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HomeMy WebLinkAbout25A - AGMT - SOFTWARE MAINT AND TECH SUPPORTREQUEST FOR COUNCIL ACTION CITY COUNCIL MEETING DATE: JANUARY 17, 2017 TITLE: AGREEMENT WITH BENTLEY SYSTEMS, INC., FOR SOFTWARE MAINTENANCE AND TECHNICAL SUPPORT (STRATEGIC PLAN NO. 6, 1G) CITY MAN GER RECOMMENDED ACTION CLERK OF COUNCIL USE ONLY: ❑ As Recommended ❑ As Amended ❑ Ordinance on 1" Reading ❑ Ordinance on 2nd Reading ❑ Implementing Resolution ❑ Set Public Hearing For CONTINUED TO FILE NUMBER 1. Authorize the City Manager and the Clerk of the Council to execute an agreement with Bentley Systems, Inc. for software maintenance and technical support for the specialized engineering software used in the Public Works Agency, in an amount not to exceed $55,000 per year, for a one -year subscription period beginning January 17, 2017, and ending January 16, 2018, with the option to extend for up to four additional one -year terms, exercisable by the City Manager or his designated representative. 2. Authorize the City Manager and the Clerk of the Council to execute a concurrent amendment to the agreement with Bentley Systems, Inc. that identifies mutually accepted changes to the agreement. DISCUSSION The Public Works Agency utilizes a number of specialized engineering software products in its delivery of public infrastructure projects. At the foundation of these engineering technology tools is the MicroStation computer -aided drafting (CAD) software, an industry standard which has been used for design engineering and Geographic Information System (GIS) data management for almost 20 years. Bentley Systems, Inc. is the owner and developer of MicroStation software. They are also the sole- source provider of maintenance and technical support for MicroStation software. The recommended software maintenance agreement (Exhibit 1) and concurrent amendment (Exhibit 2) will allow the City to continue to utilize the Bentley license server, which provides maximum software license availability without having to purchase separate licenses of each product for every computer and individual user. The software maintenance agreement also ensures that the Public Works Agency receives technical support for critical software issues that could greatly impact the ability to meet deadlines for projects in the Traffic, Design, Construction, and Water Engineering divisions. 25A -1 Agreement with Bentley Systems, Inc., for Software Maintenance and Technical Support January 17, 2017 Page 2 The option to switch to a third -party MicroStation vendor would require the City to immediately purchase new software licenses through the vendor at a considerable expense; however, software maintenance and support would still have to be purchased through Bentley Systems, Inc. Also, changing to a different CAD platform at this time would not provide any technological benefit. However, in addition to requiring an immediate investment in new software licenses, all users would have to be retrained, archived engineering and GIS files would have to be transferred, and current projects would have to be developed in a new, unfamiliar engineering environment. Therefore, staff recommends an agreement term of one year with up to four 1 -year renewal options. If new technology becomes available during the next five years, the City can choose not to renew and to implement a suitable transition plan. The previous agreement with Bentley Systems, Inc. expired November 30, 2016. However, due to a delay in preparing the quote, support will continue until this new agreement is executed. The new agreement includes a provision to separately invoice the City for the gap period between the previous expiration date and approval of the new agreement. Bentley Systems, Inc. has agreed to certain modifications to the agreement at the City's request and requires those modifications to be implemented by concurrent amendment (Exhibit 2). STRATEGIC PLAN ALIGNMENT Approval of this item supports the City's efforts to meet Goal #6 - Community Facilities & Infrastructure, Objective #1 (establish and maintain a Community Investment Plan for all City assets), Strategy G (develop and implement the City's Capital Improvement Program in coordination with the Community Investment and Deferred Maintenance Plans). ENVIRONMENTAL IMPACT There is no environmental impact associated with this action. FISCAL IMPACT The cost of maintenance for the first year of the agreement is $48,315.71. Funds in the amount of $55,000 have been budgeted and are available for expenditure in FY 2016/17 in the Public Works Admin Services fund, in the Contract Services- Professional account (No. 10117601- 62300). Funds for the optional agreement extensions will be allocated in the FY 2017/18 and FY 2018/19 budgets in the same account. 25A -2 Agreement with Bentley Systems, Inc., for Software Maintenance and Technical Support January 17, 2017 Page 3 APPROVED AS TO FUNDS AND ACCOUNTS: savipour Francisco Gutierrez Director Executive Director Public Works Agency FM /mlm Exhibits: 1. Agreement 2. Amendment No. 1 Finance & Management Services Agency 25A -3 25A -4 R„ nth y BENTLEY SYSTEMS, INCORPORATED SELECT PROGRAM AGREEMENT Bentley SELECT` NORTH AMERICA Bentley SELECT Agreement CLA Number 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 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 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 supplementer) 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 ditty 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 i11e rights of Subscriber tinder the perpetual license terns 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 'Perms and Conditions tinder 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 nonuse the licenses, services and other benefits provided tinder this Agreement par 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 1S APPROVED AND ACCEPTED BY BENTLEY. SUBSCRIBER Approved as to Form BE' SYSTEMS, INCORPORATED Company Name S -mail Address. Address: Telephone: SEL002520- 1/0005 6/11 hit M. Funk? Assistant City Attorney Signature Attest Printed Name Maria D. Huizar Title Clerk of the Council Recommended fur Approval 685 SWCictnn Drive Exton,Pennsylvirim 19341 Fred Mousavlpour Executive Director Telephone: 610-A5 9,5000 Public Works Agency Date Signed: BENTLEY SELECT PROGRAM AGREEMENT SELECT Program Benefits Exhibit A Dated as of January 2010 General, Subscriber agrees to purchase SELECT Program coverage for all Bentley Products licensed and CAU acquired by Subscriber. Bentley shall provide SELECT Program services to Subscribers for all Bentley Products licensed by Subscriber; subject to the provisions of this Agreement. Subscriber may complete and submit to Bentley a supplemental foam referenced by Bentley as Attachment l ( "Attachment 1"), and if completed Attachment I shall be incorporated into this Agreement, provided that (except with respect to the duration of the initial tern or 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 hcmundor and the additional SELECT Program Pees 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, fn order for Subscriber to be eligible to receive Upgrades, Updates, or Platform Exchanges, Bentley may require that Subscriber East return the Product. (or component thereof, such as hardware lock or CD- ROM) 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, . 