THIS SUBSCRIPTION AGREEMENT IS A LEGAL AGREEMENT BETWEEN YOU ("SUBSCRIBER"), AND ODS-PETRODATA, INC. ("PUBLISHER"). SUBSCRIBER'S RECEIPT AND USE OF ANY OF THE PUBLICATIONS PROVIDED BY PUBLISHER TO SUBSCRIBER "PRODUCTS" ARE COVERED BY EITHER THIS AGREEMENT OR THE WRITTEN AGREEMENT BETWEEN THE PARTIES, ACCORDING TO SECTION 4 BELOW.
1. PRODUCTS. The Products are protected by United States and international copyright law and, except as set forth in Section 2, shall not be modified, reproduced, distributed, resold, reproduced, transmitted, displayed, published, performed, broadcast or in any way exploited in whole or in part without the prior written permission of Publisher. Subscriber shall not be authorized to alter or remove any trademark, copyright or other notice from copies of the Products.
All Products displayed on Publisher's Internet web site ("Site") for which Subscriber subscribes, may be downloaded from the Site and/or copied for personal use only, provided that Subscriber maintains all copyright and other notices contained therein. Copying or storing for other than personal, noncommercial use is expressly prohibited without prior written permission from Publisher. The terms and conditions of this Agreement shall be subject to modification by the License Terms/Terms of Use posted from time to time on Publisher's web site www.ods-petrodata.com.
2. GRANT OF LICENSE. Publisher grants to Subscriber a limited, non-exclusive, non-transferable, revocable, single-person license to use the Products for Subscriber's internal business purposes. All other rights are reserved to Publisher. Subscriber shall not rent, lease, sell, sublicense, assign, or otherwise transfer the Products, including any printed materials. Subscriber may not reverse engineer, decompile, or disassemble the Products except to the extent that this restriction is expressly prohibited by applicable law. Publisher and its suppliers shall retain title and all ownership rights to the Products.
3. PRICES/TERM OF AGREEMENT. Publisher reserves the right to change the price for the Products on an annual basis and all price changes shall become effective with the beginning of the next term. The term of this Agreement shall commence on the Effective Date and shall continue for one year from the date of this Agreement. This Agreement will automatically renew for successive one year terms, unless the Subscriber provides Publisher with written notice of its desire to terminate the Agreement at least sixty (60) days prior to the end of the then current term.
4. CONFLICT BETWEEN THIS AGREEMENT, TERMS OF USE AND WRITTEN AGREEMENTS. In the event that Subscriber has executed a written agreement, the terms and conditions of such written agreement shall control over this Agreement and the Terms of Use to the extent of conflict. Otherwise, the Terms of Use shall control over the terms of this Agreement to the extent of any conflict.
5. DISCLAIMER OF WARRANTIES. Publisher will use commercial efforts to obtain and provide quality information in the Products, notwithstanding the above, Publisher neither represents or endorses the accuracy or reliability of any portion of the Products or the information contained therein. Subscriber acknowledges that any reliance upon any portion of the Products is at Subscriber's sole risk. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE PRODUCTS ARE DISTRIBUTED ON AN "AS IS" BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE. SUBSCRIBER HEREBY ACKNOWLEDGES THAT USE OF THE PRODUCTS IS AT ITS SOLE RISK.
