|
BENTLEY SELECT PROGRAM AGREEMENT
<br />General Terms and Conditions
<br />Exhibit B
<br />Dated as of January 201 O
<br />technical information pertaining to Bentley Products and [o
<br />Bentley's technology and business practices (collectively 4.02.
<br />"Proprietary Information"). Subscriber agrees to treat all
<br />Proprietary Information in accordance with this Section 3.06 of
<br />Exhibit B.
<br />(b) Subscriber shall maintain the confidentiality of all Proprietary
<br />Information. Subscriber shall not reproduce or copy Proprietary
<br />Information except as permitted in this Agreement or as may be
<br />expressly authorized in writing in advance by Bentley. All such
<br />copies shall be marked by Subscriber as proprietary and
<br />confidential information.
<br />(c) Subscriber shall only use Proprietary Information in furtherance
<br />of this Agreement, and may disclose Proprietary Information
<br />only to those employees regwred to have knowledge of same to
<br />perform their duties pursuant to this Agreement- Subscriber
<br />shall not disclose or make Proprietary lnforrnation available to
<br />any third party at any time.
<br />(d) Subscriber shall treat Proprietary Information with the same
<br />degree of care as it uses to protect its own confidential
<br />information, and in no case less than a reasonable degree of
<br />care.
<br />(e) Upon the termination or non-renewal of this Agreement,
<br />Subscriber shall return to Bentley or, if so requested, destroy all
<br />Proprietary Information in its possession-
<br />(f) Subscriber shall have no obligation of confidentiality with
<br />respect to any Proprietary Information that (i) has entered the
<br />public domain other than through a breach of this Agreement,
<br />(ii) has been rightfully obtained by Subscriber from a third party
<br />with no obligation of confidentiality, or (iii) is previously
<br />known by Subscriber as demonstrated by clear and convincing
<br />evidence.
<br />(g) Subscriber shall promptly inform Bentley upon knowledge of
<br />any actual or potential unauthorized use or disclosure of the
<br />Proprietary Information
<br />3.07. No Benchmarks. Subscriber may no[ disclose the results of any
<br />Product testing, including but no[ limited [o benchmarks, to any third
<br />party without first obtaining Bentley's written consent to do so.
<br />4. Limited Warranty; Limitation of Remedies and Liability
<br />4.01. Limited Warranty to Subscriber. Except for Products licensed
<br />under Section 5.02(b), Section 5.02(c) or Section 5.02(d) of Exhibit A
<br />hereof, which are provided to Subscriber "AS-IS" and without
<br />warranty of any kind, Bentley hereby warrants for the benefit only of
<br />Subscriber that (a) for a period of ninety (90) days ("Warranty
<br />Period") from the date of delivery to Subscriber of a Serial Number
<br />or Product, as the case may be, the Product shall, under normal use,
<br />operate in substantial conformance with the functional specifications
<br />set forth in the Document Set applicable to such Product, and (b) for a
<br />period of ninety (90) days from the date of delivery, other products
<br />and materials fumished by Bentley to Subscriber shall, under normal
<br />use, operate in substantial conformance with the Bentley
<br />documentation applicable [o such products and materials- If any
<br />modifications, enhancements or changes are made by Subscriber or at
<br />Subscriber's direction to the Products; if the Products are reverse-
<br />engineered, decompiled or disassembled; or if Subscriber breaches
<br />the terms of this Agreement, then the warranties in this section shall
<br />be immediately terminated. This limited warranty gives Subscriber
<br />specific legal rights, Subscriber may have other rights which may
<br />vary from state/jurisdiction to state/jurisdiction
<br />6EL002620-1/0005 6/11
<br />C W 1969816
<br />Exclusion of Warranties. THE WARRANTIES STATED IN
<br />SECTION 4.01 ARE BENTLEY'S SOLE AND EXCLUSIVE
<br />WARRANTIES PERTAINING TO THE PRODUCTS, SELECT
<br />SUPPORT SERVICES AND OTHER MATERIALS AND
<br />SERVICES LICENSED, DELIVERED OR OTHERWISE
<br />FURNISHED BY BENTLEY UNDER THIS AGREEMENT.