2,01, Bentley may provide SELECT support services to Subscriber either directly or, . at its discretion, through authorized Bentley Channel Partners, A Charnel PnmQr's audrorizerion 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 Ol employedempioyee relationship between Bentley and its Chamd Partners. 2.02, Bentley shall provide Technical Support services to Subscriber, which includes telephone, Facsimile, electronic mail, and Interne[ based support to assist Subscribers regarding the use of Bentley Products, CALs and services (however, not to include professional services or professional training services) androasonable efforts to respond to heclmieal inquiries within four hags 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 nonconformanco caused by accident, transportation, neglect, misuse, alteration, modification, or enhancement of a Product; (c) failure to provide a suitable installation environorenn (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 it given version of a Product, for at least twelve months, or until two Upgrades have been released by Bentley, whichever occurs first. 2.04, If Subscriber experiences a production - stopping anomaly, Bentley will rise good fault efforts to create an appropriate solution and deliver it electronically, or through Such other means as Bentley may choose in his sole discretion, 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 Progmm as such Upgrades and Updates become available. Subscriber shall also have the right to exchange, at no additional charge (other slum shipping and handling, if applicable), it license for a Product (Other than a Subscription License) covered by the SELECT Program on one SELOO2520 -1 /0005 6/11 SELECT Onlinc, Subscriber shall receive access to SELECT Online as set forth below and in more detail in the applicable online agreement found at www.bentley.corn (the. "Online Agreement "): Bentley may, from dine to time, offer certain services, including, but not limited to, training services, to its SELECT subscribers on a computer online service, cleotrordc bulletin board, Internet site or through technology developed in the future (`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, fit the event of conflict between the Online Agreement and this Agreement, the terns of this Agreement shall control. 4.02, Bentley shall have We sole right to conuol 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 SELEC F Online, or terminate the SELECT Online service altogether without providing Subscriber any prior notice, 4A3. Absent a written agreement with Bentley to the contrary, Subscriber's use of SELECT Online constirmas Subscriber agreement to be bound by the terms of the Online Agreement. S. Product Licensing 5101. 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 Effectivo Date for.Pradiiets 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 open its delivery to Subscriber shall govern Subscriber's use of any such Product. (b) Future Licenses, lu 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 25A -6 BENTLEY SELECT PROGRAM 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 ageement that Bentley's SELECTsefver will from time to time transmit to terms provided with the Product upon its delivery to Subscriber, Bentley the usage log files generated by SELECTsewer 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 be the above transmission to Bentley or otherwise to n'allsmit to authorized through delivery of a new Liconse Key and without. Bentley true and accurate copies of such usage log files. For delivery or download of any additional Product. in such purposes ofclarity, the right to pool licenses of Products granted instances, Subscriber agrees that the license agreement terns to Subscriber pursuant to this Section 5.02(x) of Exhibit A shall contained or cross- referenced in the License Key shall govern, 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(x) 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 11011- exclusive basis, upon its delivery to Subscriber shall govern Subscribers 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 sothvare. 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 sofhvare and related documentation and media provided that Subscriber procures each such third party's covered by such license are transferred to the tnansferoc 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 Rather 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 Fm such CAL or Product. C2) For each of Subscriber's licenses of 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 teams of Section 5,02(1) 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(1) of Exhibit A. Such Bentley Products are licensed oil Per Device basis as set forth in the CALs granted hereunder will expire upon te'mination 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) Hoare 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 wider the following programs, Bentley reserves the right to administrator, and permit Subscriber's employees to use, discontinue any of its licensing programs at any Grits, 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 maturation of any licensing program shall not affect Online) in accordance with the tenlu set forth in the license the licenses for Products previously granted pursuant to such agreement provided with such hone use edition of a Product; as terminated licensing program. For purposes of clarity, all licenses amended and supplemented by this Agreement. Restrictions on previously granted pursuant to a terminated licensing program shall home use licenses include the following: home use licenses ate 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 Subscribes a any cleerronic media; home use licenses must be permitted in limited non -to n3femble non - exclusive right to use such Product Subscriber's jurisdiction. The total number of home use editions for Production Use only on multi-tier 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 (tome 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 bas 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 hems SU002520 -1 /0005 6/11. Page a or' 12 25A -7 BENTLEY SELECT PROGRAM AGREEMENT SELECT Program Benefits Exhibit A Dated as of January 2010 use homed, 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 licensee granted Products Under a perpetual license would entitle harounderwiil 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 pn SELECT Online, Bentley hereby grants to Subscriber, Portfolios acquired or licensed under a Subscription subject to its compliance with the procedures or this Section License are provided to Subscriber for use only for the 5,02(d) of Exhibit A, a limited nontransferable 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 par or earlier nomination 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 riskiness Bentley from any and all claims, time out or expire attar 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'llme 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 5.97(4) of Exhibit A and ally other - Section or Exhibit of (e) Subscription Licensing. this Agreement, or between this Section 5.02(x) of Exhibit A and the terms and conditions in the license agreement (1) Subscribe' may, upon Bentley's approval, license certain provided with any Product or CAL that is the subject of a Products, or acquire CATS, for a specified term (a Subscription License, this Section 5.02(e) of Exhibit A "Subscription Lyeease "). 