EPS-365 Program Terms

1.    Definitions.

The capitalized words, terms and phrases in these EPS-365 Program Terms shall have the meanings set forth below or in the Bentley General Terms and Conditions.

2.    Applicability.

At Subscriber’s request and upon Bentley’s approval, Subscriber may participate in the EPS-365 Program, subject to the terms and conditions of the Agreement. To be eligible to participate, Subscriber must (i) be current on all outstanding invoices for amounts owed to Bentley; and (ii) utilize SES for license administration.

3.     Overview.

Upon Bentley’s acceptance of Subscriber into the EPS-365 Program, Subscriber shall be granted rights to Use certain EPS-365 Products (as defined below) without limitation as to the number of Users. Subscriber shall execute an “EPS-365 Order Form” (which for the purposes if these EPS-365 Program Terms is an Offering Document), which shall designate the “Annual EPS-365 Fees”, the subscription start date (“Start Date”). and the length of the subscription (“Subscription Term”). If Subscriber executes multiple EPS-365 Order Forms over time, the EPS-365 Order Form with the most recent execution date shall supersede all previous EPS-365 Order Forms.

4.   EPS-365 Products.

Bentley Products eligible under the EPS-365 Program (“EPS-365 Products”) are licensed on the following bases: i) named user or unique machine per day (“Category A Products”); ii) named user or unique machine per quarter (“Category B Products”); iii) fixed fee (“Category C Products”); iv) data processing units (“Category D Products”); or v) peak data storage (“Category E Products”). License model and pricing information for EPS-365 Products are included in the Enterprise 365 Price List. Bentley may amend the list of EPS-365 Products from time to time in Bentley’s sole discretion.

5.   EPS-365 Product License Grant.

5.1. Production Use. In consideration for full payment of the Annual EPS-365 Fees and, provided that Subscriber is not otherwise in breach of the Agreement, Bentley hereby grants to Subscriber a non-exclusive, limited, revocable, non-transferable, non-assignable license to Use the EPS-365 Products in Production Use during the EPS-365 Program Subscription Term, without limitation as to the number of Users who may Use the EPS-365 Products.

5.2. Evaluation Use. Subscriber may request, and Bentley may at its sole discretion grant to Subscriber a limited, non-transferable, revocable, non-exclusive right to use Eligible Products for internal evaluation or testing use only (an “Evaluation License”), provided that such Evaluation Licenses are not used for Production Use. To the extent that an Evaluation License is used in breach of the restrictions set forth herein (an “Unauthorized Use”), then each such instance of Unauthorized Use shall count as an instance of Use of EPS-365 Products.

6.   Annual EPS-365 Fees.

The EPS-365 Order Form will designate one or more Annual EPS-365 Fees, depending on the length of the subscription (i.e., the number of years, each defined as a “Contract Year”). Each Contract Year shall be a twelve-month period, with the first period (“Year One”) covering the first twelve months from the Start Date, and subsequent periods covering twelve-month (12) terms from the anniversary of the Start Date. Annual EPS-365 Fees after Year One will incorporate a fee increase as stated on the EPS-365 Order Form to accommodate for anticipated increase in usage of EPS-365 Products. Each EPS-365 Annual Fee is based on the preceding twelve months’ usage of Bentley Products, specifically Category A, B, D, and E Products, plus any subscribed Category C Products, applicable to Subscriber’s Ecosystem (as defined below). Subscriber shall pay in advance the total of the Annual EPS-365 Fees for each Contract Year, from which Bentley, on a quarterly basis, shall draw down one quarter (¼) the value of that Contract Year’s Annual EPS-365 Fees. In the event of early termination pursuant to clauses 7, 8 or 11 herein, any remaining portion of the Annual EPS-365 Fees shall be returned to Subscriber.

7.   Fee Adjustments.

7.1. Fee Adjustment Process. The parties acknowledge that the Annual EPS-365 Fees are based on actual or projected usage of certain Bentley Products by Subscriber, including any third-party organizations accepted and authorized by Bentley (as of the Start Date as indicated on the EPS-365 Order Form) to use Bentley Products under Subscriber’s EPS-365 Program subscription (collectively, “Subscriber Ecosystem”). The parties further acknowledge that significant, unanticipated changes to Usage or to Subscriber Ecosystem (as detailed in this section 7 below) may require an increase or decrease to the Annual EPS-365 Fees (“Fee Adjustment”). For the sake of clarity, the Fee Adjustment process detailed in this clause 7.1 shall govern Fee Adjustments made pursuant to clauses 7.4, 7.5 and 7.6 and shall not be applicable to Fee Adjustments made pursuant to clause 7.3. For Fee Adjustments made pursuant to clause 7.2, and with respect to applicable invoicing, clause 7.1.1 below shall apply and not that of clause 7.1.2.

