BMC MASTER SUBSCRIPTION SERVICES AGREEMENT

THIS MASTER SUBSCRIPTION SERVICES AGREEMENT (“AGREEMENT”) GOVERNS YOUR 30-DAY FREE TRIAL OF THE BMC SUBSCRIPTION SERVICES.

IF YOU PURCHASE THE BMC SUBSCRIPTION SERVICES, THIS AGREEMENT WILL ALSO GOVERN YOUR PURCHASE AND ONGOING USE OF THE BMC SUBSCRIPTION SERVICES.

BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.

You may not access the BMC Subscription Services if you are BMC’s direct competitor, except with BMC’s prior written consent. In addition, you may not access the BMC Subscription Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.

This Agreement was last updated on April 15, 2010. This Agreement is between the entity or individual entering into this Agreement (“Customer”) and the BMC Contracting Entity for the applicable region as described in Section 10 (“BMC”). It is effective between Customer and BMC as of the date of your acceptance of this Agreement.

THIRTY DAY FREE TRIAL.

BMC will make the BMC Subscription Services available to Customer on a trial basis free of charge until the earlier of (a) the thirtieth day after Customer’s acceptance of this Agreement or (b) the start date of any Order for purchase of the BMC Subscription Services. Additional trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.

ANY DATA CUSTOMER ENTERS INTO THE BMC SUBSCRIPTION SERVICES, AND ANY CUSTOMIZATIONS MADE TO THE BMC SUBSCRIPTION SERVICES BY OR FOR CUSTOMER, DURING THE THIRTY DAY FREE TRIAL WILL BE PERMANENTLY LOST UNLESS CUSTOMER PURCHASES A SUBSCRIPTION TO THE SAME BMC SUBSCRIPTION SERVICES AS THOSE COVERED BY THE TRIAL, OR EXPORTS SUCH DATA BEFORE THE END OF THE THIRTY DAY TRIAL PERIOD.

NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THE AGREEMENT, DURING THE THIRTY DAY FREE TRIAL PERIOD THE BMC SUBSCRIPTION SERVICES ARE PROVIDED “AS IS” WITH NO WARRANTY.

1. DEFINITIONS.

1.1 “Affiliate” is an entity that controls, is controlled by or shares common control with BMC or 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 “BMC Subscription Services” means the hosted service which packages web-based access and the right-to-use the supported applications and associated reference, user and technical guides. One or more of BMC’s subscription services offerings may be ordered pursuant to the terms of this Agreement.
1.3 “Additional Services” means the service(s) named and described in an Order for the purchase of such Additional Service.
1.4 “Customer Data” means all electronic data or information submitted by Customer to the BMC Subscription Services.
1.5 “Order” means (i) the agreed ordering document for the purchase of the Services, (ii) that is subject to this Agreement, and (iii) that identifies the particulars of the purchase and fees to be paid.
1.6 “User” means individuals (i) who are authorized by Customer to use and access the BMC Subscription Services, (ii) for whom subscriptions to the BMC Subscription Services have been purchased, and (iii) who have been assigned unique user identifications and passwords by Customer.
1.7 “End User” means individuals (i) who are authorized by Customer to use and access the BMC Subscription Services, (ii) for the limited purpose of approving and requesting within the BMC Subscription Services, and (iii) who have been assigned a unique user identification and password by Customer. Paid subscriptions are not required to be purchased for End Users.
1.8 “All Users” means the sum of the Users and End Users. All Users may include employees, consultants, contractors and agents of Customer or its Affiliates.

2. SCOPE. Subject to Customer’s payment of applicable fees, BMC will provide Customer with access to BMC’s Subscription Service and with the Additional Services (together, the “Services”) as set forth in this Agreement and the applicable Order. This Agreement contemplates the execution by the parties of one or more Orders. Orders may be entered under this Agreement by and between (a) BMC or an Affiliate of BMC; and (b) the Customer or an Affiliate of Customer. With respect to an Order, the terms “BMC” and “Customer” as used in this Agreement will be deemed to refer to the entities that execute that Order, the Order will be considered a two party agreement between such entities, and BMC will separately invoice the Customer named in the Order for the associated subscription fees. Neither execution of this Agreement, nor anything contained herein, shall obligate either party to enter into any Orders.