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 Solrwore 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 in Object Code form and within ilia 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 CAU licensed by individual Product damsels, if any, may not be separated Subscriber, -for Production Use only; (1) install and rise Client for use on more Bum one computer. To be eligible to Software; (2) permit Users, including External Users, to access participate, Subscriber must be current on all outstanding Serve 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 rem 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 tiles transmitted pursuant to this Section 5M(f), the License Key 'and, unless earlier terminated, shall dining the term of this Agreement. The parties acknowledge continue for the remaining current term of the Agreement and agree that air External User may be permitted to access or such shorter tam (hot less than one (1) month) as Server Products Incensed 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 end 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 Serve' Products licensed by Subscriber, Upon Subscriber may elect at the time of such renewal, unless expiration or earlier lamination ofthis Agreement, the teams of either party gives notice of its election not to Penske 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 Tenn for the associated CAL, 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 termarne upon termination of the Agreement or in the event of non- renewal at the and of the then current (g) SELECTserver. Subscriber may, upon Bentley's approval, and License Tema as provided in the preceding sentence, at no charge, receive a. Subscription License for Bentley's SELECTserver Product (or such other server -basal license (3) The fees in effect as of the date a Subscription License for management technology that Bentley may offer). The ternns of a CAL, Product Subscription or Portfolio Subscription is Subscriber's use of the SELECTserver Product shall be as Set initiated or rrneved 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 Term for such Agreement. Subscriber acknowledges that SELECTserver (or CAL, Product or Portfolio Subscription. On the renewal such other server -based license management technology thus date, the prices in effect on such (late shall be applicable. Bentley may offer) may be delivered to Subscriber with embedded Time Clocks, Subscriber agrees that Time Clucks are (4) During the License 'Penn, and any renewal tern, all not considered it 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 "franc Clocks or their operation. Subscriber arty not SEL002520d /0005 6/11 25A -8 Page 4 of 12 BENTLEY SELECT PROGRAM AGREEMENT SELECT Program Benefits Exhibit A Dated as of Jannary 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 into and accurate copies of such usage log files. 6. 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 renowal of this Agreement, at which time the fees shall be changer) 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 (t) year of SELECT Program Fees for all Product licenses and CAU as of the Effective Date of this Agreement. Bentley shall provide Subscriber with a pro- rated annual invoice for all Product licenses and CAL% purchased during the first year following the Efective Date of this Agreement. As of the first anniversary of the Effective Date of this Agreement, invoices for SELECT Program Fees for Product licenses end 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 plies the full amount for the current invoice period. Bentley may modify the liming of invoicing hereunder at 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 CAU are used. 5EL002520 -1 /0005 6111 25A -9 Pape 5 of 12 BENTLEY SELECT PROGRAM AGREEMENT General Terms and Conditions Exhibit B Dated as of January 2010 1. Detlnitiuns. Lit. "Object Code" means the Products in a machine readable Come that The capitalized words; terns land phrases in this Agreement shall is not convenient to human understanding of the program logic, and ]love the meanings sot 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 Agrecurcnt executed by specifically excludes source code. Bentley mid the Subscriber and all exhibits, attachments and amendmentsas in effect from time to time. I,]7. "Online Agreement" shalt be defined. as set forth in Exhibit A, Section 4 herein, 1.02. "Bentley Products" or "Products" mean the software products, data 1 18 and other materials, previously or hereafter distributed by Bentley through delivery mechanisms datounlned in Bentley's sole discretion (including but not limited to distribution via SELECT Online through 1.19, download or by ordering through CD threat) that Bentley makes available to Subscriber typically in Object Code fome only, for licensing hereunder, including Updates and Upgrades thereto.. 1:20. 1.03. "CAL" shall be defined as set forth in Exhibit A, Section 5.02(t) herein, 1.21. L04. "Channel Partner" or "Bentley Channel Partner" means individuals and companies who are authorized by Bentley to provide 1'22 SELECT support services as set forth in Exhibit A, Section 2; 1.05. "Client Software" means software that allows a Device to access or 1.23. utilize (or where applicable, be managed by) Server Products (and, also where applicable, to utilize certain aspects of the Products when discmmected from the Server). 1.06. "Country" means the coumty{ (i) where. the Product is first obtained front Bentley or a Channel Partner; or (it) specified in the purchase 124 order fa•which a. Production Use copy of the Product may be made. or the Product is aumorized to be used. 1,07. "Definition of Use" shall have the meaning set forth in each License 1.25. Key. 1.08. "Device" means a single personal computer, workstation, terminal, 1'26' band held computer, pager, telephone, personal digital assistant, Server, or other electronic device. 