Education Services Terms and Conditions
Purchase Order Information for Americas
- Purchase Orders made out to:
BMC Software Inc
PO Box 201040
Houston, TX 77216-3215
A “Bill To" and “Ship To” Address Clearly Identified, with Payment Terms = NET 30 Days (Domestic) NET 45 Days (International)
Canada Based Learners:
If purchasing web based titles or classes to be attended in a training center in Canada, purchase orders should be made out to:
BMC Software Canada, Inc. with the same address as above.
Please email a copy to email@example.com.
- Sales Tax Information for United States and Canada: Where applicable BMC collects sales tax in the U.S. and in Canada. Learning Pass Credits (LPC) are taxed when used in the U.S. and when purchased in Canada. In the U.S. your LPC's will be taxed when redeemed in accordance with the tax regulations, if any, that exist at the user's delivery location. A secondary invoice will be sent for the tax amount associated with the purchase.
Purchase Order information for AP or EMEA
- Please contact the local offices
For Web Based Courses
- Please be aware: Web Based Training is not refundable. Also, BMC will provide access to web based training (WBT) courses for a period of ninety (90) days from the date of registration.
These BMC Academy and Education Services Terms and Conditions (the “Agreement”) are between the entity or individual entering into this Agreement (“Customer”) and the BMC Entity for the applicable Territory as described in Section 22 below (“BMC”).
Territory: The country where Customer acquires the BMC Education Services.
- General. “BMC Education Services” are delivered in various formats, including but not limited to Instructor Led Training (“ILT”) where the Customer receives BMC Education Services onsite at a BMC facility, Virtual Instructor Led Training (“VILT”) where Customer receives online BMC Education Services via the web, Web-Based Training (“WBT”), and On Demand Learning (“ODL”). The online BMC Education Services classes consist of several units that include reading materials, exercises, and learning activities (self tests) designed to teach the Customer the basic functions and capabilities of a BMC product. The ILT classes will take place in a facility normally used by BMC for that purpose at a regularly scheduled time. BMC will provide Customer with adequate classroom facilities and all instructional materials. The WBT and ODL are self-paced activities. The time required to complete a WBT or ODL class is based on the pace the Customer sets and the time that the Customer has available. BMC will provide a specific WBT or ODL class for a specified period of time during which Customer may take the WBT or ODL class as many times as the Customer likes and/or review certain portions of the WBT or ODL class. At the end of the designated period of availability, Customer will no longer have access to WBT or ODL classes unless the Customer purchases the class again. This designated period of time may vary based on the type of online class selected. Please refer to the individual BMC Education Services class description pages for more information. BMC agrees to provide Customer the BMC Education Services purchased online through BMC Academy. The BMC Education Services purchased through BMC Academy will be governed by the terms of this Agreement. Neither the execution of this Agreement nor fulfillment of the BMC Education Services will relieve or alter BMC’s nor Customer's acceptance, obligations, and responsibilities with respect to any software products and related documentation licensed under the applicable software license agreement (“SLA”). BMC reserves the right to modify the list or pricing of available BMC Education Services classes at any time. Any new features that add to or further configure the BMC Education Services will be subject to this Agreement.
