE DADOS OU SEU USO RELATIVOS À OU DECORRENTES DESTE CONTRATO OU DO PRODUTO. A RESPONSABILIDADE DA BMC, SUAS AFILIADAS, FORNECEDORES OU LICENCIADORES POR DANOS RESULTANTES DO USO DO PRODUTO OU DESTE CONTRATO, SEJA PELO CONTRATO OU OBRIGAÇÃO EXTRACONTRATUAL, DEVERÁ SER LIMITADO AO VALOR PAGO PELO USUÁRIO PELA LICENÇA OU O EQUIVALENTE EM MOEDA NACIONAL A US$ 500,00, O QUE FOR MAIOR. NOS PAÍSES LISTADOS NA SUBSEÇÃO 9(F) ABAIXO, A LIMITAÇÃO DE RESPONSABILIDADE DESTA SEÇÃO NÃO APLICAR-SE-ÃO PARA OS CASOS EM QUE O DANO TENHA SIDO CAUSADO POR DOLO OU CULPA GRAVE DE QUALQUER DAS PARTES. |
(6) DIREITOS DE PROPRIEDADE E OBRIGAÇÕES DE CONFIDENCIALIDADE. A BMC, suas Afiliadas ou licenciadoras reservam para si todo o direito, título e participação relativos ao Produto e toda a propriedade intelectual e direitos associados. O Produto e qualquer software de terceiro fornecido com o Produto estão protegidos pelas leis de direitos autorais, segredos comerciais, industriais e outras leis de propriedade intelectual aplicáveis. A BMC reserva para si quaisquer direitos que não foram expressamente outorgados ao Usuário. As partes concordam que o Produto constitui informação confidencial da BMC. A parte receptora: (a) irá manter em sigilo a informação confidencial da outra parte pelo prazo de 5 (cinco) anos a partir: (i) da data de divulgação ou (ii) último uso do Produto, o que ocorrer por último; e (b) somente divulgará a informação confidencial da outra parte para seus empregados ou contratados que estejam obrigados a não divulgar tais informações por obrigações legais, no minimo tão protetivas quanto as contidas neste Contrato, e que devam ter conhecimento de tal informação para prestar os serviços. Nada impede as partes em divulgar termos ou preços deste Contrato, em qualquer procedimento legal que advenha ou esteja relacionado a este Contrato ou divulgar informações para entidades governamentais federais ou estaduais conforme requerido por lei. |
(7) LEIS DE EXPORTAÇÃO. As leis e regulamentos de exportação dos Estados Unidos da América, assim como as relevantes das demais localidades e locais aplicam-se aos Produtos. O uso do Produto pelo Usuário (incluindo informações técnicas) são governadas por tais leis e o Usuário deverá cumprí-las. O Usuário concorda que nenhum Produto, dado, informação, programa e/ou material será exportado, direta ou indiretamente, em violação a estas leis ou será usado para qualquer motivo proibido por tais leis, incluindo armas nucleares, químicas ou biológicas ou desenvolvimento de tecnologia de mísseis. Clicar no botão "Eu concordo" abaixo, representa uma confirmação de que o Usuário cumprirá, agora e durante o Período de Avaliação, com cada um dos itens abaixo: (a) o Usuário não é um cidadão, naturalizado ou residente, ou está sob o controle do governo de Cuba, Irã, Sudão, Iraque, Coréa do Norte, Síria ou qualquer outro país para o qua los Estados Unidos da América tenha proibição de exportar; e (b) o Usuário não irá fazer o "download" para exportar ou reexportar qualquer Produto, direta ou indiretamente, para qualquer dos países acima mencionados ou para cidadãos, naturalizados ou residentes de qualquer destes países; e (c) o Usuário não está listado na lista do Ministério da Fazenda dos Estados Unidos da América para Nacionais Designados Especiais, Terroristas Designados Especiais ou Traficantes de Narcóticos Designados Especiais ou está listado no Departamento de Comércio para Ordens Recusadas dos Estados Unidos da América; e (d) o Usuário não fará o "download" ou de qualquer outra forma exportará ou reexportará qualquer produto, direta ou indiretamente, para qualquer pessoa que esteja inscrita em qualquer destas listas acima; e (e) o Usuário não usará o Produto para, ou permitirá que o Produto seja usado para, qualquer propósito proibido pela legislação dos Estados Unidos da América ou qualquer outra que seja aplicável, incluindo, mas não limitado a, o desenvolvimento, design, manufatura ou produção de armas nucleares, químicas ou biológicas de destruição em massa. |
(8) CONTRATO COMPLETO. Este é o contrato completo entre as partes, o qual prevalence e substitui todo e qualquer acordo anterior em relação ao uso dos Produtos pelo Usuário sob a forma de licença para fins de avaliação. Este Contrato só poderá ser modificado ou rescindido por meio de instrumento escrito, assinado por ambas as partes. O CLIENTE não poderá ceder ou transferir este Contrato sem o prévio consentimento escrito da BMC. A renúncia por uma parte a qualquer violação de um termo deste Contrato não será interpretada como uma renúncia a qualquer violação permanente ou futura, nem implicará renúncia parcial em exigir o cumprimento ou executar os termos deste contrato, quaisquer direitos, poderes ou privilégios aqui previstos. Caso alguma disposição deste Contrato seja considerada inválida ou inexeqüível, as demais disposições permanecerão em vigor. |
(9) LEI DE REGÊNCIA E FORO. Este Contrato é regido pelas leis do estado do Texas, independentemente dos conflitos de lei que possam surgir. Todas as disputas resultantes deste contrato deverão ser apresentadas perante as cortes federais, localizadas na comarca de Harris, Texas, e a BMC e o Usuário concordam que esta jurisdição prevalecerá sobre qualquer outra em relação a qualquer disputa que se origine deste contrato. |
Não obstante o acima exposto, se o Usuário estiver localizado e pretender usar o Produto na(o): (a) Argentina, as leis da Argentina aplicar-se-ão e o foro será a Corte da cidade de Buenos Aires, independentemente de conflitos de leis, e a BMC e o Usuário concordam com a escolha do foro da referida Corte para tais disputas; (b) Brasil, as leis do Brasil aplicar-se-ão e o foro será a cidade de São Paulo, independentemente de conflitos de leis, e a BMC e o Usuário concordam com a escolha do foro da referida Corte para tais disputas; (c) Estados Unidos do México, as leis dos Estados Unidos do México aplicar-se-ão e o foro será a Corte da cidade do Mexico, independentemente de conflitos de leis, e a BMC e o Usuário concordam com a escolha do foro da referida Corte para tais disputas; (d) Japão, Coréa do Sul, República Popular da China, Regiões Administrativas Especiais de Hong Kong ou Macau, Taiwan, Filipinas, Indonésia, Malásia, Myanmar, Singapura, Brunei, Vietnã, Cambódia, Laos, Tailândia, Índia, Paquistão, Autrália, Nova Zelândia, Papua Nova Guiné ou qualquer ilha dos Estados do Pacífico, as leis de Singapura aplicar-se-ão e o foro será a Corte de Singapura, independentemente de conflitos de leis, e a BMC e o Usuário concordam com a escolha do foro da referida Corte para tais disputas; (e) Estados Unidos da América, Porto Rico ou qualquer outro protetorado dos Estados Unidos da América, Canadá ou qualquer país da América Central ou do Sul não especificamente designado acima, as leis do estado do Texas aplicar-se-ão, independentemente de conflitos de leis, e o foro será as cortes estaduais e federais localizadas na cidade de Harris, Texas, e a BMC e o Usuário concordam com a escolha do foro das referidas Cortes para tais disputas, e (f) para os países não especificados por nenhum dos foros acima, as leis da Holanda aplicar-se-ão, independentemente de conflitos de leis, e o foro será a Corte da cidade de Amsterdã, e a BMC e o Usuário concordam com a escolha do foro da referida corte para tais disputas. |
Nem a escolha de leis em qualquer jurisdição nem a convenção das Nações Unidas com relação a venda internacional de bens se aplicam a este contrato. |
(10) DIVERSOS. Após 30 (trinta) dias corridos do recebimento, pelo Usuário, da notificação escrita, a BMC poderá auditar o uso dos Produtos pelo Usuário. O Usuário deverá cooperar com a auditoria e providenciar toda a assistência razoável e acesso à informação. Dentro de 30 (trinta) dias corridos do recebimento da notificação o Usuário deverá pagar qualquer taxa não paga que tenha sido revelada pela auditoria. |
(11) AQUISIÇÕES DO GOVERNO FEDERAL DOS ESTADOS UNIDOS DA AMÉRICA. Esta cláusula aplica-se para todas as aquisições dos Produtuos sujeitas a este contrato pelo ou em nome do governo federal dos Estados Unidos da América, ou por qualquer contratante principal ou subcontratado (em qualquer nível) sob qualquer contrato, concessão, acordo de cooperação ou outra atividade com o governo federal dos Estados Unidos da América. Ao aceitar a entrega do Produto, o governo concorda que tal Produto qualifica-se como "comercial" dentro do conceito das regulamentações de aquisição aplicáveis a este contrato. Os termos e condições deste Contrato pertencerão ao governo para uso e divulgação do Produto e deverão prevalecer sobre qualquer termo ou condição contractual. Se a licença concedida por este Contrato não vier de encontro às necessidades do governo ou for inconsistente em relação a qualquer lei federal, o governo concorda em devolver o Produto, não utilizado, para a BMC. A afirmativa a seguir aplica-se somente para aquisições reguladas por DFARS Subpart 227.4 (Outubro de 1988): "Direitos Restritos – Uso, duplicação e divulgação pelo Governo estão sujeitos a restrições conforme definidas no parágrafo (c)(1)(ii) da cláusula que trata dos Direitos sobre Dados Técnicos e Programas de Computador prescrita no DFARS 252.227-7013 (Out. 1988)." |
Se você concorda, como um representante autorizado do Usuário, em aceitar os termos de licença acima em seu nome e do Usuário, e confirmar que você e o Usuário estão e permanecerão em conformidade com todos os termos e condições acima especificados, clique no botão "Eu concordo" abaixo. |
Effective April 9th 2020 to April 9th 2020
DownloadTable of Contents
ESTE CONTRATO PARA FINS DE AVALIAÇÃO ("CONTRATO") TORNAR-SE-Á UM INSTRUMENTO LEGAL ENTRE O USUÁRIO DO PRODUTO INSERIDO NA SEÇÃO DE VALIDAÇÃO DE EXPORTAÇÃO DA PÁGINA ELETRÔNICA DO SUPORTE BMC (WWW.BMC.COM OU QUALQUER OUTRA PÁGINA QUE A SUCEDA) DA QUAL ESTE CONTRATO PARA FINS DE AVALIAÇÃO É PARTE ("USUÁRIO") E A BMC SOFTWARE INC. OU SUA AFILIADA LICENCIANTE LOCAL ("BMC"). AO CLICAR NO BOTÃO "EU CONCORDO", VOCÊ DECLARA E GARANTE QUE LEU E ENTENDEU OS TERMOS DESTE CONTRATO, QUE VOCÊ TEM AUTORIDADE PARA VINCULAR O USUÁRIO A ESTE CONTRATO, E QUE O USUÁRIO CONCORDA COM OS TERMOS E CONDIÇÕES DESTE CONTRATO. A BMC CONCORDA EM PERMITÍ-LO FAZER O "DOWNLOAD" DO PRODUTO SOMENTE SE, E APÓS QUE, VOCÊ E O USUÁRIO TENHAM ACEITO TODOS ESTES TERMOS AO CLICAR O BOTÃO "EU CONCORDO". |
POR FAVOR LEIA ESTE CONTRATO: SE VOCÊ NÃO ENTENDER OU CONCORDAR COM QUALQUER DOS TERMOS DESTE CONTRATO, NÃO CLIQUE O BOTÃO "EU CONCORDO". |
