UK TERMS & CONDITIONS

1. Services

In consideration of Customer’s prompt payment to BMC Group Limited (“BMC”) or its affiliate, SmartCloud, LLC (“SmartCloud”) of all amounts due and compliance by Customer and its Authorized Third-Party Users with the all terms of the Agreement, and subject to all the terms of the Agreement, BMC will use commercially reasonable efforts to provide the Services described in the Description of Services and Fees (“Services”), to Customer and its Authorized Third-Party Users. With respect to the Services provided, BMC grants to Customer a non-exclusive, non-sublicensable, revocable, non-transferable, limited right to access the SmartRoom in order to participate in the business being conducted through the Services and grants Customer the right to permit only its Authorized Third-Party Users to utilize the Services, all strictly in accordance with the terms and conditions of this Agreement.

2. Customer Responsibilities
3. Customer is responsible for compliance with all Customer obligations in the Agreement and, except for payment of fees under the Description of Services and Fees, Customer is also responsible for causing all Authorized Third-Party Users to comply with all such obligations.
4. Customer will not, directly or indirectly,
5. i) redistribute for commercial purposes, reverse engineer, disassemble, transfer, distribute or otherwise commercially exploit anything with respect to the Services;
6. ii) modify or make derivative works based upon the Services;

iii) access the Services in order to build a competitive product or service; or

1. iv) use the Services in any manner inconsistent with the terms and conditions of this Agreement. Additionally, Customer shall not use the Services to:

(i) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; 

(ii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful material, including material harmful to children or violative of third-party privacy rights; 

(iii) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; 

(iv) interfere with or disrupt the integrity or performance of the Services or the data contained therein; or 

(v) attempt to gain unauthorized access to the Services or its related data, systems or networks.

1. Compliance with Laws. With respect to the Services, Customer shall not cause any violation of applicable foreign, federal, state and/or local laws, ordinances, rules or regulations, including without limitation, the laws, ordinances, rules, regulations and case law of foreign, federal, state, and/or local agencies (collectively, “Laws”). Customer represents and warrants that any data, media, or other content Customer, or any Authorized Third-Party Users, uses or disseminates in connection with the Services does not violate the intellectual property rights or other rights of any third party.
2. Unauthorized Access. Customer shall take diligent and reasonable steps to prevent unauthorized access to the SmartRoom, including without limitation by maintaining passwords and other log-in information confidential. Customer shall notify BMC immediately of any known or suspected unauthorized access to or use of the Services, SmartRoom or Uploaded Data or any breach of security and shall use best efforts to stop said breach.
3. OWNERSHIP
4. As between the parties, BMC owns and shall retain all right, title, and interest in and to the Services, and all other BMC products and services, and all physical, electronic and intangible components thereof, including without limitation all related applications, data hosting, operational services, user interface designs, processes, technology, know-how, materials (including without limitation any manual or instructions for using the Services), software and source code, and any and all future enhancements or modifications thereto however made, and all intellectual property rights therein.
5. Customer and Authorized Third-Party Users. Uploaded Data shall remain the property of Customer (or its respective Authorized Third-Party Users, as applicable).
6. CONFIDENTIALITY
7. Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical, financial or other
   non-public information relating to the Disclosing Party’s business (hereinafter referred to as “Confidential Information” of the Disclosing Party). BMC’s Confidential Information includes, without limitation, non-public information regarding features, functionality and performance of the Services. Customer Confidential Information includes non-public data provided by Customer to BMC to enable the provision of the Services including, without limitation, Uploaded Data.

The Receiving Party agrees:

• to take reasonable precautions to protect such Confidential Information, and
• not to use (except in furtherance of the Services or as otherwise permitted herein) or divulge to any third person any such Confidential Information.

