IMPORTANT – READ CAREFULLY. THIS IS THE END USER LICENSE AGREEMENT BY AND BETWEEN (1) YOU, THE “LICENSEE” OR “CLIENT”, WHO IS THE AUTHORIZED USER UTILIZING “RigER” AND (2) RIGER CORPORATION AND ITS AFFILIATES (“BSC” OR “LICENSOR”). BY CLICKING THE “I ACCEPT” BUTTON, OR BY USING RigER, YOU CONSENT TO BE BOUND BY THE TERMS OF THIS AGREEMENT (“AGREEMENT”). IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT YOU WILL NOT BE ALLOWED USAGE OF RigER.
1. Definitions.
- “Affiliate” means any person or organization who (i) controls either directly or indirectly a Party; (ii) is controlled directly or indirectly by such a Party; or, (iii) is directly or indirectly controlled by a Person who directly or indirectly controls such Party.
- “Agreement” means this Master Services Agreement, including all Schedules, SOWs and all amendments hereto and “hereto”, “hereunder”, “hereof” or “herein” and similar expressions mean and refer to this Agreement and not to any particular Article or Section hereof.
- “Authorized User” or “User” means an individual who is designated by the Licensee to access and use the Services pursuant to this Agreement.
- “Fees” means those fees payable by Licensee for use of Services as further described in a Services Schedule.
- “Party” means Licensor (or its Affiliate if applicable) or Licensee and “Parties” means both of them;
- “RigER Products” means any software provided by Licensor including but not limited to program, platform, configuration, application, patches, upgrades, releases and modifications thereto listed in Schedule “B”.
- “Services” means services provided by Licensor in accordance with this agreement and a Services Schedule.
- “SOW” means a written description of the Services and terms agreed upon by the Parties in such form as may be approved by the Parties.
2. Schedules. The following Schedules annexed hereto and incorporated by reference and deemed to be a part of the Agreement:
Schedule “A” – Services Schedule.
Schedule “B” – RigER Products Schedule.
3. Grant of License. Subject to the terms and conditions of this Agreement, Licensor grants Licensee a non-sublicensable, non-transferable, non-exclusive, fully revocable license to access and use RigER solely for internal use and operation upon the terms and conditions contained in this agreement. Client may use and access RigER according to the license level as outlined in the proposal or renewal notice. For purposes of this agreement, “use” of RigER means accessing RigER over a computer and mobile network.
4. Modifications and Proprietary rights. Subject to the rights expressly granted hereunder to Licensee, Licensor shall retain all right, title and interest in and to the Services, and all modifications and additions thereto, including all related Intellectual Property rights, except as may be expressly set out in a Services Schedule. No rights are granted to Licensee hereunder other than as expressly set forth herein. Licensor’s Intellectual Property shall be deemed to mean and include: (a) the Software, business processes and analytics technologies of Licensor, including without limitation; any algorithms, analyses, documentation, formats, formulas, inventions, know-how, methodologies, processes, tools, trade secrets, and products, and (b) any and all derivative works, enhancements, or other modifications to any of the above. Licensor’s Intellectual Property shall not include any Licensee Intellectual Property or Licensee data. The Parties acknowledge and agree that Licensor’s business model relies upon continuous improvements of Licensor’s Intellectual Property resulting from the analytical and developmental services that Licensor provides to all of its current and future customers, including Licensee, and that Licensor shall have the right to integrate the algorithms, analyses, documentation, formats, formulas, inventions, know-how, methodologies, processes and tools developed by Licensor pursuant to this Agreement and/or any Services Schedule or Order Form entered into by the Parties pursuant to this Agreement, into Licensor’s product and service offerings, without Licensee’s having any rights therein.
5. Restrictions. The license is granted solely to the Client, and not to any parent, subsidiary, or Affiliate of the Client. All rights not expressly granted hereunder are reserved to Licensor. The license does not include (b) derivative products developed by Licensor or anyone else to whom Licensor may license RigER, or (c) a license or transfer of any intellectual property rights owned or controlled by Licensor or any Licensor affiliate, subsidiary, or parent. The Licensee shall not modify, adapt, translate, prepare derivative works from, decompile, reverse engineer, disassemble, or otherwise attempt to derive source code from, or any internal data files generated by RigER, rent, lease or loan RigER, or use RigER in any manner that constitutes a breach of this agreement or violates any applicable law or regulation, including without limitation any third party copyright or other intellectual property or proprietary right, except to the extent that such activity is expressly permitted by applicable law notwithstanding this limitation. Client shall use commercially reasonable efforts to ensure that all Authorized Users comply with the terms and conditions of this Agreement including, without limitation, with Licensee’s obligations set forth in this Agreement.