3. BMC SUBSCRIPTION SERVICES.

3.1 Access Rights. Subject to the terms of this Agreement, BMC hereby grants to Customer a worldwide, non-exclusive, non-transferable, non-sublicenseable, limited license for All Users to access and use the BMC Subscription Services in accordance with the terms of this Agreement, solely in connection with the operation of the business of Customer. Customer is responsible for All Users’ compliance with this Agreement.
3.2 Users. The number of Users for which a subscription is being purchased will be set forth in an Order. User subscriptions are for designated Users and cannot be shared or used by more than one User but may be re-designated to new Users replacing former Users who no longer require ongoing use of the BMC Subscription Services. However, such re-designation may not be used to circumvent limitations on sharing User subscriptions. Unless otherwise specified in the relevant Order, (i) additional User subscriptions may be added in minimum increments of 1; (ii) the term of the additional User subscriptions shall be coterminous with the expiration of the subscription term in effect at the time the additional Users are added; and (iii) pricing for the additional User subscriptions shall be prorated for the remainder of the subscription term in effect at the time the additional Users are added.
3.3 BMC Responsibilities. BMC will (i) provide the BMC Subscription Services in a manner consistent with general industry standards reasonably applicable to the provision thereof; (ii) use commercially reasonable efforts to maintain the security of Customer passwords; (iii) provide the support described at http://www.bmc.com/support/review-policies (“Support”) to Customer for the BMC Subscription Services, which may be changed by BMC upon prior notice to customer; (iv) if a service level agreement (“SLA”) is provided for the BMC Subscription Services, the terms of such SLA will be attached to an Order.
3.4 Customer Responsibilities and Restrictions. (a) Except for BMC’s obligations in Section 3.3, Customer will be responsible for maintaining the confidentiality of the passwords assigned to Customer. Customer will immediately notify BMC if it becomes aware that a password is lost, stolen, disclosed to an unauthorized third party, or otherwise compromised. Customer will be responsible for any and all activities made under Customer’s account, including without limitation any fees incurred under Customer’s password-protected account. Customer will (i) use commercially reasonable efforts to prevent unauthorized access to, or use of, the BMC Subscription Services, and notify BMC promptly of any such unauthorized access or use, (ii) comply with all applicable laws in using the Services. (b) Customer and All Users will not (i) modify, copy or create derivative works based on the Services; (ii) create Internet “links” to or reproduce any content forming part of the BMC Subscription Services, other than for its own internal business purposes; (iii) disassemble, reverse engineer, or decompile the BMC Subscription Services or part thereof, or access it in order to copy any ideas, features, content, functions or graphics of the BMC Subscription Services; (iv) interfere with or disrupt the integrity or performance of the BMC Subscription Services; (vi) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortuous material via the BMC Subscription Services; (vii) send or store viruses or malicious code via the BMC Subscription Services; (viii) attempt to gain unauthorized access to the BMC Subscription Services or its related software, systems, platforms or networks; or (ix) use any components provided with the Services separately from the Services.
3.5 System Notifications. Customer will receive system notifications from BMC and its licensors, if applicable (i.e. planned downtime notices, etc).
3.6 Additional Services. Customer may purchase Additional Services via an Order. BMC offers other custom services which may be ordered pursuant to a separate BMC Master Services Agreement and statement of work. For purposes of clarity, such services may not be ordered under this Agreement.

4. FEES AND PAYMENT.

4.1 Fees. The fees payable for the Services will be set forth in the Order. The fees will be invoiced in accordance with the relevant Order and are due upon receipt of invoice.
4.2 Taxes. Customer will pay or reimburse BMC or, when required by law, the appropriate governmental agency, for taxes of any kind, including sales, use, VAT, excise, customs duties, withholding, property, and other similar taxes (other than taxes based on BMC’s net income or arising from the employment relationship between BMC and its personnel) imposed in connection with the fees paid for the Services, which are exclusive of these taxes.
4.3 Suspension of BMC Subscription Services. In addition to its other rights and remedies, BMC reserves the right, without liability to the Customer, to suspend any and all access to the BMC Subscription Services if Customer’s account becomes more than thirty (30) days past due until all accounts are paid in full. The unpaid balance of each late payment bears interest at a rate equal to the lesser of 1% per month or the maximum amount permitted by law.