6. LIMITATION OF LIABILITIES. IN NO EVENT SHALL PUBLISHER OR ITS SUPPLIERS BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, DIRECT, INDIRECT, SPECIAL, PUNITIVE, OR OTHER DAMAGES WHATSOEVER (INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR OTHER PECUNIARY LOSS) ARISING OUT OF THIS AGREEMENT OR THE USE OF OR INABILITY TO USE THE PRODUCTS, EVEN IF PUBLISHER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO SUBSCRIBER. THE TERMS AND PROVISIONS OF THE UNITED NATIONS CONVENTION ON CONTRACTS FOR INTERNATIONAL SALES OF GOODS ARE HEREBY EXPRESSLY EXCLUDED. NOTWITHSTANDING ANY OTHER PROVISION IN THIS AGREEMENT TO THE CONTRARY, PUBLISHER SHALL NOT BE LIABLE TO SUBSCRIBER IN AN AMOUNT THAT EXCEEDS THE AMOUNT RECEIVED BY PUBLISHER FROM SUBSCRIBER OVER THE PAST SIX MONTHS FOR THE PRODUCTS UNDER WHICH THE CLAIM ARISES, WHETHER SUCH CLAIM ARISES UNDER A THEORY OF NEGLIGENCE, TORT, INTENTIONAL MISCONDUCT, STRICT LIABILITY, CONTRACT, OR OTHERWISE, AND EVEN IF SUCH DAMAGES WERE FORESEEABLE OR PUBLISHER WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
7. LIMITATION OF ACTIONS. Subscriber agrees that any cause of action arising out of or related to the Products or this Agreement must commence within one (1) year from the date the cause of action arose; otherwise, such cause of action is permanently barred.
8. U.S.A. GOVERNMENT RESTRICTED RIGHTS. The Products is provided with RESTRICTED RIGHTS. Use, duplication, or disclosure by the Government is subject to restrictions as set forth in subparagraph (c)(1)(ii) of The Rights in Technical Data and Computer Software clause of DFARS 252.227-7013 or subparagraphs (c)(1) and (2) of the Commercial Computer Software - Restricted Rights at 48 CFR 52.227-19, as applicable. Manufacturer is ODS-Petrodata, Inc., (3200 Wilcrest Drive, Suite 170 Houston, Texas 77042).
9. EXPORT RESTRICTIONS. Subscriber agrees to abide by any and all applicable export control laws in its use and distribution (if allowed hereunder) of the Products.
10. UNITED STATES DISPUTE RESOLUTION. In the event of a dispute with the Subscriber having its principle place of business in the United States, the following terms and conditions shall control. This Agreement shall be governed by the laws of the State of Texas, without regard to the conflicts of laws principles. The parties desire to resolve disputes without litigation. Accordingly, except for an action seeking temporary restraining order or injunction as set forth below or a suit to compel compliance with this dispute resolution provision, the parties agree to use the following alternative dispute resolution procedure as their sole remedy with respect to any controversy or claim arising out of or relating to this Agreement or its breach. At the written request of a party, a representative of Subscriber and a representative of Publisher shall meet and negotiate in good faith to resolve any dispute arising under this Agreement. If these persons cannot resolve the dispute within five (5) business days of their initial meeting to resolve the dispute, then the Chief Executive Officer of each party shall meet to resolve the dispute. Thereafter, the location, format, frequency, duration, and conclusion of these discussions shall be left to the discretion of the representatives. If no resolution is reached within ten (10) business days after the senior representatives of the parties meet to discuss the dispute, or such other time to which the parties mutually agree, the representatives may utilize other alternative dispute resolution procedures, such as mediation, to assist in the negotiations. Discussions and correspondence among the representatives for the purposes of these negotiations shall be treated as confidential information developed for the purposes of settlement, exempt from discovery and production, which shall not be admissible in the arbitration described below or in any lawsuit without the concurrence of both parties. Documents identified in or provided with such communications, which are not prepared for purposes of the negotiations, are not so exempted and may, if otherwise admissible, be admitted in evidence in the arbitration or lawsuit. Material breaches hereunder are tolled during the term of the dispute resolution. Notwithstanding the foregoing, either party may seek from any court of competent jurisdiction, injunctive and other equitable relief as appropriate prior to initiation of the dispute resolution procedures set forth above in the event of a material breach of the provisions of the Agreement. If a party seeks injunctive or other equitable relief in the event of a breach or threatened breach of this Agreement by the other party, such other party agrees that it shall not allege in any such proceeding that the party seeking such relief has an adequate remedy at law. If a party seeks any equitable remedies (including injunctive relief), it shall not be precluded or prevented from seeking remedies at law, nor shall it be deemed to have made an election of remedies. In all other respects, the dispute resolution provisions of this Agreement shall be mandatory, and arbitration shall be binding. The parties consent to the jurisdiction of the United States District Court for the Southern District of Texas, for all litigation which may properly be brought with respect to a dispute, enforcement of any judgment or the transactions and relationships contemplated by this Agreement. The parties agree that any judgment rendered under this Agreement against the party in fault may be executed against its funds (assets) in any jurisdiction. The parties hereby irrevocably waive any objection they may have to any suit, action or proceeding arising out of or relating to the enforcement of an arbitration judgment under this Agreement, whether brought any jurisdiction in which it has funds (assets), and hereby further irrevocably waive any claim that any such suit, action or proceeding brought in any jurisdiction has been brought in any inconvenient forum. If a party seeks any equitable remedies (including injunctive relief), it shall not be precluded or prevented from seeking its remedies at law through arbitration under this Agreement, nor shall it be deemed to have made an election of remedies.
