End User License Agreement
LAS WORX SOFTWARE SUBSCRIPTION AGREEMENT
WHEREAS NRGX has developed and owns software known as LAS WORX Software;
AND WHEREAS Licensee wishes to obtain a license for the use of the LAS WORX Software on the terms hereinafter set forth;
NOW THEREFORE IN CONSIDERATION OF THE MUTUAL AGREEMENTS SET OUT HEREIN IT IS AGREED:
1.1 The following words and phrases have the following meanings:
(a) “Agreement” means this agreement and all schedules and any amendments thereto;
(b) “Effective Date” means the date the software has been initially downloaded and installed by Licensee;
(c) “GST” means tax liability imposed pursuant to Part IX of the Excise Tax Act, R.S.C. 1985, c. E-15, as amended, or any successor similar federal or provincial legislation that is intended to impose a tax on the recipient of a supply of goods or services as defined in that Act; and
(d) “LAS WORX Software” means software modules used to clean, index and locate digital well log data in LAS format.
3. LICENSE OF THE LAS WORX SOFTWARE
3.1 NRGX hereby grants to Licensee a non-exclusive, non-transferable, single-user license to use the LAS WORX Software in accordance with the terms of this Agreement.
3.2 Licensee may install the LAS WORX Software only on the number of computers for which Licensee has paid.
3.3 Licensee may install the LAS WORX Software on a computer which can be shared by more than one user provided that Licensee has paid for a License for each user able to access the computer on which the LAS WORX Software has been installed.
3.4 No rights to use the LAS WORX Software are hereby granted unless expressly set out herein.
4. RELATIONSHIP BETWEEN PARTIES
4.1 The relationship of NRGX and Licensee established by this Agreement is that of independent contractors and nothing contained in this Agreement shall be construed to constitute the parties as partners, employees, joint ventures, co-owners or otherwise as participants in a joint or common undertaking.
5. LICENSE FEE
5.1 Licensee shall pay to NRGX the license fees set out in the current NRGX pricing schedule.
6.1 Licensee shall pay interest at the rate of 1½ % per month (18% per annum) on any amount due to NRGX that remains unpaid 60 days after invoice date.
7.1 Any amounts payable pursuant to this Agreement are exclusive of all taxes of any kind. Licensee shall be responsible for all taxes, such as GST, sales and use tax, gross receipts tax, withholding tax and any similar tax imposed by any taxing authority on or in connection with the license granted herein, other than NGRX’s income and property taxes.
8.1 NRGX shall provide reasonable support to Licensee in respect of the LAS WORX Software upon request by Licensee.
8.2 Any modifications to the LAS WORX Software requested by Licensee which NRGX determines, at its sole discretion, to be outside of normal maintenance and support, shall be provided at NRGX’s then current rates provided that NRGX notifies Licensee in advance of providing such services that such rates will apply.
9.1 NRGX may provide updates of the LAS WORX Software to Licensee at NRGX’s sole discretion. The timing and frequency of delivery of such updates shall likewise be at the sole discretion of NRGX.
9.2 The use of any updates of the LAS WORX Software provided by NRGX to Licensee shall be subject to the same restrictions as are imposed herein on the use of the LAS WORX Software.
10. PERMITTED USES
10.1 Licensee may install and use the LAS WORX Software solely for its own benefit and for its own internal purposes.
10.2 Licensee may install the LAS WORX Software on one computer only.
10.3 Licensee shall be permitted to make backup copies of the LAS WORX Software as a normal course of computer systems maintenance.
11. RESTRICTED USE
11.1 Licensee shall not allow the LAS WORX Software to leave its control, share the LAS WORX Software in any manner or for any purpose with any other person or entity, distribute the LAS WORX Software over any network or allow access to the LAS WORX Software through a network other than its own site specific network.
11.2 Licensee shall not do anything or permit anything to be done, whether by way of reverse engineering, decoding, decompiling, disassembling or anything else that is intended:
(a) to assist in the development of software competitive with the LAS WORX Software;
(b) to defeat any measures incorporated into the LAS WORX Software that are designed to prevent copying, to maintain secrecy or to deny unauthorized access; or
(c) to tamper with or defeat any measures incorporated into the LAS WORX Software that are designed to account for data usage.
11.3 Licensee acknowledges that unauthorized use of the LAS WORX Software or any related information would result in irreparable harm to NRGX and that NRGX will be entitled to equitable relief to protect its interest in and to the LAS WORX Software and related information including but not limited to injunctive relief as well as monetary and other damages available to it under applicable law.