The Disclosing Party agrees that the foregoing shall not apply with respect to any information that the Receiving Party can document 

1. is or becomes, independent of acts or omissions of the Receiving Party,

generally available to the public, or

1. was in its possession or known by it prior to receipt from the Disclosing Party, or
2. was rightfully disclosed to it without restriction by a third party, or
3. was independently developed by it without use of any Confidential Information ofthe Disclosing Party or 
4. is required to be disclosed by law.
5. BMC will use information and data security procedures reasonably designed to prevent the unauthorized disclosure or use of Customer Confidential Information and will comply with all applicable laws relating thereto with respect to confidentiality, privacy and data security.
6. Customer agrees that once announced and publicly known, BMC may use Customer’s name, a description of the subject transaction and any Customer testimonials in BMC’s advertising and marketing materials, including, without limitation, use on its websites.
7. Each party acknowledges and agrees the use or disclosure of Confidential Information inconsistent with this Agreement could cause irreparable harm to a Disclosing Party, the extent of which would be difficult to ascertain. Accordingly, each party agrees that, in addition to any remedies available at law, the Disclosing Party shall have the right to obtain immediate injunctive relief, without the necessity of posting a bond, in the event of a breach or threatened breach of this Section 4 by the Receiving Party, any of its affiliates or their representatives. This Section 4 shall survive termination or expiration of this Agreement.
8. LIMITED WARRANTY

BMC SHALL USE COMMERCIALLY REASONABLE EFFORTS TO PROVIDE THE SERVICES IN A MANNER WHICH REASONABLY MINIMIZES ERRORS AND INTERRUPTIONS IN THE SERVICES. SERVICES MAY BE TEMPORARILY UNAVAILABLE FOR SCHEDULED MAINTENANCE OR FOR UNSCHEDULED EMERGENCY MAINTENANCE, EITHER BY BMC OR BY THIRD-PARTY PROVIDERS, OR BECAUSE OF OTHER CAUSES BEYOND BMC’S REASONABLE CONTROL, BUT BMC SHALL USE COMMERCIALLY REASONABLE EFFORTS TO PROVIDE ADVANCE NOTICE IN WRITING OF ANY SERVICE DISRUPTION SCHEDULED BY BMC. HOWEVER, BMC DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE. BMC DOES NOT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. WITHOUT LIMITING THE FOREGOING, CUSTOMER ACKNOWLEDGES THAT FEATURES OF THE SERVICES DESIGNED TO RESTRICT ACCESS TO OR USE OF DATA CANNOT PREVENT MANUAL COPYING OF DISPLAYED INFORMATION AND MAY NOT PREVENT ELECTRONIC OR DIGITAL CAPTURE USING THIRD PARTY SOFTWARE. BMC DOES NOT REPRESENT OR WARRANT THAT THE SERVICES ARE SECURE FROM HACKING OR OTHER UNAUTHORIZED INTRUSION OR THAT CUSTOMER DATA AND DATA OF AUTHORIZED THIRD-PARTY USERS WILL REMAIN PRIVATE OR SECURE. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND BMC DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. CUSTOMER HEREBY ACKNOWLEDGES THAT IT HAS NOT RELIED ON ANY WARRANTY, CONDITION, GUARANTY OR REPRESENTATION OTHER THAN THOSE CONTAINED IN THIS AGREEMENT. THIS SECTION 5 SHALL SURVIVE TERMINATION OR EXPIRATION OF THIS AGREEMENT.

6. LIMITATION OF LIABILITY

NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR CLAIMS FOR 

(I) PERSONAL INJURY DUE TO NEGLIGENCE, 

(II) WRONGFUL DEATH, 

(III) WILLFUL MISCONDUCT OR 

(IV) FRAUD

IN NO EVENT SHALL BMC OR ITS AFFILIATES, OR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, SHAREHOLDERS, MEMBERS, EMPLOYEES, SUBCONTRACTORS, VENDORS, SERVICE PROVIDERS, AGENTS OR REPRESENTATIVES, OR ANY OF THEIR RESPECTIVE SUCCESSORS OR ASSIGNS (COLLECTIVELY, THE “BMC PARTIES”), BE LIABLE FOR ANY LOSS OF PROFIT, LOSS OF BUSINESS, LOSS OF DATA, LOSS OF CONTENT, LOSS OF PURCHASE PRICE, DIMINUTION IN THE VALUE OF THE TRANSACTION CONTEMPLATED BY USE OF THE SERVICES, OR FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES ARISING IN CONNECTION WITH THE SERVICES OR THIS AGREEMENT (WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL THEORY), EVEN IF ANY OF SUCH BMC PARTIES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES. IN ANY EVENT, THE ENTIRE LIABILITY OF THE BMC PARTIES IN CONNECTION WITH THE SERVICES AND THIS AGREEMENT (WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL THEORY) SHALL NOT EXCEED, IN THE AGGREGATE, THE LESSER OF

