HomeMy WebLinkAboutC2015-522 - 1/20/2015 - Approved CW2026887
CITY OF CORPUS CHRISTI " B e n t le
AMENDMENT NO. 1 TO
Srsfririry Infrastructure
SELECT PROGRAM AGREEMENT
Amendment No. 1
to
Bentley SELECT Program Agreement No.(CLA No. 14576635)
This Amendment No. 1 (the"Amendment")made between Bentley Systems, Incorporated with
principal offices at 685 Stockton Drive,Exton PA 19341 ("Bentley"),and City of Corpus Christi,
with principal offices at 1201 Leopard St.,Corpus Christi,TX 78401-2825("Subscriber")as of
June 1,2015(the"Amendment Effective Date").
WHEREAS,Bentley and Subscriber wish to amend the Bentley SELECT Program Agreement No. '
(CLA Number 14576635)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 June 1,2015.
2. Term. Section 7.01 Term,of Exhibit B General Terms and Conditions of the Agreement is
hereby deleted in its entirety and shall be replaced by the following:
"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,
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, subject to Subscriber's("City")payment of annual subscription fees which are
subject to annual appropriation of funds during the City's budget process."
3. Governing Law. Section 8.09 Governing Law,of Exhibit B General Terms and Conditions
of the Agreement is hereby deleted in its entirety and shall be replaced by the following:
"8.09 Governing Law. 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."
4. Arbitration. Section 8.10 Arbitration, of Exhibit B General Terms and Conditions of the
Agreement is hereby deleted in its entirety from the Agreement.
CITY OF CORPUS CHRISTI Page 1 of 2
Amendment No. 1
2015 522
1/20/15 1 in this Amendment is proprietary of Bentley Systems,Incorporated and is not
i to any third party without Bentley's express prior written consent.
Ord. 030406
Bentley
INDEXED
CW2026887
CITY OF CORPUS CHRISTI Be ntle w
AMENDMENT NO. 1 TO S staibte/Infrastructure
SELECT PROGRAM AGREEMENT
5. Fees. Section 1.11 Fees, of Exhibit C Professional Services, is hereby deleted in its entirety
and shall be replaced by the following:
"1.11 Fees.Bentley shall be paid the fee as specified in each Order,as agreed upon in writing
between Bentley and Subscriber."
6. 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.
7. 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.
8. Headings. The headings used in this Amendment are for convenience of reference only shall
not be used to define the meaning of any provision.
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 Corpus Christi Bentle S stem Incor'orated
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By: *mitt, C• stow By:
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ATTEST: FL—L-k- ^.`I t,
REBECCA HUERTA
Lisa Aguilar CITY SECRETARY Ord_ O,J[�O
Assistant City Attorney 7
For City Attorney
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CITY OF CORPUS CHRISTI Page 2R6111(TAgve_
Amendment No. 1
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.
BENTLEY SYSTEMS, INCORPORATED
Bentley SELECT PROGRAM AGREEMENT Bentley SELECT'
NORTH AMERICA
Bentley SELECT Agreement CLA Number 14576635
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,including,without limitation subsidiaries created or acquired during the term hereof.
Subscriber desires to enter into this Agreement to subscribe to the Bentley SELECT®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,B,C and F 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 1 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 Exhibit A to this Agreement,and all Product licenses hereunder are
subject to the termination provisions applicable to such licenses in 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 BENTLEY SYSTEMS,INCORPORATED
CITY OF CORPUS CHRISTI (- e_____
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Address: 1201 Leopard St 685 Stockton Drive
Corpus Christi,TX 78401-2825 Exton,Pennsylvania 19341
Telephone: 3 4 I. 8 Z • 322 0 Telephone: 610-458-5000
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6E12520-2/0006 6/14C., 4i;..e...--,
BENTLEY SELECT PROGRAM AGREEMENT
SELECT Program Benefits
Exhibit A
Dated as of June 2014
1. General. license for such Product on another platform (a "Platform
Exchange").
Subscriber agrees to purchase SELECT Program coverage for all 3.02. Such Upgrade,Update,or Platform Exchange may be in downloadable
Bentley Products licensed by Subscriber. Bentley shall provide electronic form,or any other means as Bentley may choose from time
SELECT Program services to Subscriber for all Bentley Products to time in its sole discretion. In order for Subscriber to be eligible to
licensed by Subscriber,subject to the provisions of this Agreement. receive Upgrades, Updates, or Platform Exchanges, Bentley may
Subscriber may complete and submit to Bentley a supplemental form require that Subscriber first return the Product(or component thereof,
referenced by Bentley as Attachment 1 ("Attachment 1"), and if such as hardware lock or CD-ROM)subject to the Upgrade,Update,
completed Attachment 1 shall be incorporated into this Agreement, or Platform Exchange directly to Bentley.
provided that(except with respect to the duration of the initial term of
the Agreement) in the event of any inconsistency between this 3.03. If Subscriber receives an Upgrade and uses such Upgrade then
Agreement and Attachment 1, this Agreement shall control with Subscriber's aggregate use of the Upgrade and the original Product
respect to Subscriber's SELECT Program subscription.Any additional subject to such Upgrade may not exceed the number of licenses
Bentley Products licensed by Subscriber during the term of this purchased for such Product. If Subscriber receives a Platform
Agreement shall be added automatically to Subscriber's SELECT Exchange then Subscriber must immediately cease using the original
Program coverage hereunder and the additional SELECT Program Product subject to such Platform Exchange.
Fees will be included in Subscriber's periodic invoices for SELECT
Program services. 4. Online SELECT.
2. SELECT Support Services 4.01. Bentley may,from time to time,offer Subscriber services,including,
but not limited to,certain software fulfillment,support,social media,
2.01. Bentley may provide SELECT support services to Subscriber either and training services,to its SELECT subscribers via the intemet,or
directly or, at its discretion, through authorized Bentley Channel through technology developed in the future (collectively "Online
Partners. A Channel Partner's authorization may be limited to a SELECT").Subscriber may only use an Online SELECT service in
particular Site or Sites.Subscriber acknowledges that Channel Partners accordance with and subject to this Agreement,and any terms of use
are independent contractors of Bentley, and that there is no for the applicable Online SELECT service,which terms supplement
employer/employee relationship between Bentley and its Channel this Agreement. In the event of a conflict with any Online SELECT
Partners. service terms of use,the terms of this Agreement shall control.
2.02. Bentley shall provide Technical Support services to Subscriber,which 4.02. Bentley shall have the sole right to control the format,content,delivery
includes telephone, facsimile, electronic mail, and Internet based and all other aspects of Online SELECT.Bentley specifically reserves
support to assist Subscribers regarding the use of Bentley Products, the right at any time to modify the information provided through Online
Passports and services(however,not to include professional services, SELECT,discontinue any portion of Online SELECT,or terminate any
managed services or professional training services) and reasonable Online SELECT service altogether without providing Subscriber any
efforts to respond to technical inquiries within four hours during prior notice.
regular business hours. The telephone portion of Technical Support
services will be available seven days a week, 24 hours per day, 5. Product Licensing
provided that after normal business hours at a Subscriber's regional
support location, Subscriber may be required to contact another 5.01. General.
Bentley support center.
(a) Existing Licenses.Bentley and Subscriber agree that the terms
2.03. Bentley shall have no obligation to provide a response or other service of this Agreement shall amend and supplement all license
hereunder if Subscriber's technical inquiry is caused by: (a) agreements existing as of the Effective Date for Products
incorporation or attachment of a feature, program, or device to a (including prior versions thereof). In the event of a conflict
,Product not approved or supplied by Bentley;(b)any nonconformance between the terms of any license agreements existing as of the
caused.by accident, transportation, neglect, misuse, alteration, Effective Date for Products and the terms of this Agreement,the
modification,or enhancement of a Product;(c) failure to provide a terms of this Agreement shall control until termination of this
suitable installation environment;(d)use of the Product other than as Agreement,whereupon,with respect to any perpetually licensed
described in its Documentation or as authorized under this Agreement; Products,the terms of the license agreement provided with the
• or(e)failure to incorporate any Update previously released by Bentley. Product upon its delivery to Subscriber shall govern Subscriber's
Bentley shall offer SELECT support services for a given version of a use of any such Product.