Subject to the threshold limits for any such increase or decrease in Usage of Category A, B, D, and E Products as described in Section 7.2 herein, Fee Adjustments may be proposed in writing by either party at any time during a then current Contract Year (“Fee Adjustment Notice”). Within ninety (90) days after a receiving party’s receipt of a Fee Adjustment Notice, and upon concurrence of the parties, a Fee Adjustment shall be made part of the Agreement in the manner set forth below for any such increase or decrease, respectively, as follows:

7.1.1. For a Fee Adjustment for an agreed upon increase, Subscriber shall pay the annualized pro-rata amount of such increase: (1) in the then current Contract Year for which such increase first applies and within ninety (90) days of Subscriber’s receipt of an applicable invoice; or (2) at the time when payment is due for the immediately following Contract Year’s Annual EPS-365 Fees, with such annualized pro-rata amount of such increase to be paid in addition to said following Contract Year’s Annual EPS-365 Fees, which shall have been revised to include the agreed upon Fee Adjustment.

7.1.2. A Fee Adjustment for an agreed upon decrease shall be made part of the Agreement with the annualized pro-rata amount of such decrease for the then current Contract Year deducted from the immediately following Contract Year’s Annual EPS-365 Fees, which shall have been revised to reflect the agreed upon Fee Adjustment. If the parties are unable to agree to a Fee Adjustment within ninety (90) days after a receiving party’s receipt of a Fee Adjustment Notice, the EPS-365 Program subscription may be terminated by either party, to be effective at the end of the then current Contract Year, with not less than thirty (30) days written notice (notwithstanding the termination notice provisions below) to the other party.

7.2. Category A, B, D, and E Products. Bentley will review EPS-365 Usage during each Contract Year. Should the usage value of Category A, B, D, and E Products, based on the EPS-365 Price List, exceed or drop below 10% of the previous Contract Year’s gross usage value (Product prices based on the EPS-365 Price List x all Category A, B, D, and E Products usage with no discount or surcharge applied)1, the Annual EPS-365 Fees may be adjusted, subject to the process set forth in clause 7.1 herein. Fee Adjustments, positive or negative, shall be limited to 20% of the then current Contract Year’s Annual EPS-365 Fees (as revised by any Fee Adjustment made during that Contract Year), subject to any Cloud Offering minimum fee requirements.

7.3. Category C Products. Annual EPS-365 Fees assume usage of only Category A, B, D, and E Products listed in the EPS-365 Price List plus any Category C Products subscribed to as of the Start Date. Should Subscriber add or modify a Category C Product subscription during a given Contract Year, the value of the added subscription will be prorated to the end of the Contract Year and billed based on then-current pricing. Annual EPS-365 Fees for subsequent Contract Years will be adjusted to include the added subscription. Category C Product additions and fee adjustments will not be subject to the process set out in clause 7.1 above.

7.4. Bentley Acquisitions. Should Bentley make available to Subscriber new software via acquisition, the Fee Adjustment Process described in clause 7.1 herein shall apply. This potentially includes technology currently in use by Subscriber that Bentley acquires.

7.5. Subscriber Reorganization, M&A and Divestiture. If Subscriber is part of a reorganization, merger or acquisition, or divestiture that involves Bentley software (including but not limited to perpetual licenses or subscription rights to Bentley Products), Subscriber shall notify Bentley within 30 days following the event or transaction. Related Fee Adjustments, if any, shall be subject to the Fee Adjustment Process set out in clause 7.1 herein.

7.6. Third-Party Access. Subscriber, at any time during a Contract Year, may request to include an additional third party organization (including, but not limited to an affiliate, consultant, contractor or other organization outside of Subscriber  Ecosystem) under its EPS-365 entitlement, subject to Bentley’s consent, which shall not be unreasonably withheld. Related Fee Adjustments, if any, shall be subject to the Fee Adjustment Process set out in clause 7.1 herein. Subscriber shall  be responsible for all Users, including those of third-party organizations, within Subscriber Ecosystem, including compliance with the terms and conditions of the Agreement.

