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HomeMy WebLinkAboutResolution - 2012-R0120 - Program Agreement And Amendment - Bentley Systems Inc.- Software Maintenance - 03_29_2012Resolution No. 2012—RO120 March 29, 2012 Item No. 5.19 RESOLUTION BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF LUBBOCK: THAT the Mayor of the City of Lubbock is hereby authorized and directed to execute for and on behalf of the City of Lubbock, a Program Agreement and Amendment thereto by and between the City of Lubbock and Bentley Systems, Inc., for software maintenance, and all related documents. Said Agreement and Amendment are attached hereto and incorporated in this resolution as if fully set forth herein and shall be included in the minutes of the City Council. assed by the City Council on March 29 , 2012. lye TOM MARTIN, MAYOR ATTEST: _�P# 0 %1 C r - -%--- Rebec a Garza, City Secretary APPROVED AS TO CONTENT: Mark arwao , ACM Chief Information Officer APPROVED AS TO M ity Attorney vw:ccdocs/RES.Amend Contract -Bentley Systems Inc. 3.8.12 CW 1971418 Coittract: 10700 CITY of LUBBOCK AMENDMENT NO. I TO SELECT PROGRAM AGREEMENT Resolution No. 2012-R0120 k Sustaining Infrastructure Amendment No. 1 to Bentley SELECT Program Agreement No. (CLA No. 10406223) This Amendment No. l (the "Amendment") made between Bentley Systems, Incorporated, a Delaware corporation, with principal offices at 685 Stockton Drive, Exton, PA 19341 ] ("Bentley"), and the City of Lubbock, a Texas corporation with principal offices at 1625 13th Street, Lubbock, Texas 79401("Subscriber") as of the Effective Date (the "Amendment Effective Date"). WHEREAS, Bentley and Subscriber wish to amend the Bentley SELECT Program Agreement No. (CLA Number 10406223) effective as of the Effective Date made between the parties (the "Original Agreement"). NOW THEREFORE, the parties hereby mutually agree as follows: 1. Definitions. The definitions of certain terms used in the Amendment with initial capitalized letters, if not defined herein, shall have the definitions set forth in the Original Agreement. 1.1. "Agreement" means the Original Agreement as amended by this Amendment. 1.2. "Effective Date" shall mean the date that the Original Agreement is accepted by Bentley as indicated by the first page of the Agreement. 2. Proprietary Information. The following shall be added as Section 3.06(h) of Exhibit B of the Original Agreement. (h) Notwithstanding the foregoing Subscriber may disclose Proprietary Information (excluding Bentley's Products) subject to the Texas Records Act/Texas Public Information Act, Texas Government Code, Chapter 552 provided that Subscriber gives Bentley written notice within a reasonable time prior to disclosure." Governing Law. Section 8.09 of Exhibit B of the Agreement shall be deleted in its entirety and replaced by the following: "This Agreement shall be governed by, interpreted, and enforced in accordance with the laws of the State of Texas, without regard to conflicts of law provisions. To the maximum extent permitted by applicable law, the parties agree that the provisions of the United Nations Convention on Contracts for the International Sale of Goods, as amended, and of the Uniform Computer Information Transactions Act, as it may have been or hereafter may be in effect in any jurisdiction, shall not apply to this Agreement." 4. Arbitration. Section 8.10 of Exhibit B of the Agreement shall be deleted in its entirety. City of Lubbock Amendment No. 1 Page I of 3 The information contained in this .Amendment is proprietary of Bentley 5vsteins, Incorporated and is not to be disclosed to any third party xvithout Bentley's express prior ii r'ttten consent. CW 1971418 CITY OF LUBBOCK AMENDMENT NO. 1 TO SELECT PROGRAM AGREEMENT Sustaining Infrastructure°' 5. Confidentiality. This Amendment and all terms and conditions set forth herein are Bentley Proprietary Information, as set forth in Exhibit B Section 3.06 of the SELECT Agreement, and shall be held in strict confidence. 6. Legal Effect. The modifications set forth in this Amendment are effective as of the amendment Effective Date. Except as expressly amended or modified by the terms of this Amendment, all other terms of the Agreement shall remain unchanged and in full force and effect. In the event of a conflict between the terms of the Agreement and the terms of this Amendment, the terms of this Amendment shall control. 7. Headings. The headings used in this Amendment are for convenience of reference only shall not be used to define the meaning of any provision. [Signature page to follow] City of Lubbock Amendment No. 1 Page 2 of 3 The information contained in this Amendment is proprietary of Bentley Systems, Incorporated and is not to be disclosed to any third party without Bentley's express prior written consent. CW 1971418 CITY OF LUBBOCK AMENDMENT No. 1 TO SELECT PROGRAM AGREEMENT Sustaining Infrastructure IN WITNESS WHEREOF, the parties represent and warrant that this Amendment is executed by duly authorized representatives of each party as set forth below on the date first stated above. City of Lubbock By. _r- 7 -,r- Print Name: TQ,, M, rt i n Print Title: _ M a yn r Date: March 29, 2012 Attest By: __ C) Print Name. RPhP�c-a Garza Print Title: City Sperpfary Date: March 29, 2012 Approved as to Content By: o� Print Name: Mark Ypa rwnnd Print Title: Date: W • • Print Title: A a City A t t_ o r n p y Date: City of Lubbock Amendment No. 1 BenZ�t� By: Print Name: 711-fDA Print Title: v M L i � Date: 3 l S Page 3 of 3 The information contained in this Amendment is proprietary of Bentley Systems, Incorporated and is not to he disclosed to any third parry without Bentley's express prior written consent. Resolution No. 2012—R0120 � f3entley BENTLEY SYSTEMS, INCORPORATED SELECT PROGRAM AGREEMENT Bentley SELECT' NORTH AMERICA Bentley SELECT Agreement CLA Number 10406223 This SELECT Program Agreement (together with all exhibits and attachments hereto as in effect from time to time, the "Agreement"} is made as of the Effective Date by and between Bentley Systems, Incorporated, a Delaware corporation with its principal office and place of business at 685 Stockton Drive, Exton, Pennsylvania 19341, and the subscriber identified below ("Subscriber'). All references herein to 'Bentley" include Bentley Systems, Incorporated and its direct and indirect subsidiaries. Subscriber desires to enter into this Agreement to subscribe to the Bentley SELECTS Program ("SELECT Program") to acquire licensing privileges and services offered from time to time under the SELECT Program, all as more fully described in the lettered exhibits attached hereto. Subscriber, upon signing this Agreement, is bound by the terms of this Agreement and Exhibits A and B hereto. Subscriber shall be bound by any amended or supplemental exhibit provided by Bentley upon Subscriber's license or purchase of products or services to which such amended or supplemental exhibits apply. The lettered exhibits attached to this Agreement are incorporated herein and made a part of this Agreement, as such exhibits may be updated, amended and supplemented with additional exhibits from time to time upon thirty (30) days after delivery through electronic or other means to the Subscriber; provided, that as to particular products and services licensed or purchased hereunder, Subscriber shall be bound by the form of the exhibits in effect at the time the products or services are licensed or provided. Upon any renewal of this Agreement, the updated, amended or supplemented exhibits in effect at the time of such renewal, if any, shall be applicable to all licensing privileges and services under the SELECT Program provided from and after the date of such renewal. Notwithstanding the foregoing, unless Bentley and Subscriber agree otherwise by a writing duly executed by authorized representatives of the parties, no amendment or supplement to the exhibits to this Agreement after any perpetual license purchase shall limit or impair the rights of Subscriber under the perpetual license terms and conditions in effect at the time such license is acquired. For definitions of the capitalized terms used in this Agreement and the Exhibits hereto, see Section I of the General Terms and Conditions included as Exhibit B. The term of this Agreement is set forth in the General Terms and Conditions under the caption "Term; Termination." The terms of all Product licenses acquired hereunder shall be as set forth in Section 5 of Exhibit A to this Agreement, and all Product licenses hereunder are subject to the termination provisions applicable to such licenses in Section 5 of Exhibit A to this Agreement and in the General Terms and Conditions. Subscribers may not use the licenses, services and other benefits provided under this Agreement for purposes of developing software applications for distribution outside of their organization or for providing end -user training on Bentley Products other than to internal end users. If your organization falls into either of the foregoing prohibited categories, then please contact Bentley about other programs that are better suited for your business. BY SIGNING BELOW, SUBSCRIBER ACKNOWLEDGES THAT, THROUGH ITS AUTHORIZED REPRESENTATIVES, IT HAS READ AND UNDERSTANDS THIS AGREEMENT (INCLUDING ALL ATTACHED EXHIBITS), AGREES TO BE BOUND BY THE TERMS AND CONDITIONS CONTAINED HEREIN AND HAS THE AUTHORITY TO ENTER INTO THIS AGREEMENT. SUBSCRIBER IS NOT ENTERING INTO THIS AGREEMENT ON THE BASIS OF ANY REPRESENTATIONS NOT EXPRESSLY SET FORTH HEREIN, A FULLY EXECUTED COPY OF THIS AGREEMENT WILL BE RETURNED TO SUBSCRIBER AFTER THIS AGREEMENT IS APPROVED AND ACCEPTED BY BENTLEY. SUBSCRIBER City of Lubbock Company Name S�goature TOM MARTIN printw Nam MAYOR Titlo myearvood@utylubbock. us E-mail Address Address. 