Product,for at least twelve months,or until two Upgrades have been
released by Bentley,whichever occurs first. (b) Future Licenses.In the event that Subscriber licenses a copy of
a Product,Subscriber's use of such Product shall be governed by
2.Q4. If Subscriber experiences a production-stopping anomaly,Bentley will the terms of the license agreement provided with the Product
use good faith efforts to create an appropriate solution and deliver it upon its delivery to Subscriber,as amended or supplemented by
electronically,or through such other means as Bentley may choose in the terms of this Agreement in effect at the time of such licensing.
its sole discretion. Subscriber hereby agrees that its downloading or use of any
Products delivered to it shall constitute Subscriber's acceptance
3. Upgrades,Updates,and Platform Exchanges of the license agreement terms provided with the Product upon
its delivery to Subscriber.In the event of a conflict between the
3.01. Subscriber shall have the right to receive,at no additional charge(other terms of the license agreement provided with a Product upon its
than,shipping and handling,if applicable),Upgrades and Updates for delivery to Subscriber and the terms of this Agreement in effect
each Product covered by the SELECT Program as such Upgrades and at the time such Product is purchased,the terms of this Agreement
Updates become available. Subscriber shall also have the right to in effect at the time such Product is purchased shall control for
exchange,at no additional charge(other than shipping and handling,if the term of this Agreement. However, with respect to any
applicable),a license for a Product(other than a Subscription License) perpetually licensed Product, upon any termination of this
covered by the SELECT Program on one platform for an equivalent Agreement the terms and conditions of the license agreement
SEL2520-2/0006 6/14
Page 2 of 13
BENTLEY SELECT PROGRAM AGREEMENT
SELECT Program Benefits
Exhibit A
Dated as of June 2014
provided with the Product upon its delivery to Subscriber shall For purposes of clarity, the right to pool licenses of Products
govern Subscriber's use of the Product. granted to Subscriber pursuant to this Section 5.02(a)of Exhibit
A shall terminate in the event of any termination or non-renewal
(c) No Transfers.Subject to Section 8.01 of Exhibit B,Subscriber of this Agreement,notwithstanding that the subject Products may
shall not sell, transfer, assign, grant a security interest in, be licensed on a perpetual basis.
sublicense,loan,lease or rent any of its rights under its licenses
to use Bentley Products without the prior written consent of (b) Quarterly Term Licenses. If, during a calendar quarter, the
Bentley. If consent is given by Bentley, Subscriber may number of unique Devices at a Subscriber Site that utilize a
permanently transfer a license to another end user,provided all Product in any interval exceeds the number of copies of such
software and related documentation and media covered by such Product for which Subscriber has licenses at the Site("Excess
license are transferred to the transferee end user and the Use"),Bentley may grant Subscriber retroactive licenses to cover
Subscriber does not retain any copies thereof, and provided Excess Use ("Quarterly Term Licenses") and invoice
further that the transferee end user agrees in writing with Bentley Subscriber fees per Site and per licensed Product for the peak
to cover all of its licensed Products under the SELECT Program amount of such Excess Use("Quarterly Term License Fees"),
and be bound by the terms of the license agreement then in effect where such Quarterly Term Licenses shall be effective upon
for such Product. Subscriber's payment of the Quarterly Term License Fees only.
Quarterly Term License Fees shall be those in effect as of the start
5.02. Licensing Programs.Unless otherwise specifically set forth herein, of the calendar quarter to which they apply,as calculated and
Bentley Products are licensed on a per Device basis as set forth in the published by Bentley via Online SELECT.
applicable end user license that ships with the Bentley Product. The
following licensing programs are not available for all Products;please In the event Subscriber fails to pay Quarterly Term License Fees,
check Online SELECT to see which Products are Eligible Products for Bentley may, in addition to exercising any rights provided in
the respective licensing programs.Bentley reserves the right to add or Section 7.02 of Exhibit B of this Agreement, i)take technical
remove any Product from eligibility for licensing under the following measures aimed at restricting Subscriber's capacity to engage in
programs.Bentley reserves the right to discontinue any of its licensing Excess Use and/or ii)discontinue Subscriber's grant of the right
programs at any time, without notice to Subscriber. However, until to pooled licensing pursuant to Section 5.02(a)of Exhibit A of
renewal or termination of this Agreement, such termination of any this Agreement.
licensing program shall not affect the licenses for Products previously
granted pursuant to such terminated licensing program. For purposes (c) SELECT Open Access. Subscriber may, upon Bentley's
of clarity, all licenses previously granted pursuant to a terminated approval,be allowed to participate in Bentley's SELECT Open
licensing program shall terminate upon the renewal or termination of Access program ("SELECT Open Access"). The Use of
this Agreement. Products under SELECT Open Access requires SELECTservices
and is otherwise subject to the monitoring and measuring
(a) Pooled Licensing.Bentley hereby grants to Subscriber a limited applicable to pooled licensing as provided in Section 5.02(a)of
non-transferable non-exclusive right to use Eligible Products for Exhibit A.
Production Use only on multi-user computer networks, and to
install a licensed Product on more than one computer or hard disk. SELECT Open Access benefits include (i) a non-exclusive,
limited, revocable, non-transferable, non-assignable license to
Subscriber shall allow the management and monitoring of pooled install and use for Production Use only any Eligible Products,
licensing usage by SELECTservices. Subscriber acknowledges even those for which Subscriber has not otherwise licensed any
that the continuing operation of Bentley Products under pooled copies of such Eligible Product and(ii)User access to on-demand
licensing is predicated upon Usage Data communications and virtual classroom training, as made available by Bentley
between Bentley Products and SELECTservices. Subscriber under the Bentley LEARN Program,corresponding per Product
hereby agrees not to interfere with the transmission to Bentley of to the amount of Subscriber's SELECT Open Access Use(as
accurate Usage Data by installed Products. defined below).
In the alternative,upon Bentley's consent,Subscriber may install Bentley shall, at the end of each calendar quarter, invoice
and implement Bentley's SELECTserver or such other Bentley Subscriber Quarterly Term License Fees for the peak amount of
licensing technology as may be required by Bentley from time to Subscriber's Pooled Usage during the quarter on a per Site per
time to monitor usage.Subscriber agrees and acknowledges that, Product basis, including Excess Use of separately licensed
in such instance,Bentley's SELECTserver will from time to time Products ("SELECT Open Access Use"). Quarterly Term
transmit to Bentley the Usage Data files generated by License Fees for SELECT Open Access Use shall be those in
SELECTserver or such other Bentley licensing technology. effect as of the start of the calendar quarter to which they apply,
Subscriber agrees to allow the above transmission to Bentley. as calculated and published by Bentley via Online SELECT. By
participating in SELECT Open Access,Subscriber hereby agrees
Bentley shall establish time intervals and measure the number of to pay Quarterly Term License Fees for all Use of Products
unique Devices on which Subscriber Uses each Product per Site hereby granted, such amount, in respect of any separately
per interval("Pooled Usage"). The interval over which Pooled licensed Products,being limited to Excess Use only.
Usage is measured is subject to change and may vary per Eligible
Product,as well as other criteria. Further information on the (d) Portfolio Balancing.
duration of intervals and measurement of Pooled Usage for
Eligible Products is published via Online SELECT. (1) At least thirty(30)days prior to each anniversary of any
renewal of the term of this Agreement pursuant to Section
SELECT Program coverage of licensed Products entitles 7.01 of Exhibit B,Subscriber may,upon Bentley's approval
Subscriber to Pooled Usage in each interval at each Site up to the and under the terms set forth herein, request Portfolio
number of copies of such Product for which Subscriber has Balancing("Portfolio Balancing"). Portfolio Balancing
licenses at such Site. allows Subscriber to exchange Eligible Product licenses
Subscriber has purchased from Bentley for use on a
perpetual basis ("Perpetual Licenses") for licenses for
SEL2520-2/0006 6/14
Page 3 of 13
BENTLEY SELECT PROGRAM AGREEMENT
SELECT Program Benefits
Exhibit A
Dated as of June 2014
other Eligible Products in substitution for a Perpetual 5.02(g)of Exhibit A, a limited non-transferable non-exclusive
License("Exchanged Portfolio Licenses")for use at the right to create,using Online SELECT(following the registration
Site of the Perpetual Licenses under the terms of Section requirements published on Online SELECT),one(1)copy per
6.01 of Exhibit A. Site of each Eligible Product solely for Evaluation Use of such
Product,provided that Subscriber shall have no right to create
(2) Subscriber may exchange Perpetual Licenses for evaluation copies of Products previously licensed by Subscriber.