(I) THE TOTAL AMOUNT OF FEES PAID UNDER THIS AGREEMENT BY CUSTOMER TO BMC IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY, AND 

(II) THE AMOUNT OF INSURANCE PROCEEDS PAID TO BMC FOR THE APPLICABLE CLAIM (EXCLUDING PAYMENTS FOR DEFENSE AND RELATED EXPENSES AND FEES). NO ACTION, REGARDLESS OF FORM, ARISING OUT OF OR RELATED TO THIS AGREEMENT MAY BE BROUGHT BY CUSTOMER MORE THAN TWELVE (12) MONTHS AFTER THE EVENT GIVING RISE TO SUCH CLAIM. THIS SECTION 6 SHALL SURVIVE TERMINATION OR EXPIRATION OF THIS AGREEMENT.

7. INDEMNIFICATION

Customer will indemnify, defend and hold harmless the BMC Parties from and against any and all claims, damages, losses, costs, liabilities, and expenses (including without limitation reasonable court costs and attorneys’ fees) arising from or relating to: 

(i) a breach by Customer or any Authorized Third-Party Users of any of term or condition of this Agreement, or

(ii) the use by Customer, or any Authorized Third-Party Users, of the Services in violation of this Agreement, any Laws, or third party rights, or 

(iii) any Uploaded Data, except, in any case, to the extent based on BM C’s willful misconduct or fraud. This Section 7 shall survive termination or expiration of this Agreement.

8. FORCE MAJEURE.

Any delays in or failures of performance by BMC are not a breach of this Agreement, and BMC shall not be responsible for any data corruption, loss, disclosure or publication, or any interruption of services, to the extent caused by anything beyond BMC’s reasonable control, including without limitation, acts of God, embargoes, catastrophes, acts of civil or military authorities, civil disturbances, rebellion, sabotage, acts of terror, wars, riots, strikes or other labor disputes, fires, explosions, interruptions in telecommunications or Internet or network provider services, problems due to Customer owned or used equipment, power outages, or governmental restrictions.

9. TERMINATION
10. This Agreement shall be in effect for the Term until terminated

(i) in accordance with the Description of Services and Fees, 

(ii) in accordance with subsection 9(b) or 

(iii) by agreement of the parties.

1. Notwithstanding the foregoing, BMC may terminate this Agreement immediately upon written notice if Customer:

(i) becomes insolvent; 

(ii) becomes the subject of a petition in bankruptcy which is not withdrawn or dismissed within 60 days thereafter;

(iii) makes an assignment for the benefit of creditors; or 

(iv) breaches any material obligation under this Agreement (including but not limited to, failure to make any payment when due) and fails to cure such breach within 30 days after delivery of notice thereof, provided, in the event of a failure to make a payment when due, the cure period shall be 15 days after delivery of notice. In the event BMC is legally prohibited from terminating the Agreement, or is otherwise legally required to continue providing the Services, the Services shall be provided on a month to month basis and the recipient of the Services shall have all of Customer’s obligations under the Agreement including, without limitation, the obligation to pay for the Services as set forth in the Agreement. BMC also may terminate or suspend this Agreement immediately upon notice if BMC determines in its reasonable discretion that continuing to provide or use the Services pursuant to this Agreement would infringe upon the intellectual property rights of any third party, or that the Services have been or may be used for any illegal transaction or unlawful purpose.

