Community Terms & Conditions

BMC COMMUNITIES TERMS OF USE

SUBJECT TO BMC’S ACCEPTANCE OF YOUR REGISTRATION FORM, THESE BMC COMMUNITIES TERMS OF USE WILL BECOME A LEGAL AGREEMENT BETWEEN THE INDIVIDUAL AND/OR ENTITY NAMED IN THE REGISTRATION FORM (“YOU”), AND BMC SOFTWARE, INC. (“BMC”). BMC WILL ALLOW YOU TO ACCESS AND PARTICIPATE IN THE BMC COMMUNITIES ONLY IF YOU ACCEPT ALL OF THESE TERMS.

PLEASE READ THIS AGREEMENT: IF YOU DO NOT UNDERSTAND OR AGREE WITH ANY OF THE TERMS OF THIS AGREEMENT, SELECT THE “NO, I REJECT” OPTION INDICATING YOU DO NOT AGREE, AND YOU WILL NOT BE ADMITTED TO THE BMC COMMUNITIES OR ALLOWED ACCESS TO THE FORUM (as defined below).

ABOUT BMC COMMUNITIES WEB SITE. Through the BMC Communities (the “BMCC”), BMC provides access to the BMCC Web Site, which contains a variety of resources, including (i) forums, blogs, bulletin boards, or similar online communications venues (the “Forum”); (ii) applications, utilities, source samples, software developer kits, and technical documentation (the “Software”); and (iii) articles, podcasts, marketing collateral, and training material (the “Documents”) (together, the “BMCC Materials”).

SCOPE OF AGREEMENT. This Agreement governs Your membership in the BMCC and Your use of and access to the BMCC Materials, including any updates, enhancements, and new features.

RESERVATION OF RIGHT. BMC reserves the right to update or change BMCC from time to time, including the BMCC Materials that are made available.

PERSONAL AND NON-COMMERCIAL USE LIMITATION. Unless otherwise specified, the BMCC Materials are for Your personal and non-commercial use. You may not modify, copy, distribute, transmit, display, perform, reproduce, publish, license, create derivative works from, transfer, make, use, or sell any information, software, or products obtained from the BMCC.

Any Software or Documents that are available for download from the BMCC Web Site are the copyrighted property of BMC and/or its suppliers, unless otherwise specified in a notice accompanying the downloaded item.

Exception to Personal and Non-Commercial Use Limitation. Tideway Pattern Language scripts posted on the BMCC Web Site and on Tideway.com forums are not subject to the limitations in this Section. BMC hereby grants You a right to copy, modify, distribute, transmit, display, perform, reproduce, publish, license, create derivative works from, and transfer such Tideway Pattern Language Scripts, provided that You grant these rights to BMC and to all other users of the BMCC Web Site.

Any use or reproduction of any such Software and warranties as to such Software, if any, are governed by the terms of the license agreement applicable to such Software. You will be unable to download or install any Software that is accompanied by or includes a separate license agreement unless You first agree to its license agreement terms. Absent a license agreement that accompanies the Software, use of the Software will be governed by this Agreement. You may not and agree not to: (i) disassemble or reverse engineer any Software, or decompile or otherwise attempt to derive any source code from executable code, except to the extent expressly permitted by applicable law despite this limitation, (ii) release any information to any third parties on the functionality or performance of the Software without BMC’s prior written consent, or (iii) provide a third party with the results of any functional evaluation, or benchmarking or performance tests, without BMC’s prior written approval. Additional usage restrictions may apply to certain third-party files or programs embedded in the Software. Applicable installation instructions or release notes may contain additional relevant details.

WITHOUT LIMITING THE FOREGOING, COPYING OR REPRODUCTION OF THE SOFTWARE TO ANY OTHER SERVER OR LOCATION FOR FURTHER REPRODUCTION OR REDISTRIBUTION IS EXPRESSLY PROHIBITED, UNLESS SUCH REPRODUCTION OR REDISTRIBUTION IS EXPRESSLY PERMITTED BY THE LICENSE AGREEMENT ACCOMPANYING SUCH SOFTWARE.

BMC DOES NOT MAKE ANY ASSURANCES WITH REGARD TO THE ACCURACY OF THE RESULTS OR OUTPUT THAT DERIVES FROM USE OF ANY SOFTWARE DOWNLOADED FROM THE BMCC WEB SITE.

Any use of any other product or service and warranties as to such product or service purchased by you or obtained outside of the BMCC Web Site is governed by the terms of the agreement applicable to that product or service.

NOTICE SPECIFIC TO DOCUMENTS AVAILABLE ON THE BMCC WEB SITE. Permission to use Documents is granted, provided that (1) the original copyright notice appears in all copies as well as this permission notice, (2) Your use of such Documents is for informational and non-commercial or personal use only, and You will not copy or post such Documents on any network computer or broadcast in any media, and (3) no modifications of any Documents are made.