11. FOREIGN SUBSCRIBER DISPUTE RESOLUTION. In the event of a dispute with the Subscriber having its principle place of business outside of the United States, the following terms and conditions shall control. Should any dispute arise relating to this Agreement between the parties, the parties shall seek to settle these differences amicably. If no resolution is reached within ten (10) business days after the senior representatives of the parties meet to discuss the dispute, then either party desiring to pursue its remedies under this Agreement shall request arbitration by delivery of written notice to the other party. Such disputes shall be submitted to final and binding arbitration before the London International Court of Arbitration (the "LCIA") in accordance with the Arbitration Rules of the LCIA. The Arbitration Tribunal shall consist of three (3) arbitrators. Subscriber shall appoint one arbitrator and Publisher shall appoint one arbitrator. The two (2) arbitrators thus appointed shall appoint the third arbitrator, who shall serve as the presiding officer of the Arbitration Tribunal. If a party fails to appoint its arbitrator within thirty (30) days of the receipt of a written request from a party for arbitration, such arbitrator shall be appointed by the President of the LCIA. If the two arbitrators thus appointed fail to agree on the appointment of the third arbitrator within thirty (30) days of the appointment of the second arbitrator and if the parties do not otherwise agree, the President of the LCIA shall appoint the third arbitrator. The third arbitrator shall be the presiding arbitrator on the Arbitration Tribunal. The arbitration shall be conducted in the English language and shall take place under the auspices of and in the offices of the LCIA in London, England. The Arbitration Tribunal shall decide by majority vote on points of substance, law and otherwise; provided, however, that in the event a majority cannot be formed, the third arbitrator shall make the final decision. All decisions of the Arbitration Tribunal shall be rendered in the English language and shall be final and binding on the parties and may be entered against them in a court of competent jurisdiction. The Arbitration Tribunal shall determine the costs of arbitration in its awards, and such costs shall be allocated between the parties as determined by the Arbitration Tribunal. The parties agree that any judgment rendered under this Agreement against the party in fault may be executed against its funds (assets) in any jurisdiction. By its acceptance of this Agreement, the parties hereby irrevocably submit to the non-exclusive jurisdiction of the appropriate courts in England or any other jurisdictions in any legal action or proceeding relating to such execution of judgment. The parties hereby irrevocably waive any objection they may have to any suit, action or proceeding arising out of or relating to the enforcement of an arbitration judgment under this Agreement, whether brought any jurisdiction in which it has funds (assets), and hereby further irrevocably waive any claim that any such suit, action or proceeding brought in any jurisdiction has been brought in any inconvenient forum. Further, if a party seeks any equitable remedies (including injunctive relief), it shall not be precluded or prevented from seeking its remedies at law through arbitration under this Agreement, nor shall it be deemed to have made an election of remedies.
12. ENTIRE AGREEMENT. This Agreement constitutes the complete and exclusive agreement between Publisher and Subscriber with respect to the subject matter hereof, and supersedes all prior oral or written understandings, communications, or agreements not specifically incorporated herein. This Agreement may not be modified except in writing duly signed by an authorized representative of Publisher and Subscriber.
13. ASSIGNMENT. Subscriber shall not assign or sublicense the license or this Agreement and any attempt to do so shall be void and shall result in the immediate and automatic termination of this Agreement and the included license. For purposes of this provision, assignment shall include any change of control of Subscriber, merger, or consolidation of Subscriber, even if Subscriber is the surviving entity.