- Customer Restrictions. (a) Customer may not transfer usage rights to BMC Academy, including Customer’s User ID and Password, to another entity or individual. Customer agrees to provide BMC with correct, truthful and complete contact information, including legal name of registrant, company name, street address, email address, and telephone number. BMC may share information including Customer name and email address with WebEx (BMC’s web conferencing provider) in order to facilitate virtual training. If Customer provides false contact information, or otherwise breaches any part of this Agreement, BMC may suspend or terminate Customer access to BMC Academy immediately and without prior written notice. (b) Customer will maintain the confidentiality of all authentications and passwords for BMC Academy and immediately notify BMC if it becomes aware that an unauthorized party has gained access to BMC Academy. Customer will be responsible for use of BMC Academy and the BMC Education Services by its employees, consultants, contractors, agents, and Affiliates (all, “Users”) in compliance with this Agreement. Customer will use reasonable efforts to prevent unauthorized access to, or use of, BMC Academy and BMC Education Services, and notify BMC promptly of any such unauthorized access or use. (c) Customer may not (i) modify, copy or create derivative works based on the BMC Education Services or Education Materials (as defined in Section 5 below); (ii) create Internet “links” to or reproduce any content forming part of the BMC Education Services, other than for its own internal business purposes; (iii) disassemble, reverse engineer, or decompile the BMC Education Services or part thereof, or access it in order to copy any ideas, features, content, functions or graphics of the BMC Education Services; (iv) distribute, rent, lease, sublicense or provide the BMC Education Services to any third party or use it in a service bureau, outsourcing environment, or for the processing third party data; (v) interfere with or disrupt the integrity or performance of BMC Academy and the BMC Education Services (e.g., load, performance, or stress testing); (vi) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortuous material, or send or store material in violation of any third party’s privacy rights via BMC Academy or the BMC Education Services; (vii) send or store viruses or malicious code via BMC Academy or the BMC Education Services; (viii) attempt to gain unauthorized access to the BMC Academy or the BMC Education Services or its related software, systems, platforms or networks including any form of security and/or penetration testing; or (ix) use any components provided with BMC Academy or the BMC Education Services separately from BMC Academy or the BMC Education Services.
- Purchase Restrictions. A self-purchase of “Training Units” (also known as “Learning Pass Credits” or “LPCs”) is not authorized without Customer’s execution of a Learning Pass Agreement (“LPA”), which sets forth the terms and conditions governing the purchase and redemption of Training Units. For each purchase of Training Units, Customer must execute a LPA or sign a BMC quote for Learning Pass Credits that includes a link to the LPA. Please contact BMC Education at firstname.lastname@example.org to request assistance for completing a self-purchase of Training Units.
- Cancellation Policy. BMC reserves the right to cancel any BMC Education Services class up to 10 business days prior to the start of the BMC Education Services class. If this occurs, Customer will receive (i) the Training Units redeemed for the canceled BMC Education Services class returned to Customer’s account, and/or (ii) a full refund of any amounts paid directly to BMC for the specific Education Service class canceled. To cancel or reschedule a BMC Education Services class, BMC requires notice at least 10 business days prior to the BMC Education Services class start date. If a cancellation or reschedule request is made less than 10 business days prior to the BMC Education Services class start date, Customer will be subject to the full class fee. If Customer fails to attend a BMC Education Services class it has registered for, Customer will be subject to the full class fee. If Customer registers for a BMC Education Services class within the 10 business day period before the start of said BMC Education Services class this cancellation policy will not apply and Customer will be subject to the full class fee regardless of attendance.
- Proprietary Rights and Confidentiality. (a) BMC, its affiliates or licensors retain all right, title and interest to any education materials and all related intellectual property and proprietary rights (collectively, the “Education Materials”). The Education Materials are protected by applicable copyright, trade secret, industrial and other intellectual property laws. Customer may not remove any product identification, copyright, trademark or other notice from the Education Materials. BMC reserves any rights not expressly granted to Customer in this Agreement. (b) “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 Discloser’s financial information, customers, employees, products or services, including, without limitation, software code, flow charts, techniques, specifications, development and marketing plans, strategies, forecasts, and proposal related documents and responses; (ii) as to BMC, and its licensors, the Education Materials and any third party content provided with the Education Materials; and (iii) the terms of this Agreement, including without limitation, BMC Education Services 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 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 the 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. (c) 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.
- Third Party Content. While using BMC Academy, Customer may be exposed to hyperlinks to Web sites controlled by parties other than BMC. BMC is not responsible for and does not endorse or accept any responsibility over the content or use of these Web sites. Customer should refer to the policies posted by other Web sites regarding privacy and other topics before using them.
