|
BENTLEY SELECT PROGRAM AGREEMENT
<br />General Terms and Conditions
<br />Exhibit B
<br />Dated as of January 201 O
<br />intended only to assist Subscriber in its business, and are no[ meant to
<br />be substitutes for Subscnber's independent testing and veriFcation of
<br />stress, safety, utility or other design parameters.
<br />4.06. Limitation of Bentley Liability. IN THE EVENT THAT,
<br />NOTWITHSTANDING SECTIONS 4.01, 4.02, 4.03, 4.04 AND 4.05
<br />OF THIS EXHIBIT B, BENTLEY IS FOUND LIABLE FOR
<br />DAMAGES BASED ON ANY BREACH, DEFECT, DEFICIENCY
<br />OR NON-CONFORMITY IN A PRODUCT, IN SELECT SUPPORT
<br />SERVICES, OR IN ANY OTHER SERVICE OR
<br />MATERIALS,WHETHER IN CONTRACT, TORT OR
<br />OTHERWISE, AND REGARDLESS OF WHETHER ANY
<br />REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL
<br />PURPOSE BY LAW, BENTLEY'S CUMULATIVE LIABILITY
<br />HEREUNDER SHALL NOT EXCEED THE PRICE PAID BY
<br />SUBSCRIBER FOR (i) SUCH PRODUCT, (i i) A ONE-YEAR
<br />SUBSCRIPTION TO THE SELECT PROGRAM, OR (iii) SUCH
<br />OTHER DEFECTIVE SERVICE OR MATERIALS, AS THE CASE
<br />MAY BE. THE PROVISIONS OF THiS AGREEMENT
<br />ALLOCATE THE RISKS BETWEEN BENTLEY AND
<br />SUBSCRIBER. BENTLEY'S PRICING REFLECTS THIS
<br />ALLOCATION OF RISK AND THE LIMITATION OF LIABILITY
<br />SPECIFIED HEREIN.
<br />4.OZ Indemnirication by Bentley. Bentley shall pay any damages finally
<br />awarded against Subscnber based on a claim against Subscriber that a
<br />Product which is developed and owned by Bentley infringes a third
<br />party's copyright under the laws of a Berne Convention signatory
<br />country, or results in a misappropriation of a third party's trade secret,
<br />in the Country where Subscriber has been authorized to place the
<br />Product subject to such claim into Production Use, if Subscriber
<br />provides to Bentley: (a) prompt written notice of any such claim, (b)
<br />all available information and assistance, and (c) the opportunity to
<br />exercise sole control of the defense and settlement of any such claim.
<br />Bentley shall also have the right, at its expense, either to procure the
<br />right for Subscriber to continue to use the Product or to replace or
<br />modify such Product so that it becomes non-infringing. If neither of
<br />the foregoing alternatives is available on terms that Bentley, in its
<br />sole discretion, deems desirable, Subscriber shall, upon written
<br />request from Bentley, return to Bentley the allegedly infringing
<br />Product, in which event Bentley shall refund to Subscriber the price
<br />paid by Subscriber for each copy of such returned Product, less
<br />twenty percent (20 %) for each elapsed year since the commencement
<br />of the license for such copy. Bentley shall have no liability and this
<br />indemnity shall not apply if the alleged infringement is contained in a
<br />Product which is not developed or owned by Bentley or is due to
<br />modiFcation of the Product by Subscriber or the combination,
<br />operation or use of a Product with other software that does not
<br />originate from Bentley or if Subscnber is in breach of [his
<br />Agreement. Bentley shall also have no liability, and this indemnity
<br />shall not apply, for the portion of any claim of infringement based on
<br />use of a superseded or altered release of a Product if the infringement
<br />would have been avoided by the use of a current, unaltered release of
<br />the Product. Tn no even[ shall Bentley's liability hereunder to
<br />Subscriber exceed the license fees paid by Subscriber for the
<br />allegedly infringing Product. This Section 4.07 sets forth Subscriber's
<br />sole remedy for intellectual property infringement.
<br />5. Export Controls.
