Updated July 7, 2020
THIS SITE ACCESS AGREEMENT (this “Agreement”) sets out the terms under which you (“User”) may obtain access to the BMC Group SmartExchange™ Internet site.
Introduction
The BMC Group VDR LLC, a Delaware Limited Liability Company d/b/a BMC Group SmartExchange (“BMC Group SmartExchange”), licenses and operates BMC Group SmartExchange, a proprietary electronic commerce or internet site through which various business services may be offered. Business representatives (“SmartExchange Managers”) establish e-business sites on BMC Group SmartExchange (“Deal Areas”) through which their transactions may be completed. User desires to have access to BMC Group SmartExchange, and BMC Group SmartExchange desires to offer to User access to BMC Group SmartExchange, all on the terms and subject to the conditions of this Agreement.
As a condition of User’s access to BMC Group SmartExchange, and in consideration of the mutual covenants and agreements set out below, BMC Group SmartExchange and User hereby agree as follows:
- License.
BMC Group SmartExchange grants to User a limited, personal, non-transferable, non-exclusive revocable license to access and use BMC Group SmartExchange, including those Deal Areas as determined by the appropriate SmartExchange Managers, upon the terms and subject to the conditions set out in this Agreement. A Deal Area or transaction that is deemed unrestricted by a SmartExchange Manager may be accessed by any registered User. Any Deal Area or transaction deemed restricted by a SmartExchange Manager may only be accessed by those Users to whom access has been assigned for that specific Deal Area or transaction. Attempts to access restricted Deal Areas or transactions for which a User is not authorized is strictly forbidden and is a violation of this Agreement. BMC Group SmartExchange may suspend User’s license at any time in its sole discretion.
- Consent.
User consents to the collection and reporting to SmartExchange Manager of all actions taken and all messages sent by User on SmartExchange Manager’s Deal Area(s).
- User Obligations; Certain Operating Procedures.
(a) Computer Equipment. User will furnish any computer equipment necessary for User to access the internet and use BMC Group SmartExchange. User will provide its own communication line(s), Internet Service Provider, and any other equipment and technology necessary in order for it to access and use BMC Group SmartExchange.
(b) Access. User represents and warrants that User’s use of BMC Group SmartExchange will not violate any law, regulation, or statute. User will not access and will not attempt to access any restricted Deal Area for which it has not been assigned access without the consent of the SmartExchange Manager that controls the Deal Area. User will comply with the terms established by the SmartExchange Manager for any Deal Area to which the User is granted access.
(c) ID and Password. In order to obtain access to BMC Group SmartExchange, User must register by completing an online profile, including selection of an ID and a password. User represents and warrants that all information provided by User to gain access to the BMC Group SmartExchange services is and will be complete and accurate. Hereinafter, ID’s and passwords are referred to collectively as “Authentication Information.”
(i) User will take such actions as are necessary in order for it to maintain the confidentiality of, and prevent the unauthorized use of, User’s Authentication Information. User will notify BMC Group SmartExchange immediately in writing if User determines, or has reason to believe, that an unauthorized party has gained access to any Authentication Information.
(ii) As a condition for gaining access to BMC Group SmartExchange, User authorizes BMC Group SmartExchange and any SmartExchange Manager to rely upon any information and/or instructions set forth in any data transmission using the Authentication Information, without making further investigation or inquiry, and regardless of the actual identity of the individual transmitting the same, in connection with the operation of BMC Group SmartExchange. Use of the Authentication Information, whether or not authorized by User, shall be solely the responsibility of and at the risk of User. USER SHALL INDEMNIFY, DEFEND, AND HOLD HARMLESS BMC Group SmartExchange AND ITS AFFILIATES FROM ANY CLAIM, PROCEEDING, OR DAMAGES BASED UPON ANY USE, MISUSE, OR UNAUTHORIZED USE OF USER’S AUTHENTICATION INFORMATION.
(d) Transaction Information. User assumes sole responsibility and liability for the accuracy and adequacy of information entered by any person using User’s Authentication Information. User will notify promptly BMC Group SmartExchange and any SmartExchange Manager if any inaccurate, incomplete or incorrect information relating to User’s anticipated or actual participation in a transaction or use of BMC Group SmartExchange is communicated to that SmartExchange Manager, whether or not through BMC Group SmartExchange, or if User determines that BMC Group SmartExchange includes inaccurate, incomplete or incorrect information relating to User; and, if applicable and within its control, User shall immediately withdraw and correct such information. BMC Group SmartExchange is not responsible for any damages caused by or related to inaccurate, incomplete, or incorrect information.
(e) Certain Consequences of System Malfunction. In the event of a system malfunction or system error, regardless of the cause thereof, that affects a transaction or purported transaction involving User using BMC Group SmartExchange, BMC Group SmartExchange may withdraw a confirmation that was issued with respect to such transaction or take other corrective action deemed reasonable by BMC Group SmartExchange under the circumstances, and such withdrawal or other action may have the effect of canceling such confirmation. User assumes all risks relating thereto.
- Proprietary Rights – Restrictions on Use – Usage Rights.
All information and materials supplied by BMC Group SmartExchange in connection with this Agreement, together with all modifications thereto, and all copyrights, trademarks, patents, trade secret rights and other intellectual and proprietary rights, titles and interests relating thereto, shall at all times be and remain the property of BMC Group SmartExchange, its successors and assigns, the use of the same by User being permissive only.
- Confidentiality and Related Obligations.