11.4 Licensee acknowledges that this Agreement is not a data license and that it is Licensee’s sole responsibility to obtain digital well log data in LAS format “(Data”) for use in connection with the LAX WORX Software. The LAS WORX Software shall not be used for or in connection with Data which the Licensee does not have the legal right to use. In the event of any action or threatened action against Licensee and/or NRGX in which it is asserted that Licensee is using Data or the LAS WORX Software in connection with Data which it does not have the right to use (a “Claim”), Licensee shall immediately notify NRGX of such action or threatened action and, until it is established that Licensee does have the right to use such Data or otherwise procures the legal right to use such Data, Licensee shall immediately stop using LAS WORX Software in connection with such Data. Licensee hereby agrees to indemnify and save harmless NGRX from and against all costs, charges and expenses (including legal fees as between a solicitor and his client and including any amounts paid to settle an action or satisfy a judgment) that NRGX sustains or incurs in connection with such Claim. The provisions of this section 11.4 shall survive termination of this Agreement.
12.1 NRGX warrants that:
(a) NRGX has the right to license the LAS WORX Software to Licensee; and
(b) NRGX has no knowledge that any part of the LAS WORX Software infringes on any copyright or trade secret held by any other person, firm or corporation.
12.2 THE LAS WORX SOFTWARE IS PROVIDED WITHOUT ANY WARRANTY OF ANY KIND EITHER EXPRESSED OR IMPLIED OTHER THAN THE WARRANTIES SET OUT IN SECTION 12.1 HEREIN. IN PARTICULAR, WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THE FOLLOWING WARRANTIES ARE EXPRESSLY DISCLAIMED:
(a) ANY WARRANTY THAT THE LAS WORX SOFTWARE WILL MEET LICENSEE’S REQUIREMENTS;
(b) ANY WARRANTY THAT THE OPERATION OF THE LAS WORX SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE;
(c) ANY WARRANTY AS TO THE ACCURACY, COMPLETENESS OR USEFULNESS OF THE LAS WORX SOFTWARE; ND
(d) ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE IN RESPECT OF THE LAS WORX SOFTWARE.
13. LIMITED LIABILITY
13.1 NRGX’S ENTIRE LIABILITY TO LICENSEE FOR DAMAGES FROM ANY AND ALL CAUSES WHATSOEVER, REGARDLESS OF THE FORM OF ACTION, SHALL BE LIMITED TO:
(a) LICENSEE REQUESTING AND NRGX ENDEAVOURING TO PROVIDE SUPPORT; OR
(b) IF THE LIMITED WARRANTY IS FOR ANY REASON HELD TO BE INVALID OR OTHERWISE INEFFECTIVE, $5,000.00 AS PRE-AGREED DAMAGES.
13.2 IN NO EVENT SHALL NRGX BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES FOR ANY BREACH OF ITS OBLIGATIONS OR WARRANTIES RESULTING FROM THIS AGREEMENT.
14. PROPERTY RIGHTS
14.1 Licensee acknowledges that the LAS WORX Software and all copyrights, trade names, logos and any other intellectual proprietary rights relating thereto are and shall at all times remain the sole and exclusive property of NRGX.
14.2 Licensee shall not remove, alter, cover or obfuscate any copyright notices or other proprietary rights notices placed or embedded by NRGX on or in any copy of the LAS WORX Software.
15.1 Licensee shall take all reasonable measures to safeguard the LAS WORX Software from unauthorized use or disclosure and shall take all necessary steps to ensure that no unauthorized person has access to the LAS WORX Software.
15.2 Each of the parties recognizes that in carrying out the activities contemplated under this Agreement, each will come into possession of information which is confidential and proprietary to the other party and the disclosure of which would be detrimental to the other party. Accordingly, each party agrees that it will maintain such information confidential and shall not disclose it to third persons without prior express written consent of the other party. Notwithstanding the foregoing, a party’s obligation to maintain confidence shall not apply to any information which:
(a) is or becomes public knowledge without the fault of that party;
(b) was in that party’s possession or was known to that party prior to its receipt from the other party;
(c) is received from a third party without restriction; or
(d) is required by law or regulatory authority to be disclosed, provided that prior to such disclosure the other party shall be given a reasonable opportunity to argue against such disclosure.
15.3 The parties agree that monetary damages would not be an adequate remedy for breach of this provision. The parties further agree that, in the event of such breach, injunctive relief would be necessary to prevent irreparable harm.
15.4 The provisions of section 15 herein shall survive termination of this Agreement.
16. COLLECTION, USE AND DISCLOSURE OF GENERAL STATISTICAL INFORMATION, AUTOMATICALLY COLLECTED INFORMATION AND PERSONAL IDENTIFYING INFORMATION
16.1 Licensee acknowledges that NRGX collects three types of user information, General Statistical information, Automatically Collected Information, and Personal Identifying Information when you license and use LAS WORX.
