AGREEMENT FOR THE PROVISION OF Software
This Agreement shall apply to all Software (as defined below) provided by US to YOU via this website.
1.1 “Agreement” shall mean this Agreement and all applicable Annexes and Supplements referring hereto.
1.2 “Confidential Information” shall mean information (whether in oral, written, electronic or any other form) which is marked or notified as being confidential or which, in the normal course of business, would be considered to be confidential.
1.3 “Effective Date” shall mean the day of provision of Software via this website.
1.4 “External Software” shall mean the third party software delivered with the Software .
1.5 “Intellectual Property” shall mean all trademarks or trade names (whether common-law or registered), patents, mask works, patent applications, copyrights (whether published or unpublished), trade secrets, know-how, designs, methods, processes, work-flow, inventions and proprietary information relating to the Software or External Software.
1.6 “Order” shall mean YOUR download of the Software as per this Agreement.
1.7 “Software” shall mean the object code or where applicable the source code of the software as specified in an Order and delivered by US and shall include Updates and Upgrades, Software related documentation, but not External Software.
1.8 “Territory” shall mean the country or countries where YOU are at the time of download and shall at all times include the territorial waters of such country where applicable.
1.9 “Update” shall mean a subsequent release of the Software made available at no additional charge. Updates shall include bug fixes and patches, however for the avoidance of doubt does not include Upgrades.
1.10 “Upgrade(s)” shall mean a new and improved version with respect to the features, the functionality and/or the performance of the Software that is made available at an additional charge. It shall be in OUR sole discretion to determine whether such new version is an Upgrade.
1.11 “Use” shall have the meaning as per Clause 2 below.
1.12 “YOU” or “YOUR” shall mean the Schlumberger group company for which the Software Order is placed, which company shall have the full responsibility for only permitting authorized persons to download Software on its behalf and shall use suitable measures to ensure this is the case.
1.13 “WE” or “US” shall mean the Schlumberger group company providing Software on this website.
2.0 Rights Granted
Subject to the terms and conditions of this Agreement, WE hereby grant YOU the following perpetual, nonexclusive, nontransferable rights for the Territory and YOU hereby accept the same for YOUR own internal business purposes:
2.1 To use the Software in accordance with this Agreement. This right to use shall commence upon delivery of the Software to YOU and shall continue unless terminated by default or cancellation. WE (and/or OUR third party vendors, when applicable) shall at all times retain title to all rights to Intellectual Property, including all components, additions, and modifications.
2.2 To copy the Software for backups necessary in the ordinary course of business. This includes the right to make archival copies of the Software as provided by applicable national copyright law and under international treaties. YOU agree not to copy or reproduce Software or any portion thereof for any other purpose.
2.3 Restrictions: Any use as permitted hereby shall solely be by YOUR personnel. Apart from the rights granted under this Agreement, YOU are not granted any right, title, or interest in any Intellectual Property rights relating to the Software. Use does not include modifying Software in any way, creating derivative versions thereof, reverse assembling, reverse compiling, or reverse engineering the Software or distributing it to other parties or making it available for any use, directly or indirectly, by another person, any such utilization of Software being hereby expressly prohibited.
2.4 External Software: WE represent that WE have the authority to grant rights to the External Software delivered with Software to YOU. External Software shall be subject to the specific terms and conditions applicable with respect to such software, provided however that this Agreement shall apply if and inasmuch as there are no such specific terms and conditions.
3.0 Orders and delivery of Software
Each Order for Software will be deemed to incorporate this Agreement by reference. Each Order for Software is subject to acceptance by US and WE shall at all times have the right to refuse or only partially accept and fulfill an Order. Title to the Software shall pass to YOU in the Netherlands.
In consideration for the Software, YOU will pay to US an amount per Software as per the applicable price list in effect at the time of OUR receipt of the Order. All amounts invoiced in accordance with this Agreement shall be paid by YOU within thirty (30) days from the date of invoice.
