Software License Agreement
WellSight Systems Inc.
PLEASE READ THIS END USER LICENSE AGREEMENT IN ITS ENTIRETY. BY OPENING, INSTALLING, OR USING THE SOFTWARE PRODUCT THE LICENSEE ACKNOWLEDGES THAT (1) YOU HAVE READ AND UNDERSTOOD THIS SOFTWARE LICENSE AGREEMENT (“Agreement“); (2) THE LICENCEE IS AUTHORIZED TO ACCEPT THE AGREEMENT; AND (3) THE LICENCEE AGREES TO ALL TERMS AND CONDITIONS. THIS IS A LEGAL AGREEMENT BETWEEN WELLSIGHT SYSTEMS INC., AN ALBERTA REGISTERED CORPORATION (“WellSight“) AND THE PURCHASER, USER, OR OWNER (THE “Licensee“) OF THE SOFTWARE PRODUCT(S) KNOWN AS StripLog, MudLog, HorizontalLog, WellSight LogManager and WellSight Free LogViewer (the “Software Product“). PLEASE NOTE: THE TERMS CONTAINED HEREIN MAY HAVE CHANGED. FURTHER, THIS AGREEMENT CONTAINS TERMS THAT APPLY TO A PERPETUAL RIGHT TO USE THE SOFTWARE AND TERMS THAT APPLY TO A SOFTWARE SUBSCRIPTION (DEPENDING UPON HOW YOU PURCHASED THE RIGHT TO USE THE SOFTWARE) AND TERMS THAT ARE COMMON TO EACH OF THE FOREGOING. The terms of any Software Order are incorporated by reference. If you have executed a separate written license agreement with Company for the Product, the terms of that separately executed agreement will supersede the terms of this Agreement.
RIGHT TO USE1. Subject to the restrictions set forth below, the Licensee may:
- Install the number of authorized copies of the Software Product in executable form for the Licensee’s internal operations;
- Make a single backup copy of the Software Product, provided the backup copy is not used for production purposes;
- Access, use and permit the Licensee’s employees, agents, representatives, or contractors designated by the Licensee (“Authorized Users“) to access and use the Software Product in accordance with this Agreement; and
- Use the Documentation for the Licensee’s internal operations.
USE RESTRICTIONS5. By accepting the rights granted by WellSight, the Licensee agrees that the Licensee will not, without the prior written consent of WellSight:
- Sell, license, sublicense, distribute, lease, assigned or otherwise transfer or allow the transfer of the Software Product, or any backup copy, to third parties;
- Use the Software Product in any manner inconsistent with the rights granted herein including, but not limited to:
- Use of the Software Product in a service bureau;
- Rent, lease, lend, or use the Software Product to provide commercial hosting services;
- Use of more copies or users than the number of authorized copies or users, whichever the case may be, of the Software Product; or
- Permit access to the Software Product by more than the number of Authorized Users.
- Modify or create derivative works of the Software Product or Documentation;
- Separate the Software Product’s component parts for use on more than one device;
- Unless specifically permitted under applicable law without the possibility of contractual waiver, attempt to:
- Alter, decompile, disassemble or reverse engineer the Software Product,
- Derive source code or underlying ideas, algorithms, structure or organization from the Software Product, or
- Defeat, avoid, bypass, remove, deactivate or otherwise circumvent any software protection mechanisms in the Software Product, including without limitation any such mechanism used to restrict or control the functionality of the Software Product.
- The Licensee agrees that data shall only be inputted in the Software Product, reviewed and verified by a Qualified Professional.
TAXES7. If any authority imposes a duty, tax, levy or fee, excluding those based on WellSight’s net income, upon the Software Product, the Licensee agrees to pay the amount specified. 8. The Licensee is responsible for any personal property taxes for the Software Product from the date upon which it was acquired.
COPYRIGHT AND PROPRIETARY9. WellSight and its suppliers reserve all rights with respect to the Software Product and any copies under all applicable national and international laws and treaties for the protection of Intellectual Property, including, but not limited to, trade secrets, copyrights, trademarks and patents. Any rights not expressly granted to the Licensee in this Agreement are retained by WellSight and its suppliers. 10. Except as otherwise provided in this Agreement, the Licensee shall not cause or permit:
- Unauthorized copying, reproduction, or disclosure of any portion of the Software Product, or
- The delivery or distribution of any part thereof to any third party, for any purpose, without the prior written consent of WellSight.
