By subscribing to and/or using any of the Service, Customer agrees to be bound by this Agreement, including any modification made to it from time to time. If Customer does not agree to the terms and conditions in this Agreement, it MAY NOT SUBSCRIBE TO OR USE THE SERVICES.
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DEFINITIONS
1.1 "Affiliate" is an entity that controls, is controlled by or shares common control with 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 "Agreement" means these Terms and Conditions and any Specification referencing these Terms and Conditions, and any other schedules, exhibits or appendices thereto, whether attached or incorporated by reference.
1.3 "Customer Data” means all electronic data or information submitted by Customer to the BMC Subscription Services.
1.4 "Documentation" means Licensor's documentation which is delivered or made available to Customer as part of the Service under this Agreement.
1.5 "Named User" means any users licensed under this Agreement and authorized by Customer to access and use the Service.
1.6 “Software” means the Licensor’s software that Customer has selected for use as set forth in specification to this Agreement, and includes any and all updates as well as modofications to such software application, underlying technology or content as may be provided by Licensor via the Website.
1.7 “
Website” means content and functionality currently located at the domain
www.bpmonline.com on the Internet, or any successor or related domain that provides access to the Software.
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USE RIGHTS AND LIMITATIONS
2.1 Subject to the terms of his Agreement, Lecensor hereby grants to Customer a nonexclusive, limited, none-transferable license to acess and use the Software on conditions prescribed by the present Agreement and Specifications thereto, which constitute an itergial part thereof.
2.2 This license is a worldwide license.
2.3 Licensor grants the right to use the Software by providing remote access to it via Licensor’s web-site located at
www.bpmonline.com. The number of Named Users allowed to use the software is prescribed by the relevant Specification hereto.
2.4 Licensor will comply with the then-current SLA in place relating to the Services.
2.5 Documentation which is made avaliable to Customer as part of the Software is licensed for internal use only.
2.6 The Software is protected under international agreements on copy right and other rights of intellectual property. Licensor exclusively owns all intellectual property rights regarding the Software. Licensor reserves all rights not expressly granted to Customer under this Agreement.
2.7 The license applies to all further upgrades and modofications of the Software, which may be developed by the Licensor and made available to the Customer.
2.8 Customer shall use the Software only for its internal commercial purposes. Customer shall not license, sell, lease, rent, outsource, or directly or indirectly transfer or distribute the Software or otherwise make avaliable the Software to any third party, other than its Named Users. Customer shall be responsible for the acts and omissions of Named Users as if they were the acts or omissions of Customer.
2.9 Licensor shall take all reasonable efforts to provide physical and technical security of Customer’s data such as enscription, password protection and firewall protection. However, Licensor does not control the transfer of data, including but not limited to Customer’s data over telecommunications facilities, including the Internet, and Licensor does not warrant secure operation of the Software.
2.10 Licensor is not allowed to modify Customer’s data (save as Licensor provides technical support service, upgrade or similar services) or to provide it to any third party.
2.11 Licensor is not liable for any unauthorized access to the Software, including without limitation access caused by Customer’s failure to prevent disclosure of login or/and passwords of his Named Users.
2.12 Customer shall be responsible for complaying with applicable law when using the Software. Customer shall be responsible for the submitted or posted content via the web-site of Licensor.
2.13 Customer shall not damage, disable, overburden or by any other mean to impair the networks or servers where the Software is installed. Otherwise, Lecensee shall pay damages caused by aforesaid actions and Licensor is entitled to suspend this Agreement unless Lecensee ceases such and pays the damages.
2.14 Customer shall not modify, create derivative works from, revers engineer, decompile or disassemble or otherwise attempt to discover any technology contained in the Software, exept and only to the extent that the applicable law expressly permits Customer to do so despite this limitation.
2.15 Customer is solely responsible for maintaining and backing up any data that it uses with the Software.
2.16 Licensor shall be entitled to monitor Customer's compliance with the terms of this Agreement, including but not limited the number of Named Users accessing the Service.
