MAS - BMC Software, Inc. - GS35F0340W

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GENERAL SERVICES ADMINISTRATION

Federal Supply Service

Authorized Federal Supply Schedule Price List

On-line access to contract ordering information, terms and conditions, up-to-date pricing, and the option to create an electronic delivery order are available through GSA Advantage!®, a menu-driven database system. The INTERNET address GSA Advantage!® is: GSAAdvantage.gov

MULTIPLE AWARD SCHEDULE (MAS)

Contract number: GS-35F-0340W

Current through Mod PA-0070, effective April 23, 2021

For more information on ordering from Federal Supply Schedules click on the FSS Schedules button at fss.gsa.gov

Contract period: March 24, 2010 through March 23, 2025

BMC Software, Inc.

2103 Citywest Boulevard Houston, TX 77042

800-841-2031

713-918-1938 www.bmc.com

The following telephone number can be used by ordering activities to obtain technical and/or ordering assistance:

713- 918-2621

Contract administration source: nancy_kuhn@bmc.com

Business size: Other than small business

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CUSTOMER INFORMATION:

1. TABLE OF AWARDED SPECIAL ITEM NUMBERS WITH APPROPRIATE CROSS-REFERENCE TO ITEM

DESCRIPTIONS AND AWARDED PRICES.

a. Table of awarded special item numbers with appropriate cross-reference to item descriptions and awarded prices.

511210 - Software Licenses (includes both term and perpetual software licenses and maintenance.)

54151S - Information Technology Professional Services.

611420 - Information Technology Training.

See price list.

OLM - Order-Level Materials are supplies and/or services acquired in direct support of individual task or delivery order placed against a Schedule contract or BPA. OLM pricing is not established at the Schedule contract or BPA level, but at the order level.

OLMs are Purchased under the authority of the FSS Program, Unknown until an order is placed, Only authorized for use in direct support of another awarded SIN, Only authorized for inclusion at the order level under a Time-and- Materials (T&M) or Labor-Hour (LH) Contract Line Item Number (CLIN), OLMs are not open-market items, OLMs are not awarded under ancillary supplies/services or other direct cost (ODC) SINs (these items are defined, priced, and awarded at the FSS contract level).

The Order-Level Materials SIN is only authorized for use in direct support of another awarded SIN, Price analysis for OLMs is not conducted when awarding the FSS contract or FSS BPA, Order-Level Materials SIN must be inclusive of the Industrial Funding Fee (IFF)

b. Identification of the lowest priced model number and lowest unit price for that model for each special item number awarded in the contract. This price is the Government price based on a unit of one, exclusive of any quantity/dollar volume, prompt payment, or any other concession affecting price. Those contracts that have unit prices based on the geographic location of the customer, should show the range of the lowest price, and cite the areas to which the prices apply.

c. If the Contractor is proposing hourly rates, a description of all corresponding commercial job titles, experience, functional responsibility and education for those types of employees or subcontractors who will perform services shall be provided. If hourly rates are not applicable, indicate “Not applicable” for this item.

2. MAXIMUM ORDER.

The Maximum Order value for the following Special Item Numbers (SINs) is $500,000:

Special Item Number 511210 - Software Licenses Special Item Number 54151S – Information Technoloy Professional Services

The Maximum Order value for the following Special Item Number is $250,000:

Special Item Number 611420 – Information Technology Training.

For OLMs, the cumulative value of OLMs in an individual task or delivery order cannot exceed 33.33% of the total value of the order.

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3. MINIMUM ORDER.

The Minimum Order value for an order is $100.00

4. GEOGRAPHIC COVERAGE (DELIVERY AREA):

Domestic delivery is delivery within the 48 contiguous states, Alaska, Hawaii, Puerto Rico, Washington, DC, and U.S.

Territories. Domestic delivery also includes a port or consolidation point, within the aforementioned areas, for orders received from overseas activities.

Overseas delivery is delivery to points outside of the 48 contiguous states, Washington, DC, Alaska, Hawaii, Puerto Rico, and U.S. Territories.

[X] The Geographic Scope of Contract will be domestic and overseas delivery.

The terms and conditions of this contract shall apply to all overseas location orders for purchase of software and software maintenance, in areas listed in the pricelist outside the 48 contiguous states, the District of Columbia, Alaska, Hawaii and the Commonwealth of Puerto Rico, except as indicated below:

Point of Exportation for all other overseas locations.

In place of a delivery/installation date for software, a shipping date shall be specified on the order. The Contractor shall pay for shipment to a CONUS APO/FPO. At the option of the ordering activity, F.O.B. will be Point of Origin, with freight prepaid and invoiced. Authorization for all shipping, export, and other charges must be included on the ordering activity order.

Upon request of the Contractor, the ordering activity may provide the Contractor with logistics support, as available, in accordance with all applicable ordering activity regulations. Such ordering activity support will be provided on a reimbursable or an allowance basis, and will only be provided to the Contractor's technical personnel whose services are exclusively required for the fulfillment of the terms and conditions of this contract (Purchase, Maintenance, and Service).