Exchanged Portfolio Licenses having a total aggregate The duration of use of an evaluation copy shall not exceed thirty
value based on the list price in effect as published by (30) days, and Bentley may provide the Product with a
Bentley in the Country of use for perpetual license of a mechanism that will cause the Product to time out or expire after
Product("Current License Price")that is equal to or less thirty(30)days.Upon the earlier of the conclusion of such(30)
than the total aggregate value based on the Current License day evaluation period or the termination of this Agreement,
Prices for the Perpetual Licenses.Upon exchange,license Subscriber shall destroy all copies of Products created for
rights granted by Bentley to Subscriber in respect of the evaluation hereunder and,upon request by Bentley,certify such
Perpetual Licenses shall cease,and license rights in respect destruction in writing.
of the Exchanged Portfolio Licenses shall commence for an
initial term of twelve (12) months, with by-default (h) Documentation. Bentley may, in association with Products,
automatic requests for renewals of like terms to follow, Passports or Cloud Offerings, make certain Documentation
unless Subscriber notifies Bentley of its election not to available to Subscriber. Documentation is Bentley Proprietary
request a renewal term. Notwithstanding the above,upon Information. Bentley hereby grants to Subscriber a limited non-
termination of this Agreement or the Portfolio Balancing transferable non-exclusive license to use such Documentation in
licensing program any Exchanged Portfolio License support of Production Use.
granted to Subscriber shall terminate and Subscriber's right
to use Perpetual Licenses shall be reinstated.To be eligible 6. Subscriptions.
to participate,Subscriber must be current on all outstanding
invoices for amounts owed to Bentley. Bentley makes available for purchase by Subscriber certain services
and Product licenses for a specified term only.("Subscription",such
(e) No-Charge Licenses. Subscriber is hereby entitled on a non- term being the "Subscription Term"). Subscriber's use of such
exclusive basis,without payment of license fees but otherwise Products and services under Subscription shall be govemed by the
subject to the terms of this Agreement,to create Production Use terms of this Agreement, including, as applicable, Section 5.01 of
copies,for use only by Subscriber,of certain Eligible Products Exhibit A. Subject to Section 6.02(c), Bentley will invoice
made available by Bentley from time to time and which are Subscription Fees based on the fees charged by Bentley for such
designated by Bentley as no-charge software. Subscriber is Subscription as of the start of the Subscription Term.
entitled to redistribute such Products,which are designated by
Bentley as available for such redistribution,in machine readable 6.01. Subscription Licenses.
form to third parties to which Subscriber distributes its Bentley
Products files;provided that Subscriber procures each such third (a) Subscriber may, upon Bentley's approval, purchase
party's agreement not to further redistribute such Products. Subscriptions to license Eligible Products in advance of Use(a
Unless Bentley specifically authorizes otherwise in writing,such "Subscription License"). A Subscription License entitles
free licenses granted or redistributed hereunder will expire upon Subscriber to license rights in a Product for Production Use,in
termination of this Agreement. Object Code form and within a Country. To be eligible to
participate, Subscriber must be current on all outstanding
(t) Home Use Licenses. Unless Subscriber notifies Bentley in invoices for amounts owed to Bentley. Some Subscription
writing that Subscriber's employees shall not be entitled to obtain Licenses require participation in SELECT Open Access.
home use editions of a Product,Bentley will distribute upon an
employee's request made through Subscriber's site administrator, (b) Subscriber recognizes that the Products licensed under a
and permit Subscriber's employees to use,without charge,home Subscription License are provided to Subscriber for use only for
use editions of certain Products (for which such editions are the applicable Subscription Term or any renewal term. In no
available,as designated on Online SELECT)in accordance with event will a Subscription License continue beyond the expiration
the terms set forth in the license agreement provided with such or earlier termination of the SELECT Agreement under which it
home use edition of a Product,as amended and supplemented by is granted.Subscriber recognizes that Subscription Licenses may
this Agreement. Restrictions on home use licenses include the be delivered to Subscriber with embedded Time Clocks.
following: home use licenses are not permitted to be used for Subscriber agrees that Time Clocks are not considered a defect
Production Use or any commercial use,including training;home of such Subscription Licenses and releases Bentley from any and
use licenses are not for use in Subscriber's offices; home use all claims,however characterized,arising from or related to Time
licenses may not be stored on any electronic media;home use Clocks or their operation.Subscriber may not remove or evade
licenses must be permitted in Subscriber's jurisdiction.The total Time Clocks.
number of home use editions available to Subscriber's employees
may not exceed the number of Subscriber's Product licenses to (c) In the event of any inconsistency between this Section 6.01 of
which the home use editions relate. Home use editions of Exhibit A and any other Section or Exhibit of this Agreement,or
Products are ineligible for Technical Support even if Subscriber between this Section 6.01 of Exhibit A and the terms and
has purchased SELECT Program services. Subscriber shall not conditions in the license agreement provided with any Product
be responsible for ensuring compliance by its employees with the that is the subject of a Subscription License,this Section 6.01 of
Bentley home use license,nor shall Subscriber be liable for any Exhibit A shall control with respect to Subscription Licenses.
breaches of such license by its employees. Such home use
licenses granted hereunder will expire upon termination of this (d) If a Subscription is designated as automatically renewing by
Agreement. Bentley,the Subscription Term(and each successive term)shall
automatically renew at its expiration for a successive term of
(g) Evaluation of Products. Bentley hereby grants to Subscriber, equal length unless either party gives notice of its election not to
subject to its compliance with the procedures of this Section
SEL2520-2/0006 6/14
Page 4 of 13
BENTLEY SELECT PROGRAM AGREEMENT
SELECT Program Benefits
Exhibit A
Dated as of June 2014
renew the Subscription Term at least thirty(30)days prior to the
expiration of the then current term. 7.01. Subscriber shall pay to Bentley the applicable SELECT Program Fee
in effect for each Product licensed as of the Effective Date of this
6.02. Passports. Agreement. Subscriber shall pay to Bentley the applicable SELECT
Program Fee in effect for each additional Product licensed during the
(a) A Passport("Passport") is a Subscription granting rights and term hereof as of the date such additional Product license is purchased.
benefits to a specific named User. The Subscription Term for a With respect to the Products licensed by Subscriber during the term of
Passport is the twelve month term described in Section 7.01 of the Agreement, the fees in place as of the Effective Date, or,with
Exhibit B of this Agreement. Subscriber may purchase respect to additional Products licensed,as of the date of such purchase,
incremental Passports and assign such Passports to Users at any shall remain in effect for the Subscriber until the date of the next
time during the Subscription Term. Passports are non- renewal of this Agreement,at which time the fees shall be changed to
transferable and cannot be pooled or shared among Users. those charged by Bentley as of such renewal date,provided that no
Passports shall automatically renew on the anniversary of the changes in fees for Products covered shall be effective until thirty(30)
Effective Date,unless Subscriber evidences to Bentley,with at days after Subscriber receives notice of such changes.
least thirty(30)days' notice, that Subscriber has revoked the
prior assignment of a Passport to a particular named User. 7.02. Subscription Fees as set forth in Section 6 and Quarterly Term License
Fees as set forth in Section 5.02(b)of this Exhibit A are inclusive of
(b) Subscriber shall allow the management and monitoring of SELECT Program coverage and no additional fees for SELECT
Passport assignment and usage, and Server Product usage, Program coverage shall apply for Passports utilized or Products
through SELECTservices. Subscriber acknowledges that the licensed under a Subscription. Subscription Fees, including
continuing availability of Passports to Users may be predicated Subscription Fees for Passports,may be invoiced in conjunction with
upon communications with SELECTservices. The total number Subscriber's SELECT Program Fees.
of Passports counted as assigned by Subscriber during a
Subscription Term shall comprise,in addition to any renewing 7.03. Bentley shall initially invoice Subscriber for one(1)year of SELECT
Passports,the number of new Passports so purchased or assigned, Program Fees for all Product licenses as of the Effective Date of this
including each unique new User recorded in Subscriber's Agreement.Bentley shall provide Subscriber with a pro-rated annual
SELECTservices Usage Data files pursuant to this Section invoice for all Product licenses purchased during the first year
6.02(c),during the Subscription Term. following the Effective Date of this Agreement. As of the first
anniversary of the Effective Date of this Agreement, invoices for
(c) Subscriber shall pay to Bentley Subscription Fees for each SELECT Program Fees for Product licenses shall be issued quarterly
Passport purchased or assigned by Subscriber as of the start of or annually. Invoices reflecting new Product licenses will include a
the Subscription Term. Bentley may also invoice Subscription prorated amount reflecting coverage of the Product under the SELECT
Fees for any additional Passports purchased or assigned by Program during the preceding invoice period plus the full amount for
Subscriber during the Subscription Term. For Passports the current invoice period.Bentley may modify the timing of invoicing
purchased or assigned after the start of a Subscription Term,the hereunder at any time.