2.17 The Site may contain links to external Websites and information provided on such external websites by third-party. Licensor shall not be responsible for the contents of any linked Website, or any changes or updates to such sites. Customer further agrees that Licensor shall not be directly or indirectly responsible or liable for any damage or loss caused or alleged to be caused by or in connection with Customer's use of or reliance on any content, goods or services available on or through any such linked Web site. Any article, information, data, code, text, software, documentation, graphics, image, marketing material, video, photograph, message, or posting to any forum, wiki, or blog on the Site, whether publicly posted or privately transmitted, is the sole responsibility of the person or entity providing the content.
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PAYMENT TERMS
3.1 Customer shall pay to Licensor the fees for the Service provided hereunder, in the amount as set forth in the applicable Order Form, within ten (10) days of the date of invoice.
3.2 Customer shall have no right to reduce the number of Named Users set forth in the relevant Order Form.
3.3 Customer shall have no right to withhold or reduce fees under this Agreement or set off any amount against fees owed for alleged defects in the Service.
3.4 Customer shall pay all applicable bank fees or taxes needed to effect payment under the present Agreement.
3.5 Date of payment shall be the date when the amount of fees due are transferred to Licenor’s bank account.
3.6 Licensor shall make the Software available to Customer by providing Customer with login and password information necessary to access the Software not latter than 3 (three) days upon the date of payment.
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CONFIDENTIALITY
4.1 Under no circumstances may either Party disclose any Confidential information as defined in para. 5.2. below to any third party. Each Party shall take all reasonable steps to keep all Confidential information strictly confidential and use the same degree of care to protect disclosing Party’s Confidential information as it uses to protect its own Confidential information of like nature, but in no circumstances less than reasonable care.
4.2 As Confidential information, the Parties consider information being in their possession, use or disposal (hereinafter refered to as – the “Confidential Information”), including but not limited to:
- technical information, know-how, processes, discoveries, researches, designs, drawings, design tolerances, operational data, electronic files and data compilations, service techniques, service documentation, production methods, computer architectures and computer software;
- business information, expenses, profits and financial data, names of suppliers, contacts and customer lists, pricing procedure, sales strategy, marketing plans, survey data, the names, telephone numbers, addresses, locations;
- other commercial or financial information relating to current activity and future plans, both already received and to be further received in any form;
- technical specifications;
- experimental information;
4.3 Confidential information shall not include the following information, which:
- is publicly known at the time of its disclosure;
- comes into the public domain after being disclosed through no fault of the Party receiving information;
- is received by the Party from any third party without an obligation of confidentiality provided that such Party may prove such receipt;
- is disclosed upon prior written consent of the other Party.
4.4 Employees of each Party are personally liable for breach of Confidentional information provisions according to applicable law. The Parties shall notify their employees, who have access to Confidential information, of personal liability for its disclosure.
4.5 Information as to conclusion of the present Agreement shall not be deemed confidential. The Parties may use each other logotype only in publications in mass or on the Websites of the Parties. Such publications do not confer any additional obligations upon the Parties.
4.6 Confidentiality provisions set forth in this Agreement shall survive 5 years upon expiration or termination of this Agreement.
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TERM AND TERMINATION
5.1 The present Agreement comes into force upon Customer’s acceptance thereof.
5.2 Should Licensor breach any provision of this Agreement and such breach is not caused by Customer’s breach, Customer may terminate this Agreement upon prior written notice to Licensor in the event Licensor fails to cure such breach within 20 (twenty) business days after such notification. Upon termination of this Agreement Licensor shall refund fees paid by Customer in the amount proportionally to unused period under relevant Order Form.
5.3 Should Customer breach any provision of this Agreement and such breach is not caused by Licensor’s breach, Llicensor may terminate this Agreement upon prior written notice to Customer in the event Customer fails to cure such breach within 20 (twenty) business days after such notification. Upon termination of this Agreement Licensor shall not refund any fees paid by Customer hereunder.
5.4 Upon expiration or termination of the present Agreement by either Party for any reason, Licensor will immediately terminate the access to the Software and may delete Customer’s data from its servers if the Parties do not agree to renew this Agreement. Notwithstanding the foregoing, Licensor will keep Customer’s data for a period of 30 (thirty) days before it is deleted. Customer is solely responsible for taking the necessary steps to back up uts data.
