VIRTUOSITY USER AGREEMENT
This Virtuosity User Agreement (together with the End User License Agreement (“EULA”), the “Agreement”) is made as of the Effective Date by and between Bentley Systems International Limited, a private limited company incorporated under the laws of Ireland with its registered office at Second Floor, Block 2, Park Place, Upper Hatch Street, Dublin 2, Ireland, dba Virtuosity, Inc. PO Box 572, 2600 An Delft, The Netherlands, and you the subscriber (“Subscriber”).
Virtuosity PROVIDES THE SOFTWARE AND SERVICES SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND THE END USER LICENSE AGREEMENT. THE TERMS AND CONDITIONS OF THE EULA ARE INCORPORATED HEREIN AND APPLY TO THE LICENSING OF SOFTWARE AND ALL SERVICES PROVIDED UNDER THIS PRACTITIONER SUBSCRIPTION. BY CLICKING THE “ACCEPT” BUTTON BELOW, AND/OR BY DOWNLOADING, INSTALLING OR OTHERWISE USING THE SOFTWARE, SUBSCRIBER (A) ACCEPTS THIS AGREEMENT AND AGREES THAT SUBSCRIBER IS LEGALLY BOUND BY ITS TERMS; AND (B) REPRESENTS AND WARRANTS THAT: (I) IF AN INDIVIDUAL, SUBSCRIBER IS 18 YEARS OF AGE OR OLDER; AND (II) SUBSCRIBER HAS THE RIGHT, POWER AND AUTHORITY TO ENTER INTO THIS AGREEMENT AND BIND SUBSCRIBER TO ITS TERMS.
1. Practitioner Licenses.
1.01. A Practitioner License is a software Subscription granting rights and benefits to a specific named User of a Virtuosity Product. The Subscription Term for a Practitioner License is the twelve-month term (the “Term”) starting upon acceptance of the Agreement and payment in full. The license will expire at the end of the Term. Virtuosity may notify you prior to the expiration of the Term, but it is your responsibility to purchase your new Practitioner License in a timely manner to ensure that there is no interruption of use of the software.
1.02. Subscriber shall pay to Virtuosity Subscription Fees for each Practitioner License purchased.
2. Virtuosity Technical Support.
2.01. Virtuosity may provide Technical Support services to Subscriber, which includes telephone, facsimile, electronic mail, and Internet based support to assist Subscriber regarding the use of Virtuosity Products and reasonable efforts to respond to technical inquiries within four hours during regular business hours as set forth on the Virtuosity website.
3. Virtuosity Expert Services.
3.01. Expert Services can be ordered exclusively through the Virtuosity online webstore. Expert services include Virtuosity Training, Mentoring, Fit-for-purpose courses and Analysis projects.
3.02. Expert Services may be purchased through the webstore with Virtuosity redeemable tokens (“Keys”). Each Key is an electronic token that is valid for 12 months from the date of purchase which shall expire at the end of the 12 month term without any right to reimbursement for unused Keys. Additional Keys may be purchased through the Virtuosity webstore. Keys are redeemed on a first-purchased first-used basis such that when a Subscriber purchases Expert Services the Subscribers oldest Keys will be redeemed first.
GENERAL TERMS AND CONDITIONS
4. Payment Terms.
4.01. The Subscriber must pay Virtuosity all fees set forth in the webstore order form without set off, delay, or chargeback using the payment methods identified in the webstore. All fees are in Euros (EUR) unless specified otherwise and must be paid prior to receiving access to Virtuosity software and services.
4.02. If any payment has not been made in accordance with this agreement, Virtuosity may, at its absolute discretion, immediately cease providing the software and services.
4.03. All prices are exclusive of Value Added Tax (VAT) and/or any other levies or taxes imposed.
5. Proprietary Information.
5.01. Subscriber understands and agrees that Virtuosity may, in connection with the provision of Virtuosity Products, Technical Support and Expert Services hereunder, disclose to Subscriber confidential, proprietary and technical information pertaining to Virtuosity Products and to Virtuosity’s technology and business practices (collectively “Proprietary Information”). Subscriber agrees to treat all Proprietary Information in accordance with this Section 5.
5.02. Subscriber shall maintain the confidentiality of all Proprietary Information. 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 Virtuosity. All such copies shall be marked by Subscriber as proprietary and confidential information.
5.03. Subscriber shall only use Proprietary Information in furtherance of this Agreement and may disclose Proprietary Information only to those employees required to have knowledge of same to perform their duties pursuant to this Agreement. Subscriber shall not disclose or make Proprietary Information available to any third party at any time.
5.04. 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.
5.05. Upon the termination or non-renewal of this Agreement, Subscriber shall return to Virtuosity or, if so requested, destroy all Proprietary Information in its possession.
5.06. 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. 5.07. Subscriber shall promptly inform Virtuosity upon knowledge of any actual or potential unauthorized use or disclosure of the Proprietary Information.
6. 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 Virtuosity’s written consent to do so.
7. Term; Termination
7.01. Term. This Agreement and Subscriber’s access to purchased Virtuosity software shall become effective on the Effective Date, and shall continue for a term of twelve (12) months. (proposed language: Term. This EULA shall be effective as of the earlier of the date Subscriber first has access to the Services or the date this Agreement is accepted by Customer.)
7.02. Termination for Material Breach. Either party may, at its option, terminate this Agreement in the event of a material breach of this Agreement by the other party. Any such termination may be effected only through a written notice to the other party, specifically identifying the breach or breaches on which termination is based. Following receipt of such notice, the party in 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, Virtuosity shall have the right to terminate this Agreement immediately if Subscriber breaches any of its obligations under Section 3. The failure of Subscriber to pay an outstanding invoice of Virtuosity shall always constitute a material breach of this Agreement.