5. POINT OF PRODUCTION (CITY, COUNTY, AND STATE).

Houston, Harris County, Texas.

6. DISCOUNT FROM LIST PRICES OR STATEMENT OF NET PRICE.

The prices indicated are the net prices.

7. QUANTITY DISCOUNTS.

Dollar Volume: See below.

SPECIAL ITEM NUMBER 511210 SOFTWARE LICENSES (TERM SOFTWARE LICENSE)

MAINFRAME PRODUCTS

MAINFRAME SERVICE MANAGEMENT (MSM)

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a. Term License Pricing:

Term Agreements: A Term License is a license that expires at the end of a given period, or term. It may also be referred to as a time-based license. Customers that purchase Term licenses do not receive perpetual rights; therefore a Term license is a non-Perpetual offering. Term pricing is not published to a price sheet, but rather is a calculation based on the GSA Price. At the end of a Term contract, no migration is required, a new contract will be written. No credits are available for remaining, unused contract term.

Term Pricing Methodology: An annual factor is applied to the Perpetual List Price. Support is included in the price (ESP rates cannot be applied).

Annual Factors:

• Systems Management Model o Term Option 1yr – Term Factor is 0.87 o Term Option 2yr – Term Factor is 0.53 o Term Option 3yr – Term Factor is 0.42 o Term Option 4yr – Term Factor is 0.37 o Term Option 5yr – Term Factor is 0.33

• MSM Simplified Pricing Model: Only one factor is applied, regardless of Term Length,0.40

Calculation:

3yr Term Option from above (systems mgmt): (GSA Price x 0.42) represents the annual term list price

b. BAP PRODUCT FAMILIES TERM

Additional Capacity for the Product Family(s). During the Term of the Order, if Customer exceeds its Licensed Capacity, Customer must license additional Capacity for the Product Family(s) under this Order based upon the Annual Unit Cost defined in the Order and by exercising a separate order. The calculation will be as follows: (i) the additional Capacity multiplied by (ii) the Annual Unit Cost divided by 12 multiplied by (iii) the remaining months in the Term.

License Rights After the Term for Non-Perpetual Licenses. Unless Customer notifies BMC in writing 30 days prior to the Expiration Date of either: (i) its intent to extend its use of the Product Family for an additional 1-year period in accordance with the terms of the Order, or (ii) a request to BMC to provide a proposal for a new multi-year order based upon Customer’s current requirements, Customer will be deemed to have elected to terminate the use of the Product Family for the next year.

Extended Term. If the Customer elects to extend the use of the Product Family for an additional 1-year after the Term (the “Extended Term”), the fee associated with the extension (the “Extension Fee”) will equal: (a) the Licensed Capacity for each Product Family multiplied by (b) the Extension Unit Cost. For any term extended beyond the Extended Term, the “Extension Unit Cost” will be the Extension Unit Cost, under the Order, subject to: (i) a maximum 5% annual increase for the two years after the Extended Term of the Order, and thereafter (ii) a maximum 10% annual increase for each year the Order is extended. The Extension Fee will be invoiced prior to the start of the one-year extension.

Termination of the Order. If the Order terminates for any reason or the licenses are not renewed, Customer’s right to use the Product Family(s) terminates and Customer must immediately de-install the Products, destroy the media and all documentation associated with the Products, and, if requested by BMC, certify its destruction in writing.

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SPECIAL ITEM NUMBER 511210 SOFTWARE LICENSES (PERPETUAL SOFTWARE LICENSE)

a. MIPS PRICING

When MIPS pricing is utilized a statement of capacity must be sent in. Customer will deliver to BMC a statement, signed by an authorized representative of Customer, containing the information described below for the relevant Measured Period (a “Statement of Capacity”) 30 days prior to the first anniversary of the Order Date and each subsequent anniversary date, (each an “Anniversary Date”). The “Measured Period” is the 1-year period ending 40 days prior to the Anniversary Date, with the first Measured Period being a 1-year period less 40 days from the Order Date. A final Statement of Capacity is also due 30 days prior to the Expiration Date.

STATEMENT OF CAPACITY INFORMATION: List all the Computers (by location, model, type and serial number), including all Computers coupled in a parallel sysplex environment, and the MIPS Rating for these Computers, upon which (i) each z/OS subsystem (e.g. IMS, DB2, CICS or VSAM) for which a Product is licensed to operate (a “Subsystem”) or (ii) each z/OS operating system for which a Product is licensed to operate (“Operating System”), has been installed, managed or has operated during the Measured Period. 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.

(1) For each Subsystem MIPS-based Product, the “Reported Capacity" equals the highest aggregate MIPS Rating of all the Computers on which a Subsystem has been installed or has operated at any time during the Measured Period.

Example: If a Product is licensed to operate with the DB2 Subsystem, then the Statement of Capacity must specify the highest aggregate MIPS Ratings of all the Computers upon which the DB2 Subsystem has been installed or operated.

(2) For each Operating System MIPS-based Product, the “Reported Capacity" equals the highest aggregate MIPS Rating of all the Computers on which a Operating System has been installed or has operated at any time during the Measured Period.

