Terms of Use
WHEREAS IPL is the owner or distributor of the Data, and Geo Webworks Inc.
("GWW") is the owner or licensee of the Software;
AND WHEREAS the Customer wishes to use the Data and the Software on the terms
and subject to the conditions herein;
WITNESSETH that in consideration of the mutual covenants and agreements herein
contained and for other good and valuable consideration, the parties hereby
mutually agree:
1. DEFINITIONS: In this Agreement:
(a) "Access" means the provision by IPL of a password which allows the
Customer to view Data on the Website and use the Software, and "Access Date"
means the date on which the Customer is first given Access;
(b) "Data" means the data pertaining to the licensing, drilling, evaluation
and completion of exploratory and development oil and gas wells, drilled in
western Canada and Canada's federal lands and offshore regions owned, licensed
and/or distributed by IPL (as the case may be) and licensed to the Customer by
IPL and shall include any Related Materials. For further clarity, "Data" shall
include such portions of IPL's Petrodata File, Industry Data (being oil and gas
data which are generally obtained from digital files made available to the
petroleum industry by various provincial and federal regulatory agencies) and
data of Vendor Partners (as the case may be) as IPL may make available from
time to time;
(c) "Effective Date" means the date defined in the letter accompanying this
Schedule A as being the date upon which Access will commence;
(d) "License" means the rights and Access granted pursuant to clause 2.1;
(e) "Related Materials" means any user manuals, handbooks, cross sections,
tables, dictionaries, and other documentation or material in printed form
including any corrections or additions thereto or any subsequent release hereof
supplied by IPL, and relating to the Data or the Software, and including any
user ids, passwords and access methods disclosed by IPL to the Customer
regarding Access;
(f) "Purpose" means the use of the Data and the Software by the Customer
pursuant to the terms and conditions of this Agreement for the Customer's own
internal business purposes (and not on behalf of any third party) only, and for
no other purpose;
(g) "Software" means the software owned or licensed by GWW which allows the
Customer to use the Data through the Website in accordance with this Agreement;
(h) "System" means any of the Customer's computers, servers, networks or other
computer hardware used by the Customer for the purpose of or in connection with
the Data or the Software, and includes the operating system of the System and
all hardware and software used thereon, and includes any hardware or equipment
used by the Customer in obtaining Access between the Customer and the Data or
the Software, such as conventional modem service, an ISDN service, or a fiber
optics service. For the avoidance of doubt, "System" shall not include any IPL
or Vendor Partners' software, hardware or servers;
(i) "Vendor Partners" means third parties other than IPL (which for the
avoidance of doubt includes GWW), who, by agreement with IPL, have agreed to
make their data of software available to IPL's customers, and "Vendor Partner"
means each such other third party; and
(j) "Website" means www.Geoworks.com (as may be amended from time to time).
2. LICENSE AND ACCESS
2.1 Grant of License: Subject to the terms and conditions of this
Agreement, IPL in its own capacity and as agent for the Vendor Partners hereby
grants to the Customer, and the Customer hereby accepts, (i) a personal,
non-exclusive non-transferable, indivisible license from the Effective Date and
continuing only for the Term or until earlier termination of this Agreement in
accordance with clause 2.10, without any right to sublicense, to use the Data
and the Software only for the Purpose; and (ii) Access on the Access Date for
the Term only for the Purpose.