7.03. 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.
8.01. Assignment. Subscriber shall not assign this Agreement or delegate its duties hereunder without prior written consent by Virtuosity. This Agreement may be assigned by Virtuosity to any successor in interest to Virtuosity’s business or to any direct or indirect wholly-owned subsidiary of Bentley Systems, Incorporated. Any purported assignment in violation of this provision shall be void and without effect.
8.02. Entire Agreement. This Agreement represents the entire agreement of the parties and supersede and merge all prior oral and written agreements, discussions and understandings between the parties with respect to the subject matter hereof. The terms and conditions of this Agreement and of the applicable Virtuosity confirmation shall apply to each order accepted or shipped by Virtuosity hereunder. Any additional or different terms or conditions appearing on a purchase order issued by Subscriber hereunder, even if Virtuosity acknowledges such terms and conditions, shall not be binding on the parties unless both parties expressly agree in a separate writing as provided under Section 8.03 of this Exhibit B.
8.03. Notices. Notices under this Agreement shall be made or given as of the date of either hand delivery or mailing to such party, if sent prepaid certified mail or next day air delivery to the address set forth on the first page of this Agreement. All notices under this Agreement shall be addressed, if to Virtuosity, to its General Counsel, and if to Subscriber, to its authorized representative identified in this Agreement or in a subsequent notice to Virtuosity.
8.04. Force Majeure. Virtuosity shall not be liable for failure to fulfill the terms of this Agreement due to fire, strike, war, government regulations, acts of God, labor disturbances, acts of terrorism or other causes which are unavoidable and beyond its control.
8.05. Waiver. The failure of either party to insist upon any of its rights under this Agreement upon one or more occasions, or to exercise any of its rights, shall not be deemed a waiver of such rights on any subsequent occasions.
8.06. 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 and 6) shall be enforceable notwithstanding said expiration or termination.
8.07. Severability. The provisions of this Agreement shall be severable and the invalidity or unenforceability of any one provision shall not affect any other unless otherwise noted.
8.08. Governing Law. If you are located outside the geographic boundaries of the United States or Canada, this EULA will be governed by and construed in accordance with the substantive laws in force in Ireland, and the courts located in Ireland shall have exclusive jurisdiction over all disputes relating to this Agreement. If you are located within the geographic boundaries of the United States or Canada, this EULA will be governed by and construed in accordance with the substantive laws in force in the Commonwealth of Pennsylvania, and the state courts located in Chester County, Pennsylvania and the federal courts located in Philadelphia, Pennsylvania shall have exclusive jurisdiction over all disputes relating to this Agreement. 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 this Agreement.
8.09. Independent Contractor. Virtuosity’s relationship with Subscriber for all purposes hereunder shall be that of an independent contractor and nothing herein shall be construed as creating, at any time, an employer and employee relationship between the parties.
8.10. Headings. The headings in this Agreement are intended solely for convenience of reference and shall not affect the meaning or interpretation of this Agreement.
The capitalized words, terms and phrases in this Agreement shall have the meanings set forth below:
9.01. “Virtuosity Products” or “Products” mean the software products, data and other materials, previously or hereafter (including software products, data and other materials acquired by Virtuosity during the term of this Agreement) distributed by Virtuosity through delivery mechanisms determined in Virtuosity’s sole discretion (including but not limited to distribution via Online [Virtuosity Program name placeholder] through download that Virtuosity makes available to Subscriber typically in Object Code form only, for licensing hereunder, including Updates and Upgrades thereto.
9.02. “Country” means the country: (i) where the Product is first obtained from Virtuosity; 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.
9.03. “Distribute” means distribution by Virtuosity through all means now known or hereinafter developed.
9.04. “Documentation” means descriptive, interactive or technical information resources pertaining to Products, Passports, or Cloud Offerings.
9.05. “Effective Date” means the date that this Agreement is accepted by Virtuosity as indicated on the first page of this Agreement.
9.06. “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.
9.07. “Production Use” means use of a Virtuosity Product in Object Code form by a User solely for Subscriber’s internal production purposes, and excludes External Users (except with respect to use of Passports and access of Server Products pursuant to Exhibit A, Section 6.02 herein).
9.08. “Proprietary Information” shall be defined as set forth in Exhibit B, Section 3.06(a) herein.
9.09. “[Virtuosity Program name placeholder] Program Fee” means the fee for [Virtuosity Program name placeholder] Program services as published from time to time in Virtuosity’s sole discretion.
9.10. “Subscriber” shall be defined as set forth on the front page of this Agreement, and with respect to Use of Products the term “Subscriber” shall refer to: (i) one of Subscriber’s full-time, part-time, or temporary employees; or (ii) agency temporary personnel or an independent contractor engaged in Production Use and working under Subscriber’s direct supervision and control.
9.11. “Subscription Fee” means the fee for a Subscription as published from time to time in Virtuosity’s sole discretion.
9.12. “Subscription Term” shall be defined as set forth in Exhibit A, Section 6 herein.
9.13. “Technical Support” means telephone, facsimile, Internet and electronic mail based support to assist a subscriber to the [Virtuosity Program name placeholder] Program as described in Exhibit A, Section 2.02 of this Agreement.
9.14. “Update” means a maintenance release of a Product.
9.15. “Upgrade” means a commercial release of a Product which has substantial added functionality over the Product it is intended to replace.
9.16. “Use” (whether or not capitalized) means utilization of the Virtuosity Product by an individual.
9.17. “User” means an individual person.
9.18. “Webstore” means the electronic commerce elements of the Virtuosity site on the World Wide Web enabling purchase of Virtuosity Product licenses and Keys.