5. TERM AND TERMINATION.

5.1 Term. (a) Agreement. This Agreement commences on the Effective Date and will remain in effect unless terminated pursuant to Section 5.2 below. (b) Order(s). Each Order will commence on the start date specified in the relevant Order and continue for the subscription term specified therein.
5.2 (a) Termination for Convenience. Upon thirty (30) days advance written notice, either party may terminate this Agreement for its convenience; however, such termination will have no effect on Orders executed by the parties prior to its effective date, including but not limited to payment obligations contained therein, and such Orders will remain in full force and effect under the terms of this Agreement; (b) Termination for Cause. Either party may terminate this Agreement for cause: (i) upon thirty (30) days written notice of a material breach to the other party if such breach remains uncured at the expiration of such period; or (ii) immediately if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. (c) Suspension of Services for Cause. In addition to its other rights and remedies, BMC reserves the right, without liability to Customer, to immediately suspend any and all access to the Services if Customer commits a material breach of this Agreement or any relevant Order until such material breach is cured. If such material breach is (i) unable to be cured, or (ii) is not cured within 10 business days, then BMC may immediately terminate the Agreement and/or the affected Order.
5.3 Effects of Termination. Upon termination pursuant to 5.2(b) and (c) above, all rights and licenses granted herein will terminate and Customer will make no further use of the Services. No termination will relieve the Customer of the obligation to pay any fees accrued or payable to BMC. Upon written request by Customer made within thirty (30) days after the effective date of termination, BMC will make available to Customer a file containing the Customer Data. After such thirty day period, BMC shall have no obligation to maintain or provide any Customer Data and will thereafter delete Customer Data.

6. PROPRIETARY RIGHTS AND CONFIDENTIALITY.

6.1 Proprietary Rights. BMC, its Affiliates or licensors retain all right, title and interest to the Services and all related intellectual property and proprietary rights. The Services are protected by applicable copyright, trade secret, industrial and other intellectual property laws. BMC owns all right, title and interest in all software, programming, documentation, templates, questionnaires, methodologies, models, charts, reports and any other items used to deliver the Services or made available to Customer as a result of the Services (“Services Items”) and access to and use of the relevant Services Items will be governed by the terms of this Agreement. BMC reserves any rights not expressly granted to Customer. “Confidential Information” means all proprietary or confidential information that is disclosed to the recipient (“Recipient”) by the discloser (“Discloser”), and includes, among other things (i) any and all information relating to products or services provided by a Discloser, its customer-related and financial information, software code, flow charts, techniques, specifications, development and marketing plans, strategies, and forecasts; (ii) as to BMC, and its licensors, the Services; and (iii) the terms of this Agreement, including without limitation, pricing information. Confidential Information does not include information that Recipient can show: (a) was rightfully in Recipient’s possession without any obligation of confidentiality before receipt from the Discloser; (b) is or becomes a matter of public knowledge through no fault of Recipient; (c) is rightfully received by Recipient from a third party without violation of a duty of confidentiality; or (d) is or was independently developed by or for Recipient. Recipient may not disclose Confidential Information of Discloser to any third party or use the Confidential Information in violation of this Agreement. The Recipient (i) will exercise the same degree of care and protection with respect to the Confidential Information of the Discloser that it exercises with respect to its own Confidential Information and (ii) will not, either directly or indirectly, disclose, copy, distribute, republish, or allow any third party to have access to any Confidential Information of the Discloser. Notwithstanding the foregoing, Recipient may disclose Discloser’s Confidential Information to Recipient’s employees and agents who have need to know provided that such employees and agents have legal obligations of confidentiality substantially the same (and in no case less protective) as the provisions of this Agreement.
6.2 Notification Obligation. If the Recipient becomes aware of any unauthorized use or disclosure of Discloser’s Confidential Information, then Recipient will promptly and fully notify the Discloser of all facts known to it concerning such unauthorized use or disclosure. In addition, if the Recipient or any of its employees or agents are required (by oral questions, interrogatories, requests for information, or documents in legal proceedings, subpoena, civil investigative demand, or other similar process) to disclose any of Discloser’s Confidential Information, the Recipient will not disclose the Discloser’s Confidential Information without providing the Discloser with commercially reasonable advance prior written notice to allow Discloser to seek a protective order or other appropriate remedy or to waive compliance with this provision. In any event, the Recipient will exercise its commercially reasonable efforts to preserve the confidentiality of the Discloser’s Confidential Information, including, without limitation, cooperating with Discloser to obtain an appropriate protective order or other reliable assurance that confidential treatment will be accorded to the Confidential Information. Notwithstanding the foregoing, Customer agrees that BMC may include Customer’s name on customer lists.
6.3 Customer Data. As between BMC and Customer, Customer owns all rights, title and interest in and to Customer Data. Customer Data is deemed Confidential Information under this Agreement. Customer is responsible for complying with all legal requirements, including applicable privacy laws and regulations, relating to the collection, use, processing and transfer of Customer Data. Customer acknowledges and consents that Services provided may require Customer Data to be transferred to a country outside of Customer’s country or the country where the Customer Data originated.
6.4 Suggestions. Customer agrees that BMC shall have a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into any BMC products or services any suggestions, enhancement requests, recommendations or other feedback provided by Customer or Users relating to the Services.