6. Ownership. Licensor owns and shall retain all rights, title, and interest in and to RigER, any updates or maintenance releases, and any related media, online or electronic documentation, including all copyrights, trade secret rights, trademarks, and other Intellectual Property rights thereto. RigER is protected by the copyright laws of Canada and USA, international copyright treaties and conventions, and other laws, and all rights are reserved.
- Grant of Privilege to Licensor. Client exclusively owns all rights in and to information it stores on RigER (“Information”). By providing Information, Licensee grants Licensor a limited, perpetual, irrevocable, non-exclusive, fully paid, royalty-free, sub-licensable, transferable, and worldwide privilege to use, modify, perform, display, reproduce and distribute the Information for the sole purpose of operating RigER and providing related services. Licensor shall also have an unlimited, perpetual, non-exclusive, fully-paid, royalty-free, sub-licensable, transferable, and worldwide privilege to use, incorporate into RigER, modify, perform, display, reproduce, and distribute any suggestions, enhancement requests, recommendations, or other feedback provided by Client relating to the operation or features of RigER.
- Use Reporting, License Violations and Remedies. Licensor reserves the right to gather data on Client’s usage of RigER to ensure that our products are being used in accordance with the terms of this agreement. Client agrees to allow Licensor, or an authorized agent, to audit Client’s use of the RigER (including that of the Authorized Users). Licensor will provide at least ten (10) days advance notice prior to the audit, and the audit will be conducted during normal business hours. Licensor will bear all costs incurred during the audit, unless the audit reveals that Client has exceeded the level of use outlined in the SOW. Client will provide reasonable assistance, cooperation, and access to relevant information in the course of any audit. If Client is found in breach of the level of use, Licensor will invoice Client for any past or ongoing excessive use, payable promptly after receipt. Any unauthorized use shall be considered by Licensor to be a violation of this agreement. Licensor reserves the right to remedy violations immediately upon discovery by any means necessary.
- Liability for Third Parties. Should Licensee make available any software, login identifications, or security credentials, or other means of access to RigER to third parties, whether deliberately or through error or omission, Licensee agree that any and all use of RigER by such third parties, regardless of whether such use is specifically authorized or unauthorized by Licensee, shall be legally attributed to Licensee, and Licensee hereby accepts liability for any and all such use.
7. Client Responsibilities. Client will (a) be responsible for Authorized Users’ compliance with this Agreement and related documentation, (b) be responsible for the accuracy, quality and legality of Client data, the means by which Client acquired Client data, Client’s use of Client data with the Services, and the interoperation of any Non-RigER applications with which Client uses Services, (c) use commercially reasonable efforts to prevent unauthorized access to or use of Services, and notify Licensor promptly of any such unauthorized access or use, (d) use Services only in accordance with this Agreement and applicable laws and government regulations, and (e) comply with terms of service of any Non-RigER applications with which Client uses Services. Access credentials (user name, password, client PIN, whitelisted client IP addresses, access URL, e-mail address, phone number) and access mechanism are for use only by the Client and its authorized users, to use the Service. These credentials may not be sold, transferred, shared, or sublicensed to anyone else. The Authorized Users shall maintain their access credentials confidential and may not transfer them to or allow them to be used by any third party, other than by authorized users of the Services. If the Licensor believes access credentials have been compromised or misused, they may change any or all access credentials or suspend Client’s account. Client shall take all necessary steps to ensure an Authorized User’s License access is deactivated in the case of changes to such Authorized User’s employment status.
Any use of the Services in breach of the foregoing by Client or Authorized Users that in Licensor’s judgment threatens the security, integrity or availability of Licensor’s services, may result in Licensor’s immediate suspension of the Services, however Licensor will use commercially reasonable efforts under the circumstances to provide Client with notice and an opportunity to remedy such violation or threat prior to any such suspension.
8. No Unlawful or Prohibited Use. As a condition of RigER use, Licensee warrants that they will not use RigER for any purpose that is unlawful or prohibited by this agreement. Client may not use RigER in any manner which could damage, disable, overburden, or impair RigER or interfere with any other Party’s use of RigER. Client may not obtain or attempt to obtain any materials or information through any means not intentionally made available or provided for through RigER or Licensor.