BMC AND/OR ITS RESPECTIVE SUPPLIERS MAKE NO REPRESENTATIONS ABOUT THE SUITABILITY OF THE INFORMATION CONTAINED IN THE DOCUMENTS AND RELATED GRAPHICS PUBLISHED AS PART OF THE BMCC MATERIALS FOR ANY PURPOSE. ALL SUCH DOCUMENTS AND RELATED GRAPHICS ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND.

NOTICE SPECIFIC TO USE OF THE FORUM. You agree that You will abide by the following requirements in your use of the Forum: (a) You will not use the Forum under an anonymous or false name, and You will not permit any other person to access the Forum using an anonymous or false name and/or under Your name; (b) You will not post or transmit to or from the Forum any content that (i) is libelous, defamatory, obscene, pornographic, threatening, or abusive, (ii) violates any law, including without limitation, laws against copyright infringement, (iii) violates or infringes upon the rights of or otherwise harms any third party, (iv) is otherwise offensive or objectionable to BMC, Forum participants, or other recipients, or (v) the export or re-export of which requires a license or license exception from the United States government or other foreign governments having jurisdiction; © You will not post or transmit to or from the Forum any content containing any harmful or corrupted code, programming or data (including but not limited to “viruses”, “worms” and “cancelbots”), or code that otherwise adversely affects the functioning of the Forum; and (d) You will not use the Forum for purposes of promotion, solicitation, or advertising.

BMC may, but will not be required to, monitor or review the content of any communications in the Forum, and may at any time prevent, withdraw, or delay any communication posted to the Forum, but BMC does not control the content of such communications.

YOUR ACCOUNT, PASSWORD AND SECURITY. You must complete the registration process by providing BMC with current, complete and accurate information as prompted by the applicable registration form. You will also choose a password and a user name. 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 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. You will be responsible for any access granted with Your username and password, and 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 of Your username and/or password, including but not limited to, proceedings arising out of the posting or transmission of content to or from the Forum by You or persons gaining access through Your username and/or password.

Your failure to comply with these terms may result in suspension or termination of Your participation and/or membership in the BMCC at BMC’s sole discretion.

SUSPENSION AND TERMINATION. BMC reserves the right to block, disable, suspend or terminate the participation of any person in the BMCC at any time and for any reason or for no reason at all without prior notice or liability to You.
This Agreement terminates automatically if You breach any of its terms. Either party may terminate this Agreement without cause on 15 days prior written notice. Upon termination, You must cease use of the BMCC Web Site and all BMCC Materials. BMCC Materials must be destroyed or returned to BMC.

OWNERSHIP. BMC, or its affiliates or licensors, retains all right, title and interest in the BMCC Materials and copies thereof, and any intellectual property, informational, industrial property and proprietary rights therein. BMC neither grants nor otherwise transfers any rights of ownership in the BMCC Materials to You. The BMCC 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 Web Site are the property of BMC or other third parties. You are not permitted to use the Marks without the prior written consent of BMC or such third party that may own the Marks.

WARRANTY DISCLAIMER. UNLESS OTHERWISE PROVIDED IN A SEPARATE LICENSE AGREEMENT, THE BMCC WEB SITE, BMCC MATERIALS, AND ALL INFORMATION AVAILABLE OR OBTAINED THROUGH THE BMCC WEB SITE ARE PROVIDED “AS IS”, WITH ALL FAULTS. YOU ASSUME THE RISK OF USING THE BMCC WEB SITE, BMCC MATERIALS, AND ALL THE INFORMATION AVAILABLE OR OBTAINED THROUGH THE BMCC. BMC, ITS AFFILIATES, AND LICENSORS SPECIFICALLY DISCLAIM ALL WARRANTIES, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND QUIET ENJOYMENT. BMC DOES NOT WARRANT THAT THE OPERATION OF THE BMCC WEB SITE, BMCC MATERIALS, DOCUMENTS, OR ANY SOFTWARE WILL BE UNINTERRUPTED, VIRUS OR ERROR FREE, OR THAT THERE ARE NO DEFECTS.

LIMITS ON BMC’S LIABILITY. IN NO EVENT WILL BMC, ITS AFFILIATES OR LICENSORS, BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES RELATING TO OR ARISING OUT OF THIS AGREEMENT, THE BMCC, BMCC WEB SITE, BMCC MATERIALS (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. BMC’S LIABILITY FOR DIRECT DAMAGES IS LIMITED TO THE GREATER OF (I) THE AMOUNT PAID BY YOU FOR THE LICENSE TO THE SOFTWARE, IF ANY, AND (II) $1000. BMC will not have and expressly disclaims any liability related to (1) the content of any communications in the Forum, whether or not arising under the laws of copyright, libel, privacy, obscenity, or otherwise, and/or (2) the misuse, loss, modification, or unavailability of any materials that are posted to the Forum by users.

