BMC COMMUNITIES TERMS OF USE (“TERMS”)

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    If You are an employee of a company, including an employee of BMC Software, You are required to send these Terms to Your Legal Department to seek advice about how to comply with these Terms, to advise You, and to obtain Your management’s approval prior to contributing any code or technology under these Terms. BMC employees on the BMC Communities site are also subject to BMC’s Social Media & Networking Policy.

     

    PLEASE READ THESE TERMS. THEY WILL BECOME A LEGAL AGREEMENT BETWEEN YOU AND YOUR EMPLOYER ON ONE SIDE, AND BMC SOFTWARE, INC. AND ITS WORLDWIDE AFFILIATES ("BMC") ON THE OTHER SIDE. YOUR ACCESS OR USE OF ANY MATERIALS (AS DEFINED BELOW) ON THE BMC COMMUNITIES WEBSITE MEANS YOU ACCEPT ALL THE TERMS.

     

    ABOUT THE BMC COMMUNITIES WEB SITE (the “BMCC”). The BMCC contains a variety of resources, including i) forums, blogs, bulletin boards, or similar online communications venues ; (ii) applications, utilities, source samples, software developer kits, and technical documentation (the "Software"); (iii) articles, podcasts, marketing collateral, and training material (the "Documents"), (iv) scripts, connector templates, snippets, and other code (“Modifiable Code”), and (v)  updates, enhancements, and new features for these (the Software, Documents and Modifiable Code - minus Ideas - are collectively referred to as "Materials" in these Terms. Not included in Materials are “Ideas,” which are defined and provided for in paragraph 7 of these Terms).

     

    SCOPE OF AGREEMENT. These Terms govern Your access to and use of the Materials.

     

    1. RESERVATION OF RIGHT. BMC reserves the right to change, delete or add posted Materials at any time and at its sole discretion.

     

    2. LICENSE GRANT.  Posting or uploading Materials to the BMCC makes You an Original Contributor. Original Contributors grant all users of the Materials rights under the below BSD-type license. If You modify posted Materials in any way, You are a Contributor and must post the modified Materials on the BMCC and license them to other users under the BSD-type license below. Such modified Materials become the property of the Original Contributor:

     

    MATERIALS BSD LICENSE. As an Original Contributor, You must insert the year of creation and Your name in the copyright statement below. If you modify a posted contribution, you must keep the Original Contributor’s name and the original date in the copyright statement below, and follow the original date with a comma and and the year you post your modified version.

     

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    Copyright (c) <YEAR>, <OWNER>

     

    All rights reserved.

     

    Redistribution and use in source and binary forms, with or without modification, are permitted provided that the following conditions are met:

     

    Redistributions of source code must retain the above copyright notice, this list of conditions and the following disclaimer.

     

    Redistributions in binary form must reproduce the above copyright notice, this list of conditions and the following disclaimer in the documentation and/or other Materials provided with the distribution.

     

    THIS SOFTWARE IS PROVIDED BY THE COPYRIGHT HOLDERS AND CONTRIBUTORS “AS IS,” AND ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE DISCLAIMED. IN NO EVENT SHALL THE COPYRIGHT HOLDER, CONTRIBUTORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; LOSS OF USE, DATA, OR PROFITS; OR BUSINESS INTERRUPTION) HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) ARISING IN ANY WAY OUT OF THE USE OF THIS SOFTWARE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.

     

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    3. COPYRIGHT.  All Materials are the copyrighted property of the Original Contributor.

     

    4. SOFTWARE ON THE BMCC.  Before using or downloading Materials from the BMCC, You must agree to these Terms. Upon using the Materials You are bound by these Terms, and You may use the Materials only as granted above. You agree that BMC makes no assurances as to accuracy or results or output that derives from Your use of the Materials.

     

    5. THE BMCC. You agree to the following with regard to Your use of the BMCC: (a) You will not use the BMCC under an anonymous or false name, and You will not permit any other person to access the BMCC under Your name or using an anonymous or false name; (b) You will not post or transmit to or from the BMCC any content that i) is libelous, defamatory, obscene, pornographic, threatening, or abusive, (ii) violates any law, including without limitation, laws governing copyright or trademark infringement and data privacy, (iii) violates or infringes upon the rights of a third party or otherwise harms any third party, (iv) is offensive or objectionable to BMC, BMCC participants, or any third party, or (v) the export or re-export of which requires a license or license exception from the United States government or any other foreign government having jurisdiction; (c) You will not post or transmit to or from the BMCC any content containing any harmful or corrupt code, programming, or data (including but not limited to "viruses", "worms" and "cancelbots"), or code that otherwise adversely affects the functioning of the BMCC; (d) You will not use the BMCC for purposes of promotion, solicitation, or advertising; (e) You understand that BMC does not control the content of BMCC communications, but that BMC may monitor the content of communications in the BMCC, and may at any time at its discretion prevent, withdraw, or delay any communication posted to the BMCC; and (f) BMC will not have and expressly disclaims any liability related to (i) the content of any communications in the BMCC, whether or not arising under the laws of copyright, trademark, libel, privacy, obscenity, or otherwise, and/or (2) the misuse, loss, modification, or unavailability of any MMaterials You post to the BMCC.