1625 13th Street Lubbock, TX 79401 Telephone: 8 0 6.7 7 5.2 3 5 5 Date Signed: March 29, 2012 SELOO2520-1/0005 6/11 BENTLEY SYSTEMS, INCORPORATED Signk&e Printed Name Title 685 Stockton Drive Exton, Pennsylvania 19341 Telephone: 610-456-5000 Date Signed: 11-2,1 2,t 1. 2. BENTLEY SELECT PROGRAM AGREEMENT SELECT Program Benefits Exhibit A Dated as of January 2010 Gentrtl. Subscriber agrees to purchase SELECT Program coverage for ail Bentley Products licensed and CALs, acquired by Subscriber. Bentley shall provide SELECT Program services to Subscriber for all Bentley Products licensed by Subscriber, subject to the provisions of this Agreement. Subscriber may complete and submit to Bentley a supplemental form referenced by Bentley as Attachment 1 (`Attachment I"), and if completed Attachment I shall be incorporated into this Agreement, provided that (except with respect to the duration of the initial term of the Agreement) in the event of any inconsistency between this Agreement and Attachment 1, this Agreement shall control with respect to Subscriber's SELECT Program subscription. Any additional Bentley Products licensed by Subscriber during the term of this Agreement shall be added automatically to Subscriber's SELECT Program coverage hereunder and the additional SELECT Program Fees will be included in Subscriber's periodic invoices for SELECT Program services. SELECT Support Services platform for an equivalent license for such Product on another platform (a "Platform Exchange'). 3.02, Such Upgrade, Update, or Platform Exchange may be in downloadable electronic form, or any other means as Bentley may choose from time to time in its sole discretion. 3.03. In order for Subscriber to be eligible In receive Upgrades, Updates, or Platform Exchanges, Bentley may require that Subscriber fast return the Product (or component thereof, such as hardware lock or CD - ROW subject to the Upgrade, Update, or Platform Exchange directly to Bentley. 3.04. If Subscriber receives an Upgrade and uses such Upgrade then Subscriber's aggregate use of the Upgrade and the original Product subject to such Upgrade may not exceed the number of licenses purchased for such Product, If Subscriber receives a Platform Exchange then Subscriber must immediately cease using the original Product subject to such Platform Exchange. 4, SELECT Online. 2.01. Bentley may provide SELECT support services to Subscriber either directly or, at its discretion, through authorized Bentley Channel Partners. A Channel Partner's authorization may be limited to a particular Site or Sites. Subscriber acknowledges that Channel Partners are independent contractors of Bentley, and that there is no 4 01 employer/employee relationship between Bentley and its Channel Partners. 2.02. Bentley shall provide Technical Support services to Subscriber, which includes telephone, facsimile, electronic mail, and Internet based support to assist Subscribers regarding the use of Bentley Products, CALs and services (however, not to include professional services or professional training services) and reasonable efforts to respond to technical inquiries within four hours during regular business hours. The telephone portion of Technical Support services will be available seven days a week, 24 hours per day, provided that after normal business hours at a Subscriber's regional support location, Subscriber may be required to contact another Bentley support center. 2.03. Bentley shall have no obligation to provide a response or other service hereunder if Subscriber's technical inquiry is caused by: (a) incorporation or attachment of a feature, program, or device to a Product not approved or supplied by Bentley; (b) any nonconformance caused by accident, transportation, neglect, misuse, alteration, modification, or enhancement of a Product; (c) Failure to provide a suitable installation environment; (d) use of the Product other than as described in its Document Set or as authorized under this Agreement; or (e) failure to incorporate any Update previously released by Bentley. Bentley shall offer SELECT support services for a given version of a Product, for at least twelve months, or until two Upgrades have been released by Bentley, whichever occur; first. 2.04. If Subscriber experiences a production -stopping anomaly, Bentley will use good faith efforts to create an appropriate solution and deliver it electronically, or through such other means as Bentley may choose in its sole discretion. 3. Upgrades, Updates, and Platform Exchanges 3.01. Subscriber shall have the right to receive, at no additional charge (other than shipping and handling, if applicable), Upgrades and Updates for each Product covered by the SELECT Program as such Upgrades and Updates become available. Subscriber shall also have the right to exchange, at no additional charge (other than shipping and handling, if applicable), a license for a Product (other than a Subscription License) covered by the SELECT Program on one SELA0252t}1/0005 6/11 Subscriber shall receive access to SELECT Online as set forth below and in more detail in the applicable online agreement found at www.bentley.com (the "Online Agreement'): Bentley may, from time to time, offer certain services, including, but not limited to, training services, to its SELECT subscribers on a computer online service, electronic bulletin board, Internet site or through technology developed in the fixture ("SELECT Online"). Subscriber shall use SELECT Online only in accordance with and subject to this Agreement, the terms provided herein and as supplemented from time to time in the Online Agreement that is a condition precedent to use of SELECT Online. The Online Agreement supplements this Agreement but does not supersede it in any respect. In the event of a conflict between the Online Agreement and this Agreement, the terms of this Agreement shall control. 4.02. Bentley shall have the sole right to control the format, content, delivery and all other aspects of SELECT Online. Bentley specifically reserves the right at any time to modify the information provided through SELECT Online, discontinue any portion of SELECT Online, or terminate the SELECT Online service altogether without providing Subscriber any prior notice. 4.03. Absent a written agreement with Bentley to the contrary, Subscriber's use of SELECT Online constitutes Subscriber agreement to be bound by the terms of the Online Agreement S. Product Licensing 5.01. General (a) Existing Licenses. Bentley and Subscriber agree that the terms of this Agreement shall amend and supplement all license agreements existing as of the Effective Date for Products (including prior versions thereof). In the event of a conflict between the terms of any license agreements existing as of the Effective Date for Products and the terms of this Agreement, the terms of this Agreement shall control until termination of this Agreement, whereupon, with respect to any perpetually licensed Products, the terms of the license agreement provided with the Product upon its delivery to Subscriber shall govern Subscriber's use of any such Product. (b) Future Licenses. to the event that Subscriber acquires or licenses a copy of a Product, Subscriber's use of such Product shall be governed by the terms of the license agreement Page 2 of 12 BENTLEY SELECT PROGPAM AGREEMENT SELECT Program Benefits Exhibit A Dated as of January 2010 provided with the Product upon its delivery to Subscriber, as Subscriber using pooled licensing hereby agrees to install and amended or supplemented by the terms of this Agreement in implement Bentley's SELECTserver or such other Bentley effect at the time of such purchase. Subscriber hereby agrees licensing technology as may be required by Bentley from time that its downloading or use of any Products delivered to it shall to time to monitor usage. Subscriber agrees and acknowledges constitute Subscriber's acceptance of the license agreement that Bentley's SELECTserver will from time to time transmit to terms provided with the Product upon its delivery to Subscriber. Bentley the usage log files generated by SELECTserver or such If Subscriber licenses additional copies of a Product that is other Bentley licensing technology. Subscriber