2.2 Restrictions on Use: Notwithstanding the License by IPL to the
Customer, the Customer expressly acknowledges and confirms that no rights are
granted pursuant to this Agreement or otherwise to use the Data, Access or the
Software in any manner whatsoever except for the Purpose; and that the License
shall not and does not include any right of the Customer to directly or
indirectly or permit others to: (a) lease, sell, transfer, assign, rent,
encumber, or otherwise dispose of or part with possession of in any manner the
License, the Data, the Software or any part thereto, including but not limited
to any sublicenses of the License (with any such purported sublicense being
null and void); (b) copy, duplicate or furnish to others any physical, magnetic
or other version of the Data or the Software except for the Purpose; (c) remove
any copyright notice contained or included in any material (including the Data
and the Software) provided by IPL or GWW; (d) change, modify, prepare
derivative works from, decompile, disassemble, reverse engineer, reconstruct or
attempt to do any of the foregoing in any manner whatsoever to or with the Data
or the Software; (e) merge the Data (except for the Purpose) or the Software
into other program material; (f) disclose, provide or otherwise make available
the Data or the Software in any form to any person, firm, corporation or other
entity except to individuals who are on the Customer's premises for purposes
specifically related to the Purpose; or (g) do or undertake any other act not
expressly allowed pursuant to this Agreement.
2.3 Data and Software Rights: The Customer acknowledges that
notwithstanding the grant of the License, the Customer shall not obtain any
ownership, right, title or interest in or to the Data or the Software except as
a licensee pursuant to the terms of the License. The Customer specifically
confirms and agrees that neither IPL nor any Vendor Partner is restricted in
any manner in dealing with the Data or the Software in its sole and absolute
discretion, including but not limited to the ability to enter any commercial
arrangement with any third party (including, for the avoidance of doubt, any
competitor of the Customer) regarding the Data, the Software, Access, or other
matters, or changing the content or format of the Data or the Software in
accordance with general changes made to IPL's or the relevant Vendor Partner's
standard offerings.
2.4 Customer Access Responsibilities: The Customer shall have the sole
responsibility at its own risk and expense to acquire, install, operate,
maintain and insure against all risks the System, and acknowledges that neither
IPL nor any Vendor Partner has any responsibility with respect thereto. The
Customer expressly acknowledges and confirms that failure or inability of any
of the System for any reason whatsoever to receive Data or the Software or
communicate with any computer, server or other device of IPL or the Website
shall not relieve any of the Customer's obligations hereunder; that it has
received IPL's specifications regarding the Data and the Software and the
Website, and shall at its own risk and expense do site preparation to create
and maintain a proper operating environment for the functioning of the Data and
the Software and Access to the Website (including but not limited to matters
relating to the System); and that Access may be interrupted in order to
maintain, modify or enhance equipment, the Website, the Data or the Software.
Nothing contained herein shall be construed as extending to the Customer a
license to use any computer programs or software (except the Software) which
IPL or any Vendor Partner is using under license from any third party.
2.5 License Only: The relationship between IPL and the Customer shall
be that of licensor and licensee, and the Customer expressly acknowledges and
agrees that it has licensed the use of the Data and the Software and Access
hereunder solely for its own account for the Purpose. The granting of the
License to the Customer or any other matter under this Agreement does not
constitute the Customer, its agents or employees, as an agent, commercial agent
or legal representative of IPL or any Vendor Partner for any purpose
whatsoever. Nothing in this Agreement shall be deemed in any way or for any
purpose to constitute the parties hereto partners in the conduct of any
business or otherwise.
2.6 No Warranty: IPL and its Vendor Partners make no representations or
warranties whatsoever, express, implied or statutory, and disclaim all
liability and responsibility for any other representation, warranty, statement
or information made or communicated (orally or in writing) to the Customer,
whether given by IPL, any Vendor Partner or their respective agents,
representatives, employees or other persons. IPL and each Vendor Partner each
expressly disclaims and negates any implied or express warranty of
merchantability, of fitness for a particular purpose, and of conformity to
models or samples of materials. Without limiting the generality of the
foregoing, IPL and each Vendor Partner does not warrant that the Website, the
Data, the Software, or Access will perform uninterrupted or error free, that
any deficiency can or will be corrected, or that the Website, the Data, the
Software or any Access will meet the Customer's requirements.
