BMC SOFTWARE - BETA/PRE-RELEASE
WORLDWIDE SOFTWARE LICENSE AGREEMENT
The Beta Product is still under development and testing.
BMC has NOT made any Beta Product generally available as a formal BMC software product available for licensing by its
customers (“GA Product”).
You should not place the Beta Product into a production environment.
This Agreement is between <Name> located at <Insert Complete Address> (“Licensee”) and BMC Software, Inc. (“BMC”), effective as
of the date of the last signature of the parties below. BMC and/or its affiliates and licensors owns the beta, alpha or other preliminary
version of a BMC software product, related documentation and any pre-generally available updates, new versions and upgrades, if any
(collectively, the “Beta Product”), or has the rights to license use of the Beta Product, and is willing to grant to Licensee a limited
license to use such Beta Product, on the following terms:
1. BETA LICENSE. Subject to the terms of this Agreement, BMC grants Licensee, from time to time and effective upon each
delivery of a Beta Product, a worldwide, revocable (pursuant the termination section of the Agreement), non-exclusive, royalty-free and
non-transferable license under copyright and trade secret laws to (a) use the Beta Product on any central processing unit (“CPU”)
owned or leased by Licensee and located at its premises, solely for the purpose of license performing internal testing of the Beta
Product; (b) perform on the CPU; and (c) display internally on CPU monitors.
2. RESTRICTIONS ON USE. Licensee agrees NOT to:
a. use the Beta Product to process production data, or where it may be used as would the GA Product;
b. use the Beta Product with data or information that has not been backed up;
c. decompile, disassemble, reverse engineer or otherwise attempt to derive the Beta Product’s source code from object code,
except to the extent expressly permitted by applicable law or treaty despite this limitation;
d. sell, rent, lease, license, sublicense, display, modify, time share, outsource or otherwise transfer the Beta Product to any third
e. release any results of performance tests related to Beta Product to any third party without BMC’s prior written consent;
f. use the Beta Product for any purpose other than as specifically provided in this Agreement; and
g. export or re-export any Beta Product without both the written consent of BMC and the appropriate U.S. and/or foreign
3. FEEDBACK. Licensee shall promptly provide to BMC, in writing, any relevant feedback on the functionality and performance of
the Beta Product and test results (“Feedback”). BMC Software, Inc., BMC’s parent company, or its affiliates owns all Feedback and
test results relating to the Beta Product. Licensee hereby assigns to BMC Software, Inc. all rights, title and interest in the Feedback
and all intellectual property therein. If requested by BMC, Licensee agrees to execute such further instruments as BMC may
reasonably request confirming BMC Software, Inc.’s ownership interest in such Feedback.
4. COPYRIGHT AND OWNERSHIP. All title to and intellectual property rights in the Beta Product, including, but not limited to all
modifications thereto, are owned by BMC and/or its affiliates and licensors, and are protected by both United States copyright law and
applicable international copyright treaties. Licensee agrees not to claim or assert title to or ownership of the Beta Produc t. To the
extent expressly permitted by applicable law or treaty notwithstanding the limitations of Section 1, Licensee may copy the Beta Product
for backup or archival purposes, or as an essential step in utilizing the software, but for no other purpose. Licensee may not remove or
alter any copyright or proprietary notice from copies of the Beta Product.
5. PROPRIETARY RIGHTS AND CONFIDENTIALITY. BMC and/or its affiliates and licensors retain all rights, title and interest to the
Beta Product and all related intellectual property and proprietary rights. The Beta Product is protected by applicable copyright, trade
secret, industrial and other intellectual property laws. BMC reserves any rights not expressly granted to Licensee. “Confidential
Information” means all proprietary or confidential information that is disclosed BMC to Licensee, and includes, among other things (i)
any and all information relating to the Beta Product or services provided by BMC, its financial information, software code, flow charts,
techniques, specifications, development and marketing plans, strategies, and forecasts; (ii) the terms of this Agreement; and (iii)
Feedback. Confidential Information does not include information that Licensee can show: (a) was rightfully in Licensee’s possession
without any obligation of confidentiality before receipt from BMC; (b) is or becomes a matter of public knowledge through no fault of
Licensee; (c) is rightfully received by Licensee from a third party without violation of a duty of confidentiality; (d) is independently
developed by or for Licensee; or (e) is required to be disclosed by applicable law or court order. Licensee may not disclose
Confidential Information of BMC to any third party or use the Confidential Information in violation of this Agreement. In the event
Licensee becomes legally compelled to disclose any Confidential Information, Licensee shall provide BMC with prompt prior written
notice of such requirement so that BMC may seek a protective order or other appropriate remedy. If such protective order or other
remedy is not obtained, or if BMC waives in writing compliance with the terms of this Agreement, Licensee agrees to furnish only that
portion of the information which Licensee is advised by written opinion of counsel is legally required and to exercise reasonable efforts
to obtain confidential treatment of such information.
6. TERMINATION. The license of Section 1 granted under this Agreement terminates on the earlier of:
a. 90 days after Licensee’s receipt of a Beta Product, or
b. immediately upon BMC’s notice of termination for convenience.
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Upon termination of any license or this Agreement, Licensee shall cease using the Beta Product and shall uninstall the Beta Product
from each applicable CPU. Licensee agrees to destroy and certify the destruction of the Beta Product and delete all copies that have
been installed on all CPU’s or upon request return the Beta Product to BMC. Sections 3, 4, 5, 6, 7, and 8 survive the termination of
any Beta Product license.