<br />BENTLEY DOES NOT WARRANT THAT THE PRODUCTS,
<br />SELECT SUPPORT SERVICES, OR ANY OTHER SERVICE OR
<br />MATERIALS WILL MEET SUBSCRIBER'S REQUIREMENTS,
<br />BE FREE FROM VIRUSES OR OPERATE UNINTERRUPTED OR
<br />ERROR FREE. BENTLEY HEREBY DISCLAIMS ALL OTHER
<br />WARRANTIES EITHER STATUTORY, EXPRESS OR IMPLIED,
<br />INCLUDING WITHOUT LIMITATION, WARRANTIES
<br />AGAINST NON-INFRINGEMENT AND THE IMPLIED
<br />WARRANTIES OF MERCHANTABILITY, SATISFACTORY
<br />QUALITY AND FITNESS FOR A PARTICULAR PURPOSE-
<br />THESE EXCLUSIONS MAY NOT APPLY TO SUBSCRIBER AS
<br />SOME STATES/JURISDICTION DO NOT ALLOW THE
<br />EXCLUSION OF CERTAIN WARRANTIES.
<br />4.03. Exclusive Remedy. The enure liability of Bentley and the sole and
<br />exclusive remedy of Subscriber shall be, in Bentley's sole and
<br />absolute discretion, (i) to repair or replace a Product or other
<br />materials in breach of the foregoing watranties, (ii) to advise
<br />Subscriber how to achieve the same functionality with the Product as
<br />described in the Document Set through a procedure different from
<br />that set forth in the Document Set, or (iii) to return the purchase pace
<br />or fees paid therefore, where written notice of such breach, specifying
<br />the defect, is furnished to Bentley during the Warranty Period.
<br />Repaired, corrected, or replaced Products and Document Se[s shall be
<br />covered by this limited warranty for ninety (90) days after the date:
<br />(a) of shipment to Subscriber of the repaired or replaced Products and
<br />Document Sets, or (b) Bentley advised Subscriber how to operate the
<br />Products so as to achieve the functionality described in the Document
<br />Sets.
<br />4.04. Exclusion of Damages. IN NO EVENT SHALL BENTLEY AND
<br />ITS LICENSORS AND SUPPLIERS BE LIABLE TO
<br />SUBSCRIBER FOR ANY INDIRECT, INCIDENTAL, SPECIAL
<br />OR CONSEQUENTIAL DAMAGES, REGARDLESS OF THE
<br />NATURE OF THE CLAIM, INCLUDING WITHOUT
<br />LIMITATION LOST PROFITS, COSTS OF DELAY,
<br />INTERRUPTION OF BUSINESS, LOSS OF USE, INABILITY TO
<br />ACCESS ONLINE SERVICES, ANY FAILURE OF DELIVERY,
<br />COSTS OF LOST OR DAMAGED DATA OR
<br />DOCUMENTATION, OR LIABILITIES TO THIRD PARTIES
<br />ARISING FROM ANY SOURCE, EVEN IF BENTLEY HAS BEEN
<br />ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE
<br />POSSIBILITY OF SUCH DAMAGES OR CLAIMS. BECAUSE
<br />SOME STATES/JURISDICTIONS DO NOT ALLOW FOR THE
<br />EXCLUSION OR LIMITATION OF LIABILITY FOR
<br />CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE
<br />LIMITATION MAY NOT APPLY TO SUBSCRIBER.
<br />4.05. Disc leimer. Subscriber acknowledges that the Products are not faul[-
<br />tolerant and have not been designed, manufactured or intended for
<br />use and will not be used in [he development of weapons of mass
<br />destruction, as on-line control equipment in hazardous environments
<br />requiring fail-safe performance, such as in the operation of nuclear
<br />facilities, aircraft navigation or communication systems, air traffic
<br />control, direct life support machines, or weapons systems, in which
<br />the failure of the Products could lead directly to death, personal
<br />injury, or severe physical or environmental damage. Subscriber
<br />further acknowledges that the Products are not substitutes for
<br />Subscriber's professional judgment, and accordingly, neither Bentley
<br />nor its licensors or suppliers are responsible for Subscriber's use of
<br />the Products or the results obtained from such use. The Products are
<br />Page 8 of 12
|