BMC's EULA

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PRODUCT ONLINE - END USER LICENSE AGREEMENT

BY OPENING THE PACKAGE, INSTALLING, PRESSING "AGREE" OR "YES" OR USING THE PRODUCT, THE ENTITY OR INDIVIDUAL ENTERING INTO THIS AGREEMENT AGREES TO BE BOUND BY THE FOLLOWING TERMS. IF YOU DO NOT AGREE WITH ANY OF THESE TERMS, DO NOT INSTALL OR USE THE PRODUCT, PROMPTLY RETURN THE PRODUCT TO BMC OR YOUR BMC RESELLER, AND IF YOU ACQUIRED THE LICENSE WITHIN 15 DAYS OF THE DATE OF YOUR ORDER CONTACT BMC OR YOUR BMC RESELLER FOR A REFUND OF LICENSE FEES PAID. IF YOU REJECT THIS AGREEMENT, YOU WILL NOT ACQUIRE ANY LICENSE TO USE THE PRODUCT.

This Agreement ("Agreement") is between the entity or individual entering into this Agreement ("Customer") and the BMC Entity for the applicable Territory as described in Section 19 ("BMC"). In addition to the restrictions imposed under this Agreement, any other usage restrictions contained in the Product installation instructions or release notes shall apply to your use of the Product.

Territory: The country where Customer acquired the license.

I. GENERAL TERMS.

1. GENERAL DEFINITIONS. "Affiliate" is an entity that controls, is controlled by or shares common control with BMC or Customer, with more than 50% ownership interest. "Licensed Capacity" is the amount of each Product licensed as established in the Order. For licenses based on the power of a computer, Customer agrees to use BMC's then current computer classification scheme, which will be provided upon request. "Order" is an agreed written or electronic document identifying the Products to be licensed, subject to the terms of this Agreement. "Product" is the object code of the software and all accompanying documentation delivered to Customer, including all items delivered by BMC to Customer under Support. "Support" is the support services program as further specified in this Agreement.

2. LICENSE. Subject to the terms of this Agreement, BMC grants Customer a non-exclusive, non-transferable, perpetual (unless a non-perpetual license is provided on an Order) license, as specified in the relevant Order, to exercise the following rights to the Product up to the Licensed Capacity: (a) install on Customer's owned or leased hardware at a facility owned or controlled by Customer in the Territory; (b) operate solely for processing Customer's own data in Customer's business operations, and (c) make one copy of the Product for archival purposes only (collectively a "License"). If the Product design permits modification, then Customer may only use such modifications or new software programs for its internal purposes and otherwise consistent with the License.

3. RESTRICTIONS. Customer agrees to not: (a) disassemble, reverse engineer, decompile or otherwise attempt to derive any Product source code from object code, except to the extent expressly permitted by applicable law despite this limitation; (b) distribute or provide the Product to any third party or use it in a service bureau, outsourcing environment, or for the processing of third party data, or for rental, lease, or sublicense; (c) provide a third party with the results of any functional evaluation, or performance tests, without BMC's prior written approval; (d) attempt to disable or circumvent any of the licensing mechanisms within the Product; or (e) violate any other usage restrictions contained in the Product installation instructions or release notes.

4. PRODUCT PERFORMANCE WARRANTY. Except for a trial license as described below, BMC warrants that the Product will perform in substantial accordance with its documentation for a period of one year from the date of the Order. This warranty will not apply to any problems caused by software other than the Product, hardware not supplied by BMC, or misuse of the Product. No warranty is provided for additional Licensed Capacity.

5. LIMITED REMEDIES. BMC's entire liability, and Customer's exclusive remedy, for breach of the above warranty is limited to: BMC's use of commercially reasonable efforts to remedy defects covered by the warranty or replacement of the defective Product within a reasonable period of time, or if BMC cannot remedy or replace such defective Product within such time period, then BMC will refund the amount paid by Customer for the License for that Product. BMC's obligations in this section are conditioned upon Customer's providing BMC written notice of the claim during the warranty period and full cooperation and access to the Product in resolving any claim.

