Professional Maintenance Agreement Management Suite
Terms and Conditions

Before placing your order, you are advised to read the terms and conditions as set forth below. Once you have reviewed and agreed to these terms and conditions, you will be sent to the next step of filling out the order form. For additional questions on placing orders, status of an existing order or questions regarding existing agreements, please call 1–800–982–2130, to speak to LANDesk Sales.

LANDesk® Software

Professional Maintenance Agreement ("PMA") order form Terms and Conditions

DO NOT SUBMIT YOUR ORDER FOR THE PROFESSIONAL MAINTENANCE AGREEMENT UNTIL YOU HAVE CAREFULLY READ, UNDERSTOOD AND AGREED TO BE BOUND BY THESE TERMS AND CONDITIONS. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, OR IF YOU DO NOT HAVE LEGAL AUTHORITY TO ACCEPT THEM ON BEHALF OF THE LICENSEE, DO NOT SUBMIT ACCEPTANCE OF THESE TERMS AND CONDITIONS OR YOUR ORDER.

ACCEPTANCE OF THESE TERMS AND CONDITIONS BY YOU DOES NOT CONSTITUTE ACCEPTANCE BY LANDESK OF A PROFESSIONAL MAINTENANCE AGREEMENT OR OTHER SOFTWARE MAINTENANCE ARRANGEMENT WITH YOU. IF LANDESK ACCEPTS THIS AGREEMENT, IT WILL BE COMMUNICATED TO YOU VIA AN ACCEPTANCE LETTER WHEREIN YOU WILL BE PROVIDED A MAINTENANCE AGREEMENT NUMBER.

Software Maintenance provided under this Professional Maintenance Agreement shall be effective for Customers in U.S.A. and Canada locations only. Provision of Software Maintenance by LANDesk Software, Inc. is conditioned upon Customer having deployed the current shipping release of the respective LANDesk Product for which such Software Maintenance is to be provided. Only these terms and conditions, notwithstanding any preprinted or other terms and conditions on Customer's Purchase Order shall govern Your purchase and LANDesk's provision of Software Maintenance.

Definitions

"LANDesk Product" means the specific LANDesk product(s) you have licensed and for which You have purchased Software Maintenance and which are identified on the Software Maintenance order form.

"Software" means all computer programming code, entirely in binary form, which is directly executable by a computer and includes those computer programs and which have been licensed to You either as a separate product or as part of another LANDesk Product.

"Software Update" means a version of the Software, which is classified by LANDesk as a "maintenance" release that corrects deficiencies and/or bugs affecting performance to the Software description.

"Software Upgrade" means a version of the Software as classified by LANDesk which has been enhanced, improved and/or modified and replaces the existing version of the Software.

"Software Maintenance" means the unique software maintenance to be provided by LANDesk pursuant to this PMA for the LANDesk Product as set forth in these Terms and Conditions.

"Terms and Conditions" means the terms and conditions of this Professional Maintenance Agreement as set forth herein

"You" or "Your" refers to the Customer applying for the Software Maintenance pursuant to these Terms and Conditions.

LANDesk's Obligations.

1. Telephone Support: LANDesk will provide Your technical contact with telephone support for Your licensed LANDesk Product through LANDesk's Customer Support Group during the hours of 6AM – 6PM Mountain Time Zone, Monday through Friday, excluding holidays. Telephone support will be provided only to Your technical contact as listed on the order form. When requesting telephone support, Your technical contact must call the number specified and provide Your assigned Maintenance Agreement Number as set forth on the acknowledgement letter provided by LANDesk after receipt and acceptance of Your order. You may change your designated technical contact at any time upon notification to LANDesk's Customer Support Group. Telephone support of the LANDesk Product shall be provided for questions regarding installation, configuration and usage of the LANDesk Product, however, LANDesk shall not be required to provide support for the LANDesk Product with regard to Your unique application requirements.
2. Software Updates and Upgrades: If LANDesk, in its sole discretion, creates Software Updates or Software Upgrades to the LANDesk Product during the term for which You have purchased Software Maintenance, LANDesk shall provide all such Software Updates and Software Upgrades to Your designated technical contact. Distribution of Software Updates or Software Upgrades does not include installation by LANDesk. LANDesk will provide Your technical contact with all such Software Update or Software Upgrades when LANDesk makes them available to its general customer base for the LANDesk Product. All Software and related materials provided pursuant to Software Maintenance, including documentation and program materials are subject to these Terms and Conditions and the respective license agreement for the LANDesk Product.