1.27. 1109. "Distribute" means distribution by Bentley through all means now known or hereinafter developed. 1.10. "Dean room Set" bens, with respect to a Product, one copy of one or more user guides developed for use with such Product in electronic format or such other format as elected by Bentley in its sole discretion. '-Order" shall be defined as set forth in Exhibit C, Section 1.01 herein. "Pre- Existbrg Works" shall be refund no set forth in Exhibit C, Section 1.08 herein. "Platform Exchange" shalt be defined as set forth in Exhibit A, Section 3.01 herein. "Portfolio Subscription" shall be defined as sot forth in Exhibit A, Section 5.02(0)(1) herein. "Product Subscription" shall be defined as set forth in Exhibit A, Section 5.02(e)(1) herein. "Production Use" means use of a Bentley Product. in Object Code flami by a User or Device, as applicable, solely For Subscriber's internal production purposes, and excludes External Users (except with respect to use of CALs and access of Server Products pursuaint to Exhibit A, Section 5.02(f) herein) and Service Bureau Use. `Proprietary Information' shall be defied as set forth in Exhibit B, Section 3.06m) herein. "SELECT Online" shall be defined as set forth in Exhibit A, Section 4.01 herein. 'SELECT Program Fee' means the fee for SELECT Program services as sot forth from time to time in Bentley's sole discretion. 'rSELECTserver" means Bentley's servcr -based licensing technology, 1.28. "Serial Number" means a unique number issued by Bentley for identification of a particular copy of Product, which number shnit be registered to Subscriber and assigned by Subscriber to a particular copy of such Product. 1.29. 1.11. "Effective Date" means the date that this Agreement is accepted by Bentley as indicated on the first page of this Agreement. ].30. L12. "Evaluation Use" means the use of a Bentley Product solely for internal evaluation of such Product. Evaluation Use expressly excludes use in connection with ongoing projects, use for 1'31' compensation of any kind, and Production Use. 1.13. "External User" means any User (not air 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 Kcy" means the document furnished by Bentley in electronic re such other format as determined in Bentley's sole discretion, to Subscriber identifying the Product licensed and authorizing use are Product. L.1 S. "License Term" shall be defined os set forth in Exhibit A, Section 5.02(c)(2) herein. saoml52o-1/0005 5/11 1.32. "Server" means one of Subscriber's computers that can run a Server Product. "Server Product" means a Product that provides services or functionality to Subscriber's Server(s). "Service Bureau Use" includes managing, hosting, distributing or otherwise providing access to Products across a wide area network, "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 defined as let faith on the front page of this Agreement, and with respect to Use of Products the tern Subscriber" shall refer to: (1) one of Subscriber's full -time, pail- time ' or temporary employees; or (it) agency tempormy personnel or an independent contractor engaged in Production Use on assignment at Sabscrifecrz s place of business or work -site. Page 6 of 12 25A -10 BENTLEY SELECT PROGRAM AGREEMENT General Tents and Conditions Exhibit B Dated as of January 2010 1.34, "Subscription License" shall be defined as set forth in Exhibit A, Section 5.02(x)(1) herein. 1,35. `Subscription Licensing" means acquisition of a CAL or licensing of a Product or portfolio of Products as set Froth in Section 5.02(e) of Exhlblf A of this Agreement. 1.36. "Technical Support" means telephone,. facsimile, Internet and electronic mail based support to assist asubscriber to the SELECT 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. devices which may deactivate Products or CALs, including Bentley's SELECTserver, after termination or expiration of the Agreement, any applicable License Term or any applicable renewal term. 1.381 "Update" means a maintenance release ofa'Product 1.39. "Upgrade" means a commercial release of a Product which has substantial added functionality over the Product it is intended to replace. 1.40. "Use" (whether or not capitalized) means utilization of Product or CAL by an individual or when a Product has been loaded into temporary memory (i.e. RAM) or installed into permanent memory (e.g. hard disk, CD -ROM; or other storage device) of a computer. L41. "User" means an individunl person. 1.42. "Work" shall be defined as set forth in Exhibit C, Section 1,01 herein. IA3. "Work Product " shall be defined as set forth in Exhibit C, Section Ldl herein. Payment of Eenttey Invoices. 2.01. Payment Terms. - Subscriber shalt pay each Bentley Invoice for all CALs, Product licenses and services provided hereunder within thirty (30) days from the date of such invoice. Interest shall accrue on delinquent payments of such invoices at the rate of one and one -half 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, Bentley, at its disci ation,. may suspend or, after notice of such overdue payment and a thirty (30) day period to cure, terminate Subscriber's services, rights, and licenses provided triter this Agreement. 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 the transactions contemplated by this Agreement, Including, but not limited to sales, use, occupation, value added, excise; and property taxes (except for taxes based on Bentley's net income). If Subscriber is obligated under an clip lcab[it law to Militate or deduct taxes from any payment of SELECT Program Fees to Bentley, Subscriber shall famish to Bentley official receipts evidencing Subscriber's payment of such taxes. Subscriber has complied with its obligations hereunder. These records shall include the location and identification of the Subscriber hardware on which Subscriber uses each copy of the CALs or Products. Subscriber shall, upon seven (7) days advance written notice by Bentley, permit reasonable inspection and copying of such records by Bentley or a third -party auditor retained by Bentley at the offices of Subscriber during regular working hours. Intellectual Property Rights Title; Reservation of Rights. Subscriber acknowledges and agrees that: (a) The Products, including the Document Sets for each Product, and any information which Subscriber obtains through the SELECT Program or the use of SELECT Online or any other means of electronic transmission, contain proprietary information of Bentley, its licensors or other suppliers, and me protected under United Status copyright laws, other applicable copyright laws, other laws relating to the protection of intellectual property, and international treaty provisions; (b) The entire right, title and interest in and to the Products, the Document Sets, any information Subscriber obtains through the SELECT Program or the use of SELECT Online or any other means of clectrunie transmission, and all associated intellectual property rights, shall remain with Bentley or its licensors; (a) The Products are licensed, not sold, and title to each copy of the Products shall remain with Bentley or its licensors, and shall not pass to Subscriber; and (d) Bentley retains all rights not expressly granted 3,02. Source Cade. Subscriber shall have no right hereunder to receive, review, use or otherwise have access to the Source code for the Products. 