Subscription Fees shall be those as published by Bentley as of the
date Subscriber purchases or assigns such Passports.
(d) Bentley offers Passports granting license rights and access to
services. These Passports include the right for an authorized User
to run Passport-enabled offerings (including Eligible Products
and other client applications and mobile apps)and to connect to
and access information and collaborate on an unlimited number
of projects, whether those projects are hosted i) on a Server
Product deployed behind Subscriber's firewall,ii)on a Server
Product licensed by an extemal organization,or iii)by Bentley as
a cloud-based service.The parties acknowledge and agree that an
Extemal User may be permitted to access Server Products
licensed by Subscriber using such a Passport owned by that
Extemal User.
(e) Bentley further offers Visas("Visas"),which are Subscriptions
granting a User with a Passport the right to access specified
incremental services during the Subscription Term of the
Passport. A list of available Bentley Visas may be found on
Online SELECT.
6.03. SELECTservices.Subject to the terms of this Agreement,Subscriber
may, upon Bentley's approval, and at no charge, be granted a
Subscription to SELECTservices to monitor and manage Subscriber's
use of Bentley Products and Passports. In the alternative, upon
Bentley's approval,Subscriber may receive a Subscription License for
Bentley's SELECTserver Product(or such other server-based license
management technology that Bentley may offer). The terms of
Subscriber's use of the SELECTserver Product shall be as set forth in
the license agreement provided with the SELECTserver Product,as
such terms are amended or supplemented in this Agreement.
7. SELECT Program Fees
SEL2520-2/0006 6/14
Page 5 of 13
•
BENTLEY SELECT PROGRAM AGREEMENT
General Terms and Conditions
Exhibit B
Dated as of June 2014
1. Definitions. 1.15. "Passport"shall be defined as set forth in Exhibit A,Section 6.02(a)
herein.
The capitalized words,terms and phrases in this Agreement shall have
the meanings set forth below: 1.16. "Platform Exchange" shall be defined as set forth in Exhibit A,
Section 3.01 herein.
1.01. "Agreement"means the SELECT Program Agreement executed by
Bentley and the Subscriber and all exhibits, attachments and 1.17. "Pre-Existing Works" shall be defined as set forth in Exhibit C,
amendments as in effect from time to time. Section 1.08 herein.
1.02. "Bentley Products"or"Products"mean the software products,data 1.18. "Production Use"means use of a Bentley Product in Object Code
and other materials, previously or hereafter (including software form by a User or Device,as applicable,solely for Subscriber's intemal
products,data and other materials acquired by Bentley during the term production purposes,and excludes External Users(except with respect
of this Agreement) distributed by Bentley through delivery to use of Passports and access of Server Products pursuant to Exhibit
mechanisms determined in Bentley's sole discretion(including but not A,Section 6.02 herein).
limited to distribution via Online SELECT through download or by
ordering through CD format) that Bentley makes available to 1.19. "Proprietary Information"shall be defined as set forth in Exhibit B,
Subscriber typically in Object Code form only,for licensing hereunder, Section 3.06(a)herein.
including Updates and Upgrades thereto.
1.20. "SELECT Program Fee" means the fee for SELECT Program
1.03. "Channel Partner" or "Bentley Channel Partner" means services as published from time to time in Bentley's sole discretion.
individuals and companies who are authorized by Bentley to provide
SELECT support services as set forth in Exhibit A,Section 2. 1.21. "SELECTserver" means Bentley's server-based licensing
technology.
1.04. "Country"means the country:(i)where the Product is first obtained
from Bentley or a Channel Partner;or(ii)specified in the purchase 1.22. "SELECTservices"means Bentley's cloud-based licensing service.
order for which a Production Use copy of the Product may be made or
the Product is authorized to be used. 1.23. "Serial Number" means a unique number issued by Bentley for
identification of a particular copy of a Product,which number shall be
1.05. "Device" means a single personal computer,workstation, terminal, registered to Subscriber and assigned by Subscriber to a particular copy
hand held computer,pager,telephone,personal digital assistant,server, of such Product.
or other electronic device.
1.24. Server Product"means a Product that resides on a server and provides
1.06. "Distribute"means distribution by Bentley through all means now functionality that Users access by connecting to the server using client
known or hereinafter developed. applications or mobile apps.
1.07. "Documentation" means descriptive, interactive or technical 1.25. "Site" means one or more discrete geographic locations at which
information resources pertaining to Products, Passports, or Cloud Subscriber Uses or manages the operation of Products within the
Offerings.. geographic boundaries of a single Country.
1.08. "Effective Date"means the date that this Agreement is accepted by 1.26. "Subscriber"shall be defined as set forth on the front page of this
Bentley as indicated on the first page of this Agreement. 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
1.09. "Eligible Product"means a Bentley Product eligible under a licensing employees; or (ii) agency temporary personnel or an independent
program or Subscription,as designated by Bentley and published on contractor engaged in Production Use and working under Subscriber's
Online SELECT,absent of which a Product is ineligible for any such direct supervision and control.
program or Subscription.
1.27. "Subscription Fee" means the fee for a Subscription as published
1.10. "Evaluation Use" means the use of a Bentley Product solely for from time to time in Bentley's sole discretion.
internal evaluation of such Product.Evaluation Use expressly excludes
use in connection with ongoing projects,use for compensation of any 1.28. "Subscription License" shall be defined as set forth in Exhibit A,
kind,and Production Use. Section 6.01(a)herein.
1.11. "External User"means any User(not an organization)who is not:(i) 1.29. "Subscription Term" shall be defined as set forth in Exhibit A,
one of Subscriber's full-time,part-time,or temporary employees;or Section 6 herein.
(ii) agency temporary personnel or an independent contractor on
assignment at Subscriber's place of business or work-site. 1.30. "Technical Support" means telephone, facsimile, Internet and
electronic mail based support to assist a subscriber to the SELECT
1.12. "Object Code"means the Products in a machine readable form that is Program as described in Exhibit A,Section 2.02 of this Agreement.
not convenient to human understanding of the program logic,and that
can be executed by a computer using the appropriate operating system 1.31. "Time Clocks"means copy-protection mechanisms,or other security
without compilation or interpretation. Object Code specifically devices which may deactivate Products or Passports, including
excludes source code. Bentley's SELECTserver, after termination or expiration of the
Agreement, any applicable Subscription Term or any applicable
1.13. "Online SELECT"shall be defined as set forth in Exhibit A,Section renewal term.
4.01 herein.
1.32. "Update"means a maintenance release of a Product.
1.14. "Order"shall be defined as set forth in Exhibit C,Section 1.01 herein.
SEL2520-2/0006 6/14
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BENTLEY SELECT PROGRAM AGREEMENT
General Terms and Conditions
Exhibit B
Dated as of June 2014
1.33. "Upgrade" means a commercial release of a Product which has United States copyright laws, other applicable copyright laws,
substantial added functionality over the Product it is intended to other laws relating to the protection of intellectual property,and
replace. international treaty provisions;
1.34. "Usage Data"means such data or information as Bentley may collect
relating to Subscriber's installation,access or use of Products,Product (b) The entire right, title and interest in and to the Products, the
features and functionality,Cloud Offerings(as defined in Exhibit F, Documentation,any information Subscriber obtains through the
Section 1(d)),Passports,Online SELECT and other Bentley services. SELECT Program or the use of Online SELECT or any other
means of electronic transmission,and all associated intellectual
1.35. "Use"(whether or not capitalized)means utilization of the Product or property rights,shall remain with Bentley or its licensors;
Passport by an individual.
(c) The Products are licensed,not sold,and title to each copy of the
1.36. "User"means an individual person. Products shall remain with Bentley or its licensors,and shall not
pass to Subscriber;and
1.37. "Work"shall be defined as set forth in Exhibit C,Section 1.01 herein.
(d) Bentley retains all rights not expressly granted.