agrees to allow already licensed by Subscriber, such additional licenses may he the above transmission to Bentley or otherwise to transmit to author-ized through delivery of a new License Key and without Bentley true and accurate copies of such usage log files. For delivery or download of any additional Product. In such purposes of clarity, the right to pool licenses of Products granted instances, Subscriber agrees that the license agreement terms to Subscriber pursuant to this Section 5.02(a) of Exhibit A shall contained or cross-referenced in the License Key shall govem terminate in the event of any termination or non -renewal of this Subscriber's use of such Product. In the event of a conflict Agreement, notwithstanding that the subject Products may be between the terms of the license agreement provided with a licensed on a perpetual basis. The pooled licensing benefits set Product upon its delivery to Subscriber and the terms of this forth in this Section 5.02(a) of Exhibit A are not applicable to Agreement in effect at the time such Product is purchased, the Server Products, Client Software and associated CALs. terms of this Agreement in effect at the time such Product is purchased shall control for the term of this Agreement. (b) No -Charge Licenses. However, with respect to any perpetually licensed Product, upon any termination of this Agreement the terms and (1) If a Product is designated as eligible on SELECT Online, conditions of the license agreement provided with the Product Subscriber is hereby entitled on a non-exclusive basis, upon its delivery to Subscriber shall govem Subscriber's use of without payment of license fees but otherwise subject to the Product. the terms of this Agreement, to create Production Use copies, for use only by Subscriber, of certain Products (c) No Transfers. Subject to Section 8.01 of Exhibit B, Subscriber made available by Bentley from time to time and which shall not sell, transfer, assign, grant a security interest in, are designated by Bentley as no -charge software. sublicense, loan, lease or rent any of its rights under its CALs or Subscriber is entitled to redistribute such Products, which licenses to use Bentley Products without the prior written are designated by Bentley as available for such consent of Bentley. If consent is given by Bentley, Subscriber redistribution, in machine readable form to third parties to may permanently transfer a license to another end user, which Subscriber distributes its Bentley Products files; provided all software and related documentation and media provided that Subscriber procures each such third parry's covered by such license are transferred to the transferee end agreement not to further redistribute such Products. Unless user and the Subscriber does not retain any copies thereof, and Bentley specifically authorizes otherwise in writing, such provided further that the transferee end user agrees in writing free licenses granted or redistributed hereunder will expire with Bentley to cover all of its CALs and licensed Products upon termination of this Agreement. under the SELECT Program and be bound by the terms of the license agreement then in effect for such CAL or Product. (2) For each of Subscriber's Licenses of a Product designated by Bentley as eligible on SELECT Online, Subscriber may (d) No Commercial Hosting. Products are licensed for Production at no charge receive a single CAL allowing one additional Use only. Products may not be used to provide commercial User (which User may, under the terms of Section 5.02(0 hosting services or as the basis for fee or transaction based of Exhibit A, be an External User) of that designated services. Product to install and use Client Software to access any properly licensed Server Products, for Production Use, and 5.02. Licensing Programs. Unless otherwise specifically set forth herein, in accordance with Section 5.02(0 of Exhibit A. Such Bentley Products are licensed on a Per Device basis as set forth in the CALs granted hereunder will expire upon termination of applicable end user license that ships with the Bentley Product. The this Agreement. following licensing programs are not available for all Products; please check SELECT Online to see which Products are eligible for the (c) Home Use Licenses. Unless Subscriber notifies Bentley in respective licensing programs (absent a specific designation of writing that Subscriber's employees shall not be entitled to eligibility, a Product is ineligible for any such program). Bentley obtain home use editions of a Product, Bentley will distribute reserves the right to add or remove any Product from eligibility for upon an employee's request made through Subscriber's site licensing under the following programs. Bentley reserves the right to administrator, and permit Subscriber's employees to use, discontinue any of its licensing programs at any time, without notice without charge, home use editions of certain Products (for to Subscriber. However, until renewal or termination of this which such editions are available, as designated on SELECT Agreement, such termination of any Licensing program shall not affect Online) in accordance with the terms set forth in the license the licenses for Products previously granted pursuant to such agreement provided with such home use edition of a Product, as terminated licensing program. For purposes of clarity, all licenses amended and supplemented by this Agreement. Restrictions on previously grunted pursuant to a terminated licensing program shall home use licenses include the following: home use licenses are terminate upon the renewal or termination of this Agreement. not permitted to be used for Production Use or any commercial use, including training; home use licenses are not for use in (a) Pooled Licensing. If a Product is designated as eligible on Subscriber's offices; home use licenses may not be stored on SELECT Online, then Bentley hereby grants to Subscriber a any electronic media; home use licenses must be permitted in limited non -transferable non-exclusive right to use such Product Subscriber's jurisdiction. The total number of home use editions for Production Use only on multi-user computer networks, and available to Subscriber's employees may not exceed the number to install a licensed Product on more than one computer or hard of Subscriber's Product licenses to which the home use editions disk, provided that all users under this arrangement are at the relate. Home use editions of Products are ineligible for same Site and the number of users that Use a Product during Technical Support even if Subscriber has purchased SELECT any one interval does not exceed the number of copies of such Program services, Subscriber shall not be responsible for Product for which Subscriber has licenses at such Site. Any ensuring compliance by its employees with the Bentley home st:t00252a-1/0005 e/11 Page 3 of 12 BENTLEY SELECT PROGRAM AGREEMENT SELECT Program Benefits Exhibit A Dated as of January 2010 use license, nor shall Subscriber be liable for any breaches of SELECT Program services that the same CALs or such license by its employees. Such home use licenses granted Products under a perpetual license would entitle hereunder will expire upon termination of this Agreement. Subscriber to receive. (d) Evaluation of Products. If a Product is designated as eligible (5) Subscriber recognizes that the CALs, Products and on SELECT Online, Bentley hereby grants to Subscriber, Portfolios acquired or licensed under a Subscription subject to its compliance with the procedures of this Section License are provided to Subscriber for use only for the 5.02(d) of Exhibit A, a limited non -transferable non-exclusive applicable License Term or any renewal term. In no event right to create, using SELECT Online (following the registration will a Subscription License continue beyond the expiration requirements set forth on SELECT Online), one (1) copy per or earlier termination of the SELECT Agreement under Site of each Product contained on SELECT Online solely for which it is granted. Subscriber recognizes that CAL Evaluation Use of such Product, provided that Subscriber shall Subscriptions, Product Subscriptions and Portfolio have no right to create evaluation copies of Products previously Subscriptions may be delivered to Subscriber with licensed by Subscriber. The duration of use of an evaluation embedded Time Clocks. Subscriber agrees that Time copy shall not exceed thirty (30) days, and Bentley may provide Clocks are not considered a defect of such Subscription the Product with a mechanism that will cause the Product to Licenses and releases Bentley from any and all claims, time out or expire after thirty (30) days. Upon the earlier of the however characterized, arising from or related to Time conclusion of such (30) day evaluation period or the termination Clocks or their operation. Subscriber may not remove or of this Agreement, Subscriber shall destroy all copies of evade Time Clocks. Products