EULA for Bentley software
IMPORTANT – READ CAREFULLY: This End-User License Agreement (“EULA”) is a legal agreement between you (either an individual or a single entity) and Bentley Systems International Limited, if you are located outside of the geographic boundaries of the United States or Canada, or Bentley Systems, Incorporated if you are located within the geographic boundaries of the United States or Canada (“Bentley”), for the Bentley software and associated online or electronic documentation that accompanies this EULA, which includes the associated media and Bentley internet based services (hereinafter referred to as “Software” which reference includes “Test Software” defined in the next paragraph). If you are an entity or person (“Evaluator”) using Software or certain features of Software distributed to you for testing and evaluation purposes (“Test Software”), license rights and obligations with respect to such Evaluator use are set forth in Article 3 of this EULA. To the extent there is a conflict between Article 3, and either Articles 1 or 2 of this EULA with respect to your use of Test Software, Article 3 shall take priority.
YOU AGREE TO BE BOUND BY THE TERMS OF THIS EULA BY DOWNLOADING, INSTALLING, COPYING, OR OTHERWISE ACCESSING OR USING THE SOFTWARE. YOUR ACCEPTANCE OF ALL OF THE TERMS AND CONDITIONS OF THIS EULA IS A CONDITION TO THE GRANT OF LICENSE BELOW. THIS EULA, AS MAY BE MODIFIED BY ANY APPLICABLE SIGNED WRITTEN AGREEMENT BETWEEN YOU AND BENTLEY, REPRESENTS THE ENTIRE SET OF TERMS AND CONDITIONS GOVERNING YOUR USE OF THE SOFTWARE AND SUPERSEDES ALL PRIOR OR CONTEMPORANEOUS ORAL OR WRITTEN COMMUNICATIONS, PROPOSALS AND PRESENTATIONS WITH RESPECT TO THE SOFTWARE OR THE SUBJECT MATTER OF THE EULA.
If this agreement is translated into a language other than English and there is a conflict of terms between the English and the other language, the English version will control. You should keep a copy of this EULA for your records. The latest version of this EULA appears in its entirety on http://www.bentley.com/legal/eula_en.txt. Bentley may update or amend the EULA at any time without notice to you; however, the form of EULA in effect at the time of the Software acquisition will apply.
Article 1: Terms and Conditions
- CERTAIN DEFINITIONS.
1.1. “Academic Related Use” means the use of designated Software in object code form solely for the internal classroom instruction or research of your teaching staff and/or students matriculated in a degree program and not to include student use in a paid employment setting or any other use prohibited under this EULA.
1.2. “Academic Software” means Software that is identified as “Academic Edition” or “Academic License” (or words of similar meaning).
1.3. “CAL” means client access license.
1.4. “Device” means a single personal computer, workstation, terminal, hand held computer, pager, telephone, personal digital assistant, Server or other electronic device used by a User.
1.5. “External User” means any individual (not an organization) who is not: (i) one of your full-time, part-time or temporary employees; or (ii) agency temporary personnel or an independent contractor on assignment at your place of business or work-site.
1.6. “License Key” means the document furnished to you by Bentley in electronic or such other format, as determined in Bentley’s sole discretion, that identifies the Software licensed and authorizes use of the Software.
1.7. “Production Use” means use of the Software in object code form by a single User or a Device, as applicable, solely for internal production purposes in support of one Site.
1.8. “Site” means the discrete geographic location where you first install or use the Software.
1.9. “Time Clocks” means any time clocks, copy-protection mechanisms, or other security devices embedded in the Software which may deactivate the Software after expiration of any applicable subscription or termed license period.
1.10. “User” or “Evaluator” means any individual or entity that is not an External User.
- GRANT OF LICENSE. As and for so long as you comply with all of the terms of this EULA, Bentley grants you the non-exclusive right to (a) install and use one copy of the Software for Production Use in the country where the Software is first obtained and (b) use the documentation that accompanies the Software for internal, non-commercial reference purposes only.
- RESERVED RIGHTS. You acknowledge and agree that the Software is a proprietary product of Bentley or its suppliers, distributors and unrelated third parties ("Suppliers") protected by copyright and other applicable intellectual property laws and treaty provisions. You further acknowledge and agree that the entire right, title and interest in and to the Software including associated intellectual property rights, shall remain with Bentley or its Suppliers. This license grant may be made by Bentley on behalf of Suppliers as third party beneficiaries of the license rights provided herein. Bentley retains all rights not expressly granted to you in this EULA. THE SOFTWARE IS LICENSED NOT SOLD.
- REGISTRATION. You acknowledge that registration or activation may be required in order for you to utilize the full benefits of the Software.
- NO RENTAL OR COMMERCIAL HOSTING. Software is licensed for Production Use only. You may not rent, lease, lend or provide commercial hosting services with the Software. You may also not use the Software to provide fee or transaction based services. Contact Bentley for the availability of alternate pricing if you desire to use the Software in such fashion.
- NO "MULTIPLEXING" OR POOLING. Use of software or hardware that reduces the number of electronic devices directly monitored or managed by the Software or directly accessing or utilizing the Software (sometimes called "multiplexing" or "pooling" software or hardware) does not reduce the number of licenses required; the number of licenses required would equal the number of distinct inputs to the multiplexing or pooling hardware/software "front end."
- LIMITATIONS ON REVERSE ENGINEERING. You may not decode, reverse engineer, reverse assemble, reverse compile, or otherwise translate the Software except only to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation. To the extent that you are expressly permitted by law to undertake any of the activities listed in the previous sentence, you will not exercise those rights until you have provided Bentley with thirty (30) days prior written notice of your intent to exercise such rights.