EXPORT11. The Licensee will not ship, transfer or export the Software Product to any country. The Licensee will not use the Software Product in any manner prohibited by any export laws national or international, restrictions or regulations that apply to the Software Product. The Licensee agrees to indemnify and hold WellSight harmless for any violation of this provision.
LIMITED WARRANTY12. WellSight warrants that it has sufficient rights to grant the rights in the Software Product pursuant to this Agreement. WellSight further warrants that the Software Product will operate substantially in accordance with its written specifications. No warranty is made that the Software Product will run uninterrupted or error-free. The warranty period for the Software Product and Documentation is 30 days from delivery (“Warranty Period“). 13. WellSight’s and its suppliers’ entire liability and the Licensee’s exclusive remedy for any breach of this limited warranty or for any other breach of this Agreement or for any other liability relating to the Software Product shall be, at WellSight’s option from time to time exercised subject to applicable law, (a) repair, (b) replacement, or (c) return with proof of purchase and refund of the applicable software fees, of a Software Product that does not meet this limited warranty. The Licensee will receive the remedy elected by WellSight without charge, except that the Licensee is responsible for any expenses the Licensee may incur (e.g., cost of shipping the Software Product to WellSight, third party services not provided by WellSight). 14. This limited warranty is void if failure of the Software Product has resulted from accident, abuse, misapplication, abnormal use or a virus. Any replacement Software Product will be warranted for the remainder of the original warranty period and WellSight will use commercially reasonable efforts to provide a remedy within a commercially reasonable time of the Licensee’s compliance with WellSight’s warranty remedy procedures. Outside the United States or Canada, neither these remedies nor any product support services offered by WellSight are available without proof of purchase from an authorized international source. 15. The preceding warranties are the only warranties related to the Software Product, and are made in lieu of all other warranties and conditions, express or implied, including, but not limited to any implied warranties of merchantability, fitness for a particular purpose, or non-infringement. 16. If an implied warranty or condition is created by the Licensee’s state/jurisdiction and federal or state/provincial law prohibits disclaimer of it, the Licensee also has an implied warranty or condition, but only as to defects discovered during the period of this limited warranty (30 days from delivery). As to any defects discovered after the 30 day period, there is no warranty or condition of any kind. 17. WellSight is acting on behalf of its suppliers for the purpose of disclaiming, excluding, and/or limiting obligations, warranties, and liability as provided in this Agreement, but in no other respects and for no other purpose.
SOFTWARE PRODUCT UPGRAGES AND UPDATES18. WellSight may from time to time complete updates and upgrade to the Software Product. Depending on the significance of the update and/or upgrade, an additional license may need to be purchased such as in the instance of a Major upgrade. The Licensee is solely responsible to ensure that they, their affiliates, employees, agents, or representatives are always in possession of the appropriate license and appropriate number of licenses.