1.38. "Work Product"shall be defined as set forth in Exhibit C,Section
1.01 herein. 3.02. Source Code. Subscriber shall have no right hereunder to receive,
review, use or otherwise have access to the source code for the
2. Payment of Bentley Invoices. Products.
2.01. Payment Terms. Subscriber shall pay each Bentley invoice for all 3.03. Copyright Notices. Subscriber shall reproduce and include on all
Passports, Product licenses and services provided hereunder within copies of the Products created by Subscriber all copyright notices and
thirty(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 due, 3.04. Usage Data. Subscriber agrees and acknowledges that Bentley will
Bentley,at its discretion,may suspend or,after notice of such overdue from time to time collect Usage Data and that all Usage Data shall be
payment and a thirty(30)day period to cure,terminate Subscriber's owned by Bentley and deemed Bentley Proprietary Information.
services,rights,and licenses provided under this Agreement. Subscriber agrees not to alter or interfere with the collection by Bentley
of accurate Usage Data.
2.02. Taxes.Subscriber shall pay to Bentley all levied taxes that Bentley is
required under applicable law to collect from Subscriber by reason of 3.05. Reverse Engineering.Subscriber may not decode,reverse engineer,
the transactions contemplated by this Agreement,including,but not reverse assemble,reverse compile,or otherwise translate the Products
limited to sales, use, occupation, value added,excise, and property or Documentation except and only to the extent that such activity is
taxes(except for taxes based on Bentley's net income). If Subscriber expressly permitted by applicable law notwithstanding this limitation.
is obligated under an applicable law to withhold or deduct taxes from To the extent that Subscriber is expressly permitted by law to undertake
any payment of SELECT Program Fees to Bentley, Subscriber any of the activities listed in the previous sentence,Subscriber will not
shall furnish to Bentley official receipts evidencing Subscriber's exercise those rights until it has provided Bentley with thirty(30)days
payment of such taxes. 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 Fee or any separate price for all Passports, Products and
services hereunder shall be based on the local price and local currency (a) Subscriber understands and agrees that Bentley may, in
of the Subscriber's Site where such Passport,Product or service is used. connection with the provision of Passports,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 Product licenses acquired prior to the date of this Agreement Bentley's technology and business practices (collectively
and its creation and use of Passports and Products hereunder to permit "Proprietary Information"). Subscriber agrees to treat all
Bentley to determine whether Subscriber has complied with its Proprietary Information in accordance with this Section 3.06 of
obligations hereunder. These records shall include the location and Exhibit B.
identification of the Subscriber hardware on which Subscriber uses
each copy of the Products and identify the Users to whom Subscriber (b) Subscriber shall maintain the confidentiality of all Proprietary
has assigned the Passports. If Bentley suspects Usage Data is Information.Subscriber shall not reproduce or copy Proprietary
• incomplete, inaccurate or indicative of non-compliance with Information except as permitted in this Agreement or as may be
Subscriber's granted rights,Bentley may request,and Subscriber shall, expressly authorized in writing in advance by Bentley.All such
upon seven (7) days advance written notice by Bentley, permit, copies shall be marked by Subscriber as proprietary and
reasonable inspection and copying of such records by Bentley or a confidential information.
third-party auditor retained by Bentley.
(c) Subscriber shall only use Proprietary Information in furtherance
3. Intellectual Property Rights of this Agreement, and may disclose Proprietary Information
only to those employees required to have knowledge of same to
3.01. Title; Reservation of Rights. Subscriber acknowledges and agrees perform their duties pursuant to this Agreement.Subscriber shall
that: not disclose or make Proprietary Information available to any
third party at any time.
(a) The Products,including the Documentation for each Product,and
any information which Subscriber obtains through the SELECT (d) Subscriber shall treat Proprietary Information with the same
Program or the use of Online SELECT or any other means of degree of care as it uses to protect its own confidential
electronic transmission, contain proprietary information of information,and in no case less than a reasonable degree of care.
Bentley,its licensors or other suppliers,and are protected under
SEL2520-2/0006 6/14
Page 7 of 13
BENTLEY SELECT PROGRAM AGREEMENT
General Terms and Conditions
Exhibit B
Dated as of June 2014
(e) Upon the termination or non-renewal of this Agreement, or(iii)to return the purchase price or fees paid therefore,where written
Subscriber shall return to Bentley or,if so requested,destroy all notice of such breach, specifying the defect, is furnished to Bentley
Proprietary Information in its possession. during the Warranty Period.Repaired,corrected,or replaced Products
and Documentation shall be covered by this limited warranty for ninety
(f) Subscriber shall have no obligation of confidentiality with (90)days after the date:(a)of shipment to Subscriber of the repaired
respect to any Proprietary Information that(i)has entered the or replaced Products and Documentation, or (b) Bentley advised
public domain other than through a breach of this Agreement,(ii) Subscriber how to operate the Products so as to achieve the
has been rightfully obtained by Subscriber from a third party with functionality described in the Documentation.
no obligation of confidentiality,or(iii)is previously known by
Subscriber as demonstrated by clear and convincing evidence. 4.04. Exclusion of Damages.IN NO EVENT SHALL BENTLEY OR ITS
LICENSORS AND SUPPLIERS BE LIABLE TO SUBSCRIBER
(g) Subscriber shall promptly inform Bentley upon knowledge of any FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR
actual or potential unauthorized use or disclosure of the CONSEQUENTIAL DAMAGES, REGARDLESS OF THE
Proprietary Information. NATURE OF THE CLAIM,INCLUDING WITHOUT LIMITATION
LOST PROFITS, COSTS OF DELAY, INTERRUPTION OF
3.07. No Benchmarks. Subscriber may not disclose the results of any BUSINESS, LOSS OF USE, INABILITY TO ACCESS ONLINE
Product testing,including but not limited to benchmarks,to any third SERVICES,ANY FAILURE OF DELIVERY,COSTS OF LOST OR
party without first obtaining Bentley's written consent to do so. DAMAGED DATA OR DOCUMENTATION,OR LIABILITIES TO
THIRD PARTIES ARISING FROM ANY SOURCE, EVEN IF
4. Limited Warranty;Limitation of Remedies and Liability BENTLEY HAS BEEN ADVISED, KNEW OR SHOULD HAVE
KNOWN OF THE POSSIBILITY OF SUCH DAMAGES OR
4.01. Limited W ty to Subscriber.Except for Products licensed under CLAIMS. BECAUSE SOME STATES/JURISDICTIONS DO NOT
Section 5.02(e),Section 5.02(f)or Section 5.02(g)of Exhibit A hereof, ALLOW FOR THE EXCLUSION OR LIMITATION OF LIABILITY
which are provided to Subscriber"AS-IS"and without warranty of any FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE
kind,Bentley hereby warrants for the benefit only of Subscriber that ABOVE LIMITATION MAY NOT APPLY TO SUBSCRIBER.
(a)for a period of ninety(90)days("Warranty Period")from the date
of delivery to Subscriber of a Serial Number or Product,as the case 4.05. Disclaimer.Subscriber acknowledges that the Products are not fault-
may be,the Product shall, under normal use,operate in substantial tolerant and have not been designed,manufactured or intended for use
conformance with the functional specifications set forth in the and will not be used in the development of weapons of mass
Documentation applicable to such Product, and(b) for a period of destruction,as on-line control equipment in hazardous environments
ninety(90)days from the date of delivery,other products and materials requiring fail-safe performance, such as in the operation of nuclear
furnished by Bentley to Subscriber shall,under normal use,operate in facilities, aircraft navigation or communication systems, air traffic
substantial conformance with the Bentley documentation applicable to control,direct life support machines,or weapons systems,in which the
such products and materials. If any modifications, enhancements or failure of the Products could lead directly to death,personal injury,or
changes are made by Subscriber or at Subscriber's direction to the severe physical or environmental damage. Subscriber further
Products; if the Products are reverse-engineered, decompiled or acknowledges that the Products are not substitutes for Subscriber's
disassembled;or if Subscriber breaches the terms of this Agreement, professional judgment, and accordingly, neither Bentley nor its
then the warranties in this section shall be immediately terminated. licensors or suppliers are responsible for Subscriber's use of the
This limited warranty gives Subscriber specific legal rights,Subscriber Products or the results obtained from such use. The Products are
may have other rights which may vary from state/jurisdiction to intended only to assist Subscriber in its business,and are not meant to
state/jurisdiction. be substitutes for Subscriber's independent testing and verification of
stress,safety,utility or other design parameters.