- DATA CAPTURE AND USE. You agree that Bentley may collect and utilize technical information gathered as part of Software support services that may be provided to you. Data capture in this form will only be used to improve Bentley’s products and/or provide customized services to you and will not be disclosed or disseminated to third parties except in an aggregated form.
- ARCHIVAL OR BACKUP COPY. You may make a reasonable number of backup copies of the Software, provided your backup copies are not installed or used for other than archival purposes.
- RESTRICTIONS ON CERTAIN SOFTWARE. Software identified as demo, evaluation, BDN, Beta, Technology Preview or “NFR” (or “Not for Resale” or with words of similar meaning) may not be sold, bartered or otherwise transferred. Such Software may not be used for any purpose other than your testing or evaluation unless specified otherwise pursuant to a separate agreement signed by both you and Bentley.
- ACADEMIC SOFTWARE. For Academic Software, Bentley hereby grants you a non-exclusive right and license to use in object code form such Academic Software for Academic Related Use only. You may not sell, barter or otherwise transfer Academic Software. Special Note Applicable to Academic Software: If you have covered the Academic Software subject to this EULA pursuant to a valid Bentley Academic SELECT Program Agreement (or predecessor or successor agreement) with Bentley then you may be entitled to additional and incremental licensing benefits to those set forth in this EULA by virtue of that relationship. In the event that Academic Software is no longer covered by a valid Bentley Academic SELECT Program Agreement (or predecessor or successor agreement) due to termination of such agreement or any other reason, then you will lose those incremental benefits, and your license rights will only be as set forth in this EULA.
- TIME CLOCKS. Bentley’s default licensing term is perpetual unless otherwise specifically identified for the Software licensed. If you have licensed the Software subject to this EULA for a term shorter than a perpetual license, you acknowledge that the Software may be delivered to you with embedded Time Clocks. You agree that Time Clocks are not considered a defect of the Software and you release Bentley from any and all claims, however characterized, arising from or related to Time Clocks or their operation.
- TRANSFER. Internal. You may transfer the Software and the EULA to a different Device at the same Site, provided you completely remove the Software from all prior Devices. You may also make a one-time transfer of a CAL to another of your Users or Devices located at the same Site. In order to accomplish these transfers you may need to contact Bentley. External. You may not transfer the Software and license granted under this EULA, or a CAL, to a third party without Bentley's prior written consent. If such consent is obtained, you may permanently transfer the Software and the license granted under this EULA, or the CAL, provided you transfer the Software and all and media to such third party, and you do not retain any copies. The recipient of such transfer must agree to all terms and conditions of the EULA. Any purported sublicense, assignment, transfer or encumbrance is void without Bentley's prior consent.
- UPGRADES. You may not use any Software identified as an upgrade unless you are properly licensed to use Software which Bentley has identified as being eligible for an upgrade. After installing an upgrade, you may use the original Software product that was eligible for an upgrade provided that at any one time you use only the upgraded Software or the prior Software version subject to the upgrade.
- NO EXTENSION OF CAPABILITIES. You may develop your own applications that interoperate or integrate with the Software. Bentley prices its Software, among other factors, based on capabilities that we expose to you. You may not extend the Software to enable or unlock capabilities of the Software not specifically identified by Bentley as forming part of the specified end user functionality.
- SEPARATION OF COMPONENTS. The Software is licensed as a single product. Component parts of the Software may not be separated and installed or used on multiple Devices.
- TERMINATION. If you breach the terms and conditions of this EULA, Bentley may terminate this EULA without prejudicing any of its other rights. In such event you must destroy and remove all copies of the Software from your Device(s). Sections 1, 3, 13, 20, 21, 23, 25, 26, 27, 28 and 29 specifically survive termination.
- NO AUTOMATED USE. A license for the Software may not be shared or used concurrently on different Devices, nor shared or used to support multiple User or operational requests as indicated above. As a result, you may not use the Software in an automated, unattended, non-interactive server application or component (including ASP) where: (i) multiple User requests from different Users are queued for processing; or (ii) multiple requests from one User are queued for processing but acting against content created or edited by other Users. Examples which would violate this Section 18 include but are not limited to use as a plot server, file translator, print server or other applications using or employing similar methods.
- LIMITED WARRANTY. Except for Software which is identified as no-charge, free, demo, evaluation, BDN, Beta, Technology Preview, or NFR, which is provided to you “AS-IS” and specifically without warranty of any kind, for sixty (60) days from the date of first installation (the "Warranty Period"), Bentley warrants that (i) the Software will perform substantially in accordance with the functional specifications in the documentation which accompanies the Software; and (ii) the media on which the Software is distributed meets generally accepted industry standards. It is understood that neither Bentley nor its Suppliers are responsible for your use of the Software or the results from such use. It is further understood that there may be errors or omissions in the information contained in the Software, that the information contained in the Software may not be current or complete and that defects in hardware or software may prevent you from gaining access to the Software. This limited warranty is offered by Bentley alone, and is not extended to any software code that may be contributed to the Software by our Suppliers. Any supplements or updates to the Software (including but not limited to fixes, work in progress builds, or subsequent updates) provided to you after the expiration of the Limited Warranty period above are not covered by any warranty or condition, express, implied or statutory.