1. Upon termination, the Services shall immediately cease, and Customer will discontinue use of the Services.
2. If this Agreement is canceled or otherwise terminated, all charges accrued and unpaid by Customer to the date of cancellation or termination shall become immediately due. Subject to Customer’s payment in full of all amounts due, upon Customer’s written request, BMC Group shall promptly deliver in accordance with Customer’s written directive and at Customer’s sole expense, any or all Uploaded Data, provided that BMC may retain a copy in accordance with is document retention policies or customs and such retained copy remains subject to the confidentiality obligations in this Agreement.
3. MISCELLANEOUS
4. Entire Agreement. This Agreement contains the entire agreement and understanding between the parties with respect to the subject matter hereof, and merges all prior discussions, representations and negotiations with respect to the subject matter of this Agreement.
5. Amendment. No amendment or modification hereof shall be valid or binding upon the parties unless made in writing and signed by both parties.
6. Assignment & Successors. Customer shall not assign its rights or delegate its obligations under this Agreement (either may hereafter be called, an “assignment”), either in whole or in part, whether by operation of law or otherwise to an non-affiliate without BMC’s prior written consent, which consent shall not be unreasonably withheld. Any attempted assignment without such written consent will be void. It is agreed that it is reasonable for BMC to withhold consent (and such consent shall be deemed to not be given) if

(i) in its reasonable judgment, the proposed assignee will not have the ability to fully comply with this Agreement including, without limitation, satisfy all financial obligations, or

(ii) Customer failed to provide BMC with at least 30 days advance written notice of an assignment, or

(iii) Customer failed to pay all amounts due prior to the assignment. 

Any permitted assignment shall require the assignee or party to which the obligations are delegated to execute an agreement with BMC requiring such party to fully assume all subject Customer obligations. Regardless, Customer shall not be relieved of any responsibility or liability under this Agreement (i.e., Customer shall remain primarily liable and responsible), including without limitation, for all payment obligations. Consent to any assignment shall not operate as a waiver of the necessity of a consent to any subsequent assignment. If Customer is a corporation, then any assignment by merger, consolidation, reorganization or liquidation, or any change in the ownership of, or power to vote, the majority of its outstanding voting stock, or a recapitalization which effectively alters such voting control, shall constitute an assignment for the purposes of this Section. If Customer is a partnership, a fifty percent (50%) change in control shall constitute an assignment. In any event, a sale of (or attempt to sell) a substantial portion of Customer’s assets not in the ordinary course of its business shall constitute an assignment for purposes of this Section. The rights and liabilities of the parties under this Agreement will bind and inure to the benefit of the parties’ respective successors, heirs, executors, legatees and permitted assigns.

1. Headings. The headings used in this Agreement are for convenience of reference only and are not intended to be a part of or to affect the meaning or interpretation of this Agreement.
2. Notices. Notices shall be sent by personal delivery, nationally-known overnight carrier, or by certified or registered mail, postage prepaid, properly addressed. Notices shall be effective upon receipt. Notices shall be sent to the parties hereto as follows or to such subsequent addresses as either party may furnish the other by giving notice per this Section 10.e.
3. Independent Contractors. The parties shall act and at all times shall be independent contractors. Nothing in this Agreement shall be construed or implied to create an agency, partnership or employer and employee relationship between the parties. Neither party shall make commitments or incur any charges or expenses for or in the name of the other party except as specifically permitted in this Agreement.
4. Severability. If any term, condition or provision of this Agreement is held to be unenforceable for any reason, it shall, if possible, be interpreted rather than voided, in order to achieve the intent of the parties to this Agreement to the extent possible. In any event, all other terms, conditions and provisions of this Agreement shall fully be deemed valid and enforceable. This Section 10.g. shall survive termination or expiration of this Agreement.
5. Waiver. None of the terms, covenants, and conditions of this Agreement can be waived except by the written consent of the party waiving compliance.
6. Applicable Law, Jurisdiction and Venue. The validity, construction and performance of this Agreement shall be governed by and construed in accordance with the laws of the United Kingdom applicable to contracts executed in and performed entirely within the United Kingdom, without reference to any choice of law principals. With respect to any litigation arising out of this Agreement, Customer waives any right to a jury trial and agrees to submit to the jurisdiction and venue of the courts in London, England.
7. Counterparts. This Agreement may be executed in counterparts with the same effect as if the parties executing the counterparts had all executed one counterpart.
8. Construction. The parties agree that the terms of this Agreement result from negotiations between them. This Agreement will not be construed in favor of or against either party by reason of authorship.