Example: If a Product is licensed to operate with the z/OS Operating System, then the Statement of Capacity must specify the highest aggregate MIPS Ratings of all the Computers upon which the Z/OS Operating System has been installed or operated.

Delay in Delivery of Statement of Capacity. If Customer fails to deliver a Statement of Capacity in accordance with the section entitled “Statement of Capacity Requirements” above, BMC will provide Customer with written notice of such failure. If BMC has not received the Statement of Capacity within 15 days of Customer’s receipt of this written notice, BMC will be entitled to receive the outstanding Adjustments (as defined below), if any, owed for that Statement of Capacity plus interest equal to the lesser of 1% of such Adjustment per month of delay of delivery of such Statement of Capacity or the maximum interest rate permitted by applicable law.

b. BAP PRODUCT FAMILIES PERPETUAL

Additional Capacity for the Product Family(s). During the Term of the Order, if Customer exceeds its Licensed Capacity, Customer must license additional Capacity for the Product Family(s) under this Order based upon the Annual Unit Cost defined in the Order and by exercising a separate order.

The calculation will be as follows: (i) the additional Capacity multiplied by (ii) the Annual Unit Cost divided by 12 multiplied by (iii) the remaining months in the Term.

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License Rights After the Term for Perpetual Licenses. Unless Customer notifies BMC in writing 30 days prior to the Expiration Date of either: (i) its intent to cancel its use of the Product Family for an additional 1-year period in accordance with the terms of the Order, or (ii) a request to BMC to provide a proposal for a new multi-year order based upon Customer’s current requirements, Customer will be deemed to have elected to extend the use of the Product Family for the next year.

Extended Term. If the use of the Product Family is extended for an additional 1-year after the Term (the “Extended Term”), the fee associated with the extension (the “Extension Fee”) will equal: (a) the Licensed Capacity for each Product Family multiplied by (b) the Extension Unit Cost. For any term extended beyond the Extended Term, the “Extension Unit Cost” will be the Extension Unit Cost, under this Order, subject to: (i) a maximum 5% annual increase for the two years after the Extended Term of the Order, and thereafter (ii) a maximum 10% annual increase for each year this Order is extended. The Extension Fee will be invoiced prior to the start of the one-year extension.

Termination of the Order. When the Order is terminated by Customer pursuant this Section, Customer will continue to have a perpetual license to the Product Family for only the Products which were a part of the Product Family and the paid for Licensed Capacity at the time of termination. The Product Family will no longer be eligible for Support (except pursuant to Section Reenrollment Fees), the individual Products under the Product Family will not be eligible for Support as standalone Products, and Customer will not receive the rights to any future Products added to the Product Family after such termination. The Product Family perpetual licenses will continue to be governed by the Agreement.

Reenrollment Fees. If the Order is terminated and Customer desires to reenroll the Product Family under the terms of this Order, Customer will pay a reenrollment fee equal to: (i) the period from the date the Order for the Product Family was discontinued though the reenrollment date multiplied by; (ii) the then current Extension Unit Cost as of the reenrollment date as described in this Section 3 multiplied by; (iii) the Product Family’s Licensed Capacity. In addition to this reenrollment fee, Customer must pay the additional Extension Fee based upon the then-current Extension Unit Cost to enroll the total Licensed Capacity of the Product Family under the terms of this Order for a period of at least 1 year from the reenrollment date. The reenrollment period will be considered an Extended Term.

c. Mainframe Simplified Products (These products are marked with an asterick*)

Support fees will commence at the time of the purchase of license under MSM Simplified Pricing

SPECIAL ITEM NUMBER 511210 SOFTWARE LICENSES (MAINTENANCE).

MAINFRAME PRODUCTS

MAINFRAME SERVICE MANAGEMENT (MSM)

The maintenance pricing is as contained in the maintenance pricelist.

For all ordering activity customers, the BMC earned revenue based discount of record applicable to the license purchase is then applied as the discount to the software maintenance list price, and/or the upgrade list price, for the purpose of determining net GSA maintenance fees.

BMC also offers ordering activities the following discounts for an annual payment in advance option (does not apply to BAP offering):

At least 2 years but less than 3 years 5% 3 Years or greater 10%

Note: Discounts are exclusive of the IFF requirement.

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Reinstatement of Maintenance. In ALL cases where maintenance needs to be reinstated, the Customer must be charged an amount that would be equal to the amount they would have paid had they not let maintenance lapse plus one year of forward support. For Customers that have let maintenance lapse for 2 years or more, the Customer will have the right to buy new licenses if it wishes or be subject to the same policy as the rest of the Customer base (as follows). For Customers that have let maintenance lapse up to 2 years, BMC Software will charge the Customer for all lapsed support at their originally contracted rate times the current List Price plus one year forward support.

For System Management, the lapsed support would be calculated at the Customer’s earned revenue based discount of record applicable to the license purchase x the current List Price x 20% + one year forward support.

Mainframe Simplified Maintenance (These products are marked with an asterick*)

Renewal maintenance under the MSM Simplified Pricing Model consists of the Base Annual Support Fee established at initial purchase, plus any maintenance price increase incurred during the year. After the initial purchase, the MSM Simplified maintenance renewal is no longer linked to the product list price, thus becoming “disassociated”.