- DISCLAIMER. THE FOREGOING LIMITED WARRANTY STATES THE SOLE AND EXCLUSIVE REMEDIES FOR BENTLEY’S OR ITS SUPPLIER’S BREACH OF WARRANTY. EXCEPT FOR THE LIMITED WARRANTY AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, BENTLEY AND ITS SUPPLIERS PROVIDE THE SOFTWARE AS IS AND WITH ALL FAULTS, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW IN YOUR JURISDICTION, BENTLEY AND ITS SUPPLIERS DISCLAIM ANY AND ALL OTHER WARRANTIES, FOR ITSELF AND FOR ALL SUPPLIERS, EITHER STATUTORY, EXPRESSED OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF GOOD TITLE, WARRANTIES AGAINST INFRINGEMENT, AND THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THIS LIMITED WARRANTY GIVES YOU SPECIFIC RIGHTS; YOU MAY HAVE OTHER RIGHTS, WHICH VARY AMONG JURISDICTIONS.
- HIGH RISK ACTIVITIES. The Software is not fault tolerant and is not designed, manufactured or intended for use or resale as 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 Software could lead directly to death, personal injury, or severe physical or environmental damage ("High Risk Activities"). Accordingly, Bentley and its Suppliers specifically disclaim any express or implied warranty of fitness for High Risk Activities.
- END USER REMEDIES. If a defect in the Software appears that constitutes a breach of the above Limited Warranty, Bentley shall, at its sole option, repair the Software, refund the price you paid for the Software or replace the defective item(s), provided that: (i) you notify Bentley of the defect during the Warranty Period; (ii) the Software is not modified, changed, or altered by anyone other than Bentley, unless authorized by Bentley in writing; (iii) your computer equipment is in good operating order and the Software is installed in an officially supported environment; and (iv) the non-conformity is not caused by a third party or by you, your agents, employees or contractors. Repaired, corrected, or replaced Software shall be covered by this limited warranty for the period remaining under the warranty covered by the original Software, or if longer, for thirty (30) days after the date: (a) of installation by you of the repaired or replaced Software, or (b) Bentley advised you how to operate the Software so as to achieve the functionality described in the documentation. YOU AGREE THAT THE FOREGOING CONSTITUTES YOUR SOLE AND EXCLUSIVE REMEDY FOR BREACH BY BENTLEY OF THE LIMITED WARRANTY MADE IN THIS EULA.
- LIMITATION OF LIABILITY. Regardless of whether any remedy set forth herein fails of its essential purpose by law, in no event will Bentley or its Suppliers be liable for indirect, special, incidental, economic or consequential damages, regardless of the nature of the claim, including without limitation lost profits, costs of delay, interruption of business, loss of use, costs of lost or damaged data or documentation or liabilities to third parties arising from any source, even if Bentley has been advised of the possibility of such damages. In no event shall the liability of Bentley or its Suppliers exceed the amount paid by you (in the currency used to purchase) for the Software. Some jurisdictions do not allow the exclusion or limitation of implied warranties or limitation of liability for incidental or consequential damages, so the above limitation or exclusion may not apply to you. THE PROVISIONS OF THIS EULA ALLOCATE THE RISKS BETWEEN BENTLEY AND YOU. BENTLEY’S PRICING REFLECTS THIS ALLOCATION OF RISK AND THE LIMITATION OF LIABILITY SPECIFIED HEREIN.
- STATUTORY CONSUMER RIGHTS. Nothing in this EULA is meant to contravene statutory rights that consumers may have pursuant to local law.
- EXPORT CONTROLS. The Software is subject to U.S. export control laws, regulations and requirements, in addition to export control laws, regulations and requirements of other agencies or authorities based outside of the United States (collectively referred to as “Export Controls”). Regardless of any disclosure made by you to Bentley of an ultimate destination of the Software, you 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 Export Controls that may be imposed on the Software. The 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 your responsibility to comply with applicable Export Controls as they may be amended from time to time. You shall indemnify, defend and hold Bentley harmless for any breach of your obligations pursuant to this Section.
- U.S. GOVERNMENT RESTRICTED RIGHTS. If the Software is acquired for or on behalf of the United States of America, its agencies and/or instrumentalities (“U.S. Government”), it is provided with restricted rights. The Software and accompanying documentation are "commercial computer software" and"commercial computer software documentation," respectively, pursuant to 48 C.F.R. 12.212 and 227.7202, and "restricted computer software" pursuant to 48 C.F.R. 52.227-19(a), as applicable. Use, modification, reproduction, release, performance, display or disclosure of the Software and accompanying documentation by the U.S. Government are subject to restrictions as set forth in this Agreement and pursuant to 48 C.F.R. 12.212, 52.227-19, 227.7202, and 1852.227- 86, as applicable. Contractor/Manufacturer is Bentley Systems, Incorporated, 685 Stockton Drive, Exton, PA 19341-0678.
- GOVERNING LAW. If you are located outside the geographic boundaries of the United States or Canada, this EULA will be governed by and construed in accordance with the substantive laws in force in Ireland, and the courts located in Ireland shall have exclusive jurisdiction over all disputes relating to this Agreement. If you are located within the geographic boundaries of the United States or Canada, this EULA will be governed by and construed in accordance with the substantive laws in force in the Commonwealth of Pennsylvania, and the state courts located in Chester County, Pennsylvania and the federal courts located in Philadelphia, Pennsylvania shall have exclusive jurisdiction over all disputes relating to this Agreement. 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 this Agreement.
- SEVERABILITY. The provisions of this EULA shall be deemed to be separable and the invalidity of any provision hereof shall not affect the validity of the remainder of this Agreement.
- NOTICES. If you are located outside the geographic boundaries of the United States or Canada please send all notices under this EULA to Bentley Systems International Limited Attn: Legal Department, Second Floor, Block 2, Park Place, Upper Hatch Street, Dublin 2, Ireland. If you are located within the geographic boundaries of the United States or Canada, please send all notices under this EULA to Bentley Systems, Incorporated, Attn: Legal Department, 685 Stockton Drive, Exton, PA 19341-0678.
