BENTLEY SYSTEMS, INC. 1A - 2005 - Laserfiche WebLink

Home Browse Search

BENTLEY SELECT PROGRAM AGREEMENT General Terms and Conditions (continued) 4.06. limitation of Bentley Ilability. IN TIiE EVENT THAT, NOTWITHSTANDING PARAGRAPHS 4.01, 4.02, 4.03, 4.04 AND 4.05 OF TIiIS EXHIBIT B, BENTLEY IS FOUND liABLE FOR DAMAGES BASED ON ANY BREACH, DEFECT, DEFICIENCY OR NON-CONFORMfIT IN A PRODUCT, IN SELECT SUPPORT SERVICES, OR IN ANY OTHER SERVICE OR MATERIALS, AND REGARDLESS OF WHE1HER ANY REMEDY SET FORm HEREIN FAIL'l OF ITS ESSENTIAL PURPOSE BY lAW, BENTLEY'S CUMULATIVE llABILITY HEREUNDER SHAll NOT EXCEED TIfE PRICE PAID BY SUBSCRIBER FOR (i) SUCH PRODUCT, (il) A ONE-YEAR SUBSCRIPTION TO TIlE SELECT PROGRAM, OR (ill) SUCH OTHER DEFECTIVE SERVICE OR MATERlALS,ASTIlE CASE MAY BE.THE PROVISIONS OF TIllS AGREE.\IENT AlLOCATE THE RISKS BElWEEN BENTLEY AND SUBSCRIBER. BENTLEY'S PRICING REFlECTS THIS ALLOCATION OF RISK AND TIm IlMITATION OF lJABIIJIY SPECIFIED HEREIN. 4.07. Indemnification by Bentley. Bentley shall pay any damages finally awarded agWst SubscriberOOsed on a claim against Subscriber that a Product which is developed and owned by Bentley infringes a third party's United Sutes copyright, or remIts in a misappropriation of a third party's trade secret, in the Country where Subscriber has br:en authorized to place the Producr subject to such claim into Production Use, if Subscriber provides to Bentley: (a) prompt written notice of any such claim, (b) all available information and assistance, and (c) the opportunity to exercise sole control of the defense and settlemenl of any such claim. Bentley shall also have the right, at its expense, either to procure the right for Subscriber to continue to use the Product or to replace or modify such Product so that it becomes non-infringing. H neither of the foregoing alternatives is available on terms that Bentley, in its sole discretion, deems desirable, Subscriber shall, upon written request from Bentley, return to Bentley the allegedly infringing Product, in which event Bentley shall refund to Subscriber the price paid by Subscriber for each copy of such returned Product, less twenty percent (20%) for each elapsed year since the commencement of the license for such copy. Bentley shall have no liability and this indemnity shall not apply if the alleged infringement is contained in a Product which is not developed or owned by Bentley or is due to modification of the Product by Subscriber or the combination, operation or use of a Product with other software that does not originate from Bentley or if Subscriber is in breach of this Agreement. Bentley shall also have no liability, and this indemnity shall not apply, for the portion of any claim of infringement based on use ofa superseded or altered release ofa Product if the infringement would have been avoided by the use of a current, unaltered release of the Product. In no event shall Bentley's liability hereunder to Subscriber exceed the license fees paid by Subscriber for the allegedly infringing Product.This Paragraph 4.07 sets forth Subscriber's sole remedy for intellectua1 property infringement. 5. EXPORT CONfROL'i. The Products have been manufactured or developed in the United States of America and accordingly may be subject to U.S. export control laws, regulations and requirements. Regardless of any disclosure made by Subscriber to Bentley of an ultimate destination of the Products, Subscnber must not export or transfer, whether directly or indirectly, the Products, or any portion thereof,or any system containing such Products or portion thereof,to anyone outside the United States (induding further export if Subscriber took delivery of the Products outside the United States) without first complying strictly and fully with all export controls that may be imposed on the Products by the United States Government or any country or organization of nations within whose jurlsdiction Subscriber uses the Products.The countries subject to restriction by action of the United States Government are subject to change,and it is Subscriber's responsibility to comply with the United States Government requirements as they may be amended from time 10 time. Subscriber shall indemnify, defend and hold Bentley hamtless for any breach of its ob1igations pursltallt to this Paragraph. 6. U.S. GOVERNMENT RESTRICTED RIGHTS. If the Products are acquired for or on behalf of the United States of America, its agencies and/or instrumentalities ("U.S. Government"), it is provided with restricted rights. The Products and accompanying documentation are "commercial computer software" and 'commerda1 computu so~ documentation,' respective1y,pursltallt to 48 C.ER. 12.212 and 227.7202, and 'restricted computer software" pursuant to 48 C.ER. 52.22H9(a), as applicable. Use, modification, reproduction, release, performance, display or disclosure of the Products and accompanying documentation by the U.S. Government are subject to restrictions as set forth in thisAgreement and pursuant t048C.ER.12.212,52.227-l9,227.7202,andI852.227-86,asapplicable. 7 TERM; TERMINATION. 7.01. Term. ThisAgreement sha11 become effective on the Effective Date,and sha11 continue for the initial term of Subscriber's SELEcr Program subscription set forth on Attachment I hereto, and shall automatica1iy renew for terms of like tenure unless either party gives notice of its election to not renew the term at least thirty (30) days prior to the expiration of the then-<:urrentterm. 