6. DISCLAIMER OF WARRANTIES. EXCEPT FOR THE EXPRESS WARRANTIES IN THIS AGREEMENT, THE PRODUCT IS PROVIDED WITH NO OTHER WARRANTIES WHATSOEVER, AND BMC, ITS AFFILIATES AND LICENSORS DISCLAIM ALL OTHER WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. BMC DOES NOT WARRANT THAT THE OPERATION OF THE PRODUCT WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT ALL DEFECTS CAN BE CORRECTED.

7. PAYMENTS AND DELIVERY. Customer will pay each License fee and/or Support fee upon receipt of invoice. 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) imposed in connection with the License and/or the Support fees which are exclusive of these taxes. For Products that are delivered electronically, upon request from BMC, Customer agrees to provide BMC with documentation supporting that the designated Product was received electronically. If Customer accepts any Product in a non-electronic format, there may be an additional charge and it is the sole responsibility of Customer to bear any sales/use tax obligation, penalties, and interest. 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. All Products are licensed FOB shipping point. The Products are accepted on the date of the Order.

8. PROPRIETARY RIGHTS AND CONFIDENTIALITY. BMC, its Affiliates or licensors retain all right, title and interest to the Product and all related intellectual property and proprietary rights. The Product and any third party software provided with the Product 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 Product. 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 financial information, software code, flow charts, techniques, specifications, development and marketing plans, strategies, and forecasts; (ii) as to BMC, and its licensors, the Product and any third party software provided with the Product; and (iii) the terms of this Agreement, including without limitation, Product 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; (d) is independently developed by or for Recipient; or (e) is required to be disclosed by applicable law or court order. Recipient may not disclose Confidential Information of Discloser to any third party or use the Confidential Information in violation of this Agreement.

9. DISCLAIMER OF DAMAGES. EXCEPT FOR VIOLATION OF PROPRIETARY RIGHTS AND CONFIDENTIALITY (SECTION 8), NEITHER PARTY, ITS AFFILIATES OR BMC'S LICENSORS ARE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES RELATING TO OR ARISING OUT OF THIS AGREEMENT, SUPPORT, THE PRODUCT OR ANY THIRD PARTY CODE OR SOFTWARE PROVIDED WITH THE PRODUCT (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 NEGLIGENCE OF A PARTY OR WHETHER SUCH DAMAGES RESULT FROM A CLAIM ARISING UNDER TORT OR CONTRACT LAW.

10. LIMITS ON LIABILITY. EXCEPT IN THE CASE OF INFRINGEMENT (SECTION 12), OR BREACH OF CONFIDENTIALITY (SECTION 8), BMC'S TOTAL LIABILITY FOR DAMAGES OF ANY KIND IS LIMITED TO THE GREATER OF AMOUNT PAID OR PAYABLE BY CUSTOMER FOR THE LICENSE TO THE APPLICABLE PRODUCT GIVING RISE TO SUCH DAMAGES. THE LIMITATION OF LIABILITY IN THIS SECTION WILL NOT APPLY IF AND TO THE EXTENT THE DAMAGE WAS CAUSED BY WILLFUL INTENT OR GROSS NEGLIGENCE ON THE PART OF EITHER PARTY.

11. TRIAL LICENSE. For Products provided without an Order and without charge Customer may only operate the Product on a trial basis for 30 days or longer time period if agreed to by BMC in writing, for purposes of evaluating whether Customer will acquire a license to the Product for a fee; and the Product is provided "AS IS" and without any warranty. BMC may terminate a trial license for its convenience upon notice to Customer.