- QUESTIONS. Should you have any questions regarding this EULA, please contact the Bentley subsidiary serving your country, or write to: Bentley Systems, Incorporated, Legal Department, 685 Stockton Drive, Exton, PA 19341-0678.
- RE-DISTRIBUTION OF BENTLEY® VIEW™. If you are interested in redistributing Bentley View either internally or externally to your organization, please contact a Bentley sales representative.
Article 2: Terms Applicable to Server Software
This Article details the installation, use and licensing of Server Software and associated CALs as well as External Connector licenses.
- CERTAIN ADDITIONAL DEFINITIONS.
1.1. “Client Software” means software that allows a Device to access or utilize Server Software (and, also where applicable to utilize certain aspects of the Software when disconnected from the Server).
1.2. "External Connector" means a separately licensable module for specific Server Software which authorizes use of the Server Software by External
1.3. "Per Processor" is a Server Software licensing mode where you are licensed to utilize the Server Software on one or more physical or virtual processors within a designated Server.
1.4. “Per Server” is a Server Software licensing mode where you are licensed to utilize the Server Software on all processors physically contained within the designated Server.
1.5. "Per User" or “Per Device” are licensing modes that require you to license a separate CAL for each unique User or Device respectively that accesses or utilizes the Server Software.
1.6. “Server” means any one of your computers that can run Server Software.
1.7. “Server Software” means Software that provides services or functionality to your Server(s).
1.8. "Server/CAL" is a licensing mode where the maximum number of Users (or Devices, if applicable) which may access or utilize the Server Software at a given interval is less than or equal to the number of CALs that you have acquired and designated for use exclusively with that Server Software.
- LICENSING MODES.
2.1. Servers. Bentley licenses Server Software on a Server/CAL basis with either Device or User CALs and/or on a Per Processor basis. Some Server Software may be eligible for External Connector licensing. Server Software may be limited, even in Server/CAL licensing mode, as to the total number of Devices and/or Users that may access a designated Server Product. Unless explicitly specified in the documentation accompanying the Server Software, the default licensing mode for all Server Software is Server/CAL with User CALs.
2.2. CALs. CALs are licensed by Bentley on a per Server, per Device or per User basis. A User CAL permits one User (using any Device) to access or use the Server Software. A Device CAL permits one Device to access or use the Server Software. Special Note Applicable to CAL Licensing: If you have covered the CALs and Server Software subject to this EULA pursuant to a valid SELECT Agreement with Bentley then you may be entitled to additional and incremental licensing benefits to those set forth in this EULA by virtue of that relationship. In the event your SELECT Agreement with Bentley terminates or you otherwise elect to remove CALs and/or their associated Server Software from coverage pursuant to a SELECT Agreement with Bentley then you will lose those incremental benefits, and your license rights will only be as set forth in this EULA.
2.3. External Connectors. Certain Server Products may be licensed to support External Users by virtue of an External Connector license.
- GRANT OF LICENSE FOR SOFTWARE IN SERVER/CAL MODE. As and for so long as you comply with all of the terms of this EULA, Bentley grants you the following rights:
3.1. Installation and Use.
(a) Server Software. You may install and use one copy of the Server Software for Production Use on a single Server in the country where the
Server Software was first obtained. You may also use the documentation that accompanies the Server Software for internal, non-commercial
reference purposes only. (b) Client Software. You may install and use the Client Software on the aggregate total number of Devices to which you have dedicated a CAL for such usage. (c) CALs. A separate CAL is required for each User or Device that accesses or uses Server Software on any of your Servers. A CAL grants a User (using any Device) or a Device the right to access or otherwise utilize the Server Software you have deployed on your Server. The maximum number of Users or Devices that may access or use Server Software installed on a particular Server at a given interval equals the number of CALs (of either type) that you acquire and designate for use exclusively with that Server. CALs cannot be pooled among internal Users or Devices and are tied to one Server Software installation. (d) Passive Fail-Over Server. If the Server Software is used in a clustered environment, you may use the Server Software on a temporary basis on a Server that is employed only and exclusively for fail-over support.
- GRANT OF LICENSE FOR SERVER SOFTWARE IN PER SERVER MODE. As and for so long as you comply with all of the terms of this EULA, Bentley grants you the following rights:
4.1. Installation and Use (a) Server Software. You may install and use one copy of the Server Software for Production Use on a single Server in the country where the Server Software was first obtained. You may also use the documentation that accompanies the Server Software for internal, non-commercial reference purposes only. In Per Server licensing mode, the Bentley default is that you may use the Server Software on all processors physically contained within that one Server. If the Server Software is licensed in Per Processor mode, you may only use the Software on the authorized and licensed number of processors (physical or virtual) within that Server. (b) Client Software. In Per Server licensing mode, unless Bentley licenses the Server Software with a limitation on the maximum number of Devices or Users that may access it, you may install the Client Software on any Device in support of any number of Users so long as the Client Software is being used only in conjunction with the Server Software.
(c) CALs. In Per Server licensing mode, unless Bentley licenses the Server Software with a limitation on the maximum number of Users or Devices
that may access it, an unlimited number of Users or Devices may access and use the Server Software. CALs are not required for individual Users
or Devices in the Per Server licensing mode. (d) Passive Fail-Over Server. If the Server Software is used in a clustered environment, you may use the Server Software on a temporary basis on a Server that is employed only and exclusively for fail-over support.
