WELL DATA LABS, INC.
TERMS OF SERVICE
This End User Agreement (“Agreement”) is by and between WELL DATA LABS, INC., (“Company” or “we” or “our” or “us”), and you (“you” or “Customer”). COMPANY PROVIDES CERTAIN SOFTWARE AND SERVICE SOLELY ON THE TERMS AND CONDITIONS SET FORTH IN THIS AGREEMENT AND ON THE CONDITION THAT YOU ACCEPT AND COMPLY WITH THEM. BY CHECKING THE “AGREE” BOX YOU (A) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS; AND (B) REPRESENT AND WARRANT THAT: (I) YOU ARE 18 YEARS OF AGE OR OLDER; AND (II) IF YOU ARE A CORPORATION, GOVERNMENTAL ORGANIZATION OR OTHER LEGAL ENTITY, YOU HAVE THE RIGHT, POWER AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF SUCH ENTITY AND BIND SUCH ENTITY TO ITS TERMS. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, COMPANY WILL NOT AND DOES NOT GRANT YOU ANY RIGHTS TO THE SOFTWARE OR SERVICE, AND YOU MUST NOT USE THE SOFTWARE OR SERVICE. This Agreement is effective as of the date you checked “agree” or began using the Service (“Effective Date”). You agree as follows:
1.1 License. Subject to the terms and conditions of this Agreement, Company grants to you, during the Term (as defined below), a non-exclusive, non-transferable right to remotely access and use the proprietary software (the “Software”) made available by Company through this website (the “Site”), solely for the performance of your internal business purposes (the “Service”). The specific Service to which you are granted access may be set forth in a purchase order between you and Company (“Order”). If you are accessing the Site or Service on behalf a third party, your rights to access and use the Site and Service are limited by such third party’s rights; you agree that Company has no obligations or responsibility to you directly.
1.2 Product Specific Restrictions. Certain Software products offered in connection with the Service may be subject to additional restrictions and/or obligations on you, which are further defined in this Agreement or in the applicable Order.
1.3 Access and Users. You are responsible for the acts and omissions of each person authorized by you to access or use the Service (each a “User”). You will use commercially reasonable efforts to prevent unauthorized access to, or use of, the Service, and notify Company promptly of any such unauthorized use. You are responsible for maintaining the confidentiality of all Users’ usernames and passwords, and is solely responsible for all activities that occur under these usernames. You agree (a) not to allow a third party to use its account, usernames or passwords at any time; and (b) to notify Company promptly of any actual or suspected unauthorized use of its account, usernames or passwords, or any other breach or suspected breach of this Agreement. Company reserves the right to terminate any username and password which Company reasonably determines may have been used by an unauthorized third party or by any User or individual other than the User to whom such username and password was originally assigned.
1.4 Support Company may provide limited support for any questions or issues related to the Services in its discretion. Company has no other obligation to provide any support services in connection your use of the Service, but may do so in its discretion. Company may, in its sole discretion, provide you with access to certain modifications, updates and/or upgrades (collectively, “Updates”) to the Service and associated documentation in order to improve the performance thereof. Updates will be considered to be part of the Service.
1.5 Proprietary Rights; Restrictions on Use. The Service (including the Software and any updates or enhancements thereto), the look and feel and layout of any deliverables generated in connection with the Service, and all worldwide intellectual property rights therein, are the exclusive property of Company and its licensors. All rights in and to the Service not expressly granted in this Agreement are reserved by Company. Except as expressly permitted in this Agreement or as otherwise authorized by Company in writing, you will not, and will not permit any User to (a) modify, adapt, alter, translate, or create derivative works from the Service; (b) sublicense, lease, rent, loan, sell, distribute, make available or otherwise transfer the Service to any third party, (c) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code for the Service; (d) interfere in any manner with the operation of the Service; (e) remove, alter, or obscure any proprietary notices (including copyright notices) of Company or its licensors displayed in connection with the Service; or (f) otherwise use the Service except as expressly allowed under this Agreement.
1.6 Customer Data. You acknowledge and agrees that Company requires access to certain data and content from you in order to provide the Service (“Customer Data”). You hereby grants to Company a non-exclusive, non-transferable right and license to use the Customer Data during the Evaluation Term solely for the limited purpose of performing Company’s obligations hereunder. Subject to the rights granted in this Agreement, you retain all right, title and interest in and to the Customer Data, and Company acknowledges that it neither owns nor acquires any additional rights in and to the Customer Data not expressly granted by this Agreement.