LIMITATION OF LIABILITIES19. IN NO EVENT WILL WELLSIGHT, ITS PRODUCT DEVELOPERS, AGENTS OR SUPPLIERS HAVE ANY OBLIGATION OR LIABILITY (WHETHER IN TORT, CONTRACT, STATUTE, WARRANTY OR OTHERWISE AND NOTWITHSTANDING ANY FAULT, NEGLIGENCE, PRODUCT LIABILITY, OR STRICT LIABILITY), FOR ANY INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOST REVENUE, LOSS OF OR DAMAGE TO DATA, PROFITS OR BUSINESS INTERRUPTION LOSSES, SUSTAINED OR ARISING FROM OR RELATED TO THE SOFTWARE PRODUCT, DOCUMENTATION OR SERVICES IN RELATION TO THE SOFTWARE PRODUCT, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. WELLSIGHT’S LIABILITY FOR ANY REASON AND UPON ANY CAUSE OF ACTION SHALL AT ALL TIMES AND IN THE AGGREGATE AMOUNT BE LIMITED TO THE AMOUNT ACTUALLY PAID BY THE LICENSEE TO WELLSIGHT UNDER THIS AGREEMENT, DURING THE TWELVE MONTH PERIOD IMMEDIATELY PRECEDING THE DATE THE CLAIM OR CAUSE OF ACTION AROSE, OR IN THE CASE OF THE FREE LOG VIEWER, NO COMPENSATION SHALL BE PAID. NO ACTION OR PROCEEDING AGAINST WELLSIGHT MAY BE COMMENCED MORE THAN TWO YEARS AFTER THE CLAIM ARISES EXCEPT FOR WELLSIGHT CLAIMS RELATING TO COLLECTION OF FEES DUE AND PAYABLE BY THE LICENSEE. THIS SECTION SHALL SURVIVE FAILURE OF AN EXCLUSIVE REMEDY. 20. ANY USE WHATSOEVER IN RELATION TO THE SOFTWARE PRODUCT IS DONE SO AT THE LICENSEES, AFFILIATES, EMPLOYEES, AGENTS, OR REPRESENTATIVES OWN RISK. 21. WELLSIGHT SHALL NOT BE IN ANY WAY RESPONSIBLE FOR THE NATURE, RELIABILITY OR VERACITY OF ANY DATA INPUTTED INTO THE SOFTWARE PRODUCT. THE LICENSEE, INCLUDING ITS AGENTS, ACKNOWLEDGES THAT THEY ARE SOLELY RESPONSIBLE TO ENSURE THAT ONLY A QUALIFIED PROFESSIONAL REVIEWS AND INPUTS DATA INTO THE SOFTWARE PRODUCT AND ASSUMES FULL AND TOTAL RESPONSIBILITY FOR THE ACCURACY, INTEGRITY AND CONTINUITY OF ANY INFORMATION INPUTTED INTO THE SOFTWARE PRODUCT. ALL DATA REVIEWED, AND/OR VERIFIED BY LICENSED AND QUALIFIED PROFESSIONAL GEO-SCIENTISTS IS DONE AT THEIR OWN RISK AND WELLSIGHT HOLDS NO RESPONSIBILITY ARISING THEREFROM. WELLSIGHT SHALL NOT BE RESPONSIBLE FOR THE NEGLIGENCE, GROSS NEGLIGENCE, OR WILLFULL ACTIONS OR INACTIONS OF ANY THIRD PARTY, THE LICENCEE, ITS AFFILIATES, EMPLOYEES, AGENTS, OR REPRESENTATIVES, INCLUDING ERRORS WHEN INPUTTING, REVIEWING, OR VERIFYING THE INFORMATION IN THE SOFTWARE PRODUCT. 22. WELLSIGHT SHALL NOT BE RESPONSIBLE FOR THE NEGLIGENCE, GROSS NEGLIGENCE, OR WILLFUL ACTIONS OR INACTIONS OF ANY THIRD PARTY. 23. EXCEPT FOR AUTHORIZED WELLSIGHT SUBCONTRACTORS, THIS LIMITATION SHALL APPLY EVEN TO THIRD PARTIES THAT MAY HAVE BEEN CERTIFIED PURSUANT TO A WELLSIGHT CERTIFICATION PROGRAM OR RECOMMENDED OR REFERRED TO THE LICENSEE BY WELLSIGHT. 24. THE LICENSEE, INCLUDING ITS AGENTS, AGREES TO INDEMNIFY, DEFEND AND HOLD HARMLESS WELLSIGHT, INCLUDING ITS DIRECTORS, OFFICERS, EMPLOYEES, SUBCONTRACTORS, SUPPLIERS, AND REPRESENTATIVES, FROM AND AGAINST ANY AND ALL COSTS, DEMANDS, CAUSES OF ACTION, LOSSES, LIABILITIES, EXPENSES, DAMAGES, SUITS, ACTIONS, LEGAL FEES (ON A SOLICITOR AND HIS OWN CLIENT FULL INDEMNITY BASIS), CLAIMS AND JUDGMENTS THAT WELLSIGHT SUFFERS OR INCURS DIRECTLY OR INDIRECTLY AS A RESULT OF ANY MATTER, CAUSE OR THING RELATED TO THE LICENSEE’S USE OF THE SOFTWARE PRODUCT.
INVOICES AND PAYMENT25. Unless otherwise agreed upon in writing, the fees relating to software, subscription, services, or any related charges, shall be payable in full upon order, or, if invoiced by WellSight, within 30 days from the date the invoice is rendered. Subject to this Agreement, all Licenses are treated individually and any claim for refund shall only apply to the specific and particular License in question and no such refund claim shall be conjoined to any other License that the Licensee may hold. 26. The Licensee shall be liable for all costs of collection incurred by WellSight including without limitation: collection agency fees, reasonable attorney’s fees, and court costs if the Licensee fails to comply with the payment obligations set forth herein.