2.7 Limitation of Liability: IPL's or its Vendor Partner's total
liability to the Customer for damages from any and all causes whatsoever,
regardless of the form of action, whether in contract or in tort, including
negligence, breach of the limited warranties and any infringement of any patent
rights, copyrights or any misappropriation or unlawful use of any trade
secrets, confidential information or other intellectual property rights or
property of any third party will, in the aggregate, be limited to $100 (One
Hundred Dollars). In no event will IPL or its Vendor Partners be liable for any
damages resulting from the Purpose, the Customer's inability or failure to
perform any professional or other work, loss of profits, special, general,
incidental, indirect, consequential or exemplary damages whether or not such
losses or damages arose out of, resulted from or in connection with the Data,
the Software, any Access, the Website or the Customer's use of any thereof, or
the withdrawal or interruption of any or all of the Data, the Software, Access
or the Website notwithstanding notice may have been given of the possibility of
such loss or damages. The Customer hereby irrevocably confirms to IPL that the
Customer accepts sole and exclusive responsibility and liability for the
selection and use of the Data, the Software, Access, the Website, the Purpose
and the System (as the case may be) and that neither IPL nor any Vendor Partner
has any control over the conditions under which the Customer uses the Data, the
Software, Access, the Website, the Purpose or the System (as the case may be)
and cannot and does not warrant the results (if any) obtained.
2.8 Indemnity For Use: The Customer hereby agrees to indemnify and save
and hold harmless IPL and each Vendor Partner from and against any and all
liabilities, losses, costs, court costs, damages, expenses and reasonable legal
fees on a solicitor and his own client basis, accountant and other professional
fees resulting from, arising out of or in connection with any claim, demand,
proceeding or action made or brought by any person other than the Customer
against IPL or any Vendor Partner relating in any manner whatsoever to the
Customer's use and/or disclosure of the Data, the Software, the Website or
Access in violation of this Agreement or as a result of any other breach of
this Agreement.
2.9 Prices: The Customer will pay to IPL all applicable license,
subscription and other fees at the rates set forth in Schedule B to the letter
attached to this Schedule A, and as the same may be changed from time to time
in accordance with clause 2.16. The Customer shall pay all applicable taxes
with respect to this Agreement, the License and any fees charged herein. IPL
will issue invoices to the Customer for all amounts payable by the Customer
hereunder. All fees are payable in advance and due at the beginning of each
calendar month. If payment is not received by IPL within 45 days from the date
of the invoice, then interest will accrue on the outstanding balance of the
invoice at the rate of 18% per annum from the date of the invoice until payment
is received. All payments to IPL shall be made in Canadian Dollars in full,
without any set-off, deduction, hold back or counterclaim whatsoever.
2.10 Termination: The Customer may not terminate this Agreement prior
to the expiry of the Term. In the event of a breach of any term of this
Agreement by the Customer, IPL may terminate this Agreement upon 5 (Five)
business days written notice to the Customer. In addition, the Customer
acknowledges that IPL will monitor Access to and use of the Data and the
Software by the Customer during the Term, and may terminate this Agreement
without notice if in the sole and absolute opinion of IPL the use of the
License is not in accordance with the Purpose. Immediately upon termination of
this Agreement in any manner whatsoever (including the expiry of the Term): all
indebtedness of the Customer to IPL shall immediately become due and payable;
all Access shall cease; the Customer shall discontinue using the Data and the
Software, and deliver to IPL free of charge (and at the Customer's sole
expense) all Data and the Software and copies of the Data and the Software; the
Customer will permanently destroy all digital copies of the Data and the
Software resident in the System and any other storage devices, and shall
certify in writing that all digital copies of the Data and the Software and
Related Materials have been returned or destroyed and that no digital copies in
any form remain in the possession or control of the Customer; all rights
granted by IPL to the Customer pursuant to this Agreement shall immediately be
revoked, cease and shall be relinquished by the Customer and shall revert to
and revest in IPL or the Vendor Partners (as the case may be) without any
further documentation required to be executed and delivered by either party
hereto; and termination of the License and this Agreement pursuant to this
Clause 2.10 is in addition and without prejudice to any other remedy available
to IPL or any Vendor Partner (as the case may be) or the Customer at law or in
equity.