12. INFRINGEMENT CLAIMS. If a third party asserts a claim against Customer asserting that Customer's use of a Product in accordance with this Agreement violates that third-party's patent, trade secret or copyright ("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, but only if: Customer promptly notifies BMC of any Infringement Claim, BMC retains sole control of the defense of any Infringement Claim and all negotiations for its settlement or compromise, and Customer provides all reasonable assistance requested by BMC. BMC's obligations above will not apply if the Infringement Claim is based on (i) the use of Product in combination with products not supplied or approved by BMC in writing or in the Product's user manuals, or (ii) the failure of Customer to use any updates to such Product within a reasonable time after such updates are made available to Customer. If BMC believes a Product may violate a right, then BMC will, at its expense: (a) modify the Product, or (b) procure the right to continue using the Product, and if (a) or (b) are not commercially reasonable, terminate Customer's right to use the Product and (1) for any perpetual licenses, issue a refund based upon the applicable license fees paid, prorated over 48 months from the date of the Order under which the Products are initially licensed; and (2) for any non-perpetual licenses, release Customer from its obligation to make future payments for the Product or issue a pro rata refund for any fees paid in advance. This section contains Customer's exclusive remedies and BMC's sole liability for Infringement Claims.

13. TERMINATION. BMC may: (i) terminate an Order and the Licenses to the Products on that Order if Customer fails to pay any applicable fees due under that Order within 30 days after receipt of written notice from BMC of non-payment; or (ii) terminate all Licenses and this Agreement in whole or in part and all Licenses if Customer commits any other material breach of this Agreement and fails to correct the breach within 30 days after BMC notifies Customer in writing of the breach. Upon any termination of a License, Customer will immediately deinstall and stop using the relevant Product, and upon BMC's request, Customer will immediately return such Product to BMC, together with all related documentation and copies, or certify its destruction in writing.

14. AUDIT. If requested by BMC not more than once a year, Customer agrees to deliver to BMC periodic written reports specifying Customer's use of the Product, and allow BMC to perform an audit at Customer's facilities during normal business hours to ensure compliance with the terms of this Agreement. Customer agrees to cooperate during any audit and to provide reasonable access to information and systems. If an audit reveals that Customer has exceeded the Licensed Capacity for a Product, Customer agrees to pay the applicable fees for additional capacity. If the understated capacity exceeds 5% of the Licensed Capacity of the applicable Product, then Customer agrees to also pay BMC's reasonable costs of conducting the audit.

15. EXPORT LAWS. Customer agrees not to import, export, re-export, or transfer, directly or indirectly, any part of the Product or any underlying information or technology except in full compliance with all United States, foreign and other applicable laws and regulations.

16. GOVERNING LAW. This Agreement is governed by the substantive laws in force, without regard to conflict of laws principles: (a) in the State of New York, 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.

17. ARBITRATION. ANY DISPUTE BETWEEN CUSTOMER AND BMC ARISING OUT OF THIS AGREEMENT OR THE BREACH OR ALLEGED BREACH, SHALL BE DETERMINED BY BINDING ARBITRATION CONDUCTED IN ENGLISH. IF THE DISPUTE IS INITIATED IN THE AMERICAS REGION, THE ARBITRATION SHALL BE HELD IN NEW YORK, U.S.A., UNDER THE CURRENT COMMERCIAL OR INTERNATIONAL, AS APPLICABLE, RULES OF THE AMERICAN ARBITRATION ASSOCIATION. IF THE DISPUTE IS INITIATED IN A COUNTRY IN THE ASIA PACIFIC REGION, THE ARBITRATION SHALL BE HELD IN SINGAPORE, SINGAPORE UNDER THE CURRENT UNCITRAL ARBITRATION RULES. IF THE DISPUTE IS INITIATED IN A COUNTRY OUTSIDE OF THE AMERICAS REGION OR ASIA PACIFIC REGION, THE ARBITRATION SHALL BE HELD IN AMSTERDAM, NETHERLANDS UNDER THE CURRENT UNCITRAL ARBITRATION RULES. THE COSTS OF THE ARBITRATION SHALL BE BORNE EQUALLY PENDING THE ARBITRATOR'S AWARD. THE AWARD RENDERED SHALL BE FINAL AND BINDING UPON THE PARTIES AND SHALL NOT BE SUBJECT TO APPEAL TO ANY COURT, AND MAY BE ENFORCED IN ANY COURT OF COMPETENT JURISDICTION. NOTHING IN THIS AGREEMENT SHALL BE DEEMED AS PREVENTING EITHER PARTY FROM SEEKING INJUNCTIVE RELIEF FROM ANY COURT HAVING JURISDICTION OVER THE PARTIES AND THE SUBJECT MATTER OF THE DISPUTE AS NECESSARY TO PROTECT EITHER PARTY'S CONFIDENTIAL INFORMATION, OWNERSHIP, OR ANY OTHER PROPRIETARY RIGHTS. ALL ARBITRATION PROCEEDINGS SHALL BE CONDUCTED IN CONFIDENCE, AND THE PARTY PREVAILING IN ARBITRATION SHALL BE ENTITLED TO RECOVER ITS REASONABLE ATTORNEYS' FEES AND NECESSARY COSTS INCURRED RELATED THERETO FROM THE OTHER PARTY.

