IMPORTANT – READ CAREFULLY. THIS IS A LEGAL AGREEMENT BY AND BETWEEN (1) YOU THE “LICENSEE”, WHO IS THE PERSON, COMPANY, OR ENTITY UTILIZING “RigER®” – OILFIELD SERVICE AND RENTALS OPERATIONS MANAGEMENT SOFTWARE (“RigER®”) – AND (2) BELCA SOFT CORPORATION (“BSC”). BY CLICKING THE “I ACCEPT” BUTTON, OR BY USING RigER®, THE LICENSEE IS CONSENTING TO BE BOUND BY THE TERMS OF THIS END USER LICENSE AGREEMENT (“AGREEMENT”). THE LICENSEE FURTHER AGREES THAT ANY EMPLOYEES OR PERSONS THEY AUTHORIZE TO USE RigER®WILL ALSO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF THE LICENSEE DOES NOT AGREE TO THE TERMS OF THIS AGREEMENT OR DOES NOT HAVE THE AUTHORITY TO BIND THEIR ENTITY TO THESE TERMS, THEN THEY WILL NOT BE ALLOWED USAGE OF RigER®.
Terms and conditions of agreement
1. OWNERSHIP. BSC 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, patents, trade secret rights, trademarks, and other intellectual property rights thereto. RigER® is protected by the copyright laws of Canada, international copyright treaties and conventions, and other laws, and all rights are reserved.
- Grant of Privilege to BSC. Licensee exclusively owns all rights in and to information it stores on RigER® (“Information”). BSC needs a limited privilege from the Licensee to use (i.e., display, perform, and distribute) to make RigER® information available to you. By providing information, you grant BSC 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. BSC 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 you relating to the operation or features of RigER®.
- Notwithstanding anything to the contrary in this Agreement, BSC may monitor Licensee use of the Services and collect and compile Aggregated Statistics. As between BSC and Licensee, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by BSC. Licensee acknowledges that BSC may compile Aggregated Statistics based on Licensee Data input into the Services. Licensee agrees that BSC may (i) make Aggregated Statistics publicly available in compliance with applicable Law, and (ii) use Aggregated Statistics to the extent and in the manner permitted under applicable Law provided that such Aggregated Statistics do not identify Licensee or Licensee Confidential Information.
2. LICENSE BSC hereby grants the Licensee, and the Licensee hereby accepts a non-exclusive, non-sublicensable, non-transferable, fully revocable license to use RigER®solely for internal use and operation upon the terms and conditions contained in this agreement. You may use and access RigER® according to the license level purchased by you from any number of virtual machines or physical computing devices owned, leased, or otherwise controlled by you. For purposes of this agreement, “use” of RigER®means accessing RigER®over a computer network. RigER® may not be used by a greater number of persons, agents, or employees than you have paid a license fee for. You acknowledge that BSC makes no representation as to the compatibility of RigER® with any specific operating environments or computing device.
- Restrictions. The license is granted solely to the Licensee, and not to any parent, subsidiary, or affiliate of the Licensee. All rights not expressly granted hereunder are reserved to BSC. The license does not include (a) maintenance, support, upgrades, or modifications to RigER® other than as set forth herein, (b) derivative products developed by BSC or anyone else to whom BSC may license RigER®, or (c) a license or transfer of any intellectual property rights owned or controlled by BSC or any BSC 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.
- License Automatic Update and Expiration. Your license may include an expiration date that can result in the termination of the license. If your login identification is stolen, or if you suspect any improper or illegal usage of your license outside of your control you should promptly notify BSC of such occurrence. A replacement login will be issued to you and the suspect login will immediately be terminated. For your license to remain active, your payment must be processed prior to the expiration date in order for the license updates to be performed. For your convenience BSC provides License expiration warnings in the product interface should there be any issues that would cause the product License to expire. It is your responsibility to contact BSC regarding any potential expiration that you deem inappropriate. BSC is not liable for any damages or costs incurred in connection with the expiring Licenses.
- Use Reporting, License Violations and Remedies. BSC reserves the right to gather data on your usage of RigER® to ensure that our products are being used in accordance with the terms of this agreement. Licensee agrees to allow BSC, or an authorized agent, to audit Licensee’s use of the RigER® (including that of the Authorized Users). BSC will provide at least ten (10) days advance notice prior to the audit, and the audit will be conducted during normal business hours. BSC will bear all costs incurred during the audit, unless the audit reveals that Licensee has exceeded the level of use outlined in the fee schedule. Licensee will provide reasonable assistance, cooperation, and access to relevant information in the course of any audit. If Licensee is found in breach of the level of use, BSC may invoice Licensee for any past or ongoing excessive use, payable promptly after receipt. Any unauthorized use shall be considered by BSC to be a violation of this agreement. BSC reserves the right to remedy violations immediately upon discovery by any means necessary.
- Liability for Third Parties. Should you 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, you agree that any and all use of RigER® by such third parties, regardless of whether such use is specifically authorized or unauthorized by you, shall be legally attributed to you, and you hereby accept liability for any and all such use.
3. LICENSE FEES. RigER® will be available to you for use upon your payment of the applicable license fee and your receipt of one or more login identifications. Upon acceptance of this agreement, you may use your license by paying the requisite license fees applicable to your level of use, using the procedure set forth on the RigER® website (www.riger.ca). The license fees paid by you are paid in consideration of the license granted under this Agreement. BSC does not refund license fees. By accepting this Agreement you fully understand that once the license fee payment is made to BSC you will have no recourse for receiving a refund of any part of the fees.