(1) TERMOS DEFINIDOS. "Informação Confidencial" é toda informação que é de propriedade e/ou confidencial da parte reveladora e não inclui informação que: (a) estava devidamente na posse da parte receptora sem qualquer obrigação de confidencialidade antes de receber da parte reveladora; (b) é ou tornou-se matéria de conhecimento público sem culpa da parte receptora; (c) é regularmente recebida pela parte receptora de um terceiro sem qualquer violação de obrigação de confidencialidade; ou (d) é independetemente desenvolvida pela ou para a parte receptora. "Produtos" são os programas de computador e toda a documentação relacionada e outras informações técnicas de propriedade ou distribuídas pela BMC, as quais poderão ser acessadas pelo endereço eletrônico BMC EPD (www.bmc.com ou qualquer outra página que o suceda) e para os quais o Usuário recebe uma licença de uso sob este Contrato. "Período de Avaliação" com respeito a um Produto, é o período que inicia na data que Você faz o "download" de tal Produto e termina (a) 30 dias corridos após; ou (b) após o número de dias corridos especificado na Chave de Licença provida com tal Produto; o que ocorrer primeiro. |
(2) LICENÇA PARA FINS DE AVALIAÇÃO. A BMC concede ao Usuário uma licença não exclusiva, intransferível e temporária para usar cada Produto num único computador durante o Período de Avaliação, somente para avaliar internamente e determinar se irá adquirir uma licença de tal Produto contra pagamento de uma Taxa e não para fins de desenvolvimento, comerciais, de produção, ou para gerenciamento ou produção de dados. O Usuário deverá firmar um contrato separado para obter direitos de produção e suporte técnico para um Produto. Na medida em que os Produtos da BMC incluam um código de terceiros: caso (a) tal código de terceiros seja disponibilizado para uso com um Produto, ele só poderá ser usado com esse Produto; e (b) a documentação apresente termos relativos a tal código de terceiros, esses termos regerão o código de terceiros ao invés dos termos do Pedido aplicável e este Contrato. |
(3) RESTRIÇÕES DE USO. O Usuário não deve: (a) remover qualquer identificação do Produto, aviso de direito autoral ou quaisquer outros avisos ou restrições proprietárias contidas nos Produtos; (b) permitir terceiro ou ele próprio desmontar, submeter à engenharia reversa, descompilar ou de outro modo tentar derivar o código-fonte de qualquer Produto do código-objeto, exceto na medida expressamente permitida pela legislação aplicável, apesar desta limitação; (c) divulgar os resultados de qualquer teste de benchmark de qualquer Produto para terceiros sem o prévio consentimento escrito da BMC; (d) duplicar, instalar e/ou usar o Produto de forma diversa a permitida neste Contrato; ou (e) sublicenciar, modificar, compartilhar, alugar, utilizar em balcão de serviços ou de qualquer outra forma transferir ou compartilhar os Produtos para ou com, ou permitir acesso ou uso dos Produtos, por qualquer terceiro. O Usuário não poderá exportar, reexportar qualquer Produto, a não ser que tenha o prévio consentimento por escrito da BMC e esteja em conformidade integral com todas as leis e regulamentos aplicáveis dos Estados Unidos da América e/ou de países estrangeiros e outras leis e regulamentos aplicáveis. |
(4) RESCISÃO. Havendo rescisão deste Contrato, ou expiração do Período de Avaliação, se o Usuário não tiver obtido uma licença para uso em produção, o Usuário deverá (a) cessar o uso do Produto, e (b) certificar por escrito a BMC de que desinstalou e destruiu ou retornou à BMC o Produto e todas as suas cópias. Este requerimento se aplica para as cópias em quaisquer formas, parcial e completas, em todos os tipos de mídia e memória de computador e incluída ou não com outros materiais. Este Contrato não cria obrigação por parte da BMC para licenciar qualquer Produto ao Usuário ou por parte do Usuário de comprar qualquer licença dos Produtos da BMC. |
(5) GARANTIA E LIMITAÇÃO DE RESPONSABILIDADE. OS PRODUTOS SÃO FORNECIDOS "AS IS" (NO ESTADO EM QUE SE ENCONTRAM) SOMENTE PARA MOTIVOS DE AVALIAÇÃO E SEM QUALQUER GARANTIA, INCLUINDO, MAS NÃO LIMITANDO-SE A, GARANTIAS IMPLÍCITAS DE COMERCIABILIDADE, ADEQUAÇÃO A UM FIM ESPECÍFICO E NÃO VIOLAÇÃO, ENTRE OUTRAS, TANTO EXPRESSAS QUANTO IMPLÍCITAS. A BMC, SUAS AFILIADAS, FORNECEDORES OU LICENCIADORES NÃO SERÃO RESPONSÁVEIS POR QUAISQUER DANOS INDIRETOS, INCIDENTAIS, ESPECIAIS, PUNITIVOS OU CONSEQUENCIAIS, LUCRO CESSANTE, PERDA DE RECEITA, PERDA DE DADOS OU SEU USO RELATIVOS À OU DECORRENTES DESTE CONTRATO OU DO PRODUTO. A RESPONSABILIDADE DA BMC, SUAS AFILIADAS, FORNECEDORES OU LICENCIADORES POR DANOS RESULTANTES DO USO DO PRODUTO OU DESTE CONTRATO, SEJA PELO CONTRATO OU OBRIGAÇÃO EXTRACONTRATUAL, DEVERÁ SER LIMITADO AO VALOR PAGO PELO USUÁRIO PELA LICENÇA OU O EQUIVALENTE EM MOEDA NACIONAL A US$ 500,00, O QUE FOR MAIOR. NOS PAÍSES LISTADOS NA SUBSEÇÃO 9(F) ABAIXO, A LIMITAÇÃO DE RESPONSABILIDADE DESTA SEÇÃO NÃO APLICAR-SE-ÃO PARA OS CASOS EM QUE O DANO TENHA SIDO CAUSADO POR DOLO OU CULPA GRAVE DE QUALQUER DAS PARTES. |
(6) DIREITOS DE PROPRIEDADE E OBRIGAÇÕES DE CONFIDENCIALIDADE. A BMC, suas Afiliadas ou licenciadoras reservam para si todo o direito, título e participação relativos ao Produto e toda a propriedade intelectual e direitos associados. O Produto e qualquer software de terceiro fornecido com o Produto estão protegidos pelas leis de direitos autorais, segredos comerciais, industriais e outras leis de propriedade intelectual aplicáveis. A BMC reserva para si quaisquer direitos que não foram expressamente outorgados ao Usuário. As partes concordam que o Produto constitui informação confidencial da BMC. A parte receptora: (a) irá manter em sigilo a informação confidencial da outra parte pelo prazo de 5 (cinco) anos a partir: (i) da data de divulgação ou (ii) último uso do Produto, o que ocorrer por último; e (b) somente divulgará a informação confidencial da outra parte para seus empregados ou contratados que estejam obrigados a não divulgar tais informações por obrigações legais, no minimo tão protetivas quanto as contidas neste Contrato, e que devam ter conhecimento de tal informação para prestar os serviços. Nada impede as partes em divulgar termos ou preços deste Contrato, em qualquer procedimento legal que advenha ou esteja relacionado a este Contrato ou divulgar informações para entidades governamentais federais ou estaduais conforme requerido por lei. |
(7) LEIS DE EXPORTAÇÃO. As leis e regulamentos de exportação dos Estados Unidos da América, assim como as relevantes das demais localidades e locais aplicam-se aos Produtos. O uso do Produto pelo Usuário (incluindo informações técnicas) são governadas por tais leis e o Usuário deverá cumprí-las. O Usuário concorda que nenhum Produto, dado, informação, programa e/ou material será exportado, direta ou indiretamente, em violação a estas leis ou será usado para qualquer motivo proibido por tais leis, incluindo armas nucleares, químicas ou biológicas ou desenvolvimento de tecnologia de mísseis. Clicar no botão "Eu concordo" abaixo, representa uma confirmação de que o Usuário cumprirá, agora e durante o Período de Avaliação, com cada um dos itens abaixo: (a) o Usuário não é um cidadão, naturalizado ou residente, ou está sob o controle do governo de Cuba, Irã, Sudão, Iraque, Coréa do Norte, Síria ou qualquer outro país para o qua los Estados Unidos da América tenha proibição de exportar; e (b) o Usuário não irá fazer o "download" para exportar ou reexportar qualquer Produto, direta ou indiretamente, para qualquer dos países acima mencionados ou para cidadãos, naturalizados ou residentes de qualquer destes países; e (c) o Usuário não está listado na lista do Ministério da Fazenda dos Estados Unidos da América para Nacionais Designados Especiais, Terroristas Designados Especiais ou Traficantes de Narcóticos Designados Especiais ou está listado no Departamento de Comércio para Ordens Recusadas dos Estados Unidos da América; e (d) o Usuário não fará o "download" ou de qualquer outra forma exportará ou reexportará qualquer produto, direta ou indiretamente, para qualquer pessoa que esteja inscrita em qualquer destas listas acima; e (e) o Usuário não usará o Produto para, ou permitirá que o Produto seja usado para, qualquer propósito proibido pela legislação dos Estados Unidos da América ou qualquer outra que seja aplicável, incluindo, mas não limitado a, o desenvolvimento, design, manufatura ou produção de armas nucleares, químicas ou biológicas de destruição em massa. |
(8) CONTRATO COMPLETO. Este é o contrato completo entre as partes, o qual prevalence e substitui todo e qualquer acordo anterior em relação ao uso dos Produtos pelo Usuário sob a forma de licença para fins de avaliação. Este Contrato só poderá ser modificado ou rescindido por meio de instrumento escrito, assinado por ambas as partes. O CLIENTE não poderá ceder ou transferir este Contrato sem o prévio consentimento escrito da BMC. A renúncia por uma parte a qualquer violação de um termo deste Contrato não será interpretada como uma renúncia a qualquer violação permanente ou futura, nem implicará renúncia parcial em exigir o cumprimento ou executar os termos deste contrato, quaisquer direitos, poderes ou privilégios aqui previstos. Caso alguma disposição deste Contrato seja considerada inválida ou inexeqüível, as demais disposições permanecerão em vigor. |
(9) LEI DE REGÊNCIA E FORO. Este Contrato é regido pelas leis do estado do Texas, independentemente dos conflitos de lei que possam surgir. Todas as disputas resultantes deste contrato deverão ser apresentadas perante as cortes federais, localizadas na comarca de Harris, Texas, e a BMC e o Usuário concordam que esta jurisdição prevalecerá sobre qualquer outra em relação a qualquer disputa que se origine deste contrato. |
