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. BMC 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 BMC Products are and contain valuable confidential information of BMC
("Confidential Information"). Confidential Information means non-public technical and non-technical information relating to the BMC 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 Software within a reasonable period of time, or if BMC cannot remedy or replace such defective copy of the Software, then BMC shall
refund the amount paid by You for the License for that Software. BMC’s obligations in this section are conditioned upon Your providing BMC
prompt access to the affected Software and full cooperation in resolving the claim.
DISCLAIMER. EXCEPT FOR THE EXPRESS WARRANTIES ABOVE, THE PRODUCT IS PROVIDED "AS IS." BMC, ITS AFFILIATES AND
LICENSORS SPECIFICALLY 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 SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT ALL DEFECTS CAN BE CORRECTED.
DISCLAIMER OF DAMAGES. IN NO EVENT IS BMC, ITS AFFILIATES OR LICENSORS LIABLE FOR ANY SPECIAL, INDIRECT,
INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES RELATING TO OR ARISING OUT OF THIS AGREEMENT, SUPPORT, AND/OR
THE PRODUCT (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST COMPUTER USAGE TIME, AND DAMAGE OR LOSS OF USE
OF DATA), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND IRRESPECTIVE OF ANY NEGLIGENCE OF BMC OR
WHETHER SUCH DAMAGES RESULT FROM A CLAIM ARISING UNDER TORT OR CONTRACT LAW.
LIMITS ON LIABILITY. BMC’S AGGREGATE LIABILITY FOR DAMAGES IS LIMITED TO THE AMOUNT PAID BY YOU FOR THE LICENSE
TO THE PRODUCT.
SUPPORT. If Your order includes support for the Software, then BMC agrees to provide support (24 hours a day/7 days a week) ("Support"). You
will be automatically re-enrolled in Support on an annual basis unless BMC receives notice of termination from You as provided below. There is a
free support period during the one year warranty period.
(a) Support Terms. BMC agrees to make commercially reasonable efforts to provide the following Support: (i) For malfunctions of supported
versions of the Software, BMC provides bug fixes, patches or workarounds in order to cause that copy of the Software to operate in substantial
conformity with its then-current operating specifications; and (ii) BMC provides new releases or versions, so long as such new releases or versions
are furnished by BMC to all other enrolled Support customers without additional charge. BMC may refuse to provide Support for any versions or
releases of the Software other than the most recent version or release of such Software made available by BMC. Either party may terminate Your
enrollment in Support upon providing notice to the other at least 30 days prior to the next applicable Support anniversary date. If You re-enroll in
Support, BMC may charge You a reinstatement fee of 1.5 times what You would have paid if You were enrolled in Support during that time period.
(b) Fees. The annual fee for Support is 20% of the Software’s list price less the applicable discount or a flat capacity based annual fee. BMC may
change its prices for the Software and/or Support upon at least 30 days notice prior to Your support anniversary date.
VERIFICATION. If requested by BMC, You agree to deliver to BMC periodic written reports, whether generated manually or electronically, detailing
Your use of the Software in accordance with this Agreement, including, without limitation, the License Capacity. BMC may, at its expense, audit
Your use of the Software to confirm Your compliance with the Agreement. If an audit reveals that You have underpaid fees, You agree to pay such
underpaid fees. If the underpaid fees exceed 5% of the fees paid, then You agree to also pay BMC’s reasonable costs of conducting the audit.
EXPORT CONTROLS. You agree not to import, export, re-export, or transfer, directly or indirectly, any part of the Product or any underlying
information or technology except in full compliance with all United States, foreign and other applicable laws and regulations.
GOVERNING LAW. This Agreement is governed by the substantive laws in force, without regard to conflict of laws principles: (a) in the State of
New York, if you acquired the License in the United States, Puerto Rico, or any country in Central or South America; (b) in the Province of Ontario,
if you acquired the License in Canada (subsections (a) and (b) collectively referred to as the "Americas Region"); (c) in Singapore, if you acquired
the License in Japan, South Korea, Peoples Republic of China, Special Administrative Region of Hong Kong, Republic of China, Philippines,
Indonesia, Malaysia, Singapore, India, Australia, New Zealand, or Thailand (collectively, "Asia Pacific Region"); or (d) in the Netherlands, if you
acquired the License in any other country not described above. The United Nations Convention on Contracts for the International Sale of Goods is
specifically disclaimed in its entirety.
ARBITRATION. ANY DISPUTE BETWEEN YOU AND BMC ARISING OUT OF THIS AGREEMENT OR THE BREACH OR ALLEGED BREACH,
SHALL BE DETERMINED BY BINDING ARBITRATION CONDUCTED IN ENGLISH. IF THE DISPUTE IS INITIATED IN THE AMERICAS
REGION, THE ARBITRATION SHALL BE HELD IN NEW YORK, U.S.A., UNDER THE CURRENT COMMERCIAL OR INTERNATIONAL, AS
APPLICABLE, RULES OF THE AMERICAN ARBITRATION ASSOCIATION. IF THE DISPUTE IS INITIATED IN A COUNTRY IN THE ASIA
PACIFIC REGION, THE ARBITRATION SHALL BE HELD IN SINGAPORE, SINGAPORE UNDER THE CURRENT UNCITRAL ARBITRATION
RULES. IF THE DISPUTE IS INITIATED IN A COUNTRY OUTSIDE OF THE AMERICAS REGION OR ASIA PACIFIC REGION, THE
ARBITRATION SHALL BE HELD IN AMSTERDAM, NETHERLANDS UNDER THE CURRENT UNCITRAL ARBITRATION RULES. THE
COSTS OF THE ARBITRATION SHALL BE BORNE EQUALLY PENDING THE ARBITRATOR’S AWARD. THE AWARD RENDERED SHALL
BE FINAL AND BINDING UPON THE PARTIES AND SHALL NOT BE SUBJECT TO APPEAL TO ANY COURT, AND MAY BE ENFORCED IN
ANY COURT OF COMPETENT JURISDICTION. NOTHING IN THIS AGREEMENT SHALL BE DEEMED AS PREVENTING EITHER PARTY
FROM SEEKING INJUNCTIVE RELIEF FROM ANY COURT HAVING JURISDICTION OVER THE PARTIES AND THE SUBJECT MATTER OF
THE DISPUTE AS NECESSARY TO PROTECT EITHER PARTY’S CONFIDENTIAL INFORMATION, OWNERSHIP, OR ANY OTHER