3.03, Copyright Nodeeii, Subscriber shall reproduce and include on all copies of the Products created by Subscriber all copyright notices anti proprietary legends of Bentley or its licensors as they appear in or om the original media containing the Products supplied by Bentley. Roproduetion of Document Sets. Subscriber may reproduce the Document Sets for its internal, non - commercial use only, but the cumulative number of such reproduced Document Sets may not exceed the number of Products licensed by Subscriber that correspond to the Document Sets. 3.05. Reverse Engineering. Subscriber may not decode, reverse engineer, reverse assemble, reverse compile, or otherwise translate the Products or Document Sets except and only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation. To the extent that Subscriber is expressly permitted by taw to undertake any of the activities listed in The previous sentence, Subscriber will not exercise those rights until It has provided Bentley 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 Program Fee or any separate- price for a0, CALs, Products and 3.06. services hereunder shall be based on the local price and local currency of the Subscriber's Site where such CAL, Product or service is used. 2.04. Recom'ds; Audit. Subscriber shell maintain complete and accurate records of CALs and Product Ileen8e9 prior to [lie date of this Agreement and its creation and use of the CALs acquired and Products licensed hereunder to permit Bentley to determine whether 5 €LOO2520.1 /0005 6/11 25A -11 Proprietary Information. (a) Subscriber understands and agrees that Bentley may, in connection with the provision of CALs, Products and services hereunder, disclose to Subscriber confidential, proprietary and technical information pertaining to Bentley Products and to Bentley's technology and business practices (collectively 'Troprietary Information "), Subscriber agrees to treat all vase 7 of 12 BL"^NTLEY SELECT PROGRAM AGREEMENT General Terms and Conditions Exhibit B Dated as of January 2010 Proprietary Information in accordance with this Section 3.06 of Exhibit B. (b) Subscriber shall maintain the confidentiality of All Proprietary Infannatien. Subscriber shall not reproduce or copy Proprietary Information except as permitted in this Agreement or as may be expressly authorized in writing in advance by Bentley: All such copies shall be marked by Subscriber as proprietary and confidential information. (c) Subscriber shall only use Proprietary Information in furtherance of this Agreement; and may disclose Proprietary formulation only to false employees required to have knowledge of salve to perform their - duties pursuant to this Agreement. Subscriber shall not disclose or make Proprietary Information available to any third party at any time. (d) Subscriber shall heat Proprietary Information with the same 4.03, degree of care as it uses to protect Its own confidential information, and in no case less than a reasonable degree of care. (e) Upon die termination or non - renewal of this Agreement, Subscriber shall mourn to Bentley or, if so requested, dedroyall Proprietary hrformation in its possession. (f) .Subscriber shall Have no obligation of confidentiality with respect to any Proprietary Information that (i) has entered the public domain other than through a breach of this Agreement, (ii) has been rightfully obtained by Subscriber from a third party with no obligation of confidentiality, or (Iii) is previously known by Subscriber as demonstrated by clear and convincing evidence. (g) Subscriber shall promptly inform Bentley upon knowledge of say actual or potential unauthorized use or disclosure or the Proprietary hrformation, 107. No Benchmarks. Subscriber may not disclose the results of any Product testing, including but not limited to benchmarks, to any third party without first obtaining Bentley's wriden consent to do so. 4. Limited Warranty; Limitation of Remedies and Liability 4.01, Limited Warranty to Subscriber. Except for :products licensed tinder Section 5.02(b), Section 5A2(e) Br Section 5.02(4) of Exhibit A hereof, which are provided to Subscriber "AS -IS" and without womanly of any kind, Bentley hereby warrants for tile benefit only of Subscriber that (a) for a period of ninety (90) (lays ("Warranty Period "). train the date of delivery to Subscriber of a Serial Number or Product, as the case may be, the Product shall, under normal use, operate in substantial conformance with the functional specifications set forth in the Document Set applicable to such Product, and (b) for a period of ninety (90) days from the date of delivery, other products and materials famished by 13cnticy to Subscriber shall, under normal use, operate in substantial conformance with the Bentley documentation applicable to such products and materials. If any modifications, enhancements or changes are trade by Subscriber or at Subscriber's direction to the Products; if the Products are reverse - englneeted, decompiled or disassembled; or if Subscriber breaches the terns of this Agreement, then the warranties in this section shall be immediately terminated. This limited warranty gives Subscriber specific legal rights, Subscriber may have other rights which may vary from state/jurisdiction to stateljurealiction. 4.02. Exclusion of Warranties. THE WARRANTIES STATED IN SECTION 4.01 ARE BENTLEY'S SOLE AND EXCLUSIVE WARRANTIES PERTAINING TO THE PRODUCTS, SELECT SEL0n2520d /0005 5/11 SUPPORT SERVICES AND OTHER MATERIALS AND SERVICES LICENSED, DELIVERED OR OTHERWISE FURNISHED BY BENTLEY UNDER THIS AGREEMENT, BENTLEY DOES NOT WARRANT THAT THE PRODUCTS, SELECT SUPPORT SERVICES, OR ANY OTITER SERVICE OR MATERIALS WILL MEET SUBSCRIBER'S REQUIREMENTS, BE FREE FROM VIRUSES OR OPERATE UNINTERRUPTED OR ERROR FREE. BENTLEY NPREBY DISCLAIMS ALL OTHER WARRANTIES EITHER STATUTORY, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, WARRANTIES AGAINST NON- INFRINGEMENT AND THE IMPLIED WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY AND FITNESS FOR A PARTICULAR PURPOSE, THESE EXCLUSIONS MAY NOT APPLY TO SUBSCRIBER AS SOME STATES /JURISDICTION DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES. Exclusive Remedy. The entire liability of Bentley and the sole, and exclusive remedy of Subscriber shall be, in Bentley's sole and absolute discretion, (1) to repair or replace a Product or other materials in broach of the foregoing warranties, (if) to advise. Subscriber how to achieve the same