5.5 Customer acknowledges that, other than expressly described in these terms, Licensor will have no obligation to continue to hold, export or return Customer’s data. Customer acknowledges that Licensor will have no liability whatsoever for deletion of Customer’s data pursuant ot these terms.
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LIMITED WARRANTY AND LIABILITY
6.1 Licensor shall provide Customer with technical support of the Software pursuant to SLA hereto.
6.2 Limited warranty. The Software is provided to Customer under this Agreement on an “AS IS” basis. Customer accepts all risk associated with using the Software. Licensor does not provide any express or implied guarantees. Licensor specifically disclaims all implied warranties of merchantability or results to be derived from the use of the Software, or fitness for a particular purpose and noninfringement.
6.3 Licensor provides Customer with access to and right to use the Software through the Internet to the extent commercially reasonable, and subject to outages, communication and data flow failures, interruptions and delays inherent in Internet communications. Customer recognizes that problems with the Internet, including equipment, software and network failures, impairments or congestions, or the configuration of Customer’s computer systems, may prevent, interrupt or delay access to the Software and/or the Website. Licensor is not liable for any delays, interruptions, suspensions or unavailability of the Software and/or the Website attributable to problems with the Internet or the configuration of Customer’s computer systems.
6.4 Limitation of liability. Customer agrees that Licensor shall, in no event, be liable for any consequential, incidental, indirect, special, punitive, or other loss or damage whatsoever or for loss of business profits, business interruption, computer failure, loss of business information, or other loss arising out of or caused by Customer’s use of or inability to use the Software, even if Licensor has been advised of the possibility of such damage. Customer’s sole and exclusive remedy for any dispute with Licensor related to the Software shall be termination of such service. In no event shall Licensor’s entire liability to Customer in respect of the Software, whether direct or indirect, exceed the fees paid by it towards such Software.
6.5 Any dispute, controversy or claim arising out of or in connection with this Agreement, or the breach, termination or invalidity thereof, shall be settled between Licensor and Customer by negotiations within 30 (thirty) days. If the Parties fail to reach an agreement the dispute shall be submmited to court according to applicable law.
6.6 Licensor may provide links to other Web sites or resources over which it does not have control ("External Web Sites"). Such links do not constitute an endorsement by Licensor of those External Web Sites. Customer acknowledges that Licensor is providing these links only as a convenience, and further agree that Licensor is not responsible for the content of such External Web Sites. Use of External Web Sites is subject to the terms of use and privacy policies located on such External Web Sites.
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FORCE-MAJEURE
7.1 Neither party shall be liable to the other for its failure to perform any of its obligations hereunder during any period in which such performance is delayed by circumstances beyond its reasonable control, including, but not limited to fire, flood, war, embargo, strike, riot, earthquake, terrorism (including cyber terrorism), acts or omissions of Internet traffic carriers or acts or omissions of any governmental authority that impact the ability to perform obligations hereunder.
7.2 If such delaying cause shall continue for more than ninety (90) days, each of the parties has the right to rescind the Agreement and is not liable to the other party. The reasonable proof for force majeure circumstances is a document that confirms the existence of such circumstances issued by the relevant Authority.
7.3 This section will not, however, apply to Customer’s payment obligations under this Agreement.
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GENERAL PROVISIONS
8.1 These terms comprise the entire Agreement between the Parties and supersede all prior or contemporaneous negotiations, discussions or agreements, if any, between the Parties regarding the subject matter contained herein.
8.2 Except as otherwise specified in this Agreement, all notices and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, (ii) the second business day after mailing, (iii) the second business day after sending by confirmed facsimile, or (iv) the first business day after sending by email provided that email shall not be sufficient for notices of termination.
8.3 If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
8.4 This Agreement shall be governed by the law of Great Britain.
8.5 Neither Party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety, without consent of the other party, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party.
8.6 If either party should waive any breach of any provision of this Agreement, it shall not thereby be deemed to have waived any preceding or succeeding breach of the same or any other provision hereof.
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