18. U.S. GOVERNMENT RESTRICTED RIGHTS. If the Licenses are acquired in the United States the following applies: The Licenses to the Product acquired under this Agreement is "commercial computer software" as that term is defined in 48 C.F.R. 252.227-7014(a)(1). If acquired by or on behalf of a civilian agency, the U.S. Government acquires this commercial computer software and/or commercial computer software documentation subject to the terms of this Agreement as specified in 48 C.F.R. 12.212 (Computer Software) and 12.211 (Technical Data) of the Federal Acquisition Regulations ("FAR") and its successors. If acquired by or on behalf of any agency within the Department of Defense ("DOD"), the U.S. Government acquires this commercial computer software and/or commercial computer software documentation subject to the terms of this Agreement as specified in 48 C.F.R. 227.7202 of the DOD FAR Supplement and its successors.

19. BMC ENTITIES. The following licensing entities apply to this Agreement:

TerritoryLicensing EntityAddress of Licensing EntityUnited States, Canada and Latin America South (not a specified Central or South America country below)BMC Software Distribution, Inc.2101 CityWest Boulevard, Houston, Texas 77042EMEA (Europe, Middle East and Africa)BMC Software Distribution B.V.Boeing Avenue 245, 1119 PE Schiphol Rijk, The NetherlandsBrazilBMC Software do Brasil Ltda.Rua Leopoldo Couto de Magalhães Jr, 758 - 14º andar, São Paulo - SP - BrazilMexicoBMC 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.ArgentinaBMC Software de Argentina S.A.Ing. Butty 220 - Piso 14, Buenos Aires, Republica Argentina, C1001AFBS.E.A (Southeast Asia), Australia, New Zealand, Korea, Hong Kong, TaiwanBMC Software Asia Pacific Pte LtdOne Temasek Avenue, #17-01 Millenia Tower, Singapore 039192ChinaBMC Software (China) LimitedSuite 501-504, Level 5, Tower W1, The Towers, Oriental Plaza, #1 East Chang An Ave., Dong Cheng, Beijing 100738, ChinaJapanBMC Software K.K. Harmony Tower 24th Floor, 1-32-2 Honcho, Nakano-ku, Tokyo, 164-8721 20. MISCELLANEOUS TERMS. BMC is not liable for its failure to perform any obligation under this Agreement during any period in which performance is delayed by circumstances beyond BMC's reasonable control. A waiver by a party of any breach of any term of this Agreement will not be construed as a waiver of any continuing or succeeding breach. Customer may not assign or transfer this Agreement or a License to a third party, whether by merger or otherwise. Should any term of this Agreement be invalid or unenforceable, the remaining terms will remain in effect. BMC rejects all additional or conflicting terms of a Customer form purchasing document. The parties acknowledge they have read this Agreement and agree that it is the complete and exclusive statement of the agreement and supersedes any prior or contemporaneous negotiations or agreements, between the parties relating to the subject matter of this Agreement. This Agreement may not be modified or rescinded except in writing signed by both parties. The prevailing party in any litigation is entitled to recover its attorney's fees and costs from the other party. To the extent BMC Products include third party code: if (a) such third party code is provided for use with a Product, it may be used only with that Product; and (b) the documentation contains terms that pertain to such third party code, those terms govern the third party code in place of the terms of the applicable Order and this Agreement; except that the third party terms will not negate or amend the rights granted by BMC to Customer or the obligations undertaken by BMC in the applicable Order or this Agreement with respect to a Product. If a third party product is provided by BMC, and that third party product contains a third party license agreement, Customer's use of and support for such third party product will be governed solely by the third party license agreement. 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.