functionality with the Product as described in the Document Set thorough a procedure different from that set forth in the Document Set, or (ii) to muslin the purchase price or fees paid therefore, where written notice of such breach, specifying the detect, is fhndshcd to Bentley dm'arg the Warranty Period. Repaired, comeeted, or replaced Products. and Document Sets shall be covered by this limited warranty for ninety (90) days after the date; (a) of shipment to Subscriber of the "repaired or replaced Products and Document Sots, or (b) Bentley advised Subscriber how to operate the Products so as to achieve the functionality described in the Document Sets. 4.04. Exclusion of Batangas, IN NO EVENT SHALL BENTLEY AND ITS LICENSORS AND SUPPLIERS BE .LIABLE TO SUBSCRIBER FOR ANY INDIRECT INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING WITHOUT LIMITATION LOST PROFITS, COSTS OF DELAY, INTERRUPTION OF BUSINESS, LOSS OF USE, INABILITY TO ACCESS ONLINE SERVICES, ANY FAILURE OF DELIVERY, COSTS OF LOST OR DAMAGED. DATA OR DOCUMENTATION, OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE, EVEN IF BENTLEY HAS BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES OR CLAIMS. BECAUSE SOME STATES /JURISDICTIONS DO NOT ALLOW FOR THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO SUBSCRIBER, 4105. Disclaimer. Subscriber acknowledges thattlie Products are not hand. tolerant and Have not been designed, manufactured or intended for rise and will not be used in the development of weapons of mass destruction, as on -line control equipment in hazardous environments requiring fait -safe performance, such as in the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, direct life support machines, or weapons systems, in which the failure of the Products could lead directly to death, personal injury, or severe physical or environmental damage. Subscriber further acknowledges that the Products are not substitutes for Subscriber's professional judgment, and accordingly, neither Bentley nor its licensors or suppliers are responsible for Subscriber's use of the Products or the results obtained from such use. The Products are intended only to assist Subscriber in its business, and are not mean to be substitutes for Substation's independent testing slid verification of stress, safety, utility or other design parameters. Nate S 12 25A -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 REMEDY SET FORTH HEREIN FAILS OF 1T$ ESSENTIAL PURPOSE BY LAW, BENTLEY'S CUMULATIVE LIABILITY HEREUNDER SHALL NOT EXCEED THE PRICE PAID BY SUBSCRIBER FOR (i) SUCH PRODUCT, (it) 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 an a claim against Subscriber that a Product which is developed and owned by Bentley infringes a third party's copyright carder the laws of a Berm Convention signatory country, or results in a misappropriation of a third party's trade secret, in the Country where Subscriber has been authorized to piece the Product subject to Stich 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 sale control of the defense and settlement of any such claim. Bentley shall also have the right, at its expense, either to picture 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 alteratives is available on teems that Bentley, in its sole discretion, deems desirable, Subscriber shall, upon written request from Bentley, mmnt 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 shalt have no liability and this Indemnity shat 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 infiagement 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, 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 laid 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 a 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 tha Products outside the United States) without first complying strictly and fully with all export controls that may be imposed an the Products by the United States Government or any country or organization of nations within whose jurisdiction Subscriber uses the SEL002520- 1/0005 6/11 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 die 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 or America, its agencies and/or instrumentalities ( "U.S, GovemmenP'), it is provided with restricted rights. The Products and accompanying documentation am "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. Goverment are subject to restrictions as set forth in this Agreement and pursuant to 48 C.F.R. 12.212, 51227-19, 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 1 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 totan . at least thirty (30) days prior to the expiration of the dem- Current tern. 7.02. Termination for Material Breach. Either party may, at its option, munitions this Agreement in the event of a material breach of this Agreement by rho other party. Any Stich termination may be effected Duly through a written notice to the other party, specifically identifying the breach or breaches an which termination is based. Following receipt of such notice, the party Orr breach shall have twenty-one (21) 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 orthis Agreement. 7.03. Insolvency. If, 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, admudstratiou 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. Will, respect to any perpetually licensed Products, the terms and conditions set forth ill 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 Oldine. 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 all amount to be determined in Bentley's sole discretion, such amoral 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. Pilau 9 of 12 25A -13 BENTLEY SELECT PR(JGRAM AGREEMENT General Terms and Conditions Exhibit B Dated as of January 2010 8. Miscellaneous, International Sale of Goads, 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 shalt, be 810 considered an assignment for which Bentley's prior written consent is Arbitration. In Ilse event of any dispute, controversy or claim hereby granted provided that the surviving entity from such change in between the panics arising under this Agreement, the parties shall control must cuter into a SELECT Agreement, This Agreement may submit to binding arbitration before a single at 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 patty 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 parties and supersede and merge all prior oral and written agreements, $.11. Independent Contractor. Bentley's relationship with Subscriber for discussions and understandings between the parties with respect to all purposes herermrler shall be that of sit independent contractor and . the subject matter hereof. The terns 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 terns 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 items 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 Iieeferen Jr, this Agreement are intended solely for o convenience of reference and shall not effect fie 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 writing duly executed by authorized representatives of the patties, provided, however, that any additional or different terms or oonditiona 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 other Band delivery or mailing to such patty, if .sent prepaid cerhfted mail or next day air delivery to the address set Forth on the first page of this Agreement. All trances under this Agreement shall be addroised, if to Bentley_, to its General Counsel, and if to Subscriber, to its authorized representative identified in this Agreement or in it subsequent notice to Bentley:. 