8.   Versions of EPS-365 Products.

Subscriber’s participation in the EPS-365 Program is conditioned on Subscriber’s use of the latest versions of the EPS-365 Products. If Subscriber has not fully adopted the latest versions by the Start Date, Subscriber agrees to do so within eighteen months from the Start Date. Bentley will monitor version usage and may elect to terminate Subscriber’s EPS-365 Program subscription pursuant to clause 11.1 below.

9.   EPS-365 Services.

9.1. Subscriber may request professional services from time to time and Bentley may agree to perform such services pursuant to this Agreement. The professional services requested by Subscriber and which Bentley agrees to perform shall hereinafter be referred to as “Services Offerings”. Further details regarding Services Offerings may be found in the Services Terms herein.

9.2. Some Services Offerings will have a fixed cost expressed as a given number of “Credits”. Each Credit is valid for twelve months from either the Subscription Start Date, as set forth on the EPS-365 Order Form, or a given anniversary of the Subscription Start Date, as applicable. For the sake of clarity, if one or more relevant Credits expire after delivery of a Services Offering has commenced but before it is completed, delivery shall continue for a maximum of 90 days from commencement of the Services Offering on the basis of the expired Credits, and Subscriber will not be asked to expend any additional Credits for that Services Offering. Subscriber will be allocated a number of Credits, based on Subscriber’s Annual EPS-365 Fees as set forth on the EPS-365 Order Form. For the sake of clarity, the number of allocated Credits may be zero.

10.   Governance.

10.1. Quarterly Business Review Meetings. Bentley and Subscriber shall make best efforts to meet at least once every 90 days during the term of the EPS-365 Program subscription to review program success and areas for improvement. Meeting topics include but are not limited to: a) ongoing success stream work and new areas for engagement per Subscriber’s and Bentley’s mutual goals: b) application version use, and pricing transparency and foreseeability; c) potential efficiency and cost saving improvements through use of Bentley Products; and d) organizational engagement plan.

10.2. Escalation. Either party may, by written notice to the other party, request the escalation of any issue arising: a) at a progress meeting; b) at any Quarterly Business Review or other meeting described in clause 10.1 above; or c) according to the Fee Adjustment Process set forth in clause 7.1 above. Any such escalation shall be conducted in the following manner. Subscriber’s EPS-365 Order Form shall list, in ascending order of seniority level (each an “Escalation Level”), the names and titles of authorized individuals from each party. Both parties acknowledge that substitutions of specific individuals may occur as required; provided that such substitutions are of the same level of seniority. Each party agrees to use best efforts to resolve such escalated issues at the lowest applicable Escalation Level and shall only call for further escalation: 1) upon making a determination that resolution of the issue requires the next higher Escalation Level, and 2) by written notice to the other party. For clarity, the parties agree that, notwithstanding the escalation process as described herein, the time frames as required by Section 7.1 Fee Adjustment Process shall remain in effect at all times.

11.   Term and Termination.

11.1. Term. Subscriber’s EPS-365 Program subscription shall begin on the Start Date and shall continue until the end of the Subscription Term, unless either Bentley or Subscriber terminates the EPS-365 Program subscription for convenience at any time with ninety (90) days prior written notice (the “Termination Notice”) to the other party. Prior to the start of the EPS-365 Program subscription, Bentley may extend Subscriber’s then-current Bentley subscriptions on a pro-rated basis to the end of the then-current calendar quarter.

11.2. Termination for Material Breach. Either party may, at its option, terminate this Agreement in the event of a material breach of this Agreement by the other party. Any such termination may be affected only through a written notice to the other party, specifically identifying the breach or breaches on which termination is based. Following receipt of such notice, the party in breach shall have thirty (30) 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 (jarett 1) breaches any of its obligations under Section 3 of the General Terms and Conditions. The failure of Subscriber to pay an outstanding invoice of Bentley shall always constitute a material breach of this Agreement.

11.3. 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, administration, examinership or receivership, then Bentley shall have the right to terminate this Agreement immediately by written notice.

11.4. Event of Termination. Upon the termination of this Agreement for any reason, all of the rights and licenses granted to Subscriber in this Agreement shall terminate immediately. With respect to any perpetually licensed Products, the terms and conditions set forth in the license agreement delivered with such Products shall govern Subscriber’s use of such Products. Subscriber shall immediately discontinue use of SES. In the event of a termination for convenience of Subscriber’s EPS-365 Program subscription according to Section 11.1 herein, all delivery of services towards any Services Offering shall cease immediately following the receipt by Bentley or Subscriber of a Termination Notice.