21. SUPPORT. Customer may acquire BMC support services ("Support") on an Order. Once Support is acquired for a Product, Customer is automatically enrolled in Support on an annual basis for all Licensed Capacity of that Product, unless either party terminates Support on all Licensed Capacity of a Product upon at least 30 days written notice prior to the next Support anniversary date. The annual fee for Support is based on BMC's then-current Support price list. BMC may change its Support terms, to be effective upon Customer's support anniversary date. BMC reserves the right to discontinue Support for a Product where BMC generally discontinues such services to all licensees of that Product. If Customer terminates Support and then re-enrolls in Support, BMC may charge Customer a reinstatement fee.

22. ADDITIONAL TERMS. The following additional terms are incorporated into this Agreement.

a. GENERAL DEFINITIONS. "Computer" or "Server" has the meaning generally given within the computer industry, which is a single machine, whether a central processing unit, such as a mainframe machine, or a distributed systems machine, such as a Unix or Intel based server. A mainframe machine would be an individual mainframe computer having single or multiple processors or engines. "Enterprise" is the environment consisting of all hardware owned or leased by Customer in the Territory.

b. LICENSE RESTRICTIONS. The following restrictions apply to certain Products. Additional Restriction for BMC Magic Products: No terms in any business objects license agreement embedded in the Product apply to the Product. Additional Restriction for BMC Remedy Products: Customer may not bypass, in any way, the use of a concurrent or named user license to manage an update (including, without limitation, submitting a ticket to a parallel form and then using workflow to perform the update without a license). Additional License for BMC Magic Products: Customer may make and operate 2 additional copies of the Product solely for internal pre-production configuration and testing purposes. Any BMC Performance Assurance Suite Products and any Analyzer, Predictor, Perceiver, Visualizer, and Application Analysis Products: Licensed to the Computer that the Products are initially installed on and may not be moved to another Computer unless the original Computer has been removed from service. A license is required for all Computers for which the Product or one of its components is installed and/or manages regardless of whether the Product or one of its components is installed on that Computer. Asset Management Product Restriction for BMC Marimba Products: Each "Discovery Express" License is limited for use with one Client Endpoint, Device Endpoint, Server Endpoint, or Other Endpoint, as the case may be. BMC Performance Manager for Database: Each CPU on which this Product is installed can only monitor one database at a time (Oracle, Sybase, DB2 UDB, or Microsoft SQL Server) This product encompasses monitoring functionality for four different databases being Oracle, Sybase, DB2 UDB, or Microsoft SQL Server. No two different database monitoring functionalities may be installed concurrently on the same licensed CPU. However, Customer may switch from one database monitoring functionality to another on a per CPU basis. BMC Performance Manager for Servers: This Product encompasses monitoring functionality for three different operating systems being Unix, Microsoft Windows Servers, and Linux. No two different operating system monitoring functionalities may be installed concurrently on the same licensed Computer. However, Customer may switch from one operating system monitoring functionality to another on a per Computer basis. BMC Performance Perceiver for Servers: This Product encompasses monitoring functionality for three different operating systems being Unix, Microsoft Windows Servers, and Linux. No two different operating system monitoring functionalities may be installed concurrently on the same licensed Computer. However, Customer may switch from one operating system monitoring functionality to another on a per Computer basis. BMC Performance Analyzer for Servers: This Product encompasses monitoring functionality for three different operating systems being Unix, Microsoft Windows Servers, and Linux. No two different operating system monitoring functionalities may be installed concurrently on the same licensed Computer. However, Customer may switch from one operating system monitoring functionality to another on a per Computer basis. BMC Performance Predictor for Servers: This Product encompasses monitoring functionality for three different operating systems being Unix, Microsoft Windows Servers, and Linux. No two different operating system monitoring functionalities may be installed concurrently on the same licensed Computer. However, Customer may switch from one operating system monitoring functionality to another on a per Computer basis. Client Endpoint: Is a non-Server Computer. Desktop/Mobile Management Product Restrictions for BMC Marimba Products: Each "Desktop/Mobile Management" License is limited for use with one Client Endpoint.