- Customer Content. Customer may upload content to areas of BMC Academy which are accessible to other subscribers (i.e. chat rooms, etc.) (“Public Areas”). If Customer uploads such content to a Public Area, in doing so Customer grants BMC a perpetual, royalty-free, irrevocable, nonexclusive license to use, copy, modify, publish, transmit and distribute said content, in whole or in part, in any form, media or technology. If Customer is not the owner of any of any such content uploaded, then Customer warrants that the owner expressly grants BMC all of those same rights. BMC retains the right (that it may or may not exercise, in its sole discretion) to (i) remove any Customer content or other information or material from BMC Academy, regardless of whether the content is in a Public Area or non-Public Areas of BMC Academy and (ii) make changes to or discontinue any and/or all parts of BMC Academy.
- Personal Data. BMC may collect and process personal data related to the Customer in order to provide the BMC Education Services to Customer under this Agreement. “Personal Data” means any personally identifiable information received by BMC from Customer, relating to a person, which is sufficient to cause such person to be identified, directly or indirectly and shall not include sensitive personal data, i.e. data where processing or transfer of the data is prohibited according to applicable privacy laws or other data requiring the written consent of the data subject prior to processing in accordance with applicable law. BMC undertakes to comply with all the relevant data protection legislation and/or regulations where the Customer Personal Data is to be processed. BMC shall in particular: (a) allow Customer to access, modify, correct or erase Customer Personal Data when necessary; (b) take reasonable technical and organizational security measures to maintain the confidentiality and integrity of Customer Personal Data and to prevent its unauthorized access, use, or disclosure; (c) refrain from transferring any Customer Personal Data to any third party without obtaining the express consent of the person to whom Customer Personal Data relates to unless such transfer is required for the purpose of the BMC Education Services under this Agreement; and (d) from using Customer Personal Data for any other purpose than performing its obligations under this Agreement. BMC has self-certified with the U.S./EU Safe Harbor Privacy Principles published by the U.S. Department of Commerce (“Safe Harbor Principles”) to protect Personal Data about individuals in the European Union. In order to fulfill the obligations under the Safe Harbor Principles, a party shall disclose Personal Data to the other party only as necessary for the Recipient to perform its obligations under this Agreement. Further information with regard to BMC’s processing of data is published at www.bmc.com/legal/privacy.
- BMC Education Services Limited Warranty. BMC warrants that it will perform the BMC Education Services in conformance with generally accepted practices within the software services industry. Customer must notify BMC of any breach of this warranty no later than 15 days after completion of the BMC Education Services. Customer’s exclusive remedy and BMC’s entire liability under this warranty shall be for BMC to re-perform any non-conforming portion of the BMC Education Services within a reasonable period of time, or if BMC cannot remedy the breach during such time period then refund the portion of the fee attributable to such non-conforming portion of the BMC Education Services. THIS WARRANTY AND CONDITION IS IN LIEU OF ALL OTHER WARRANTIES AND CONDITIONS. THERE ARE NO OTHER EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS, INCLUDING THE IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
- Limitation of Liability. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL, INCIDENTAL, OR INDIRECT DAMAGES ARISING OUT OF THIS AGREEMENT (INCLUDING WITHOUT LIMITATION LOSS OF PROFITS, BUSINESS OR DATA, OR COSTS OF RECREATING LOST DATA), EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OR SUCH LOSS OR DAMAGE. IN NO EVENT WILL BMC’S LIABILITY FOR DIRECT DAMAGES EXCEED AMOUNTS PAYABLE BY CUSTOMER FOR THE PARTICULAR BMC EDUCATION SERVICES CLASS GIVING RISE TO SUCH DAMAGES. NONE OF THE ABOVE LIMITATIONS AFFECT THE LIABILITY OF EITHER PARTY FOR A BREACH OF SECTION 2 AND SECTION 5.
- Non-Solicitation. During the term of this Agreement, and for a period of six months thereafter, Customer will not solicit for employment any employees of BMC or its affiliates who, within six months prior to such solicitation, directly performed under this Agreement.