4. TERM AND TERMINATION. The term of this Agreement commences as of the effective date, or upon your accessing, and using RigER® even if you have not expressly accepted this agreement, and shall continue unless and until either party provides written notice to the other terminating this agreement, or if the Licensee makes an assignment or other transfer of this agreement or the license, by operation of law or otherwise. Upon the termination of this Agreement, all license rights granted hereunder shall terminate in full and without notice, and the Licensee shall immediately cease use of RigER®. Notwithstanding the foregoing, any provision that by its nature or context is intended to survive any termination or expiration of this agreement, including but not limited to indemnification, shall so survive.
5. OPEN SOURCE SOFTWARE. RigER® may contain open source software components, each of which has its own copyright notice requirements and own applicable license conditions. These components are subject to the terms of third-party open source licenses, and not the terms of this agreement. If any such license requires BSC to deliver the source code for such component to the Licensee, BSC shall do so upon request at a nominal fee.
6. CONFIDENTIALITY. 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 5 (Five) 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.
7. INDEMNIFICATION BY LICENSEE. The Licensee shall indemnify, defend, and hold harmless BSC (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 BSC infringes or violation of any third party intellectual property right. In case any action or proceeding is brought against BSC 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.
8. NO WARRANTIES. BSC 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, BSC 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. BSC IS NOT RESPONSIBLE IN ANY WAY FOR ANY INTERFERENCE, ERRORS, OR PREVENTION OF THE LICENSEE’S ACCESS TO OR USE OF RigER®. BSC IS NOT YOUR ACCOUNTANT AND USE OF RigER® DOES NOT CONSTITUTE THE RECEIPT OF ACCOUNTING ADVICE. IF YOU HAVE ANY ACCOUNTING QUESTIONS, PLEASE CONTACT AN ACCOUNTANT. 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).
10. Backup of Data. The licensee is encouraged to maintain copies of all data and information inputted by the Licensee into RigER®. BSC adheres to reasonable practices and procedures to prevent data and information loss, but does not make any guarantees that there will be no loss of data or information. BSC expressly excludes and disclaims any liability for any loss of the Licensee’s data and information, no matter how such loss was caused.
11. PRIVACY AND DATA SECURITY. BSC 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 BSC’s own purposes or for the benefit of anyone other than the Licensee, in each case, without the Licensee’s prior written consent.
12. MAINTENANCE AND SUPPORT. BSC will provide maintenance and support services in accordance with the terms of the plan selected by the Licensee. BSC’s obligations, if any, to provide maintenance and support is subject to the following: (a) the Licensee shall provide BSC with sufficient access to its account and personnel to duplicate and resolve errors; (b) the Licensee shall provide supervision, control and management of the use of RigER®; (c) the Licensee shall document and promptly report all errors or malfunctions in RigER® to BSC, and (d) the Licensee shall take all steps necessary to carry out procedures for the rectification of errors or malfunctions within a reasonable time after such procedures have been received from BSC. Notwithstanding the foregoing, BSC shall be under no obligation to provide any updates, enhancements, modifications, revisions, or additions to RigER®.
13. NO UNLAWFUL OR PROHIBITED USE. As a condition of your use of RigER®, you warrant that you will not use RigER® for any purpose that is unlawful or prohibited by this agreement. You may not use RigER® in any manner which could damage, disable, overburden, or impair RigER® or interfere with any other party’s use and enjoyment of RigER®. You may not obtain or attempt to obtain any materials or information through any means not intentionally made available or provided for through RigER®. 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.
14. INJUNCTIVE RELIEF. 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.
15. 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.
16. 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.
17. CHANGES TO THIS AGREEMENT. Due to changing technological and marketing demands, BSC reserves the right to revise, amend, or modify this agreement from time to time. Notice of any revision, amendment, or modification will be posted on the website, and/or software client through which the Licensee accesses RigER®, and will be effective on the date noted in the posting. This agreement may not be amended or modified by the Licensee except by means of a written document signed by both the Licensee and an authorized representative of BSC. By continuing to use RigER® after the amendments are effective, the Licensee accepts and agrees to abide by them.
18. GENERAL PROVISIONS. This agreement is governed by and shall be construed in accordance with the federal laws of Canada. This agreement is the entire agreement between the parties on the subject matter hereof and supersedes all prior communications or agreements, written or oral. The relationship of the parties hereunder is that of independent contractors, and this agreement will not be construed to imply that either party is the agent, employee, or joint ventures of the other. In the event that any provision of this agreement is held to be unenforceable, this agreement will continue in full force and effect without said provision and will be interpreted to reflect the original intent of the parties. The Licensee may not assign or transfer this agreement (by operation of law or otherwise) without the prior written consent of BSC and any prohibited assignment or transfer will be null and void, but BSC may freely assign or transfer this agreement. This Agreement will be binding upon and will inure to the benefit of the parties’ permitted successors and/or assignees. Waiver by either party of a breach of any provision of this agreement or the failure by either party to exercise any right hereunder will not operate or be construed as a waiver of any subsequent breach of that right or as a waiver of any other right.