created for evaluation hereunder and, upon request by Bentley, certify such destruction in writing. (6) In the event of any inconsistency between this Section 5.02(e) of Exhibit A and any other Section or Exhibit of (e) Subscription Liceusiog. this Agreement, or between this Section 5.02(e) of Exhibit A and the terms and conditions in the license agreement (1) Subscriber may, upon Bentley's approval, license certain provided with any Product or CAL that is the subject of Products, or acquire CALs, for a specified term (a Subscription License, this Section 5.02(e) of Exhibit A "Subscription License"). A Subscription License may shall control with respect to Subscription licenses. entitle Subscriber to license rights in a single Product (a "Product Subscription") or a specified portfolio of (f) Client Software Benefits. "Client Access License" or "CAL" Products (a "Portfolio Subscription") for Production Use, is a license right to install and use Client Software and permit a in Object Code form and within the Country. Each User to access Server Products licensed by Subscriber. If Client Portfolio Subscription is licensed for use on a single Software is designated as eligible on SELECT Online, computer at one time, and its component parts or Subscriber may, up to the total number of CALs licensed by individual Product elements, if any, may not be separated Subscriber, for Production Use only: (1) install and use Client for use on more than one computer. To be eligible to Software; (2) permit Users, including External Users, to access participate, Subscriber must be current on all outstanding Server Products licensed by Subscriber, and (3) access Server invoices for amounts owed to Bentley. Products licensed by an External User, and the total number of CALs counted as used hereunder shall be the number of unique (2) The license term for a Product Subscription or Portfolio Users, which number shall include External Users, recorded in Subscription shall commence upon Subscriber's receipt of the usage log files transmitted pursuant to this Section 5.02(f), the License Key and, unless earlier terminated, shall during the term of this Agreement. The parties acknowledge continue for the remaining current term of the Agreement and agree that an External User may be permitted to access or such shorter term (not less than one (1) month) as Server Products licensed by Subscriber using a CAL owned by Subscriber may elect at the time the purchase order is that External User. Subscriber agrees to transmit to Bentley, delivered and reflected in the License Key (the "License upon Bentley's request, true and accurate copies of the usage Term"). The License Term (and each successive term) log files generated by Server Products or such other Bentley shall automatically renew at its expiration for a successive licensing technology as may be required by Bentley from time term equal to the then remaining term of the Agreement, to time, and information identifying any External User that has or such shorter term (not less than one month) as a accessed Server Products licensed by Subscriber. Upon Subscriber may elect at the time of such renewal, unless expiration or earlier termination of this Agreement, the terms of either party gives notice of its election not to renew the the license agreement provided with the Client Software and the License Term at least thirty (30) days prior to the CAL shall thereafter govern the use of such Client Software and expiration of the then current term. The License berm for the associated CAI., and Subscriber shall no longer be entitled a particular Product Subscription or Portfolio Subscription to the Client Software Benefits as set forth in this Section. shall terminate upon termination of the Agreement or in the event of non -renewal at the end of the then current (g) SELECTserver. Subscriber may, upon Bentley's approval, and License Term as provided in the preceding sentence. at no charge, receive a Subscription License for Bentley's SELECTserver Product (or such other server -based license (3) The fees in effect as of the date a Subscription License for management technology that Bentley may offer). The terms of a CAL, Product Subscription or Portfolio Subscription is Subscriber's use of the SELECTserver Product shall be as set initiated or renewed hereunder shall remain in effect for forth in the license agreement provided with the SELECTserver such CAL, Product or Portfolio Subscription until the Product, as such terms are amended or supplemented in this expiration or renewal date of the License Terns for such Agreement. Subscriber acknowledges that SELECTserver (or CAL, Product or Portfolio Subscription. On the renewal such other server -based license management technology that date, the prices in effect on such date shall be applicable. Bentley may offer) may be delivered to Subscriber with embedded Time Clocks. Subscriber agrees that Time Clocks are (4) During the License Term, and any renewal term, all not considered a defect of the Product and releases Bentley from Subscription Licenses for CALs, Product Subscriptions any and all claims, however characterized, arising from or and Portfolio Subscriptions shall entitle Subscriber to all related to Time Clocks or their operation. Subscriber may not SELOO2520-1/0005 6/11 Page 4 of 12 BENTLEY SELECT PROGRAM AGREEMENT SELECT Program Benefits Exhibit A Dated as of January 2010 remove or evade Time Clocks. Subscriber agrees and acknowledges that Bentley's SELECTserver will from time to time transmit to Bentley the usage log files generated by SELECTserver or such other Bentley licensing technology. Subscriber agrees to allow the above transmission to Bentley or otherwise to transmit to Bentley true and accurate copies of such usage log files. SELECT Program Fees 6,01, Subscriber shall pay to Bentley the applicable SELECT Program Fee in effect for each Product licensed or CAL acquired as of the Effective Date of this Agreement. Subscriber shall pay to Bentley the applicable SELECT Program Fee in effect for each additional Product licensed or CAL acquired during the term hereof as of the date such additional Product license or CAL is purchased. With respect to the Products licensed or CALs acquired by Subscriber during the term of the Agreement, the fees in place as of the Effective Date, or, with respect to additional Products licensed or CALs acquired, as of the date of such purchase, shall remain in effect for the Subscriber until the date of the next renewal of this Agreement, at which time the fees shall be changed to those charged by Bentley as of such renewal date, provided that no changes in fees for Products or CALs covered shall be effective until thirty (30) days after Subscriber receives notice of such changes. Subscription License fees as set forth in Section 5.02(e) of this Exhibit A are inclusive of SELECT Program coverage and no additional fees for SELECT Program coverage shall apply for Products licensed or CALs acquired under a Subscription License. 6.02. Bentley shall initially invoice Subscriber for one (1) year of SELECT Program Fees for all Product licenses and CALs as of the Effective Date of this Agreement. Bentley shall provide Subscriber with a pro- rated annual invoice for all Product licenses and CALs purchased during the first year following the Effective Date of this Agreement. As of the first anniversary of the Effective Date of this Agreement, invoices for SELECT Program Fees for Product licenses and CALs shall be issued quarterly or annually. Invoices reflecting new Product licenses or CALs will include a prorated amount reflecting coverage of the Product or CAL under the SELECT Program during the preceding invoice period plus the full amount for the current invoice period. Bentley may modify the timing of invoicing hereunder ar any time. 6.03. Calculation and payment of the SELECT Program Fee hereunder shall be based on the local price and local currency of the Subscriber's Site where the related Products or CALs are used. SEL002520-1/0005 6/11 Page 5 of 12 BENTLEY SELECT PROGRAM AGREEMENT General Terms and Conditions Exhibit B Dated as of January 2010 1. Definitions. 1.16. "Object Code" means the Products in a machine readable form that The capitalized words, terms and phrases in this Agreement shall is not convenient to human understanding of the program logic, and have the meanings set forth below:, that can be executed by a computer using the appropriate operating system without compilation or interpretation Object Code 1.01. "Agreement" means the SELECT Program Agreement executed by specifically excludes source code. Bentley and the Subscriber and all exhibits, attachments and amendments as in effect from time to time. 1 17, "Online Agreement" shall be defined as set forth in Exhibit A Section 4 herein. 