First-year maintenance establishes the Base Annual Support Fee [BASF].

The BASF is calculated as the license list price at time of purchase, less the transaction discount times 20% support rate, plus any maintenance price increase incurred during the year.

Renewal maintenance consists of the BASF, which was established at initial time of purchase, subject to any BASF price increase, as approved by GSA as per the Economic Price Adjustment, incurred during the previous year.

There is up to 10% maximum base price increase per year on the BASF, as approved by GSA as per the Economic Price Adjustment, after the initial purchase.

SPECIAL ITEM NUMBER 611420 INFORMATION TECHNOLOGY TRAINING

The price for each LPC is $750.00, prior to applicable discounts, USD.

Discount Schedule Learning Pass Credits-

Discount 5 to 19 (Minimum Purchase of 5) 2% 20 to 49 7% 50 to 99 12% 100 to 199 17% 200 and up 22%

SPECIAL ITEM NUMBER 54151S INFORMATION TECHNOLOGY PROFESSIONAL SERVICES

BMC Consulting Services applies a flat discount of 10% across BMC Consulting Services daily rates. Dollar volume discounts are afforded for all services. These dollar volume discounts listed below cannot be combined. The discounts below are exclusive of the .75% Industrial Funding Fee (IFF). Discounted Rate for (1) Prepayment, (2) prior 12 months of PS invoices*

Prepaid / Dollar Volume Discounts are as follows:

$159,500 - 398,750 5%

$398,751 - 638,000 10%

>$638,000 15%

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*NOTE: BMC-CS-GSD (Level-1) not available for the Prepaid / Dollar Volume Discount.

8. PROMPT PAYMENT TERMS.

Prompt payment is 0%, Net 30 days from receipt of invoice or date of acceptance, whichever is later.

“Information for Ordering Offices: Prompt payment terms cannot be negotiated out of the contractual agreement in exchange for other concessions."

9. FOREIGN ITEMS.

None.

10. DELIVERY SCHEDULE.

a. Time of delivery: The Contractor shall deliver to destination within the number of calendar days after receipt of order (ARO), as set forth below

511210 – 30 Days Aftrer Receipt of Order (DARO)

611420 – Per Course Schedule or as Mutually Agreed.

OLM – As mutually agreed.

b. Expedited Delivery. “Items available for expedited delivery are noted in this price list.”

c. Overnight and 2-day delivery. The Contractor will indicate whether overnight and 2-day delivery are available.

Also, the Contractor will indicate that the schedule customer may contact the Contractor for rates for overnight and 2-day delivery. Delivery times of 1-30 days after receipt of order (ARO) are available, as negotiated between the Ordering Activity and the Contractor.

d. Urgent Requirements. Delivery times of 1-30 days after receipt of order (ARO) are available, as negotiated between the Ordering Activity and the Contractor.

e. Electronic Software Distribution (ESD). ESD is also a method of delivery when ordering all products. When ordering all products, ESD or Physical Shipment must be specified.

11. F.O.B. POINT:

Houston, Texas.

12A. ORDERING ADDRESS AND PROCEDURES.

a. Ordering address:

2103 CityWest Blvd.

Houston, TX 77042

OR

Authorized Government Reseller and Teaming Partners- See page 41.

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When Authorized Dealers are allowed by the Contractor to bill ordering activities and accept payment, the order and/or payment must be in the name of the Contractor, in care of the Authorized Dealer.

b. Ordering procedures:

For supplies and services, the ordering procedures, information on Blanket Purchase Agreements (BPA’s) are found in Federal Acquisition Regulation (FAR) 8.405-3.

13. PAYMENT ADDRESS:

P.O. Box 301165 Dallas, TX 75303-1165

14. WARRANTY PROVISION:

Unless otherwise specified in this contract, the Contractor’s standard commercial warranty as stated in the contract’s commercial price lists will apply to this contract.

15. EXPORT PACKING CHARGES.

Not applicable.

16. TERMS AND CONDITIONS OF RENTAL, MAINTENANCE, AND REPAIR.

17. TERMS AND CONDITIONS OF INSTALLATION.

18. TERMS AND CONDITIONS OF REPAIR PARTS INDICATING DATE OF PARTS PRICE LISTS AND ANY

DISCOUNTS FROM LIST PRICE

a. Terms and conditions of repair parts indicating date of parts price lists and any discounts from list price. Not applicable.

b. Terms and conditions for any other services: Not applicable.

19. LIST OF SERVICE AND DISTRIBUTION POINTS.

20. LIST OF PARTICIPATING DEALERS.

See Authorized Government Resellers and Teaming Partners – See page 41.

21. PREVENTIVE MAINTENANCE.

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22. SPECIAL ATTRIBUTES.

a. Special attributes such as environmental attributes: Not applicable.

b. 508 compliance information is available on Electronic and Information Technology (EIT) supplies and services be found at www.bmc.com. The EIT standards can be found at: www.Section508.gov/.