Não obstante o acima exposto, se o Usuário estiver localizado e pretender usar o Produto na(o): (a) Argentina, as leis da Argentina aplicar-se-ão e o foro será a Corte da cidade de Buenos Aires, independentemente de conflitos de leis, e a BMC e o Usuário concordam com a escolha do foro da referida Corte para tais disputas; (b) Brasil, as leis do Brasil aplicar-se-ão e o foro será a cidade de São Paulo, independentemente de conflitos de leis, e a BMC e o Usuário concordam com a escolha do foro da referida Corte para tais disputas; (c) Estados Unidos do México, as leis dos Estados Unidos do México aplicar-se-ão e o foro será a Corte da cidade do Mexico, independentemente de conflitos de leis, e a BMC e o Usuário concordam com a escolha do foro da referida Corte para tais disputas; (d) Japão, Coréa do Sul, República Popular da China, Regiões Administrativas Especiais de Hong Kong ou Macau, Taiwan, Filipinas, Indonésia, Malásia, Myanmar, Singapura, Brunei, Vietnã, Cambódia, Laos, Tailândia, Índia, Paquistão, Autrália, Nova Zelândia, Papua Nova Guiné ou qualquer ilha dos Estados do Pacífico, as leis de Singapura aplicar-se-ão e o foro será a Corte de Singapura, independentemente de conflitos de leis, e a BMC e o Usuário concordam com a escolha do foro da referida Corte para tais disputas; (e) Estados Unidos da América, Porto Rico ou qualquer outro protetorado dos Estados Unidos da América, Canadá ou qualquer país da América Central ou do Sul não especificamente designado acima, as leis do estado do Texas aplicar-se-ão, independentemente de conflitos de leis, e o foro será as cortes estaduais e federais localizadas na cidade de Harris, Texas, e a BMC e o Usuário concordam com a escolha do foro das referidas Cortes para tais disputas, e (f) para os países não especificados por nenhum dos foros acima, as leis da Holanda aplicar-se-ão, independentemente de conflitos de leis, e o foro será a Corte da cidade de Amsterdã, e a BMC e o Usuário concordam com a escolha do foro da referida corte para tais disputas. |
Nem a escolha de leis em qualquer jurisdição nem a convenção das Nações Unidas com relação a venda internacional de bens se aplicam a este contrato. |
(10) DIVERSOS. Após 30 (trinta) dias corridos do recebimento, pelo Usuário, da notificação escrita, a BMC poderá auditar o uso dos Produtos pelo Usuário. O Usuário deverá cooperar com a auditoria e providenciar toda a assistência razoável e acesso à informação. Dentro de 30 (trinta) dias corridos do recebimento da notificação o Usuário deverá pagar qualquer taxa não paga que tenha sido revelada pela auditoria. |
(11) AQUISIÇÕES DO GOVERNO FEDERAL DOS ESTADOS UNIDOS DA AMÉRICA. Esta cláusula aplica-se para todas as aquisições dos Produtuos sujeitas a este contrato pelo ou em nome do governo federal dos Estados Unidos da América, ou por qualquer contratante principal ou subcontratado (em qualquer nível) sob qualquer contrato, concessão, acordo de cooperação ou outra atividade com o governo federal dos Estados Unidos da América. Ao aceitar a entrega do Produto, o governo concorda que tal Produto qualifica-se como "comercial" dentro do conceito das regulamentações de aquisição aplicáveis a este contrato. Os termos e condições deste Contrato pertencerão ao governo para uso e divulgação do Produto e deverão prevalecer sobre qualquer termo ou condição contractual. Se a licença concedida por este Contrato não vier de encontro às necessidades do governo ou for inconsistente em relação a qualquer lei federal, o governo concorda em devolver o Produto, não utilizado, para a BMC. A afirmativa a seguir aplica-se somente para aquisições reguladas por DFARS Subpart 227.4 (Outubro de 1988): "Direitos Restritos – Uso, duplicação e divulgação pelo Governo estão sujeitos a restrições conforme definidas no parágrafo (c)(1)(ii) da cláusula que trata dos Direitos sobre Dados Técnicos e Programas de Computador prescrita no DFARS 252.227-7013 (Out. 1988)." |
Se você concorda, como um representante autorizado do Usuário, em aceitar os termos de licença acima em seu nome e do Usuário, e confirmar que você e o Usuário estão e permanecerão em conformidade com todos os termos e condições acima especificados, clique no botão "Eu concordo" abaixo. |
Trial Agreement
Effective April 9th 2020
DownloadTable of Contents
CONTRATO DE PRUEBA DE SOFTWARE
ESTE CONTRATO DE PRUEBA DE SOFTWARE (“CONTRATO”) ES UN ACUERDO LEGAL ENTRE EL USUARIO QUE DESCARGA EL PRODUCTO NOMBRADO EN LA SECCIÓN DE VALIDACIÓN DE EXPORTACIÓN DEL SITIO DE INTERNET DE SOPORTE DE BMC (EN WWW.BMC.COM O CUALQUIER SITIO QUE LO REMPLACE) Y QUE FORMA PARTE DE ESTE CONTRATO (“USUARIO”), Y BMC SOFTWARE DISTRIBUTION, INC. O SU AFILIADO AUTORIZADO LOCAL (“BMC”). AL PRESIONAR EL BOTÓN “ACEPTO”, USTED RECONOCE Y GARANTIZA QUE HA LEÍDO Y ENTENDIDO LOS TÉRMINOS DE ESTE CONTRATO, QUE USTED TIENE LA AUTORIDAD PARA VINCULAR AL USUARIO CON ESTE CONTRATO Y QUE EL USUARIO ESTÁ DE ACUERDO CON LAS OBLIGACIONES IMPUESTAS POR LOS TÉRMINOS Y CONDICIONES DE ESTE CONTRATO. BMC ACUERDA PERMITIRLE DESCARGAR PRODUCTOS SOLO SI Y DESPUÉS DE QUE USTED Y EL USUARIO HAYAN ACEPTADO TODOS LOS TÉRMINOS AL PRESIONAR EL BOTÓN “ACEPTO”. |
POR FAVOR LEA EL SIGUIENTE CONTRATO: SI USTED NO ENTIENDE O NO ESTA DE ACUERDO CON ALGUNO DE LOS TÉRMINOS DE ESTE CONTRATO, NO PRESIONE EL BOTÓN “ACEPTO”. |
1. TERMINOS DEFINIDOS. “Información Confidencial” significa toda la información que es información propietaria y/o información confidencial revelada al receptor (el “Receptor”) por el divulgador (el “Divulgador”) e incluye, entre otras: (i) todas y cada una de las informaciones del Divulgador relativas a su información financiera, clientes, empleados, productos o servicios, incluyendo sin limitación, el código del software, los diagramas de flujo, planos, especificaciones, planes de marketing y desarrollo, estrategias y previsiones; (ii) en relación con BMC y los Licenciantes, el Producto y cualquier software de terceros con él proporcionado; y (iii) los términos del Contrato, incluyendo sin limitación el Precio de los Productos. No será considerada Información Confidencial aquella sobre la cual el Receptor pueda demostrar que: (a) fue conocida por el Receptor de manera legal en el momento de la divulgación; (b) estaba en el dominio público en el momento en que fue revelada o pasó a estar en el dominio público sin intervención por acción u omisión del Divulgador; (c) fue puesta en conocimiento del Divulgador por un tercero que no haya incumplido este Contrato y que tuviera derecho a revelarla; o (d) fue desarrollada de manera independiente por el Receptor sin utilizar en forma alguna Información Confidencial del Divulgador. “Productos” son los productos de software o productos de hardware, su documentación relacionada e información técnica propietaria o distribuida por BMC, la cual puede accederse en el sitio de Internet de BMC EPD (www.bmc.com o cualquier sitio que lo remplace) y para el cual al Usuario se le otorgo una licencia bajo este Contrato. “Periodo de Prueba” con respecto al Producto, es el periodo de tiempo que comienza en la fecha en la que Usted descargó dicho Producto y termina en la fecha en que ocurra lo primero (a) treinta días naturales después, o (b) el número de días naturales después especificado en la llave de licencia proporcionada con el Producto. |
2. LICENCIA DE PRUEBA. BMC otorga al Usuario una licencia temporal no exclusiva, no transferible y no asignable para utilizar cada Producto en una ordenador individual por el Periodo de Prueba, únicamente para evaluar y determinar internamente si adquirirlo o licenciarlo con un coste para tal Producto y no para desarrollo, propósito comercial o de producción, o de administración de base de datos o de información productiva. El Usuario debe celebrar un contrato por separado para obtener los derechos para producción y soporte técnico para un Producto. 3. DERECHOS DE PROPIEDAD Y DEBER DE CONFIDENCIALIDAD. (a) BMC, sus Filiales o licenciantes conservan cualesquiera derechos, titularidad o interés en el Producto, su Mantenimiento y todos los derechos de propiedad relacionados incluida la propiedad intelectual y derechos de propiedad. El Producto y el software de cualquier tercero proporcionado con éste quedan protegidos por las leyes de derecho de autor (copyright), secreto comercial, industrial y cualesquiera otras de propiedad intelectual o industrial. BMC se reserva sobre el Producto todos los derechos que no hayan sido expresamente otorgados al Cliente en virtud del presente Contrato. (b) El Receptor no revelará Información Confidencial del Divulgador a ningún tercero ni usará la Información Confidencial incumpliendo el presente Contrato. El Receptor (i) pondrá el mismo nivel de cuidado y protección en relación a la Información Confidencial del Divulgador que pone respecto de su propia Información Confidencial y (ii) no copiará, divulgará distribuirá, publicará o autorizará a terceros a tener acceso a la Información Confidencial del Divulgador ya sea de forma directa o indirecta. Sin perjuicio de ello, el Receptor podrá revelar la Información Confidencial del Divulgador a sus empleados y agentes que tengan necesidad de conocer dicha Información Confidencial siempre que dichos empleados o agentes tengan en vigor obligaciones de confidencialidad al menos tan estrictas como las contempladas en el presente Contrato. (c) Obligación de notificación. En el supuesto de que el Receptor tenga conocimiento de cualquier utilización no autorizada o revelación de la Información Confidencial del Divulgador, el Receptor deberá notificar inmediatamente y de forma completa al Divulgador de todos los hechos relativos a dicha utilización no autorizada o revelación. Asimismo, en el supuesto de que se le solicite al Receptor, sus empleados o agentes (mediante interrogatorios, solicitud de información documental o por cualquier otro medio en un proceso judicial) revelar cualquier Información Confidencial, el Receptor no revelará la Información Confidencial sin antes suministrar al Divulgador una notificación de dicho requerimiento que le permita al Divulgador evitar legalmente la revelación de la Información Confidencial. En todo caso, el Receptor deberá realizar esfuerzos comercialmente razonables para preservar la confidencialidad de la Información Confidencial del Divulgador, incluyendo, sin limitación, cooperación con el Divulgador para obtener una medida cautelar o cualquier otra medida que pueda asegurar que la Información Confidencial sea tratada como tal. |
4. RESTRICCIONES DE USO. El Usuario no: (a) modificará, borrará o quitará referencias a la titularidad, marca, patente o insignia de derecho de autor (la “Identificación”) de los Productos; (b) copiará cualquier Producto o porción de cualquier Producto sin reproducir toda la Identificación en cada copia o copia parcial; (c) causará o permitirá la descompilación, desensamblaje, ingeniería inversa o cualquier otro intento de descifrar el código fuente del código ejecutable de cualquier Producto, excepto cuando sea en la medida de lo permitido expresamente por la ley aplicable y no podrá ser dejado sin efecto en virtud de acuerdo entre las partes; (d) distribuirá, alquilará, dará en comodato o sublicenciará o proporcionará el Producto a terceros ni lo utilizará en una agencia de servicios; (e) revelará los resultados de una evaluación funcional o de una prueba de rendimiento a un tercero sin el consentimiento previo por escrito de BMC; (f) intentará desactivar o burlar los mecanismos de autorización del Producto o (g) violará cualquier otra restricción de uso contenida en la Documentación. |