12.   Miscellaneous.

12.1. Terms are Confidential.

12.1.1. Subject to 12.1.2, Subscriber hereby acknowledges that the terms and conditions of the EPS-365 Order Form and any EPS-365 Bentley materials are confidential in nature, and Subscriber hereby agrees that neither it nor any third-party organization using EPS-365 Products in Subscriber Ecosystem shall disclose the contents of the EPS-365 Order Form or any EPS-365 Bentley materials to any other third party.

12.1.2. Bentley hereby acknowledges that disclosure by Subscriber of these EPS-365 Program Terms and the Agreement, or portions thereof, may be subject to Subscriber’s state statutes, such as open public records or freedom of information acts. The nondisclosure of these EPS-365 Program Terms and the Agreement, or portions thereof, may depend upon official or judicial determinations made pursuant to such statutes when Subscriber receives a request from a third party for the disclosure of information designated by Bentley as “confidential information.” In such cases, Subscriber shall notify Bentley within a reasonable period of the request, and Bentley shall be exclusively responsible for defending Bentley’s position concerning the confidentiality of the requested information. Neither the Subscriber nor any of its agencies is or shall be obligated to assist in Bentley’s defense. If any disclosure is subsequently made of
such information by Subscriber, disclosure shall be made consistent with such official or judicial final determination and only to the extent required under applicable law.

General Terms & Conditions

1.   Definitions.

The capitalized words, terms and phrases in these Terms shall have the meanings set forth below:

1.1. “Agreement” shall be defined as set forth in the applicable Program Terms.

1.2. “Bentley” means the Bentley Contract Entity and any legal entity controlling, controlled by, or under common control with the Bentley Contract Entity, including, without limitation any such entity created or acquired during the term hereof.

1.3. “Bentley Contract Entity” means the applicable Bentley entity set out in Article 7 of these Terms for the license of Bentley Products and services.

1.4. “Bentley Products” or “Products” means the software products, data and other materials, previously or hereafter (including software products, data and other materials acquired by Bentley during the term of an Agreement) Distributed by Bentley through delivery mechanisms determined in Bentley’s sole discretion that Bentley makes available to Subscriber typically in Object Code form only, for licensing hereunder, including Updates and Upgrades (as defined in the Support and Maintenance Terms).

1.5. “Country” means the country: (i) where the Product is first obtained from Bentley or an authorized Bentley reseller; or (ii) specified in the purchase order for which a Production Use copy of the Product may be made, or the Product is authorized to be used.

1.6. “Device” means a single personal computer, workstation, terminal, laptop, mobile device, server, or other electronic device.

1.7. “Distribute” means distribution by Bentley through all means now known or hereinafter developed.

1.8. “Documentation” means descriptive, interactive, or technical information resources pertaining to Products, or Cloud Offerings.

1.9. “Effective Date” means the date Subscriber executes an Offering Document that references the applicable Program Terms, or otherwise accepts the Offering Document in writing.

1.10. “Eligible Product” means a Bentley Product as designated on the Bentley SELECT Licensing Program Eligibility List, which can be accessed at www.bentley.com/wp-content/uploads/SELECT-Licensing-Program-Eligibility-List.pdf, absent of which a Product is ineligible for any such program or Subscription.

1.11. “External User” means any User (not an organization) who is not:

1.11.1. one of Subscriber’s full-time, part-time, or temporary employees; or

1.11.2. agency temporary personnel or an independent contractor engaged in Production Use and working under Subscriber’s supervision and control.

1.12. “Major Update” means a commercial release of a Product which has substantial added functionality over the Product it is intended to replace.

1.13. “Minor Update” means a maintenance release of a Product.

1.14. “Object Code” means the Products in a machine-readable form that is not convenient to human understanding of the program logic, and that can be executed by a computer using the appropriate operating system without compilation or interpretation. Object Code specifically excludes source code.

1.15. “Offering Document” means a written commercial offer from Bentley that may be variously referred to as a proposal, work order, statement of work, quotation or order form.

1.16. “Production Use” means use of a Bentley Product in Object Code form by a User or Device, as applicable, solely for Subscriber’s internal production purposes, and excludes External Users (except with respect to access to Server Products).

1.17. “Program Terms” means the relevant terms and conditions governing a Bentley subscription program.

1.18. “Proprietary Information” shall be defined as confidential, proprietary and technical information pertaining to Bentley Products and to Bentley’s technology and
business practices.