23. DATA UNIVERSAL NUMBER SYSTEM (DUNS) NUMBER.

DUNS #011589751

24. NOTIFICATION REGARDING REGISTRATION IN SYSTEM FOR AWARD MANAGEMENT (SAM)

DATABASE.

Yes.

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TERMS AND CONDITIONS APPLICABLE TO SOFTWARE LICENSES OF GENERAL PURPOSE

COMMERCIAL INFORMATION TECHNOLOGY SOFTWARE

1. INSPECTION/ACCEPTANCE

The ordering activity shall accept or reject software in writing within thirty (30) calendar days after date of delivery to determine whether the software has been properly shipped to the ordering activity.

2. GUARANTEE/WARRANTY

a. Unless s otherwise specified in this contract, the Contractor’s standard commercial warranty as statedin the contract’s commercial pricelist will apply to this contract.

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.

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.

b. The obligations set forth in this provision constitute Contractor’s exclusive obligations and liability and provide the ordering activity’s sole and exclusive recourse with respect to nonconformance of the PRODUCT to specifications. Except for the express provisions stated herein, the PRODUCT and Documentation are each licensed “AS IS” and “Without Warranty”, and

Contractor hereby specifically excludes and disclaims the implied warranties of merchantability and fitness for a particular use and all other warranties, whether express or implied by law, statute or course of dealing, and the parties specifically exclude all representations and warranties, whether statutory or otherwise, with respect to non-infringement of any other nature of the rights of third party. “

c. Limitation of Liability. Except as otherwise provided by an express or implied warranty, the Contractor will not be liable to the ordering activity for consequential damages resulting from any defect or deficiencies in accepted items.

3. TECHNICAL SERVICES

a. MAINFRAME PRODUCTS, MAINFRAME SYSTEM MANAGEMENT (MSM). Technical telephone service is included in the initial purchase price of software for the twelve (12) months following the Effective Date of the License. After the guarantee period, technical support services are available outside the scope of the contract.

4. SOFTWARE MAINTENANCE:

a. Software maintenance and options shall include the following for the following:

MAINFRAME PRODUCTS MAINFRAME SYSTEM MANAGEMENT (MSM)

(1) SUPPORT. Support shall be provided twenty-four (24) hours per day, seven (7) days per week.

Under Support, the ordering activity shall be entitled, at no additional charge, to designate in writing, two (2) authorized contacts of the ordering activity, per Product Line (“Support Contact”), who shall be permitted to report problems and receive Support from the Contractor. The Support Contacts shall be inclusive of those authorized Support Contacts registered under the guarantee. A change to the Support Contacts of the ordering activity must be submitted in writing to the Contractor by a duly authorized representative of the ordering activity.

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ADDITIONAL CONTACT FEE. In the event the ordering activity desires to register additional Support Contacts to those authorized under the guarantee period, the ordering activity may register such additional authorized Support Contacts at the rate of $2,000 per additional Support Contact per Support year. The charge for the first year of additional Support Contacts may be prorated to coincide with the Support Anniversary Date. Such additional Support Contact(s) of the ordering activity must be submitted in writing to the Contractor by a duly authorized representative of the ordering activity.

Support shall entitle the ordering activity to the following support, maintenance and enhancement functions:

(i) Supply telephone or other electronic support to the ordering activity in order to help the ordering activity locate and, on its own, correct problems with the PRODUCT(S). At the Contractor’s sole discretion, the Contractor shall a.) supply code corrections to the ordering activity to correct PRODUCT malfunctions in order to bring such PRODUCT into substantial conformity with the operating specifications for the most current version of the PRODUCT, unless the ordering activity’s unauthorized modifications prohibits or hampers such corrections or causes the malfunction; or b.) supply code corrections to correct such non-substantial problems at the next general Release of the PRODUCT;

(ii) Supply, so long as is technically and economically feasible, at the Contractor’s sole discretion, updated PRODUCT(S) as required to operate under new releases of the operating system and other system software with which the PRODUCT(S) is designed to operate and which the Contractor furnishes, without charge, to all other LICENSEES of the PRODUCT(S) who are enrolled in Support;

(iii) Supply all extensions, enhancements and other changes that the Contractor, at its sole discretion, makes or adds to the PRODUCT(S) and which the Contractor furnishes, without charge, to all other LICENSEES of the PRODUCT(S) who are enrolled in Support; and

(iv) Replace the PRODUCT(S) at no charge if the media becomes destroyed or damaged so that the PRODUCT(S) becomes unusable.

(2) ELECTRONIC SERVICES. The ordering activity may electronically access, at no charge, services that will be available 24 hours a day, 7 days per week. Such electronic services may include, but are not limited to:

(i) User forums, product-specific information, hints and tips.

(ii) Bug fix retrieval via the Internet or World Wide Web access.

(iii) Public and private forums, as well as product maintenance retrieval via CompuServe access.

(iv) Product maintenance and demonstration code retrieval via a WAN-accessible FTP server.

(v) Product maintenance information via a facsimile retrieval system.

(vi) Access to a problem resolution database via the Contractor’s customer support system.

MAINFRAME PRODUCTS

MAINFRAME SERVICE MANAGEMENT (MSM)

The maintenance pricing is as contained in the maintenance pricelist.