5. NO GARANTÍA Y LIMITACIÓN DE RESPONSABILIDAD. LOS PRODUCTOS SE PROPORCIONAN “TAL CUAL” PARA PROPÓSITOS DE EVALUACIÓN Y SIN NINGUNA GARANTÍA, INCLUIDO PERO NO LIMITADO A, NINGUNA GARANTÍA IMPLÍCITA DE AJUSTE PARA UN PROPÓSITO EN PARTICULAR O COMERCIALIZACIÓN, Y NO VIOLACIÓN O CUALQUIER OTRA GARANTÍA, YA SEA EXPRESA O IMPLÍCITA. NI BMC, NI SUS AFILIADOS, PROVEEDORES O LICENCIANTES SON RESPONSABLES POR CUALQUIER DAÑO INDIRECTO, INCIDENTAL, ESPECIAL, PUNITIVO O CONSECUENCIAL, O POR LA PÉRDIDA DE GANANCIAS, INGRESOS, INFORMACIÓN O USO DE INFORMACIÓN POR CUALQUIER CAUSA QUE RESULTE DE O EN ALGUNA MANERA EN CONEXIÓN CON EL USO DEL PRODUCTO O ESTE CONTRATO. LA RESPONSABILIDAD DE BMC, SUS AFILIADOS, PROVEEDORES Y LICENCIANTES POR DAÑOS QUE RESULTEN DEL USO DEL PRODUCTO O DE ESTE CONTRATO, YA SEA EN CONTRATO O EN UN ACTO LÍCITO, DEBE SER LIMITADA A LA CANTIDAD MÁS GRANDE PAGADA POR EL USUARIO PARA LICENCIAR EL USO DE ESE PRODUCTO O LA CANTIDAD DE $500.00 DÓLARES. EN LOS PAÍSES LISTADOS EN LA SUBSECCIÓN 9(F) ABAJO, EL LIMITE DE RESPONSABILIDAD EN ESTA SECCIÓN NO APLICARÁ SI Y EN LA MEDIDA EN QUE EL DAÑO FUERA CAUSADO POR EL ACTO INTENCIONAL O NEGLIGENCIA GRAVE DE CUALQUIERA DE LAS PARTES. 6. RESOLUCIÓN. Cualquier de las partes podrá resolver el presente Contrato notificándolo con dos semanas de antelación a la otra parte. A la resolución de este Contrato o la finalización del Periodo de Prueba, si el Usuario no ha obtenido una licencia para uso en producción para el Producto, el Usuario debe (a) cesar el uso del Producto, y (b) certificar por escrito a BMC que el Usuario ha desinstalado y destruido, o devuelto a BMC, los Productos y todas las copias de los Productos. Este requerimiento aplica a copias en cualquier forma, parcial o completa, en cualquier tipo de dispositivo o memoria de computadora y aunque esté mezclado con otros materiales. Este Contrato no crea ninguna obligación para que BMC licencie algún Producto al Usuario o para que el Usuario compre algún hardware o a licencia para los productos de BMC. Sin perjuicio de cualquier disposición en contrario contenida en la presente clausula, si el hardware estuviera incluido en el Producto, a la terminación del Periodo de Prueba el Usuario deberá adquirir el mismo o devolverlo a BMC en su packaging original dentro de los 5 dias siguientes a la resolución. |
7. PROTECCIÓN DE DATOS. BMC y el Cliente acuerdan que el Contrato de Procesamiento de Datos, copia que puede ser vista en: https://www.bmc.com/content/dam/bmc/corporate/bmcdpa.pdf, aplicará a los productos de BMC descargados, a menos que BMC y el Cliente hayan firmado un Contrato de Procesamiento de Datos con anterioridad para dichos productos, en cuyo caso, la versión firmada regirá éste Contrato. |
8. CONTROL DE EXPORTACIÓN. El Cliente declara y garantiza que: a) cumplirá con la legislación de la Administración de los Estados Unidos en relación con exportaciones y con cualquier otra regulación extranjera de exportación que sea de aplicación; b) las personas que accedan o utilicen los Productos no son nacionales de un país sujeto a embargo (en este momento Irán, Siria, Sudan, Cuba y Corea del Norte); c) no está sujeto a una prohibición para recibir los Productos de conformidad con la legislación antes mencionada; d) no adquiere los Productos con el propósito de entregárselos a una persona que se encuentre sujeta a las prohibiciones antes mencionadas; e) no utilizará los Productos de forma tal que vulnere dichas normas; f) no utilizará los Productos con fines prohibidos, incluyendo sin limitación, uso nuclear, químico, relacionado con misiles o con armas biológicas. Para los Productos que se exportan desde Irlanda, la normativa EC No. 428/2009 establece el régimen Comunitario para el control de exportaciones tecnológicas. El Cliente declara que los Productos se utilizarán únicamente con fines civiles. En consecuencia, el Cliente declara cumplir con las regulaciones de los Estados Unidos y de la Unión Europea y no exportará los Productos vulnerando dichas normas y sin las correspondientes licencias. El incumplimiento de esta cláusula hará perder al Cliente todos sus derechos en relación con los Productos. |
9. LEGISLACIÓN APLICABLE Y RESOLUCIÓN DE CONTROVERSIAS. Cualquier parte notificará a la otra, por escrito, la existencia de cualquier controversia, litigio, discrepancia, cuestión o reclamación resultante de la ejecución o interpretación de este Contrato (“Controversia”). Las partes acuerdan negociar de buena fe a fin de resolver las Controversias. Sólo en el supuesto de que la Resolución de la Controversia no se consiga mediante negociaciones llevadas a cabo de buena fe, dentro de los quince (15) días naturales desde la notificación de la misma, la Resolución de la Controversia podrá someterse a jurisdicción o arbitraje vinculante, según el lugar de constitución de las partes, como sigue: (i) Si ambas partes del Contrato son sociedades constituidas bajo las leyes de cualquier estado de los Estados Unidos de America, la Controversia deberá ser resuelta bien en la corte estatal o federal ubicada en Houston, Texas y serán de aplicación las Leyes del Estado de Texas. Ambas partes se someten a la jurisdicción exclusiva de los Tribunales de Houston, Texas y renuncian a cualquier defensa basada en la doctrina de la jurisdicción inapropiada (Forum Non Conveniens). (ii) Si ambas partes del Contrato son sociedades constituidas en países de Europa, Oriente Medio o Africa, el Arbitraje tendrá lugar en Amsterdam, Holanda bajo las entonces aplicables normas de la Camara de Comercio Internacional. Las leyes Holandesas aplicarán de manera supletoria. (iii) Si ambas partes del Contrato son sociedades constituidas en países de la región de Asia Pacifico, el Arbitraje tendrá lugar en Singapur, bajo las entonces aplicables normas del Centro de Arbitraje Internacional de Singapur. Las Leyes de Singapur aplicarán de manera supletoria. (iv) En todos los demás casos, el Arbitraje tendrá lugar en la ciudad de Nueva York, NY, bajo las entonces aplicables normas de la Asociación American de Arbitraje y aplicarán de manera supletoria las Leyes del Estado de Texas. Para todos los arbitrajes realizados en virtud de la presente clausual: (a) el arbitraje se llevará a cabo en Inglés; (b) la institución arbitral competente determinará el número de árbitros, salvo en el caso de controversias por un importe superior a 10 millones de dólares, que serán resueltas por tres árbitros, teniendo cada una de las partes derecho a nombrar a uno de ellos; (c) los costes de tal arbitraje serán cubiertos a partes iguales, a la espera de la decisión del árbitro; (d) el fallo arbitral será definitivo y vinculante para las partes, y no será objeto de apelación ante ningún tribunal y será ejecutable por cualquier tribunal que tenga jurisdicción sobre las Partes; (e) el procedimiento de arbitraje, su adjudicación y de todos los escritos serán confidenciales, salvo que se requiera la divulgación de información concreta a efectos de hacer cumplir/impugnar la adjudicación o para cumplir con requisitos de la legislación local de mercado de valores; y (f) la parte que prevalezca en el arbitraje tendrá derecho a recuperar los honorarios razonables de abogados y los gastos necesarios realizados en relación con el arbitraje. |
10. ADQUISICIONES FEDERALES DE EE.UU. Esta sección aplica solo a las adquisiciones del Producto Comercial y la Documentación sujetas a este Contrato por o en representación del Gobierno de los EE.UU., o por cualquier contratista principal o subcontratista (a cualquier nivel) bajo cualquier contrato, otorgamiento, convenio de cooperación u otra actividad con el Gobierno de los EE.UU. En el caso de que los Productos sean entregados al Gobierno de los EE.UU, el Gobierno de los EE.UU garantiza que el Producto entrará dentro de la calificación “activos comerciales”, dentro del significado del(los) reglamento(s) federal(es) de adquisición que aplican a esta adquisición. Los términos y condiciones de este Contrato aplican al uso y revelación del Producto por parte del Gobierno de los EEUU, y deben revocar cualquier término o condición con la que entre en conflicto. La siguiente declaración adicional aplica solamente a las adquisiciones regidas por la Subparte 227.4 de DFARS (Octubre de 1988): “Derechos Restringidos – Uso, duplicación y revelación por el Gobierno está sujeto a restricciones como se describen en el subpárrafo (c)(1)(ii) de la cláusula de Derechos en Información Técnica y Software de Computadora en DFARS 252.227.7013 (Octubre de 1988)”. |
11. DISPOSICIONES VARIAS. Cualquier renuncia de parte al incumplimiento de cualquier término del presente Contrato, no será interpretada en ningún caso como una renuncia de cualquier incumplimiento continuo o sucesivo. En caso de que cualquier término de este Contrato devenga inválido o no ejecutable, los términos restantes permanecerán en vigor. Las partes reconocen haber leído el presente Contrato y declaran que el mismo es una manifestación completa y exacta del acuerdo entre las mismas y sustituye cualquier acuerdo anterior entre las partes en relación con el objeto del presente Contrato. El presente Contrato no puede ser modificado salvo en virtud de documento escrito firmado por ambas partes. El Usuario no podrá ceder o transferir este Acuerdo sin el consentimiento previo por escrito de BMC. Los productos de BMC pueden contener software de terceros que se entregan al Usuario como parte del Producto, que no podrán ser sacados del Producto o utilizados independientemente del mismo y para los cuales se pueden incluir términos adicionales en la documentación. Cualquier documento presentado a un representante de BMC por el Usuario como condición para el uso del sitio web del Usuario, se regirá por el presente Contrato y en la medida en que tal documento se presente términos adicionales o conflictivos con el presente Contrato, se considerarán nulos.
Si usted acuerda, como representante autorizado del Usuario, en aceptar los términos de licencia arriba en representación de usted y el Usuario, y confirma que usted y el Usuario están en cumplimiento con y permanecerán en cumplimiento con todos los términos y condiciones descritos arriba, haga clic en el botón de “Acepto” abajo.