1.19. “Serial Number” means a unique number issued by Bentley for identification of a particular copy of a Product, which number shall be registered to Subscriber and assigned by Subscriber to a particular copy of such Product.

1.20. “Server Product” means a Product that resides on a server and provides functionality that Users access by connecting to the server using client applications or mobile applications. Such server may reside: i) on a Server Product deployed behind Subscriber’s firewall and/or within Subscriber’s network, ii) on a Server Product licensed by an external organization, or iii) by Bentley as a cloud-based service.

1.21. “Services Offering(s)” means the professional services requested by Subscriber and which Bentley agrees to perform pursuant to an Offering Document and the terms of this Agreement.

1.22. “Site” means one or more discrete geographic locations at which Subscriber Uses or manages the operation of Products within the geographic boundaries of a single Country.

1.23. “Subscriber” shall be defined as set forth on the relevant Offering Document, and with respect to the Use of Products the term “Subscriber” shall refer to: (i) one of Subscriber’s full-time, part- time, or temporary employees; or (ii) agency temporary personnel or an independent contractor engaged in Production Use and working under Subscriber’s direct supervision and control.

1.24. “Subscription Entitlement Service” or “SES” means Bentley’s cloud-based license management service or any successor Bentley tool for license administration.

1.25. “Subscription Fee” means the fee for a subscription as published from time to time in Bentley’s sole discretion.

1.26. “Subscription Term” shall be defined as set forth in the relevant Offering Document or Program Terms.

1.27. “Technical Support” means Internet and electronic mail-based support to assist a Subscriber as described in the relevant Program Terms and Support and Maintenance Terms.

1.28. “Time Clocks” means copy-protection mechanisms, or other security devices which may deactivate Products after termination or expiration of the Agreement, any applicable Subscription Term or any applicable renewal term.

1.29. “Usage Data” means such data or information as Bentley may collect relating to Subscriber’s installation, access or use of Products, Product features and functionality, Cloud Offerings (as defined in the Cloud Offering Terms, and other Bentley services, including but not limited to usage statistics that do not consist of any personally identifiable information, such as volume of use, duration of use, time of use, number of users, features used, and location of users.

1.30. “Use” (whether or not capitalized) means utilization of the Product by an individual.

1.31. “User” means an individual person.

1.32. “Virtualized Environment” means a system that provides remote access to software applications for one or more users.

2.   Payment of Bentley Invoices.

2.1. Payment Terms. Unless otherwise specified in an Offering Document, Subscriber shall pay each Bentley invoice for all Product licenses (including Product Subscription Licenses and Term Licenses) and services provided by Bentley within thirty (30) days from the date of such invoice. Interest shall accrue on past due 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 owed to Bentley is past due, Bentley, at its discretion, may suspend or, after notice of such overdue payment and a thirty (30) day period to cure, terminate Subscriber’s access and use of Products and associated services, rights, and licenses provided by Bentley.

2.2. Taxes. Subscriber shall pay to Bentley all levied taxes that Bentley is required under applicable law to collect from Subscriber, 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 applicable law to withhold or deduct taxes from any payment to Bentley, Subscriber shall furnish to Bentley official receipts evidencing Subscriber’s payment of such taxes.

2.3. Records; Audit. Subscriber shall maintain complete and accurate records of Product licenses acquired and its creation and use of Products to permit Bentley to determine whether Subscriber has complied with its licensing obligations. These records shall include the location and identification of the Subscriber hardware on which Subscriber uses each copy of the Products and identify the Users to whom Subscriber has assigned licenses. If Bentley suspects Usage Data is incomplete, inaccurate, or indicative of non-compliance with Subscriber’s granted rights, Bentley may request, and Subscriber shall, within a reasonable period of receiving Bentley’s notice, provide a written report with supporting records to meet the record keeping requirements of this Section 2.3. If the written report is not sufficient for Bentley’s requirements, Bentley may request, and 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.

3.   Intellectual Property Rights.

3.1. Title; Reservation of Rights. Subscriber acknowledges and agrees that:

3.1.1. The Products, including the Documentation for each Product, and any information about the Products which Subscriber obtains through any means of electronic transmission, contain proprietary information of Bentley, its licensors or other suppliers, and are protected under United States copyright laws, other applicable copyright laws, other laws relating to the protection of intellectual property, and international treaty provisions;

3.1.2. The entire right, title, and interest in and to the Products, the Documentation, any information Subscriber obtains through any means of electronic transmission, and all associated intellectual property rights, shall remain with Bentley or its licensors;

3.1.3. 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

3.1.4. Bentley retains all rights not expressly granted.

3.2. Source Code. Subscriber shall have no right hereunder to receive, review, use or otherwise have access to the source code for the Products.