VERIFICATION. If requested by BMC, You will deliver to BMC written certification relating to Your use of the BMCC Web Site and BMCC Materials in compliance with the terms of this Agreement.

MATERIALS PROVIDED TO BMC OR POSTED TO THE BMCC WEB SITE. BMC does not want to receive confidential or proprietary information from you through the BMCC Web Site. Any material, information, or other communications, including feedback and suggestions (“Submissions”) you post, upload, input, transmit, or submit to the BMCC Web Site will be considered non-confidential and non-proprietary. BMC will have no obligations with respect to such Submissions. BMC and its designees will be free to copy, disclose, distribute, incorporate, and otherwise use the Submissions and all data, images, sounds, text, and other things embodied in Your Submissions for any and all commercial or non-commercial purposes. By posting, uploading, inputting, transmitting or submitting Your Submission, You grant to BMC, its affiliates, and sublicensees, and all other users of the BMCC permission to use Your Submission in connection with the operation of their businesses, including, without limitation, an unrestricted, irrevocable, non-exclusive, worldwide, royalty-free, and fully paid up license under all intellectual property rights to: copy, distribute, transmit, publicly display, publicly perform, reproduce, edit, adapt, modify, create derivative works of, translate and reformat, make, use, or sell Your Submission. Furthermore, You grant to BMC, its affiliates, and sublicensees, and all other users of the BMCC permission to publish, at their discretion, Your name in connection with Your Submission.

No compensation will be paid with respect to the use of Your Submission as provided herein. BMC is under no obligation to post or use any Submission, and BMC, its affiliates, and sublicensees, and other users of the BMCC do not have an obligation to give You attribution or publish Your name in connection with Your Submission. BMC may remove any Submission at any time in its sole discretion.

By Posting a Submission You warrant and represent that You own or otherwise control all of the rights to Your Submission as described above including, without limitation, all the rights necessary for You to provide, post, upload, input, or submit the Submission.

LINKS TO THIRD PARTY SITES. The BMCC Web Site may contain links that will let You leave the BMCC Web Site. The linked sites are not under the control of BMC, and BMC is not responsible for the contents of any linked site or any link contained in a linked site, 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.

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 BMCC Materials, or any other BMC information or technology, in violation of any such laws and regulations, or without any written governmental authorization required under applicable Export Laws. Neither the BMCC 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 SELECTING THE “YES, I AGREE” OPTION, YOU AGREE TO THE FOREGOING AND REPRESENT AND WARRANT THAT YOU ARE NOT LOCATED IN, UNDER THE CONTOL OF, OR A NATIONAL OR RESIDENT OF ANY SUCH COUNTRY OR ON ANY SUCH LIST.

DISPUTE RESOLUTION AND GOVERNING LAW. ANY CONTROVERSY OR CLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR THE BREACH HEREOF, WILL BE SETTLED BY ARBITRATION ADMINISTERED BY THE AMERICAN ARBITRATION ASSOCIATION UNDER ITS COMMERCIAL ARBITRATION RULES IN HOUSTON, TEXAS IN ENGLISH. THE ARBITRATOR MUST FILE ALL FINDINGS WITHIN 30 DAYS AFTER THE FINAL ARBITRATION HEARING. JUDGMENT ON ANY AWARD RENDERED BY THE ARBITRATOR MAY BE ENTERED IN ANY COURT HAVING JURISDICTION THEREOF. NOTHING CONTAINED IN THIS SECTION WILL LIMIT BMC’S ABILITY TO SEEK EQUITABLE RELIEF IN ANY COURT. THE PARTIES WILL ARBITRATE DISPUTES IN CONFIDENCE. THIS AGREEMENT WILL BE GOVERNED BY THE SUBSTANTIVE LAWS OF THE STATE OF TEXAS. THE CHOICE OF LAW RULES OF ANY OTHER JURISDICTION AND THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS WILL NOT APPLY.

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: Irene Kosturakis, Chief IP Counsel
ADDRESS: BMC Software, Inc.
2101 CityWest Blvd
Houston, Texas 77042
PHONE: 713/918-8800
E-MAIL: .(JavaScript must be enabled to view this email address)

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; © 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.

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.

MISCELLANEOUS TERMS. This Agreement constitutes the entire agreement between You and BMC relating to the matters covered hereby, 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. 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.

BY SELECTING THE “YES, I AGREE” OPTION, YOU ACKNOWLEDGE AND AGREE THAT YOU HAVE READ THIS AGREEMENT AND THAT YOU INTEND TO BE BOUND HEREBY, AS IF YOU OR YOUR AUTHORIZED REPRESENTATIVE HAD SIGNED THIS AGREEMENT IN WRITING. THE INDIVIDUAL EXECUTING THIS AGREEMENT WARRANTS THAT HE OR SHE HAS THE AUTHORITY TO ACCEPT THE TERMS OF THIS AGREEMENT FOR THE ENTITY NAMED IN THE REGISTRATION FORM AND ON HIS OR HER OWN BEHALF.