5.0 Confidential Information
YOU hereby acknowledge that the Software and where applicable External Software contains Confidential Information belonging to US and/or third parties. YOU shall use at least the same degree of care in safeguarding the Confidential Information as YOU use in safeguarding YOUR own confidential information.
Confidential Information does not include: (i) information already known or independently developed by YOU outside the scope of this Agreement by personnel not having access to any Confidential Information; (ii) information in the public domain through no wrongful act of YOU, or (iii) information received by YOU from a third party who was free to disclose it.
6.0 Warranty and Indemnification
6.1 Noninfringement warranty: WE warrant and represent that the Software when properly used as contemplated herein, will not infringe or misappropriate any copyright, trademark, patent, or the trade secrets of any third persons in the Territory. Upon being notified of such a claim, WE shall (i) defend through litigation or obtain through negotiation YOUR right to continue using the Software; (ii) rework the Software so as to make it noninfringing while preserving the original functionality, or (iii) replace the Software with functionally equivalent software. If none of the foregoing alternatives provide an adequate remedy, YOU may terminate all or any part of this Agreement and recover amounts paid for the infringing Software.
6.2 Performance Warranty: The warranty period for Software shall be ninety (90) days from the date of delivery.
6.3 Subject in all cases to Article 6.5, during the warranty period, WE warrant that when operated on computer systems that comply with OUR published technical specifications, the Software shall function substantially in accordance with the product specifications at the time the Order is accepted.
6.4 WE shall make its good faith efforts to correct defects in the Software that prevent the substantial use of the Software in accordance with OUR product specifications where such defects are brought to its attention during the warranty period. Due to the complex nature of software, WE do not warrant that the Software is error free or that all errors will be corrected.
6.5 External Software. WE do not warrant the form or content of External Software or related documentation, which WE provides "as is". Any applicable third party vendor’s warranties for External Software supplied by US to YOU hereunder will be passed through to YOUas the end user.
6.6 EXCEPT AS SPECIFICALLY PROVIDED IN THIS SECTION, WE HEREBY DISCLAIM WITH RESPECT TO ALL SOFTWARE, OR OTHER DELIVERABLES PROVIDED HEREUNDER, ALL EXPRESS AND IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, ACCURACY, INTEGRATION OR FITNESS FOR A PARTICULAR PURPOSE. ANY CHANGES TO SOURCE CODE OF THE SOFTWARE WILL VOID THE WARRANTY PROVIDED UNDER THIS SECTION.
7.0 Limitation of Liabilities, Disclaimer
WE DO NOT GUARANTEE RESULTS. ALL INTERPRETATIONS USING THE PRODUCTS, AND ALL RECOMMENDATIONS OR RESERVOIR DESCRIPTIONS BASED UPON SUCH INTERPRETATIONS, ARE OPINIONS BASED ON INFERENCES FROM MEASUREMENTS AND EMPIRICAL RELATIONSHIPS AND ON ASSUMPTIONS, WHICH INFERENCES AND ASSUMPTIONS ARE NOT INFALLIBLE, AND WITH RESPECT TO WHICH COMPETENT SPECIALISTS MAY DIFFER. IN ADDITION, SUCH INTERPRETATIONS, RECOMMENDATIONS AND RESERVOIR DESCRIPTIONS MAY INVOLVE THE OPINION AND JUDGMENT OF YOU. YOU HAVE FULL RESPONSIBILITY FOR ALL INTERPRETATIONS, RECOMMENDATIONS AND RESERVOIR DESCRIPTIONS UTILIZING THE PRODUCTS. WE CANNOT AND DO NOT WARRANT THE ACCURACY, CORRECTNESS OR COMPLETENESS OF ANY INTERPRETATION, RECOMMENDATION OR RESERVOIR DESCRIPTION. UNDER NO CIRCUMSTANCES SHOULD ANY INTERPRETATION, RECOMMENDATION OR RESERVOIR DESCRIPTION BE RELIED UPON AS THE SOLE BASIS FOR ANY