1.02. "Bentley Products" or "Products" mean the software products, data and other materials, previously or hereafter distributed by Bentley 1 18. "Order" shall be defined as set forth in Exhibit C, Section 1.01 through delivery mechanisms determined in Bentley's sole discretion herein. (including but not limited to distribution via SELECT Online through download or by ordering through CD format) that Bentley makes 1,19. "Pre -Existing Works" shall be defined as set forth in Exhibit C, available to Subscriber typically in Object Code form only, for Section 1.08 herein. licensing hereunder, including Updates and Upgrades thereto. 1.20. "Platform Exchange" shall be defined as set forth in Exhibit A, 1.03. "CAL" shall be defined as set forth in Exhibit A, Section 5.02(f) Section 3.01 herein. herein. 1.21. "Portfolio Subscription" shalt be defined as set forth in Exhibit A, 1.04. "Channel Partner" or "Bentley Channel Partner" means Section 5.02(e)(l)herein, individuals and companies who are authorized by Bentley to provide SELECT support services as set forth in Exhibit A, Section 2. 1.22. "Product Subscription" shall be defined as set forth in Exhibit A Section 5.02(e)(1) herein. 1.05. "Client Software" means software that allows a Device to access or utilize (or where applicable, be managed by) Server Products (and, 1.23, "Production Use" means use of a Bentley Product in Object Code also where applicable, to utilize certain aspects of the Products when form by a User or Device, as applicable, solely for Subscriber's disconnected from the Server). internal production purposes, and excludes External Users (except with respect to use of CAIs and access of Server Products pursuant to 1,06. "Country" means the country: (i) where the Product is first obtained Exhibit A, Section 5.02(f) herein) and Service Bureau Use. from Bentley or a Channel Partner; or (ii) specified in the purchase order for which a Production Use copy of the Product may be made 1,24. "Proprietary Information" shall be defined as set forth in Exhibit or the Product is authorized to be used. B, Section 3.06(a) herein. 1.07. "Definition of Use" shall have the meaning set forth in each License 1.25. "SELECT Online" shall be defined as set forth in Exhibit A, Section Key 4.O1 herein. 1.08. "Device" means a single personal computer, workstation, terminal, 1.26. "SELECT Program Fee" means the fee for SELECT Program hand held computer, pager, telephone, personal digital assistant, services as set forth from time to time in Bentley's sole discretion. Server, or other electronic device. 1.27. "SELECTserver" means Bentley's server -based licensing 1.09. "Distribute" means distribution by Bentley through all means now technology, known or hereinafter developed 1.28. "Serial Number" means a unique number issued by Bentley for 1.10. "Document Set" means, with respect to a Product, one copy of one identification of a particular copy of a Product, which number shall be or more user guides developed for use with such Product in electronic registered to Subscriber and assigned by Subscriber to a particular format or such other format as elected by Bentley in its sole copy of such Product, discretion. 1.29. "Server" means one of Subscriber's computers that can run a Server 1.1 1. "Effective Date" means the date that this Agreement is accepted by Product. Bentley as indicated on the first page ofthis Agreement. 1.30. "Server Product" means a Product that provides services or 1.12. "Evaluation Use" means the use of a Bentley Product solely for functionality to Subscriber's Server(s). internal evaluation of such Product. Evaluation Use expressly excludes use in connection with ongoing projects, use for 131. "Service Bureau Use" includes managing, hosting, distributing or compensation ofany kind, and Production Use. otherwise providing access to Products across a wide area network. 1.13. "External User" means any User (not an organization) who is not: (i) one of Subscriber's full-time, part time, or temporary employees; or (ii) agency temporary personnel or an independent contractor on assignment at Subscriber's place of business or work -site. 1.14. "License Key" means the document furnished by Bentley in electronic or such other format as determined in Bentley's sole discretion, to Subscriber identifying the Product licensed and authorizing use of a Product. 1.15. "License Term" shall be defined as set forth in Exhibit A, Section 5.02(e)(2) herein, SEL002520-1/0005 6/11 1.32. "Site" means all of the discrete geographic locations at which Subscriber Uses or manages the operation of Products within the geographic boundaries of a single Country. 1.33, "Subscriber" shall be defused as set forth on the front page of this Agreement, and with respect to Use of Products the term "Subscriber" shall refer to: (i) one of Subscriber's full-time, part- time, or temporary employees; or (ii) agency temporary personnel or an independent contractor engaged in Production Use on assignment at Subscriber's place of business or work -site. Page 6 of 12 BENTLEY SELECT PROGRAM AGREEMENT General Terms and Conditions Exhibit B Dated as of January 2010 1.34. "Subscription License" shall be defined as set forth in Exhibit A, Subscriber has complied with its obligations hereunder. 'These records Section 5.02(ex1) herein. shall include the location and identification of the Subscriber hardware on which Subscriber uses each copy of the CALs or 1.35. "Subscription Licensing" means acquisition of a CAL or licensing Products. Subscriber shall, upon seven (7) days advance written of a Product or portfolio of Products as set forth in Section 5.02(c) of notice by Bentley, permit reasonable inspection and copying of such Exhibit A of this Agreement. records by Bentley or a third -party auditor retained by Bentley at the offices of Subscriber during regular working hours. 1.36. "Technical Support" means telephone, facsimile, Internet and electronic mail based support to assist a subscriber to the SELECT 3. Intellectual Property Rights Program as described in Exhibit A, Section 2.02 of this Agreement, 1,37. "Time Clocks" means copy -protection mechanisms, or other security 3.01, Title; Reservation of Rights. Subscriber acknowledges and agrees devices which may deactivate Products or CALs, including Bentley's that. SELECTserver, after termination or expiration of the Agreement, any (a) The Products, including the Document Sets for each Product, applicable License Term or any applicable renewal term. and any information which Subscriber obtains through the 1.38. "Update" means a maintenance release of a Product. SELECT Program or the use of SELECT Online or any other means of electronic transmission, contain proprietary 1.39. "Upgrade" means a commercial release of a Product which has information of Bentley, its licensors or other suppliers, and are substantial added functionality over the Product it is intended to protected under United States copyright laws, other applicable replace. copyright laws, other laws relating to the protection of intellectual property, and international treaty provisions; 1,40, "Use" (whether or not capitalized) means utilization of the Product or (b) Doe entire right, title and interest and to the Products, the CAL by an individual or when a Product has been loaded into Document rots, arty information Subscriber obtains through the temporary memory (i.e. RAM) or installed into permanent memory SELECT Program or the use of SELECT Online or any other (e.g. hard disk, CD-ROM, or other storage device) of a computer. means of electronic transmission, and all associated intellectual 1,4I. "User" means an individual person, property rights, shall remain with Bentley or its licensors; 1.42. "Work" shall be defined as set forth in Exhibit C, Section 1.01 (c) The Products are licensed, not sold, and title to each copy of the herein. Products shall remain with Bentley or its licensors, and shall not pass to Subscriber; and 1.43. "Work Product" shall be defined as set forth in Exhibit C, Section (d) Bentley retains all rights not expressly granted. 1.01 herein. 3.02. Source Code. Subscriber shall have no right hereunder to receive, 2. Payment of Bentley Invoicm review, use or otherwise have access to the source code for the Products. 2.01, Payment Terms. Subscriber shall pay each Bentley invoice for all 3,03, Copyright Notices. Subscriber shall reproduce and include on all CALs, Product licenses and services provided hereunder within thirty copies of the Products created by Subscriber all copyright notices and (30) days from the date of such invoice. Interest shall accrue on proprietary legends of Bentley or its licensors as they appear in or on delinquent payments of such invoices at the rate of one and one-half the original media containing the Products supplied by Bentley. percent (1.5%) per month or the highest rate permitted by applicable law, whichever is less. In the event any payment hereunder is past 3.04. Reproduction of Document Sets. Subscriber may reproduce the due, Bentley, at its discretion, may suspend or, after notice of such Document Sets for its internal, non-commercial use only, but the overdue payment and a thirty (30) day period to cure, terminate Subscriber's services, rights, and licenses provided larder this cumulative number of such reproduced Document Sets may not Agreement. exceed the number of Products licensed by Subscriber that correspond to the Document Sets. 2.02. Taxes. Subscriber shall pay to Bentley all levied taxes that .. 