For all ordering activity customers, the BMC earned revenue based discount of record applicable to the license purchase is then applied as the discount to the software maintenance list price, and/or the upgrade list price, for the purpose of determining net GSA maintenance fees.

BMC also offers ordering activities the following discounts for an annual payment in advance option (does not apply to BAP offering):

At least 2 years but less than 3 years ................................. 5% 3 Years or greater ............................................................ 10%

Note: Discounts are exclusive of the IFF requirement.

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Reinstatement of Maintenance. In ALL cases where maintenance needs to be reinstated, the Customer must be charged an amount that would be equal to the amount they would have paid had they not let maintenance lapse plus one year of forward support. For Customers that have let maintenance lapse for 2 years or more, the Customer will have the right to buy new licenses if it wishes or be subject to the same policy as the rest of the Customer base (as follows). For Customers that have let maintenance lapse up to 2 years, BMC Software will charge the Customer for all lapsed support at their originally contracted rate times the current List Price plus one year forward support.

For System Management, the lapsed support would be calculated at the Customer’s earned revenue based discount of record applicable to the license purchase x the current List Price x 20% + one year forward support.

Mainframe Simplified Maintenance (These products are marked with an asterick*)

Renewal maintenance under the MSM Simplified Pricing Model consists of the Base Annual Support Fee established at initial purchase, plus any maintenance price increase incurred during the year as approved by GSA per the Economic Price Adjustment.

After the initial purchase, the MSM Simplified maintenance renewal is no longer linked to the product list price, thus becoming “disassociated”.

First-year maintenance establishes the Base Annual Support Fee [BASF].

• The BASF is calculated as the license list price at time of purchase, less the transaction discount times 20% support rate, plus any maintenance price increase incurred during the year.

• Renewal maintenance consists of the BASF, which was established at initial time of purchase, subject to any BASF price increase, as approved by GSA per the Economic Price Adjustment, incurred during the previous year.

• There is up to a 10% maximum base price increase per year on the BASF, as approved by GSA per the Economic Price Adjustment, after the initial purchase.

b. Term licenses and/or maintenance may be discontinued by the ordering activity on thirty (30) calendar days written notice to the

Contractor.

c. Annual Funding. When annually appropriated funds are cited on an order for term licenses, the period of the term licenses shall automatically expire on September 30 of the contract period, or at the end of the contract period, whichever occurs first. Renewal of the term licenses orders citing the new appropriation shall be required, if the term licenses is to be continued during any remainder of the contract period.

d. Cross-Year Funding Within Contract Period. Where an ordering activity’s specific appropriation authority provides for funds in excess of a 12 month (fiscal year) period, the ordering activity may place an order under this schedule contract for a period up to the expiration of the contract period, notwithstanding the intervening fiscal years.

e. Ordering activities should notify the Contractor in writing thirty (30) calendar days prior to the expiration of an order, if the term licenses and/or maintenance is to be terminated at that time. Orders for the continuation of term licenses will be required if the term licenses is to be continued during the subsequent period.

6. UTILIZATION LIMITATIONS - (511210)

a. Software acquisition is limited to commercial computer software defined in FAR Part 2.101.

b. When acquired by the ordering activity, commercial computer software and related documentation so legend shall be subject to the following:

(1) Title to and ownership of the software and documentation shall remain with the Contractor, unless otherwise specified.

(2) Software licenses are sold to sites and ordering activities. An ordering activity is defined as a cabinet level or independent ordering activity. The software may be used by any subdivision of the ordering activity (service, bureau, division, command, etc.) that has access to the site the software is placed at, even if the subdivision did not participate in the acquisition of the software. For ordering activity public domain databases, user agencies and third parties may use the computer program to enter, retrieve, analyze and present data. The user ordering activity will take appropriate action by instruction, agreement, or otherwise, to protect the Contractor's proprietary property

GS-35F-0340W www.bmc.com Page 14 with any third parties that are permitted access to the computer programs and documentation in connection with the user ordering activity's permitted use of the computer programs and documentation. For purposes of this section, all such permitted third parties shall be deemed agents of the user ordering activity.

(3) Except as is provided in paragraph 5.b(2) above, the ordering activity shall not provide or otherwise make available the software or documentation, or any portion thereof, in any form, to any third party without the prior written approval of the Contractor.

Third parties do not include prime Contractors, subcontractors and agents of the ordering activity who have the ordering activity's permission to use the licensed software and documentation at the facility, and who have agreed to use the licensed software and documentation only in accordance with these restrictions. This provision does not limit the right of the ordering activity to use software, documentation, or information therein, which the ordering activity may already have or obtains without restrictions.

(4) The ordering activity shall have the right to use the computer software and documentation with the computer for which it is acquired at any other facility to which that computer may be transferred, or in cases of disaster recovery, the ordering activity has the right to transfer the software to another site if the ordering activity site for which it is acquired is deemed to be unsafe for ordering activity personnel; to use the computer software and documentation with a backup computer when the primary computer is inoperative; to copy computer programs for safekeeping (archives) or backup purposes.