7. DISCLAIMERS AND LIMITS ON LIABILITY.

7.1 Disclaimer. CUSTOMER ACKNOWLEDGES THAT, EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, BMC, ITS AFFILIATES AND LICENSORS MAKE NO WARRANTY, EXPRESS, IMPLIED OR STATUTORY WITH RESPECT TO THE SERVICES OR USE THEREOF. BMC, ITS AFFILIATES AND LICENSORS HEREBY EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY THAT SERVICES WILL BE UNINTERRUPTED, ERROR FREE OR WITHOUT DELAY, AND THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INTERFERENCE, NON-INFRINGEMENT AND INFORMATION CONTENT.
7.2 DISCLAIMER OF DAMAGES. EXCEPT FOR A BREACH OF SECTION 3.4 AND EACH PARTY’S RESPONSIBILITIES IN SECTION 8, NEITHER PARTY OR ITS AFFILIATES ARE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES RELATING TO OR ARISING OUT OF THIS AGREEMENT OR THE SERVICES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST COMPUTER USAGE TIME, AND DAMAGE TO, OR LOSS OF USE OF, DATA), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND IRRESPECTIVE OF ANY NEGLIGENCE OF A PARTY OR WHETHER SUCH DAMAGES RESULT FROM A CLAIM ARISING UNDER TORT OR CONTRACT LAW.
7.3 LIMITS ON LIABILITY. EXCEPT FOR A BREACH OF SECTION 3.4 AND EACH PARTY’S RESPONSIBILITIES IN SECTION 8, NEITHER PARTY OR ITS AFFILIATES SHALL HAVE AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SERVICES, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEEDING THE LESSER OF $500,000 OR THE AMOUNTS ACTUALLY PAID BY AND DUE FROM CUSTOMER PURSUANT TO THE ORDER(S) GIVING RISE TO LIABILITY.

8. INFRINGEMENT CLAIMS.

8.1 Indemnification by BMC. If a third party asserts a claim against Customer asserting that Customer’s use of the Services in accordance with this Agreement violates that third-party’s patent, trade secret or copyright rights (“Infringement Claim”), then BMC will, at its own expense: (a) defend or settle the Infringement Claim; and (b) indemnify Customer for any damages finally awarded against Customer based on infringement by the Services. If BMC believes the Services may violate a right, then BMC will, at its expense: (a) modify the Services, or (b) procure the right to continue using the Services, and if (a) or (b) are not commercially reasonable, terminate Customer's right to use the Services and issue a pro-rata refund for the unexpired pre-paid portion of such Services.
8.2 Indemnification by Customer. Subject to the terms of this Agreement, if a third party asserts a claim against BMC asserting that the Customer Data or Customer’s use of the Service in violation of this Agreement violates that third-party’s patent, trade secret or copyright rights, or otherwise harms the third party (“Claim”), Customer will, at its own expense: (a) defend or settle the Claim; and (b) indemnify BMC for any damages finally awarded against BMC based on the Claim.
8.3 Neither party’s obligations under this Section will apply if: (a) the indemnifying party’s legal department does not receive prompt, detailed written notice of the Infringement Claim/Claim from the party being indemnified, (b) the indemnifying party is not able to retain sole control of the defense of the Infringement Claim/Claim and all negotiations for its settlement or compromise, (c) the indemnifying party does not receive all reasonable assistance from the party being indemnified. Neither party will bind the indemnified party to a monetary obligation in a settlement or compromise, or make an admission on behalf of the indemnified party, without obtaining that party’s prior consent.
8.4 This section contains each party's exclusive remedies and the indemnifying party's sole liability for Infringement Claims/Claims, respectively.