<br />The Products have been manufactured or developed in the United
<br />States of America and accordingly may be subject to U.S. export
<br />control laws, regulations and requirements. Regardless of any
<br />disclosure made by Subscriber [o Bentley of an ultimate destination
<br />of the Products, Subscriber must not export or transfer, whether
<br />directly or indirectly, the Products, or any portion thereof, or any
<br />system containing such Products or portion [hereof, to anyone outside
<br />6EL002520-1/0005 6/11
<br />C W 1969816
<br />the United States (including further export if Subscriber took delivery
<br />of the Products outside the United States) without first complying
<br />strictly and fully with all export controls that may be imposed on the
<br />Products by the United States Govemment or any country or
<br />organization of nations within whose jurisdiction Subscriber uses the
<br />Products. The countries subject to restriction by action of the United
<br />States Govemment are subject to change, and it is Subscriber's
<br />responsibility to comply with the United States Govemment
<br />requirements as they may be amended from time to time. Subscriber
<br />shall indemnify, defend and hold Bentley harmless for any breach of
<br />its obligations pursuant to this Section.
<br />U.S. Government Restricted Rights.
<br />if the Products are acquired for or on behalf of the United Stales of
<br />America, its agencies and/or instrumentalities ("U.S. Government"),
<br />it is provided with restricted rights. The Products and accompanying
<br />documentation are "commercial computer software" and "commercial
<br />computer software documentation," respectively, pursuant to 48
<br />C F. R. 12.212 and 227.7202, and "restricted computer software"
<br />pursuant to 48 C.F_R, 52227-19(a), as applicable. Use, modiFcation,
<br />reproductioq release, performance, display or disclosure of the
<br />Products and accompanying documentation by the U.S. Govemment
<br />are subject to restrictions as set forth in this Agreement and pursuant
<br />to 48 C.F.R. 12.212, 52.227-19, 227J202, and 1852.227-86, as
<br />applicable.
<br />7. Term; Termination
<br />7.01. Term. This Agreement and Subscriber's SELECT Program
<br />subscription shall become effective on the Effective Date, and shall
<br />continue for an initial term of twelve (12) months (unless Attachment
<br />1 provides for a longer duration of the initial term), and shall
<br />automatically renew for terms of like tenure unless either party gives
<br />notice of its election to not renew [he term at least thirty (30) days
<br />prior to the expiration of the then-current term.
<br />7.02. Termination for Material Breach. Either party may, at its option,
<br />terminate this Agreement in the event of a material breach of this
<br />Agreement by the other party. Any such termination may be effected
<br />only through a written notice to the other party, specifically
<br />identifying the breach or breaches on which termination is based.
<br />Following receipt of such notice, the party in breach shall have
<br />twenty-one (21) days to cure such breach or breaches, and this
<br />Agreement shall terminate in the event that such cure is not made by
<br />the end of such period; provided, however, Bentley shall have the
<br />right to terminate this Agreement immediately if Subscnber breaches
<br />any of its obligations under Section 3 of this Exhibit B. The failure of
<br />Subscriber to pay an outstanding invoice of Bentley shall always
<br />constitute a material breach of this Agreement_
<br />7.03. Insolvency. If, under applicable insolvency laws, Subscriber becomes
<br />unable to pay its debts or becomes insolvent or bankrupt or makes
<br />arrangements with its creditors, or otherwise goes into liquidation,
<br />admini stmtion or receivership, then Bentley shall have the right to
<br />terminate this Agreement immediately by written notice.
<br />Z04. Consequences of Termination. Upon the termination of this
<br />Agreement for any reason, all of the rights and licenses granted to
<br />Subscriber in this Agreement shall terminate immediately. With
<br />respect to any perpetually licensed Products, the terms and conditions
<br />set forth in the license agreement delivered with such Products and
<br />the Definition of Use shal I govern Subscnber's use of such Products
<br />Subscriber shall immediately discontinue use of SELECT Online.
<br />7.05 Reinstatement Following Termination. Following a termination of
<br />the SELECT Program, Subscriber may reinstate such services only if
<br />Page 9 of 12
|