Limitations. LANDesk shall be under no obligation to furnish Software Maintenance under these Terms and Conditions to the extent that such Software Maintenance is required as a result of: (i) the operation of the LANDesk Product in environmental conditions or configurations outside those prescribed in the user manual or other LANDesk documentation for the LANDesk Product; (ii) Your material failure to maintain the LANDesk Product in accordance with the standards of maintenance prescribed in the user manual or other LANDesk Product documentation provided to you with the LANDesk Product or during the terms of the Software Maintenance; (iii) maintenance of the LANDesk Product by anyone other than LANDesk or a third party authorized by LANDesk; and (iv) causes unrelated to the LANDesk Product as delivered to You by LANDesk, including without limitation, modifications to the LANDesk Product, made by You or on Your behalf. The Software Maintenance provided is further subject to the Software license agreement(s) for the respective LANDesk Product, which is or are expressly deemed, to be incorporated herein by this reference.

Term and Renewals. Software Maintenance shall commence upon the date indicated in the LANDesk acknowledgment letter and shall continue in full force and effect for the term indicated on Your order form and the acknowledgement letter from LANDesk. At the end of this term, this PMA shall be automatically renewed for additional one (1) year terms at LANDesk's then current PMA pricing, unless terminated by You at least thirty (30) days before any renewal date.

Your Acknowledgment: You acknowledge that LANDesk may already be working on technology and products similar to Your business activities to which LANDesk may be exposed in the process of providing Software Maintenance. Notwithstanding anything else in these Terms and Conditions to the contrary, LANDesk is free to use any non–tangible information to which LANDesk may be exposed while providing Software Maintenance. LANDesk's provision of technical assistance in the course of providing Software Maintenance under these Terms and Conditions does not, in any way, obligate LANDesk to limit the work assignments of its employees or contractors.

Limited Maintenance Warranty. THE PROVISION OF SOFTWARE MAINTENANCE DOES NOT EXTEND, MODIFY OR ENHANCE THE ORIGINAL SOFTWARE WARRANTIES, IF ANY, FOR THE LANDESK PRODUCT (S). LANDESK DISCLAIMS ALL OTHER WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES WITH RESPECT TO INFRINGEMENT OF THIRD PARTY INTELLECTUAL PROPERTY RIGHTS. LANDESK NEITHER ASSUMES NOR AUTHORIZES ANY OTHER PARTY TO ASSUME ANY OTHER LIABILITIES IN CONNECTION WITH THE SOFTWARE MAINTENANCE PROVIDED HEREUNDER

Limitation of Liability: YOU ASSUME TOTAL RESPONSIBILITY FOR YOUR USE OF SOFTWARE MAINTENANCE, AND ANY ACCESS TO SOFTWARE MAINTENANCE THROUGH THE INTERNET. EXCEPT AS SPECIFICALLY SET FORTH IN THESE TERMS AND CONDITIONS, THE SOFTWARE MAINTENANCE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS WITHOUT WARRANTIES OF ANY KIND. LANDESK'S SOLE LIABILITY HEREUNDER SHALL BE LIMITED TO DIRECT, OBJECTIVELY MEASURABLE DAMAGES. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, OR SPECULATIVE DAMAGES WHETHER ARISING UNDER CONTRACT, TORT, OR STATUTE, INCLUDING WITHOUT LIMITATION, LOSS OF USE, BUSINESS INTERRUPTIONS, LOSS OR CORRUPTION OF DATA, CLAIMS OF INFRINGEMENT, LOSS OF GOOD WILL AND LOSS OF PROFITS, IRRESPECTIVE OF WHETHER THE PARTY HAS ADVANCE NOTICE OF THE POSSIBILITY OF SUCH DAMAGES. LANDESK'S TOTAL LIABILITY FOR ALL CLAIMS ARISING HEREUNDER SHALL BE LIMITED TO THE FEES RECEIVED BY LANDESK FOR THE SOFTWARE MAINTENANCE PROVIDED TO YOU DURING THE TWELVE MONTHS IMMEDIATELY PRECEDING THE DATE OF TECHNICAL MAINTENANCE REQUEST. YOU ACKNOWLEDGE THAT THESE LIMITATIONS ON POTENTIAL LIABILITIES WERE AN ESSENTIAL ELEMENT IN SETTING CONSIDERATION UNDER THESE TERMS AND CONDITIONS, AND SHALL BE ENFORCEABLE TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAWS.