9. EXPORT CONTROLS. Customer will cooperate with BMC as reasonably necessary to ensure compliance with the laws and regulations of the United States and all the relevant countries, relating to exports (including “deemed” exports and “deemed” re-exports as defined by the Export Administration Regulations) and re-exports (“Export Laws”). Customer may not import, export, re-export or transfer, directly or indirectly, including via remote access, any part of the Services or any other BMC information or technology in violation of any such laws and regulations, or without any written governmental authorization required under applicable laws. In particular, but without limitation, none of the software or the underlying information or technology may be downloaded or otherwise exported or re-exported, directly or indirectly, (a) into (or to a national or resident of) any country to which the United States government has imposed trade sanctions denying the export of any products; (b) to anyone on the US Treasury Department’s list of Specially Designated Nationals or Other Blocked Persons, the US Commerce Department’s Denied Parties List, the US Commerce Department’s Entity List, or the US Commerce Department’s Unverified List; or (c) to or for any proliferation-related (nuclear weapons, missile technology, or chemical/biological weapons) end use.

10. GOVERNING LAW AND BMC CONTRACTING ENTITIES. This Agreement is governed by the substantive laws in force, without regard to conflict of laws principles: (a) in the State of Texas, if you acquired the BMC Subscription Service in the United States, Puerto Rico, or any country in Central or South America; (b) in the Province of Ontario, if you acquired the BMC Subscription Service in Canada (subsections (a) and (b) collectively referred to as the “Americas Region”); (c) in Singapore, if you acquired the BMC Subscription Service 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 BMC Subscription Service 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.

The following BMC contracting entities apply to this Agreement:

Territory BMC Contracting Entity Address of Contracting Entity
United States and Latin America South (not a specified Central or South America country below)
Canada BMC Software, Inc.



BMC Software Canada Inc. 2101 CityWest Boulevard, Houston, Texas 77042



50 Minthorn Boulevard, Suite 200
Markham, Ontario L3T 7X8 Canada
EMEA (Europe, Middle East and Africa) BMC Software Distribution B.V. Boeing Avenue 245, 1119 PD Schiphol Rijk, The Netherlands
Brazil BMC Software do Brasil Ltda. Rua Leopoldo Couto de Magalhães Jr, 758 - 14º andar, São Paulo – SP – Brazil
Mexico BMC Software Distribution de México, S.A. de C.V. Torre Esmeralda II Blvd. Manuel Avila, Camacho #36, Piso 23 Lomas de Chapultepec, CP11000, México D.F.
Argentina BMC Software de Argentina S.A. Ing. Butty 220 – Piso 14, Buenos Aires, Republica Argentina, C1001AFB
S.E.A (Southeast Asia), Australia, New Zealand, Hong Kong, Taiwan BMC Software Asia Pacific Pte Ltd 210 Middle Road, #12-01/08 IOI Plaza, Singapore 188994
China BMC Software (China) Limited Suite 501-504, Level 5, Tower W1, The Towers, Oriental Plaza, #1 East Chang An Ave., Dong Cheng, Beijing 100738, China
Japan

Korea
BMC Software K.K.

BMC Software Korea Ltd Harmony Tower 24th Floor, 1-32-2 Honcho, Nakano-ku, Tokyo, 164-8721
33rd Fl., ASEM Tower World Trade Center, 159-1, Samsung-dong, Kangnam-ku, Seoul 135-798


11. U.S. FEDERAL ACQUISITIONS. This Article applies to all acquisitions of the commercial product and/or services subject to this Agreement by or on behalf of the U.S. Federal Government (the “Government”), or by any prime contractor or subcontractor (at any tier) under any contract, grant, cooperative agreement or other activity with the Government. By accepting delivery of the product and/or service, the Government hereby agrees that the product and or service 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 product and/or service, 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 U.S. Federal law, the Government agrees to return the 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).”

12. MISCELLANEOUS TERMS. BMC is not liable for its failure to perform any of its obligations under this Agreement during any period in which performance is delayed by Customer or circumstances beyond BMC's reasonable control. The parties are independent contractors and this Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties. This Agreement, including any Exhibits and Orders constitutes the entire agreement between Customer and BMC and supersedes any prior or contemporaneous negotiations or agreements, whether oral or written concerning the Services. There are no third party beneficiaries to this Agreement; Customer is not entering into a contractual relationship with BMC’s licensors and BMC’s licensors have no liability to Customer. No modification or waiver of any provision hereof will be effective unless made in a writing signed by both BMC and Customer. Customer may not assign or transfer this Agreement or the Services to a third party, whether by merger or otherwise. Should any provision of this Agreement be invalid or unenforceable, the remainder of the provisions will remain in effect. Any additional or conflicting terms of any Customer purchase order are rejected by BMC and do not apply.