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, perform an audit, at
your facilities, of 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 Click EULA 071102