8.05. Force Majeure.• Bentley shall not be liable for failure to fulfill the terms of Una 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 rights under this Agreement upon one or more occasions, or to exercise any of its rights, shall hot 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 5.0 1 (a), (b), (e) 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, 1.03, I.(18, 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 teimination. 8108. Severnbility. The provisions of this Agreement shall be severable and the invalidity or mmcnforeeability of soy one provision shall not affect ally other unless otherwise noted. 8.09. 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 low provisions. To the maxinuan extent permitted by applicable 1nw, the patties agree that the provisions of the United Nations Convention on Contracts for the SE1002520- 1/0005 6/11 page 10 of 12 25A -14 BENTLEY SELECT PROGRAM AGREEMENT Professional Services Exhibit C Dated as of January 2010 Professional Services. Lot. 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 beset forth in one or more written descriptions. labeled "SELECT Professional Services" and signed by Subscriber mid 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 Bentleys 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, Mothod 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 supervising 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. 1.03. Scheduling, Bentley will try to :accommodate work schedule requests of Subscriber to the extent possible, Should any persormel of Bentley be unable to perform scheduled services because of illness, resignation, or other causes beyond Barley's reasonable control, Bentley will attempt to replace 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 wham 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 gray 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 tit 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. t,06. Non - Exclusive. Bentley shall retain the right to perform work for others during the term of this Agreement. Subscriber shell retain the right to cause work or the sane or a different kind to be performed by its own persomod 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, Loyalty -fice 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. 1.0& 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. L09. 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. 1.10. 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, I'll. Pees. 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 area existing Order), or, if no fee is specified, ai nentley'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 all 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 gurrance such estimates. Bentley will, however, notify Subscriber as soon as possible if it wilt 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 peramnanee 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 sequined in the performnce 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 thin] 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 all order of any court or other governmental authority Page 11 of 12 25A -15 BENTLF'Y 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 She 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 maytenninato any uncompleted Order at any time by giving thirty (30) days written notice to the other patty. Upon such termination, Bentley agrees to stop Work under the Order in question and to forward to Subscriber all completed or uncompleted drawings, reports of other documents relating to the Work. In the event of such termination Subscriber shill be liable only for such fees, costs and expenses as have accrued prior to the effective date of suelr termination 1.17. Prohibition on RhIng. Subscriber shall not solicit For employment or hire any Bentley employees providing professional scivices hereunder For the duration of the Work, plug a period of one (1) year -after completion ofthe professional services provided hereunder.. SE1002520 -1 /0005 6111 25A -16 Page 12 or 12 7�� BENTLEY SYSTEMS, INCORPORATED �,r�.N�r' * ATTACHMENT I SELECT PROGRAM AGREEMENT Bentley SELECT Agreement Number: Steps to a Properly Completed Attachment I: 1, Indicate the Tenn of the Agreement below. 2. Complete a Site Information form for each covered Site 3. Review the information regarding SELECTserver Online, 4. Insert Attachment I into the Bentley SELECT Program Agreement Agreement Term *: ❑ 12 Months ❑ 24 Months ❑ 36 Months 11 Other: *The Agreement Term is subject to Bentley's review and approval sE.002710- 1/0001 25A -17 Attachment T BENTLEY SELECT PROGRAM AGREEMENT SITE INFORMATION Please complete a copy of this form for each covered Site (as defined in Exhibit B, Section 1.32) Bentley's processes for the delivery of License, Invoice and other information are optimized for electronic delivery. For the most effective communication, please ensure that email addresses are provided for all contact persons. Bentley will establish Online SELECTservices User permissions for the Technical Administrator designated below. The Technical Administrator may grant all or some of those permissions to other users within the organization. All licensing fulfillment documents will be delivered to the Technical Administrator. All Notices delivered under the Agreement shall be delivered to the Account / Billing Contact identified below or in a subsequent notice to Bentley. Shipping Address: Company Site Technical Administrator Name E -mail Address Address /Street (no P.O. Box) City State and Zip Country Phone Billing Address (if different Company Site Account/ Billing Contact Name E-mail Address Address /Street (no P.O. Box) City State and Zip Country Phone SH1.002710 -I N001 25A -18 Bentley will add this site to SELECTserver Online (a hosted, managed solution) for the management of your Bentley Product licenses. Subscriber will install, activate and maintain a SELECTserver gateway Service (a "Gateway ") to manage pre -XM Bentley Products at this Site. The new (or existing) Gateway will be physically located at the Shipping Address listed on the Site Information Page found in Attachment 1. (Optional): To discuss other Licensing options, please check the box below and a Bentley Representative