The following is a non-exclusive list of actions that BSC considers to be inappropriate and thus prohibited. The examples identified in this list are provided as examples only for your guidance. If you are unsure whether any contemplated use or action is permitted, please contact BSC.
- Using RigER® for any activity that violates any local, provincial, state, regional, federal or international law, order or regulation.
- Using RigER to transmit, distribute, store or access any material (by e-mail, publishing, uploading, posting or otherwise) which is inappropriate, profane, obscene, indecent, pornographic, libelous, harassing, constitutes a threat or encourages bodily harm or destruction of property, or otherwise objectionable or unlawful.
- Using RigER® to transmit, distribute, store or access any material (by e-mail, publishing, uploading, posting, or otherwise) that infringes copyright, trademark, patent, trade secret, or other proprietary rights of any third party. You assume all risks regarding the determination of whether material is in the public domain.
- Using RigER® to make fraudulent offers to buy or sell products, items, or services, or to advance any type of financial/soliciting scams including, but not limited to, “pyramid schemes,” “Ponzi schemes,” “mail bombing,” and “chain letters.”
- Using RigER® to harm or attempt to harm a minor, including, but not limited to, hosting, possessing, distributing, or transmitting child pornography or other material that is unlawful.
- Any fraudulent activities, including impersonating any person or entity or forging anyone else’s digital or manual signature.
- Disrupting or interfering with RigER® in any way, including through the uploading of files which contain viruses, worms, spyware, malware, or other software or programs that may be damaging to RigER® or another user’s computer, and/or data.
- Using RigER® to transmit, or to facilitate the transmission of, any unsolicited commercial e-mail or unsolicited bulk e-mail.
- Using RigER® to access, or to attempt to access, the accounts of others, or to penetrate, or attempt to penetrate, security measures of RigER® or another entity’s computer software or hardware, electronic communications system, or telecommunications system, whether or not the intrusion results in the corruption or loss of data.
- Using RigER® to collect, or attempt to collect, personal information about third parties without their knowledge or consent.
- Reselling RigER®.
- Using RigER® for any activity that adversely affects the ability of other people or systems to use RigER® or the Internet.
- Using RigER® in any way that could damage or impair BSC’s reputation or goodwill.
9. Confidentiality. Each Party shall preserve the confidentiality of the other Party’s Confidential Information and treat such Confidential Information with at least a reasonable standard of care. Either Party may disclose or make available to the other Party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media/in written or electronic form or media, marked, designated or otherwise identified as “confidential” (collectively, “Confidential Information”). Confidential Information does not include information that at the time of disclosure is: (a) in the public domain; (b) known to the receiving Party at the time of disclosure; (c) rightfully obtained by the receiving party on a non-confidential basis from a third party; or (d) independently developed by the receiving party. The receiving party shall not disclose the disclosing party’s Confidential Information to any person or entity, except to the receiving party’s employees who have a need to know the Confidential Information for the receiving party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the party making the disclosure pursuant to the order shall first have given written notice to the other party and made a reasonable effort to obtain a protective order; or (ii) to establish a party’s rights under this Agreement, including to make required court filings. On the expiration or termination of the Agreement, the receiving party shall promptly return to the disclosing party all copies, whether in written, electronic, or other form or media, of the disclosing party’s Confidential Information, or destroy all such copies and certify in writing to the disclosing party that such Confidential Information has been destroyed. Each party’s obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire five (5) years from the date first disclosed to the receiving Party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.
10. Indemnification by Licensee. The Licensee shall indemnify, defend, and hold harmless Licensor (and its officers, directors, employees, and agents) from and against any and all claims, suits, liability, damages, losses, costs, or expenses (including reasonable attorneys’ fees) which result from claims that any modifications the Licensee makes to RigER or any combination of RigER with software or other items not approved by Licensor infringes or violation of any third party intellectual property right. In case any action or proceeding is brought against Licensor by reason of any such claim, demand, action, damage, loss, liability, cost, or expense, the Licensee’s duty to defend shall begin upon receipt of written notice identifying the allegations that give rise to this duty to defend and shall be coextensive with the Licensee’s indemnification obligation.
Licensor shall have no liability under the foregoing indemnity for any Claim of infringement to the extent it arises from:
- Any unauthorized modification to software, Services or documentation made by Client or its agents;
- The unauthorized combination or use of Software, Services or documentation with other items where the Software, Services or documentation alone would not be infringing; or
- Any claim that software, Services or documentation infringe any Intellectual Property right in which Licensee has an ownership interest.