4.02. Exclusion of Warranties. THE WARRANTIES STATED IN
SECTION 4.01 ARE BENTLEY'S SOLE AND EXCLUSIVE 4.06. Limitation of Bentley Liability. IN THE EVENT THAT,
WARRANTIES PERTAINING TO THE PRODUCTS, SELECT NOTWITHSTANDING SECTIONS 4.01,4.02,4.03,4.04 AND 4.05
SUPPORT SERVICES AND OTHER MATERIALS AND OF THIS EXHIBIT B, BENTLEY IS FOUND LIABLE FOR
SERVICES LICENSED, DELIVERED OR OTHERWISE DAMAGES BASED ON ANY BREACH,DEFECT,DEFICIENCY
FURNISHED BY BENTLEY UNDER THIS AGREEMENT. OR NON-CONFORMITY IN A PRODUCT,IN SELECT SUPPORT
BENTLEY DOES NOT WARRANT THAT THE PRODUCTS, SERVICES, OR IN ANY OTHER SERVICE OR
SELECT SUPPORT SERVICES,OR ANY OTHER SERVICE OR MATERIALS,WHETHER IN CONTRACT, TORT OR
MATERIALS WILL MEET SUBSCRIBER'S REQUIREMENTS, OTHERWISE, AND REGARDLESS OF WHETHER ANY
BE FREE FROM VIRUSES OR OPERATE UNINTERRUPTED OR REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL
ERROR FREE. BENTLEY HEREBY DISCLAIMS ALL OTHER PURPOSE BY LAW, BENTLEY'S CUMULATIVE LIABILITY
WARRANTIES EITHER STATUTORY,EXPRESS OR IMPLIED, HEREUNDER SHALL NOT EXCEED THE PRICE PAID BY
INCLUDING WITHOUT LIMITATION,WARRANTIES AGAINST SUBSCRIBER FOR (i) SUCH PRODUCT, (ii) A ONE-YEAR
NON-INFRINGEMENT AND THE IMPLIED WARRANTIES OF SUBSCRIPTION TO THE SELECT PROGRAM, OR (iii) SUCH
MERCHANTABILITY, SATISFACTORY QUALITY AND OTHER DEFECTIVE SERVICE OR MATERIALS,AS THE CASE
FITNESS FOR A PARTICULAR PURPOSE.THESE EXCLUSIONS MAY BE.THE PROVISIONS OF THIS AGREEMENT ALLOCATE
MAY NOT APPLY TO SUBSCRIBER AS SOME THE RISKS BETWEEN BENTLEY AND SUBSCRIBER.
STATES/JURISDICTION DO NOT ALLOW THE EXCLUSION OF BENTLEY'S PRICING REFLECTS THIS ALLOCATION OF RISK
CERTAIN WARRANTIES. AND THE LIMITATION OF LIABILITY SPECIFIED HEREIN.
4.03. Exclusive Remedy.The entire liability of Bentley and the sole and 4.07. Indemnification by Bentley.
exclusive remedy of Subscriber for claims under Section 4.01 of this
Exhibit B shall be, in Bentley's sole and absolute discretion, (i)to (a) Bentley shall pay any damages finally awarded against
repair or replace a Product or other materials in breach of the foregoing Subscriber based on a claim against Subscriber that a Product
warranties, (ii) to advise Subscriber how to achieve the same which is developed and owned by Bentley infringes a third
functionality with the Product as described in the Documentation party's copyright under the laws of a Berne Convention signatory
through a procedure different from that set forth in the Documentation, country,or results in a misappropriation of a third party's trade
SEt2520-2/0006 6/14
Page 8 of 13
BENTLEY SELECT PROGRAM AGREEMENT
General Terms and Conditions
Exhibit B
Dated as of June 2014
secret, in the Country where Subscriber has been authorized to restrictions as set forth in this Agreement and pursuant to 48 C.F.R
place the Product subject to such claim into Production Use,if 12.212,52.227-19,227.7202,and 1852.227-86,as applicable.
Subscriber provides to Bentley:(a)prompt written notice of any
such claim,(b)all available information and assistance,and(c) 7. Term;Termination
the opportunity to exercise sole control of the defense and
settlement of any such claim. 7.01. Term. This Agreement and Subscriber's SELECT Program
subscription shall become effective on the Effective Date,and shall
(b) Bentley shall also have the right,at its expense,either to procure continue for an initial term of twelve (12) months, and shall
the right for Subscriber to continue to use the Product or to automatically renew for terms of like tenure unless either party gives
replace or modify such Product so that it becomes non-infringing. notice of its election to not renew the term at least thirty(30)days prior
If neither of the foregoing alternatives is available on terms that to the expiration of the then-current term.
Bentley,in its sole discretion,deems desirable,Subscriber shall,
upon written request from Bentley,return to Bentley the allegedly 7.02. Termination for Material Breach.Either party may,at its option,
infringing Product, in which event Bentley shall refund to terminate this Agreement in the event of a material breach of this
Subscriber the price paid by Subscriber for each copy of such Agreement by the other party.Any such termination may be effected
returned Product,less twenty percent(20%)for each elapsed year only through a written notice to the other party,specifically identifying
since the commencement of the license for such copy.In no event the breach or breaches on which termination is based. Following
shall Bentley's liability under this sub-section(b)to Subscriber receipt of such notice,the party in breach shall have twenty-one(21)
exceed the license fees paid by Subscriber for the allegedly days to cure such breach or breaches, and this Agreement shall
infringing Product 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
(c) Bentley shall have no liability and this indemnity shall not apply this Agreement immediately if Subscriber breaches any of its
if the alleged infringement is contained in a Product which is not obligations under Section 3 of this Exhibit B.The failure of Subscriber
developed or owned by Bentley or is due to modification of the to pay an outstanding invoice of Bentley shall always constitute a
Product by Subscriber or the combination,operation or use of a material breach of this Agreement.
Product with other software that does not originate from Bentley
or if Subscriber is in breach of this Agreement.Bentley shall also 7.03. Insolvency.If,under applicable insolvency laws,Subscriber becomes
have no liability, and this indemnity shall not apply, for the unable to pay its debts or becomes insolvent or bankrupt or makes
portion of any claim of infringement based on use of a superseded arrangements with its creditors, or otherwise goes into liquidation,
or altered release of a Product if the infringement would have administration or receivership,then Bentley shall have the right to
been avoided by the use of a current,unaltered release of the terminate this Agreement immediately by written notice.
Product.
7.04. Consequences of Termination. Upon the termination of this
This Section 4.07 sets forth Subscriber's sole remedy for intellectual Agreement for any reason, all of the rights and licenses granted to
property infringement. Subscriber in this Agreement shall terminate immediately. With
respect to any perpetually licensed Products,the terms and conditions
5. Export Controls. set forth in the license agreement delivered with such Products shall
govern Subscriber's use of such Products. Subscriber shall
The Products have been manufactured or developed in the United immediately discontinue use of any Online SELECT services.
States of America and accordingly may be subject to U.S. export
control laws, regulations and requirements. Regardless of any 7.05. Reinstatement Following Termination.Following a termination of
disclosure made by Subscriber to Bentley of an ultimate destination of the SELECT Program,Subscriber may reinstate such services only if
the Products,Subscriber must not export or transfer,whether directly Bentley consents to such reinstatement and Subscriber pays to Bentley,
or indirectly, the Products, or any portion thereof, or any system in advance, a SELECT reinstatement fee, in an amount to be
containing such Products or portion thereof, to anyone outside the determined in Bentley's sole discretion,such amount not to exceed the
United States(including further export if Subscriber took delivery of amount of all fees that would have accrued and been payable,
the Products outside the United States)without first complying strictly excluding discounts,for the period between the date of termination and
and fully with all export controls that may be imposed on the Products the date of reinstatement.
by the United States Government or any country or organization of
nations within whose jurisdiction Subscriber uses the Products. The 8. Miscellaneous.
countries subject to restriction by action of the United States
Government are subject to change,and it is Subscriber's responsibility 8.01. Assignment.Subscriber shall not assign this Agreement or delegate its
to comply with the United States Government requirements as they duties hereunder without prior written consent by Bentley. For
may be amended from time to time.Subscriber shall indemnify,defend purposes of this Agreement,a change in control of Subscriber shall be
and hold Bentley harmless for any breach of its obligations pursuant to considered an assignment for which Bentley's prior written consent is
this Section. hereby granted provided that the surviving entity from such change in
control must enter into a SELECT Agreement.This Agreement may be
6. U.S.Government Restricted Rights. assigned by Bentley to any successor in interest to Bentley's business
or to any direct or indirect wholly-owned subsidiary of Bentley
If the Products are acquired for or on behalf of the United States of Systems,Incorporated.Any purported assignment in violation of this
America,its agencies and/or instrumentalities("U.S.Government"),it provision shall be void and without effect.