Force Majeure. LANDesk shall not be liable for its failure to perform due to unforeseen circumstances or any causes beyond LANDesk's reasonable control ("Force Majeure"). In the event of Force Majeure, LANDesk's performance will be extended for a period equal to the duration of the delay caused hereby.

Termination for Default, Unsupportable Implementations: LANDesk reserves the right to terminate any Software Maintenance provided hereunder if LANDesk, in its sole discretion, determines that Your implementation of the LANDesk Product for which such Software Maintenance is procured is not supportable by LANDesk. In such event, LANDesk will promptly notify You in writing and a pro–rata refund of any applicable Software Maintenance fee(s) will be provided. Additionally, without limiting any other remedies available under these Terms and Conditions, at law, or in equity, LANDesk shall have the right to terminate Your right to receive Software Maintenance with prior notice to You for Your violation of any of the material provisions hereunder if such violation remains uncured for a period of thirty (30) days after receipt of notice thereof from LANDesk.

Assignment. You may not assign Software Maintenance without the prior written approval of LANDesk, except to a successor in–interest as a result of a merger, acquisition, or other change of control and with notice to LANDesk. Any other assignment performed in the absence of LANDesk's prior written consent will be null and void.

Export Law Regulations.

You agree that you will not export, either directly or indirectly, any LANDesk Product, material or data provided in the course of receiving Software Maintenance without first obtaining any required license or other approval from the U. S. Department of Commerce or any other agency or department of the United States Government. In the event that You export any LANDesk Product from the United States, or re–export it from a foreign destination, You agree to ensure that the distribution and export/re–export or import of the LANDesk Product is in compliance with all laws, regulations, orders, or other restrictions of the U.S. Export Administration Regulations and the appropriate foreign government. You agree that neither You nor any of Your subsidiaries will export/re–export any LANDesk Product, material or data provided in the course of receiving Software Maintenance, directly or indirectly, to any country for which the United States government or any agency thereof or the foreign government from where it is shipping requires an export license, or other governmental approval, without first obtaining such license or approval.

General Provisions.

1. You acknowledge that in providing Software Maintenance to You, LANDesk is acting as an independent contractor.
2. Your completed order for Software Maintenance, these Terms and Conditions and the respective end user license agreement for the LANDesk Product constitute the entire agreement and understanding between the parties on the subject matter herein ("Agreement") and supersedes all prior and contemporaneous agreements and understandings, including without limitation, any different, conflicting or additional terms and conditions which may appear on any purchase order or other writing which You may submit to LANDesk. To the extent that there are any conflicts between Your completed order for Software Maintenance, these Terms and Conditions, and the end user license agreement for the LANDesk Product, these Terms and Conditions shall govern.
3. Any claim arising under or relating to these Terms and Conditions shall be governed by the internal substantive laws of the State of Utah or federal courts located in Utah, without regard to principles of conflict of laws. You agree that the terms of the Convention of Contracts for the International Sale of Goods (CISG) do not apply to this Agreement.
4. All rights and remedies whether conferred hereunder, or by any other instrument or law will be cumulative and may be exercised singularly or concurrently. The provisions of these Terms and Conditions are deemed to be severable. In case that public policy overrules a provision set forth in these Terms and Conditions or a provision is not enforceable, other provisions are not affected. Failure by LANDesk to enforce any provision will not be deemed a waiver of future enforcement of that or any other provision.