305Reverse Engineering Subscriber may not decode, reverse engineer, Bentley required under applicable law to collect from Subscriber by reverse assemble, reverse compile, or otherwise translate the Products reason of the transactions contemplated by this Agreement, including but not limited sales, use, occupation, value added, or Document Sets except and only to the extent that such activity is a excise, and property taxes (except for taxes based on Bentley's net expressly permitted by applicable law notwithstanding this limitation. income). If Subscriber is obligated ender an applicable law to To the extent that Subscriber is expressly permitted by law to withhold or deduct taxes from any payment of SELECT Program undertake any of the activities listed in the previous sentence, Fees to Bentley, Subscriber shall furnish to Bentley official receipts Subscriber will not exercise those rights until it has provided Bentley evidencing Subscriber's payment of such taxes. with thirty (30) days prior written notice of its intent to exercise such rights. 2.03. Local Price and Currency. Calculation and payment of the SELECT 3.06. Proprietary Information. Program Pee or any separate price for all CALs, Products and services hereunder shall be based on the local price and local currency of the Subscriber's Site where such CAL, Product or service (a) connection Subscriber understands and agrees that Bentley may, in is used connwith the provision of CALs, Products and services hereunder, disclose to Subscriber confidential, proprietary and 2.04. Records; Audit. Subscriber shall maintain complete and accurate technical information pertaining to Bentley Products and to records of CALs and Product licenses prior to the date of this Bentley's technology and business practices (collectively Agreement and its creation and use of the CALs acquired and "Proprietary Information"). Subscriber agrees to treat all Products licensed hereunder to permit Bentley to determine whether SEL002320-1/0005 6/11 Page 7 of 12 BENTLEY SELECT PROGRAM AGREEMENT General Terms and Conditions Exhibit B Dated as of January 2010 Proprietary Information in accordance with this Section 3.06 of SUPPORT SERVICES AND OTHER MATERIALS AND Exhibit B. SERVICES LICENSED, DELIVERED OR OTHERWISE FURNISHED BY BENTLEY UNDER THIS AGREEMENT. (b) Subscriber shall maintain the confidentiality of all Proprietary BENTLEY DOES NOT WARRANT THAT THE PRODUCTS, Information. Subscriber shall not reproduce or copy Proprietary SELECT SUPPORT SERVICES, OR ANY OTHER SERVICE OR Information except as permitted in this Agreement or as may be MATERIALS WILL MEET SUBSCRIBER'S REQUIREMENTS, expressly authorized in writing in advance by Bentley. All such BE FREE FROM VIRUSES OR OPERATE UNINTERRUPTED OR copies shall be marked by Subscriber as proprietary and ERROR FREE. BENTLEY HEREBY DISCLAIMS ALL OTHER confidential information. WARRANTIES EITHER STATUTORY, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, WARRANTIES (c) Subscriber shall only use Proprietary Information in furtherance AGAINST NON -INFRINGEMENT AND THE IMPLIED of this Agreement, and may disclose Proprietary Information WARRANTIES OF MERCHANTABILITY, SATISFACTORY only to those employees required to have knowledge of same to QUALITY AND FITNESS FOR A PARTICULAR PURPOSE. perform their duties pursuant to this Agreement. Subscriber THESE EXCLUSIONS MAY NOT APPLY TO SUBSCRIBER AS shall not disclose or make Proprietary Information available to SOME STATES/IURISDICTION DO NOT ALLOW THE any third party at any time. EXCLUSION OF CERTAIN WARRANTIES. (d) Subscriber shall treat Proprietary Information with the same 4,03. Exclusive Remedy. The entire liability of Bentley and the sole and degree of care as it uses to protect its own confidential exclusive remedy of Subscriber shall be, in Bentley's sole and information, and in no case less than a reasonable degree of absolute discretion, (i) to repair or replace a Product or other care. materials in breach of the foregoing warranties, (ii) to advise Subscriber how to achieve the same functionality with the Product as (e) Upon the termination or non -renewal of this Agreement, described in the Document Set through a procedure different from Subscriber shall return to Bentley or, if so requested, destiny all that set forth in the Document Set, or (iii) to return the purchase price Proprietary Information in its possession. or fees paid therefore, where written notice of such breach, specifying the defect, is furnished to Bentley during the Warranty Period. (f) Subscriber shall have no obligation of confidentiality with Repaired, corrected, or replaced Products and Document Sets shall be respect to any Proprietary Information that (i) has entered the covered by this limited warranty for ninety (90) days after the date: public domain other than through a breach of this Agreement, (a) of shipment to Subscriber of the repaired or replaced Products and (ii) has been rightfully obtained by Subscriber from a third party Document Sets, or (b) Bentley advised Subscriber how to operate the with no obligation of confidentiality, or (iii) is previously Products so as to achieve the functionality described in the Document known by Subscriber as demonstrated by clear and convincing Sets. evidence. 4.04. Exclusion of Llamages. IN NO EVENT SHALL BENTLEY AND (g) Subscriber shall promptly inform Bentley upon knowledge of ITS LICENSORS AND SUPPLIERS BE LIABLE TO any actual or potential unauthorized use or disclosure of the SUBSCRIBER FOR ANY INDIRECT, INCIDENTAL, SPECIAL Proprietary Information. OR CONSEQUENTIAL DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING WITHOUT 307. No Benchmarks. Subscriber may not disclose the results of any LIMITATION LOST PROFITS, COSTS OF DELAY, Product testing, including but not limited to benchmarks, to any third INTERRUPTION OF BUSINESS, LOSS OF USE, INABILITY TO parry without first obtaining Bentley's written consent to do so. ACCESS ONLINE SERVICES, ANY FAILURE OF DELIVERY, COSTS OF LOST OR DAMAGED DATA OR 4. Limited Warranty, Limitation of Remedies and Liability DOCUMENTATION, OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE, EVEN IF BENTLEY HAS BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE 4.01. Limited Warranty to Subscriber. Except for Products licensed POSSIBILITY OF SUCH DAMAGES OR CLAIMS_ BECAUSE under Section 5.02(b), Section 5.02(c) or Section 5.02(d) of Exhibit A SOME STATES/JURISDICTIONS DO NOT ALLOW FOR THE hereof, which are provided to Subscriber "AS -IS" and without EXCLUSION OR LIMITATION OF LIABILITY FOR warranty of any kind, Bentley hereby warrants for the benefit only of CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE Subscriber that (a) for a period of ninety (90) days ("Warranty LIMITATION MAY NOT APPLY TO SUBSCRIBER. Period") from the date of delivery to Subscriber of a Serial Number or Product, as the case may be, the Product shall, under normal use, 4.05, Disclaimer. Subscriber acknowledges that the Products are not fault - operate in substantial conformance with the functional specifications tolerant and have not been designed, manufactured or intended for set forth in the Document Set applicable to such Product, and (b) for a use and will not be used in the development of weapons of mass period of ninety (90) days from the date of delivery, other products destruction, as on-line control equipment in hazardous environments and materials furnished by Bentley to Subscriber shall, under normal requiring fail-safe performance, such as in the operation of nuclear use, operate in substantial conformance with the Bentley facilities, aircraft navigation or communication systems, air traffic documentation applicable to such products and materials. If any control, direct life support machines, or weapons systems, in which modifications, enhancements or changes are made by Subscriber or at the failure of the Products could lead directly to death, personal Subscriber's direction to the Products; if the Products are reverse- injury, or severe physical or environmental damage. Subscriber engineered, decompiled or disassembled; or if Subscriber breaches further acknowledges that the Products are not substitutes for the terms of this Agreement, then the warranties in this section shall Subscriber's professional judgment, and accordingly, neither Bentley be immediately terminated. This limited warranty gives Subscriber nor its licensors or suppliers are responsible for Subscriber's use of specific legal rights, Subscriber may have other rights which may the Products or the results obtained from such use. The Products are vary from state/jurisdiction to state/jurisdiction, intended only to assist Subscriber in