Effective April 9th 2020 to April 9th 2020
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CONTRATO DE PRUEBA DE SOFTWARE
ESTE CONTRATO DE PRUEBA DE SOFTWARE (“CONTRATO”) ES UN ACUERDO LEGAL ENTRE EL USUARIO QUE DESCARGA EL PRODUCTO NOMBRADO EN LA SECCIÓN DE VALIDACIÓN DE EXPORTACIÓN DEL SITIO DE INTERNET DE SOPORTE DE BMC (EN WWW.BMC.COM O CUALQUIER SITIO QUE LO REMPLACE) Y QUE FORMA PARTE DE ESTE CONTRATO (“USUARIO”), Y BMC SOFTWARE DISTRIBUTION, INC. O SU AFILIADO AUTORIZADO LOCAL (“BMC”). AL PRESIONAR EL BOTÓN “ACEPTO”, USTED RECONOCE Y GARANTIZA QUE HA LEÍDO Y ENTENDIDO LOS TÉRMINOS DE ESTE CONTRATO, QUE USTED TIENE LA AUTORIDAD PARA VINCULAR AL USUARIO CON ESTE CONTRATO Y QUE EL USUARIO ESTÁ DE ACUERDO CON LAS OBLIGACIONES IMPUESTAS POR LOS TÉRMINOS Y CONDICIONES DE ESTE CONTRATO. BMC ACUERDA PERMITIRLE DESCARGAR PRODUCTOS SOLO SI Y DESPUÉS DE QUE USTED Y EL USUARIO HAYAN ACEPTADO TODOS LOS TÉRMINOS AL PRESIONAR EL BOTÓN “ACEPTO”. |
POR FAVOR LEA EL SIGUIENTE CONTRATO: SI USTED NO ENTIENDE O NO ESTA DE ACUERDO CON ALGUNO DE LOS TÉRMINOS DE ESTE CONTRATO, NO PRESIONE EL BOTÓN “ACEPTO”. |
(1) TERMINOS DEFINIDOS. “Información Confidencial” significa toda la información que es información propietaria y/o información confidencial revelada al receptor (el “Receptor”) por el divulgador (el “Divulgador”) e incluye, entre otras: (i) todas y cada una de las informaciones del Divulgador relativas a su información financiera, clientes, empleados, productos o servicios, incluyendo sin limitación, el código del software, los diagramas de flujo, planos, especificaciones, planes de marketing y desarrollo, estrategias y previsiones; (ii) en relación con BMC y los Licenciantes, el Producto y cualquier software de terceros con él proporcionado; y (iii) los términos del Contrato, incluyendo sin limitación el Precio de los Productos. No será considerada Información Confidencial aquella sobre la cual el Receptor pueda demostrar que: (a) fue conocida por el Receptor de manera legal en el momento de la divulgación; (b) estaba en el dominio público en el momento en que fue revelada o pasó a estar en el dominio público sin intervención por acción u omisión del Divulgador; (c) fue puesta en conocimiento del Divulgador por un tercero que no haya incumplido este Contrato y que tuviera derecho a revelarla; o (d) fue desarrollada de manera independiente por el Receptor sin utilizar en forma alguna Información Confidencial del Divulgador. “Productos” son los productos de software o productos de hardware, su documentación relacionada e información técnica propietaria o distribuida por BMC, la cual puede accederse en el sitio de Internet de BMC EPD (www.bmc.com o cualquier sitio que lo remplace) y para el cual al Usuario se le otorgo una licencia bajo este Contrato. “Periodo de Prueba” con respecto al Producto, es el periodo de tiempo que comienza en la fecha en la que Usted descargó dicho Producto y termina en la fecha en que ocurra lo primero (a) treinta días naturales después, o (b) el número de días naturales después especificado en la llave de licencia proporcionada con el Producto. |
(2) LICENCIA DE PRUEBA. BMC otorga al Usuario una licencia temporal no exclusiva, no transferible y no asignable para utilizar cada Producto en una ordenador individual por el Periodo de Prueba, únicamente para evaluar y determinar internamente si adquirirlo o licenciarlo con un coste para tal Producto y no para desarrollo, propósito comercial o de producción, o de administración de base de datos o de información productiva. El Usuario debe celebrar un contrato por separado para obtener los derechos para producción y soporte técnico para un Producto. (3). DERECHOS DE PROPIEDAD Y DEBER DE CONFIDENCIALIDAD. (a) BMC, sus Filiales o licenciantes conservan cualesquiera derechos, titularidad o interés en el Producto, su Mantenimiento y todos los derechos de propiedad relacionados incluida la propiedad intelectual y derechos de propiedad. El Producto y el software de cualquier tercero proporcionado con éste quedan protegidos por las leyes de derecho de autor (copyright), secreto comercial, industrial y cualesquiera otras de propiedad intelectual o industrial. BMC se reserva sobre el Producto todos los derechos que no hayan sido expresamente otorgados al Cliente en virtud del presente Contrato. (b) El Receptor no revelará Información Confidencial del Divulgador a ningún tercero ni usará la Información Confidencial incumpliendo el presente Contrato. El Receptor (i) pondrá el mismo nivel de cuidado y protección en relación a la Información Confidencial del Divulgador que pone respecto de su propia Información Confidencial y (ii) no copiará, divulgará distribuirá, publicará o autorizará a terceros a tener acceso a la Información Confidencial del Divulgador ya sea de forma directa o indirecta. Sin perjuicio de ello, el Receptor podrá revelar la Información Confidencial del Divulgador a sus empleados y agentes que tengan necesidad de conocer dicha Información Confidencial siempre que dichos empleados o agentes tengan en vigor obligaciones de confidencialidad al menos tan estrictas como las contempladas en el presente Contrato. (c) Obligación de notificación. En el supuesto de que el Receptor tenga conocimiento de cualquier utilización no autorizada o revelación de la Información Confidencial del Divulgador, el Receptor deberá notificar inmediatamente y de forma completa al Divulgador de todos los hechos relativos a dicha utilización no autorizada o revelación. Asimismo, en el supuesto de que se le solicite al Receptor, sus empleados o agentes (mediante interrogatorios, solicitud de información documental o por cualquier otro medio en un proceso judicial) revelar cualquier Información Confidencial, el Receptor no revelará la Información Confidencial sin antes suministrar al Divulgador una notificación de dicho requerimiento que le permita al Divulgador evitar legalmente la revelación de la Información Confidencial. En todo caso, el Receptor deberá realizar esfuerzos comercialmente razonables para preservar la confidencialidad de la Información Confidencial del Divulgador, incluyendo, sin limitación, cooperación con el Divulgador para obtener una medida cautelar o cualquier otra medida que pueda asegurar que la Información Confidencial sea tratada como tal. |
(4) RESTRICCIONES DE USO. El Usuario no: (a) modificará, borrará o quitará referencias a la titularidad, marca, patente o insignia de derecho de autor (la “Identificación”) de los Productos; (b) copiará cualquier Producto o porción de cualquier Producto sin reproducir toda la Identificación en cada copia o copia parcial; (c) causará o permitirá la descompilación, desensamblaje, ingeniería inversa o cualquier otro intento de descifrar el código fuente del código ejecutable de cualquier Producto, excepto cuando sea en la medida de lo permitido expresamente por la ley aplicable y no podrá ser dejado sin efecto en virtud de acuerdo entre las partes; (d) distribuirá, alquilará, dará en comodato o sublicenciará o proporcionará el Producto a terceros ni lo utilizará en una agencia de servicios; (e) revelará los resultados de una evaluación funcional o de una prueba de rendimiento a un tercero sin el consentimiento previo por escrito de BMC; (f) intentará desactivar o burlar los mecanismos de autorización del Producto o (g) violará cualquier otra restricción de uso contenida en la Documentación. |
(5) NO GARANTÍA Y LIMITACIÓN DE RESPONSABILIDAD. LOS PRODUCTOS SE PROPORCIONAN “TAL CUAL” PARA PROPÓSITOS DE EVALUACIÓN Y SIN NINGUNA GARANTÍA, INCLUIDO PERO NO LIMITADO A, NINGUNA GARANTÍA IMPLÍCITA DE AJUSTE PARA UN PROPÓSITO EN PARTICULAR O COMERCIALIZACIÓN, Y NO VIOLACIÓN O CUALQUIER OTRA GARANTÍA, YA SEA EXPRESA O IMPLÍCITA. NI BMC, NI SUS AFILIADOS, PROVEEDORES O LICENCIANTES SON RESPONSABLES POR CUALQUIER DAÑO INDIRECTO, INCIDENTAL, ESPECIAL, PUNITIVO O CONSECUENCIAL, O POR LA PÉRDIDA DE GANANCIAS, INGRESOS, INFORMACIÓN O USO DE INFORMACIÓN POR CUALQUIER CAUSA QUE RESULTE DE O EN ALGUNA MANERA EN CONEXIÓN CON EL USO DEL PRODUCTO O ESTE CONTRATO. LA RESPONSABILIDAD DE BMC, SUS AFILIADOS, PROVEEDORES Y LICENCIANTES POR DAÑOS QUE RESULTEN DEL USO DEL PRODUCTO O DE ESTE CONTRATO, YA SEA EN CONTRATO O EN UN ACTO LÍCITO, DEBE SER LIMITADA A LA CANTIDAD MÁS GRANDE PAGADA POR EL USUARIO PARA LICENCIAR EL USO DE ESE PRODUCTO O LA CANTIDAD DE $500.00 DÓLARES. EN LOS PAÍSES LISTADOS EN LA SUBSECCIÓN 9(F) ABAJO, EL LIMITE DE RESPONSABILIDAD EN ESTA SECCIÓN NO APLICARÁ SI Y EN LA MEDIDA EN QUE EL DAÑO FUERA CAUSADO POR EL ACTO INTENCIONAL O NEGLIGENCIA GRAVE DE CUALQUIERA DE LAS PARTES. (6) RESOLUCIÓN. Cualquier de las partes podrá resolver el presente Contrato notificándolo con dos semanas de antelación a la otra parte. A la resolución de este Contrato o la finalización del Periodo de Prueba, si el Usuario no ha obtenido una licencia para uso en producción para el Producto, el Usuario debe (a) cesar el uso del Producto, y (b) certificar por escrito a BMC que el Usuario ha desinstalado y destruido, o devuelto a BMC, los Productos y todas las copias de los Productos. Este requerimiento aplica a copias en cualquier forma, parcial o completa, en cualquier tipo de dispositivo o memoria de computadora y aunque esté mezclado con otros materiales. Este Contrato no crea ninguna obligación para que BMC licencie algún Producto al Usuario o para que el Usuario compre algún hardware o a licencia para los productos de BMC. Sin perjuicio de cualquier disposición en contrario contenida en la presente clausula, si el hardware estuviera incluido en el Producto, a la terminación del Periodo de Prueba el Usuario deberá adquirir el mismo o devolverlo a BMC en su packaging original dentro de los 5 dias siguientes a la resolución. |
(7) PROTECCIÓN DE DATOS. BMC y el Cliente acuerdan que el Contrato de Procesamiento de Datos, copia que puede ser vista en: https://www.bmc.com/content/dam/bmc/corporate/bmcdpa.pdf, aplicará a los productos de BMC descargados, a menos que BMC y el Cliente hayan firmado un Contrato de Procesamiento de Datos con anterioridad para dichos productos, en cuyo caso, la versión firmada regirá éste Contrato. |
(8) CONTROL DE EXPORTACIÓN. El Cliente declara y garantiza que: a) cumplirá con la legislación de la Administración de los Estados Unidos en relación con exportaciones y con cualquier otra regulación extranjera de exportación que sea de aplicación; b) las personas que accedan o utilicen los Productos no son nacionales de un país sujeto a embargo (en este momento Irán, Siria, Sudan, Cuba y Corea del Norte); c) no está sujeto a una prohibición para recibir los Productos de conformidad con la legislación antes mencionada; d) no adquiere los Productos con el propósito de entregárselos a una persona que se encuentre sujeta a las prohibiciones antes mencionadas; e) no utilizará los Productos de forma tal que vulnere dichas normas; f) no utilizará los Productos con fines prohibidos, incluyendo sin limitación, uso nuclear, químico, relacionado con misiles o con armas biológicas. Para los Productos que se exportan desde Irlanda, la normativa EC No. 428/2009 establece el régimen Comunitario para el control de exportaciones tecnológicas. El Cliente declara que los Productos se utilizarán únicamente con fines civiles. En consecuencia, el Cliente declara cumplir con las regulaciones de los Estados Unidos y de la Unión Europea y no exportará los Productos vulnerando dichas normas y sin las correspondientes licencias. El incumplimiento de esta cláusula hará perder al Cliente todos sus derechos en relación con los Productos. |