• Desktop/Mobile Patch Management Restriction: A "Desktop/Mobile Patch Management" License may only be used to manage, deploy, update and inventory anti-virus software and security patches on one Client Endpoint.
• Desktop/Mobile Patch Management Pack Restriction: The Desktop/Mobile Application Management Product and the Desktop/Mobile Configuration Discovery Product that are shipped with the Desktop/Mobile Patch Management Pack License may only be used to manage, deploy, update and inventory anti-virus software and security patches on one licensed Client Endpoint, unless Customer has separately licensed the Desktop/Mobile Application Management Product and the Desktop/Mobile Configuration Discovery Product. Customer may not use the functionality of such Products for any other purpose.
• Marimba Desktop OS Management Restriction: A "Marimba Desktop OS Management" License may only be used to manage operating system migration activities on one Client Endpoint. Each Marimba Desktop OS Management License: (a) may only be used on a licensed Client Endpoint that is licensed for use with both a Desktop/Mobile Application Management License and a Desktop/Mobile Configuration Discovery License; and (b) may not be redeployed or harvested to a different Client Endpoint.
• Extranet Application Management Restriction: An "Extranet Application Management" License may only be used on one Client Endpoint. The parties must mutually agree on the name of each Single Application and its primary function at the time of Order. Single Application is defined as a Tuner channel containing one application with one primary function, and Tuner is defined as is the client component of the Product configured by Customer for deployment on licensed Endpoints.

Development License Restriction for BMC Remedy Products: Customer will restrict this license to a server dedicated to development and testing only, and will not allow any production or commercial activity on that server. Device Endpoint: Is a personal digital assistant or similar computing device. Device Management Product Restriction for BMC Marimba Products: Each "Device Management" License is limited for use with one Device Endpoint. Endpoint: Is a Client Endpoint, a Device Endpoint, a Server Endpoint, or Other Endpoint, as the case may be. Hot Backup License Definition and Restriction for BMC Remedy Products: A hot backup license is a replicate of the Remedy production licenses on a backup server ("Backup Server"). Customer may access the Backup Server only when the customary server on which the AR System is installed fails or only in preparation of the Backup Server for such situation. Load Balanced System Restriction for BMC Remedy Products: If Customer has multiple servers in a single logical environment pointing to a single AR System database instance, only one Instance of Remedy "per Instance" licenses is required for installation on these servers (except for the AR System, which must be licensed for each server). Magic Service Desk Restriction for BMC Magic Products: When purchasing Concurrent User licenses for the "Magic Service Desk" Product, regardless of the number of such licenses purchased and regardless of the number of purchases made (including future purchases), Customer is restricted via license keys to a total of (i) five Concurrent Users conducting a process in the report environment of the Crystal Reports "Web Server" product which is embedded in the "Magic Service Desk" Product and (ii) two named users accessing the "Crystal Reports Professional " product which is bundled with the "Magic Service Desk" Product. Marimba Control Center Module Restriction for BMC Marimba Products: Each "Marimba Control Center" License may be used by Administrators for the project for which it was licensed. An Administrator is defined as an employee with access to or the right to use the administrative components of the Product. Marimba Developers Kit Definition and Restriction for BMC Marimba Products: A "Marimba Developers Kit" license allows Customer to embed the SDK Run Time Code, in unmodified object code form, into a single software application developed by Customer to create an "SDK Client." An SDK Client may only be used on or distributed to licensed Endpoints that are licensed separately by Customer. Each SDK Client must have a principal purpose and functionality substantially different than that of the SDK Run Time Code. Use of any software other than a Desktop/Mobile Management Product, a Device Management Product and/or a Server Management Product, as applicable, to invoke the update functionality of the SDK Run Time Code is expressly prohibited. SDK Run Time Code is defined as is the unmodified object code files in the Marimba Product that are designated as re-distributable. Other Endpoint: Is a router, a switch, a hub, or other network device, peripheral or hardware instrument, as the case may be. Server Endpoint: Is a Computer or other device that provides a service for other Computers or devices connected to it via the Internet, an extranet, an intranet, another network, or otherwise. QuickPass licenses do not include CONTROL-SA's Enterprise User Administration functionality. Server Management Product Restrictions for BMC Marimba Products: Each "Server Management" License is limited for use with one Server Endpoint.