- Export Laws. By using the Technology (as this term is defined below), Customer acknowledges that it is responsible for complying with the applicable laws and regulations of the United States and all other relevant countries relating to exports and re-exports. Customer agrees that it will not download, access, license or otherwise export or re-export, directly or indirectly, any software code (delivered as a BMC product, through support/maintenance, BMC Education Services or through other services), any technical publications relating to the software code, such as release notes, reference, user, installation, systems administrator and technical guidelines, or services (collectively, “Technology”) in violation of any such laws and regulations, including regulations prohibiting export to certain restricted countries (“Restricted Countries”), or without any written governmental authorization required by such applicable laws. The list of Restricted Countries can and does change from time to time. It currently includes Cuba, Iran, North Korea, Sudan and Syria. In particular, but without limitation, the Technology may not be downloaded, licensed, transferred or otherwise exported or re-exported, directly or indirectly, including via remote access (a) into a Restricted Country or to a national or resident of a Restricted Country; (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or Other Blocked Persons, the U.S. Commerce Department’s Denied Parties List, Entity List, or Unverified List; or (c) to or for any proliferation-related (nuclear weapons, missile technology, or chemical/biological weapons) end use. By downloading, licensing and/or using the Technology, Customer represents and warrants that (w) it is not located in, under the control of, acting on behalf of, or a national or resident of any Restricted Country; (x) Customer is not on any list in (b) above; (y) Customer is not involved in any end use listed in (c) above; and (z) no U.S. federal agency has suspended, revoked, or denied its export privileges. Customer agrees that all rights to use the Technology are granted on the condition that such rights are forfeited if it fails to comply with these terms.
EC No. 428/2009 sets up a Community regime for control of exports of dual-use items and technology, and it is declared that this Technology is intended for civil purposes only. Therefore, Customer agrees not to license, download or transfer, directly or indirectly any Technology controlled by it to any military entity or to any other entity for military purposes, including any State Security Forces pursuant to this Agreement, nor to knowingly transfer any Technology to end-users for use in connection with chemical, biological or nuclear weapons or missiles capable of delivering such weapons. Customer also agrees, (a) not to export or re-export any Technology to an entity that is based in China and describe themselves as “Institute(s)” or “Academy(ies)”; or (b) not to knowingly export or re-export any Technology to any country that is subject to European Union, United Nations or Organizations for Security and Co-operation in Europe sanctions without first obtaining a validated license.
- U.S. Federal Acquisitions. This Article applies to all acquisitions of the commercial 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, grant, cooperative agreement or other activity with the federal government. By accepting delivery of the product, the government hereby agrees that the 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 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 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).”
- Headings. Headings and captions are for convenience only and are not to be used in the interpretation of this Agreement.
- Non-Exclusivity. Nothing contained in this Agreement shall preclude BMC from offering, developing or delivering BMC Education Services to any other entity who registers directly with BMC.
- Governing Law. 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 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.
- Compliance with Laws. Each party agrees to comply with all applicable laws and regulations in its performance under this Agreement.
- No Waiver. Failure by either party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any other provision.
- Partial Invalidity. If any portion of this Agreement is held to be invalid by a court of competent jurisdiction, then the remaining provisions shall nevertheless remain in full force and effect.
- Miscellaneous Terms. All of the BMC Education Services performed by BMC will be performed as an independent contractor. Except for assignments to parent entities or majority owned subsidiaries, neither party may assign or transfer this Agreement, in whole or in part, to any third party without first obtaining the prior written consent of the other party. This Agreement constitutes the entire agreement between the parties, and supersedes all prior agreements.
- Notices. Notices under this Agreement shall be sufficient only if personally delivered, delivered by a major commercial rapid delivery courier service, or mailed by certified or registered mail, return receipt requested to (i) if BMC, at the address set forth in Section 22 below, and (ii) if to Customer, at the address provided by Customer during registration for BMC Academy. If not received sooner, notice by mail shall be deemed received five (5) days after deposit in the US or international mails.
- BMC Entities. The following services entities apply to this Agreement.