(9) LEGISLACIÓN APLICABLE Y RESOLUCIÓN DE CONTROVERSIAS. Cualquier parte notificará a la otra, por escrito, la existencia de cualquier controversia, litigio, discrepancia, cuestión o reclamación resultante de la ejecución o interpretación de este Contrato (“Controversia”). Las partes acuerdan negociar de buena fe a fin de resolver las Controversias. Sólo en el supuesto de que la Resolución de la Controversia no se consiga mediante negociaciones llevadas a cabo de buena fe, dentro de los quince (15) días naturales desde la notificación de la misma, la Resolución de la Controversia podrá someterse a jurisdicción o arbitraje vinculante, según el lugar de constitución de las partes, como sigue: (i) Si ambas partes del Contrato son sociedades constituidas bajo las leyes de cualquier estado de los Estados Unidos de America, la Controversia deberá ser resuelta bien en la corte estatal o federal ubicada en Houston, Texas y serán de aplicación las Leyes del Estado de Texas. Ambas partes se someten a la jurisdicción exclusiva de los Tribunales de Houston, Texas y renuncian a cualquier defensa basada en la doctrina de la jurisdicción inapropiada (Forum Non Conveniens). (ii) Si ambas partes del Contrato son sociedades constituidas en países de Europa, Oriente Medio o Africa, el Arbitraje tendrá lugar en Amsterdam, Holanda bajo las entonces aplicables normas de la Camara de Comercio Internacional. Las leyes Holandesas aplicarán de manera supletoria. (iii) Si ambas partes del Contrato son sociedades constituidas en países de la región de Asia Pacifico, el Arbitraje tendrá lugar en Singapur, bajo las entonces aplicables normas del Centro de Arbitraje Internacional de Singapur. Las Leyes de Singapur aplicarán de manera supletoria. (iv) En todos los demás casos, el Arbitraje tendrá lugar en la ciudad de Nueva York, NY, bajo las entonces aplicables normas de la Asociación American de Arbitraje y aplicarán de manera supletoria las Leyes del Estado de Texas. Para todos los arbitrajes realizados en virtud de la presente clausual: (a) el arbitraje se llevará a cabo en Inglés; (b) la institución arbitral competente determinará el número de árbitros, salvo en el caso de controversias por un importe superior a 10 millones de dólares, que serán resueltas por tres árbitros, teniendo cada una de las partes derecho a nombrar a uno de ellos; (c) los costes de tal arbitraje serán cubiertos a partes iguales, a la espera de la decisión del árbitro; (d) el fallo arbitral será definitivo y vinculante para las partes, y no será objeto de apelación ante ningún tribunal y será ejecutable por cualquier tribunal que tenga jurisdicción sobre las Partes; (e) el procedimiento de arbitraje, su adjudicación y de todos los escritos serán confidenciales, salvo que se requiera la divulgación de información concreta a efectos de hacer cumplir/impugnar la adjudicación o para cumplir con requisitos de la legislación local de mercado de valores; y (f) la parte que prevalezca en el arbitraje tendrá derecho a recuperar los honorarios razonables de abogados y los gastos necesarios realizados en relación con el arbitraje. |
(10) ADQUISICIONES FEDERALES DE EE.UU. Esta sección aplica solo a las adquisiciones del Producto Comercial y la Documentación sujetas a este Contrato por o en representación del Gobierno de los EE.UU., o por cualquier contratista principal o subcontratista (a cualquier nivel) bajo cualquier contrato, otorgamiento, convenio de cooperación u otra actividad con el Gobierno de los EE.UU. En el caso de que los Productos sean entregados al Gobierno de los EE.UU, el Gobierno de los EE.UU garantiza que el Producto entrará dentro de la calificación “activos comerciales”, dentro del significado del(los) reglamento(s) federal(es) de adquisición que aplican a esta adquisición. Los términos y condiciones de este Contrato aplican al uso y revelación del Producto por parte del Gobierno de los EEUU, y deben revocar cualquier término o condición con la que entre en conflicto. La siguiente declaración adicional aplica solamente a las adquisiciones regidas por la Subparte 227.4 de DFARS (Octubre de 1988): “Derechos Restringidos – Uso, duplicación y revelación por el Gobierno está sujeto a restricciones como se describen en el subpárrafo (c)(1)(ii) de la cláusula de Derechos en Información Técnica y Software de Computadora en DFARS 252.227.7013 (Octubre de 1988)”. |
(11) DISPOSICIONES VARIAS. Cualquier renuncia de parte al incumplimiento de cualquier término del presente Contrato, no será interpretada en ningún caso como una renuncia de cualquier incumplimiento continuo o sucesivo. En caso de que cualquier término de este Contrato devenga inválido o no ejecutable, los términos restantes permanecerán en vigor. Las partes reconocen haber leído el presente Contrato y declaran que el mismo es una manifestación completa y exacta del acuerdo entre las mismas y sustituye cualquier acuerdo anterior entre las partes en relación con el objeto del presente Contrato. El presente Contrato no puede ser modificado salvo en virtud de documento escrito firmado por ambas partes. El Usuario no podrá ceder o transferir este Acuerdo sin el consentimiento previo por escrito de BMC. Los productos de BMC pueden contener software de terceros que se entregan al Usuario como parte del Producto, que no podrán ser sacados del Producto o utilizados independientemente del mismo y para los cuales se pueden incluir términos adicionales en la documentación. Cualquier documento presentado a un representante de BMC por el Usuario como condición para el uso del sitio web del Usuario, se regirá por el presente Contrato y en la medida en que tal documento se presente términos adicionales o conflictivos con el presente Contrato, se considerarán nulos.
Si usted acuerda, como representante autorizado del Usuario, en aceptar los términos de licencia arriba en representación de usted y el Usuario, y confirma que usted y el Usuario están en cumplimiento con y permanecerán en cumplimiento con todos los términos y condiciones descritos arriba, haga clic en el botón de “Acepto” abajo.
Effective April 9th 2020 to April 9th 2020
DownloadTable of Contents
ESTE CONTRATO DE PRUEBA DE SOFTWARE (“CONTRATO”) ES UN ACUERDO LEGAL ENTRE EL USUARIO QUE DESCARGA EL PRODUCTO NOMBRADO EN LA SECCIÓN DE VALIDACIÓN DE EXPORTACIÓN DEL SITIO DE INTERNET DE SOPORTE DE BMC (EN WWW.BMC.COM O CUALQUIER SITIO QUE LO REMPLACE) Y QUE FORMA PARTE DE ESTE CONTRATO (“USUARIO”), Y BMC SOFTWARE DISTRIBUTION, INC. O SU AFILIADO AUTORIZADO LOCAL (“BMC”). AL PRESIONAR EL BOTÓN “ACEPTO”, USTED RECONOCE Y GARANTIZA QUE HA LEÍDO Y ENTENDIDO LOS TÉRMINOS DE ESTE CONTRATO, QUE USTED TIENE LA AUTORIDAD PARA VINCULAR AL USUARIO CON ESTE CONTRATO Y QUE EL USUARIO ESTÁ DE ACUERDO CON LAS OBLIGACIONES IMPUESTAS POR LOS TÉRMINOS Y CONDICIONES DE ESTE CONTRATO. BMC ACUERDA PERMITIRLE DESCARGAR PRODUCTOS SOLO SI Y DESPUÉS DE QUE USTED Y EL USUARIO HAYAN ACEPTADO TODOS LOS TÉRMINOS AL PRESIONAR EL BOTÓN “ACEPTO”. |
POR FAVOR LEA EL SIGUIENTE CONTRATO: SI USTED NO ENTIENDE O NO ESTA DE ACUERDO CON ALGUNO DE LOS TÉRMINOS DE ESTE CONTRATO, NO PRESIONE EL BOTÓN “ACEPTO”. |
(1) TERMINOS DEFINIDOS. “Información Confidencial” es toda la información que es información propietaria y/o información confidencial de la parte que la revela y no incluye la información que: (a) estaba legítimamente en posesión de la parte receptora sin alguna obligación de confidencialidad antes de recibir la información de la parte reveladora; (b) es o se convierte en un tema de conocimiento público por motivo ajeno a la parte receptora; (c) es recibida legítimamente por la parte receptora de un tercero sin violación del acuerdo de confidencialidad; o (d) es desarrollada independientemente por o para la parte receptora. “Productos” son los productos de software, su documentación relacionada e información técnica propietaria o distribuida por BMC la cual puede accederse en el sitio de Internet de BMC EPD (www.bmc.com o cualquier sitio que lo remplace) y para el cual al Usuario se le otorgo una licencia bajo este Contrato. “Periodo de Prueba” con respecto al Producto, es el periodo de tiempo que comienza en la fecha en la que Usted descargó dicho Producto y termina en locura primero (a) treinta días naturales después, o (b) el número de días naturales después especificado en la llave de licencia proporcionada con el Producto. |
(2) LICENCIA DE PRUEBA. BMC otorga al Usuario una licencia temporal no exclusiva, no transferible y no asignable para utilizar cada Producto en una computadora individual por el Periodo de Prueba, únicamente para evaluar y determinar internamente si adquirir una licencia con un costo para tal Producto y no para desarrollo, propósito comercial o de producción, o de administración de base de datos o de información productiva. El Usuario debe celebrar un contrato por separado para obtener los derechos para producción y soporte técnico para un Producto. En la medida que un Producto incluya código de un tercero, si (a) dicho código de terceros es proporcionado para uso con un producto, puede ser usado con ese Producto, y (b) la documentación contiene términos que pertenezcan a dicho código de terceros, esos términos rigen el código de terceros en lugar de los términos de este Contrato. |
(3) RESTRICCIONES DE USO. El Usuario no debe: (a) quitar ninguna identificación del Producto, notas de derechos de autor o propiedad intelectual, o alguna otra restricción de propiedad de los Productos, (b) causar o permitir la descompilación, desensamble, ingeniería inversa o cualquier otro intento de descifrar el código fuente del código ejecutable de un Producto, excepto cuando sea en la medida de lo permitido expresamente por la ley aplicable o convenio no obstante esta limitante; (c) revelar los resultados de pruebas de referencia de cualquier Producto con un tercero sin el consentimiento previo por escrito de BMC, (d) duplicar, instalar y/o usar los Productos de alguna otra manera que la especificada en este Contrato, o (e) sublicenciar, modificar, ofrecer en sistema de tiempo compartido, rentar, ofrecer como servicio externo o alguna otra forma de transferencia o compartir los Productos a, o con, o permitir acceso o usar los Productos por un tercero. El Usuario no puede exportar o reexportar ningún Producto tanto sin el consentimiento previo por escrito de BMC ni sin la licencia gubernamental adecuada de EE.UU. y/o extranjera o exención de licencia. |