• Server Patch Management Restriction: A "Server Patch Management" License may only be used to manage, deploy, update and inventory anti-virus software and security patches on one Server Endpoint.
• Server Patch Management Pack Restriction: The Desktop/Mobile Application Management Product and the Desktop/Mobile Configuration Discovery Product that are shipped with the Server Patch Management Pack License may only be used to manage, deploy, update and inventory anti-virus software and security patches on licensed Server Endpoints, unless Customer has separately licensed the Desktop/Mobile Application Management Product and the Desktop/Mobile Configuration Discovery Product. Customer may not use the functionality of such Products for any other purpose. With respect to the above Server Management Licenses, Customer must comply with any restrictions designated at the time of Order on the maximum number of CPUs that may be included in each Server Endpoint.

c. UNITS OF MEASUREMENT. The following units of measurement apply to certain Products.

per asset: A license is required for every Server Endpoint, Client Endpoint, Device Endpoint or Other Endpoint monitored, managed or discovered by the Product. per Client Endpoint: Is a non-Server Computer. per component: A license is required for all objects that represent a physical or logical part of the service model. per concurrent session: A license is required for the maximum number of simultaneous sessions accessing the Product. per concurrent user/Floating License: A license is required for the maximum number of individual employees or contractors of Customer to whom simultaneous access has been granted to the Product on a computer or multiple computers. per CPU - Full Capacity: A "CPU" is a physical processor or central unit in a designated Computer containing the logic circuitry that performs the instructions of a Computer's programs. A CPU may contain one or more processor cores. For each Computer upon which the Product is installed or managed, a license is required for the total number of CPUs in each Computer. per CPU - Subcapacity: A "CPU" is a physical processor or central unit in a designated Computer containing the logic circuitry that performs the instructions of a Computer's programs. A CPU may contain one or more processor cores. A license is required for all CPUs on which the Product is installed or managed. per database: A license is required for the total allocated database space per host ID or physical Computer which the Product is managing. The total allocated database capacity cannot be segregated or aggregated into lower or higher ranges. per deployed robot: A license is required for all PATROL End-to-End Response Timer robots deployed. per Device Endpoint: Is a personal digital assistant or similar computing device. per enterprise: A license is required per Customer or Client, or both, for its internal use only, regardless of the number of times Customer installs the Product in its Enterprise or its Client's Enterprise. A "Client" is a third party whose data is processed by Customer, provided Customer is an authorized BMC service provider. per installed server: A license is required for each Server (with a Classification at the appropriate Tier level, if applicable) upon which the Product or any of its components is installed. per instance: A license is required for all named occurrences of the Product created or installed in the Enterprise. per Linux engine: A license is required for all engines of a mainframe Computer on which Customer is running Linux, classified by Linux Group using BMC's standard Computer classification. per managed component: A license is required for all objects that represent a physical or logical part of the service model managed by the Product. per managed server: A license is required for each Server (with a Classification at the appropriate Tier level, if applicable) upon which the Product or one of its components is installed and/or manages regardless of whether the Product or one of its components is installed on that Server. per monitored element: A license is required for all remotely monitored elements, such as a Server, database, operating system, URL, firewall, storage, or network device. per monitored server: A license is required for each Server (with a Classification at the appropriate Tier level, if applicable) which the Product or one of its components is monitoring regardless of whether the Product is monitoring it