(5) "Commercial Computer Software" may be marked with the Contractor's standard commercial restricted rights legend, but the schedule contract and schedule pricelist, including this clause, "Utilization Limitations" are the only governing terms and conditions, and shall take precedence and supersede any different or additional terms and conditions included in the standard commercial legend.

7. SOFTWARE CONVERSIONS (511210):

Software conversions are not available under the scope of this contract.

8. DESCRIPTIONS AND EQUIPMENT COMPATIBILITY:

The Contractor shall include, in the schedule pricelist, a complete description of each software product and a list of equipment on which the software can be used. Also, included shall be a brief, introductory explanation of the modules and documentation which are offered.

Product Descriptions are found on BMC's worldwide web listed in alphabetical order. Please reference www.bmc.com, click on Products, Product Directory available as well as Environment Index.

A list of the equipment on which the software can be used is set forth in the section titled Machine Class Product Availability

Listing.

All equipment compatibility or supported hardware functions applicable to Contractor’s products are set forth in the Contractor’s published literature or manuals supplied with the Products. For all additional information concerning supported hardware or compatibility requirements the ordering activity is advised to contact the Contractor.

9. RIGHT-TO-COPY PRICING:

Right-to-copy license pricing is not available under the scope of this contract. Right to copy is limited solely for the purpose of system back up unless otherwise so indicated.

10. ASSIGNMENT.

Customer may not assign this Agreement to any third party. Notwithstanding the foregoing, Customer shall have the right to assign this Agreement in whole to a parent, a majority owned subsidiary or Affiliate, or to a successor in connection with (i) the sale of all or substantially all of the assets of that party or (ii) a merger by operation of law by providing written notice to BMC. The assignee may not be a known direct competitor of BMC. In addition, as part of any permitted assignment, the successor entity must agree in writing with BMC (in advance of the assignment) to be bound by the terms of this Agreement.

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11. 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. Should any term of this Agreement be invalid or unenforceable, the remaining terms will remain in effect. 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 unless otherwise provided for in the Documentation; 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 (i) 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; or (ii) impose any additional restrictions on Customer’s use of the Product. In some circumstances, usually either for the convenience of its customers or in order to comply with the obligation to make source code available under specific license terms, BMC distributes to customers, without charge, products that are not governed by an Order or this Agreement. Such products are distributed separately from the BMC Products, are governed by the license terms that and included with them, and are provided by BMC AS IS, WHERE IS AND WITHOUT WARRANTIES OF ANY KIND, WHETHER ORAL OR WRITTEN, EXPRESS OR IMPLIED, AND EXCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND TITLE. The parties have agreed that this Agreement and the documents related thereto be drawn up in the English language.

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TERMS AND CONDITIONS APPLICABLE TO PURCHASE OF

INFORMATION TECHNOLOGY TRAINING

(SPECIAL ITEM NUMBER 611420)

1. SCOPE

a. The Contractor shall provide training courses normally available to commercial customers, which will permit ordering activity users to make full, efficient use of general purpose commercial IT products. Training is restricted to training courses for those products within the scope of this solicitation.

b. The Contractor shall provide training at the Contractor's facility and/or at the ordering activity's location, as agreed to by the Contractor and the ordering activity.

c. The Contractor shall provide training courses to the ordering activity through the purchase of Learning Pass Credits (LPCs). Learning Pass Credits may be purchased by the ordering activity in quantities to cover an individual student in a particular course or in significant quantities, at a discount, to cover the needs of the ordering activities organization requirements over a period of time.

d. Contractor agrees to provide to ordering activity Learning Pass Credits (“LPCs”) at the quantity and discounted price stated. Customer may use the LPCs to aquire training from Contractor, either at public classes or in private training at ordering activity’s site. All training shall be done by professional instructors who are skilled in the subject matter of a specific class.

2. ORDER

a. Written orders, EDI orders (GSA Advantage! and FACNET), credit card orders, and orders placed under blanket purchase agreements (BPAs) shall be the basis for the purchase of training courses in accordance with the terms of this contract.

Orders shall include the contact’s name, number of Learning Pass Credits to be purchased, and contracted dollar amount for the Learning Pass Credits. Specific courses to be attended may also be included on the order.

b. Contractor will issue a PIN code to an individual designated by the ordering activity (the “Contact”). All ordering activity-authorized personnel will use this PIN code when enrolling in a class as a means of payment. Ordering activity is responsible for authorizing individuals to use the PIN code and for ensuring proper usage of the PIN code. Contractor is not responsible for unauthorized use of the PIN code.

c. Contractor provides training throughout the year. Ordering activity may contact Contractor for a published schedule of training classes or visit our website at www.bmc.com. The LPCs issued pursuant to this Agreement shall expire twelve (12) months from the date of the ordering activity purchase order. Any remaining LPCs not utilized during the twelve (12) months period shall be forfeited by ordering activity. The 12 month period will begin on the day the Purchase Order or EDI order is issued to Contractor.

d. Ninety (90) days prior to the Expiration Date of the Learning Pass Credits, the ordering activity will be notified by Contractor as to the Expiration Date of the Learning Pass Credits. If the ordering activity requests an extension of the expiration for an additional year, the ordering activity may roll any unused LPC’s in to the new annual agreement provided that they sign up for a quantity of LPC’s that is equal to the same discount level as the prior year.