- GRANT OF LICENSE FOR EXTERNAL CONNECTOR LICENSES. As and for so long as you comply with all of the terms of this EULA, Bentley grants you the following rights:
5.1. Installation and Use (a) External Connector License. You may install and use one copy of the External Connector on one Device and connect that Device to the designated Server Software whether or not located at the same Site, but always within the same country as the Server Software installation. (b) External Users. The default licensing mode for an External Connector authorizes you, for each External Connector license that you acquire, to permit any number of External Users to access or use a single copy of the designated Server Software for which the External Connector License has been obtained without the need for you to acquire a CAL for each External User. If any User does not clearly qualify as an External User then you will need to properly license such use and access by the User of the Server Software by a method other than via the External Connector. Certain External Connector licenses only authorize a limited number of External Users to connect via that External Connector, please check your Product documentation and License Key for specific details, limitations and qualifications. (c) Passive Fail-Over External Connector. If the External Connector is installed on a Device used in a clustered environment, you may use the External Connector on a temporary basis on a Server or Device that is employed only and exclusively for fail-over support.
Article 3 – Terms Applicable to Test Software
THIS EULA, TOGETHER WITH ANY APPLICABLE NON-DISCLOSURE AGREEMENT APPEARING OR REFERENCED ON OR IN THE FILES DELIVERED DURING INSTALLATION REPRESENT THE ENTIRE SET OF TERMS AND CONDITIONS GOVERNING YOUR USE OF THE TEST SOFTWARE AND DOCUMENTATION, AND SUPERSEDE ANY OTHER PRIOR PROPOSAL, REPRESENTATION, OR UNDERSTANDING BETWEEN THE PARTIES.
- Limited Rights For Testing Only.
(a) The Test Software has been designed and developed by Bentley, either alone or together with other third parties, and this license is made on behalf of all parties who contributed to the Test Software and Documentation. Subject to the terms and provisions set forth, Evaluator is willing to accept delivery of the Test Software for the purpose of using and evaluating the same. Bentley is willing to permit the Evaluator to use and to evaluate the Test Software under the terms and conditions of this EULA in order to obtain Evaluator information to such Test Software which may be helpful to Bentley in making any improvements, enhancements or modifications with respect thereto. The Test Software may be used only on a single computer owned, leased or otherwise controlled by you. You may not use the Test Software on any other platform, including, but not limited to, servers, except as expressly provided herein. The Test Software is “in use” on a computer when it is loaded into temporary memory (i.e., RAM) or installed into permanent memory (e.g. hard disk, CD-ROM or other storage device) of that computer. If the Test Software is designed to provide services or functionality to servers, the Test Software shall be used on a single server owned, leased or otherwise controlled by Evaluator. (b) Upon your acceptance of the Agreement by clicking “I accept” or by downloading the Test Software, Bentley does hereby grant Evaluator at no charge a non-exclusive, non-transferable right to use the Test Software for evaluation purposes only. This right shall terminate on the date Bentley determines in its sole discretion which Bentley no longer has a need for Evaluator information from the Evaluator regarding the Test Software; or Bentley has learned that the terms of this EULA have been breached by Evaluator.
- Evaluation and Reports. Evaluator shall provide Bentley with reports concerning its opinion and evaluation of the Test Software. Evaluator shall consult with representatives of Bentley from time-to-time concerning the performance of the Test Software. Evaluator agrees that right, title and interest to any reports, feedback or suggestions relating to the Test Software or any inventions relating to an improvement, modification or enhancement of the Test Software conceived in, or made as a result of, Evaluator’s performance of this EULA shall become the exclusive property of Bentley and that Bentley may disclose and use such information for any purposes whatsoever, entirely without obligation of any kind to Evaluator.
- Confidential and Proprietary Information and Data. (a) Evaluator acknowledges that the Test Software consists of software which is proprietary and confidential to Bentley or its licensors; and all rights, title and interest therein or thereto, including, without limitation, all patents, copyrights, trademarks and trade secrets are proprietary and confidential to Bentley or its licensors and shall remain vested therein. Therefore, Evaluator shall not disclose, directly or indirectly, or take any other action which would result in the unauthorized disclosure of any confidential or proprietary data whatsoever, including, but not limited to, reproduction of data furnished to Evaluator by Bentley. (b) The release of confidential information to Evaluator does not constitute a commercialization of the Test Software, but rather is a release for testing purposes ONLY. Evaluator shall not disclose to any third party the terms of this EULA nor the results of any Evaluator evaluation hereunder except with the written consent of Bentley. Evaluator shall, upon Bentley’s request, certify in writing as to the return or destruction of all such confidential information. (c) For purposes of this EULA, “Confidential and Proprietary Information” shall include, but not be limited to, the Test Software, including its functionality, performance, business purpose, specifications, Documentation, and the like, test results obtained by Evaluator through use of the Test Software, any material data relating to use of the Test Software by Evaluator, including, but not limited to defects, deficiencies, errors, omissions, work-arounds, features, enhancements, updates, upgrades, and other information typically relating to unreleased version(s) of computer programs, and any and all information, either written or oral, relating to the Test Software, including plans, business and financial information, which may, from time-to-time, be disclosed by Bentley to Evaluator during the term of this EULA. It is understood by both parties that ANY information provided by Bentley during the term to Evaluator relating to the Test Software is Bentley’s Confidential and Proprietary Information. (d) The parties shall use such Confidential and Proprietary Information only for the purpose set forth in Section 1 above. Evaluator shall make no other use of the Confidential and Proprietary Information, in whole or in part, without the specific prior written consent of Bentley. Accordingly, Evaluator agrees not to make any commercial use of Confidential and Proprietary Information, and Evaluator shall not translate, copy, disassemble, reverse engineer, or decompile any Test Software, nor shall Evaluator make copies or translations of any Documentation. Furthermore, Evaluator will not make any pre-release reports or give pre-release interviews concerning the Test Software or the Confidential and Proprietary Information without Bentley’s prior written consent.