7.02. Termlnation for Material Breach. Either party may, at its option, terminate this Agreement in the event of a material breach of this Agreement by the other party. Any such termination may be effected only through a written notice to the other party, specifically identifying the breach or breaThes on which termination is based. Following receipt of such notice, the party in breach shall have twenty-<lne(21) days to cure such breach or breaches, and thisAgreement shall terminate in the cvent that such cure is not made by the end of such period; provided, however, Bentley shall have the right to terminate this Agreement immediately if Subscriber breaches any of its obligations under Section 3 of this Exhibit B. The failure of Subscriber to pay an outstanding invoice of Bentley shall always constitute a material breach of thisAgreement. 7.03. Insolvency. If, under applicable insolvency hws, Subscriber becomes unable to pay its debts or becomes insolvent or bankrupt or makes arrangements with its creditors, or otherwise goes into liquidation, administration or receivership, then Bentley sha11 have the right to terminate thisAgreement immediately by written notice 7.04. Consequences of Termination, Upon the termination of thisAgreement for any reason, all of the rights and licenses granted to Subscriber in this Agreement shaI1 terminate immediately. With respect to any perpetua11y licensed Products, the terms and conditions set forth in the license agreement delivered with such Products and the Definition of Use shall govern Subscriber's use of such Products. Subscriber shall immedlatelydiscontinue use of SELECf Online. 7.05 Reinstatement Following Termination. Foliowing a termination of the SELECf Program, Subscriber may reinstate such services only if Bentley consents to such reinstatement and Subscriber pays to Bentley, in advance, a SELECT reinstatement fee, in an amount to be determined in Bentley's sple discretion, such amount not to exceed the amount of all fees that would have accrued and been payable, excluding discounts, for the period between the date of termination and the date of reinstatement 8. MISCELlANEOUS. 8.01. Assignment. Subscriber sha11 not assign thisAgreement or delegate its duties hereunder without prior written consent by Bentley. For purposes of this Agreement, a change in control of Subscriber shall be considered an assignment for which Bentley's priorwritten consent is hereby granted provided that the surviving entity from such change in control must enter into a SElEcr Agreement This Agreement may be asSigned by Bentley to any successor in interest to Bentley's business or to any direct or indirect whollY-<lWI1ed subsidiary of Bentley Systems, Incorporated. Any purported assignment in violation of this provision shall be void and without effect. 8.02. Entire Agreement. ThisAgreement, together with the Exhibits and signed Amendments, if any, incorporate the entire agreement of the parties and supersede and merge all prior oral and written agreements, discussions and understandings between the parties with respect to the subject matter hereof.The terms and conditions of thisAgreement and of the applicable Bentley confirmation shall apply to each order accepted orsWpped by Bentley hereunder. Any additional or different terms or conditions appearing on a purchase order issued by Subscriber hereunder, even if Bentley acknowledges such lerms and conditions, shall not be binding on the parties unless both parties expressly agree in a separate writing as provided under Section 8.03 of this Exhibit B. 8m. Amendments. Except as otherwise contemphted herein with respect to updating, amending and supplementing the exhibits, this Agreement may only be amended or modified by a writing duly executed by authorized representatives of the parties, provided, however, that any additional or different terms or conditions appearing on a purchase order,evenifrequired to be acknowledged by Bentley,shall not be binding on the parties. 8.04. Notices. Notices under thisAgreementsha11 be made or given as 6lthe date of either hand delivery or mai1ing to such party, if sent prepaid certified mail or next day air delivery to the address set forth on the first page of lhis Agreement. All notices under this Agreement shall be addressed, if to Bentley, to its General Counsel, and if to Subscriber, to its authorized representative identified in this Agreement or in a subsequent notice to Bentley. 8.05. Force Majeure, Bentley shall not be liable for lililure to fullill the terms ofthisAgreement due to fire,strike,Wllr,government regulations, acts ofGod,iabordisturbances,acts ofter- rorism or other causes which are unavoidable and beyond its control. 8.06. Waiver. The failure of either party to insist upon any of its rights under this Agreement upon one or more occasions, or to exercise any of its rights, shall not be deemed a waiver of such rlghts on any subsequent occasions. 8.07. Survival The covenants contained in this Agreement which, by their terms, require or contemplate performance by the parties after the expiration or termination of the Agreement (lllcluding, but not limited to, Sections 5.01(a), (b), (c) and (d) and 6.01 of ExhibitA,Sections 1,2,3,4,5,6,7.04,7.05 and 8 of Exhibit B,and Sections 1.06, 1.07,1.08, 1.09, 1.10, 1.11, 1.12, 1.14, 1.16 and 1.17 of Exhibit C) shall be enforceable notwitbstandingsaid expiration or termination. 8.08. Severability. The provisions of this Agreement shall be severable and the invalidity or unenforceability of any one provision shall not affect any other unless otherwise noted. 8.09. Governing Law. This Agreement shall be governed by, interpreted, and enforced in accordance with the laws of the Commonwealth of Pennsylvania, without regard to conflicts of hw provisions. To the maximum extent pennitted by applicable law, the parties agree that the provisions of the United Nations Convention on Contracts !or the International Sale of Goods, as amended, and of the Uniform Computer Infonnation 8 of 12