3.3. Copyright Notices. Subscriber shall reproduce and include on all copies of the Products created by Subscriber all copyright notices and proprietary legends of Bentley or its licensors as they appear in or on the original media containing the Products supplied by Bentley.

3.4. Usage Data. Subscriber agrees and acknowledges that Bentley will from time-to-time collect Usage Data and that all Usage Data shall be owned by Bentley and deemed Bentley Proprietary Information. Subscriber agrees not to alter or interfere with the collection by Bentley of accurate Usage Data.

3.5. Documentation. Bentley may, in association with Products or Cloud Offerings, make certain Documentation available to Subscriber. Documentation is Bentley Proprietary Information. Bentley hereby grants to Subscriber a limited non- transferable non-exclusive license to use such Documentation in support of Production Use.

3.6. Reverse Engineering. Subscriber may not decode, reverse engineer, reverse assemble, reverse compile, or otherwise translate the Products or Documentation 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 law 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.

3.7. Proprietary Information.

3.7.1. Subscriber understands and agrees that Bentley may, in connection with the provision of Products and services, disclose to Subscriber Proprietary Information. Subscriber agrees to treat all Proprietary Information in accordance with this Section 3.7.

3.7.2. Subscriber shall maintain the confidentiality of all Proprietary Information. Subscriber shall not reproduce or copy Proprietary Information except as permitted in the 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.

3.7.3. Subscriber shall only use Proprietary Information in furtherance of the Agreement and may disclose Proprietary Information only to those employees required to have knowledge of same to perform their duties pursuant to the Agreement. Subscriber shall not disclose or make Proprietary Information available to any third party at any time.

3.7.4. Subscriber shall treat Proprietary Information with the same degree of care as it uses to protect its own confidential information, and in no case less than a reasonable degree of care.

3.7.5. Upon the termination or non-renewal of the Agreement, Subscriber shall return to Bentley or, if so requested, destroy all Proprietary Information in its possession.

3.7.6. 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 the 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.

3.7.7. Subscriber shall promptly inform Bentley upon knowledge of any actual or potential unauthorized use or disclosure of the Proprietary Information.

3.7.8. Bentley hereby acknowledges that disclosure by Subscriber of the Agreement, or portions thereof, may be subject to Subscriber’s state statutes, such as open public records or freedom of information acts. The nondisclosure of the Agreement, or portions thereof, may depend upon official or judicial determinations made pursuant to such statutes when Subscriber receives a request from a third party for the disclosure of information designated by Bentley as “confidential
information.”

3.7.9. In such cases, Subscriber shall notify Bentley within a reasonable period of the request, and Bentley shall be exclusively responsible for defending Bentley’s position concerning the confidentiality of the requested information. Neither the Subscriber nor any of its agencies is or shall be obligated to assist in Bentley’s defense. If any disclosure is subsequently made of such information by Subscriber, disclosure shall be made consistent with such official or judicial final determination and only to the extent required under applicable law.

3.8. 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 written consent to do so.

4.   Use of Bentley Products in a Virtualized Environment.

4.1. Subscriber may use Bentley Products for Production Use only on a multi-user computer network in a Virtualized Environment subject to the conditions set forth below in this Section 4.

4.2. Subscriber acknowledges that Bentley Products are presently not certified for use in all Virtualized Environments and that Subscriber is solely responsible for testing and supporting Bentley Products for operation in a non-certified Virtualized Environment.

4.3. Subscriber hereby agrees to utilize SES to allow for accurate monitoring of Use of Bentley Products within the Virtualized Environment such that each session started within the Virtualized Environment requires its own unique license.

4.4. Certified Virtualized Environments.

4.4.1. Further information, including a list of Bentley certified Virtualized Environments, and updates to Bentley’s policy may be found at https://aka.bentley.com/VirtualizedEnvironments (“VE Wiki”).

4.4.2. Bentley Products used in a Virtualized Environment that have not been certified by Bentley and listed on the VE Wiki shall be excluded from the warranties set forth herein.

4.4.3. Bentley will not provide Subscriber with technical support services for problems, errors or other operating difficulties caused by or related to Subscriber’s use of Bentley Products in a Virtualized Environment that has not been certified by Bentley and listed on the VE Wiki.

