END USER LICENSE AGREEMENT
NOTICE
BY OPENING THE PACKAGE, 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, AND IF YOU
ACQUIRED THE LICENSE WITHIN 30 DAYS OF THE DATE OF YOUR ORDER CONTACT BMC OR YOUR BMC RESELLER FOR A REFUND OF
LICENSE FEES PAID. 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 (“You”) and BMC Software Distribution, Inc., a Delaware
corporation located at 2101 CityWest Blvd., Houston, Texas, 77042, USA or its affiliated local licensing entity (“BMC”). “You” includes you and your
Affiliates. “Affiliate” is defined as an entity which controls, is controlled by or shares common control with a party. IF MORE THAN ONE LICENSE
AGREEMENT COULD APPLY TO THE PRODUCT, THE FOLLOWING ORDER OF LICENSE AGREEMENT PRECEDENCE APPLIES: (1) WEB BASED
LICENSE AGREEMENT WITH BMC, (2) WRITTEN LICENSE AGREEMENT WITH BMC, (3) SHRINK-WRAP LICENSE AGREEMENT WITH BMC
PROVIDED WITH THE PRODUCT, AND (4) THIS ELECTRONIC LICENSE AGREEMENT WITH BMC. In addition to the restrictions imposed under this
Agreement, any other usage restrictions contained in the Product installation instructions or release notes shall apply to Your use of the Product.
PRODUCT AND CAPACITY. “Software” means the object code version of the computer programs provided, via delivery or electronic transmission, to You.
Software includes computer files, enhancements, maintenance modifications, upgrades, updates, bug fixes, and error corrections.
“Documentation” means all written or graphical material provided by BMC in any medium, including any technical specifications, relating to the
functionality or operation of the Software.
“Product” means the Software and Documentation.
“License Capacity” means the licensed capacity for the Software with the pricing and other license defining terms, including capacity restrictions, such as tier
limit, total allowed users, gigabyte limit, quantity of Software, and/or other capacity limitations regarding the Software. For licenses based on the power of a
computer, You agree to use BMC's current computer classification scheme, which is available at http://www.bmc.com or can be provided to You upon
request.
ACCEPTANCE. The Product is deemed accepted by You, on the date that You received the Product from BMC.
LICENSE. Subject to the terms of this Agreement, as well as Your payment of applicable fees, BMC grants You a non-exclusive, non-transferable, perpetual
(unless a term license is provided on an order) license for each copy of the Software, up to the License Capacity, to do the following:
A. install the Software on Your owned or leased hardware located at a facility owned or controlled by You in the country where You acquired the license;
B. operate the Software solely for processing Your own data in Your business operations; and
C. make one copy of the Software for backup and archival purposes only (collectively a “License”).
If the Software is designed by BMC to permit you to modify such Software, then you agree to only use such modifications or new software programs for Your
internal purposes or otherwise consistent with the License. BMC grants You a license to use the Documentation solely for Your internal use in Your
operations.
LICENSE UPGRADES. You may expand the scope of the License Capacity only pursuant to a separate agreement with BMC for such expanded usage and
Your payment of applicable fees. There is no additional warranty period or free support period for license upgrades.
RESTRICTIONS: You agree to NOT:
A. disassemble, reverse engineer, decompile or otherwise attempt to derive any Software from executable code;
B. distribute or provide the Software to any third party (including without limitation, use in a service bureau, outsourcing environment, or processing the
data of third parties, or for rental, lease, or sublicense); or
C. provide a third party with the results of any functional evaluation or benchmarking or performance tests, without BMC's prior written approval, unless
prohibited by local law.
TRIAL LICENSE. If, as part of the ordering process, the Product is provided on a trial basis, then these terms apply: (i) this license consists solely of a non-
exclusive, non-transferable evaluation license to operate the Software for the period of time specified from BMC or, if not specified, a 30 day time period
(“Trial Period”) only for evaluating whether You desire to acquire a capacity-based license to the Product for a fee; and (ii) Your use of the Product is on an AS
IS basis without any warranty, and BMC, ITS AFFILIATES AND RESELLERS, AND LICENSORS DISCLAIM ANY AND ALL WARRANTIES
(INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND
NON-INFRINGEMENT) AND HAVE NO LIABILITY WHATSOEVER RESULTING FROM THE USE OF THIS PRODUCT UNDER THIS TRIAL
LICENSE (“Trial License”). BMC may terminate for its convenience a Trial License upon notice to You. When the Trial Period ends, Your right to use this
Product automatically expires. If You want to continue Your use of the Product beyond the Trial Period, contact BMC to acquire a capacity-based license to
the Product for a fee.
TERMINATION. This Agreement shall immediately terminate if You breach any of its terms. Upon termination, for any reason, You must uninstall the
Software, and either certify the destruction of the Product or return it to BMC.
OWNERSHIP OF THE PRODUCT. BMC or its Affiliates or licensors retain all right, title and interest to and in the BMC Product and all intellectual property,
informational, industrial property and proprietary rights therein. BMC neither grants nor otherwise transfers any rights of ownership in the BMC Product to
You. Products are protected by applicable copyright, trade secret, and industrial and intellectual property laws. BMC reserves any rights not expressly
granted to You herein.
CONFIDENTIAL AND PROPRIETARY INFORMATION. The Products are and contain valuable confidential information of BMC (“Confidential
Information”). Confidential Information means non-public technical and non-technical information relating to the Products and Support, including, without
limitation, trade secret and proprietary information, and the structure and organization of the Software. You may not disclose the Confidential Information to
third parties. You agree to use all reasonable efforts to prevent the unauthorized use, copying, publication or dissemination of the Product.
WARRANTY. Except for a Trial License, BMC warrants that the Software will perform in substantial accordance with the Documentation for a period of one
year from the date of the order. This warranty shall not apply to any problems caused by software or hardware not supplied by BMC or to any misuse of the
Software.
EXCLUSIVE REMEDY. BMC’s entire liability, and Your exclusive remedy, for any defect in the Software during the warranty period or breach of the
warranty above shall be limited to the following: BMC shall use reasonable efforts to remedy defects covered by the warranty or replace the defective