11. No Warranties. Licensor makes no representation as to the compatibility of RigER with any specific operating environments or computing device. Licensor licenses RigER to licensee on an “as is” basis without any express or implied warranties or representations of any kind, whether oral or written, whether express, implied, or arising by statute, custom, course of dealing, or trade usage. To the maximum extent permissible by applicable law, Licensor disclaims any and all implied warranties or conditions of title, merchantability, fitness for a particular purpose, and non-infringement, with regard to RigER. The licensee acknowledges that the operation of RigER may not be uninterrupted or error-free, and that errors may not be corrected. Licensor is not responsible in any way for any interference, errors, or prevention of the licensee’s access to or use of RigER. Licensor is not your accountant and use of RigER does not constitute the receipt of accounting advice. It is your sole responsibility to determine that RigER meets the needs of your business and is suitable for the purposes for which it is used. You remain solely responsible for complying with all applicable accounting, tax, and other laws. It is your responsibility to check that the storage of and access to your data via RigER and the website will comply with the laws applicable to you and your business (including any laws requiring you to retain records).
12. Backup of Data. The Licensee shall maintain copies of all data and information inputted by the Licensee into RigER. Licensor shall follow its archival procedures, such as performing scheduled backups, routine daily data recovery or archiving, for Licensee Information, but does not make any guarantees that there will be no loss of data or information. Licensor expressly excludes and disclaims any liability for any loss of the Licensee’s data and information, no matter how such loss was caused.
13. Limitation of Remedies and Damages. To the extent not prohibited by law and except for liabilities directly resulting from Licensor’s gross negligence or willful misconduct, (a) Licensor shall not be liable to the licensee under this agreement on any claim (whether in contract, tort, or otherwise) arising out of or relating to this agreement or any access to or use of RigER; and (b) in no event shall Licensor be liable to the licensee for any claim (whether in contract, tort, or otherwise) for any consequential, incidental, or indirect damages, including without limitation damages for loss of business profits and/or business interruption, including but not limited to damages for lost data, or costs of procurement of substitute goods or services, however caused, whether foreseeable or not, arising out of this agreement, even if Licensor has been advised of the possibility of such damages. Licensor’s liability for any loss or damage suffered by the Licensee as a result of Licensor’s negligence or failure to comply with these terms of use shall be limited in respect of any one incident, or series of connected incidents, to the fees paid by the Licensee in the previous twelve (12) months.
14. Privacy and Data Security. Licensor agrees that it shall use best efforts to (i) keep and maintain information in strict confidence, using such degree of care as is appropriate to avoid unauthorized access, use or disclosure; and (ii) use and disclose information solely and exclusively for the purposes for which the information, or access to it, is provided pursuant to the terms and conditions of this agreement and not use, sell, rent, transfer, distribute, or otherwise disclose or make available information for Licensor’s own purposes or for the benefit of anyone other than the Licensee, in each case, without the Licensee’s prior written consent.
15. FORCE MAJUERE. In no event shall either Party be liable to the other Party, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement (except for any obligations to make payments), if and to the extent such failure or delay is caused by any circumstances beyond such Party’s reasonable control, including but not limited to acts of God, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.
16. INJUNCTIVE RELIEF. The Licensee understands and agrees that its breach of this agreement will cause BSC irreparable damage for which recovery of money damages would be inadequate, and that BSC shall therefore be entitled to obtain timely injunctive relief to protect BSC’s rights under this agreement in addition to any and all remedies available at law, without the necessity of a bond.
17. COPYRIGHT AND TRADEMARK NOTICES. All trademarks are owned by BSC and their affiliates. The content, organization, graphics, design, compilation, magnetic translation, digital conversion, and other matters related to RigER® are protected under applicable copyrights, trademarks and other proprietary (including but not limited to intellectual property) rights. Other than as expressly permitted in the “LICENSE” section above, the copying, redistribution, use or publication by you of any such matters or any part of RigER®, is strictly prohibited. You do not acquire ownership rights to any article, document or other materials viewed through RigER®. The posting of information or materials on RigER® does not constitute a waiver of any right in such information and materials. Some of the content on RigER® may be the copyrighted work of third parties. Nothing contained in RigER® should be understood as granting you a license to use any of the trademarks, service marks, or logos owned by BSC or any third party.