4.5. For the sake of clarity, Subscriber’s right to use Bentley Products in a Virtualized Environment shall terminate in the event of any termination or non-renewal of the Agreement, notwithstanding that such products are licensed on a perpetual basis.

5.   Limited Warranty; Limitation of Remedies and Liability.

5.1. Limited Warranty to Subscriber. Except for Products licensed on a no fee basis, which are provided to Subscriber “AS-IS” and without warranty of any kind, Bentley hereby warrants for the benefit only of Subscriber that (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 may be, the Product shall, under normal use, operate in substantial conformance with the functional specifications set forth in the Documentation applicable to such Product, and (b) for a period of ninety (90) days from the date of delivery, other products and materials furnished by Bentley 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 made by Subscriber or at Subscriber’s direction to the Products; if the Products are reverse- engineered, decompiled or disassembled; or if Subscriber breaches the terms of the 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 state/jurisdiction.

5.2. Exclusion of Warranties. THE WARRANTIES STATED IN SECTION 5.1 ABOVE ARE BENTLEY’S SOLE AND EXCLUSIVE WARRANTIES PERTAINING TO THE PRODUCTS, TECHNICAL SUPPORT SERVICES AND OTHER MATERIALS AND SERVICES LICENSED, DELIVERED OR OTHERWISE FURNISHED BY BENTLEY. BENTLEY DOES NOT WARRANT THAT THE PRODUCTS, TECHNICAL SUPPORT SERVICES, OR ANY OTHER SERVICE OR MATERIALS WILL MEET SUBSCRIBER’S REQUIREMENTS, BE FREE FROM VIRUSES OR OPERATE UNINTERRUPTED OR ERROR FREE. BENTLEY HEREBY 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/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES.

5.3. Exclusive Remedy. The entire liability of Bentley and the sole and exclusive remedy of Subscriber for Product claims under Section 5.1 above shall be, in Bentley’s sole and absolute discretion, (i) to repair or replace a Product or other materials in breach of the foregoing warranties, (ii) to advise Subscriber how to achieve the same functionality with the Product as described in the Documentation through a procedure different from that set forth in the Documentation, or (iii) to return the purchase price or fees paid therefore, where written notice of such breach, specifying the defect, is furnished to Bentley during the Warranty Period. Repaired, corrected, or replaced Products and Documentation 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 Documentation, or (b) Bentley advised Subscriber how to operate the Products to achieve the functionality described in the Documentation.

5.4. Exclusion of Damages. IN NO EVENT SHALL BENTLEY OR ITS LICENSORS AND SUPPLIERS BE LIABLE TO SUBSCRIBER FOR ANY LOST PROFITS, LOSS OF REVENUE, LOSS OF GOODWILL, DAMAGE TO REPUTATION, INTERRUPTION OF BUSINESS, COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION, COSTS OF DELAY, OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING WITHOUT LIMITATION LOSS OF USE, INABILITY TO ACCESS ONLINE SERVICES OR ANY FAILURE OR DELIVERY 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.

5.5. Disclaimer. Subscriber acknowledges that the Products are not fault- tolerant and have not been designed, manufactured or intended for use and will not be used in the development of weapons of mass destruction, as on-line control equipment in hazardous environments requiring fail-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 meant to be substitutes for Subscriber’s independent testing and verification of stress, safety, utility or other design parameters.

5.6. Limitation of Bentley Liability. IN THE EVENT THAT, NOTWITHSTANDING SECTIONS 5.1, 5.2, 5.3, 5.4 AND 5.5 HEREIN, BENTLEY IS FOUND LIABLE FOR DAMAGES BASED ON ANY BREACH, DEFECT, DEFICIENCY OR NON-CONFORMITY IN A PRODUCT, IN 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 ITS ESSENTIAL PURPOSE BY LAW, BENTLEY’S CUMULATIVE LIABILITY HEREUNDER SHALL NOT EXCEED THE PRICE PAID BY SUBSCRIBER FOR (i) SUCH PRODUCT, (ii) PRODUCT SUBSCRIPTION FEES FOR THE TWELVE (12) MONTHS PRECEDING AN APPLICABLE CLAIM WITH RESPECT TO A PRODUCT SUBSCRIPTION LICENSE, (iii) PROGRAM SUBSCRIPTION FEES FOR THE TWELVE (12) MONTHS PRECEDING AN APPLICABLE CLAIM WITH RESPECT TO THE RELEVANT BENTLEY COMMERCIAL SUBSCRIPTION PROGRAM, OR (iv) SUCH OTHER DEFECTIVE SERVICE OR MATERIALS, AS THE CASE MAY BE. THE PROVISIONS OF THE AGREEMENT ALLOCATE THE RISKS BETWEEN BENTLEY AND SUBSCRIBER. BENTLEY’S PRICING REFLECTS THIS ALLOCATION OF RISK AND THE LIMITATION OF LIABILITY SPECIFIED HEREIN.