If a GA Product is announced, replacing a Beta Product, and Licensee desires to acquire a license to use that GA Product, then
Licensee must license that GA Product under the then-current license terms with the appropriate BMC subsidiary or affiliate.
7. DISCLAIMER OF WARRANTY, LIMITATION OF LIABILITY AND EXCLUSIVE REMEDY.
a. THE BETA PRODUCT IS PROVIDED “AS IS” WITHOUT ANY WARRANTY OF ANY KIND WHATSOEVER. BMC AND/OR
ITS AFFILIATES AND LICENSORS DO NOT WARRANT THAT ANY BETA PRODUCT WILL SATISFY LICENSEE’S
REQUIREMENTS, THAT ANY BETA PRODUCT IS WITHOUT DEFECT OR ERROR, OR THAT THE OPERATION OF ANY
BETA PRODUCT WILL BE UNINTERUPTED. BMC DISCLAIMS ANY AND ALL REPRESENTATIONS OR WARRANTIES
OF ANY KIND, WHETHER EXPRESS OR IMPLIED, MADE WITH RESPECT TO THE BETA PRODUCTS, INCLUDING
WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
b. BMC DISCLAIMS AND REJECTS ANY LIABILITY TO LICENSEE, OR ANY OTHER INDIVIDUAL OR ENTITY, FOR ANY
CLAIM, LOSS, DAMAGE OR EXPENSE FOR INDIRECT, SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES
ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE BETA PRODUCTS, EVEN IF BMC HAS BEEN
ADVISED OF THE POSSIBLITY OF SUCH DAMAGES. BMC’S ENTIRE LIABILITY AND LICENSEE’S EXCLUSIVE REMEDY
FOR DIRECT DAMAGES UNDER THIS AGREEMENT IS LIMITED TO THE GREATER OF THE AMOUNT ACTUALLY PAID
BY LICENSEE TO LICENSE THE APPLICABLE BETA PRODUCT OR $100.
a. Beta Products on CD-ROM. For the convenience of Licensee, BMC may provide Licensee with a CD-ROM that contains a
Beta Product, along with additional BMC owned software programs. Licensee agrees not to access, install or use any of
the additional software programs that may be contained in the CD-ROM, without BMC’s prior written consent. In
the event BMC provides Licensee such consent, Licensee’s use of that software will be subject to the terms of this
Agreement unless another enforceable BMC license agreement applies to that software.
b. No-Guarantee as to New Versions. Licensee acknowledges and agrees that BMC is under no obligation to provide any
maintenance releases, updates or new versions of the Beta Product. BMC does not guarantee that any Beta Product will
become a GA Product. If a GA Product is announced replacing a Beta Product, BMC does not guarantee that the GA
Product will be similar in functionality to the comparable Beta Product version licensed under this Agreement. This Agreement
creates no obligation on behalf of Licensee to license any GA Product.
c. Entire Agreement and Modifications. This Agreement is the entire understanding between Licensee and BMC and replaces
any prior communication, agreement or understanding of any kind, oral or written, concerning this subject matter. This
Agreement may only be changed if mutually agreed to in writing between Licensee and an authorized representative of BMC.
d. Enforceability and Non-Assignment. If any part of this Agreement is found to be invalid or unenforceable, that part will be
modified to the extent necessary to eliminate its invalidity or unenforceability, and the remaining terms will be in full force and
effect. Licensee may not assign or otherwise transfer this Agreement or any of its rights or obligations without the prior written
consent of BMC.
e. 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 Regions of Hong Kong or Macau, Taiwan, Philippines, Indonesia, Malaysia, Myanmar, Singapore,
Brunei, Vietnam, Cambodia, Laos, Thailand, India, Pakistan, Australia, New Zealand, Papua New Guinea or any of the pacific
island states (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.
f. Arbitration. ANY DISPUTE BETWEEN CUSTOMER 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
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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
g. Independent Contractor. Nothing in this Agreement will be construed as creating a joint venture, partnership or
principal/agent relationship between the parties.
h. U.S. Federal Acquisitions. This Article applies to all acquisitions of the commercial Beta Product subject to this Agreement
by or on behalf of the federal government, or by any prime contractor or subcontractor (at any tier) under any contract, gran t,
cooperative agreement or other activity with the federal government. By accepting delivery of the Beta Product, the
government hereby agrees that the Beta Product qualifies as “commercial” within the meaning of the acquisition regulation(s)
applicable to this procurement. The terms and conditions of this Agreement shall pertain to the government’s use and
disclosure of the Beta Product, and shall supersede any conflicting contractual terms and conditions. If the license granted
by this Agreement fails to meet the government’s needs or is inconsistent in any respect with Federal law, the government
agrees to return the Beta Product, unused, to BMC. The following additional statement applies only to acquisitions governed
by DFARS Subpart 227.4 (October 1988): “Restricted Rights – Use, duplication and disclosure by the Government is subject
to restrictions as set forth in subparagraph (c)(1)(ii) of the Rights in Technical Data and Computer Software clause at DFARS
252.227-7013 (Oct. 1988).”
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their duly authorized officers on the dates
<LICENSEE> BMC SOFTWARE, INC.
(Authorized Signatory) (Authorized Signatory)
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