     

    6. SUBMISSIONS POSTED TO THE BMCC. BMC does not want to receive confidential or proprietary information from You through the BMCC. Any Material, information, or other communications, including feedback and suggestions, data, images, sounds, text, and other things embodied therein You post, upload, input, transmit, or submit to the BMCC (“Submissions”) are non-confidential and non-proprietary. BMC will have no obligation with respect to such Submissions.

     

    The BMCC may post specific terms and conditions with regard to use of Submissions by BMC and / or other users of the BMCC.  BMC is under no obligation to post or use Your Submission, and BMC and its affiliates and sublicensees, do not have an obligation to give You attribution or publish Your name in connection with Your Submission. BMC may remove Your Submission from the BMCC at any time in its sole discretion.  By Posting Your Submissions, You warrant and represent that You own or have permission to or otherwise control all of the rights to Your Submissions, including all the rights necessary for You to provide, post, upload, input, or submit the Submissions.

     

    7. IDEAS POSTED TO THE IDEAS SITE OF THE BMCC. On behalf of You, Yourself, and Your employer or the entity named in the registration form (“Submitter”), Submitter hereby grants to BMC and its affiliates all rights, title, and interest to the feedback, ideas, and suggestions You post on the BMCC, including those posted in the areas of the BMCC entitled ‘IDEAS’ (“Ideas”) and all intellectual property therein.

    No compensation will be paid with respect to the use of Ideas as provided herein.

     

    8. PRIVACY AND SECURITY. Your failure to comply with these terms may result in suspension or termination of Your participation and/or membership in BMCC at BMC's sole discretion:

     

    8.1 YOUR ACCOUNT AND PASSWORD: You must complete the BMCC registration process by providing BMC with current, complete and accurate information on all registration forms. You will choose a password and a user name. Please note that your user name is publicly visible so we advise you not to use your email address as your username. You are entirely responsible for maintaining the confidentiality of your password and account. Furthermore, You are entirely responsible for any and all activities that occur under Your account. You agree to notify BMC immediately upon becoming aware of any unauthorized use of Your account or any other breach of security. BMC will not be liable for any loss that You may incur as a result of someone else using Your password or account, either with or without Your knowledge.

     

    8.2 PRIVACY ON THE BMCC. Your privacy is important to BMC.  In order for You to use the BMCC, it may be necessary for BMC to collect, use, store, and/or disclose a limited amount of personal information (“Personal Information”) received from You.

     

    By registering on the BMCC and providing Your Personal Information, You consent to BMC’s collection and storage of your Personal Information as described below. BMC will collect, process and store Your Personal Information on servers located in the United States. When You register on BMCC, You understand and agree that BMC may process and share your Personal Information that you provide for the following purposes:

     

    • To grant You access to the BMCC;
    • To send You emails and promotions related to BMC products and offerings;
    • To authorize the transfer of your Personal Information to BMC authorized third parties for the purpose of delivering BMC’s services and solutions to You.

     

    BMC will handle Your Personal Information as per its Data Privacy Binding Corporate Rules Policy and its Privacy Policy. The BMCC website is also using “cookies,” which may be critical to Your successful use of the BMCC. You can find out more about cookies and how to control them in reading our Cookie Notice. By using the BMCC, You are accepting the practices described in this BMCC Terms. For any questions or requests to access, update or delete Your Personal Information, you can contact BMC at Privacy@BMC.com.

     

    9. INDEMNIFICATION. You hereby agree to indemnify and hold harmless BMC, (including but not limited to payment of any damages, settlements, and reasonable attorneys’ fees,) from any claims, lawsuits, or proceedings based upon the use or misuse as described in the above sections.

     

    10. SUSPENSION AND TERMINATION.

     

    This Agreement terminates automatically if You breach any of its terms, but You may terminate this Agreement without cause at any time by cancelling Your account. BMC reserves the right to block, disable, suspend or terminate Your participation at any time and for any reason or for no reason at all without prior notice or liability to You. Upon termination, You must cease use of the BMCC and all Materials. Materials must be promptly destroyed.

     

    11. OWNERSHIP. Except for Ideas as described in Section 7 of these Terms, the Original Contributor retains all right, title and interest in the Materials and copies thereof, and any intellectual property, informational, industrial property and proprietary rights therein. The Original Contributor neither grants nor otherwise transfers any rights of ownership in the Materials to You. The Materials are protected by applicable copyright, trade secret, patent, and other intellectual and industrial property laws. The trademarks, logos, and service marks ("Marks") displayed on the BMCC are the property of the owner of such Marks. You are not permitted to use the Marks without the prior written consent of BMC or such third party that may own the Marks.

     

    12. DISCLAIMER. The Materials are AS-IS with all faults. You assume all risk of using the BMCC and Materials. You assume all risks. All warranties are disclaimed, including implied warranties of merchantability, fitness of purpose, non-infringement and quiet enjoyment. BMC does not warrant uninterrupted service of the BMCC or that the BMCC will be virus or error free or that there are no defects.