its business, and are not meant to be substitutes for Subscriber's independent testing and verification of 4,02. Exclusion of Warranties. THE WARRANTIES STATED IN saws, safety, utility or other design parameters. SECTION 4.01 ARE BENTLEY's SOLE AND EXCLUSIVE WARRANTIES PERTAINING TO TILE PRODUCTS. SELECT SEL002520-1/0005 6/11 Page 8 of 12 BENTLEY SELECT PROGRAM AGREEMENT General Terms and Conditions Exhibit B Dated as of January 2010 4,06, Limitation of Bentley Liability. IN THE EVENT THAT, NOTWITHSTANDING SECTIONS 4.01, 4.02, 4.03, 4.04 AND 4.05 OF THIS EXHIBIT B, BENTLEY IS FOUND LIABLE FOR DAMAGES BASED ON ANY BREACH, DEFECT, DEFICIENCY OR NON -CONFORMITY IN A PRODUCT, IN SELECT SUPPORT SERVICES, OR IN ANY OTHER SERVICE OR MATERIALS,WHETHER IN CONTRACT, TORT OR OTHERWISE, AND REGARDLESS OF WHETHER ANY 6 REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE BY LAW, BENTLEY's CUMULATIVE LIABILITY HEREUNDER SHALL NOT EXCEED THE PRICE PAID BY SUBSCRIBER FOR (i) SUCH PRODUCT, (ii) A ONE-YEAR SUBSCRIPTION TO THE SELECT PROGRAM, OR (iii) SUCH OTHER DEFECTIVE SERVICE OR MATERIALS, AS THE CASE MAY BE. THE PROVISIONS OF THIS AGREEMENT ALLOCATE THE RISKS BETWEEN BENTLEY AND SUBSCRIBER. BENTLEY'S PRICING REFLECTS THIS ALLOCATION OF RISK AND THE LIMITATION OF LIABILITY SPECIFIED HEREIN, 4.07. Indemnification by Bentley. Bentley shall pay any damages finally awarded against Subscriber based on a claim against Subscriber that a Product which is developed and owned by Bentley infringes a third party's copyright under the laws of a Berne Convention signatory country, or results in a misappropriation of a third parry's trade secret, in the Country where Subscriber has been authorized to place the Product 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 settlement 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. If 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 of a superseded or altered release of a 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 Section 4.07 sets forth Subscriber's sole remedy for intellectual property infringement. 5. Expert Controls. 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, Subscriber 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 (including 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 jurisdiction 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 to time. Subscriber shall indemnify, defend and hold Bentley harmless for any breach of its obligations pursuant to this Section 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. Govenrment"), it is provided with restricted rights. The Products and accompanying documentation are "commercial computer software" and "commercial computer software documentation," respectively, pursuant to 48 C.F.R. 12.212 and 227.7202, and "restricted computer software" pursuant to 48 C.F.R. 52.227-19(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 this Agreement and pursuant to 48 C.F.RR 12.212, 52.227-19, 227,7202, and 1852.227-86, as applicable. Term; Termination 7.01. Term. This Agreement and Subscriber's SELECT Program subscription shall become effective on the Effective Date, and shall continue for an initial term of twelve (12) months (unless Attachment I provides for a longer duration of the initial term), and shall automatically 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 -current term. 7.02. Termination 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 patty, specifically identifying the breach or breaches on wbich termination is based. Following receipt of such notice, the party in breach shall have twenty-one (2I) days to cure such breach or breaches, and this Agreement shall terminate in the event 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 this Agreement. 7.03. Insolvency. I� under applicable insolvency laws, 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 shall have the right to terminate this Agreement immediately by written notice. 7.04. Consequences of Termination. Upon the termination of this Agreement for any reason, all of the rights and licenses granted to Subscriber in this Agreement shall terminate immediately, With respect to any perpetually 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 immediately discontinue use of SELECT Online. 7.05 Reinstatement Following Termination. Following a termination of the SELECT 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 sole 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. 5ELOO2520-1/0005 6/11 Page 9 of 12 BFNTLFY SELECT PROGRAM AGREEMENT General Terms and Conditions Exhibit B Dated as of January 2010 8. Miscellaneous. International Sale of Goods, as amended, and of the Uniform Computer Information Transactions Act, as it may have been or 8.01 Assignment. Subscriber shall not assign this Agreement or delegate hereafter may be in effect in any jurisdiction, shall not apply to this its duties hereunder without prior written consent by Bentley. For Agreement. purposes of this Agreement, a change in control of Subscriber shall be considered an assignment for which Bentley's prior written consent is 8.10. Arbitration. In the event of any dispute, controversy or claim hereby granted provided that the surviving entity from such change in between the parties arising under this Agreement, the parties shall control must enter into a SELECT Agreement. This Agreement may submit to binding arbitration before a single arbitrator in Philadelphia, be assigned by Bentley to any successor in interest to Bentley's Pennsylvania in accordance with the Commercial Arbitration Rules of business or to any direct or indirect wholly -owned subsidiary of the American Arbitration Association. The decision of the arbitrator Bentley Systems, Incorporated. Any purported assignment in shall be final and binding on the parties, and the judgment upon the violation of this provision shall be void and without effect. award rendered by the arbitrator shall be enforceable in any court of competent jurisdiction. Each party shall bear its own attorney's fees, 8.02. Entire Agreement This Agreement, together with the Exhibits and costs, and expenses incurred in such arbitration. signed Amendments, if any, incorporate the entire agreement of the 8 I l parties and supersede and merge all prior oral and written agreements, independent Contractor. Bentley's relationship with Subscriber for discussions and understandings between the parties with respect to all purposes hereunder shall be that of an independent contractor and the subject matter hereof. The terms and conditions of this Agreement nothing herein shall be construed as creating, at any time, an and of the applicable Bentley confirmation shall apply to each order employer and employee relationship between the parties. accepted or shipped by Bentley hereunder. Any additional or different terms or conditions appearing on a purchase order issued by 8.12. Change of Ownership. Subscriber shall provide Bentley with sixty Subscriber hereunder, even if Bentley acknowledges such terms and (60) days advance written notice of any changes in its ownership or conditions, shall not be binding on the parties unless both parties location. expressly agree in a separate writing as provided under Section 8,03 of this Exhibit B. 8.13. Headings The headings in this Agreement are intended solely for convenience of reference and shall not affect the meaning or 8.03. Amendments. Except as otherwise contemplated herein with respect interpretation of this Agreement. 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, even if required to be acknowledged by Bentley, shall not be binding on the parties. 8.04. Notices. Notices under this Agreement shall be made or given as of the date of either hand delivery or mailing to such party, if sent prepaid certified mail or next day air delivery to the address set forth on the first page of this 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 failure to fulfill the terms of this Agreement due to fire, strike, war, government regulations, acts of God, labor disturbances, acts of terrorism or other causes which are unavoidable and beyond its control. 8.06. Waiver. The failure of either party to insist upon any of its tights under this Agreement upon one or more occasions, or to exercise any of its rights, shall not be deemed a waiver of such rights 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 (including, but not limited to, Sections 5.01(a), (b), (c) and (d) and 6-01 of Exhibit A, Sections 1, 2, 3, 4, 5, 6, 7.04, 7.05 and 8 of Exhibit B, and Sections 1.06, 1.07, 1.09, 1.09, L I Q, 1 A 1, 1.12, 1.14, 1.16 and t.17 of Exhibit C) shall be enforceable notwithstanding said expiration or termination. 8.08. Severabitity. 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. 9.09. 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 law provisions. To the maximum extent permitted by applicable law, the parties agree that the provisions of the United Nations Convention on Contracts for the SELOO2520-1/0005 6/11 Page 10 of 12 BENTLEY SELECT PROGRAM AGREEMENT Professional Services Exhibit C Dated as of January 2010 Professional Services. 