is provided with restricted rights. The Products and accompanying
documentation are"commercial computer software"and"commercial 8.02. Entire Agreement. This Agreement,together with the Exhibits and
computer software documentation,"respectively,pursuant to 48 C.F.R. signed Amendments, if any, incorporate the entire agreement of the
12.212 and 227.7202,and"restricted computer software"pursuant to parties and supersede and merge all prior oral and written agreements,
48 C.F.R.52.227-19(a),as applicable.Use,modification,reproduction, discussions and understandings between the parties with respect to the
release, performance, display or disclosure of the Products and subject matter hereof.The terms and conditions of this Agreement and
accompanying documentation by the U.S.Government are subject to of the applicable Bentley confirmation shall apply to each order
accepted or shipped by Bentley hereunder.Any additional or different
SEL2520-2/0006 6/14
Page 9 of 13
BENTLEY SELECT PROGRAM AGREEMENT
General Terms and Conditions
Exhibit B
Dated as of June 2014
terms or conditions appearing on a purchase order issued by Subscriber 8.12. Change of Ownership. Subscriber shall provide Bentley with sixty
hereunder,even if Bentley acknowledges such terms and conditions, (60)days advance written notice of any changes in its ownership or
shall not be binding on the parties unless both parties expressly agree location.
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
8.03. Amendments.Except as otherwise contemplated herein with respect convenience of reference and shall not affect the meaning or
to updating,amending and supplementing the exhibits,this Agreement interpretation of 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, govemment
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 rights 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 7.01 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,
1.08,1.09,1.10,1.11,1.12,1.14,1.16 and 1.17 of Exhibit C)shall be
enforceable notwithstanding said expiration or termination.
8.08. Severability.The provisions of this Agreement shall be severable and
the invalidity or unenforceability of any one provision shall not affect
any other unless otherwise noted.
8.09. Governing Law. This Agreement shall be govemed 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
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.
8.10. Arbitration.In the event of any dispute,controversy or claim between
the parties arising under this Agreement,the parties shall submit to
binding arbitration before a single arbitrator in Philadelphia,
Pennsylvania in accordance with the Commercial Arbitration Rules of
the American Arbitration Association.The decision of the arbitrator
shall be final and binding on the parties,and the judgment upon the
award rendered by the arbitrator shall be enforceable in any court of
competent jurisdiction. Each party shall bear its own attorney's fees,
costs,and expenses incurred in such arbitration.
8.11. Independent Contractor.Bentley's relationship with Subscriber for
all purposes hereunder shall be that of an independent contractor and
nothing herein shall be construed as creating,at any time,an employer
and employee relationship between the parties.
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BENTLEY SELECT PROGRAM AGREEMENT
Professional Services
Exhibit C
Dated as of June 2014
1. Professional Services. right,title and interest to the Work Product not otherwise granted to
Subscriber.
1.01. Subscriber may request professional services from time to time and
Bentley may agree to perform such services pursuant to this 1.08. Preexisting Works of Bentley. Notwithstanding Section 1.07 of
Agreement. The description of professional services requested by Exhibit C hereof,Bentley hereby reserves and retains ownership of
Subscriber and which Bentley agrees to perform shall be set forth in all works which Bentley created unrelated to the Work performed
one or more written descriptions labeled"SELECT Professional pursuant to any Order, including but not limited to Products(the
Services"and signed by Subscriber and Bentley(each an"Order"). "Pre-Existing Works"). Bentley does not grant Subscriber any
Bentley shall have the right to accept or decline any proposed Order. rights or licenses with respect to the Pre-Existing Works.
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, 1.09. Residuals. It is mutually acknowledged that, during the normal
the duration of each individual's assignment,and the fees for the course of its dealings with Subscriber and the Work,Bentley and its
work.The services and other provisions described on the Order(s) personnel and agents may become acquainted with ideas,concepts,
are referred to collectively as the"Work"while the results of the know-how,methods,techniques,processes,skills,and adaptations
Work,if any,are referred to as the"Work Product". pertaining to the Work.Notwithstanding anything in this Agreement
to the contrary,and regardless of any termination of this Agreement,
1.02. Method of Performance. Bentley, in conjunction with its Bentley shall be entitled to use,disclose,and otherwise employ any
personnel, will determine the method, details, and means of ideas, concepts, know-how, methods, techniques, processes, and
performing the work to be carried out for Subscriber,including the skills,adaptations,including generalized features of the sequence,
use of sub-contractors if deemed necessary. Subscriber shall have structure, and organization of any works of authorship, in
no right to, and shall not, control the manner or determine the conducting its business (including providing services or creating
method of accomplishing such work. Subscriber may, however, programming or materials for other customers),and Subscriber shall
require Bentley's personnel to observe at all times the security and not assert against Bentley or its personnel any prohibition or
safety policies of Subscriber. In addition, Subscriber shall be restraint from so doing.
entitled to exercise a broad general power of supervision and control
over the results of work performed by Bentley to ensure satisfactory 1.10. Third-Party Interests.Subscriber's interest in and obligations with
performance.This power of supervision shall include the right to respect to any programming,materials,or data to be obtained from
inspect,stop work,make suggestions or recommendations as to the third-party vendors, regardless of whether obtained with the
details of the work,and request modifications to the scope of an assistance of Bentley,shall be determined in accordance with the
Order. agreements and policies of such vendors.
1.03. Scheduling. Bentley will try to accommodate work schedule 1.11. Fees.Bentley shall be paid the fee as specified in each Order(which
requests of Subscriber to the extent possible.Should any personnel Bentley reserves the right to change upon at least sixty(60)days
of Bentley be unable to perform scheduled services because of advance notice or at any time for any new Order or modified portion
illness, resignation, or other causes beyond Bentley's reasonable of an existing Order), or, if no fee is specified, at Bentley's
control, Bentley will attempt to replace such personnel within a customary rates for the level of personnel providing such services.
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 1.12. Expenses. Subscriber shall also pay either the actual cost of
priorities. Bentley's reasonable travel and living expenses or an agreed-to
amount for such travel and living expenses (other than normal
1.04. Reporting. Subscriber will advise Bentley of the individuals to commutation travel)for Bentley employees in the performance of
whom Bentley's manager will report progress on day-to-day work. Work set forth in each Order along with all other out-of-pocket
Subscriber and Bentley shall develop appropriate administrative expenses incurred by Bentley.
procedures for performance of work at Subscriber's site, if
necessary.Subscriber shall periodically prepare an evaluation of the 1.13. Estimates.Estimates of total fees for projects may be provided in
work performed by Bentley for submission to Bentley upon an Order,but Bentley does not guarantee such estimates.Bentley
Bentley's request. will,however,notify Subscriber as soon as possible if it will exceed
the estimate,and Subscriber may then terminate the project and pay
1.05. Place of Work. Certain projects or tasks may require Bentley's only for services actually rendered if Subscriber so chooses.
personnel to perform work for Subscriber at Subscriber's premises.
In the event that such projects or tasks are required to be performed 1.14. Confidentiality. In the performance of the Work, Bentley may
at Subscriber's premises, Subscriber agrees to provide working acquire information of Subscriber which is proprietary,non-public
space and facilities,and any other services and materials Bentley or and identified in writing as confidential by Subscriber.Bentley shall
its personnel may reasonably request in order to perform their work. not disclose to anyone not employed by Subscriber nor use except
Subscriber recognizes that there may be a need to train Bentley's on behalf of Subscriber any such confidential information acquired
personnel in the unique procedures used at Subscriber's location. in the performance of the Work except as authorized by Subscriber
When Subscriber determines that such training is necessary, in writing.Bentley shall have no obligation of confidentiality with
Subscriber shall,unless otherwise agreed in writing,pay Bentley for respect to any information of Subscriber that(i)has entered the
its personnel's training time. public domain other than through a breach of this Agreement,(ii)
has been rightfully obtained by Bentley from a third party with no
1.06. Non-Exclusive.Bentley shall retain the right to perform work for obligation of confidentiality,or(iii)is previously known by Bentley
others during the term of this Agreement.Subscriber shall retain the as demonstrated by clear and convincing evidence.Notwithstanding
right to cause work of the same or a different kind to be performed the foregoing restrictions,Bentley and its personnel may use and
by its own personnel or other contractors during the term of this disclose any information to the extent required by an order of any
Agreement. court or other governmental authority or as necessary for it or them
to protect their interest in this Agreement,but in each case only after
1.07. Perpetual License.Upon full payment for the Work,Bentley shall Subscriber has been so notified and has had the opportunity, if
grant Subscriber a paid-up,perpetual,royalty-free right and license possible,to obtain reasonable protection for such information in
to use the Work Product for Production Use. Bentley retains all connection with such disclosure.
