|
BENTLEY $EELEC "ITROGRAM AGREEMENT
<br />General Terms and Conditions
<br />Exhibit B
<br />Dated as of January 2010
<br />Proprietary Information in accordance With this Section 3.06 of
<br />Exhibit B.
<br />all Subscriber shall maintain lire confidentiality of all Proprietary
<br />Infonnution. Subscriber shall not reproduce or copy Proprietary
<br />Infonnution except as pemtitled in this Agreement or as may, be
<br />expressly mahoriud in writing in advance by Bentley. All such
<br />copies shall be marked by Subscriber as proprietary and
<br />confidential tnPonnation.
<br />(c) Subscriber shuli only use Proprietary Information in Riahemnce
<br />of this Agreement, and may disclose Proprietary Information
<br />only to these employees required to have knowledge orients In
<br />perform their duties pursuant to this Agreement. Subscriber
<br />shall not disclose or make Proprietary Information available to
<br />any third party al any till.
<br />(it) Subscriber shall treat Proprietary Information With Ore same 4.03.
<br />degree of tare as it uses to protect its own confidential
<br />inibrmatiom and in no ratio less than a reasonable degree of
<br />care.
<br />(e) Upon the termination or non- renewal of (his Agreenent,
<br />Subscriber shall return to Bentley nr, if so raluesterL destroy all
<br />Proprietary Infonnution in its possession.
<br />In Subscriber shall have no obligation of comielcran lity with
<br />respect to any Proprietary Information that (i) has entered the
<br />public domain other than through a breach of this Agrcement,
<br />(a) has been rightfidly obtained by Subscriber Rom 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 inlomn Bentley upon knowledge of
<br />any netual or potential rmautherieed use or disclosure of to
<br />Proprietary hhfonnulion.
<br />3.07. No He clunaria. Subscriber may rte disclose the results of any
<br />Product testing, including but not limited to benchmarks, to tiny third
<br />party without first obtaining Bentley's wraRlen consent to do an.
<br />4. Limited Warranty; Llmifuh,a of Remedies and Lhibiliry
<br />4,01. Limited Warranty to Subscriber. ExcepL for Products licensed
<br />under Section 5.02(6), Section S.02(c) or Section 5.02(tl) of Exhibit A
<br />hereof, Which are provided to Subscriber "AS -IS" and without
<br />warranty urany kind, Bentley hereby warrants for the benefit only of
<br />Subscriber that (a) f'ur a period of ninety (90) days ( "Warranb-
<br />Periud ") from the date of delivery to Subscriber of a Serial Number
<br />or Product, its the case may be, the Product shall, under annual test,
<br />operate in substantial confommnee 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 furnished by Benalcy to Subscriber shall, under normal
<br />use, operate In substantial conformance with the Bentley
<br />documentation applicable to such produces and materials, If tiny
<br />mudilications, cohancencrts or changes am made by Subscriber or at
<br />Subscriber's direction to the Produces; if the Products arc rcecrsc-
<br />engineered, deear iled or dnassenhbled; or if Subscriher breaches
<br />the terns of This Agreement, then the warranties in this section shall
<br />be innucil n ely terminated, 'I his limited unmanly gives Subscriber
<br />specific legal rights, Subscriber may have other rights which may
<br />vary from sn(ejurisdiction to state /jurisdiction,
<br />4 -02. Exclusion of Warranties. THE WARRAN'i "IHS STATED IN
<br />SECTION 4.01 ARE BENTLEY'S SOLE AND EXCLUSIVE
<br />WARRANTIES PETfEAINING '10 THE PRODUCTS, SELECT'
<br />SELOOZSZD- 1/0005 yll
<br />SUPPORT SERVICES AND OTHER MATERIALS AND
<br />SERVICES INCENSED, DELIVERED OR OTHERWISE
<br />FURNISHED BY BENTLEY UNDER THIS AGREEMENT.
<br />BEN'T'LEY DOES Nat' 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 NUN- INFRINGEMEN'r 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 ST'ATESAURISDICTION DO NOT ALLOW T14E
<br />EXCLUSION OFCERTAIN WARRAN'T'IES.
<br />F,xclushrt Remedy. 'Me entire 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 warranties, (ii) to advise
<br />Subscriber have to achieve the same functionality With the Product as
<br />described in the Document Set through a procedure different from
<br />(hot se forth in the Document Set, or (iii) to ream the purchase price
<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, canceled, or replaced Products and Document Sets shall be
<br />covered by this limited womanly for ninety (96) days utter the date:
<br />(a) of shipment to Subscriber critic 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 descrihed 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, LASS 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 BEN'T'LEY HAS BEEN
<br />ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE
<br />POSSIBILITY OF SUCH DAMAGES Olt CLAIMS. BECAUSE
<br />SOME STAPES /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 />01 Disclaimer. Subscriber acknowledges that the products are not fimll-
<br />tolenent and have not been designed, mauuftLelumd or intended for
<br />use and will not be used in the development of weapons of mass
<br />destruction, as on -lino control equipment in laciaaloas environments
<br />requiring bail -safe performance, such as in the operation of nuclear
<br />facilities, aircraft navigation or enmmunica0un systems, air lraBie
<br />control, direct life support machines, or weapons systems, in Which
<br />the faihac of the Products could lead directly to death, personal
<br />injury, or severe physical or environmental damagc. Subscriber
<br />further acknowledges that the Products are not substitutes for
<br />Subscriber's professionaljudginenk and accordingly, neither Bentley
<br />nor its licensors or supplies are responsible for Subscriber's use of
<br />the Products or the results obtained from such age. 'I'lie Products are
<br />(micuded only to assist Subscriber in its business, and are not mean to
<br />be Snbstindcs for Subscriber's independent testing and verification of
<br />stress, safety, utility or other design parameters.
<br />Page 6 of 22
<br />
|