(e) Evaluator shall maintain Bentley’s Confidential and Proprietary Information in strict confidence, shall limit internal disclosure of Confidential and Proprietary Information to employees having a legitimate need to know, and shall exercise the same degree of care in protecting Bentley’s Confidential and Proprietary Information as it exercises in protecting its own confidential and proprietary information. Evaluator may make copies of the Test Software only to the extent necessary for the purpose of this EULA, provided that Evaluator shall also reproduce and include Bentley’s trade secret, copyright, or other intellectual property rights notices on each such copy and include the legend “Test Product –Do Not Copy or Distribute.” (f) Any other related materials supplied by Bentley, including Documentation, may not be reproduced in any manner by Evaluator. The original and all copies of Confidential and Proprietary Information shall remain the property of Bentley and shall be returned to Bentley upon demand.
- Disclaimer of Warranty.
(a) Evaluator acknowledges that the Test Software has not been completely tested and will contain defects or deficiencies which cannot or may not be corrected. Evaluator further acknowledges that use of the Test Software may involve the transmission, upload, download, translation or transfer of its data to a server or computer platform outside of Evaluator’s control, and some errors in the data may occur while transferring, transmitting or translating data while using the Test Software. Bentley cautions Evaluator to determine for itself the suitability of the use of the Test Software for any purpose. Bentley further cautions Evaluator not to use the Test Software in a production environment. (b) Evaluator acknowledges that Bentley has no express or implied obligation to announce or to introduce the Test Software or any similar or compatible product. Evaluator acknowledges that all use, testing, research and development performed by it pursuant to this AGREEMENT are done entirely at its own risk. ACCORDINGLY, BENTLEY MAKES NO REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE USE OR PERFORMANCE OF THE TEST SOFTWARE, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MECHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
(c) EVALUATOR ACCEPTS THE TEST SOFTWARE IN “AS-IS” CONDITION, AND BENTLEY SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING WITHOUT LIMITATION LOST PROFITS, COSTS OF DELAY, 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 OF THE POSSIBILITY OF SUCH DAMAGES.
- Consequences of Breach.
(a) Evaluator acknowledges that: i. Irreparable injury and damage to Bentley will result from unauthorized disclosure of the Test Software, Confidential Information and Proprietary Information gleaned by Evaluator through use of the Test Software, and from uses of the Test Software other than as contemplated herein; ii. Monetary damages may not be sufficient remedy for unauthorized disclosure of the Test Software; iii. Bentley shall be entitled, without waiving any additional rights or remedies available to it at law, in equity, or by statute, to such injunctive or equitable relief as may be deemed proper by a court of competent jurisdiction; and (b) Evaluator’s breach of this EULA shall result in immediate termination of this EULA and may be cause for exclusion in other Bentley sponsored Test Software programs, among other remedies available to Bentley at law or equity.
Plaxis Software Rider - Bentley SELECT Program Agreement
Dated as of February 2019
1. Definitions. Unless defined within this Plaxis Software Rider, all capitalized words, terms and phrases here in shall have the same meaning as provided in Exhibit B of the Agreement.
2. Applicability. The additional SELECT Program benefits described herein are applicable only to Subscriber’s current version of Plaxis 2D or Plaxis 3D software (“PLAXIS Software”). Bentley reserves the right to add to or discontinue any of these benefits in future PLAXIS Software releases.
3. Specific Conditions Regarding User Defined Soil Models.
3.1 The PLAXIS Software can be used together with soil models which have been developed by Subscriber or a third party ("User Defined Soil Model" or "UDSM").
3.2 The instructions, the special libraries of functions and procedures and other items which Bentley may make available to Subscriber for the creation of User Defined Soil Models ("the UDSM Materials") remain the property of Bentley. Bentley grants Subscriber a non-exclusive and non-transferable right to use the UDSM Materials for the creation and the use of UDSM, subject to the terms and conditions of this Agreement and subject to the following specific conditions:
a) Subscriber shall only use the UDSM Materials for the creation and use of User Defined Soil Models for the PLAXIS Software; b) Subscriber shall not make copies of the UDSM Materials available to any third party; c) Subscriber shall treat the UDSM Materials as confidential information;
d) the User Defined Soil Models created by Subscriber are only used by Subscriber together with the PLAXIS Software licensed by Subscriber;
e) the User Defined Soil Model is not sold or otherwise provided or made available to any third party by Subscriber without the prior written consent of Bentley.
3.3 If Subscriber uses a User Defined Soil Model with PLAXIS Software, Subscriber does so entirely at Subscriber’s own risk. Bentley cannot be held responsible and/or liable in any way for the correct performance of PLAXIS Software when used in conjunction with User Defined Soil Models. Subscriber shall indemnify and hold Bentley harmless from and against any claim of third parties for loss of damages caused by or related to the use
of PLAXIS Software with a User Defined Soil Model.
4. Specific Conditions Regarding Use of Remote Scripting API.
4.1 Using the remote scripting API requires access to a server built into PLAXIS Software; by default this server is not started. Only Subscriber (the user of the PLAXIS Software) can choose to start this server and therefor Subscriber is fully responsible for doing so. This server makes use of special network port settings and it is the sole responsibility of the Subscriber to ensure that its computer and network are secured sufficiently against misuse, for example by using a properly configured firewall and virus scanner and making use of the Windows AccessControl options.
4.2 The built-in server, if enabled, additionally needs to connect via the internet to a server operated by Bentley. The communication between the built-in server and the server at Bentley is encrypted and does not include any information about Subscriber, Subscriber’s project, computer hardware, network layout or installed software, with the following two exceptions: (i) Subscriber’s PLAXIS Software license information (ii) Name and version of the installed PLAXIS Software application. This information may also be stored by Bentley for statistical analysis.