     

    13. LIMITIATION OF DAMAGES. BMC, its affiliates, licensors or suppliers (“BMC Parties”) will not be liable for any special, indirect, incidental, punitive or consequential damages related to or arising out of this Agreement and the rights granted or exercised under it, including lost profits, lost computer usage time, damage or loss of data, even if advised of such and regardless of the BMC Parties’ negligence. The BMC Parties’ liability for direct damages is the lesser of what You paid for the rights under this Agreement, or $1000.00 USD.

     

    14. LINKS TO THIRD PARTY SITES. The BMCC contains links that may let You leave the BMCC. The linked sites are not under the control of BMC, and BMC is not responsible for the content of any linked site or of any link contained on such sites, or any changes or updates to such sites. BMC is not responsible for webcasting or any other form of transmission received from any linked site. BMC is providing these links to You only as a convenience, and the inclusion of any link does not imply endorsement by BMC of the site.

     

    15. EXPORT CONTROLS. You will cooperate with BMC as reasonably necessary to ensure compliance with the laws and regulations of the United States and all other relevant countries, relating to exports and re-exports ("Export Laws"). You may not import, export, re-export or transfer, directly or indirectly, including via remote access, any part of the Materials in violation of any such laws and regulations, or without any written governmental authorization required under applicable Export Laws. Neither the Materials nor the underlying information or technology may be downloaded or otherwise provided or made available, either directly or indirectly, i) into Cuba, Iran, North Korea, Syria, and Sudan or any other country subject to U.S. trade sanctions, to individuals or entities controlled by such countries, or to nationals or residents of such countries other than nationals who are lawfully admitted permanent residents of countries not subject to such sanctions; or (ii) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals and blocked persons or the U.S. Commerce Department's Table of Denial Orders. By accessing the BMCC, You agree to these export control requirements and represent and warrant that You are not located in, under the control of, or are a national or resident of any such country or on any such list.

     

     

    17. DISPUTE RESOLUTION AND GOVERNING LAW. Any controversy or claim arising out or relating to this Agreement is governed under the laws of the State of Texas, USA.

     

     

    18. AGENT FOR NOTICE UNDER 17 U.S.C.A. § 512. BMC's designated agent to receive notifications of claimed copyright infringement ("Copyright Agent") is:

     

    NAME: Chief IP Counsel

    ADDRESS: BMC Software, Inc.

    2101 CityWest Blvd

    Houston, Texas 77042

    PHONE: 713/918-8800

    E-MAIL: copyrights@bmc.com

     

    If You believe that Your work has been used or copied in this or any other BMC web site(s) in a way that constitutes copyright infringement, please provide BMC's Copyright Agent a notice containing the following elements: (a) a physical or electronic signature of the person authorized to act on behalf of the owner of the copyright interest that is alleged to have been infringed; (b) identification of the copyrighted work or works claimed to have been infringed; (c) identification of the Material claimed to be infringing or to be the subject of infringing activity; (d) a request that the copyrighted work or works be removed or access to such be disabled; (e) information reasonably sufficient to permit BMC to locate the Material claimed to be infringing; (f) information reasonably sufficient to permit BMC to contact You, such as a physical address, telephone number, and email address; (g) a statement by You that You have a good faith belief that the use of the Material identified in the notice in the manner complained of is not authorized by the copyright owner, its agent, or the law; and (h) a statement by You that the information in the notice is accurate and, under penalty of perjury, that You are the copyright owner or authorized to act on the copyright owner's behalf, together with such other elements as may at that time be required under applicable law for the notice to be effective.

     

    19. U.S. GOVERNMENT RESTRICTED RIGHTS. UNPUBLISHED - RIGHTS RESERVED UNDER THE COPYRIGHT LAWS OF THE UNITED STATES. Use, duplication, or disclosure of any data and computer software by the U.S. Government is subject to restrictions, as applicable, set forth in FAR Section 52.227-19, DFARS 252.227-7013,DFARS 227.227-7014, DFARS 252.227-7015, and DFARS 252.227-7025, as amended from time to time. Contractor/Manufacturer is BMC Software, Inc., 2101 CityWest Blvd., Houston, TX 77042-2827, USA.

     

    20. MISCELLANEOUS TERMS. This Agreement constitutes the entire agreement between You and BMC relating to the BMCC, and supersedes any prior or contemporaneous negotiations or agreements, whether oral or written, concerning the BMCC and any related subject matter. You may not assign this Agreement or any rights granted by this Agreement to a successor, except in the event of merger, consolidation, or sale of all or substantially all of Your assets. Should any provision of this Agreement be invalid, or unenforceable, the remainder of the provisions will remain in effect. You agree 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.

     

    By selecting the “Yes, I Agree” option, You acknowledge and agree that You have read these Terms and that You intend to be bound by these Terms, as if You or Your authorized representative had signed in writing.

     

    The individual selecting “Yes, I Agree” warrants that he or she has the authority to accept these Terms on behalf of his or her employer or on behalf of the entity named in the Registration Form, and on his or her behalf.

     

     

    Rev. 2015-08-20