(4) RESOLUCIÓN. A la resolución de este Contrato o la finalización del Periodo de Prueba, si el Usuario no ha obtenido una licencia para uso en producción para el Producto, el Usuario debe (a) cesar el uso del Producto, y (b) certificar por escrito a BMC que el usuario ha desinstalado y destruido, o devuelto a BMC, los Productos y todas las copias de los Productos. Este requerimiento aplica a copias en cualquier forma, parcial o completa, en cualquier tipo de dispositivo o memoria de computadora y aunque esté mezclado con otros materiales. Este Contrato no crea ninguna obligación para que BMC licencie algún Producto al Usuario o para que el Usuario compre alguna licencia para los productos de BMC. |
(5) NO GARANTÍA Y LIMITACIÓN DE RESPONSABILIDAD. LOS PRODUCTOS SE PROPORCIONAN “TAL CUAL” PARA PROPÓSITOS DE EVALUACIÓN Y SIN NINGUNA GARANTÍA, INCLUIDO PERO NO LIMITADO A, NINGUNA GARANTÍA IMPLÍCITA DE AJUSTE PARA UN PROPÓSITO EN PARTICULAR O COMERCIALIZACIÓN, Y NO VIOLACIÓN O CUALQUIER OTRA GARANTÍA, YA SEA EXPRESA O IMPLÍCITA. NI BMC, NI SUS AFILIADOS, PROVEEDORES O LICENCIANTES SON RESPONSABLES POR CUALQUIER DAÑO INDIRECTO, INCIDENTAL, ESPECIAL, PUNITIVO O CONSECUENCIAL, O POR LA PÉRDIDA DE GANANCIAS, INGRESOS, INFORMACIÓN O USO DE INFORMACIÓN POR CUALQUIER CAUSA QUE RESULTE DE O EN ALGUNA MANERA EN CONEXIÓN CON EL USO DEL PRODUCTO O ESTE CONTRATO. LA RESPONSABILIDAD DE BMC, SUS AFILIADOS, PROVEEDORES Y LICENCIANTES POR DAÑOS QUE RESULTEN DEL USO DEL PRODUCTO O DE ESTE CONTRATO, YA SEA EN CONTRATO O EN UN ACTO LÍCITO, DEBE SER LIMITADA A LA CANTIDAD MÁS GRANDE PAGADA POR EL USUARIO PARA LICENCIAR EL USO DE ESE PRODUCTO O LA CANTIDAD DE $500.00 DÓLARES. EN LOS PAÍSES LISTADOS EN LA SUBSECCIÓN 9(F) ABAJO, EL LIMITE DE RESPONSABILIDAD EN ESTA SECCIÓN NO APLICARÁ SI Y EN LA MEDIDA EN QUE EL DAÑO FUERA CAUSADO POR EL ACTO INTENCIONAL O NEGLIGENCIA GRAVE DE CUALQUIERA DE LAS PARTES. |
(6) DERECHOS PROPIETARIOS Y CONFIDENCIALIDAD. BMC, sus afiliados y/o licenciantes, según aplique, retienen todo derecho, título e interés de los Productos y de toda propiedad intelectual y derechos de propiedad relacionados. Los Productos y cualquier software de terceros proporcionado con el Producto están protegidos por las leyes de derecho de autor, de secreto comercial, de propiedad industrial y otras leyes de propiedad intelectual que apliquen. BMC reserva cualquier derecho no otorgado expresamente al Usuario. Las partes acuerdan que los Productos son información confidencial de BMC. Una parte receptora (a) mantendrá la información Confidencial de la otra parte en confianza por cinco (5) años del último evento de (i) la fecha de revelación o (ii) del último uso del Producto y (b) solamente revelará la información Confidencial de la otra parte a empleados o agentes de la parte receptora quienes estén obligados a no revelar tal información por obligaciones legales que sean por lo menos tan protectoras como aquellas en este Contrato y quienes tengan que conocer esta información para realizar su trabajo. Nada prevendrá a ninguna de las partes de revelar los términos o precios bajo este Contrato en cualquier procedimiento legal como resultado de o en conexión con este Contrato, o revelar información a una entidad gubernamental federal o estatal, según lo requiera la ley. |
(7) LEYES DE EXPORTACIÓN. Las leyes y reglamentos de exportación de los Estados Unidos y otras leyes y reglamentos de exportación locales relevantes aplican a los Productos. La utilización por parte del Usuario de los Productos (incluyendo información técnica) se rige por, y el Usuario debe cumplir con todas las dichas leyes, incluyendo los reglamentos de “transacciones consideradas como exportaciones” y “transacciones consideradas como reexportaciones”. El Usuario acuerda que ningún Producto, información, programa y/o materiales será exportado, directa o indirectamente, en violación de estas leyes o será usado para algún propósito prohibido en estas leyes, incluyendo la proliferación de armas nucleares, químicas o biológicas, o el desarrollo de tecnología para misiles. Al presionar el botón de “Acepto” abajo es también una confirmación del acuerdo del Usuario de que el Usuario cumple, ahora y durante el periodo de prueba, con cada uno de los siguientes declaraciones:(a) El Usuario no es un ciudadano, nacional o residente de, o esta bajo el control de, el gobierno de Cuba, Irán, Sudán, Irak, Corea del Norte, Siria o algún otro país al cual Estados unidos tenga prohibido exportar; y (b) El Usuario no descargará ni de ninguna otra forma exportará o reexportará ningún Producto, directa o indirectamente, a ninguno de los países mencionados arriba, o a ciudadanos o residentes de alguno de tales países; y (c) El Usuario no aparece en las listas de Nacionales Designados Especialmente, Terroristas Designados Especialmente, Traficantes de Narcóticos Designados Especialmente por el Departamento del Tesoro de Estados Unidos o aparece en la Tabla de Órdenes Negadas del Departamento de Comercio de Estados Unidos; y (d) El Usuario no descargará ni de ninguna otra forma exportará o reexportará ningún Producto, directa o indirectamente, a ninguna persona en alguna de las listas mencionadas arriba; y (e) El Usuario no utilizará ningún Producto para, o permitirá que ningún Producto sea utilizados para ningún propósito prohibido por Estados Unidos u otra ley que aplique, incluyendo, sin limitar, el desarrollo, diseño, fabricación o producción de armas de destrucción masiva ya sean nucleares, químicas o biológicas. |
(8) CONTRATO COMPLETO. Este es el contrato completo de las partes, y revoca y reemplaza todos los contratos anteriores y contemporáneos y negociaciones con respecto a la utilización de los Productos por el Usuario en una base de prueba. Este Contrato puede ser modificado solamente por un documento escrito y firmado por las partes. El Usuario no puede asignar o transferir este Contrato sin el consentimiento previo por escrito de BMC. Ninguna falla o retraso por alguna de las partes en ejercer cualquier derecho, poder o privilegio debe operar como una renuncia, ni el ejercicio individual o parcial debe impedir ningún otro ejercicio presente o futuro o el ejercicio de cualquier derecho, poder o privilegio bajo este Contrato. |
(9) ELECCIÓN DE LEY Y JURISDICCIÓN. Si el Usuario está ubicado y usará el producto en (a) Argentina, las leyes de Argentina, sin considerar un conflicto de principios de leyes, aplicarán a este Contrato y su jurisdicción será en los Tribunales de Buenos Aires, y BMC y el Usuario acuerdan en la jurisdicción individual de dichos Tribunales para tales asuntos, (b) Brasil, las leyes de Brasil, sin considerar un conflicto de principios de leyes, aplicarán a este Contrato y su jurisdicción será en los Tribunales de San Paulo, y BMC y el Usuario acuerdan en la jurisdicción individual de dichos Tribunales para tales asuntos, (c) Estados Unidos Mexicanos, las leyes de los Estados Unidos Mexicanos, sin considerar un conflicto de principios de leyes, aplicarán a este Contrato y su jurisdicción será en los Tribunales de la Ciudad de México, y BMC y el Usuario acuerdan en la jurisdicción individual de dichos Tribunales para tales asuntos, (d) Japón, Corea del Sur, República Popular de China, las Regiones Administrativas Especiales de Hong Kong o Macau, Taiwán, Filipinas, Indonesia, Malasia, Myanmar, Singapur, Brunei, Vietnam, Camboya, Laos, Tailandia, India, Pakistán, Australia, Nueva Zelanda, Papua Nueva Guinea o cualquiera de los estados islas del Pacífico, entonces las leyes sustantivas de Singapur, sin considerar un conflicto de principios de leyes, aplicarán y su jurisdicción será en los Tribunales de Singapur, y BMC y el Usuario acuerdan en la jurisdicción personal de dichos Tribunales para tales asuntos, (e) Estados Unidos, Puerto Rico o algún otro protectorado estadounidense, Canadá, o cualquier país en América Central o América del Sur no específicamente cubierto arriba, las leyes del Estado de Texas, sin considerar un conflicto de principios de leyes, aplicarán a este Contrato y su jurisdicción será en los Tribunales federales y estatales ubicados en el Condado de Harris, Texas, y BMC y el Usuario por este medio dan su consentimiento a la jurisdicción individual de dichos Tribunales para tales asuntos, y (f) un país no cubierto por cualquiera de los anteriores, entonces las leyes de Holanda, sin considerar un conflicto de principios de leyes, aplicarán a este Contrato y su jurisdicción será en los Tribunales de Ámsterdam, y BMC y el Usuario acuerdan en la jurisdicción personal de dichos Tribunales para tales asuntos. |
La elección de reglas de ley de cualquier jurisdicción y el tratado de las Naciones Unidas en contratos para la venta internacional de bienes no aplica a este Contrato. |
(10) MISCELÁNEOS. Con un aviso por escrito de treinta (30) días naturales, BMC puede auditar la utilización de los Productos por parte del Usuario. El Usuario debe cooperar con dicha auditoria y proporcionar ayuda razonable y acceso a la información. Dentro de treinta (30) días naturales de la recepción del aviso mencionado, el usuario debe pagar cualquier tarifa no pagada revelada por la auditoria. |
(11) ADQUISICIONES FEDERALES DE EE.UU. Este Artículo aplica para todas las adquisiciones del Producto sujetas a este Contrato por o en representación del gobierno federal de EE.UU., o por cualquier contratista principal o subcontratista (a cualquier nivel) bajo cualquier contrato, otorgamiento, convenio de cooperación u otra actividad con el gobierno federal de EE.UU. Al aceptar la entrega del producto, el gobierno por este medio acuerda que el Producto califica como “comercial” dentro del significado del(los) reglamento(s) de adquisición que aplican a esta adquisición. Los términos y condiciones de este Contrato deben pertenecer para uso del gobierno y la revelación del Producto, y deben revocar cualquier término y condición con conflicto contractual. Si la licencia otorgada por este Contrato falla en cumplir las necesidades del gobierno o es inconsistente en algún respecto con la ley Federal, el gobierno acuerda a devolver el Producto, sin usar, a BMC. La siguiente declaración adicional aplica solamente a las adquisiciones regidas por la Subparte 227.4 de DFARS (Octubre de 1988): “Derechos Restringidos – Uso, duplicación y revelación por el Gobierno está sujeto a restricciones como se describen en el subpárrafo (c)(1)(ii) de la cláusula de Derechos en Información Técnica y Software de Computadora en DFARS 252.227.7013 (Octubre de 1988)”. |
Si usted acuerda, como representante autorizado del Usuario, en aceptar los términos de licencia arriba en representación de usted y el Usuario, y confirma que usted y el Usuario están en cumplimiento con y permanecerán en cumplimiento con todos los términos y condiciones descritos arriba, haga clic en el botón de “Acepto” abajo. |
BMC Collective Rewards Terms
Effective October 5th 2023
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BMC Collective Rewards Program Terms
BY CLICKING A BOX INDICATING YOUR ACCEPTANCE TO THESE BMC COLLECTIVE REWARDS PROGRAM TERMS (THE “AGREEMENT”), YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT.