1.01. Subscriber may request professional services from time to time and Bentley may agree to perform such services pursuant to this Agreement. The description of professional services requested by Subscriber and which Bentley agrees to perform shall be set forth in one or more written descriptions labeled "SELECT Professional Services" and signed by Subscriber and Bentley (each an "Order"). Bentley shall have the right to accept or decline any proposed Order. Each Order shall set forth, at a minimum, the work to be done, the number of Bentley's personnel to be assigned to Subscriber's work, the duration of each individual's assignment, and the fees for the work. The services and other provisions described on the Order(s) are referred to collectively as the "Work" while the results of the Work, if any, are referred to as the "Work Product." 1.02. Method of Performance. Bentley, in conjunction with its personnel, will determine the method, details, and means of performing the work to be carried out for Subscriber, including the use of sub -contractors if deemed necessary. Subscriber shall have no right to, and shall not, control the manner or determine the method of accomplishing such work. Subscriber may, however, require Bentley's personnel to observe at all times the security and safety policies of Subscriber. In addition, Subscriber shall be entitled to exercise a broad general power of supervision and control over the results of work performed by Bentley to ensure satisfactory performance. This power of supervision shall include the right to inspect, stop work, make suggestions or recommendations as to the details of the work, and request modifications to the scope of an Order, 1.o3. Scheduling. Bentley will try to accommodate work schedule requests of Subscriber to the extent possible. Should any personnel of Bentley be unable to perform scheduled services because of illness, resignation, or other causes beyond Bentley's reasonable control, Bentley will attempt to reptace such personnel within a reasonable time, but Bentley shall not be liable for failure if it is unable to do so, giving due regard to its other commitments and priorities. 1.04. Reporting. Subscriber will advise Bentley of the individuals to whom Bentley's manager will report progress on day-to-day work. Subscriber and Bentley shall develop appropriate administrative procedures for performance of work at Subscriber's site, if necessary. Subscriber shall periodically prepare an evaluation of the work performed by Bentley for submission to Bentley upon Bentley's request 1,05. Place of Work Certain projects or tasks may require Bentley's personnel to perform work for Subscriber at Subscriber's premises. In the event that such projects or tasks are required to be performed at Subscriber's premises, Subscriber agrees to provide working space and facilities, and any other services and materials Bentley or its personnel -may reasonably request in order to perform their work. Subscriber recognizes that there may be a need to train Bentley's personnel in the unique procedures used at Subscriber's location. When Subscriber determines that such training is necessary, Subscriber shall, unless otherwise agreed in writing, pay Bentley for its personnel's training time. 1.06, Rion -Exclusive. Bentley shall retain the right to perform work for others during the term of this Agreement. Subscriber shall retain the right to cause work of the same or a different kind to be performed by its own personnel or other contractors during the term of this Agreement. 1.07. Perpetual License. Upon full payment for the Work, Bentley shall grant Subscriber a paid -up, perpetual, royalty -free right and license SEL002520-1/0005 6/11 to use the Work Product for Production Use. Bentley retains all right, title and interest to the Work Product not otherwise granted to Subscriber. 1.08. Preexisting Works of Bentley. Notwithstanding Section 1.07 of Exhibit C hereof, Bentley hereby reserves and retains ownership of all works which Bentley created unrelated to the Work performed pursuant to any Order, including but not limited to Products (the "Pre -Existing Works'). Bentley does not grant Subscriber any rights or licenses with respect to the Pre -Existing Works. 1.09. Residuals. It is mutually acknowledged that, during the normal course of its dealings with Subscriber and the Work, Bentley and its personnel and agents may become acquainted with ideas, concepts, know-how, methods, techniques, processes, skills, and adaptations pertaining to the Work, including those that Subscriber considers to be proprietary or secret. Notwithstanding anything in this Agreement to the contrary, and regardless of any termination of this Agreement, Bentley shall be entitled to use, disclose, and otherwise employ any ideas, concepts, know-how, methods, techniques, processes, and skills, adaptations, including generalized features of the sequence, structure, and organization of any works of authorship, in conducting its business (including providing services or creating programming or materials for other customers), and Subscriber shall not assert against Bentley or its personnel any prohibition or restraint from so doing. 1.I0. Third -Party Interests Subscriber's interest in and obligations with respect to any programming, materials, or data to be obtained from third -party vendors, regardless of whether obtained with the assistance of Bentley, shall be determined in accordance with the agreements and policies of such vendors. 1.11. Fees. Bentley shall be paid the fee as specified in each Order (which Bentley reserves the right to change upon at least sixty (60) days advance notice or at any time for any new Order or modified portion of an existing Order), or, if no fee is specified, at Bentley's customary rates for the level of personnel providing such services. 1.12. Expenses. Subscriber shall also pay either the actual cost of Bentley's reasonable travel and living expenses or an agreed -to amount for such travel and living expenses (other than normal commutation travel) for Bentley employees in the performance of Work set forth in each Order along with all other out-of-pocket expenses incurred by Bentley. 1.13. Estimates. Estimates of total fees for projects may be provided in an Order, but Bentley does not guarantee such estimates. Bentley will, however, notify Subscriber as soon as possible if it will exceed the estimate, and Subscriber may then terminate the project and pay only for services actually rendered if Subscriber so chooses. 1.14. Confidentiality. In the performance of the Work, Bentley may acquire information of Subscriber which is proprietary, non-public and identified in writing as confidential by Subscriber. Bentley shall not disclose to anyone not employed by Subscriber nor use except on behalf of Subscriber any such confidential information acquired in the performance of the Work except as authorized by Subscriber in writing and as may be permitted by Section 1.09 of this Exhibit C. Bentley shall have no obligation of confidentiality with respect to any information of Subscriber that (i) has entered the public domain other than through a breach of this Agreement, (ii) has been rightfully obtained by Bentley from a third party with no obligation of confidentiality, or (iii) is previously known by Bentley as demonstrated by clear and convincing evidence. Notwithstanding the foregoing restrictions, Bentley and its personnel may use and disclose any information to the extent required by an order of any court or other governmental authority Page 11 of 12 BENTLEY SELECT PROGRAM AGREEMENT Professional Services Exhibit C Dated as of January 2010 or as necessary for it or them to protect their interest in this Agreement, but in each case only after Subscriber has been so notified and has had the opportunity, if possible, to obtain reasonable protection for such information in connection with such disclosure. 1.15. Term. This Exhibit C will become effective as of the date of the first executed Order and will continue in effect through the completion of each Order. 1.16. Termination of Orders. Subscriber or Bentley may terminate any uncompleted Order at any time by giving thirty (30) days written notice to the other party. Upon such termination, Bentley agrees to stop Work under the Order in question and to forward to Subscriber all completed or uncompleted drawings, reports or other documents relating to the Work. to the event of such termination Subscriber shall be liable only for such fees, costs and expenses as have accrued prior to the effective date of such termination. 1.17. Prohibition on Hiring. Subscriber shall not solicit for employment or hive any Bentley employees providing professional services hereunder for the duration of the Work, plus a period of one (1) year after completion of the professional services provided hereunder. SELOO2520-1/0005 6/11 Page 12 of 12