Example: Number of LPC’s originally purchased 70 with a 12% discount

Number of LPC’s left at end of year = 10

Minimum # of additional LPCs purchased for the extension to maintain the 12% discount = 50 LPCs

60 LPC’s would be available for use after the purchase of 50 LPC’s.

e. LPCs are for the exclusive use of ordering activity and may not be resold, transferred or bartered.

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3. TIME OF DELIVERY

The Contractor shall conduct on-site training on the date (time, day, month, and year) agreed to by the Contractor and the ordering activity. For an onsite private class, a Training and Education Work Order will need to be executed by both parties once a mutually agreed upon date for the onsite private class has been established.

If the ordering activity elects to use LPCs for public training classes, training will take place at a regularly scheduled training class in a facility normally used by Contractor for that purpose. If the ordering activity elects to use LPCs for training in a private on-site setting, ordering activity shall pay all related travel expenses for the instructor. The instructors expenses must comply with the Federal Travel Regulation or Joint Travel Regulations, as applicable, in effect on the date(s) the travel is performed. Contractors cannot use GSA city pair contracts. This is in addition to the required number of LPC’s

Onsite Standard Training Class at Ordering Activity Designated Location

(1) Training is provided in English at Contractor facilities CONUS and OCONUS

(2) Training is available onsite at the customer premises for any of the standard BMC training courses in English. An onsite class can accommodate up to 10 students.

1. Quoted Services dates are valid for a period of 5 business days from the Effective Date. If Customer does not return a signed copy of the Training and Education Work Order to Contractor via fax within 5 business days of the Effective Date, Customer may lose the given dates for Training Services. Once the ordering activity and Contractor agree to delivery dates a Training and Education Work Order document will be sent to the ordering activity for signature.

2. If ordering activity desires to cancel or reschedule a class, it must provide notice to Contractor at least 10 business days before the start date of the class. Any changes to the agreed to class schedule shall be documented in a modification to the Training and Education Work Order that shall be mutually agreed to in writing. If ordering activity give less than 10 business days notice, Contractor shall deduct from the Client Learning Pass Account the number of Learning Pass Credits associated with the delivery of the on-site course and ordering activity shall pay any un-reimbursable Travel & Living expenses incurred by Contractor’s instructor.

3. Classes are limited to the number of students outlined in the Training and Education Work Order, and the number of sets of training materials that will be shipped is associated with the number of students listed on the Training and Education Work Order, unless otherwise stated.

4. Ordering activity is responsible for payment of Instructors reasonable actual travel and related expenses incurred in the performance of the Training Services. The Instructor's travel reservations will not be made until the Training and Education Services Work Order is executed by the ordering activity and returned to Contractor. Such expenses will be invoiced separately, as specified in the Federal Travel Regulation or Joint Travel Regulations, as applicable, in effect on the date(s) the travel is performed.

The ordering activity, through the use of the PIN via the BMC Software Education web portal, may enroll in publicly available courses at any time.

4. CANCELLATION AND RESCHEDULING

a. The ordering activity will notify the Contractor at least thirteen business days before the scheduled training date, if a student will be unable to attend. The Contractor will then permit the ordering activity to either cancel the order or reschedule the training at no additional charge. In the event the training class is rescheduled, the ordering activity will modify its original training order to specify the time and date of the rescheduled training class.

If Customer desires to cancel or reschedule a class, it must provide notice to BMC at least 10 business days before the start date of the class to not to incur penalty.

If Customer give less than 10 business days notice, BMC shall invoice and Customer shall pay a fee of 50% of the course cost and any travel expenses incurred by BMC’s instructor as liquidated damages.

If Customer gives 5 business days or less notice Customer shall pay a fee of 100% of the course cost and any travel expenses incurred by BMC’s instructor as liquidated damages.

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b. In the event the ordering activity fails to cancel or reschedule a training course within the time frame specified in paragraph a, above, the ordering activity will be liable for the contracted dollar amount of the training course. The Contractor agrees to permit the ordering activity to reschedule a student who fails to attend a training class within ninety (90) days from the original course date, at no additional charge.

c. The ordering activity reserves the right to substitute one student for another up to the first day of class.

d. In the event the Contractor is unable to conduct training on the date agreed to by the Contractor and the ordering activity, the Contractor must notify the ordering activity at least seventy-two (72) hours before the scheduled training date.

Public Training – Class Cancellation Policy

Contractor reserves the right to cancel any class up to 10 business days prior to the start of the class. If this occurs the ordering activity’s LPC balance will be reinstated by the amount allocated for the course.

5. FOLLOW-UP SUPPORT

The Contractor agrees to provide each student with telephone support, via BMC Software technical support, in conjunction with any BMC Software licensed for use by the ordering activity.

6. PRICE FOR TRAINING

The price that the ordering activity will be charged will be the ordering activity training price in effect at the time of order placement, or the ordering activity…