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BENTLEY SELECT PROGRAM AGREEMENT
Professional Services
Exhibit C
Dated as of June 2014
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. In 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 hire 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.
•
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BENTLEY SELECT PROGRAM AGREEMENT
Bentley Cloud Offerings
Exhibit F
Dated as of June 2014
1. Definitions. The capitalized words,terms and phrases in this Exhibit (c) Bentley reserves the right to modify or suspend use of a Cloud
F shall have the meanings set forth below: Offering,or any part thereof,if(i)Bentley determines in its sole discretion that
such suspension is necessary to comply with any applicable law,regulation or
(a) `Bentley Data"means Bentley's Proprietary Information including, order of any governmental authority or with the terms of its agreement(s)with
but not limited to,the methods by which the services described in this Exhibit F its third party service providers;or(ii)Bentley determines in its sole discretion
are performed and the processes that make up such services. that the performance, integrity or security of the Cloud Offerings is being
(b) "Data Storage"means the amount of data storage space(including adversely impacted or in danger of being compromised as a result of Subscriber's
the backup and off-site storage),if any,to be allocated for Subscriber Data within or its Users'access.
the Bentley environment. (d) Subscriber shall not tamper in any way with the software or
(c) "Internet" means any systems for distributing digital electronic functionality of Cloud Offerings or any part thereof. Without limiting the
content and information to end users via transmission,broadcast,public display, foregoing,Subscriber agrees not to put any material into the Cloud Offerings
or other forms of delivery,whether direct or indirect,whether over telephone which contain any viruses,time bombs, Trojan horses,worms,cancelbots or
lines, cable television systems, optical fiber connections, cellular telephones, other computer programming routines that may damage,interfere with,intercept
satellites, wireless broadcast, or other mode of transmission now known or or expropriate any system or data. Subscriber shall not utilize bots, agents,
subsequently developed. auction crawlers or other computer based crawling programs in conjunction with
its use of the Cloud Offerings.
(d) "Bentley Cloud Offerings"or"Cloud Offerings"mean the Bentley
products and services made available to Subscriber and accessed by Users via (e) Subscriber shall communicate the above listed use restrictions to all
the Internet for use under the terms herein. Subscriber employees and External Users accessing or using any Cloud
Offerings.The acts or omissions of any such User accessing the Cloud Offerings
(e) "Subscriber Data" means data collected or stored by Subscriber shall be deemed to be the acts or omissions of the Subscriber under the
using Cloud Offerings, including, but not limited to, financial, business and Agreement,such that Subscriber shall be fully responsible for the performance
technical information, engineering plans, customer and supplier information, and fulfillment of all obligations set forth in the Agreement. Subscriber shall
research,designs,plans,and compilations,but not including any Bentley Data. indemnify and hold Bentley harmless against any and all liability resulting from
2. Applicability. Upon Bentley's approval,Subscriber may be entitled any non-compliance with the terms herein.
to subscribe to Bentley Cloud Offerings pursuant to the specific terms set forth 5. Access and Availability.Subscriber is responsible for providing all
herein. Cloud Offerings are available as Subscriptions only, as described in equipment and the connectivity necessary to access and use Cloud Offerings via
Section 6 of Exhibit A. Subscriber acknowledges and agrees that Bentley may the Internet. Subscriber agrees that from time to time the Cloud Offerings may
in its sole discretion utilize a third party service provider to provision Bentley be inaccessible or inoperable for various reasons,including without limitation(i)
Cloud Offerings and/or Subscriber Data. To be eligible to participate,Subscriber system malfunctions; (ii) periodic maintenance procedures or repairs which
must be current on all outstanding invoices for amounts owed to Bentley. Bentley or its service provider(s) may undertake from time to time; (iii)
3. BentleyCloud Offerings. A User in compatibility issues with Subscriber's or a third party's hardware or software;or
g possession of a valid Passport (iv)causes beyond the control of Bentley or which are not reasonably foreseeable
may be able to access certain Cloud Offerings at no additional charge to by Bentley, including network or device failure, interruption or failure of
Subscriber. Other Cloud Offerings also require the purchase by Subscriber of a telecommunication or digital transmission links, hostile network attacks or
Visa for such User. Certain other Cloud Offerings may be purchased by network congestion or other failures(collectively"Downtime"). Bentley shall
Subscriber for additional fees ("Cloud Offering Fees")to be specified in a use reasonable efforts to provide advance notice to Subscriber in the event of any
quotation from Bentley to Subscriber(the"Cloud Offering Quote"),which may scheduled Downtime,and to minimize any disruption of the Cloud Offerings in
include,as applicable,(a)the number of Passport holders accessing the Cloud connection with Downtime.
Offering,(b)the number of assets managed using the Cloud Offering;(c)Data
Storage size,(d)the Professional Services,if any,to be delivered by Bentley to 6. Data. Bentley acknowledges, and Subscriber warrants and
Subscriber for the initial deployment of the Cloud Offering;and(e)Professional represents,that Subscriber owns all right,title and interest in Subscriber Data.
Services related to the ongoing management and support of the Cloud Offering, Subscriber shall indemnify and hold Bentley harmless against any and all claims
including availability and support service level terms. against Bentley alleging that the Subscriber Data collected or stored for use with
4. Permitted Use. Bentley will grant Subscriber a non-exclusive,non- the Bentley Cloud Offerings infringes any patent, trademark, trade secret,
transferrable, non-assignable, revocable, limited license to use and access copyright or other proprietary rights of any third party,or in any way violates
purchased Bentley Cloud Offerings(subject to the terms of this Exhibit F and any privacy or data protectionofthe Cloudlalo. OfferingsBentlen shall not be responsiblerrelatedfor any
anyterms of use("Terms of Use") failure or impairment of caused by or to the
presented upon access)solely for Production Subscriber Data. Bentley shall maintain the confidentiality of all Subscriber
Use (the "Permitted Use"). Subscriber acquires only the right to use the Data,and shall not reproduce or copy such data except as required to provide
purchased Cloud Offering and does not acquire any rights of ownership to the services under this Agreement or as may be expressly authorized by Subscriber.
Cloud Offering or any part thereof. Bentley and its suppliers retain all rights, Subscriber shall be solely responsible for the Subscriber Data,including without
title and interest in the Cloud Offering,and any use of the Cloud Offering beyond limitation for uploading such data and/or appropriately formatting and
the Permitted Use shall constitute a material breach of the Agreement. In configuring such data for use with a Cloud Offering. Subscriber agrees and
addition to the use restrictions set forth in the Terms of Use, Subscriber's acknowledges that Bentley will from time to time collect Usage Data and that all
Permitted Use rights shall be subject to the following conditions: Usage Data shall be owned by Bentley and deemed Bentley Proprietary
(a) Subscriber purchasing against a Cloud Offering Quote shall not Information. Subscriber agrees not to alter or interfere with the collection by
exceed any limits set forth in such Cloud Offering Quote. In the event use of a Bentley of accurate Usage Data.
Cloud Offering by Subscriber exceeds that purchased by Subscriber as specified
in the applicable Cloud Offering Quote,Bentley may invoice,and Subscriber 7. Termination. In addition to the termination rights of the parties set
shall pay,additional Cloud Offering Fees. Bentley shall,in its sole discretion, forth in Section 7 of Exhibit B, Bentley may terminate a Cloud Offering
add such additional fees to subsequent invoices or invoice Subscriber separately. Subscription, upon notice to Subscriber, in the event of the termination of
Bentley's agreement(s)with its third party service provider(s). Termination of a
(b) In the event of a past due balance, Bentley reserves the right to Cloud Offering Subscription by either party shall automatically terminate any
suspend use of the Cloud Offerings until all past due amounts have been received. license granted pursuant to Section 4 of this Exhibit F.
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