5.7. Indemnification by Bentley.

5.7.1. Bentley shall pay any damages finally awarded against Subscriber based on a claim against Subscriber that a Product which is developed and owned by Bentley infringes a third party’s copyright under the laws of a Berne Convention signatory country, or results in a misappropriation of a third party’s trade secret, in the Country where Subscriber has been authorized to place the Product subject to such claim into Production Use, if Subscriber provides to Bentley: (a) prompt written notice of any such claim, (b) all available information and assistance, and (c) the opportunity to exercise sole control of the defense and settlement of any such claim.

5.7.2. Bentley shall also have the right, at its expense, either to procure the right for Subscriber to continue to use the Product or to replace or modify such Product so that it becomes non- infringing. If neither of the foregoing alternatives is available on terms that Bentley, in its sole discretion, deems desirable, Subscriber shall, upon written request from Bentley, return to Bentley the allegedly infringing Product, in which event Bentley shall refund to Subscriber the price paid by Subscriber for each copy of such returned Product, less twenty percent (20%) for each elapsed year since the commencement of the license for such copy. In no event shall Bentley’s liability under this sub-section (5.7.2) to Subscriber exceed the license fees paid by Subscriber for the allegedly infringing Product.

5.7.3. Bentley shall have no liability and this indemnity shall not apply if the alleged infringement is contained in a Product which is not developed or owned by Bentley or is due to modification of the Product by Subscriber or the combination, operation or use of a Product with other software that does not originate from Bentley or if Subscriber is in breach of the Agreement. Bentley shall also have no liability, and this indemnity shall not apply, for the portion of any claim of infringement based on use of a superseded or altered release of a Product if the infringement would have been avoided using a current, unaltered release of the Product.

This Section 5.7 sets forth Subscriber’s sole remedy for intellectual property infringement.

5.8. Anti-Virus Software. Bentley shall use commercially available, up-to-date virus checking software and procedures on all Products before they are made available to Subscriber.

6.   Sanctions and Export Controls.

The software is subject to U.S. sanctions and export control laws, regulations, and requirements in addition to sanctions and export control laws, regulations and requirements of other agencies or authorities based outside of the United States (collectively referred to as “Sanctions and Export Controls”). Regardless of any disclosure made by Subscriber to Bentley of an ultimate destination of the software, Subscriber must not export, re- export or transfer, whether directly or  indirectly, the software, or any portion thereof, or any system containing such software or portion thereof to anyone, without first complying strictly and fully with all Sanctions and Export Controls that may be imposed on the software and/or the export, re-export or transfer, direct or indirect, of the software and transactions related thereto. The entities, end users and countries subject to restriction by action of the United States Government or any other governmental agency or authority outside of the United States, are subject to change, and it is Subscriber’s responsibility to comply with the applicable Sanctions and Export Controls, 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 6.

7.   Bentley Entity, Governing Law, Dispute Resolution and Notices.

Depending on where Subscriber’s principal place of business is (or if Subscriber is an individual, where the Subscriber is resident), the Agreement is between Subscriber and the Bentley entity set out below. The Agreement will be governed by and construed in accordance with the substantive laws in force in the respective country specified in the below table. 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 the provisions of the Uniform Computer Information Transactions Act, as they may have been or hereafter may be in effect in any jurisdiction, shall not apply to the Agreement. Any dispute, controversy or claim between the parties arising under the Agreement shall be resolved pursuant to the applicable dispute resolution provision set out below. Notices under this Agreement shall be made or given by hand delivery, prepaid certified mail, next day air delivery, or electronically, and the date upon which any such notice is received at the designated address shall be deemed to be the date of such notice. All notices sent under the Agreement shall be addressed, if to Bentley, to the attention of the Bentley Legal Department and addressed to the applicable Bentley entity according to the below table or via email to Contracts@Bentley.com, and if to Subscriber, to the (e-mail) address and authorized representative identified in writing to Bentley.

8.   Miscellaneous.