2.11 Acknowledgment: The Customer hereby expressly acknowledges that
the Data and the Software were compiled, revised, selected and arranged by IPL
and the Vendor Partners through the application of methods and judgment
developed and applied through the expenditure of substantial time, money and
effort, and the Data and the Software and Access and any other data and
materials supplied by IPL to the Customer are confidential and proprietary
trade secrets of IPL or the Vendor Partners (as the case may be) protected by
law, and are of substantial value to IPL and the Vendor Partners (as the case
may be), and their use and disclosure must be carefully and continuously
controlled.
2.12 Protection: The Customer will ensure that any and all copyrights,
proprietary information and trade marks of IPL or any Vendor Partner will
remain on all printed material associated with the Data and the Software
(including but not limited to the Related Materials), and that any trade marks
of IPL or any Vendor Partner will only be used in accordance with the written
directions of IPL. The Customer acknowledges that the Data and the Software
contain proprietary and confidential information of IPL and the Vendor
Partners, and agrees that the Customer shall safeguard such information by
making its best efforts to provide to them the same degree of care as exercised
towards its own proprietary information; and to prevent the unauthorized
copying, use, distribution, installation or transfer of the Data and the
Software.
2.13 Customer Covenants: The Customer agrees with respect to the Data
and the Software and the Access to refrain from contesting the title of IPL or
any Vendor Partner or any party through which IPL or any Vendor Partner claims
to its Data or the Software or Access or effecting any registrations thereof
(including but not limited to IPL's or any Vendor Partner's copyrights in the
Data or the Software) or taking any action to the detriment of IPL's or any
Vendor Partner's interests therein; and provide assistance to IPL or any Vendor
Partner (at IPL's or that Vendor Partner's cost) to protect IPL's or that
Vendor Partner's rights.
2.14 Several Obligations: The Customer hereby irrevocably confirms that
the obligations of IPL and each Vendor Partner hereunder are not joint, but are
separate and several from each other Vendor Partner and IPL, and neither IPL
nor any Vendor Partner will in any way be liable for the Data, Software,
Access, actions or omissions of any other Vendor Partner.
2.15 Notice: The address for service (including all
invoices) of the Customer is as set forth on the letter attached to this
Schedule A until either party changes its address for service by giving notice
to the other party.
2.16 Assignment and Amendment: The Customer is not entitled to assign
any of its rights hereunder to any third party without the express prior
written consent of IPL and any purported assignment of this Agreement or any of
the Customer's rights hereunder without the prior written consent of IPL will
be void. The parties agree that any change solely in the composition of Data or
number of licenses obtained by the Customer from time to time shall be deemed
not to be an amendment to this Agreement. IPL may invoice such changes
accordingly, and such revised invoices shall automatically be subject to the
terms and conditions of this Agreement without other steps required. Except as
otherwise specifically provided in this clause 2.16, no amendment, waiver,
alteration or modification of any of the provisions of this Agreement will be
valid and binding unless in writing and signed by a duly authorized
representative of all parties.
2.17 Governing Law: This Agreement and all matters arising out of or in
connection with this Agreement shall be governed by, construed and interpreted
in accordance with the laws of the Province of Alberta. Each party hereto
irrevocably attorns to the exclusive jurisdiction of the Courts of the Province
of Alberta.
2.18 Entire Agreement: This Agreement constitutes the entire agreement
among the parties, replaces and supersedes in their entirety any and all prior
oral or written communications, proposals, representations and agreements, and
each of IPL and the Customer irrevocably confirm that there are no other
written or verbal agreements or representations.
2.19 Further Assurances: Each party covenants and agrees that it will
execute such further documents and do and perform or cause to be done and
performed such further and other acts as may be necessary or desirable from
time to time in order to give full effect to the provisions of this Agreement.