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 PROPRIETARY RIGHTS. ALL ARBITRATION PROCEEDINGS SHALL BE CONDUCTED IN CONFIDENCE, AND THE
PARTY PREVAILING IN ARBITRATION SHALL BE ENTITLED TO RECOVER ITS REASONABLE ATTORNEYS’ FEES AND
NECESSARY COSTS INCURRED RELATED THERETO FROM THE OTHER PARTY.
U.S. GOVERNMENT RESTRICTED RIGHTS. The Software under this Agreement is "commercial computer software" as that term is
described in 48 C.F.R. 252.227-7014(a)(1). If acquired by or on behalf of a civilian agency, the U.S. Government acquires this
commercial computer software and/or commercial computer software documentation subject to the terms of this Agreement as
specified in 48 C.F.R. 12.212 (Computer Software) and 12.211 (Technical Data) of the Federal Acquisition Regulations ("FAR") and its
successors. If acquired by or on behalf of any agency within the Department of Defense ("DOD"), the U.S. Government acquires this
commercial computer software and/or commercial computer software documentation subject to the terms of this Agreement as
specified in 48 C.F.R. 227.7202 of the DOD FAR Supplement and its successors.
MISCELLANEOUS TERMS. You agree to pay BMC all amounts owed no later than 30 days from the date of the applicable invoice,
unless otherwise provided on the order for the License to the Products. You will pay, or reimburse BMC, for taxes of any kind, including
sales, use, duty, tariffs, customs, withholding, property, value-added (VAT), and other similar federal, state or local taxes (other than
taxes based on BMC’s net income) imposed in connection with the Product and/or the Support. This Agreement constitutes the entire
agreement between You and BMC and supersedes any prior or contemporaneous negotiations or agreements, whether oral, written or
displayed electronically, concerning the Product and related subject matter. No modification or waiver of any provision hereof will be
effective unless made in a writing signed by both BMC and You. You may not assign or transfer this Agreement or a License to a third
party without BMC’s prior written consent. Should any provision of this Agreement be invalid or unenforceable, the remainder of the
provisions will remain in effect. 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.
SW EULA Int 030102