1.7 Early Access Program. If you are offered the right to use the Service as part of the Early Access Program, you shall, periodically and at Company’s request, provide to Company comments, criticisms, suggested improvements and other feedback, about the use, operation, functionality and features of the Service (collectively, the “Feedback”). The Feedback shall include, without limitation, any information about operating results, known or suspected bugs, errors or compatibility problems, user-desired features and the results of any and all benchmark or similar testing conducted in connection with the Service. In addition, you shall report to Company any unusual, unplanned or out-of-the-ordinary performance of the Service observed by any of your personnel. You agree that Company has the unrestricted right to use the Feedback at its sole discretion, without notice to, payment of, or consent from you.
2. WARRANTY DISCLAIMER.
THE PARTIES ACKNOWLEDGE THAT THE SERVICE IS MADE AVAILABLE “AS-IS” WITHOUT ANY WARRANTY OF ANY KIND. COMPANY HEREBY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY REGARDING THE SERVICE, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT AND ANY WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE.
3. LIMITATION OF LIABILITY.
IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL, OR INCIDENTAL DAMAGES, INCLUDING ANY LOST DATA AND LOST PROFITS, ARISING FROM OR RELATING TO THIS AGREEMENT EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. COMPANY’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT OR THE SERVICE, WHETHER IN CONTRACT OR TORT OR OTHERWISE, WILL NOT EXCEED THE AMOUNT OF FEES PAID TO COMPANY HEREUNDER DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENTS GIVING RISE TO SUCH LIABILITY.
4.1 Confidential Information. That information regarding the existence and functionality of the Company Service is extremely valuable to Company. You will implement reasonable security measures to maintain the confidentiality of the Company Service and any Confidential Information provided by Company. you will (a) hold all Company Confidential Information in confidence, (b) not disclose any Confidential Information of Company to any third party, (c) will not disclose any Confidential Information of Company to any employee who does not have a need to know for the purposes of this Agreement, or (d) use the Confidential Information except in connection with its use of the Service. As used herein “Confidential Information” includes any information identified by Company as “confidential” or “proprietary”, or that you know, or reasonably should know, is considered by Company to be confidential.
4.2 Publicity; Public Evaluation. You shall not, without Company’s prior written consent, publish or disclose to any third party an evaluation of the Service.
4.3 Injunctive Relief. You acknowledge that a breach or threatened breach of this Section would cause irreparable harm to Company, the extent of which would be difficult to ascertain. In addition to any other remedies to which a Company may be legally entitled, Company shall have the right to seek immediate injunctive or other equitable relief in the event of a breach of this Section by the other party or any of its employees or agents.
5. TERM; TERMINATION.
5.1 Term. The term of this Agreement will begin on the Effective Date and will continue for the period of time set forth on your Order, after which it shall automatically continue to renew for successive periods equal to the period set forth on your Order (the “Term”). Either party may terminate this Agreement if the other party breaches any material provision of this Agreement and does not cure such breach within thirty (30) days after receiving written notice thereof. If the Service becomes, or Company believes may become, the subject of any claim, suit or proceeding alleging infringement of any intellectual property right, or otherwise restricted or prohibited, Company may terminate this Agreement immediately upon notice to Company. Upon expiration or termination of this Agreement, the licenses granted hereunder shall terminate effective immediately and, Company shall promptly (a) discontinue use of the Company Service, and any other Company Confidential Information; (b) return, at Company’s expense, any Company Confidential Information in Company’s possession or control; (c) destroy all electronic copies of any Company Confidential Information; and (d) certify that Company has complied with the foregoing requirements.
5.2 Suspension. Company reserves the right, in Company’s reasonable discretion, to temporarily suspend your access to and use of the Service: (a) during planned downtime for upgrades and maintenance to the Company Service; (b) during any unavailability caused by circumstances beyond our reasonable control, such as, but not limited to, acts of God, acts of government, acts of terror or civil unrest, technical failures beyond our reasonable control (including, without limitation, inability to access the Internet), or acts undertaken by third parties, including without limitation, distributed denial of service attacks; (c) if we suspect or detect any malicious software connected to your use of the Company Service or (d) if you reasonably believe you or your agents, Users, or representatives have violated this Agreement.
6. FEES; AUDIT.
6.1 Charges. You shall pay all fees or charges to your account in accordance with the fees, charges, and billing terms set forth in your Order, and if not such terms are set forth in your Order, you shall pay the fees charges in accordance with the fees, charges, and billing terms in effect at the time a fee or charge is due and payable. You may need to provide Company with a valid credit card as a condition to signing up for the Service. Amounts due are automatically deducted from your credit card each month in accordance with the applicable payment terms. Company reserves the right to modify its fees and charges and to introduce new charges at any time, upon at least thirty (30) days prior notice to you, which notice may be provided by e-mail.