DRILLING, COMPLETION, WELL TREATMENT, PRODUCTION OR OTHER FINANCIAL DECISION, OR ANY PROCEDURE INVOLVING ANY RISK TO THE SAFETY OF ANY DRILLING VENTURE, DRILLING RIG OR ITS CREW OR ANY OTHER INDIVIDUAL. YOU HAVE FULL RESPONSIBILITY FOR ALL SUCH DECISIONS AND FOR ALL DECISIONS CONCERNING OTHER PROCEDURES RELATING TO THE DRILLING OR PRODUCTION OPERATION. IN NO EVENT SHALL WE BE LIABLE, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, FOR ANY INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING LOST SAVINGS, LOST PROFIT OR BUSINESS INTERRUPTION EVEN IF WE ARE NOTIFIED IN ADVANCE OF SUCH POSSIBILITY) ARISING OUT OF OR PERTAINING TO THE SUBJECT MATTER OF THIS AGREEMENT. YOU SHALL PROTECT, INDEMNIFY, HOLD HARMLESS AND DEFEND US OF AND FROM ANY LOSS, COST, DAMAGE, OR EXPENSE, INCLUDING ATTORNEYS' FEES, ARISING FROM ANY CLAIM ASSERTED AGAINST US THAT IS IN ANY WAY ASSOCIATED WITH THE MATTERS SET FORTH IN THIS AGREEMENT. SHOULD THE AFOREMENTIONED REMEDIES FAIL, THEN WE SHALL NOT BE LIABLE FOR ANY AMOUNT EXCEEDING THE TOTAL PORTION OF THE CONSIDERATION ACTUALLY PAID BY YOU.
8.0 Term and Termination
8.1 This Agreement shall start at its Effective date and has a term of one (1)year if not terminated in accordance with the terms hereof..
8.2 The Agreement can be terminated without cause by a three (3) month written notice prior to the end of the initial or every subsequent term.
8.3 The Agreement can be terminated for cause if the other party breaches any material provision hereof and fails within ten (10) days after receipt of notice of default to correct such default, provided the default can be remedied. If the default cannot be remedied, the Agreement can be terminated immediately.
8.4 The Agreement terminates automatically if one of the parties ceases to operate or starts liquidation procedures.
8.5 In case of a termination of this Agreement, the following clauses shall survive termination: 1, 5, 6.6, and 7 through 15. Termination of the Agreement shall have no influence on the rights granted under Clause 2 hereof, except if YOU are in breach of its obligations regarding the protection of the Intellectual Property, and/or Confidential Information of US and its third party vendors.
All payments referred to in this Agreement are expressed exclusive of value added tax or any similar tax (if any).
Notices sent to either party shall be effective when delivered in person or transmitted by fax or email, or two (2) days after being sent by overnight courier.
11.0 Independent Contractor Status
Each party and its people are independent contractors in relation to the other party with respect to all matters arising under this Agreement. Nothing herein shall be deemed to establish a partnership, joint venture, association or employment relationship between the parties.
12.0 Security. No Conflicts.
Each party agrees to inform the other of any information made available to the other party that is classified or restricted data, agrees to comply with the security requirements imposed by any local government, and shall return all such material upon request. Each party represents and warrants that its participation in this Agreement does not conflict with any contractual or other obligation of the party or create any conflict of interest prohibited by any local government and shall promptly notify the other party if any such conflict arises during the term of this Agreement.
13.0 Compliance with Export Regulations
YOU have or shall obtain in a timely manner all necessary or appropriate licenses, permits or other governmental authorizations or approvals; shall indemnify and hold US harmless from, and bear all expense of, complying with all foreign or domestic laws, regulations or requirements pertaining to the importation, exportation, or use of the products provided herein.