MISCELLANEOUSGoverning Law 27. This Agreement shall be governed in all respects and, in respect of any dispute which may arise hereunder, without regard to conflicts of law, by the laws in force in the Province of Alberta, Canada. 28. The Licensee consents to the jurisdiction of the courts sitting in the City of Calgary in the Province of Alberta. Any action, suit, or proceeding arising under or in connection with the Software Product, Maintenance & Technical Support Services, or this Agreement must be commenced within two (2) years after the claim or cause of action arises. The Crown is Bound 29. Except as otherwise provided for in an enactment of the Parliament of Canada or of the Legislature of any Province in Canada, this Agreement is binding on the Crown. U.S. Government Rights 30. The Product and Documentation are “Commercial Items” as that term is defined at 48 CFR 2.101 consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation” as such terms are used in 48 CFR 12.212 or 48 CFR 227.7202, as applicable. The rights to the Software Product are granted to U.S. Government Licensees (a) only as Commercial Items and (b) only with those rights as are granted to all other Licensees pursuant to the terms and conditions of this Agreement. Technical Information 31. By licensing the Software Product, the Licensee agree that WellSight and its Affiliates may collect, use and compile and monitor statistical information based on non-personally identifiable information gathered or transmitted to WellSight or its Affiliates via the Software Product for the purpose of verifying proper authorization of all copies of the Software Product in use by the Licensee, as well as for the purpose of improving WellSight’s Products and services and for new product and technology development. Modifications 32. WellSight reserves the right to change or modify the terms and conditions of this Agreement immediately without notice to the Licensee. If any changes are made to this Agreement, such changes will:
- Only be applied prospectively;
- Not be specifically directed against the Licensee or the Licensee’s Authorized Users; and
- Apply to all similarly situated customers using the Software Product. Continued use of the Software Product after the effective date of any change to this Agreement constitutes the Licensee’s acceptance of the change but shall not affect any termination rights contained herein.
DEFINITIONS“Affiliate(s)” means a corporation, partnership, or other legal entity that controls, is controlled by, or is under common control with that party, either directly or through another Affiliate, but only while that control relationship exists; “Authorized Users” mean the Licensee’s total number of authorized employees, agents, representatives, or contractors to whom the Licensee provides access to the Software Product which the Licensee has licensed from WellSight. “Control” of an entity means the power to direct the management and policies of that entity through a controlling vote on the board of directors or similar governing body of that entity or the ownership of interests entitled to more than one-half or 50% of the votes of that entity “CPU” means a single computer, a central processing unit or logical partition (if a computer or server has more than one processor or logical partition) and/or a virtual machine(s). “Documentation” means a written guide in any form or media describing the use and operation of Software Product, together with any related supporting documentation. “Intellectual Property Rights” shall include, without limiting the generality of the foregoing, any and all tangible and intangible: (1) rights associated with works of authorship (including source code), including copyrights, audiovisual rights, moral rights, neighboring rights, and derivative works thereof, including proprietary rights; (2) trademarks and trade name rights service marks and all other intellectual property rights; (3) trade secret rights; (4) all current and future patents, patent applications (including, without limitation, all reissues, divisions, renewals, extensions, continuations and continuations-in-part), design rights, and other industrial property rights or proprietary rights; and (5) all other intellectual property rights (of every kind and nature however designated) whether arising by operation of law, treaty, contract, license, or otherwise, together with all registrations, initial applications, renewals, extensions, continuations, divisions or reissues thereof originating in Canada, the United States or any other country, state, province, territory or jurisdiction. “License” shall have the meaning ascribed to it in the paragraphs of this Agreement under the headings of Right to Use and User Restrictions. In particular and in addition, a license may be of the following types:
- “Concurrent Use” means that the Software may be installed on a multiple CPUs or on a central server, but may only be accessed and used by a specified number of Authorized Users simultaneously.
- “Enterprise” means that the Software may be installed and made available to all Authorized Users within the Licensee’s organization, provided that, in some instances the total number of Authorized Users may be limited.
- “Seat” means that the Software may be used by any Authorized User on any computer that can access the License Server, to the maximum amount of Concurrent Users.
- “Server” means that the Software may be installed on a single server for use enterprise-wide by the Licensee’s Authorized Users.
- “User” means that the Software may be installed on multiple CPUs so long as it is accessed and used by only the Authorized User for which it was intended. (e.g., may be installed on an Authorized User’s desktop, laptop, or accessed remotely from the Licensee’s server. A license must be purchased for each intended Authorized User)