6.2 Records and Reports. At all times during the Term, and for at least one (1) year after any termination of this Agreement, each party will maintain complete and accurate records of (i) your usage of the Company Software and Company Services as reasonably necessary for verification of your compliance with the terms and conditions of this Agreement, and (ii) your performance under this Agreement as reasonably necessary for verification of Company’s compliance with the terms and conditions of this Agreement, with respect to Company. At Company’s request, you agree to make all such records available for Company’s inspection to verify your compliance with this Agreement.
7.1 By Company. Company will defend at its expense any suit brought against you, and will pay any settlement Company makes or approves, or any damages finally awarded in such suit, insofar as such suit is based on a claim by any third party alleging that the Service misappropriates any trade secret recognized under the Uniform Trade Secrets Act or infringes any United States copyright. If any portion of the Service becomes, or in Company’s opinion is likely to become, the subject of a claim of infringement, Company may, at Company’s option: (a) procure for you the right to continue using the Service; (b) replace the Service with non-infringing services which do not materially impair the functionality of the Service; (c) modify the Service so that it becomes non-infringing; or (d) terminate the Service and refund any pre-paid fees actually paid by you to Company for the remainder of the Term then in effect, and upon such termination, you will immediately cease all use of the Service. Notwithstanding the foregoing, Company shall have no obligation under this section or otherwise with respect to any infringement claim based upon (w) any use of the Service not in accordance with this Agreement or the Documentation; (x) Company’s conformance to your specifications; (y) any use of the Service in combination with other products, equipment, software or Content not supplied by Company; or (z) any modification of the Service by any person other than Company or its authorized agents. This subsection states your sole and exclusive remedy for infringement claims and actions.
7.2 By You. You will defend at your expense any suit brought against Company and will pay any costs, expenses (including attorney’s fees), damages and other losses suffered by Company in connection therewith insofar as such suit is based on a claim by any third party based upon, resulting from or related to (a) any improper or unauthorized use of the Service by you or your Users or (b) any Customer Data.
7.3 Procedure. The indemnifying party’s obligations as set forth above are expressly conditioned upon each of the following: (a) the indemnified party shall promptly notify the indemnifying party in writing of any threatened or actual claim or suit; (b) the indemnifying party shall have sole control of the defense or settlement of any claim or suit; and (c) the indemnified party shall cooperate with the indemnifying party to facilitate the settlement or defense of any claim or suit
8.1 Non-Exclusive. This Agreement shall not be construed to limit or prohibit Company in any manner or fashion in providing products and/or services of any type of nature including those identical to the Service to any other customer in its sole discretion.
8.2 Assignment. Neither party may assign or transfer, by operation of law or otherwise, any of its rights under this Agreement (including the license rights granted to you to access the Service) to any third party without the other party’s prior written consent, which consent shall not be unreasonably withheld or delayed. Notwithstanding the foregoing, Company may assign its rights and obligations under this Agreement to a parent, affiliate, or subsidiary, or to a successor, whether by way of merger, sale of all or substantially all of its assets or otherwise. Any attempted assignment of this Agreement not in accordance with this subsection shall be null and void.
8.3 Relationship of Parties. The relationship of the parties established under this Agreement is that of independent contractors and neither party is a partner, employee, agent or joint venture partner of or with the other, and neither party has the right or authority to assume or create any obligation on behalf of the other party.
8.4 Force Majeure. Except for any payment obligations, neither party shall be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder for any cause which is beyond the reasonable control of such party.
8.5 Notices. All notices, consents, and approvals under this Agreement may be delivered by Company to you to the email address you’ve provided to us. All notices, consents, and approvals under this Agreement must be delivered by you to Company to firstname.lastname@example.org.
8.6 Governing Law and Venue. This Agreement will be governed by and interpreted in accordance with the laws of Colorado, without reference to its choice of laws rules. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
8.7 Waivers. All waivers must be in writing. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
8.8 Severability. If any provision of this Agreement is unenforceable, such provision will be changed and interpreted to accomplish the objectives of such provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect.
8.9 Entire Agreement. This Agreement (including all exhibits and attachments) constitutes the entire agreement between the parties regarding the subject matter hereof and supersedes all prior or contemporaneous agreements, understandings, and communication, whether written or oral regarding such subject matter. Company reserves the right to modify this Agreement at any time. If Company modifies this Agreement, Company will notify you of the change and you will be asked to accept such change in order to continue to use the Service. If any modified terms and conditions are not acceptable to you, your sole remedy is to cease using the Service. By continuing to access or use the Service after Company makes any such revision, you agree to be bound by the revised Agreement