will contact the Technical Administrator identified in the "Shipping Address" section. O Please contact the site Technical Administrator regarding other licensing options. APPROVED AS TO FORM 1 M. � T -__.. F1mlt As<aiSlut City Auormy For more information on Bentley, please visit www.bentley.com or call 1 -800- BENTLEY Bentley SELECT' 51U.00271e4,00e1 ' 'l 25A -20 CW2023388 CITY OF SANTA ANA 4 AMENDMENT NO. 1 TO Ono SELECT PROGRAM AGREEMENT 3usrninlny Infrastructure Amendment No. 1 to Bentley SELECT Program Agreement (CLA No. 10362400) This Amendment No. 1 (the "Amendment ") is made this day by and between Bentley Systems, Incorporated, a Delaware corporation with its principal office and place of business at 685 Stockton Drive, Exton, PA 19341 (`Bentley "), and City of Santa Ana, a California municipal corporation, with principal offices at 20 Civic Center Plaza, Santa Ana, California 92701 ( "Subscriber "). WHEREAS, Bentley and Subscriber are parties to that certain Bentley SELECT Program Agreement, with an execution date near to or even with the date hereof (the "Agreement "), and desire to amend the Agreement upon the terns and conditions stated in this Amendment; NOW THEREFORE, the parties, intending to be legally bound, hereby mutually agree as follows: 1. Continuity of Definitions. Unless defined in this Amendment, any capitalized tern herein has meaning stated in the Agreement. 2, Effective Date. Section 1.11 of Exhibit B to the Agreement is deleted in its entirety and replaced with the following: "1,1 L "Effective Date" means January 17, 2017;' 3. Payment Term. Section 2.01 of Exhibit B to the Agreement is amended by deleting the first sentence thereof and replacing it with the following: "Subscriber shall pay each Bentley invoice for all Passports, Product licenses and services provided hereunder within forty -five (45) days from the date of such invoice," 4. Proprietary information. Section 3.06(c) of Exhibit B to the Agreement is amended by adding after the last sentence thereof the following: "Notwithstanding the foregoing restrictions, Subscriber and its personnel may use and disclose any information to the extent required by the Freedom of Information Act, the California Public Records Act, an order of a court of competent jurisdiction, or as necessary to protect its interest in this Agreement." 5. Limited Warranty to Subscriber. Section 4.01 of Exhibit B to the Agreement is amended by inserting at line thirteen (13) thereof, between the first and second sentences thereof, the following: "Bentley also warrants for the benefit of Subscriber only (i) that Bentley has the right to license Products to Subscriber under the terms and conditions stated in the applicable license agreements, and (ii) that Products licensed to Subscriber do not infringe any third - party's copyright, provided Subscriber uses the Products in accordance with Tire applicable license agreements and Document City of Santa Ana Page I oF.3 u Amendment No. 1 The 8 formation corataireed in this Anfendrnetrt is pnprietttrjj ofBentley Systems, bzcorporated and tr not to be disclosed to any duct party without Bentley's express prior written consent Exhibit 2 25 A -21 CW2023388 CITY OF SANTA ANA AMENDMENT No. I TO SELECT PROORAm AGREEWNT %Benfteg Ismairans lnrmtroduo Sets. Subscriber's sole and exclusive remedy for any breach of the limited warranties stated in the immediately preceding sentence is stated in Section 4.07 of Exhibit B to the Agreement, hearing the heading "Indemnification by Bentley "." 6. Term. Section 7.01 of Exhibit B of the Agreement is deleted in its entirety and replaced with the following: "7,01 Term. This Agreement and Subscriber's SELECT Program subscription shall become effective on January 17, 2017, and shall continue for an initial term of twelve months (the "Initial Term"). Upon expiration of the Initial Term, Subscriber shall have the option, exercisable by the City Manager for the City of Santa Ana, to renew the Agreement and Subscriber's SELECT Program subscription for up to four (4) additional one -year periods. Subscriber shall exercise its option by providing to Bentley written notice of Subscriber's intent to review no less than thirty (30) days prior to expiration of the Initial Term or then- current renewal tern. Upon receipt of such notice, Bentley may in its sole discretion without penalty agree or refuse to renew." 7. Force Majeure. Section 8.05 of Exhibit B to the Agreement is deleted in its entirety and replaced with the following: "8.05 Force Majeure. Neither parry shall be liable for failure to fulfill the terms of this Agreement due to causes which are unavoidable and beyond its control, including without limitation war; strike, labor disturbances, fire, flood, acts of terrorism, and acts of God." 8. Governing Law. Section 8.09 of Exhibit B to the Agreement is amended by deleting the phrase "Commonwealth of Pennsylvania" and replacing it with the phrase "State of California 9. Dispute Resolution. Section 8.10 of Exhibit B to the Agreement is deleted in its entirety and replaced with the following: "8.10 Forum. Any dispute arising under or in connection with the Agreement or related to any matter which is the subject of this Agreement shall be subjected to the exclusive jurisdiction of the federal court located in Orange County, California." 10. Payment of Previously Rendered Services. On separate approval by the City, payment will be made on all proper invoices evidencing services rendered upon expiration of Agreement No. A- 2013 -185 through the Effective Date of the Agreement. 11. 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. 12. Legal Effect. The modifications set forth in this Amendment are effective as of the ,Effective bate set forth herein this Amendment. Except as expressly amended or modified by the terms of this City of Santa. Ana Amendment No. 1 Page 2 of 3 The information contained in thisAnrendment is proprietary ofBentley Systems, Incorporated and is not to be disclosed to arty third party without Bentley's express prior written consent. 25A -22 CW2023388 CITY of SANTA ANA AMENDMENTNo. 1 To SELECT PROGRAM AGREEMENT j SUS10111 0y drastru.1.0 Amendment, all other teens of the Agreement shall remain unchanged and in full force and effect. In the event of conflict between the terms of the Agreement and the terms of this Amendment, the terms of this Amendment shall control. 13. 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. BENTLEY SYSTEMS, INCORPORATED Name: Date: CITY OF SANTA ANA 0 ATTEST: APPROVED AS TO FORM BY: *fin Funk, Assistant City Attorney RECOMMENDED FOR APPROVAL BY: Fred Mousavipour, Executive Director Public Works Agency City of Santa Ana Page 3 of 3 AmendmentNo, I The information contained in this Amendment is proprietary ofBwaley Systems, Incorporated and is not to be disclosed to any third party nwithoutBentley's erpress prior written consent. 25A -23 25A -24