locally or remotely. per named user/Fixed License: A license (with a Classification at the appropriate Level, if applicable) is required for all individual employees or contractors or clients of Customer to whom access has been granted to the Product on a computer or multiple computers typically via the issuance of a unique ID regardless of whether the individual is actively using the Product at any given time. Internal User: Refers to all employees (full time and part time) and contractors within a company whose information is being managed using the BMC IdM tools. Information on these users will typically be found in the HR database. External User: Refers to business partners and customers/ prospects whose information is being managed using the BMC IdM tools. Archive User: Refers to all users whose identity information is stored within the IdM system but is not being actively managed; the information could be stored for the purpose of audit/ forensics etc. Developer User: Users who create or modify applications using the BMC Directory Management Studio. per node: A license is required for the maximum number of Nodes which the Product manages and/or monitors. A "Node" is a network device (IP or non-IP) such as a router, switch or Computer. per port: A license is required for the total port capacity of a managed storage networking device regardless of whether the port is in service. Storage networking devices typically include HBAs (Host Bus Adapters), Storage Switches and Directors. The total port capacity cannot be segregated or aggregated into lower or higher ranges. per project: Is the specific project, facility or business unit, as the case may be, for which the relevant Product was licensed at the time of order. per Server Endpoint: Is a Computer or other device that provides a service for other Computers or devices connected to it via the Internet, an extranet, an intranet, another network, or otherwise. per Service Management MIPS: A license is required for the total aggregate number of MIPS for each Computer, including all Computers coupled in a parallel Sysplex environment, upon which the Product is installed, managed or monitored. MIPS Rating is the aggregate computing power (expressed in millions of instructions per second) of a Computer, using the MIPS rating set forth in the then current Gartner Group Rating Guide. per site: A license is required for the physical site at which the Product is installed regardless of the number of times the Product is installed. per task: A license is required for the maximum number of Tasks loaded into the daily CONTROL-M active environment in a 24-hour period. A "Task" contains the name of the JCL, CL, DCL, ECL, script or dummy processes that will execute as well as the scheduling criteria, flow control, resource usage and more. The numbers of steps or scripts executed within the named Task shall have no bearing upon the number of Tasks licensed - the sum total of the commands constitutes a single Task. For CONTROL-M: Licensed tasks equal the maximum number of tasks loaded into the daily CONTROL-M active environment in a 24 hour period. Each task contains the name of the JCL, CL, DCL, ECL, script or dummy processes that will execute as well as the scheduling criteria, flow control, resource usage and more. The numbers of steps or scripts executed within the named task shall have no bearing upon the number of tasks licensed - the sum total of the commands constitutes a single task. For CONTROL-M/Assist: Licensed tasks equal the maximum number of tasks that will interface a third party scheduler with the CONTROL-M active environment in a 24 hour period. Control-M/Assist may only be used to interface with the third party scheduler and may not be used to schedule or manage batch processes outside of the cross-scheduler dependencies. For all other task based Products, the maximum number of tasks that the Product is priced against, is measured as the maximum number of CONTROL-M tasks. per terabyte: A license is required for the total aggregate storage capacity in the Enterprise. per third-party software: A license is required for each installation of the third-party software product that interfaces with the Product.

YOU AGREE THAT YOU HAVE READ THIS AGREEMENT AND INTEND TO BE BOUND, AS IF YOU HAD SIGNED THIS AGREEMENT IN WRITING. IF YOU ARE ACTING ON BEHALF OF AN ENTITY, YOU WARRANT THAT YOU HAVE THE AUTHORITY TO ACCEPT THE TERMS OF THIS AGREEMENT FOR SUCH ENTITY.

EULA .doc (v10.11.05)