16.2 Licensee acknowledges that NRGX will ask for product registration information which includes the name of the product acquired, as well as your name, street address, email address and phone number. The Personal Identifying Information is kept on file and updated from time to time to fulfill our continuing obligations to you, such as providing notices of new versions and giving support by email.
16.3 Licensee acknowledges that when LAS WORX is used NRGX will automatically collect certain general information, such as frequency of use and usage statistics. This information is referred to throughout this policy as “General Statistical Information”. We use and store this data only on an individual basis. This helps us to know how and the extent in which features of LAS WORX are used. The stored General Statistical Information does not contain any Personal Identifying Information about you or any of our other users.
17. COPYRIGHT INFRINGEMENT
17.1 In the event of any action or threatened action against Licensee in which it is asserted that the LAS WORX Software infringes a Canadian copyright, Licensee shall immediately notify NRGX of such action or threatened action and, if it is established that the LAS WORX Software does infringe the rights of another, NRGX shall promptly, after receipt of such notification, at its option:
(a) procure the right for Licensee to continue using the LAS WORX Software;
(b) replace or modify the LAS WORX Software so that it becomes non-infringing but has substantially equivalent capabilities as the infringing system; or
(c) pay Licensee $5,000.00 as pre-agreed liquidated damages.
17.2 In any event, NRGX shall have the right to conduct the defence of the infringement action on Licensee’s behalf and to settle the action without Licensee’s consent upon giving reasonable security to protect Licensee and Licensee shall cooperate fully with NRGX in the defence and the settlement of any such action. The costs of defending such action shall be borne by NRGX.
17.3 This indemnity against infringement is only valid if Licensee properly notifies NRGX of any assertion or claim or infringement and cooperates with NRGX in the defence of the infringement action.
18. TERM AND TERMINATION
18.1 This Agreement shall continue in force for a term of one (1) year from the Effective Date. At the end of the term, this Agreement shall be automatically renewed for successive one (1) year terms unless either party gives written notice of termination of this Agreement to the other party not less than sixty (60) days prior to the expiration of the initial or any subsequent term.
18.2 If Licensee breaches any provision of this Agreement which cannot be remedied or, if Licensee commits a breach of this Agreement that may be remedied and Licensee fails to remedy the breach within 15 days of receiving notice from NRGX requesting such a remedy, then NRGX may at any time thereafter terminate this Agreement upon delivery of written notice to Licensee.
18.3 This Agreement may be terminated immediately by NRGX upon delivery of written notice to Licensee following:
(a) the institution by or against Licensee of insolvency, receivership or bankruptcy proceedings or any other proceedings for the settlement of Licensee’s debts;
(b) an assignment being made by Licensee for the benefit of its creditors;
(c) Licensee’s dissolution or ceasing to conduct business in the normal course;
(d) the seizure of Licensee’s chattels or assets in execution or attachment proceedings; or
(e) any writ of execution or attachment being issued against Licensee which is not discharged within 21 days of issuance.
18.4 Upon termination of this Agreement, Licensee shall:
(a) cease to use the LAS WORX Software;
(b) return to NRGX all copies of the LAS WORX Software;
(c) render unusable all copies of the LAS WORX Software stored on any hard disk or other similar form of storage that cannot practically be separated from the computer; and
(d) at NRGX’s request, deliver to NRGX a certificate from an officer of Licensee certifying that there are no copies of the LAS WORX Software within Licensee’s control or possession.
18.5 Any remedies available to NRGX on Licensee’s breach of this Agreement shall survive termination of this Agreement.
19.1 Licensee shall not assign its rights under this Agreement in whole or in part or otherwise part with possession of any copy of the LAS WORX Software provided by NRGX to Licensee without prior written consent from NRGX.
20.1 Any notice required or permitted to be given hereunder shall be in writing and shall be effectively given if personally delivered or sent by prepaid courier service or registered mail to the addresses set forth on the first page of this Agreement. Any notice so given shall be deemed conclusively to have been given and received when so personally delivered or, if sent by courier, on the first business day thereafter or, if sent by registered mail, on the tenth business day thereafter. Either party may change any particulars of its address for notice upon giving notice to the other.
21. ENTIRE AGREEMENT
21.1 This Agreement constitutes the entire agreement between the parties with respect to the Software and there are no representations, warranties or undertakings whether verbal or in writing other than as set out herein.
22. GOVERNING LAW
22.1 This Agreement shall be construed in accordance with and governed by the laws of the Province of Alberta.
23.1 No modification of this Agreement will be effective unless it is made in writing and is signed by authorized representatives of each party.
24. SUCCESSORS AND ASSIGNS
24.1 This Agreement shall be binding upon and enure to the benefit of the parties hereto, their successors and assigns.
25.1 The Licensees act of initial installation of LAS WORX software signifies Licensees acceptance of the terms of this Agreement.