(a) Certain User Obligations. Information of BMC Group SmartExchange that is designated confidential or proprietary and made accessible to User through User’s use of BMC Group SmartExchange (“Designated BMC Group SmartExchange Information”) is intended for User’s sole use and not for redistribution in any form. Without the written consent of BMC Group SmartExchange, User will not copy, reproduce or distribute any Designated BMC Group SmartExchange Information. Unless otherwise provided in the terms established by a SmartExchange Manager, these obligations
(i) apply only to Designated BMC Group SmartExchange Information, (ii) do not apply to any information of any SmartExchange Manager unless BMC Group SmartExchange is the SmartExchange Manager and such information is Designated BMC Group SmartExchange Information. These obligations are in addition to any confidentiality and related arrangements or agreements between a SmartExchange Manager and User. User shall not use BMC Group SmartExchange or the information included thereon, directly or indirectly, to engage in any unlawful transaction.
(b) Certain BMC Group SmartExchange Obligations. BMC Group SmartExchange will hold in confidence User’s Authentication Information in accordance with its customary procedures for maintaining confidential information. However, BMC Group SmartExchange has the right to use and disclose information related to User as disclosed in its Privacy Policy posted at https://www3.bmcgroup.com/privacy/.
- Information Disclaimer; Limitation of Liability.
(a) Disclaimer Regarding BMC Group SmartExchange. User acknowledges that software programming is inherently complex. User accepts the risk that the operating system and software included in BMC Group SmartExchange, as well as all information of User that is included on BMC Group SmartExchange, from time to time may contain inaccuracies and may be adversely affected by computer viruses, unknown programming difficulties resulting in incorrect information or system malfunctions or shut-downs. However, BMC Group SmartExchange will use reasonable commercial efforts to correct any inaccuracies expressly made known to it and to correct and/or remove (as appropriate) any computer viruses and other system malfunctions and shut-downs that are within its control. In addition, user acknowledges that there are risks inherent in Internet connectivity that could result in the loss of User’s privacy and confidential information.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, BMC Group SmartExchange DISCLAIMS ANY AND ALL WARRANTIES NOT EXPRESSLY STATED IN THE AGREEMENT INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. USER IS SOLELY RESPONSIBLE FOR THE SUITABILITY OF THE SERVICES CHOOSEN. ALL SERVICES ARE PROVIDED ON AN “AS IS” BASIS.
(b) Disclaimer Regarding SmartExchange Manager. BMC Group SmartExchange does not monitor or screen SmartExchange Managers of the content placed by SmartExchange Managers on Deal Areas. User’s use of content on Deal Areas is at User’s sole risk, and BMC Group SmartExchange disclaims responsibility for any such content.
(c) LIABILITY LIMITATION.
NOTWITHSTANDING ANYTHING ELSE IN THE AGREEMENT TO THE CONTRARY, THE MAXIMUM AGGREGATE LIABILITY OF BMC Group SmartExchange AND ANY OF ITS OFFICERS, DIRECTORS, OWNERS, EMPLOYEES, AGENTS OR AFFILIATES, UNDER ANY THEORY OF LAW (INCLUDING BREACH OF CONTRACT, TORT, STRICT LIABILITY, AND INFRINGEMENT) SHALL BE A PAYMENT OF MONEY NOT TO EXCEED ONE HUNDRED DOLLARS ($100.00).
IN NO EVENT SHALL BMC Group SmartExchange OR ITS OFFICERS, DIRECTORS, OWNERS, EMPLOYEES, AGENTS OR AFFILIATES BE LIABLE DIRECTLY OR INDIRECTLY TO USER OR ANY PARTY CLAIMING THROUGH IT FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION, LOSS OF PROFITS AND DAMAGES THAT COULD HAVE BEEN AVOIDED BY THE USE OF REASONABLE DILIGENCE, ARISING OUT OF THIS AGREEMENT, OR THE USE OF BMC Group SmartExchange, AND REGARDLESS OF THE NATURE OR CAUSE OF SUCH DAMAGES EVEN IF BMC Group SmartExchange HAS BEEN ADVISED OR SHOULD BE AWARE OF THE POSSIBILIY OF SUCH DAMAGES.
(d) Not an Offer. This Agreement is not an offer of any financial or other products, goods or services other than the BMC Group SmartExchange service.
- Other
(a) Termination. At its sole election at any time, BMC Group SmartExchange may temporarily or permanently suspend the rights of User to access BMC Group SmartExchange™ or any part thereof.
(b) Waiver. No waiver by either party of any default or breach of any obligation under this Agreement of the other party hereto shall operate as a waiver of any continuing or future default or breach.
(c) Notices. All notices, requests, demands, waivers and other communications required or permitted to be given under this Agreement shall be in writing and shall be deemed to have been duly given if delivered personally or mailed, certified or registered mail with postage prepaid, or sent by email, as follows (or at such other address, fax number or email address for a party as shall be specified by like notice):
if to BMC Group SmartExchange, at: 3732 W 120th Hawthorne, CA 90250
Attn: BMC Group SmartExchange Site Manager E-mail: contact SmartExchange Customer Support
if to User, at the address, fax number or email address specified in User’s registration information submitted by User through BMC Group SmartExchange™.
(d) Expenses. Except as otherwise expressly provided in this Agreement, all costs and expenses incurred in connection with this Agreement and the transactions contemplated hereby shall be paid by the party incurring such costs and expenses.
(e) Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of California, without regard to the laws that might otherwise govern under principles of conflicts of laws applicable thereto.
(f) Severability. If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction or other authority to be invalid, void, unenforceable or against its regulatory policy, the remainder of this Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated.
(g) Acceptance and Changes. User accepts the terms of this Agreement by continued use of the site. If User does not accept the terms of this Agreement, it may not use the BMC Group SmartExchange™ site. BMC Group SmartExchange reserves the right to amend this Agreement at any time by notifying User of changes. The continued use of BMC Group SmartExchange™ by User following the posting of changes or amendments to this Agreement constitutes acceptance of such changes or amendments.
(h) By using this site you acknowledge your acceptance of this agreement and its policies