This Agreement shall be construed and interpreted in accordance with the laws of The Netherlands.
This document and the accompanying attachments specifically referenced herein constitute the entire agreement between the parties with respect to the subject matter hereof and supersede all other communications, whether written or oral. This Agreement may be modified or amended only in writing. Except as specifically permitted herein, neither this Agreement nor any rights or obligations hereunder may be transferred or assigned by YOU without OUR prior written consent and any attempt to the contrary shall be void. WE reserves all rights not specifically granted herein. Neither party shall be liable for delays caused by events beyond its reasonable control. Any provision hereof found by a tribunal of competent jurisdiction to be illegal or unenforceable shall be automatically conformed to the minimum requirements of law and all other provisions shall remain in full force and effect. Waiver of any provision hereof in one instance shall not preclude enforcement thereof on future occasions. Headings are for reference purposes only and have no substantive effect.
ADDITIONAL DISTRIBUTION PROVISIONS:
1.0 IF YOU REQUIRE TO DISTRIBUTE THE SOFTWARE TO A THIRD PARTY, YOU NEED TO INFORM US IN A WAY THAT IS MUTUALLY ACCEPTABLE. IF WE AGREE TO THE DISTRIBUTION, THE BELOW TERMS AND CONDITIONS SHALL APPLY IN ADDITION TO THE AGREEMENT ABOVE. WE SHALL BE UNDER NO OBLIGATION TO AGREE TO THE DISTRIBUTION.
2.0 Distribution Right
Subject to the above terms and conditions WE grant YOU the non-exclusive right to distribute the Software to YOUR clients in the Territory.
3.0 Distribution and Support Services
Except to the extent provided otherwise herein, all expenses relating to YOUR distribution of the Software in the Territory shall be borne by YOU and any services needed in connection with support for YOUR clients will be performed by YOU.
4.0 Required Legends
YOU shall ensure that all Software distributed pursuant to this agreement bears all Required Legends. The Required Legends will be printed or otherwise permanently inscribed on the disk, tape, or other program storage device that embodies a Copy of any portion of the Software, or on a label securely affixed thereto. The Required Legends are as follows: (i) a copyright legend indicating that WE are the copyright owner of the Software, (ii) a proprietary notice legend indicating that the storage disk and its contents are confidential and trade secret property of US, and (iii) other legends from time to time agreed to by the parties.
5.0 Promotional Materials
Upon request by YOU from time to time, WE shall provide YOU with reasonable quantities of promotional materials for the Software. WE may charge YOU a reasonable fee for such materials.
6.0 Trade Marks
WE may from time to time register trademarks related to the Software in the Territory. Such registration shall be at OUR sole discretion. For any such trade marks registered, YOU shall be permitted to use in connection with the distribution of Software as defined herein, and the consideration as defined in this Agreement is deemed to include the use of such trade marks.
7.0 Form of Agreements with YOUR clients
The Software shall be distributed to YOUR clients under YOUR standard agreement for the distribution of Software which has been duly approved by US. YOU shall not modify any such agreement in a manner that materially increases or changes OUR responsibility with respect to the Software without OUR prior written consent and, in the absence of such written consent shall indemnify and hold harmless US from any added exposure or liability. If at any time WE give YOU notice of circumstances that in OUR business judgment make continued use of an approved form of distribution agreement inappropriate to protect OUR or OUR third party vendors’ intellectual property rights or other rights, then YOU shall make such amendments to the distribution agreement to OUR satisfaction. YOU acknowledge that any review by US and/or OUR counsel of any such agreement is intended solely to protect OUR interests.
8.0 Procedures Upon Termination of Distribution Rights
Upon termination or expiration for any reason of distribution rights granted under this Agreement, YOU will immediately cease all distribution activities. The rights of any third parties to whom YOU may have distributed Software pursuant to this Agreement will be unaffected by the termination of distribution rights.