This Agreement is between the entity or individual registering for the BMC Collective Rewards Program (“Participant”) and BMC Software, Inc., a Delaware corporation (“BMC”), located at 2103 CityWest Blvd., Houston, Texas 77042. This Agreement is effective as of the date Participant accepts this Agreement (the “Effective Date”).
1. ELIGIBILITY. The BMC Collective Rewards Program (“Program”) is open to Participants who are age 18 years of age or older at the time of registration. This Program is not open to: (1) employees or internally contracted vendors of BMC, its subsidiaries, or affiliates; (2) the immediate family members or members of the same household of any employee of BMC, an internally contracted vendor of BMC, and their subsidiaries or affiliates; (3) anyone professionally involved in the development or administration of this Program; (4) employees or internally contracted vendors of governments and government-affiliated companies or organizations; or (5) any employee whose employer's guidelines or regulations do not allow entry in the Program or acceptance of the rewards. This Program is not open to individuals residing outside the continent of Europe. In addition, residents of the province of Quebec in Canada, Cuba, Iran, Syria, North Korea, Myanmar (formerly Burma), and Sudan are not eligible to participate. This Program is void in these countries and where otherwise prohibited or restricted by law.
2. HOW TO PARTICIPATE. To participate in the Program, visit https://www.bmc.com/collective, (the “Website”), accurately complete the online registration form, agree to the terms and conditions of this Agreement, and follow the other instructions at the Website.
3. REWARDS. Subject to the terms and conditions of this Agreement, and once confirmed by BMC, Participants will be able to accrue “points” that can be redeemed for reward(s). Rewards will be featured at various price points and in limited quantities.
The approximate retail values of rewards are subject to change based on current market conditions at the time of reward redemption. Participants are not entitled to any surplus between actual retail value (“ARV”) of a reward and stated ARV, and any difference between stated ARV and actual value of the reward will be forfeited. No substitution, assignment, transfer, or cash redemption of any reward is allowed. BMC reserves the right to substitute a reward with different reward of equal or greater value should the advertised reward become unavailable for any reason. If applicable, rewards may be fulfilled in the form of voucher(s), coupon(s) and/or gift card(s) in BMC’s sole discretion. If a Participant is unable to participate in or accept a reward or any portion of a reward for any reason, BMC shall have no further obligation to such Participant. BMC will not replace any lost or stolen rewards after redemption by Participant. In no event will BMC be responsible for fulfilling more than the stated number of rewards. Participant acknowledges and agrees that rewards are available in limited quantities and reward type and availability and are subject to change at BMC’s sole discretion. BMC shall have no obligation or liability to Participant for any changes made to reward type or availability.
4. CONDITIONS. This Program is subject to applicable federal, state, and local laws. By participating in the Program, Participant agrees: (a) to be bound by these terms and conditions and the decisions of BMC, which shall be final and binding and (b) to waive any right to claim ambiguity in the Program or these terms and conditions, except where prohibited by law. Taxes, if any, are the sole responsibility of the Participant and Participant may be issued an IRS Form 1099 or other tax documentation for the ARV of any redeemed reward. By participating in the Program, Participant agrees to release and hold harmless BMC and its directors, employees, officers, licensees, licensors, and agents; respective advertising and Program entities; and any person or entity associated with the administration of the Program (collectively, the “Released Parties”), from and against any and all rights, claims and causes of action whatsoever that they may have, or which may arise, against any of them for any liability for any matter, cause or thing whatsoever, including but not limited to any injury, loss, damage, whether direct, compensatory, incidental, or consequential, to person, including death and damage to property, arising in whole or in part, directly or indirectly, from their acceptance, possession, use or misuse of a reward, or their participation in the Program, or their participation in any Program- or reward-related activity. Each Participant acknowledges that the Released Parties have neither made, nor are in any manner responsible or liable for, any warranty, representation, or guarantee, expressed or implied, in fact or in law, relative to any reward or the Program. Apart from any manufacturer warranties (which may not be available in all geographies), all warranties are hereby disclaimed, and each Participant will accept the reward “AS IS.” All costs and expenses, including support services, not specifically listed above as part of the reward, are solely the Participant’s responsibility.
Use of any automated entry device or software is prohibited. Creation or use of multiple accounts for registration or participation in the Program is prohibited. To the extent the Program uses or requires functionality of any third-party website (e.g., social media sites or platforms that enable broad communications, collaboration and/or posting of videos), you understand that the Program is not sponsored by such third parties and further agree to follow the policies on such website(s), as applicable. BMC reserves the right to disqualify any Participant it finds to be tampering with the reward process or the operation of the Program or violating these terms and conditions, and reserves the right to cancel the Program should it suspect fraud. This Agreement is governed by and construed under the substantive laws, without regard to conflict of laws principles, of the State of Texas and shall be tried in either state or federal court located in Houston, Texas. Both sides hereby submit to the exclusive jurisdiction of the courts in Houston, Texas and waive all defenses based on forum non conveniens. CAUTION: ANY ATTEMPT TO DELIBERATELY DAMAGE OR UNDERMINE THE LEGITIMATE OPERATION OF THE PROGRAM MAY BE IN VIOLATION OF CRIMINAL AND CIVIL LAWS AND WILL RESULT IN DISQUALIFICATION OF SUCH PERSON FROM PARTICIPATION IN THE PROGRAM. SHOULD SUCH AN ATTEMPT BE MADE, BMC RESERVES THE RIGHT TO SEEK REMEDIES AND DAMAGES (INCLUDING ATTORNEY FEES) TO THE FULLEST EXTENT OF THE LAW, INCLUDING CRIMINAL PROSECUTION.
Participant is solely responsible for compliance with any applicable laws, rules, and regulations, contractual limitations and/or office or company policies, if any, regarding Participant's participation in the Program or redemption and acceptance of Program rewards. By registering for this Program, Participant confirms that he or she is not in violation of any of the foregoing and has obtained the consent of his or her employer to participate, if applicable. If a Participant is not permitted to accept any redeemed reward, then the Participant may return such prize to BMC, and BMC will refund the cost of shipment, as appropriate.
Subject to applicable law, BMC reserves the right, in its discretion, to (a) cancel, terminate, modify, or suspend this Program and these terms and conditions, for any reason, at any time and without any liability and (b) limit or restrict participation in the Program, upon notice.
5. PUBLICITY. Participants acknowledge and agree that BMC may use the Program for publicity, advertising, or other marketing purposes in any media, and may use the reward information of Participants as part of that publicity, without additional compensation to the Participants.
6. COMPUTER, INTERNET, AND PROGRAM ADMINISTRATION. BMC is not responsible for electronic transmission errors resulting in omission, interruption, deletion, defect, delay in operations or transmission, theft or destruction or unauthorized access to or alterations of entry materials, or for technical, network, telephone equipment, electronic, computer, hardware, or software malfunctions or limitations of any kind, or inaccurate transmissions of or failure to receive entry information by BMC on account of technical problems or traffic congestion on the Internet, the Website, any other website, or any combination thereof. If for any reason the Program is not capable of running as planned, including infection by computer virus, bugs, tampering, unauthorized intervention, fraud, technical failures, or any other causes which, in BMC’s sole determination, corrupts or affects the administration, security, fairness, integrity, or proper conduct of this Program, BMC reserves the right, in its sole discretion, to cancel, terminate, modify or suspend the Program. If the Program is cancelled for any reason, notice will be posted on the Program website and the rewards may, in BMC’s discretion, be awarded to Participants who/that earned them.
No Released Parties are responsible for: (a) lost, late, misdirected, undeliverable, incomplete, or indecipherable entries due to system errors or failures, faulty transmissions, or other telecommunications malfunctions and/or entries; (b) technical failures of any kinds; (c) failures of any of the equipment or programming associated with or utilized in the Program; (d) unauthorized human and/or mechanical intervention in any part of the submission process or the Program; or (e) technical or human error which may occur in the administration of the Program or the processing of entries.
7. PRIVACY. Any personal information collected by BMC will be used for the administration of the Program and in accordance with BMC’s privacy policy at https://www.bmc.com/legal/privacy-policy.html (“Privacy Policy”). Please refer to the Privacy Policy for any questions regarding privacy matters and for important information regarding the collection, use, and disclosure of personal information by BMC.
8. CONFIDENTIAL INFORMATION. In connection with the Program, Participant may receive proprietary BMC confidential information. Participant shall hold such information as confidential and shall not use or permit others to use any proprietary information identified as such in writing or orally by BMC or information which Participant knows or has reason to know is confidential, proprietary or trade secret information of BMC.
9. FORCE MAJEURE. BMC shall not be liable for any delay or failure in performance whatsoever due to Acts of God, earthquakes, shortages of supplies, transportation difficulties, labor disputes, riots, war, fire, epidemics, and similar occurrences. The obligations and rights of BMC shall be extended on a day-to-day basis for a period equivalent to the period of the delay.
10. NO WAIVER. No waiver of rights under this Agreement by either party shall constitute a waiver of this or any other right under this Agreement.
11. SEVERABILITY. If any term of this Agreement becomes or is declared illegal by any court of competent jurisdiction, such term shall be null and void and shall be deemed deleted from this Agreement. All remaining terms of this Agreement shall remain in full force and effect.
12. SURVIVAL. Sections 3, 4, 6, 7, 8, 10, 11, and 12 shall survive the termination or expiration of this Agreement.
13. NO AGENCY. Neither party has the right or authority to, and shall not, assume or create any obligation of any nature whatsoever on behalf of the other party or bind the other party in any respect whatsoever.
14. ENTIRE AGREEMENT. This Agreement is the entire agreement between the parties hereto concerning the subject matter hereof and replaces any prior oral or written communications between the parties.
YOU AGREE THAT YOU HAVE READ THIS AGREEMENT AND INTEND TO BE BOUND, AS IF YOU HAD SIGNED THIS AGREEMENT IN WRITING. IF YOU ARE ACTING ON BEHALF OF AN ENTITY, YOU WARRANT THAT YOU HAVE THE AUTHORITY TO ACCEPT THE TERMS OF THIS AGREEMENT FOR SUCH ENTITY.
Effective September 28th 2023 to October 5th 2023
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